COURT OF APPEALS
DATED AND FILED
December 23, 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.
IN COURT OF APPEALS
Cham Okery Omot,
from a judgment and an order of the circuit court for
¶1 VERGERONT, P.J. Cham Omot appeals the judgment of conviction entered upon a jury verdict finding him guilty of maintaining a drug trafficking place as party to the crime and possession with intent to deliver tetrahydrocannabinols (THC or marijuana) as party to the crime. He also appeals the circuit court’s order denying his motion for postconviction relief. Omot contends the evidence was insufficient to prove his guilt beyond a reasonable doubt for both crimes. In the alternative, he contends the circuit court erred in admitting certain evidence and this error was not harmless. We assume for purposes of our analysis on the sufficiency of the evidence that all the evidence was properly admitted. Even with this assumption, we conclude there is insufficient evidence to prove Omot’s guilt for either crime beyond a reasonable doubt. We therefore reverse both convictions and remand with instructions to enter a judgment of acquittal on each charge.
¶2 In October 2008, Omot and Charles Schroedl began sharing a bedroom in an apartment in Menomonie. The apartment was leased by Britni Gregerson, who rented the room to Omot and Schroedl. Neither Omot nor Schroedl was listed on the lease. On November 5, 2008, the police executed a search warrant at the apartment. The police found Omot, Schroedl, and a woman in the bedroom Omot and Schroedl shared. Gregerson was also present in the apartment, though not in the same bedroom. The police found a pipe and marijuana in Gregerson’s purse. In a dresser in Omot and Schroedl’s bedroom, the police found several sandwich bags containing marijuana, empty sandwich bags, scales, plastic bags containing marijuana residue, two cell phones, and four drawings signed “Cham Omot.” Each drawing depicts a person holding or shooting a gun or guns: two depict a man shooting a person labeled as either “snitch” or “informant” and one depicts a man holding guns in front of a building labeled “snitch shop.” The police also found a gun in the basement of this apartment. No fingerprints were found on the gun. The other items found were not tested for fingerprints.
¶3 The State charged Omot with maintaining a drug trafficking place in violation of Wis. Stat. § 961.42(1) (2007-08) and possession with intent to distribute THC in violation of § 961.41(1m)(h)1., both as party to a crime. See § 939.05. The State also charged Omot with possession of a firearm by a felon in violation of § 941.29(2)(a).
¶4 Prior to trial, Omot filed a motion in limine to exclude the drawings on the ground that any probative value was outweighed by unfair prejudice. The court denied the motion. During trial Omot objected to the admission of a photograph of an object that a police officer testified looked like a brick of marijuana that was found on Schroedl’s cell phone, and the court overruled this objection.
¶5 The jury found Omot guilty of the charges of maintaining a drug place and possession with intent to distribute and acquitted him on the firearm charge. Omot filed a post-conviction motion requesting that the two convictions be vacated due to insufficient evidence, or alternatively, a new trial be granted based on erroneously admitted evidence. The court denied this motion.
¶6 On appeal Omot contends that he is entitled to vacation of his convictions because there is insufficient evidence. In the alternative, he contends he is entitled to a new trial because the four drawings and the photo of the purported marijuana brick were improperly admitted.
¶7 We first address the issue of the sufficiency of the evidence
because, if we conclude the evidence is insufficient to support a conviction, we
are precluded from remanding for a new trial under the double jeopardy clauses
of the United States and Wisconsin Constitutions. State v. Banks, 2010 WI App 107, ¶43, ___
¶8 The scope of our review on a claim of insufficient evidence is
very narrow. We do not reverse for
insufficient evidence “unless the evidence, viewed most favorably to the state
and the conviction, is so lacking in probative value and force that no trier of
fact, acting reasonably, could have found guilt beyond a reasonable doubt.” State v. Poellinger, 153
¶9 Whether the evidence is sufficient to support a conviction beyond
a reasonable doubt is a question of law, which we review de novo. See State v. Booker, 2006 WI 79, ¶12,
¶10 We first examine the evidence with respect to the charge of
maintaining a drug trafficking place as a party to the crime. As the jury was instructed, the elements of
this crime are (1) keeping or maintaining a structure or place (2) that was used
for keeping or delivering THC, and (3) keeping or maintaining the place knowing
that it was used for keeping or delivering THC.
¶11 The State does not contend that Omot directly committed this
crime or was involved in a conspiracy to commit this crime. The State’s theory, as we understand it, is
that Omot aided and abetted Schroedl’s commission of this crime. The parties agree that a person aids and abets
the commission of a crime when, “acting with knowledge or belief that another
person is committing or intends to commit a crime,” he or she either assists
the person who commits the crime, or is ready and willing to assist and the
person who commits the crime knows of this willingness.
¶12 The evidence at trial showed the following. Omot and Schroedl were friends and shared a bedroom. When the police searched the apartment, Omot, Schroedl, and another person were in the bedroom. The smell of marijuana emanated from the bedroom. Marijuana and paraphernalia were found in drawers in a dresser in the room, and the paraphernalia suggested that marijuana in a larger quantity than was found had been processed and packaged in the bedroom. There was no evidence that personal belongings of Omot were found in the drawers that held the marijuana and paraphernalia. In a different drawer of the same dresser, police found the four drawings, which were signed “Cham Omot” and dated April 2008.
¶13 Gregerson testified that Schroedl had given her marijuana and that she knew Schroedl sold marijuana to others. However, she testified she was not aware he sold marijuana in the apartment. She never saw Omot use the scale, sandwich bags, or marijuana and never saw either Schroedl or Omot sell marijuana. She rented the bedroom of the apartment she leased to Omot and Schroedl and they paid her; they split the rent three ways.
¶14 In addition to this testimony, there were the four drawings and the photo of the purported marijuana brick from Schroedl’s phone. The State also introduced a photo from Omot’s phone showing him holding a gun, which a State’s witness testified was not the gun found in the apartment, and photos of Omot and Schroedl together.
¶15 There is no question that the evidence is sufficient to prove
beyond a reasonable doubt that the apartment was used by Schroedl for keeping
THC. The State argues that it is
reasonable to infer from the evidence that Omot knew that marijuana was being
used and distributed in the apartment and that Omot “had to know if Gregerson
was using marijuana given to her by Schroedl.”
Bearing in mind that “a finding of guilt may rest upon evidence that is
entirely circumstantial,” Poellinger, 153
¶16 However, Omot disagrees that it is reasonable to infer that he
knew Schroedl gave Gregerson marijuana. He
points to the fact that there was no evidence that Gregerson ever used
marijuana in Omot’s presence or in the apartment, or that, even if Omot knew
Gregerson used marijuana, he knew Schroedl had given her the marijuana she used.
But even if we agree with the State and
conclude it is reasonable to infer that Omot knew Schroedl gave Gregerson
marijuana, this is simply alternative evidence that Omot knew Schroedl was
engaging in conduct satisfying the second element of the crime of maintaining a
drug trafficking place: using the apartment for delivering as well as for
keeping THC. See
¶17 As for the first element of the crime—which requires exercising
management or control of the place—we are uncertain from the State’s brief what
evidence the State believes establishes this element. See
¶18 As proof of Omot’s aiding and abetting Schroedl, the State relies on the photograph of Omot holding a gun and on the four drawings. The State contends that the photo showing Omot holding a gun conveys a “mentality [that makes] it more likely that Omot would have been ready and willing to assist his drug dealer roommate.” The four drawings, according to the State, “necessarily conveyed to [Schroedl] Omot’s willingness to assist, even if he was not already the official ‘enforcer.’” The State asserts this message is a reasonable inference from the drawings whether or not they were self-portraits.
¶19 We agree with Omot that it is not reasonable to infer from his photo
and the four drawings that he conveyed to Schroedl that he was ready and willing
to assist Schroedl in keeping or distributing marijuana in the apartment. With respect to the photo, there is nothing
to connect Omot’s display of the gun in the photo with a drug trafficking operation
run by Schroedl. Beyond the fact that the
photo was found on Omot’s phone, the only testimony placing it in context was
that the photo was taken on November 4, 2008, the day before the police search;
there was no evidence of who took the photo or for what purpose. It is nothing more than speculation to
conclude that, because Omot is holding a gun, he is ready and willing to act as
an “enforcer” for Schroedl in a drug trafficking operation. In addition, there is no evidence, or
reasonable inferences from the evidence, that Schroedl knew of this photo. If the State is relying on Omot’s readiness
and willingness to assist, there must be evidence both that Omot was ready and
willing to assist and that Schroedl
knew of this willingness. See
¶20 With respect to the drawings, it is reasonable to infer that
Omot drew them. However, it is nothing
more than speculation to infer that Omot’s depictions of a person shooting “snitches”
or “informants” show that Omot was ready and willing to assist Schroedl as an “enforcer”
in a drug trafficking operation at the apartment leased by Gregerson. These drawings are dated six months before
Omot and Schroedl moved into the bedroom where the marijuana and paraphernalia
were found. There is no evidence that
Omot and Schroedl even knew one another in April 2008. While it is reasonable to infer that Schroedl
saw these drawings (because they were in the same dresser that Schroedl
evidently used), it is not reasonable to infer that the drawings had anything
to do with Schroedl or a drug trafficking operation run by him in that
apartment. The State contends it is
simply “connecting the dots” to view these drawings as conveying to Schroedl
Omot’s willingness to act as his “enforcer.” However, “connecting … dots into a coherent
pattern” depends upon “drawing logical inferences from the evidence.” Sarnowski, 280
¶21 In support of the State’s argument that the evidence is
sufficient to show aiding and abetting by Omot, the State relies on the
doctrine of legal intent. Under this doctrine,
legal intent to aid and abet the commission of a crime may be inferred from the
defendant’s conduct even though the defendant did not intend to commit the
specific crime charged. State
v. Grady, 93
¶22 However, the drawings and the photo are not analogous to the
conduct from which courts have inferred intent to aid and abet a crime. See Grady, 93 Wis. 2d at 5-7 (pointing
a gun to assist another in stealing a radio shows intent to participate in the
robbery); Cydzik, 60 Wis. 2d at 696-97 (participating in an armed robbery
shows intent to assist the other participant in a shooting or killing that
occurs during that robbery); Ivy, 119 Wis. 2d at 593 (participating
in a robbery may, depending on the facts and circumstances, show intent to participate
in an armed robbery); State v. Asfoor, 75 Wis. 2d 411, 428-29,
249 N.W.2d 529 (1977) (participating as the driver in a plan to injure the
victim shows intent to assist in causing the injury). Nor are the drawings and photo analogous to
the conduct in an attempt case on which the State also relies: State
v. Stewart, 143
¶23 We conclude that the evidence and reasonable inferences from the evidence, viewed most favorably to the verdict, do not prove beyond a reasonable doubt that Omot aided and abetted Schroedl in the commission of the crime of maintaining a drug trafficking place.
¶24 We now turn to the crime of possessing a controlled substance
(THC) with intent to deliver, as party to the crime. The elements of this crime are: (1) knowingly
having actual physical control of THC; (2) knowing or believing the substance is
THC; and (3) intending to transfer or attempt to transfer THC to another. See
¶25 Based on the evidence we have already discussed, a reasonable jury could decide that Schroedl committed the crime of possessing THC with intent to deliver. The State’s argument on the evidence proving that Omot aided and abetted in the commission of this crime is the same as for the drug house crime. For the reasons we have already discussed, we conclude the photo and the drawings do not permit a reasonable inference that Omot was ready and willing to assist Schroedl in possessing THC with intent to deliver and do not permit a reasonable inference that Schroedl knew of any such willingness on Omot’s part. In addition, as we have already explained, the doctrine of legal intent does not support a different result.
¶26 We conclude the evidence is insufficient to prove beyond a reasonable doubt that Omot was guilty of maintaining a drug trafficking place as party to the crime and insufficient to prove beyond a reasonable doubt that Omot was guilty of possession with intent to deliver THC as party to the crime. We therefore reverse the judgment of conviction on both charges and remand with directions to enter a judgment of acquittal on both charges.
By the Court.—Judgment and order reversed and cause remanded with directions.
Not recommended for publication in the official reports.
 All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
 The State’s theory on the firearm charge, of which Omot was acquitted, was that Omot possessed the gun found in the basement. Apparently, the State originally believed the gun in the photo was the same as the gun found in the basement, and it was not until after opening statements that the State learned otherwise.
parties debate how closely the facts of this case align with State
v. Rundle, 176
 It may be that the State does not mean that Omot’s photo conveyed to Schroedl Omot’s willingness to act as an enforcer for Schroedl. It may be that the State means that the photo is simply evidence of Omot’s readiness and willingness to do that, and the drawings, not the photo, conveyed that to Schroedl. We address the drawings in the next paragraph.
 The State asserts without elaboration that, from the absence of evidence that either Omot or Schroedl was employed, “there was a strong inference that … selling drugs paid the rent.” The only evidence offered for this proposition is the testimony of Gregerson that she did not know if either Schroedl or Omot had employment. It is, at best, a weak inference from her testimony that drug money paid Omot’s rent.