State v. Perez

BROWN, P.J.

¶ 1. The State of Wisconsin appeals an order of the circuit court concluding that Carlos Perez, who was convicted of carrying a concealed weapon, did not "use" a weapon while committing that crime and thus is entitled to return of the weapons under WlS. STAT. § 968.20(lm)(b) (1997-98).1 The State argues that if a person commits a crime while "with" a firearm, the firearm may be seized and not returned to the owner. We disagree that this is the proper interpretation of the word "use" as it exists in the statute. We affirm the circuit court.

¶ 2. The necessary facts are few and uncomplicated. Perez drove his van into a ditch. When an officer arrived, he observed two uncased rifles and a pistol inside the van. The firearms were seized and a complaint was issued charging Perez with carrying a concealed weapon. He pled no contest to the charge. *240Following his conviction, Perez sought the return of the firearms. The State opposed the request and argued that the firearms need not be returned under WlS. STAT. § 968.20(lm)(b). The trial court ruled for Perez and the State appeals.

¶ 3. This case turns on the proper interpretation of WlS. Stat. § 968.20, which provides for the return of seized property. "The interpretation of a statute is a question of law which we review de novo." Grosse v. Protective Life Ins. Co., 182 Wis. 2d 97, 105, 513 N.W.2d 592 (1994). However, we value trial court opinions even on issues involving pure questions of law. See Lomax v. Fiedler, 204 Wis. 2d 196, 206, 554 N.W.2d 841 (Ct. App. 1996).

¶ 4. The statutory section we interpret is WlS. Stat. § 968.20(lm)(b). The relevant language is: "If the seized property is a dangerous weapon or ammunition, the property shall not be returned to any person who committed a crime involving the use of the dangerous weapon or the ammunition." Id.

¶ 5. The State cites State v. Williams, 148 Wis. 2d 852, 436 N.W.2d 924 (Ct. App. 1989), as support for its position. The question in Williams was whether a person who had committed a crime involving the use of a dangerous weapon could sell that weapon after commission of the crime and thereby avoid denial of its return under WlS. Stat. § 968.20(lm)(b). The court resorted to legislative history to answer the question in the negative. To support its decision, the court quoted from the Legislative Reference Bureau's analysis of 1983 Wis. Act 278. We repeat the full quote.

This proposal revises the treatment of seized firearms.... If the person committed a crime with a firearm . . . the firearm . . . may not be returned to him or her. The rightful owner of a seized firearm *241. . . may reobtain that property if the owner had no prior knowledge of and gave no consent to the commission of the crime.

Williams, 148 Wis. 2d at 857 (alteration in original). The court then went on to conclude that a person who did not own the firearm at the time of the commission of the crime could not "reobtain" that property. The issue of whether a dangerous weapon must have been used in the crime, as opposed to merely being with the person who committed the crime, was not before the Williams court. Thus, Williams does not drive the result in this case.

¶ 6. The Williams court examined the bureau's analysis because it found Wis. Stat. § 968.20(lm)(b) ambiguous. However, the ambiguity was only with respect to whether a perpetrator could sell the dangerous weapon after the fact. The question presented here is the meaning of the word "use" in the statute. The word "use" is not a legal term of art; it is a term used in everyday language. Statutory language must be construed according to its common and approved usage unless the legislature has designated a different definition. See WlS. Stat. § 990.01(1); State v. Curiel, 227 Wis. 2d 389, 404, 597 N.W.2d 697 (1999). To find that common and approved usage, we consult a standard dictionary. See Curiel, 227 Wis. 2d at 404. We note that our use of a dictionary does not render the statutory language ambiguous. See id. at 405. Webster's defines "use" as "to put into action or service," to "apply to advantage" and "to carry out a purpose or action by means of." Webster's Third New International Dictionary 2523-24 (1993). In terms of the statute, these meanings show that the mere fact that the firearm is with a person is not enough. The firearm had to be part of the crime in some way.

*242¶ 7. Lest our holding be misunderstood, we hasten to clarify that the firearm's involvement in the crime need not be active. In fact, a "firearm may be involved in the commission of some crimes by its mere presence." Williams, 148 Wis. 2d at 861 (Dykman J., concurring). So, for example, if a robber has an open gun in full view of the victim but does not actually put it into action or service, that robber has still "applied" the dangerous weapon to his or her advantage to help carry out the crime. The robber intended the gun's presence to further the success of the crime. But, if a person simply has a gun uncased in a car and the car goes into a ditch, that person has neither put the gun into action or service, availed himself or herself of it, nor carried out any purpose or action by means of the weapon. In Perez's case, there is no evidence that Perez, who had a license to carry a concealed weapon in Florida, "used" the firearms to commit a crime as that term is understood in everyday language.

¶ 8. The State points out that carrying a concealed weapon is not the only crime the elements of which are satisfied by the mere presence of a gun. WISCONSIN Stat. § 948.605(2)(a), which makes it a crime to possess a gun in a school zone; WlS. STAT. § 941.235(1), which prohibits going armed in a public building; and WlS. Stat. § 941.237(2), which outlaws carrying a handgun in a tavern, are all statutes that are violated by the passive presence of a firearm. The State argues that the legislature could not have meant to have violators of these statutes keep their guns. Perhaps not, but that is what the legislature wrote. Had the legislature meant to prohibit the return of dangerous weapons to those convicted of these crimes it would have been easy to do so; instead of "use," the statute could say "use or *243possess." But it does not. It is not this court's job to rewrite the statute.

¶ 9. Alternatively, the State argues that even if Perez did not use the weapons, the weapons still should be forfeited because they are contraband. See Jones v. State, 226 Wis. 2d 565, 587, 594 N.W.2d 738 (1999), cert. denied, 120 S. Ct. 995 (2000) ("Contraband need never be returned."). We disagree. In Jones, police seized cash and drug paraphernalia from Jones's person and car after arresting him for operating while intoxicated. One question presented was whether Jones could reclaim his property under Wis. STAT. § 968.20. Our supreme court concluded that contraband need not be returned under the statute. Thus, the court looked to Wis. Stat. § 968.13(l)(a), which defines contraband, to determine whether cash counts as contraband. The key distinction is not whether an item is per se illegal, but rather whether it has been used in an illegal manner. See Jones, 226 Wis. 2d at 590. Here, as we concluded above, Perez did not use his firearms in an illegal manner. Nor is there any indication that he acquired or transferred them illicitly. See id. Thus, the firearms are not contraband.

¶ 10. We pause to point out that the result of this case does not render the carrying a concealed weapon statute meaningless. Carrying a concealed weapon is a crime. Perez pled no contest to the charge and was duly sentenced for the crime. Of course the state may prohibit its citizens from going armed with a concealed and dangerous weapon. But, under the current version of Wis. Stat. § 968.20, it may not keep their weapons.

¶ 11. Because Perez did not use his firearms to commit a crime, they are not barred from return under Wis. Stat. § 968.20(lm)(b). Furthermore, his illegal *244concealment of them, without more, does not render them contraband. The trial court was correct in ordering that the State return Perez's guns.

By the Court. — Order affirmed.

All references to the Wisconsin Statutes are to the 1997-98 version.