*1 error, in error. Plaintiff in Defendant Peasley, No. 76-130-CR. Submitted on March 8, 1978. briefs May 2, 1978. Decided (Also 506.) reported in N. 2d 265 W. *2 plaintiff For the in error the cause was submitted on Eisenberg, briefs Howard B. public defender, state Lukoff, and Mark public assistant state defender. *3 For the defendant in error the cause was submitted on the Follette, attorney brief Bronson C. La general, Becker, attorney general. and David J. assistant HANLEY, J. presented Two are issues ap- on this peal: by court,
1. application Should this of the concur- doctrine, rent sentence decline review the defendant’s appeal of one of two convictions for which identical and concurrent imposed sentences were ?
2. Is evidence sufficient to the trial court’s finding that guilty the defendant possessing cocaine with the intent to ? deliver Concurrent Sentence Doctrine requests
The state adopt the court to the concurrent doctrine in sentence case to decline to review defendant’s substantive issue. doctrine, genesis which finds its in Locke v. United
States, 339, 7 Cranch 3 L. Ed. 364 ap- has been plied the federal courts in situations where a defend- validly ant has been convicted on one count of a
227 multi-count indictment for which concurrent sentences imposed are unnecessary to declare that it is to consider Hirabayaski States, United others. 81, 320 U.S. Ct. S. 87 L. Ed. in United Thus, Hamilton, States v. (7th 420 F.2d 1970), Cir. when appealed judgment of conviction on two counts for identical, which he received concurrent sen tences, the Seventh Appeals Circuit Court of exercised alleged the doctrine to decline to review the errors to have respect been committed with to the second count after the court affirmed the conviction on the first count. In States, Jordan v. United 1969), F.2d (9th Cir. denied, cert. defendants, U.S. one of the who eight had separate counts, been convicted on appealed the convictions on all counts. The court reversed the convic tion of the affirming defendant as to one count. But after counts, convictions six other the court invoked the concurrent sentence doctrine to decline to address appeal eighth. as it related to the Jordan v. United States, supra Thus, at cases, 346. in these the federal deny reviewing courts invoked the doctrine to errors relating to one companion count when at least one count has been affirmed. appeal,
On this equate state would have this court appeal the defendant’s failure to the conviction on the delivery appellate count LSD affirmation invoking purposes that count for the the concurrent doctrine. sentence claims state two make reasons application *4 appropriate. doctrine to this case denying First, pass on the of the defend- merits appeal ant’s will have no detrimental collateral conse- quences: by the defendant virtue of the conviction on unappealed subject the count will still habitual criminal treatment under in the convictions; event of future the defendant’s credi- bility possible charge in a trial aon future will not be significantly by charge altered a on reversal the here
appealed; parole and the for defendant’s chances would materially by appeal. not be affected on reversal Second, denying pass on the merits of defend- appeal justified grounds judicial ant’s is on the con- venience.
However, only in which case this court adopt doctrine, has been asked to the concurrent sentence it has declined to do so. Blaszke v. case, pled
Contrary contends, to what the state situation State, supra, procedurally Blaszke v. the same as in the both, companion instant case. In had convictions not been by any previous ap- affirmed this court in the same or peal; just the defendant appeal not to has chosen them. Indeed, considering the fact that the above-cited federal only applied companion cases have the doctrine after the affirmed, conviction been has is not clear that by applied doctrine would be the federal in a courts situa- presented Therefore, tion such as the one here. we do adopt apply the concurrent doctrine nor sentences appeal. doctrine to this
Sufficiency the Evidence The contention made the evi- trial dence adduced at was insufficient *5 to de- possession of cocaine with conviction acting fact, reasonably, argues trier of He no liver. of a one-third could find that the defendant gram it. intent to deliver cocaine with felony for one to (lm), Stats., makes 161.41
Sec. it. intent to deliver This section possess with the cocaine necessary to sustain expressly provides the intent may circum- demonstrated thereunder conviction evidence: stantial may demonstrated “Intent under this subsection enumeration, evidence by, limitation without because monetary of the substances quantity and value manufacturing implements
possessed, the possession paraphernalia, and the activities statements or person substance of the controlled (lm), alleged violation.” Sec. to and after Stats. statutory language quoted that the
This has held court not create a constitutional, it does and that above is rather lists evidence presumption of but to infer intent. in order fact consider the finder of Crosetto, 73 Wis.2d v. Hon. J. ex rel. Bena John trial, At the fol- 271-72, 261, 243 N.W.2d February lowing In the months of facts were established. separate occasions on four April, the defendant County Deputy to Grant substances controlled sold February 8, the defendant On John J. Wheeler. Sheriff later determined capsules of what sold Wheeler February 12, defendant sold On to be LSD. to Wheeler. Wheeler substance capsules of same during March purchases from no made federal narcotics defendant believed because April sales working the area. On agents were ampheta- the defendant sold Wheeler resumed mine tablets. *6 place April As purchase on 1975. final took in the sales, previous transaction occurred this
with apartment. The defendant kitchen of the defendant’s again amphetamine of tablets. a number sold Wheeler consummated, de- left the sale was Wheeler When officers and apartment, with other fendant’s but returned The defendant had on the defendant was arrested. $600 including “buy” money. A person, search war- obtained, in the then and execution rant was warrant, quantities police found of mari- officers various along cigarette LSD, scales, juana, pipes, and with cocaine bags. by stipulation, plastic parties, and butts small agreed premises that the amount of cocaine found gram. was one-third of a argues
The defendant
this evidence was insuf-
finding
ficient to sustain the
of intent
to deliver
court’s
prove
cocaine because the state failed to
that the defend-
past,
ant had ever delivered
cocaine
because
failed
state
the “street value” of
amount
apartment.
of cocaine found in the defendant’s
The de-
mainly argues
possession
only
fendant
of
one-
gram
third
a
of
support
of
cocaine
not sufficient
a
finding of intent
to deliver that
In
substance.
what
appears to be an effort
to convince
court that
this
some
larger quantity
of
cocaine must be
finding
intent,
of
the defendant cites
deci-
numerous
jurisdictions
sions of
this state
which involved
large quantities of controlled substances. The defendant
possession
two federal
also cites
wherein the
cases
of
amounts of cocaine was
small
found to be insufficient
possession
for
sustain convictions
with intent
to de-
Olveva,
(5th
liver. United
v.
States
scribe charge. Rather, the the must exist substantiate which the the amount of con- expressly provides statute possession of an individual the found in trolled substance along factors, in determin- considered, may with respect to the sub- ing the individual with the intent of merely from which lists evidence stance. statute necessary may intent. infer the trier of fact the Here, replete from record is reasonably requisite Al- inferred. though quantity in total of cocaine found the defend- apartment and un- ant’s was small its “street-value” known, significant it is that the was found divided cocaine packages. separate packets into four Two of the were refrigerator found in the and the other two were found refrigerator, cupboards. In elsewhere in the kitchen eight bags form controlled substances small bags white were found. had 100 tablets also Six remaining bags and had 85 tablets tablets refrigerator respectively. 26 tablets of Also were benzphetamine, substance, a controlled as mari- as well juana and hashish forms containers. The various drug possessed paraphernalia. defendant also various foregoing, From the court properly trial could conclude, did, itas that the defendant was in the business selling drugs *8 cocaine with the intent to it in deliver violation of sec. (lm). 161.41 The defendant’s contention that the small quantity of cocaine found raises inference that the delivery substance for was intended but rather personal reasonable, use but re- state is not away quired explain competing at to trial all inferences might (Taylor State, which arise from evidence v. (1976)), Wis.2d is the duty adopt to support of this court inferences those findings of the trier of fact. Bautista v. 218, 223, 191 light N.W.2d 725 In case, facts this we do not believe that the defend ant’s inference is reasonable.
Moreover,
admissibility
relating
of evidence
defendant’s
sales activities as evidence of
to deliver the
permitted
cocaine was
under
(lm)
probative
and its
value is
supported by
Therefore,
the record.
case
State
Spraggin,
By Judgment and order affirmed. Court. — (dissenting part). ABRAHAMSON, J. in The follow- ing Peasley was introduced to guilty possessing of the crime of cocaine with intent deliver: Peasley possessed gram
1. one-third of a of cocaine. quantities drugs 2. Various other than cocaine were Peasley’s found at residence. Scales, cigarette pipes,
3. bag- plastic butts small gies Peasley’s were found at residence.
4. On four occasions within a few months of the charge Peasley amphetamines issue sold LSD to a deputy sheriff. majority holds that the evidence is sufficient disagree.
sustain the conviction. I I would vacate judgment entry judgment and direct of a of conviction possession the offense of cocaine. concedes, agree, its brief and I that evi- gram dence of of one-third of a cocaine, standing alone, would be insufficient an in-
234 deliver. with intent to
ference cocaine that the other evidence described above asserts acting court, permit fact- the trial as is sufficient to finder, Peasley possessed cocaine to that conclude intent to with deliver. summary, then, “In the small- the state submits not, quantity in of the involved here did
ness
itself,
sessed such cocaine with
such
cocaine
pos-
preclude
the conclusion
Concededly,
intent
deliver.
quantity
itself,
not, in
also did
establish
involved here was
deliver.
amount of cocaine
personal
possession for
But the
inconsistent with
use.
here,
particu-
presented
in
other
facts
circumstances
lar,
of two
controlled
defendant’s
sales
substances,
discovery
and the
of the cocaine in the same
refrigerator
large quantity
where
of one of those sub-
upon
stored, provided
stances was
foundation
solid
conclude, beyond
which the trial court could
able
a reason-
doubt,
but rather
personal
cocaine here was not for
use,
part
in
was
of the defendant’s stock
drug
trade
to deliver.”
business,
sufficiency
question
is
When
the evidence
only
presented
appeal
case,
question
in a criminal
adduced,
for the court
whether the
believed
rationally
by
jury,
considered
was sufficient
guilt beyond
a reasonable doubt.
defendant’s
416,
State,
412,
Gauthier v.
101
Wis.2d
N.W.2d
(1965). The
test
is not whether
this court
beyond a
the members thereof are convinced
reasonable
doubt,
this court can conclude that the trier
but whether
acting
could,
reasonably,
to the
be convinced
facts
required degree
of certitude
the evidence
had a
right
credibility
accept
believe and
as true. The
weight
and the
of the evidence
for the trier
witnesses
114-115,
Lock v.
of fact.
paragraphs
3 and 4 is
The evidence discussed
circumstantial,
entirely
question
and therefore the
as
*10
enough
sufficiency
strong
whether it is
its
is
to exclude
Taylor
every
hypothesis
of
v.
reasonable
innocence.
255, 265, 266,
(1970).
The court
forth the test as
has set
follows:
necessary
11the facts
to warrant
conviction
a
on
“[A]
circumstantial
evidence
be
with
must
consistent
each
sought
proved
other and
the main
fact
to
and the
be
together
taken
circumstances
nature
and
must be of
conclusive
leading
satisfactory
on the
whole to
conclusion
producing
certainty
in effect a reasonable and moral
person
that the
and no
accused
committed the of-
charged.
must,
fense
The circumstantial evidence
how-
ever,
theory
sufficiently strong
every
to exclude
reasonable
innocence,
is,
of
that
must be incon-
evidence
any
hypothesis
sistent with
reasonable
of innocence. This
question
probability,
possibility.”
ais
State v.
Shaw,
25, 29,
(1973), quoted
58 Wis.2d
“Moreover, of evidence prior the defendant’s sales activities as evidence of his permitted to deliver the cocaine was under sec. Stats.-, (lm) (2), probative and 904.04 and its value supported by Therefore, the case of is the record. Spraggin, 89, 252 N.W.2d 94 distinguishable.” relies, analysis is circular. A court’s closer examination (lm) of sec. 161.41 lends doubt majority’s Peasley’s unexamined conclusion that (and admissible) are relevant thus sales activities prove his intent cocaine. to deliver general rule that all relevant ad- evidence is which is not relevant is not missible 904.02, admissible. Rules Evidence. Evidence is Sec. worth, “any probative i.e., it it if has if has relevant tendency make existence fact is of prob- consequence to the determination of the action more probable or than would be without evi- able less 904.01, dence.” Rules Evidence. Sec. Whether sought prove the matter to be item of evidence tends depends upon principles experience proved evolved *11 James, science, logically applied the at hand. to situation Relevancy, Probability Law, the L. and 29 Calif. Rev. Writings 689, 696, 15 in on Evidence n. Selected Trial, 610, 1957), in 615, (Foyer cited n. 15 ed. 59 R69. Stats., part 161, (lm), Chapter of Sec. 161.41 Chapter Act.” 161 is Controlled “Uniform Substances substantially the Uniform Sub similar to Controlled appearing Annotated stances Act in 9 Uniform Laws Edition). However, part (lm) 161.41 (Master of sec. majority opinion) which describes how (quoted may is not derived from Uni intent demonstrated language appears Act. to have been drafted This form by Department of the Wisconsin Justice because “most attorneys to to create wanted be defined district Dangerous uniformity certainty them.” See Sub January Meeting, Council, Minutes stance Control “merely February 11, (lm) 1971. Sec. 161.41 which the finder fact consider in lists evidence ex rel. v. Hon. infer intent.” Bena John J. order to 271-72, (1976). Crosetto, 73 Wis.2d N.W.2d (lm) not construed to authorize the can Sec. fact to consider evidence which relevant finder meaning of the rules evidence. within upon majority Sec. pro- relied vides as follows: “(2) CRIMES, OTHER WRONGS, OR Evi- ACTS. crimes, wrongs, dence of other is not admissible acts prove
to he person character of in order to show conformity acted in therewith. This subsection does not exclude the purposes, evidence when offered for other proof such as of. . . intent. . . .” majority Because the 904.04(2) fails to note that sec. conjunction must 904.02, be read in with sec. it fails to meet the crucial issue in this case: the evidence of Was Peasley’s prior conduct relevant to disputed deliver cocaine? If the evidence is not relevant prove intent, upon it cannot be relied 904.02, conviction. Sec. Rules of Evidence. prior
This court
said that
has
“evidence of
acts is
particularly probative
admissible when such evidence is
showing
specific
charged,
in
elements
crime
including
not,
type
intent.
. . . This
of evidence would
however,
merely
be admissible
...
that as a
show
apt
result
such
is more
commit
activities he
particular
type
Hough
of crime.”
807, 814,
admissibility
depends “upon
probative
the other conduct evidence
its
depends
part upon
time,
value which
its
nearness
*12
alleged
place and circumstances to the
crime or element
sought
Whitty
proved.”
v.
be
149
cert. den.
If
557
390
959.
N.W.2d
U.S.
other conduct
“dissimilar
in character and circum
is
stances,”
relevancy
test of
falls “outside the
as not
degree
tending
probability
in a reasonable
to establish
improbability
Watkins,
or
of a fact
State v.
issue.”
718, 727,
(1968). The other
39
159
675
Wis.2d
similar,
improbability
conduct
since it is the
must
being
repeated
a like
mere chance that
of
result
weight.
probative
Spraggin,
carries
See State
Wigmore
on
89, 97,
(1977);
It of this leaves opinion so much room for difference of and accounts admissibility in the on the of variances decisions issue prove of evidence of element of the conduct to charged. crime delivery amphetamines
Is the of and to a LSD similar Peasley’s paraphernalia of sale cocaine? Is the found in of Are residence suitable for use sale cocaine? con- amphetamines of of consumers sumers LSD also techniques cocaine? Are similar sales utilized for all of majority opinion these substances? Neither the nor analysis opinion trial An court’s discusses these issues. similarity of of the evidence offered to the matter at necessary give probative hand is value. evidence Wigmore Evidence, (3d 1968). sec. 302 ed. Assuming arguendo probative value 2, 3, intent, paragraphs described and to issue of showing possession I cannot conclude that evidence gram cocaine, prior one-third of a and sales LSD drugs drug amphetamines possession par- beyond aphernalia is sufficient a reasonable Peasley possessed with intent doubt the cocaine Peasley guilty beyond deliver. a reasonable doubt of cocaine, included offense of lesser judgment conviction of offense should entered.