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Terry stop — reasonable suspicion based on presence at house that was subject to surveillance and scene of earlier transaction. Jury instruction — PTAC; identifying person defendant was alleged to be aiding or abetting.

State v. Roland Derliel Graham, 2013AP440-CR, District 1, 12/29/13; court of appeals decision (not recommended for publication); case activity

Reasonable suspicion for seizing defendant

¶15      We conclude that under the totality of the circumstances described by [Officer] Wiesmueller, there was reasonable suspicion to stop Graham. Graham was stopped on property that had been the subject of DEA and police surveillance for suspected drug activity. Earlier on the day of Graham’s arrest, a hand-to-hand drug transaction took place between Bentley [whose home was the subject of the surveillance] and another individual in the general location where Graham parked his car. The individual told Wiesmueller that he purchased drugs from Bentley. Upon returning to Bentley’s residence, Bentley’s car was gone, but two vehicles [one driven by Graham] pulled up within three to five minutes of each other. Almost immediately thereafter, Bentley arrived. Jones [the driver of the other car], presumably upon noticing police officers on the scene, attempted to flee. All of these factors, taken together, give rise to the suspicion that Graham either had committed, was committing, or was about to commit, a criminal act. The trial court did not erroneously exercise its discretion in denying Graham’s motion to suppress evidence.

Jury instructions

The trial court did not err in instructing the jury that the state was required to prove the elements of possession with intent to deliver as a party to a crime with regard to Graham “or another.” Graham argued that the phrase “or another” implies that he “could have been convicted if someone else committed the offense even though [he] was not acting as a party to the crime with that person.” He asked the court to use Jones’s name instead of “or another.” The court refused until, during deliberations, the jury asked about the phrase “or another” in element one (possession); at the request of the state the trial court then told the jury the phrase referred to Jones, but rebuffed Graham’s renewed request that the jury be told “or another” referred to Jones for purposes of all the elements. (¶¶7-9). Applying State v. Lohmeier, 205 Wis. 2d 183, 193-94, 556 N.W.2d 90 (1996), the court of appeals concludes the instructions as a whole, including the answer to the jury’s question, did not mislead the jury:

¶19      …. The trial court was clear that in order to find Graham guilty, the jury must find that Graham either directly committed the crime of possession with intent to deliver, or that Graham aided and abetted another in committing the crime. The trial court issued this instruction both before and after discussing the four elements of possession with intent to deliver marijuana. Contrary to Graham’s claim, the trial court did not imply that Graham could be found guilty “regardless of whether [he] was acting in concert with that person.” Moreover, the trial court explained that it did not name Walter Jones when initially instructing the jury because multiple people were mentioned during the course of the trial. It was up to the jury to determine who Graham aided and abetted. When the jury asked who the term “or another” applied to, it only asked with regard to the first element the State was required to prove—possession. In keeping with the trial court’s earlier statements—that multiple people were mentioned during the trial—the trial court did not err in refusing to instruct the jury that “or another” referred to Jones as to the other elements. The jury was not precluded from asking additional questions. If the jury was confused as to who “or another” referred to regarding the remaining elements, it was free to submit additional questions….

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