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Evidence was sufficient to support verdicts for possession of drugs with intent to deliver

State v. Orlando Lloyd Cotton, 2016AP2211-CR, District 1, 2/13/18 (not recommended for publication); case activity (including briefs)

Cotton was convicted of being party to the crime of possession of cocaine and marijuana with intent to deliver and keeping a drug house. He unsuccessfully argues the evidence wasn’t sufficient to convict him and that his trial lawyer was ineffective.

Cotton and three other men were at a residence where a search warrant was executed. The residence had reinforced, sealed doors, a surveillance camera, and a “service hole,” and the search turned up 500 grams of pot, some cocaine, packaging material, digital scales, and cash, along with a jacket with personal property linked to Cotton and keys to Cotton’s car. Cotton said the residence was a rental property he managed for his mom and that he was just there to do some repairs; he denied selling drugs, but admitted to using drugs at the home. (¶¶2-6).

Cotton’s challenge to the lack of evidence of his possession of the drugs with intent is premised on the fact that his fingerprints were not lifted from any of the evidence. This argument founders on the fact that he was convicted as a party to the crime of possession of marijuana and cocaine. a conviction as a party to a crime “does not turn on whether [the defendant’s] fingerprints or DNA were not found on any of the recovered items.” State v. Dukes, 2007 WI App 175, ¶23, 303 Wis. 2d 208, 736 N.W.2d 515. Even if the State is unable to show that Cotton personally possessed the drugs with the intent to personally deliver them, to be found guilty as party to the crime the jury need only conclude that he intended to aid and abet in the commission of the crime, and there is sufficient evidence to reach that conclusion. (¶¶18-19).

As to the conviction for keeping a drug house, Cotton relies on an unpublished case, State v. Omot, 2010AP899-CR, unpublished slip op. (Wis. Ct. App. Dec. 23, 2010). But the court isn’t persuaded Cotton’s case is like Omot’s. In Cotton’s case the property appears to have been used primarily as a drug house and was not Cotton’s residence. Furthermore, Cotton admitted that he managed the property for his mother, and police found a large set of keys in his jacket pocket, which is consistent with that admission. Cotton also admitted to allowing an individual to live in the property without his mother’s knowledge, indicating his measure of control over the property. Thus, there was sufficient evidence to support the jury’s finding that Cotton was maintaining the property as a drug house. (¶¶21-22).

Cotton also raises six distinct claims of deficient performance, five of them highly fact specific arguments about failures to object to or introduce certain evidence and one about trial counsel’s reference during closing to prejudicial facts not in evidence. The court of appeals holds that counsel was either not deficient or that, even if he was, Cotton wasn’t prejudiced. (¶¶28-43).

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