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Possession of Controlled Substance, PTAC – Sufficiency of Evidence

State v. Charles E. Dukes, 2007 WI App 175
For Dukes: Robert N. Meyeroff

Issue/Holding:

¶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.

 

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