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State v. Grandberry

Supreme Court of Wisconsin

April 10, 2018

State of Wisconsin, Plaintiff-Respondent,
v.
Brian Grandberry, Defendant-Appellant-Petitioner.

          ORAL ARGUMENT: September 20, 2017

          REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 372 Wis.2d 834, 890 N.W.2d 49 (2016 - Unpublished) (L.C. No. 2014CM4581)

          For the defendant-appellant-petitioner, there were briefs and an oral argument by Leon W. Todd, assistant state public defender.

          For the plaintiff-respondent, there was a brief and oral argument by Jeffrey J. Kassel, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general.

          Amici curiae briefs were filed on behalf of Wisconsin Carry, Inc. by John R. Monroe and John Monroe Law, P.C., Roswell, Georgia.

          MICHAEL J. GABLEMAN, J.

         ¶1 This is a review of an unpublished decision of the court of appeals, which affirmed the Milwaukee County Circuit Court's[1] judgment of conviction against Brian Grandberry. State v. Grandberry, No. 2016AP173-CR, unpublished slip op., ¶9 (Wis. Ct. App. Nov. 29, 2016).

         ¶2 Grandberry was convicted of carrying a concealed and dangerous weapon contrary to Wis.Stat. § 941.23(2) (2013-14)[2] (the "Concealed Carry Statute"), resulting from an incident in which police discovered a handgun in the glove compartment of his motor vehicle during a traffic stop. Grandberry appealed his conviction, arguing that his conduct was in compliance with Wis.Stat. § 167.31(2) (b), which regulates the transportation of firearms in motor vehicles (the "Safe Transport Statute"), [3] and that his compliance with the Safe Transport Statute precluded his conviction under the Concealed Carry Statute. The court of appeals affirmed, holding that compliance with the Safe Transport Statute does not preclude conviction for a violation of the Concealed Carry Statute.

         ¶3 Grandberry raises two issues. First, he argues that there is insufficient evidence to support his conviction. He reaches this conclusion by asserting that a conflict exists between the two statutes that can be resolved only by holding that persons in compliance with the Safe Transport Statute do not violate the first element of the crime of carrying a concealed and dangerous weapon contrary to the Concealed Carry Statute. We hold that the Concealed Carry Statute and Safe Transport Statute are not in conflict because Grandberry could have complied with both by either obtaining a license to carry a concealed weapon pursuant to Wis.Stat. § 175.60 (hereinafter "concealed carry license" or "license") or by placing his loaded handgun out of reach.

         ¶4 Second, Grandberry argues that the Concealed Carry Statute is unconstitutionally vague because a person of ordinary intelligence would reasonably believe that complying with the Safe Transport Statute is sufficient to lawfully place a loaded, uncased handgun in the glove compartment of a motor vehicle. We hold that the Concealed Carry Statute is not unconstitutionally vague because a person of ordinary intelligence has sufficient notice that carrying a concealed and dangerous weapon is unlawful unless one of the enumerated exceptions in the Concealed Carry Statute applies.

         ¶5 Accordingly, we affirm.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         ¶6 Grandberry was charged with one count of carrying a concealed and dangerous weapon, contrary to Wis.Stat. § 941.23(2). The charge arose out of a traffic stop in the City of Milwaukee. At the bench trial held on the matter, Grandberry and the State stipulated to the truth of the facts in the criminal complaint. Accordingly, no testimony was taken. The complaint states, in relevant part:

On November 9, 2014, [two] City of Milwaukee Police Officer[s] . . . conducted a [traffic] stop of a vehicle . . . driven by the defendant [on] N. 60th St. Upon stopping the vehicle, the defendant identified himself by name but stated he did not have his wallet [or] identification. [One officer] then asked the defendant if he had any firearms in the car[, ] and the defendant stated he did[, ] in the glove compartment. [The officer] then asked the defendant if he had a valid [concealed carry license] and the defendant stated he did, but did not have it with him. Officers then conducted a search of the [license] database and discovered that the defendant did not, in fact, have a valid [concealed carry license]. Officers then went to the glove compartment and discovered a loaded, Hi-Point, .45 [caliber], semi-automatic pistol.
Upon arresting the defendant and conveying him to the station, the defendant made unprovoked statements to the effect of[:] "The gun in the glove compartment is mine, I took the [concealed carry license] class but never actually got a [license] ." Additionally, the defendant is not a peace officer.

         Based upon these facts, the circuit court entered a judgment of conviction against Grandberry. Grandberry then appealed his conviction.

         ¶7 The court of appeals affirmed, holding that the Safe Transport Statute did not apply to Grandberry.[4] Grandberry, unpublished slip op., ¶9. The court of appeals then applied the stipulated facts to the elements of Wis.Stat. § 941.23(2), and held that the State proved all elements beyond a reasonable doubt. Id., ¶11.

         ¶8 As to the second issue, the court of appeals held that the Concealed Carry Statute is not unconstitutionally vague because Grandberry had actual knowledge that he needed a concealed carry license to lawfully carry a concealed handgun in the glove compartment of his motor vehicle. Grandberry, unpublished slip op., ¶19.

         ¶9 Grandberry petitioned this court for review, which we granted on March 13, 2017.

         II. STANDARD OF REVIEW

         ¶10 Grandberry challenges the sufficiency of the State's evidence to support his conviction. "We . . . independently review whether the evidence was sufficient to sustain a jury verdict, but in so doing, we view the evidence most favorably to sustaining the conviction." State v. Hanson, 2012 WI 4, ¶15, 338 Wis.2d 243, 808 N.W.2d 390.

         ¶11 The proper interpretation of Wis.Stat. §§ 167.31(2)(b) and 941.23(2) is foundational to Grandberry's sufficiency-of-the-evidence challenge; we review issues of statutory interpretation de novo. Id., ¶15. "In construing or interpreting a statute the court is not at liberty to disregard the plain, clear words of the statute." State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶46, 271 Wis.2d 633, 681 N.W.2d 110');">681 N.W.2d 110 (citations omitted). We assume that legislative intent is expressed in the statutory language. Id., ¶43. We interpret statutory language in context, "not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results. Statutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage." Id., ¶46 (citations omitted).

         ¶12 This case also requires us to determine whether Wis.Stat. § 941.23(2) is unconstitutionally vague. The constitutional validity of a statute presents a question of law that this court reviews de novo. State v. Pittman, 174 Wis.2d 255, 276, 496 N.W.2d 74 (1993) . "It falls to the party challenging the constitutionality of a statute to prove that the statute is unconstitutional beyond a reasonable doubt." State v. Cole, 2003 WI 112, ¶11, 264 Wis.2d 520, 665 N.W.2d 328');">665 N.W.2d 328. The court indulges "every presumption to sustain the law . . . and if any doubt exists about a statute's constitutionality . . . [the court] must resolve that doubt in favor of constitutionality." Id.

         III. ANALYSIS

         ¶13 We begin our analysis by first setting out the relevant portions of both the Concealed Carry and Safe Transport Statutes. We then address Grandberry's argument that a person in compliance with the Safe Transport Statute cannot, as a matter of law, violate the first element of the Concealed Carry Statute, which he frames as a sufficiency-of-the-evidence challenge. Finally, we address Grandberry's argument that the Concealed Carry Statute is unconstitutionally vague.

          A. Statutory Background

          1. The Concealed Carry Statute

         ¶14 The Concealed Carry Statute, with certain exceptions, criminalizes the carrying of concealed and dangerous weapons. The Concealed Carry Statute states, in relevant part:

(2) Any person, other than one of the following, who carries a concealed and dangerous weapon is guilty of a class A misdemeanor:
(a) A peace officer . . .
(b) A qualified out-of-state law enforcement officer . . .
(c) A former officer . . .
(d) A licensee, as defined in s. 175.60 (1) (d) [5] . . .
(e) An individual who carries a concealed and dangerous weapon, as defined in s. 175.60(1) (j), [6] in his or her own dwelling or place of business . . .

Wis. Stat. § 941.23(2).

         ¶15 We read the Concealed Carry Statute as having two parts. First, we refer to the part that creates the crime of carrying a concealed and dangerous weapon as the "general prohibition:" "Any person . . . who carries a concealed and dangerous weapon'[7] is guilty of a Class A misdemeanor." See id. In order to convict a defendant of carrying a concealed and dangerous weapon contrary to Wis.Stat. § 941.23(2), the State must prove three elements:

1. The defendant carried a dangerous weapon. "Carried" means went armed with.
2. The defendant was aware of the presence of the weapon.
3. The weapon was concealed.

Wis JI-Criminal 1335 (2016).

         ¶16 Almost 90 years ago, we first used the term "within reach" to describe when a person "goes armed" with a concealed and dangerous weapon for purposes of the Concealed Carry Statute. Mularkey v. State, 201 Wis. 429, 432, 230 N.W. 76 (1930) ("[T]he driver of an automobile goes armed, within the meaning of [the Concealed Carry Statute], when he has a dangerous weapon within reach on a shelf in back of his seat."). Nearly 50 years later, the definition was subsequently clarified so that "'going armed' [with a concealed and dangerous weapon] meant that the weapon was on the defendant's person or that the weapon [was] within the defendant's reach . . . ." State v. Asfoor, 75 Wis.2d 411, 433-34, 249 N.W.2d 529');">249 N.W.2d 529 (1977) . We articulated the current definition of "went armed with" in State v. Fry, 131 Wis.2d 153, 182, 388 N.W.2d 565');">388 N.W.2d 565 (1986) (emphasis added) ("The elements of the crime of carrying a concealed weapon are: (1) the defendant had a dangerous weapon on his person or within his reach . . . ."), overruled on other grounds by State v. Dearborn, 2010 WI 84, 327 Wis.2d 252, 786 N.W.2d 97');">786 N.W.2d 97.

         ¶17 The statute's second part sets forth enumerated exceptions to the general prohibition. Wis.Stat. § 941.23(2)(a)-(e). These exceptions are affirmative defenses to a charge of unlawfully carrying a concealed and dangerous weapon. State v. Williamson, 58 Wis.2d 514, 524, 206 N.W.2d 613 (1973) (holding that defendants must raise their status as a peace officer as an affirmative defense). The enumerated exceptions were expanded in 2011. 2011 Wis.Act. 35, §§ 50-56. Before the 2011 amendment, only peace officers could lawfully carry a concealed and dangerous weapon. Wis.Stat. § 941.23 (2) (2009-10) .

         2. The Safe Transport Statute

         ¶18 The Safe Transport Statute states in relevant part:

(b) [N] o person may place, possess, or transport a firearm[8] . . . in or on a vehicle, unless one of the following applies:
1. The firearm is unloaded or is a handgun. [9]

Wis. Stat. § 167.31(2) (b)l.[10] This statute was amended in the same act that created Wisconsin's concealed carry license regime. 2011 Wis.Act. 35, § 31. Prior to the 2011 amendment, the Safe Transport Statute required all firearms (including handguns) that were placed within a motor vehicle to be unloaded and encased. Wis.Stat. § 167.31(2) (b) (2009-10). The current version of the statute does not include a requirement that any firearm be encased. § 167.31(2)(b). Further, though the statute generally requires firearms be unloaded, it expressly excepts handguns from this requirement. § 167.31(2)(b)l. Therefore, under the terms of the Safe Transport Statute, handguns in a motor vehicle may be both loaded and uncased.[11] Id.

         B. Grandberry's Conviction is Supported by Sufficient Evidence.

         1. The nature of Grandberry's argument

         ¶19 Grandberry frames his first issue as a sufficiency-of-the-evidence challenge; however, Grandberry does not raise the challenge in the traditional sense such that he asks us to review the evidence and apply it to the elements of the Concealed Carry Statute in order to determine whether there is "sufficient evidence" to support his conviction. See State v. Smith, 2012 WI 91, ¶41, 342 Wis.2d 710, 817 N.W.2d 410. Rather, Grandberry uses his sufficiency of the evidence argument as the means by which he argues that the relevant statutes are in conflict.

         ¶20 Grandberry's argument consists of three components: two premises and a conclusion. His first premise is that the two statutes are in conflict because the same conduct-placing a loaded handgun in a motor vehicle-can comply with the Safe Transport Statute yet violate the Concealed Carry Statute. His second premise is that this purported conflict between the statutes must be resolved by a holding from this court that a person in compliance with the Safe Transport Statute does not "carry" for purposes of the Concealed Carry Statute.[12] Grandberry's conclusion is that he complied with the Safe Transport Statute, and so, as a matter of law, his conduct could not violate the first element ("carry") of the offense of carrying a concealed and dangerous weapon contrary to the Concealed Carry Statute.

         2. The Safe Transport Statute and Concealed Carry Statute are not in conflict.

         ¶21 Grandberry's first premise is false because the two statutes are not in conflict. In order for two statutes to be in conflict, it must be impossible to comply with both. See City News & Novelty, Inc. v. Waukesha, 170 Wis.2d 14, 22, 487 N.W.2d 316 (Ct. App. 1992) . The two statutes serve distinct purposes: the Safe Transport Statute regulates the transportation of firearms in motor vehicles to ensure the transportation is done safely, see Wis.Stat. § 167.31 (entitled "Safe use and transportation of firearms and bows."), [13] while the Concealed Carry Statute regulates the carrying of concealed firearms to ensure the safety of the public, see State v. Walls, 190 Wis.2d 65, 71, 526 Wis.2d 765 (Ct. App. 1994) (quoting Williams v. Commonwealth, 261 S.W.2d 807, 807-808 (Ky. 1953) (governments historically prohibited the carrying of concealed weapons "because persons becoming suddenly angered and having such a weapon in their pocket[] would be likely to use it, which in their sober moments they would not have done, and which could not have been done had not the weapon been upon their person.")) . When a person places a loaded handgun in a motor vehicle, he can both transport a ...


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