Updated 11/24/09

Possession of Controlled Substance – Sufficiency of Evidence, Possession Element – Presence of Drugs in Body 
State v. Patrick R. Patterson, 2009 WI App 161,
For Patterson: David R. Karpe
¶25      There is no dispute that testing revealed that Tanya S. had Oxycodone in her system at the relevant time. However, as Patterson argues, the presence of drugs in someone’s system, standing alone, is not sufficient evidence to support a conviction for possession of a controlled substance. See State v. Griffin, 220 Wis. 2d 371, 381, 584 N.W.2d 127 (Ct. App. 1998). “Possession” in this context requires evidence that the individual had a substance in his or her control. See id. at 381 (citing Wis JI—Criminal 920). Still, as we explained in Griffin, “‘when combined with other corroborating evidence of sufficient probative value, evidence of [ingestion] can be sufficient to prove possession.’” Griffin, 220 Wis. 2d at 381 (citation omitted). That is the situation here.
Various witnesses saw Patterson give Oxycodone to Tanya S., ¶26.
“Statutory Double Jeopardy,” § 961.45 – “Same Conduct” Test
State v. Julio C. Bautista, 2009 WI App 100, PFR filed 7/16/09
For Bautista: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: Section 961.45 bars successive drug prosecutions by dual sovereignties premised on the “same act” (or “conduct”), State v. Colleen E. Hansen, 2001 WI 53. Although broader than the Blockburger “elements-only” test, this “same-conduct” test does not bar state prosecution for conspiracy to deliver marijuana following federal conviction for delivering cocaine.
¶1        … In this case, Julio C. Bautista, relying on two cases from Pennsylvania, argues that conduct is defined as a “common scheme or plan” such that his conspiracy to sell drugs encompasses all acts under that planned endeavor. We are unwilling to accept that definition. Borrowing from a phrase in Harrell v. State, 88 Wis. 2d 546, 558, 277 N.W.2d 462 (Ct. App. 1979), we hold that when a defendant comes to a “fork in the road” and commits to a separate volitional act, it is different conduct and its prosecution is not subject to § 961.45. We affirm.

¶14      However, in Bautista’s case, he sold cocaine on one date, August 13, 2005. [3] This act resulted in a federal charge to which he pled guilty. The state charge had nothing to do with delivering cocaine on a certain date. Instead, it had everything to do with a different kind of drug—marijuana—and it alleged a conspiracy with others to sell this particular kind of drug between April 11, 1997, and September 6, 2005, a span of over eight years. Clearly this was different conduct involving different drugs, during a different time frame and with an underlying factual basis that consisted not of the act of delivery itself, but of the conspiracy to sell. The act of conspiring to sell marijuana over a long period of time is different in time, space and manner than one instance of delivering cocaine. Not only do the charges involve different types of acts, the acts are also different in nature—the defendant had sufficient time between the acts to again commit himself. The conduct involved different invasions of interests and different intentions making the defendant subject to multiple punishments. The state charge is therefore not the same conduct as that conduct resulting in the federal convictions by any stretch.

¶15      We must reject Bautista’s attempt to paint his case with a broad brush to say that since the marijuana and cocaine are both controlled substances, it does not matter that two different drugs were involved. And we must also reject the idea that because the conspiracy charge overlapped one of the cocaine delivery charges, this was all part of the same trafficking conspiracy. Rather, we look to the underlying actions, the “thing done” or the “deed” [4] that gave rise to the conspiracy conviction on the one hand and the “thing or deed” done that gave rise to the discrete act of selling which formed the basis of the other conviction. If the two deeds or things involved different conduct, the proverbial “fork in the road,” then they can be prosecuted by dual sovereigns without running afoul of Wis. Stat. § 961.45. We therefore affirm the conviction for conspiring to sell marijuana.

The court doesn’t say who has the burden of (dis)proving a “different volitional act,” with the standard of proof left unsaid as well. It’s a defense to a charge, so you probably shouldn’t facilely assume the State has the burden of proof. The court is also silent on just what factors might inform this determination. The “fork in the road” metaphor comes from Harrell, but that is a sexual assault case and its seven-factor test isn’t readily applicable to drug prosecutions, 88 Wis. 2d at 572. Is Bautista’s case representative, so that whether the conduct is (or is not) the “same” will always be obvious from the nature of the charges? Doubtful.
Conspiracy to Manufacture Controlled Substance -- § 961.41(1x), Elements -- Generally
State v. Henry E. Routon, 2007 WI App 178, PFR filed 7/23/07
For Routon: Jefren E. Olsen, SPD, Madison Appellate

¶18   Wisconsin Stat. § 939.31 sets forth the elements of the crime of conspiracy applicable under Wis. Stat. § 961.41(1x). [8] Section 939.31 provides:

…. whoever, with intent that a crime be committed, agrees or combines with another for the purpose of committing that crime may, if one or more of the parties to the conspiracy does an act to effect its object, be fined or imprisoned or both ….

Thus, there are three elements: (1) an intent by the defendant that the crime be committed; (2) an agreement between the defendant and at least one other person to commit the crime; and (3) an act performed by one of the conspirators in furtherance of the conspiracy. Wis JI—Criminal 570 (2001); State v. West, 214 Wis. 2d 468, 476, 571 N.W.2d 196 (Ct. App. 1997).

Conspiracy to Manufacture Controlled Substance -- Undercover Agent as Party to Agreement, Generally
State v. Henry E. Routon, 2007 WI App 178, PFR filed 7/23/07
For Routon: Jefren E. Olsen, SPD, Madison Appellate

¶19   The crime that is the subject of the conspiracy need not be committed in order for a violation of Wis. Stat. § 939.31 to occur; rather, the focus is on the intent of the individual defendant. State v. Sample, 215 Wis. 2d 487, 501-02, 505, 573 N.W.2d 187 (1998). For this reason, a person can be convicted under § 939.31 even if the other party to the conspiracy is an undercover agent who did not intend to commit the crime. See id. Thus, the fact that Agent Smith did not intend to manufacture psilocybin/psilocin does not preclude a determination that Routon is guilty of conspiracy.

¶22   Wisconsin case law has addressed a sufficiency-of-the-evidence challenge where the conspiracy charge is to distribute a controlled substance. State v. Smith, 189 Wis. 2d 496, 501-04; 525 N.W.2d 264 (1995), establishes that the sale of a small amount consistent with personal use is not sufficient to transform a possession charge against the buyer into a conspiracy to distribute. Rather, the State must prove an agreement between the buyer and seller for further delivery to a third person, and “mere knowledge by the supplier of the purchaser’s intent to further distribute … is not enough.” Cavallari, 214 Wis. 2d at 52 (emphasis original).

Conspiracy to Manufacture Controlled Substance -- Sufficiency of Evidence – Knowledge of Intended Use
State v. Henry E. Routon, 2007 WI App 178, PFR filed 7/23/07
For Routon: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: Evidence of conspiracy to manufacture controlled substance is sufficient, notwithstanding that the psilocybe spores that defendant sold were themselves legal, given “abundant evidence from which it is reasonable to infer that Routon marketed the psilocybe spores to persons who wanted to use them for the illegal purpose of growing mushrooms and that this was the predominant part of the business,” ¶30.
Conspiracy to Manufacture Controlled Substance -- Sufficiency of Evidence – Agreement
State v. Henry E. Routon, 2007 WI App 178, PFR filed 7/23/07
For Routon: Jefren E. Olsen, SPD, Madison Appellate

¶36   Routon, as noted above, argues that the single sale to Agent Smith is, as a matter of law, insufficient evidence of an agreement. However, in the cases on which he relies, there was no evidence, as there is here, of an ongoing business that had the predominant purpose of selling a product for an illegal use. …

¶37   We do not agree with Routon that the evidence here shows “[a] single, casual transaction.” Although there was only one sale to Agent Smith, the reasonable inference the court drew from the evidence is that Routon marketed and sold psilocybe spores and grow kits to a number of other purchasers as part of his ongoing business. This is important because evidence of an ongoing business may, as here, provide evidence of the seller’s knowledge of the illegal use of the product sold and an intent to further, promote, and cooperate in that illegal use.

Sufficiency of Evidence, Possession, PTAC
State v. Charles E. Dukes, 2007 WI App 175
For Dukes: Robert N. Meyeroff

¶22      Dukes contends that this evidence is insufficient because there was “no physical evidence linking [him] to the drug house and the drugs in the drug house,” because neither his fingerprints nor DNA were on any of the items recovered. He claims he did not live in the apartment, insisting that the evidence shows only that he was found sleeping on the floor where an overnight guest might sleep, and that while police found mail addressed to both Deonte and Beanland, none was addressed to him. He also asserts that even though he made phone calls from jail, the tapes “do not amount to evidence showing [he] possessed the cocaine found in the drug house beyond a reasonable doubt” because nothing in the tapes shows that he had knowledge or possession of cocaine. We disagree.

¶23      We are satisfied that there was sufficient evidence for the jury to find Dukes guilty of possession of cocaine with intent to deliver, as party to the crime. This case does not turn on whether Dukes’s fingerprints or DNA were not found on any of the recovered items or on whether mail at the residence was addressed to Dukes. Dukes appears to overlook the fact that even if the State is unable to show that he personally possessed the cocaine with the intent to personally deliver it, to be found guilty as party to the crime the jury need only conclude that he intended to aid and abet in the commission of the crime. See Wis. Stat. § 939.05.

¶24      The recorded conversations explicitly mentioned drugs and encouraged others to not say anything to anyone, and to act like they do not know anything, clearly indicating that Dukes was well aware of the illegal activities that were going on at 450 North 33rd Street. He also talked about whether police had videotaped any “transaction[s],” speculated about whether a camera had been placed in a tree, and inquired about what police removed from the basement, exhibiting a clear familiarity with the building and the contents of the basement. In addition, the fact that Dukes had someone watching the house and feeding him information about who entered the premises shows that he not only was familiar with the building, but in fact had control over what took place there and had others observing it on his behalf. Contrary to Cotton’s testimony, the evidence also shows that Dukes appeared to indeed live at 450 North 33rd Street: his belongings, that were later transported elsewhere, were all in the apartment, and despite allegedly living with his sister, Cotton, whom Dukes had dated for over a month, had never seen Dukes at any another residence. The evidence shows that Dukes was well aware of the criminal behavior that went on, and was not, as he claims, an overnight guest simply sleeping on the floor. Based on the evidence presented, the jury could reasonably conclude that Dukes aided and abetted in the commission of the crime of possession of cocaine with intent to deliver.

Keeping Drug Vehicle, § 961.42(1) – Elements, Generally
State v. Wayne Charles Slagle, 2007 WI App 117
For Slagle: Richard D. Martin, SPD, Milwaukee Appellate
¶2    … Because the State charged Slagle with keeping or maintaining a “vehicle” used for “keeping” cocaine, the State needed to prove the following three elements:
1.         Slagle kept or maintained a vehicle.

2.         Slagle’s vehicle was used for keeping cocaine. “Keeping” requires that the cocaine be kept for the purpose of warehousing or storage for ultimate manufacture or delivery. It requires more than simple possession.

3.         Slagle knew the vehicle was used for keeping cocaine.

See Wis JI—Criminal 6037B. The first and second elements both employ variations of the word “keep.” Thus, it might be said that Slagle was charged with “keeping a vehicle used for keeping a controlled substance.” …
Keeping Drug Vehicle, § 961.42(1) – Element of “Keeping” – More than Mere Transport Required
State v. Wayne Charles Slagle, 2007 WI App 117
For Slagle: Richard D. Martin, SPD, Milwaukee Appellate
¶7   The interpretation of the statutory term “keeping” as “warehousing or storage for ultimate manufacture or delivery” comes from State v. Brooks, 124 Wis. 2d 349, 354-55, 369 N.W.2d 183 (Ct. App. 1985). Neither party challenges this interpretation of the statute. [5] Furthermore, Slagle does not dispute that the evidence shows the cocaine in his truck was “for ultimate manufacture or delivery.” The only dispute here is whether the trial evidence shows the cocaine was being “warehoused” or “stored” in Slagle’s truck. Boiled down, the question is whether evidence showing that a person is using a vehicle to transport cocaine on a single occasion for an unknown distance satisfies the requirement that the vehicle is being used for “warehousing or storage.”

¶10      We agree with Slagle that the common meaning of these terms does not encompass merely possessing an item while transporting it. We conclude that Slagle was not warehousing or storing his cocaine when he carried it in his truck while moving from one location to another. Accordingly, we further conclude that the evidence is insufficient to support a jury finding that Slagle used his truck for the purpose of “keeping” cocaine.  

See also State v. Thompson, MI SCt No. 130825, 5/1/07:
In states with statutes substantially similar to MCL 333.7405(1)(d) there is remarkable uniformity in giving meaning to “keep or maintain.”10 One of the most encyclopedic discussions of the cases is found in Dawson v State, 894 P2d 672, 674 (Alas App, 1995), where the Alaska Court of Appeals, after canvassing the other states, concluded that in virtually all other states the requirement to “keep or maintain” requires “‘some degree of continuity’” id. at 676 (citation omitted), and, fleshing that out, concluded that “courts have uniformly adopted the position that the prosecution is required to prove, and the jury to find, ‘something more than a single, isolated instance of the proscribed activity.’” Id., quoting Barnes v State, 255 Ga 396, 402; 339 SE2d 229 (1986). ...

Couple of caveats re: the result in Slagle. There was no claim Slagle was in the process of drug delivery, which is an elemental alternative, ¶6 n. 4, otherwise the result almost certainly would have been different. This probably suggests that under the statute, “ultimate” delivery is treated differently from immediate delivery. But that shouldn’t obscure a key point of the holding, which is ratification of the JI that “keeping” means more than mere possession, see ¶¶2 and 7. The court also holds open “significant questions” related to just when “keeping” liability is triggered, ¶11. Finally, the relief ordered is as requested by Slagle: dismissal of the “keeping” charge, leaving intact the concurrent sentence on the related conviction for possession with intent, ¶12. This remedy makes sense from Slagle’s self-interested perspective, in that he surely has already been released from initial confinement on the possession sentence. But it doesn’t mean that this is the only possible remedy, and it ought to be kept in mind that resentencing may be on the table when partial relief is obtained—a complex area, but take a look at State v. William J. Church (II), 2003 WI 74, ¶25 (resentencing not always required), compare with U.S. v. Rivera, 327 F3d 612 (7th Cir.2003) (“no legitimate expectation of finality in any discrete portion of the sentencing package after a partially successful appeal”).

Sufficiency of Evidence, Delivery (and Corroboration of Confession Rule)
State v. Edward Bannister, 2006 WI App 136, (AG’s PFR filed 6/22/06)
For Bannister: Kenneth P. Casey, UW Law School, Remington Center
Issue/Holding: Bannister confessed to giving morphine to someone who died from an overdose of the substance, but the absence of any corroboration of Bannister's delivery was fatal to his conviction:
¶11   The detective, who knew at the time of the interrogation that Wolk had died of a morphine overdose, testified that: “He told me that he gave morphine to Steve on three to four occasions and to his brother Michael on three to four occasions. I believe he said approximately every third day or in that range.” [8]  In other words, Bannister confessed to giving Michael Wolk morphine pills three to four times over the span of thirty-four days. If, as the detective related, Bannister gave Michael Wolk the morphine pills three to four times approximately every third day, depending on when he started and stopped, the deliveries to Michael could have been easily concluded by mid-December. Thus, under this scenario, it would be extremely unlikely that any morphine found in Wolk’s body on January 17, 2003, was obtained from Bannister unless Wolk saved some, and thus, does not corroborate the confession. … Michael Wolk was a drug addict who regularly used illicit drugs. Consequently, the finding of morphine in his body was not a remarkable or important discovery. Just as a diabetic would have traces of insulin in the bloodstream, evidence of morphine would be expected in the bodies of morphine addicts. [9]  A significant fact is a meaningful and particularized fact that produces confidence in the truthfulness of the confession. Based on the evidence produced at trial, the finding of morphine in Wolk’s body was not a significant fact corroborating Bannister’s confession. Here, no other facts or circumstances supporting Bannister’s confession were ever produced. No morphine pills or evidence of morphine pills were found next to Wolk’s body, and the expert witnesses were unable to pinpoint the source of the morphine. No independent eyewitness testified to any drug exchanges between Bannister and the Wolks. Further, Bannister’s confession did not yield any unusual information or circumstances that would not be widely known. Thus, under the circumstances present here, without additional evidence, the finding of morphine in Michael Wolk’s morphine-addicted body is not sufficient to corroborate Bannister’s confession claiming to have given morphine pills on prior uncertain dates to the deceased.
Double Jeopardy, & Drug Tax Stamp, §§ 139.87-139.96
State v. Glover B. Jones, 2002 WI App 196, PFR filed 8/22/02
For Jones: Mark D. Richards
Issue: Whether the drug tax stamp law, §§ 139.87-139.96, violates double jeopardy.
Holding: Possession with intent to deliver is not a lesser included offense of the drug tax stamp law, and a defendant may therefore be convicted of both. ¶39-41. (The statute -- amended to address a self-incrimination problem identified in State v. Hall, 207 Wis. 2d 54, 557 N.W.2d 778 (1997) -- now prohibits use in a criminal proceeding against a dealer of tax stamps affixed to illegal drugs, and thereby removed that particular infirmity. ¶33-36.)
UPDATE: The 7th Circuit has since held that the old tax stamp law is sufficiently punitive, at least in regard to cocaine, to trigger double jeopardy analysis; and, under facts of the case double jeopardy was violated -- defendant's assets ordered frozen and seized to pay tax assessment on cocaine; ensuing possession with intent prosecution and conviction amounted to multiple punishment forbidden by double jeopardy clause. Stephen Dye v. Frank, 03-1368, 1/27/04. This particular issue -- whether tax assessment may be regarded as punitive was not resolved by either Hall or Jones. Nor does it appear that the post-Hall legislative amendment addressed this particular problem.
Sufficiency of Evidence, Proof of Substance -- Presumptive and Confirmatory Testing
State v. Sheldon C. Stank, 2005 WI App 236
For Stank: Dennis P. Coffey
Issue/Holding: Proof of the controlled substance is sufficient where a “presumptive” test is followed by a “confirmatory” one (State v. Dye, 215 Wis. 2d 281, 572 N.W.2d 524 (Ct. App. 1997), followed), with the PDR being used to establish the presumption:
¶42      Here, the forensic scientist conducted both a presumptive identification and a confirmatory test on a random sample of the suspected Oxycontin. Identification of a pill using the Physician’s Desk Reference qualifies as a presumptive test.  Wisconsin Stat. § 907.02 and State v. Hollingsworth, 160 Wis. 2d 883, 895-96, 467 N.W.2d 555 (Ct. App. 1991), recognize that any specialized knowledge beyond the ken of the average person, including knowledge gained from experience alone, can form the predicate of an expert opinion. Thus, the knowledge need not be “scientific,” see id. (no special technical or academic training necessary), and “scientific certainty” is not necessary. The fact that the witness here was a forensic scientist therefore did not preclude her from forming an expert opinion about the accuracy of the desk reference based on experience. This witness testified that in her eleven years of experience, she had never found her pharmaceutical identification of a tablet inconsistent with the results of scientific tests. Detective Davila gave similar testimony based on her experience on the vice control squad, stating that she had never seen a case in which the pill she identified in the desk reference turned out to be a counterfeit of that drug.

¶43      Moreover, we note that other courts have recognized the Physician’s Desk Reference as a source commonly relied upon by members of the medical profession and pharmaceutical industry. …

¶44      In addition to the presumptive pharmaceutical evaluation by Detective Davila and the forensic scientist, the jury in this case, just as the fact finder in Dye, had a confirmatory follow-up test and other circumstantial evidence of content that it could consider. …

Sufficiency of Evidence, Possession -- Presence of Substance in System
State v. John L. Griffin, 220 Wis. 2d 371, 584 N.W.2d 127 (Ct. App. 1998)
For Griffin: Donald T. Lang, SPD, Madison Appellate
Like other jurisdictions, to be found guilty of possession of a controlled substance in Wisconsin, the defendant must have had the substance under his or her control and must have knowingly possessed the substance. See Wis J I-Criminal 920; Poellinger, 153 Wis.2d at 508, 451 N.W.2d at 758. Because our law of possession is similar to other jurisdictions, we follow those jurisdictions which have held that the mere presence of drugs in a person's system is insufficient to prove that the drugs are knowingly possessed by the person or that the drugs are within the person's control. Accordingly, we conclude that the presence of drugs in Griffin's urine and blood stream, without more, is insufficient evidence on which to base a possession conviction.
Such presence is, however, "circumstantial evidence of prior possession" that may, in combination with other facts, support present possession -- odor of marijuana and existence of several blunts supplies adequate proof for possession of marijuana; however, possession of cocaine is insufficiently proven because the only evidence was cocaine in Griffin's urine.
Evidence of Unemployment and Large Sum of Money on Person -- Admissibility: Simple Possession
State v. John L. Griffin, 220 Wis. 2d 371, 584 N.W.2d 127 (Ct. App. 1998)
For Griffin: Donald T. Lang, SPD, Madison Appellate
Griffin was charged with drug possession. In State v. Pozo, 198 Wis.2d 705, 714, 544 N.W.2d 228, 232 (Ct. App. 1995), we stated that although a large amount of cash on an unemployed defendant may be relevant to whether the defendant is selling drugs, the evidence "would have no tendency to establish" that the defendant was guilty of simple possession. Accordingly, under Pozo, which we must follow, the evidence that Griffin possessed $3500 in money orders and $764 in cash, yet was unemployed, was irrelevant to whether he was guilty of simple possession. We conclude that the trial court erroneously exercised its discretion in admitting the evidence.
Attempted Fraudulent Acquistion of Controlled Substance, § 961.43(1) -- Sufficiency of Evidence
State v. Linda M. Henthorn, 218 Wis. 2d 526, 581 N.W.2d 544
For Henthorn: Michael Yovovich, SPD, Madison Appellate
Viewing the facts most favorable to the prosecution requires us to assume that, despite her denial, Henthorn in fact altered the prescription, changing the refill number from "1" to "11." She then presented the prescription to the pharmacist but took no further action. ...


As a matter of law, Henthorn's conduct in this case was insufficient to show that she would "probably not desist from the criminal course." Id. at 41, 420 N.W.2d at 49. When she presented the prescription to the pharmacist she was, as we have noted, obtaining medicine that she was legally entitled to receive; Henthorn was seeking only the first of the two vials of Tylenol 3 her physician had prescribed. She would have to return to the pharmacy, and one more time after that, in order to "acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge" in violation of § 961.43(1)(a), Stats.


Under the instructions given to them, the jurors would have to find that Henthorn's actions up to and on the day in question demonstrated unequivocally-that is, that "no other inference or conclusion can reasonably and fairly be drawn from ... [her] acts"-that she intended to fraudulently acquire codeine. ...

We conclude that, as a matter of law, no reasonable jury could find on this record that the State had proved the essential elements of the offense of attempted fraudulent acquisition of a controlled substance. We therefore reverse Henthorn's conviction.

Possession with Intent to Deliver -- Sufficiency of Evidence, Proof of Intent
State v. Sheldon C. Stank, 2005 WI App 236
For Stank: Dennis P. Coffey
¶45      We further reject Stank’s argument that insufficient evidence existed to support the “intent to deliver” element of count two. According to Peasley v. State, 83 Wis. 2d 224, 229, 231-32, 265 N.W.2d 506 (1978), the finder of fact may consider many factors indicative of intent to deliver, including the amount of the controlled substance, its dollar value, and the presence of other drugs and drug paraphernalia. Numerous of these factors supported the verdict in this case. …
Possession with Intent to Deliver, §§ 961.41(1m), 961.01(6) – Sufficiency Of Evidence of Intent to Deliver
State v. Rickey Eugene Pinkard, 2005 WI App 226
For Pinkard: John J. Grau
Issue/Holding: Someone holding drugs for another person and planning to return the drugs to that person intends to deliver within the meaning of § 961.41(1m). State v. Smith, 189 Wis. 2d 496, 525 N.W.2d 264 (1995) (conspiracy to deliver not supported where only evidence is that seller intended to sell small amount for buyer’s personal use) distinguished, ¶10 (“Delivery requires transfer from one person to another. … Pinkard’s intent to transfer the drugs to the person from whom he received them satisfies this definition.”).
State v. Dawn C. Moline, 229 Wis. 2d 38, 598 N.W.2d 929 (Ct. App. 1999)
For Moline: Patrick M. Donnelly, SPD, Madison Appellate.
Holding: "By this decision, we hold that a prior conviction for possessing drug paraphernalia pursuant to § 961.573, STATS., qualifies as a prior offense under the repeat drug offender statute, § 961.48(3), STATS." " ... The statute is meant to include all prior convictions, either under ch. 948, STATS., the federal statutes or any other state statute that are "related to" controlled substances and the like. A drug paraphernalia offense is an offense "related to" controlled substances. ..."
Maintaining Place -- Amendment of Information at Close of Case
State v. Davon R. Malcom, 2001 WI App 291, PFR filed 11/27/01
For Malcom: John D. Lubarsky, SPD, Madison Appellate
Issue: Whether the trial court properly amended the information, after close of evidence, to add a charge of keeping a place "which is resorted to by persons using controlled substances" to the charge of using the same place to manufacture, keep or deliver controlled substances (both charges being alternatives under § 961.41(2).
Holding: An amendment to the charge must satisfy two tests: it must not be "wholly unrelated" to the facts at the preliminary hearing; and it must not violate right to notice of the charge. ¶26. Both tests are satisfied here: the added charge was covered by the same statute; Malcom's statement to the police supported the new charge; the evidence relied on by the state to prove the original charge was the same evidence that supported the added charge; both charges covered the same witnesses, same location, and same physical evidence; Malcom made no showing that he would have presented different witnesses to the added charge. ¶28.
Go To Brief
Sentencing -- Mandatory Loss of Driving Privileges
State v. Jacob E. Herman, 2002 WI App 28, PFR filed 1/16/02
For Herman: Jack E. Schairer, Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: "This appeal presents a single issue: whether § 961.50 prescribes a 'minimum sentence' as that term is used in Wis. Stat. § 961.438, which provides that minimum sentences for violations of ch. 961 are presumptive, rather than mandatory. We conclude that a suspension imposed pursuant to § 961.50 is not a 'minimum sentence' as that term is used in § 961.438 and that it is a mandatory penalty." ¶1.
(Note: § 961.438 says that "minimum" sentences are merely "presumptive," i.e., not mandatory. This limitation doesn't control § 961.50, because, even though "sentence" is ambiguous in the sense that it might be broad enough to cover all forms of punishment including loss of driving privileges, § 961.50 is clear on its face. That provision expressly requires loss of driving "in addition to any other penalties that may apply." In addition, this provision ties in with the federal scheme which made highway funds contingent on loss of driving for drug offenses.)
Statutory Double Jeopardy/Limitation on Dual Sovereignty Doctrine -- § 961.45
State v. Colleen E. Hansen, 2001 WI 53, 243 Wis. 2d 328, 626 N.W.2d 195, on certification
For Hansen: Pamela Pepper
Issue: "¶8 ... 'Does Wis. Stat. § 961.45 bar prosecution for the state crime of possession of cocaine with intent to deliver, where a defendant previously has been convicted, based on the same conduct, for the federal crime of conspiracy to possess cocaine with intent to distribute? Stated differently, is the term "same act" under § 961.45 defined by the elements of the state and federal crimes, or by the conduct for which a defendant is convicted?'"
Holding: "Act" refers to factual conduct underlying, as opposed to legal elements of, the offense and therefore "§ 961.45 bars a prosecution where the defendant has previously been acquitted or convicted for the same conduct under federal laws or the laws of another state[.]" ¶43.
Analysis: The statute significantly limits the dual sovereignty doctrine, which otherwise allows Wisconsin prosecution for an offense even though the underlying conduct has been prosecuted to conclusion elsewhere. The bar applies only to ch. 961 drug offenses, but that's plenty, given federal encroachment. The statute reads as follows: "Bar to prosecution. If a violation of this chapter is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state." Note, though, that timing is everything: the bar applies only before completion of the Wisconsin prosecution (which means attachment of jeopardy, such as entry of guilty plea). See generally, State v. Petty, 201 Wis. 2d 337, 548 N.W.2d 817 (1996). Note, too, that the limitation is purely statutory. See, e.g., ¶10 ("Section 961.45 thus operates as a limitation on the State's power to prosecute where no constitutional limit exists. Our inquiry today addresses the scope of the statutory protection against successive prosecutions.")