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COURT OF APPEALS DECISION DATED AND RELEASED September 26, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2597-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MICHAEL STUBBS,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Dane County:
RICHARD J. CALLAWAY, Judge. Affirmed.
Before Dykman, P.J.,
Vergeront, J., and Paul C. Gartzke, Reserve Judge.
PER
CURIAM. Michael Stubbs challenges the sufficiency of the
evidence to support his conviction for possession of cocaine base with intent
to deliver.[1] Because sufficient evidence supports the
jury verdict, we affirm.
On September 8, 1993,
Officer Jeff Twing was conducting surveillance of a Madison park. Twing was located on the roof of an
apartment building across the street, and used binoculars for monitoring
activity in the park. Twing observed
Stubbs hand something to Larry Crawford, who passed it to Leonard Jones. Twing could not identify the object that the
men were passing. Jones then passed
something back to Crawford, who passed it to Stubbs. Twing then saw Stubbs count what he had received and place it in
his pocket. At the time, Stubbs was
wearing a grey sweat suit with white stripes on the arms.
After observing this
transaction, which he suspected was drug-related, Twing radioed other officers
to investigate further. Several unmarked
squad cars then entered the park area.
Twing testified that Stubbs appeared to notice the squad cars, and
"became nervous." Stubbs then
entered a park shelter for a few seconds.
Twing could not see Stubbs while he was in the park shelter. When Stubbs exited from the shelter, he
"continued to look around" and walked over to a group of people at a
nearby picnic table. Stubbs then left
the park "at a fast pace" and walked towards West Washington
Avenue. Another officer followed Stubbs
and later arrested him. Stubbs did not
have any cocaine on him when arrested, but did have $130 in cash. Twing testified that he did not see Stubbs
discard anything.
Odvar Klovrud was
bicycling through the park at the time.
Klovrud testified that he saw a man wearing dark clothing with a white
band on his shirt sleeves enter the park shelter and stuff something up into
the chimney of a park fireplace. After
noticing the police enter the park, Klovrud stopped and told officers what he
had seen. An officer found two plastic
"baggies" containing cocaine base on a ledge in the upper left side
of the fireplace. The baggies were not
dust-covered.
Stubbs was charged with
the possession, with intent to deliver, of the cocaine base found in the
chimney. Stubbs contends, however, that
no reasonable jury could have concluded that he possessed those drugs. He notes that no one testified that they saw
Stubbs with any cocaine and that no cocaine was found on him when he was
arrested. Stubbs suggests that other
items could have been passed between the men, such as cigarettes or
matches. Stubbs argues that Klovrud's
testimony that Stubbs stuffed something into the chimney is insufficient to
support a conviction for possession of the cocaine found in the chimney.
Upon a challenge to the
sufficiency of evidence to support a jury finding of guilt, this court may not
substitute its judgment for that of the jury unless the evidence, viewed most
favorably to the State and the conviction, is so lacking in probative value and
force that no reasonable jury could have found guilt beyond a reasonable
doubt. State v. Poellinger,
153 Wis.2d 493, 507, 451 N.W.2d 752, 757-58 (1990). The jury, and not this court, resolves conflicts in the
testimony, weighs the evidence and draws reasonable inferences from basic facts
to ultimate facts. Id. at
506, 451 N.W.2d at 757. When the record
contains facts which support more than one inference, this court must accept
the inference drawn by the jury unless the evidence, on which that inference is
based, is incredible as a matter of law.
Id. at 506-07, 451 N.W.2d at 757. This court's standard of review remains
constant, whether the evidence is direct or circumstantial. Id. at 503, 451 N.W.2d at 756.
While Stubbs accurately
identifies the circumstantial aspects of the State's case, the absence of
direct evidence of possession does not render the evidence insufficient as a
matter of law. Direct evidence of
physical possession is not required. State
v. Allbaugh, 148 Wis.2d 807, 813, 436 N.W.2d 898, 901 (Ct. App.
1989). Possession of an illegal
substance may be imputed to a person "when the contraband is found in a
place immediately accessible to the accused and subject to his [or her]
exclusive or joint dominion and control, provided that the accused has
knowledge of the presence of the drug."
Id. at 814, 436 N.W.2d at 902, quoting Schmidt
v. State, 77 Wis.2d 370, 379, 253 N.W.2d 204, 208 (1977).
In this case, the
chimney was "immediately accessible" to Stubbs. While the chimney was in a public park and
not within Stubbs's "exclusive control," it could be considered
within his "joint control."
The jury could reasonably infer that Stubbs secreted the drugs in the
chimney after he noticed police entering the area, and that he intended to
retrieve the drugs after the police had left.
The jury heard evidence that supported the reasonable inference that
Stubbs had been involved in a drug sale immediately before he was seen stuffing
something into the chimney. No one
other than Stubbs was seen placing any item into the chimney. The baggies were not covered with dust, dirt
or ashes, suggesting that they had been placed in the chimney recently.
This court "need
not concern itself in any way with evidence which might support other theories
of the crime. An appellate court need
only decide whether the theory of guilt accepted by the trier of fact is
supported by sufficient evidence to sustain the verdict rendered." Poellinger, 153 Wis.2d at
507-08, 451 N.W.2d at 758. Under that
standard, Stubbs's judgment of conviction easily survives appellate review.
By the Court.—
Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.