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Sufficiency of Evidence: Standard of Review – Possession with Intent to Deliver; Right to Jury Trial – Apprendi – Harmless Error

State v. Roshawn Smith, 2012 WI 91, reversing in part, affirming in part unpublished decisioncase activity

Standard of Review: Sufficiency of Evidence 

¶29  We understand Smith’s central argument regarding the standard of review on the evidentiary question to be summed up in the proposition that a jury verdict of guilt[9] must be reversed on appeal if “[t]he inferences that may be drawn from the circumstantial evidence are as consistent with innocence as with guilt.” State v. Hall, 271 Wis. 450, 452, 73 N.W.2d 585 (1955). That was the law once, but it no longer is.

¶30 In State v. Poellinger we clarified the appropriate appellate framework for the review of evidentiary sufficiency after a jury hands down a guilty verdict.  In that case, we stated both unanimously and unequivocally that when “viewing evidence which could support contrary inferences, 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.”  Poellinger, 153 Wis. 2d at 506 (emphasis altered).

¶32  …  Put simply, Hall permitted an appellate court to unsettle a jury verdict of guilt where a reasonable inference of guilt could have been rationally drawn by the jurors from the evidence when Poellinger forbids it.  In other words, the two cases state manifestly incompatible rules of law and Poellinger corrected the jurisprudence of which Hall was a part.  Therefore, Hall was overruled by Poellinger, it is no longer good law, and Smith may not rely upon it.[10]

The court curiously leaves open the possibility of differential review for civil cases: “we need not draw from civil law jurisprudence.  Indeed, we believe such a comparison would be more distracting and confusing than helpful. Accordingly, we decline to address the standard of review that applies in civil matters,” ¶29 n. 9. It’s simply not resolved, then, whether sufficiency of the evidence to support the judgment in cases such as CHIPS, TPRs, SVPs, is to be controlled by Poellinger. Or, that is, whether as Smith’s brief puts it (p. 17), the “powerful limitations on the validity of circumstantial evidence … supported by more than 110 years of Wisconsin precedents in civil cases” controls.

Possession with Intent to Deliver (THC) – Sufficiency of Evidence, PTAC 

Evidence held sufficient to sustain conviction for possession with intent to deliver, ptac, based on delivery of packages containing THC mailed to the home of David Mehlhorn, who testified this was done “at Smith’s behest.” Stressing that the jury’s function is to take a “common sense” view of all the evidence, the court relies heavily on the following facts for its conclusion of sufficient evidence:

¶39  Testimony at trial established (in relevant part) the following narrative.  Smith introduced Kortbein to Thomas.  Thomas then called Kortbein and asked her if she would be willing to receive packages at her home in return for $500 per delivery.  She agreed, and over the next few weeks received three shipments similar to packages that were later seized by law enforcement and found to contain drugs.  After each shipment arrived, Thomas retrieved it from Kortbein within a few days and Smith gave her $400 within a few more days.  During the periods when the packages were being delivered, Thomas, Kortbein, and Smith were communicating by phone in a manner that the jury heard from Sergeant Poteat was consistent with the “courier relationship.”  Around the same time, Smith asked Mehlhorn to receive packages on his behalf, and several arrived from California and were picked up by Smith and Thomas.

Element – Right to Jury Trial – Apprendi – Harmless Error

Smith’s charge, possession with intent to deliver more than 10,000 grams, keyed penalty to weight; therefore, he was entitled to jury determination on weight of the substance:

¶49  In Apprendi v. New Jersey, the United States Supreme Court set forth the seminal holding that the right to a criminal jury trial enshrined in the Sixth Amendment of the U.S. Constitution requires that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  530 U.S. 466, 490 (2000).  The Apprendi court also explained that such an analysis is properly focused not on the sentence that is actually handed down, but on the punishment that becomes available as a result of the fact in question.  See id. (“It is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.”) (emphasis added) (internal quotation marks, brackets, and citation omitted); see also United States v. O’Brien, 560 U.S. __, 130 S. Ct. 2169, 2174 (2010) (quoting cited language from Apprendi with approval).

¶50  Applying Apprendi to the instant case, it is plain that Smith had a constitutional right to a jury determination of the drug quantity involved in his offense.  For if Smith were found guilty of possession of marijuana with intent to deliver, but there was no evidence as to amount, the highest sentence he could have received would have been three and a half years.  Wis. Stat. § 961.41(1m)(h)1. (stating that possession of two hundred grams or less of THC (the lowest amount mentioned in the statute) with intent to deliver is a Class I felony); § 939.50(3)(i) (stating that the commission of a Class I felony is punishably by “imprisonment not to exceed 3 years and 6 months”).  Because he was found guilty of possession of more than 10,000 grams of THC with intent to deliver, however, Smith was subject to incarceration for up to 15 years.  § 961.41(1m)(h)5. (stating that possession of more than 10,000 grams of THC with intent to deliver is a Class E felony); § 939.50(3)(e) (stating that the commission of a Class E felony is punishable by “imprisonment not to exceed 15 years.”).

¶51  Therefore, the fact in question (whether more than 10,000 grams of THC was involved in the offense) exposed Smith to a higher penalty.  Consequently, he had a constitutional right to a jury determination of the amount.

Because the right to jury determination of weight attached, it follows that this issue couldn’t be removed from the jury without personal waiver by Smith – which is to say, knowing, intelligent and voluntary waiver, ¶¶53-54. Smith’s purported stipulation that the substance weighed more than 10,000 grams fell short of the requisite showing for waiver: there is no showing in the record that Smith “was informed that he had a constitutional right to a jury determination of the drug quantity, let alone that he was waiving such a right,” ¶55.

The error was nonetheless harmless, ¶¶58-75, the court holding that State v. Villarreal, 153 Wis. 2d 323, 450 N.W.2d 519 (Ct. App. 1989) (harmless error analysis inapplicable when fact wrongly removed from jury) was “effectively overruled” by Neder v. United States, 527 U.S. 1 (1999) and State v. Harvey, 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d 189:

¶69  With these principles in mind, there can be no doubt that the error in Smith’s trial was harmless.  The Constitution and Wis. Stat. § 805.18(2) require the same harmless error showing: that it be “clear beyond a reasonable doubt that a properly instructed, rational jury would have found the defendant guilty of the . . . [charged] offense.”  Harvey, 254 Wis. 2d 442, ¶48.  The State easily satisfies that test here.

¶70 To this day, Smith has never disputed that more than 10,000 grams of THC were found in the packages seized from Kortbein.  Quite to the contrary, he expressly admitted in the circuit court no fewer than four times that those packages contained THC in an amount greater than 10,000 grams, and the jury was informed of that admission.  As a result, “it is clear beyond a reasonable doubt that a properly instructed, rational jury would have found [Smith] guilty of the . . . [charged] offense,” “the error [therefore] cannot have contributed to the verdict,” and it was consequently harmless.  Harvey, 254 Wis. 2d 442, ¶48; see also Neder, 527 U.S. at 18 (holding that an error is harmless if it “did not contribute to the verdict,” requiring a court to conclude “beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error”).

Villareal “is overruled only with respect to its holding that a harmless error analysis is inappropriate when a court erroneously finds a fact that should have been found by the jury. It remains good law with respect to its unrelated holdings,” ¶62 n. 19. The court also declines to address State v. Livingston, 159 Wis. 2d 561, 573, 464 N.W.2d 839 (1991) (harmless error inapplicable to invalid jury waiver) and State v. Hauk, 2002 WI App 226, ¶32, 257 Wis. 2d 579, 652 N.W.2d 393 (same), which the State argued “must be overruled,” id.

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