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Maintaining Drug Trafficking Place, / Possession with Intent to Deliver, PTAC- Insufficient Proof

State v. Cham Okery Omot, 2010AP899, District III

court of appeals decision (3-judge, not recommended for publication); for Omot: Tyler William Wickman; case activity; Omot BiC; State Resp.; Reply

Evidence held insufficient to sustain convictions for maintaining drug trafficking place, § 961.42(1), and possession with intent to distribute THC , § 961.41(1m)(h)1., both as party to a crime, § 939.05. The State didn’t claim conspiracy or direct-actor liability; aiding and abetting, which is therefore the sole theory of guilt discussed, requires proof of intent to aid a direct actor in the commission of a crime. Omot moved in (as an informal sub-lessee) only a month before the police found marijuana and paraphernalia in a dresser the bedroom he shared with Schroedl. None of Omot’s personal belongings were in the drawers containing these items. Nor did any one ever see Omot sell marijuana. The court agrees there was sufficient proof to establish that Schroedl used the place to keep THC and that Omot knew as much. However, the proof still falls short of the necessary aiding and abetting proof that Omot “conveyed to Schroedl that he was ready and willing to assist Schroedl in keeping or distributing marijuana in the apartment,” ¶19. Same, re: possession with intent, ¶25.

Sufficiency analysis is necessarily fact-intensive, and no attempt is made in this post to summarize all the relevant evidence discussed in great detail (and discounted) by the court; this includes “anti-snitching” drawings signed by Omot and a photo of Omot with a gun. Separately, the court: reiterates the principle that where the evidence is held insufficient, double jeopardy bars retrial, ¶7; describes sufficiency-review as “very narrow,” but at the same time raising a question of law reviewed de novo, ¶¶8-9; recites the elements of both offenses, ¶¶10, 24; and describes the foreseeability doctrine in the context of aiding and abetting liability, ¶¶21-23. Among other things.

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