State v. Black , 242 Wis. 2d 126 ( 2001 )

ANN WALSH BRADLEY, J.

¶ 23. (concurring). I agree with the majority that the circuit court conducted an appropriate inquiry under Wis. Stat. § 971.08(1)(b) in accepting Black's plea. I also agree that Black's statement in the complaint satisfies the elements of the crime of felon in possession of a firearm. Accordingly, I join in the majority opinion. I write separately because I feel the majority's characterization of the crime of felon in possession as a strict liability crime overshadows the fact that the crime does indeed require proof of a mental state.

¶ 24. Felon in possession of a firearm requires proof of possession. Possession under Wisconsin law requires that the "defendant knowingly had the item under his actual physical control." Wis JI—Criminal 920; see also Doscher v. State, 194 Wis. 67, 69, 214 N.W. 359 (1927). As the majority notes, the "knowingly" requirement means conscious possession. Majority op. at ¶ 20.

¶ 25. What the majority does not clearly explain is that knowledge is a mental state required to establish the offense. See Wis. Stat. § 939.23(2). As a crime having a requisite mental state, the crime is not a true strict liability offense. See Staples v. United States, 511 U.S. 600, 607-08 n.3 (1994) (explaining that "strict liability" is a misnomer where crime actually requires proof of knowledge). While this court has used the "strict liability offense" in describing the crime of felon in possession of a firearm in the past, these statements highlighted the lack of a specific intent or the requirement of "culpability or bad purpose" and not the lack of a mental state in its entirety. See State v. Dundon, 226 Wis. 2d 654, 664, 594 N.W.2d 780 (1999).