State v. Roshawn Smith, 2010AP1192-CR, District 3, 5/26/11, aff’d and rev’d, 2012 WI 91
Evidence held sufficient to support guilty verdict, § 961.41(1m)(h)5., ptac: after agreeing to accept packages (which turned out to contained marijuana), the recipient was paid $400 by Smith “without explanation.”
¶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.
¶26 The 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, 116 Wis. 2d at 625. A “tacit understanding of a shared goal” is sufficient. Id. Mehlhorn’s testimony that Smith and Thomas together picked up the packages from him and evidence that both were involved with the packages delivered to Kortbein are sufficient for the jury to reasonably infer that Smith and Thomas had an agreement to possess and deliver THC and that Smith intended that this crime be committed.
Stipulation to weight of THC, such that jury was not required to make any finding at all on that issue, violated Smith’s right to jury trial. Although Smith both signed a written stipulation and agreed during a colloquy with the trial court that the “crime lab person” wouldn’t have to testify, there is no showing on the record that he agreed to omit a jury determination.
¶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 Wis. 2d 630, 635, 600 N.W.2d 193 (Ct. App. 1999), the defendant stipulated on the record that he entered premises without the owner’s consent, a fact constituting an element of the charged crime of burglary. The circuit court instructed the jury on all elements of the crime, including nonconsent, and also informed the jury that it must accept the stipulated facts as conclusively proved. Id. The jury returned a guilty verdict. The defendant argued on appeal that he was denied a jury trial on the element of nonconsent. Id. at 636. We disagreed, concluding that the defendant received a jury trial on every element because the jury was instructed on all elements of the crime and “the jury made a complete and final determination of guilt based on the evidence presented.” Id. at 636-37. The stipulation did not constitute a waiver of the right to a jury trial on the element of nonconsent, we stated, but instead, relieved the State from the burden of proving nonconsent. Id. at 638-39. We contrasted Benoit’s situation with that in State v. Villarreal, 153 Wis. 2d 323, 450 N.W.2d 519 (Ct. App. 1989), in which an element of the charged crime was decided by the court, not by the jury. Id. at 637-38.
The right to jury trial “includes the right to have a jury determine each element of the crime,” ¶29, quoting State v. Hauk, 2002 WI App 226, ¶32, 257 Wis. 2d 579, 652 N.W.2d 393. “Generally, any fact that exposes a defendant to a greater punishment is an element of the crime on which the defendant has the right to a jury trial. Apprendi v. New Jersey, 530 U.S. 466, 477 (2000); State v. Warbelton, 2009 WI 6, ¶¶20-21, 315 Wis. 2d 253, 759 N.W.2d 557,” id. (Excepting repeater enhancement, the so-called “prior-conviction exception,” id. n. 5. And, because the right to jury trial is personal to the defendant, its waiver must be on the record, without resort to “circumstantial evidence or reasonable inferences,” ¶30, citing State v. Anderson, 2002 WI 7, ¶11, 249 Wis. 2d 586, 638 N.W.2d 301. It follows that waiver of the right to have the jury determine an offense element must satisfy the colloquy requirements of Anderson, 2002 WI 7, ¶¶23-24. That wasn’t done here, so Smith’s right to jury trial was violated … sort of. Because the jury did determine the “base” crime (possession with intent), with the violation limited to weight (the penalty determinant), Smith isn’t necessarily entitled to new trial.
¶45 A case that appears more applicable than Livingston to the facts here is Villarreal, 153 Wis. 2d 323. In that case, the jury returned a verdict finding the defendant guilty of second-degree murder and, pursuant to a stipulation, the court determined that the defendant had used a dangerous weapon. Id. at 324. We concluded that the defendant had the right to a jury trial on the use-of-a-dangerous-weapon element of the crime of second-degree murder by use of a dangerous weapon. Id. at 332. We also concluded that the defendant had not validly waived that right. Id. Because the jury found her guilty of second-degree murder, we remanded with directions to the court to enter a judgment of conviction for second-degree murder only. Id.
¶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.