State v. Henning
828 N.W.2d 235, 2013 WI App 15, 346 Wis. 2d 246 (2013)
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Rule of Law:
In Wisconsin, a crime that requires a mental state of "knowledge," such as felon in possession of a firearm, can be charged as an attempted crime under the general attempt statute. It is not necessary for the underlying crime to have an element of "specific intent" for it to be prosecutable as an attempt.
Facts:
- Wyatt Henning, a convicted felon, and his girlfriend had a heated argument.
- While Henning was at work, his girlfriend packed her belongings and left their shared residence with their daughter.
- Upon discovering they were gone, Henning called his girlfriend and threatened to kill her if she did not return their daughter.
- A few hours later, Henning called his co-worker, Brian Kettle, and inquired about obtaining a pistol.
- Kettle testified that Henning asked either "do you have [a pistol]" or "can you get [a pistol]."
- Kettle told Henning he had to work and did not provide him with a firearm.
Procedural Posture:
- The State charged Wyatt Henning in Wisconsin circuit court (trial court) with attempted possession of a firearm by a felon.
- At the close of the State's case at trial, Henning's defense counsel moved to dismiss the charge on the ground of insufficient evidence.
- The circuit court denied the motion to dismiss.
- A jury returned a guilty verdict.
- The circuit court entered a judgment of conviction against Henning.
- Henning filed a postconviction motion for relief, which the circuit court denied.
- Henning (appellant) appealed the judgment of conviction and the denial of his postconviction motion to the Wisconsin Court of Appeals (intermediate appellate court).
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Issue:
Does Wisconsin law recognize the crime of attempted possession of a firearm by a felon?
Opinions:
Majority - Higginbotham, J.
Yes, the crime of attempted possession of a firearm by a felon is a recognized offense under Wisconsin law. The court rejected Henning's argument that an attempt charge is only possible for crimes requiring specific intent. The precedents he cited, involving reckless homicide and felony murder, are inapplicable because it is logically impossible to intend an unintentional act. In contrast, the crime of felon in possession of a firearm requires a mental state—that the defendant 'knowingly' had control of the weapon. Because the underlying offense includes this mental state of knowledge, it is amenable to being charged as an attempt. Furthermore, prohibiting felons from attempting to possess firearms directly serves the legislature's public safety purpose of keeping guns out of the hands of those deemed more likely to misuse them.
Analysis:
This decision clarifies the scope of attempt liability under Wisconsin's general attempt statute, establishing that crimes with a 'knowledge' mens rea can be attempted, not just those with 'specific intent.' It prevents a potential loophole where individuals could take substantial steps toward committing possession-based offenses but evade liability because the completed crime lacks a specific intent element. The ruling reinforces the public policy goals of firearm control statutes by extending their reach to cover preparatory acts, thereby allowing intervention before a weapon is actually obtained.
