COURT OF APPEALS
DATED AND FILED
November 16, 2010
A. John Voelker
Acting Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF APPEALS
Jason W. Kucik,
APPEAL from a judgment of the circuit court for
Before Curley, P.J., Fine and Kessler, JJ.
¶1 CURLEY, P.J. Jason W. Kucik appeals from a judgment of conviction, entered on a jury’s verdict, for two counts of possessing a short-barreled shotgun, contrary to Wis. Stat. § 941.28(2) (2007-08). At the time police officers found two illegal shotguns in Kucik’s apartment, they were taking Kucik into protective custody pursuant to a Wis. Stat. § 51.15 emergency detention. The illegal shotguns were not in plain view, but they were discovered after the officers decided to seize, for safekeeping, some legal guns that were stored in a gun cabinet. The removal of the legal guns led to the discovery of the illegal shotguns, which were not previously visible when the officers looked in the gun cabinet. Kucik argues that the officers had no legal basis to seize the legal guns that led to the discovery of the illegal shotguns, and that his pretrial motion to suppress the guns therefore should have been granted.
¶2 At oral argument, the State argued that the legal guns could be seized because they were in plain view and at the time of the seizure the officers had probable cause to believe the guns were evidence of a crime. We agree with the State that even though the trial court did not rely on this reasoning when it denied Kucik’s motion to suppress, this reasoning provides an alternate basis to affirm the trial court. We affirm.
¶3 Kucik was charged with possessing two short-barreled shotguns that were found in a gun cabinet in his bedroom. He moved to suppress evidence of the guns, alleging their seizure violated his Fourth Amendment rights. Two officers, Kucik’s girlfriend (Tammy Hirthe) and Kucik all testified at the suppression hearing.
¶4 Daniel Martinez, a police officer for the City of St.
Francis, testified that at 4:45 p.m. on Tuesday, August 5, 2008, he was
dispatched to the home of Kucik’s cousin, Shane Meyer, who wanted to talk with
the officer about an incident that had occurred earlier in the day at a bar
operated by Meyer and Kucik. Meyer told
¶6 Young was present as
we were concerned for his safety and ... he was in emergency custody, and that we had checked him, found no weapons on him but that we needed to check the apartment ... for any people inside, based on the complaint that we had, that he was making physical threats, threatening to kill people so we needed to check the apartment.
¶11 On cross-examination,
Based on the statements that he had taken the medication, that they were worried about the effects of the medication, that they didn’t believe him to be in his right mind, Officer Lucht and I decided that getting him help [was important], and that’s all the family wanted[,] ... they said they didn’t want him arrested, they wanted him to get help.
¶12 Lucht testified that when Kucik first came out of the apartment
after his girlfriend convinced him to do so, Lucht and two other officers had
their weapons drawn and told Kucik to show his hands. After Kucik complied, one officer handcuffed
Kucik. Lucht said that after he and
¶13 Lucht said they “cleared everything that we could,” determining that there were no people present in each of the rooms, except they were not able to access a locked bedroom. Lucht exited the apartment and went to talk to Kucik, who was seated in the back of the squad car. Kucik told Lucht how to use a knife or screwdriver to unlock the knob and Lucht returned to the apartment to open the bedroom door.
¶14 Lucht successfully opened the door and he and
¶15 Lucht said he opened the unlocked gun cabinet, removed the guns and knives and put them on the bed. He said he recovered “shotguns, some rifles and then some knives, throwing knives, a butterfly knife and the two short[-barreled] shotguns.” Lucht took all of the items from the apartment and secured them at the police station.
¶16 On cross-examination, Lucht acknowledged that when he first looked at the gun cabinet, he did not see anything illegal in the cabinet. He also said that neither Kucik nor Hirthe had given the officers permission to take the guns, open the gun cabinet or “go through the gun cabinet at all.” Further, he indicated he had not told Kucik that he was looking for anything other than people in the apartment.
¶17 Kucik and Hirthe gave testimony that differed from the officers’ testimony in several ways. Hirthe testified that she did not agree to have the police do a mental health and welfare check on Kucik, and that she did not believe Kucik had mental health problems. She said she agreed to call Kucik because she surmised Kucik did not hear the officers knocking on the door.
¶18 Hirthe testified that she had never seen Kucik appear to have hallucinations or delusions. Finally, she said that the gun cabinet was always kept locked.
¶19 Like Hirthe, Kucik testified that the gun cabinet was kept locked and that he had not unlocked it that day. Kucik said he did have a fight with Meyer on the day he was detained, but he denied that he ever struck Meyer. Kucik denied that he had ever had hallucinations or paranoid delusions and said he does not take medication for mental illness. He acknowledged that he does take medication for epilepsy.
¶20 Kucik said that after he came out of his apartment and was placed in handcuffs, the officers asked if they could search the apartment for hostages. Kucik said he agreed and later told one of the officers how to enter the bedroom. Kucik said that he gave them permission to search “[b]ecause they wanted to look for hostages,” and that “[t]he whole time, I was still trying to figure out what was going on.” Kucik said he did not give the officers permission to go into the gun cabinet.
¶21 The trial court stated that it had weighed the credibility of the witnesses and proceeded to make factual findings that were consistent with the officers’ testimony. It found that Meyer and Young had given the officers information to support an emergency detention, and that the officers
then proceeded to go to [Kucik’s] home to effect an emergency detention as Mr. Meyer indicated he did not want the defendant pursued for any type of criminal activity such as battery but [he] was certainly concerned about [Kucik’s] mental status and was fearful of what might be happening to himself in regards to [Kucik’s] current mental state.
¶22 The trial court found that Kucik gave the officers permission “to go in to check for people” and later told the officers how to enter the locked room. The trial court found that both officers saw the gun cabinet contained guns and knives, but “testified very truthfully” that they did not see any short-barreled shotguns. The trial court found that it was not until one of the officers opened up the gun cabinet—which the court found was unlocked—removed the guns and placed them on the bed that the officer “discovered that there were two short-barreled shotguns.”
¶23 Based on these facts, the trial court found that the officers had a reasonable basis to detain Kucik under Wis. Stat. § 51.15. It also found that Kucik voluntarily consented to having his apartment searched for people. The trial court concluded that at the time the officers saw the gun cabinet, they had a legitimate reason for being in the bedroom. It concluded that because the short-barreled shotguns were not in plain view, they could not have been seized as contraband, but it found that the illegal shotguns were legitimately discovered when the officers removed the legal guns to be “used as evidence with regard to the emergency detention situation where there were threats to use guns and make those threats more credible.” Accordingly, the trial court denied the motion to suppress.
¶24 The case proceeded to trial and Kucik was convicted. He was sentenced to probation on both counts, with jail time imposed and stayed. This appeal follows.
Standard of Review
¶25 “Review of an order granting or denying a motion to suppress
evidence presents a question of constitutional fact, which we review under two
different standards.” State
v. Hughes, 2000 WI 24, ¶15, 233
¶26 At the outset, it is important that we recognize precisely what
Kucik is, and is not, challenging on appeal.
Kucik is not challenging the trial court’s factual findings, including
the trial court’s finding that Kucik voluntarily consented to the search of his
apartment. Kucik is also not asserting
that there was an insufficient basis for the officers to detain him under Wis. Stat. § 51.15. Finally, Kucik is not challenging the trial
court’s legal conclusion that once the illegal short-barreled shotguns were
discovered, they could be seized as illegal weapons in plain view. What Kucik is asserting is that the officers did
not have a legal basis to seize the legal guns in the gun cabinet, and that the
short-barreled shotguns that were inadvertently discovered when the legal guns
were seized should be suppressed as “fruit of the poisonous tree.”
¶27 In its appellate brief, the State argued that we should uphold
the trial court’s order denying Kucik’s motion to suppress because the legal
guns “were evidence relevant to the [Wis.
Stat. ch.] 51 proceedings.” At oral argument, the State offered a
different basis to affirm, arguing that the legal guns could be seized as
evidence of a crime. We agree with the
State’s alternate basis to affirm the trial court and, on that basis, we
affirm. We do not consider the merits of
whether police officers can seize guns as evidence to be used in a Wis. Stat. ch. 51 proceeding.
A. Seizure of legal guns as evidence of a crime.
1. Whether this
basis to affirm should be considered where it was raised
for the first time at oral argument.
¶28 For the first time at oral argument, the State offered a basis to affirm the trial court’s order denying the motion to suppress that was not relied upon by the trial court. Specifically, the State argued that the legal guns, which were in plain view, could be seized as evidence of a crime (i.e., disorderly conduct, threats and/or battery). We requested supplemental briefing on this issue, including on the issue of whether we should consider this argument even though it was raised for the first time at oral argument.
¶29 Kucik argues that we should not consider the State’s new basis
to affirm the trial court’s denial of his motion to suppress. He directs our attention to A.O.
Smith Corp. v. Allstate Insurance Cos., 222
We underscore that waiver is a rule of administration only. There may be an occasion where the appellate court may choose to decide an issue not raised in the briefs, but raised at oral argument. If the court is of the opinion that the issue was fairly debated at oral argument such that fundamental fairness was not violated, the court may choose to address the issue. The court decides in each individual case whether the situation warrants relief from the waiver rule.
¶30 The State urges us to exercise our discretion and consider the
argument it raised for the first time at oral argument. It asserts that both parties have had an
opportunity to address the issue in supplemental briefs and that fundamental
fairness is therefore not violated. See id.
It also notes that it is relying “only on facts presented at the
evidentiary hearing and the trial court’s factual findings on the suppression
motion.” Finally, the State argues that
consideration of the issue is consistent with State v. Holt, 128
¶31 We agree with the State that it is appropriate for us to
consider the alternate basis to affirm the trial court that the State raised
for the first time at oral argument.
Kucik was given an opportunity to address the merits of the State’s
argument in supplemental briefing. Given
that fact, as well as the principle articulated in Holt that “[a]n appellate
court may sustain a lower court’s holding on a theory or on reasoning not
presented to the lower court,” see id.
at 125, we elect to decide this issue and will not apply waiver, see A.O. Smith, 422
of the State’s argument that Kucik’s threats provided probable
cause justifying the warrantless seizure of the legal guns.
¶32 The State relies on the plain view doctrine to justify seizure of the legal guns. Pursuant to that doctrine:
Seizure and inspection of evidence without a warrant is justified when the officer is lawfully in a position to observe the evidence, the evidence is in plain view of the officer, the discovery is inadvertent,[] and “[t]he item seized in itself or in itself with facts known to the officer at the time of the seizure, provides probable cause to believe there is a connection between the evidence and criminal activity.”
v. McGill, 2000 WI 38, ¶40, 234
At the time of the seizure of the lawful firearms, the police had consent to be in the apartment and the legal firearms were visible in plain view through the glass doors of the gun cabinet. The relevant facts known to the police at the time of the search were: Kucik had committed an unprovoked physical attack with a slapjack weapon on Meyer that day; at an earlier time Kucik had threatened to put a bullet in Young’s head; Kucik had previously threatened Meyer and Young with physical violence; Kucik maintained a large collection of firearms and other weapons.
The police had
probable cause to believe that by verbally threatening to put a bullet through
Young’s head, Kucik had committed the crime of disorderly conduct. A verbal threat to kill or physically harm another
individual can constitute disorderly conduct within the meaning of [Wis. Stat.] § 947.01 because a violent
threat may tend to disrupt good order by causing the listener to be concerned
about the safety of those threatened. State
v. A.S., 2001 WI 48, ¶¶34-38, 243
¶33 We find the State’s reasoning persuasive. Kucik, however, argues that the plain view
doctrine is inapplicable for two reasons.
First, he argues that the final requirement under the plain view
doctrine—that there is probable cause to believe there is a connection between
the legal guns and criminal activity—was not satisfied. He contends that the witnesses who provided
officers with information were unreliable and provided hearsay evidence that
should not have been considered. For
instance, he notes that although Meyer told officer
¶34 “In determining whether probable cause exists, we may consider
the officer’s previous experience and also the inferences that the officer
draws from that experience and the surrounding circumstances.”
¶35 In this case, the trial court implicitly found Martinez to be a
credible witness as it accepted Martinez’s assessment that Meyer and Young had
provided information that led the officer to believe that Kucik might be a
danger to himself or others. This
information included Meyer’s statement that Kucik had “physically attacked Mr.
Meyer unprovoked with a slapjack weapon.”
It also included Young’s statement that Kucik had threatened, on a
previous occasion, “to put a bullet in her head.” Although
¶36 This information, which
¶37 Kucik’s second argument against application of the plain view
doctrine is “that the police, if they believed that [Kucik] had committed a crime,
could have arrested him, they did not.”
Kucik also complains that the police did not obtain a search
warrant. Kucik has not developed these arguments
and has not provided case law in support of his suggestion that application of
the plain view doctrine is somehow negated by his assertions. We decline to consider his arguments further
because they are not developed.
¶38 In sum, we reject Kucik’s challenges to the application of the plain view doctrine. The legal guns were properly seized pursuant to that doctrine and, therefore, there was no basis to grant Kucik’s motion to suppress evidence derived from that seizure.
¶39 We affirm the trial court’s decision to deny Kucik’s motion to suppress evidence, albeit on different grounds than those relied upon by the trial court. Specifically, we conclude that the seizure of the legal guns, which led to the discovery of the illegal shotguns, falls within the plain view doctrine. Kucik’s Fourth Amendment rights were not violated. We affirm.
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports.
¶40 FINE, J. (concurring). I join the Majority opinion, but write briefly to explain why I believe that it is fully appropriate that we decide the merits of this appeal.
the Majority opinion notes, police were called because Jason W. Kucik’s cousin,
Shane Meyer, said that Kucik had hit him “with a slapjack weapon.” Further, Meyer’s aunt told an officer at the
scene that Kucik had earlier threatened “to put a bullet in her head.” The officers handcuffed Kucik and took him
for a mental-commitment evaluation rather than arrest him for hitting his
cousin or for threatening his cousin’s aunt. As the Majority opinion explains, it thus
follows that because the officers were lawfully in the room with the
glass-covered gun cabinet, they could have then seized the lawful guns in the
cabinet as plain-view evidence of Kucik’s threat to kill Meyer’s aunt. See State
v. Johnston, 184
¶42 The Dissent would reject our analysis because the State did not make the probable-cause-to-arrest contention until its oral argument and the supplemental briefs we ordered to give Kucik a chance to analyze the State’s new argument. But, as the Majority opinion notes, the law is clear that an appellate court may affirm a circuit court for any reason, irrespective of whether the correct legal argument was made to the circuit court by the respondent on appeal, State v. Baudhuin, 141 Wis. 2d 642, 648, 416 N.W.2d 60, 62 (1987) (“If the holding is correct, it should be sustained, and this court may do so on a theory or on reasoning not presented to the trial court.”); see also State v. Truax, 151 Wis. 2d 354, 359, 444 N.W.2d 432, 435 (Ct. App. 1989); State v. Holt, 128 Wis. 2d 110, 124, 382 N.W.2d 679, 687 (Ct. App. 1985).
¶43 Further, and most significant here, unlike most cases between private parties, where only interests personal to the parties are involved and forfeiture of an argument or a concession may be consistent with the public interest, this case affects the public interest directly because the State represents the public, not a private party. Accordingly, the State’s concession or its forfeiture of an argument does not tie our hands to see that our decision serves the polestar of any ordered society: justice. See State v. Gomaz, 141 Wis. 2d 302, 307, 414 N.W.2d 626, 629 (1987) (court need not accept State’s retraction of legal argument); Bergmann v. McCaughtry, 211 Wis. 2d 1, 7, 564 N.W.2d 712, 714 (1997) (we are not bound by a party’s concessions of law); State v. Kruzycki, 192 Wis. 2d 509, 517–518, 531 N.W.2d 429, 432 (Ct. App. 1995) (“A question of law ‘cannot be bargained away by counsel nor shielded from ab initio consideration by successive court reviews.’”) (quoted source omitted); cf. State v. Conger, 2010 WI 56, ¶24, 325 Wis. 2d 664, ___, ___ N.W.2d ___, ___ (circuit court may reject plea bargain agreed to by State and a defendant if it determines that the plea bargain is not “in the public interest”).
¶44 As noted, I agree with the ground on which the Majority opinion decides this appeal. There are other grounds to affirm as well, and I discuss them briefly so the Record will be clear as to what is at stake. The lawful guns, visible behind the cabinet’s glass (and behind which were the unlawful guns), were also both: (1) evidence to support the mental-commitment evaluation (as the State argued in its brief), and (2) needed to be secured to preserve the status quo in order to prevent Kucik, if he was released, from using those guns to carry out his threat to shoot his cousin’s aunt. The first aspect is a common-sense analysis that reasonably flows from the power officers have to take persons into custody for a mental-commitment evaluation. The second aspect naturally flows from the police’s community-caretaker responsibilities. I briefly address these matters in turn.
there is no Wisconsin case that in haec
verba permits a law-enforcement officer to take lawful weapons that are in
plain view because they are relevant to a detention-assessment by the treatment
facility, it is not a great leap of logic and common sense to recognize that
the type of weapons (what they are, whether they are operable, and the like) is
pertinent evidence that the treatment facility would find helpful in
determining within the requisite twenty-four hours whether the person should be
detained. Simply put, there is no specific
on-all-fours case because the issue has apparently not come up before now. That, of course, is no reason to not decide
the issue. See Cook v. Cook, 208
¶47 There is another reason why I believe that what the officers did was not only reasonable but also perfectly lawful. As seen from my excerpts of the pertinent provisions of Wis. Stat. § 51.15, a person taken into custody as an emergency detainee must, if he or she is not to be detained, be released within twenty-four hours. Thus, the officers did not know how long Kucik would be separated from his guns, which, although lawful, could still help him make good on his threat to kill his cousin’s aunt, or, indeed, to hurt or kill someone else, including Kucik’s cousin. In fact, as we have seen from the Majority opinion, “Kucik ‘was let go right away.’”
¶48 “The United States Supreme Court and
courts of this state have recognized that a police officer serving as a
community caretaker to protect persons and property may be constitutionally
permitted to perform warrantless searches and seizures.” State v. Pinkard, 2010 WI 81, ¶14
the community-caretaker doctrine, a warrantless search and seizure in a home is
valid if “the police were exercising a bona fide community caretaker function;
and if so, whether the public interest outweighs the intrusion upon the privacy
of the individual such that the community caretaker function was reasonably
exercised within the context of a home.”
Pinkard, 2010 WI 81, ¶29, ___
¶50 KESSLER, J. (dissenting). I respectfully dissent. I disagree with the majority’s discretionary decision to accept the State’s belated justification of the officers’ warrantless seizure of admittedly legal weapons. The State now argues that the legal weapons could be seized because the officers had probable cause to believe Kucik had at some earlier time engaged in disorderly conduct, see Wis. Stat. § 947.01 (2007-08), by threatening to “put a bullet through [the] head” of a relative. It is the alleged existence of probable cause to believe disorderly conduct occurred upon which the majority’s approval of the seizure of the legal weapons depends.
¶51 This is the State’s third attempt to justify the warrantless
seizure of Kucik’s legal weapons,
which is the sole basis for discovery of the two illegal guns and Kucik’s
criminal conviction. I conclude that the
State forfeited its right to argue that the guns could be seized as evidence of
the crime of disorderly conduct when it failed to raise this argument before
the trial court and when it took the opposite position in its appellate
brief. Pursuant to A.O. Smith Corp. v. Allstate
Insurance Cos., 222
¶52 Furthermore, I conclude that the record as it is currently
developed does not support the conclusion that the officers had probable cause
to seize the legal guns as evidence of the crime of disorderly conduct. “[T]here are two distinct elements to
disorderly conduct—conduct must be of the type enumerated in the statute or
similar thereto and such conduct must
be engaged in under circumstances which tended to cause or provoke a
¶53 Our supreme court, in State v. A.S., 2001 WI 48, 243
“A true threat is a statement that a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views or other similarly protected speech. It is not necessary that the speaker have the ability to carry out the threat. In determining whether a statement is a true threat, the totality of the circumstances must be considered.”
[c]onsideration must be given to the full context of the statement, including all relevant factors that might affect how the statement could reasonably be interpreted. To this end, various factors should be considered, including: how the recipient and other listeners reacted to the alleged threat, whether the threat was conditional, whether it was communicated directly to its victim, whether the maker of the threat had made similar statements to the victim on other occasions, and whether the victim had reason to believe that the maker of the threat had a propensity to engage in violence.
¶54 Here, the disorderly conduct probable cause analysis is based solely on Kucik’s verbal threat to his aunt, unaccompanied by any reported action toward her. Although uncivil, and possibly upsetting, the threat was apparently perceived by its recipient as indicative only of Kucik’s need for medical and mental health assistance that had perhaps been caused by a change in Kucik’s seizure medication. Kucik’s aunt did not report the statement until the following day and she told the officer that she wanted Kucik evaluated, not prosecuted. This demonstrated attitude by the recipient of the threat does not tend to show that Kucik’s statement provoked, or was likely to provoke, a disturbance or an imminent breach of the peace.
¶55 Because the State never previously raised this justification, neither the State nor Kucik had the opportunity at the suppression hearing to develop an adequate factual record from which to determine, as a matter of law, whether Kucik’s statement constituted a “true threat.” For example, the record does not disclose precisely when the threat was made in relation to when the officer spoke with the witness, nor the circumstances surrounding the statement. Nor does the record disclose facts from which to determine whether or not the threat was merely “innocuous talk” by a person affected by a change in his medication. Here, relative to whether probable cause existed, the record contains only the police reports of the information they received from Kucik’s relatives. These reports led the officers not to investigate a possible crime, but instead, at the request of the relatives who reported Kucik’s conduct and statements, to take Kucik into protective custody pursuant to a Wis. Stat. § 51.15 emergency detention and transport him to the county mental health facility.
¶56 The surrounding circumstances currently in the record strongly
suggest that those who heard the threat did not, as reasonable listeners,
interpret Kucik’s statements “as serious
expressions of an intent to intimidate or inflict bodily harm.” See
 All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
 Notably, the State indicated at oral argument that it was not relying on the theory that the legal guns could be seized for safekeeping, which was the officer’s subjective reason for seizing the legal guns. Such a seizure would be potentially problematic under the Fourth Amendment, the State explained, because Kucik had already been detained and, in fact, may have already been en route to the Mental Health Complex at the time the legal guns were seized.
Also, in its brief the State
acknowledged that the seizure of the legal guns could not be justified as a
seizure pursuant to a protective sweep. See State v. Sanders, 2008 WI 85, ¶32,
contrast, the issue we declined to consider in A.O. Smith Corp. v. Allstate Insurance
is some question whether inadvertent discovery remains a requirement for
application of the plain view doctrine.
In State v. Guy, 172
 All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
Wisconsin Stat. § 947.01 provides in relevant part: “Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor.”
 In its appellate brief, the State argued that we should uphold the trial court’s order denying Kucik’s motion to suppress because the legal guns “were evidence relevant to the [Wis. Stat. ch.] 51 proceedings.”
 The lack of record development concerning the officers’ decision to seize the legal weapons without a warrant also weighs in favor of not allowing the State to rely on the argument it raised for the first time at oral argument. The State conceded that the legal firearms were seized after Kucik had been secured in a squad car and likely after he was being transported to the mental health facility. The officers had ample time to attempt to obtain a search warrant but chose not do so. There is no explanation for the failure to obtain a warrant. There was obviously no immediate danger to the officers once Kucik was secured and the officers determined no other persons were in his home. There was no likelihood Kucik could access the weapons as he had been physically removed from the scene. There were no other possible exigent circumstances suggested in the record. Another adult shared the dwelling with Kucik, thus minimizing any reasonable community caretaker fear that children or others might inadvertently discover the weapons while Kucik was undergoing evaluation. These facts lead me to question the legality of the seizure without a search warrant, which was an issue not addressed below because the State did not attempt to justify the seizure based on criminal law grounds. The lack of development of this issue weighs in favor of barring the State from raising its new argument.
 As the majority notes, another relative reported that Kucik hit him with a “slapjack.” How the seizure of lawful firearms could be evidence of this battery is unexplained.