COURT OF APPEALS
DATED AND FILED
May 26, 2011
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
from a judgment and an order of the circuit court for
Before Vergeront, P.J., Higginbotham and Blanchard, JJ.
¶1 VERGERONT, P.J. Roshawn Smith appeals the judgment of conviction for possession with intent to deliver more than 10,000 grams of tetrahydrocannabinol (THC) as party to the crime. He also appeals the circuit court’s order denying his motion for postconviction relief. Smith contends that the evidence was insufficient to prove his guilt beyond a reasonable doubt and that he was denied his right to a jury trial on the weight element of the crime. We conclude there was sufficient evidence presented at trial. However, we agree with Smith that he did not waive his right to a jury trial on the weight element of the crime and the circuit court therefore erred when it answered the verdict question. Accordingly, we reverse the conviction and remand to the circuit court for further proceedings.
¶2 The State charged Smith
with possession of more than 10,000 grams of THC with intent to deliver
contrary to Wis. Stat. §
961.41(1m)(h)5., as a party to a crime under Wis.
Stat. § 939.05 (2009-2010). The State alleged that Smith participated in
the shipment of marijuana by commercial delivery from
¶3 The following evidence was presented at trial. The Green Bay Police Department was notified
in September 2006 by a
packages were addressed to “Jo Korbine” at a
¶5 Subsequent testing showed that each package contained about twenty-five pounds of marijuana and tested positive for THC.
¶6 Kortbein testified at trial that she and Smith had been friends for several years, and Smith had introduced her to Thomas. Shortly after their introduction, Thomas called Kortbein on her cell phone and offered to pay her $500 if she would accept delivery of packages at her residence. She agreed. Approximately a week later she received a package. Thomas picked up the package a few days later, and shortly thereafter Smith gave her $400 without explanation. Prior to September 20, 2006, she had received two more deliveries. Both times Thomas picked up the packages and, shortly thereafter, Smith paid her $400.
¶7 David Mehlhorn testified that he was a friend of Smith and had agreed to accept delivery of packages between July and October of 2006. Mehlhorn accepted deliveries on three occasions. After the packages were delivered, Smith and Thomas would pick them up. Mehlhorn reported this to the police after seeing a story about Thomas in the news.
¶8 Prior to the trial, Smith stipulated that the packages contained THC and weighed 22,477 grams. During the trial, the court read the stipulation to the jury. The court instructed the jury on the elements of the crime of possession with intent to deliver THC as party to the crime. The court also instructed the jury that the court was answering the verdict question regarding the weight of the THC. We discuss the stipulation and related jury instructions and verdict question in more detail later in the opinion.
¶9 The jury found Smith guilty of the crime of possession with intent to deliver THC as party to the crime. The court entered a judgment of conviction for possession with intent to deliver more than 10,000 grams of THC as party to the crime and sentenced Smith to a term of six years initial confinement plus five years extended supervision.
¶10 Smith filed a motion for postconviction relief, asserting that there was insufficient evidence to support the conviction and that he did not waive his right to a jury trial on the weight of the THC. The circuit court denied the motion.
¶11 On appeal, Smith renews his contentions that the evidence was insufficient to support his conviction and that he did not waive his right to a jury trial on the weight of the THC.
I. Sufficiency of the Evidence
¶12 Whether the evidence is sufficient to support a conviction beyond
a reasonable doubt presents a question of law, which we review de novo. See State v. Booker, 2006 WI 79, ¶12,
¶13 Although the jury must exclude every reasonable hypothesis of a
defendant’s innocence before returning a guilty verdict, this does not mean that,
if there is any evidence at trial suggesting innocence, the jury cannot find
the defendant guilty.
¶14 On appeal, we “affirm the jury’s finding if there is any reasonable hypothesis that supports
the conviction.” State v. Hauk, 2002 WI
App 226, ¶12, 257
¶15 Applying this standard to our review of the evidence, we conclude for the following reasons that the evidence is sufficient to prove beyond a reasonable doubt that Smith was guilty of the crime of possessing more than 10,000 grams of THC with intent to deliver as party to the crime.
circuit court instructed the jury that the elements of possession of a
controlled substance (THC) with intent to deliver are: (1) the defendant or
another person possessed a substance; (2) the substance was THC; (3) the
defendant or another person knew or believed that the substance was THC; and
(4) the defendant or another person intended to deliver THC. Because Smith was charged as party to the
crime, the jury was also instructed that it must find that Smith
directly committed the crime of possession of THC with intent to deliver, or
that he was a member of a conspiracy to commit this crime, or that he
intentionally aided and abetted the commission of this crime. See
State does not contend that Smith directly committed the crime. The State’s theory is that Smith was a member
of a conspiracy to commit the crime or that he aided and abetted the commission
of the crime. Liability as a party to a
crime for aiding and abetting requires that the individual undertake a verbal
or overt action that objectively assists at least one other person in the
commission of a crime and requires that the individual consciously intend to provide
that assistance. State v. Hecht, 116
¶18 The evidence presented at trial showed the following. Smith introduced Kortbein to Thomas. Kortbein did not give Thomas her cell phone number, but he called her within a few weeks of being introduced to her. He asked if she would be willing to accept delivery of packages in exchange for $500. She agreed. Approximately a week later, a package was delivered to Kortbein. In total, Kortbein received packages on three occasions prior to September 20, 2006. Each time, Thomas picked up the packages within a few days and, shortly thereafter, Smith gave her $400 without explanation. In the days surrounding the deliveries, there were many calls among Kortbein’s, Thomas’s and Smith’s cell phones. On September 20, Kortbein received two packages that were consistent in size with the previous packages. She expected that Smith would pay her for these packages. These packages each contained approximately twenty-five pounds of marijuana. This amount of marijuana has a street value of approximately $50,000 and far exceeds the amount indicative of personal use.
¶19 The packages delivered on September 20, 2006, were “layered with tape” and the THC was covered with several layers of saran wrap. These packages were addressed to “Jo Korbine,” an alteration of Shannon Kortbein. There was testimony that these are common strategies used by persons sending drugs through the mail.
¶20 About the same time that Kortbein was receiving packages for Thomas, Mehlhorn agreed to receive packages for Smith. Smith and Thomas would pick up these packages. Smith told Mehlhorn that he had been involved in a marijuana operation with a girl, but that he was not concerned because it was his word against hers.
¶21 Smith assumes for purposes of argument that the above evidence is sufficient to show that an unknown person or persons in California possessed more than 10,000 grams of THC with the intent to deliver it. His contention is that the evidence is insufficient to prove his involvement as a party to the crime.
¶22 We first address liability by aiding and abetting. We agree with the State that the jury could reasonably infer that, by introducing Kortbein and Thomas and by giving Kortbein $400 after each delivery, Smith objectively assisted in the crime of possessing THC with intent to deliver. Smith does not argue otherwise. But he does argue that the evidence is not sufficient to support a reasonable inference that he intended this result.
¶23 Specifically, Smith argues that the facts that he introduced Thomas to Kortbein and paid Kortbein $400 after each delivery, considered individually, are insufficient evidence to show Smith’s intent to aid and abet the commission of a crime on September 20, 2006. In support of this argument, he presents a number of innocent inferences that the jury could have drawn from this evidence.
¶24 Smith’s argument fails for several reasons. First, we do not consider pieces of evidence individually, but rather view the evidence as a whole in order to determine whether a reasonable jury could have found guilt beyond a reasonable doubt. Second, we do not draw our own inferences from the evidence, but instead adopt the reasonable inferences a jury could have drawn to support the verdict. Finally, Smith’s argument ignores other evidence supporting the verdict—namely, the evidence from Mehlhorn that he had accepted delivery of packages for Smith, that Smith and Thomas had picked up the packages together, and that Smith had admitted to Mehlhorn that he was involved in a marijuana operation.
¶25 Viewing this evidence most favorably to the verdict, we conclude it supports a reasonable inference that Smith both objectively assisted in the commission of the crime of possession with intent to deliver and intended to provide that assistance. Accordingly, the evidence is sufficient to establish that Smith aided and abetted the crime of possession with intent to deliver THC.
same evidence also supports a verdict based on a theory of conspiracy to commit
the crime. Circumstantial evidence used to demonstrate a
conspiracy need not show an express agreement between the parties. Hecht,
II. Waiver of Jury Trial
¶27 Smith contends that his constitutional right to a jury trial was violated because the jury did not determine whether the weight of the THC in the packages was greater than 10,000 grams. He argues that, although he stipulated to the weight of the THC in the packages, he did not waive his right to a jury determination of this issue.
¶28 Whether Smith’s constitutional right to a jury trial was
violated is an issue we review de novo. State
v. LaCount, 2007 WI App 116, ¶27, 301
¶29 A defendant’s right to a jury trial is guaranteed by both the
¶30 The constitutional right to a jury trial is personal and
fundamental and can be waived only if the defendant makes a voluntary, knowing,
and intelligent waiver on the record. Warbelton,
¶31 The procedure for waiving a jury trial is set forth in Wis. Stat. § 972.02(1). Pursuant to this section, “[e]xcept as
otherwise provided in this chapter, criminal cases shall be tried by a jury … unless
the defendant waives a jury in writing or by statement in open court or under
s. 967.08(2)(b), on the record, with the approval of the court and the consent
of the state.” Wisconsin courts interpreting § 972.02(1)
have established that a jury waiver is valid only if the circuit court
conducted a colloquy to ensure that the defendant “(1) made a deliberate
choice, absent threats or promises, to proceed without a jury trial; (2) was
aware of the nature of a jury trial, such that it consists of a panel of 12
people that must agree on all elements of the crime charged; (3) was aware of
the nature of a court trial, such that the judge will make a decision on
whether or not he or she is guilty of the crime charged; and (4) had enough
time to discuss this decision with his or her attorney.” Anderson, 249
¶32 There is no dispute that the weight of the THC increases the penalty of the crime of possession of THC with intent to deliver. Thus, Smith is entitled to a jury trial on this element in the absence of a valid waiver. The facts relevant to this issue are as follows.
¶33 Prior to the trial, Smith personally stipulated, both in writing and orally on the record, that the packages at issue contained THC and that they weighed 22,477 grams. The written stipulation, signed by Smith and his attorney, provided:
The State, by Assistant District Attorney Wendy W.
Lemkuil, the Defendant, Roshawn Smith and Attorney Andrew Williams, hereby
stipulate that the substance in the aforementioned case and tested by analyst
Kim Vonnahme, at the Wisconsin State Crime Lab in
¶34 The circuit court conducted this colloquy with Smith concerning the stipulation:
THE COURT: … But I still need to ask you personally, you agree that the crime lab person doesn’t need to come to testify about the fact that what’s in the bag contains THC, which is the active ingredient in marijuana? That is your agreement?
SMITH: Um, I believe so….
THE COURT: … That it is my understanding that your defense is you didn’t have anything to do with this, you knew nothing about it, you weren’t involved. And that’s your defense. And that’s what this document tells me is because there is no reason for you to disagree that that was really marijuana, because your defense is that you didn’t have anything to do with it, and to drag the crime lab person in here to testify that it was marijuana isn’t part of your defense. And I just wanted to be sure that you understand that and you agreed with that. You signed it. I would fully expect that [your attorney] explained it to you. But I just wanted to be sure that you understood that. Because it’s not part of your defense, there is no reason to drag this crime lab person in here to say it was marijuana.
SMITH: I agree.
¶35 With the agreement of the assistant district attorney and defense counsel, the circuit court read the written stipulation to the jury during the trial. The court instructed the jury that it must accept the stipulated facts “as conclusively proved.”
¶36 During discussions on the verdict forms, the State proposed and defense counsel agreed that the court would answer for the jury the question on the weight of the THC. The jury was presented with two verdict forms, one finding Smith guilty and one finding him not guilty. The form finding him guilty stated, “If you find the defendant guilty, the court has answered the following question based on the Stipulation of the parties: Was the amount of THC including the weight of any other substance or material mixed or combined with it, more than 10,000 grams? Yes.” The court explained this “yes” answer to the jury as follows:
If you find the Defendant guilty, I have answered the following question based on the stipulation of the parties. Was the amount of THC including the weight of any substance or material mixed or combined with it more than 10,000 grams? That is the question that you would normally have to answer if you found the Defendant guilty. But because of the stipulation of the parties, I have answered it yes for you. So you don’t need to answer that question.
¶37 There is no dispute on these facts that the jury did not decide the weight of the THC. The State’s position is that the record as a whole is adequate to demonstrate a voluntary, knowing, and intelligent waiver of the right to a jury trial on this element. The State asserts that a circuit court need not use “magic words” in conducting the requisite colloquy. The State contends that there is no basis for concluding that Smith did not understand that, in entering into the stipulation, he was giving up his right to a jury determination on the weight element. As we understand the State’s position, Smith’s personal stipulation to the weight of the THC is the equivalent of a personal waiver of the right to a jury trial on that element and the court’s colloquy on the stipulation satisfies its obligation to conduct a colloquy for a valid jury waiver.
¶38 The State’s argument overlooks the case law establishing that a
stipulation to a fact constituting an element of a crime, even if made
personally by the defendant, is not the same as a waiver of a jury trial on the
element. In State v. Benoit, 229
¶39 The supreme court in Warbelton, 315
A stipulation to an agreed fact is evidence, and its admissibility is governed by the statutory rules of evidence. In contrast, a waiver of one or more elements of a crime is a partial jury waiver, and it is governed by separate statutory and constitutional rules.
¶40 The State cites to Hauk, 257
¶41 We do not agree with the State’s reading of Hauk. Hauk confirms the principle that a
jury waiver must be made personally by the defendant; thus, a stipulation that
is not signed by the defendant cannot be a jury waiver.
¶42 We recognize that there is no requirement that a valid waiver
of the right to a jury trial be in writing.
See Wis. Stat. § 972.02(1). Thus, even though the written stipulation
signed by Smith did not address the waiver of the right to a jury trial, a
colloquy satisfying the requirements of Anderson, 249
¶43 Smith asserts that, because there was not a valid waiver of his
right to a jury trial on the weight element, he is entitled to a new trial. He relies on State v. Livingston, 159
¶44 Unlike this case,
¶45 A case that appears more applicable than Livingston to the facts
here is Villarreal, 153
¶46 Neither Smith nor the State discusses Villarreal. Because the State does not address the proper remedy and because it appears that Villarreal may have some bearing on this issue, we conclude the circuit court should determine the proper remedy on remand.
¶47 We conclude that the evidence was sufficient for the jury to find Smith guilty of possession with intent to deliver more than 10,000 grams of THC as a party to a crime. However, because we conclude that Smith was denied his right to have the jury determine the weight element, we reverse the judgment of conviction for possession with intent to deliver more than 10,000 grams of tetrahydrocannabinol (THC) as party to the crime and the order denying postconviction relief. On remand the court shall determine the appropriate remedy for the denial of the right to a jury trial on the weight element.
By the Court.—Judgment and order reversed and cause remanded for further proceedings.
Not recommended for publication in the official reports.
 All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
 The weight of the THC includes the marijuana plant material containing the controlled substance. Wis. Stat. § 941.41(1r). Accordingly, when we refer to the weight of the THC in this opinion, we mean the weight of the marijuana containing the THC.
asserts that, if “there are two or more possible inferences but there was no
basis on which the factfinder could make a reasoned choice between them, then
the evidence failed to satisfy the burden of proof.” If Smith means that the jury may not choose
between two competing reasonable inferences from the evidence, we
disagree. This is directly contrary to Poellinger’s
holding that “the trier of fact is free to choose among conflicting inferences
of the evidence and may, within the
bounds of reason, reject that inference which is consistent with the
innocence of the accused.” State
v. Poellinger, 153
 Smith does not expressly state that he is assuming for purposes of argument that the evidence is sufficient to establish that the weight of the THC was greater than 10,000 grams. However, given his stipulation that the weight of the THC was 22,477 grams, we understand him to implicitly concede there is sufficient evidence of the weight to support the conviction. We address in the next section his contention that the jury, not the judge, should have decided this element.
exception is the fact of a prior conviction.
State v. Warbelton, 2009 WI 6, ¶21, 315
 Wisconsin Stat. § 961.41(1m)(h) prescribes the penalties for possession of THC with intent to deliver according to the weight of the THC. Possession of more than 10,000 grams with intent to deliver is a Class E felony punishable by a fine of up to $50,000, imprisonment of not more than 15 years, or both. §§ 961.41(1m)(h)5. and 939.50(3)(e).
 The circuit court had addressed Smith on this same subject on two earlier occasions when there was a discussion regarding the witness from the state crime lab. On the first occasion, the court addressed Smith as follows:
THE COURT: You don’t want to have that crime lab person come up here?
THE COURT: Okay. Any promises or threats made to get you to make that decision?
SMITH: No, ma’am.
THE COURT: Okay. You’re not disputing that it’s marijuana. You just—your position is that you didn’t have anything to do with it, is that right?
On the second occasion, the court asked:
THE COURT: Is that true, Mr. Smith? You’re not going to make the State prove what was in the boxes?