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Sufficiency of the evidence. Plain error — leading questions, closing arguments, jury instructions.

State v. Brian L. Jackson, 2012AP1008-CR, District 1, 5/14/13; court of appeals decision (not recommended for publication); case activity

Sufficiency of the evidence

In a necessarily fact-specific discussion (¶¶4-5, 10-12), the court of appeals holds there was sufficient evidence to support Jackson’s conviction for being a felon in possession of a firearm despite the existence of evidence to the contrary, which included the lack of Jackson’s DNA on the gun (and other objects) he supposedly discarded during a foot pursuit and the fact the officers lost sight of the men they were pursuing at various times during the chase:

 ¶13      The … testimony of Officers Dukic and Flannery was more than sufficient for a jury to conclude that Jackson did in fact possess the gun in question.  Even though there are contrary inferences the jury could have drawn from the evidence, this does not mean that the jury could not have concluded that Jackson did in fact possess the gun.  Viewing the evidence most favorably to the State and the conviction, as we are required to do, see [State v.] Booker, [2006 WI 79,] 292 Wis. 2d 43, ¶22, we cannot conclude that it “‘is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt[,]’” see id. (citation omitted).  Therefore, we cannot reverse his conviction.  See id.

Plain error

In another fact-specific discussion, the court rejects Jackson’s arguments that several alleged errors which were not objected to at trial constitute “plain error”–that is, obvious and substantial error so fundamental that a new trial or other relief must be granted even though the action was not objected to at the time. State v. Jorgensen, 2008 WI 60, ¶21, 310 Wis. 2d 138, 754 N.W.2d 77. Specifically, the court rejects claims that: (a) the prosecutor asked improper leading questions and made improper remarks during closing argument (¶¶19-22, 24-29); (b) the trial court erred in prohibiting the arresting officer from testifying about the DNA report (the crime lab analyst testified about the DNA report instead) (¶¶31-35); and (c) the standard jury instruction regarding possession was confusing and the trial court should have instructed the jury regarding identification (¶¶36-38).

Jackson apparently also raised these issues in a postconviction motion alleging ineffective assistance of counsel, but the circuit court denied him an evidentiary hearing. While he argued the trial court erred in denying him a hearing, the court of appeals rejects the claim because he does not allege facts showing that he was entitled to a hearing. (¶40). See State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433 (defendant must allege facts sufficient to entitle him to relief; conclusory allegations will not suffice).

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