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Delivery of Controlled Substance – Sufficiency of Evidence; Joinder

State v. James Thomas Morton, 2010AP2041-CR, District 1, 6/28/11

court of appeals decision (not recommended for publication); for Morton: Carl W. Chessir; case activity

Evidence that Morton told an undercover officer to put her money on the kitchen table, and that “what you came for is right here,” supported conviction for delivery of the controlled substance the officer found on the table.

¶13      “[A] constructive transfer need not be hand to hand.  Instead, the defendant’s intent to transfer and the effectuation of that transfer are the determinative factors.”  State v. Wilson, 180 Wis. 2d 414, 422, 509 N.W.2d 128 (Ct. App. 1993).  “A direct actor can use another person, a place or an object to indirectly transfer a substance.  The essence is the intent to transfer and the ability to cause that transfer.”  Id. at 422-23.  Morton’s argument that he did not deliver the cocaine because he did not have direct contact with the napkin, therefore, is not supported by case law.  Morton directed Officer Riley to place the buy money on the kitchen table, told her that “what [she] came for” was in his apartment, and pointed to a napkin containing cocaine.  The jury acted reasonably in accepting Officer Riley’s testimony to support its finding that Morton delivered cocaine.  See State v. Banks, 2010 WI App 107, ¶46, 328 Wis. 2d 766, 790 N.W.2d 526 (“[T]he credibility of the witnesses and the weight of the evidence is for the fact finder, and we must adopt all reasonable inferences which support the jury’s verdict.”).  Further, Morton’s implication that the confidential informant may have had some direct contact with the cocaine is purely speculative and will not be addressed.

Joinder of crimes allegedly committed when Morton was out on bail on the delivery charge was permissible under § 971.12(1).

¶20      Essentially, Morton disputed only the charges of delivery of cocaine and keeping a drug house.  The jury was instructed to consider each charge separately and to not allow its verdict on any one count to affect its verdict on any other count.  We presume that the jury followed this instruction.  See State v. Deer, 125 Wis. 2d 357, 364, 372 N.W.2d 176 (Ct. App. 1985).  Morton was acquitted of keeping a drug house, although convicted of delivery of cocaine.  Morton was also not convicted of possession with intent to deliver, but of the lesser charge of mere possession.  Had the jury not considered the charges separately, as they were instructed, the outcome might well have been different.  Based on the combination of Morton’s admissions, his stipulation, and the jury’s acquittal on one charge and conviction of a lesser offense on another, we are satisfied that the State has met its burden of showing that Morton was not prejudiced by the joinder.

Test for joinder, and standard of review on appeal, recited, ¶15.

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