Wisconsin Criminal Jury Instructions (WCJI)
2176 POSSESSION OF A DANGEROUS WEAPON BY A CHILD — § 948.60(2)(a)
Statutory Definition of the Crime
Possession of a dangerous weapon by a child, as defined in § 948.60(2)(a) of the Criminal Code of Wisconsin, is committed by any child who possesses or goes armed with a dangerous weapon.
State’s Burden of Proof
Before you may find the defendant guilty of this offense, the State must prove by evidence which satisfies you beyond a reasonable doubt that the following three elements were present.
Elements of the Crime That the State Must Prove
1. The defendant possessed an object.
“Possessed” means that the defendant knowingly had the object under (his) (her) actual physical control.
2. The object was a dangerous weapon.
A ________ is a dangerous weapon.
3. The defendant had not attained the age of 18 years at the time (he) (she) allegedly possessed a dangerous weapon.
If you are satisfied beyond a reasonable doubt that all three elements of this offense have been proved, you should find the defendant guilty.
If you are not so satisfied, you must find the defendant not guilty.
Wis JI Criminal 2176 was originally published in 1989 and revised in 1991, 1992, 1998, and 2009. This revision was approved by the Committee in October 2011; it corrected a statutory cross-reference in footnote 4 to reflect a change made by 2011 Wisconsin Act 35.
This instruction is for a violation of § 948.60(2)(a). Section 948.60 was created by 1987 Wisconsin Act 332 as part of the revision of the criminal statutes relating to crimes against children. It applies to offenses committed on or after July 1, 1989. This instruction replaces Wis JI Criminal 1325 which applied to what was essentially the same offense under § 941.22, 1985 86 Wis. Stats., a statute repealed by 1987 Wisconsin Act 332.
Section 948.60 was amended by 1991 Wisconsin Act 18 (see note 4, below) and by 1991 Wisconsin Act 139. The latter divided what was formerly sub. (2) into sub (2)(a) and (b). For violations of § 948.60(2)(b) involving selling a dangerous weapon to a child, see Wis JI Criminal 2177.
The statute provides an exception for possession by a child in a course of instruction in the traditional and proper use of the weapon under adult supervision. See § 948.60(3)(a). Additional exceptions are recognized in subsections (3)(b) and (c); they were added by 1991 Wisconsin Act 18, effective date: June 8, 1991. The general rule in Wisconsin is that an exception which appears in a separate section of the statute is a matter of defense which the prosecution need not anticipate in the pleadings. State v. Harrison, 260 Wis. 89, 92, 150 N.W.2d 38 (1951); Kreutzer v. Westfahl, 187 Wis. 463, 477, 204 N.W. 595 (1925).
These situations are best handled, in the Committee’s judgment, in the same manner as “affirmative defenses.” That is, they are not issues in the case until there is some evidence of their existence. Once there is evidence sufficient to raise the issue, the burden is on the state to prove, beyond a reasonable doubt, that the defense, or the exception, is not present. See Moes v. State, 91 Wis.2d 756, 284 N.W.2d 66 (1979); State v. Schultz, 102 Wis.2d 423, 307 N.W.2d 151 (1981).