State v. Henry E. Routon, 2007 WI App 178, PFR filed
For Routon: Jefren E. Olsen, SPD, Madison Appellate
¶19 The crime that is the subject of the conspiracy need not be committed in order for a violation of Wis. Stat. § 939.31 to occur; rather, the focus is on the intent of the individual defendant. State v. Sample, 215 Wis. 2d 487, 501-02, 505, 573 N.W.2d 187 (1998). For this reason, a person can be convicted under § 939.31 even if the other party to the conspiracy is an undercover agent who did not intend to commit the crime. See id. Thus, the fact that Agent Smith did not intend to manufacture psilocybin/psilocin does not preclude a determination that Routon is guilty of conspiracy.
¶22 Wisconsin case law has addressed a sufficiency-of-the-evidence challenge where the conspiracy charge is to distribute a controlled substance. State v. Smith, 189 Wis. 2d 496, 501-04; 525 N.W.2d 264 (1995), establishes that the sale of a small amount consistent with personal use is not sufficient to transform a possession charge against the buyer into a conspiracy to distribute. Rather, the State must prove an agreement between the buyer and seller for further delivery to a third person, and “mere knowledge by the supplier of the purchaser’s intent to further distribute … is not enough.” Cavallari, 214 Wis. 2d at 52 (emphasis original).