State Wisconsin v. Jerry L. Peete

HEFFERNAN, CHIEF JUSTICE. This is a review of an unpublished per curiam decision of the court of appeals affirming a judgment of the Milwaukee County circuit court, Judge William D. Gardner. The judgment convicted Jerry L. Peete, pursuant to a jury verdict, of possession of cocaine with intent to deliver while armed, under secs. 161.16(2)(b)1, Stats., 16l.41(1m)(c)2, Stats., and 939.63(1)(a)3, Stats. We accepted review limited to three issues. The first issue we address on review is whether sec. 939.63, Stats., which establishes an enhanced penalty for a person who commits a crime while "possessing" a dangerous weapon, penalizes both actual and constructive possession. We conclude that it does. When interpreting Wisconsin criminal statutes, this court has consistently concluded that the term "possession" includes both actual and constructive possession. Furthermore, the criminal jury instruction on "possession" provides instruction on both actual and constructive possession. This instruction is used for possessory offenses throughout the criminal code.