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State v. Roshawn Smith, 2010AP1192-CR, rev. granted 12/1/11

on review of unpublished decision; for Smith: William E. Schmaal, SPD, Madison Appellate; case activity; prior post

Sufficiency of Evidence (Possession with Intent to Deliver) – Circumstantial Evidence Standard of Review / 
Stipulation (Offense Element) – Right to Jury Trial

Issues (from Smith’s PFR): 

1. The Trial Evidence Was Insufficient to Support Smith’s Conviction of Possessing a Controlled Substance (THC) With Intent to Deliver, As a Party to the Crime, Because the Circumstantial Evidence Did Not Provide a Basis Upon Which the Jury Could Make Reasoned Choices Between the Factual Possibilities of Guilt and the Factual Possibilities of Innocence.

2. Alternatively, a New Trial Must Be Granted Because the Weight of a Controlled Substance Is an Essential Element of the Offense, and the Trial Court Erroneously Accepted Smith’s Stipulation to the Weight Without Eliciting a Valid Waiver of His Right to Jury Trial on that Element.

Smith lost his sufficiency argument in the court of appeals, but obtained relief on the stipulated-element issue, so in effect the first issue above is raised by Smith and the second by the State on cross-petition. Taking them in that order:

The first issue relates to the standard for reviewing sufficiency of the evidence of a conviction based on circumstantial proof; as Smith’s PFR puts it: “Whether the standards of appellate review for the sufficiency of circumstantial evidence to support a jury verdict are less stringent in criminal cases than in civil cases?” Smith, that is, posits the existence of (and attacks) differential review depending on the nature of the case. He contrasts Merco Distributing Corp. v. Commercial Police Alarm Co., Inc., 84 Wis. 2d 455, 460, 267 N.W.2d 652 (1978) (where “there is no credible evidence upon which the trier of fact can base a reasoned choice between the two possible inferences, any finding of [the consequential issue] would be in the realm of speculation and conjecture”) on the civil side; with, on the criminal side, State v. Poellinger, 153 Wis. 2d 493, 506, 451 N.W.2d 752 (1990) (“the trier of fact is free to choose among conflicting inferences of the evidence and may, within the bounds of reason, reject that inference which is consistent with the innocence of the accused”). In other words, if the evidence is in equipoise – it doesn’t provide a basis for the fact-finder to make “reasoned choices between” the competing factual possibilities – then acquittal is required. The court of appeals, citing Poellinger, saw its role as being to “adopt all reasonable inferences that support the jury’s verdict,” ¶14. The particulars won’t be canvassed here – the larger question of the standard of review being more significant – except to say that Smith argues that each of the facts relied upon as proof guilt (most prominently: his payment of cash to the recipient of mail containing drugs) is too ambiguous to support rejection of an innocent explanation, hence judgement of acquittal is compelled.

The second issue deals with removal of the weight of the THC from jury consideration. Although Smith signed a written stipulation as to weight and agreed during a colloquy that the “crime lab person” wouldn’t have to testify, the court of appeals held that his right to jury trial was violated. The court reasoned as follows. “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.” That is, the weight of the substance affected punishment, therefore Smith had a right to jury trial on that factual issue. And, because the right to jury trial is personal to the defendant, waiver must be on the record; more particularly, waiver must satisfy the colloquy requirements of State v. Anderson, 2002 WI 7, ¶¶23-24, 249 Wis. 2d 586, 638 N.W.2d 301. Those requirements weren’t observed, entitling him to relief. Presumably, then, the supreme court will decide whether waiver of the right to jury on punishment-enhancing facts requires a personal colloquy establishing knowing, intelligent, etc., waiver. The remedy for a violation may also be at issue: new trial or entry of judgment of conviction on non-enhanced offense (see opinion below, ¶¶43-46).

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