State v. Anderson, 91-3081-CR

• Decision Date: 25 March 1993
• Docket Number: No. 91-3081-CR,91-3081-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Jay P. ANDERSON, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 328

500 N.W.2d 328

176 Wis.2d 196

STATE of Wisconsin, Plaintiff-Respondent, v. Jay P. ANDERSON, Defendant-Appellant.

No. 91-3081-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Aug. 6, 1992.

Opinion Released March 25, 1993.

Opinion Filed March 25, 1993.

Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.

SUNDBY, Judge.

Jay Anderson appeals from a judgment convicting him of delivery of a controlled substance (marijuana) to persons under eighteen years of age and more than three years his junior, contrary to sec. 161.46(3), Stats. He also appeals from an order denying his motion for postconviction relief based on his claim that he was denied a fair trial because of ineffective assistance of his trial counsel. We affirm the judgment and order.

The elements of the crime of delivery of a controlled substance (marijuana) are: (1) that the defendant delivered a controlled substance; (2) that the substance was marijuana; and (3) that the defendant knew or believed that the substance was marijuana. Wisconsin J I--Criminal 6020. Anderson claims that the evidence was insufficient to prove that the substance he delivered was marijuana. He also claims that he was denied effective assistance of counsel when his trial counsel failed to object to the admission of Anderson's in-custody statement which contained evidence of other crimes.

The case against Anderson depends entirely on circumstantial evidence because the controlled substance Anderson is alleged to have delivered was used up during and after delivery and could not be tested. In reviewing the sufficiency of the evidence to support a conviction in circumstantial evidence cases, we may not substitute our judgment for that of the trier of fact unless the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt. State v. Poellinger, 153 Wis.2d 493, 507, 451 N.W.2d 752, 755 (1990). We conclude that the jury, acting reasonably, could have found Anderson guilty beyond a reasonable doubt. We further conclude that Anderson's in-custody statement was admissible, and therefore we do not reach the issue of whether Anderson was denied effective assistance of counsel because his trial counsel failed to object to the admission of that statement.

On February 8, 1990, Anderson, Dave Tesar, D.M. and J.C. drove to Percy Werthwein's house to purchase marijuana. Anderson entered the house alone and gave Werthwein $5 for a rolled "joint" containing green leafy material which Werthwein testified he believed was marijuana. The group returned to Anderson's trailer and smoked the joint. After his arrest and while in custody, Anderson gave a taped interview to an officer of the Prairie du Chien police force. During that interview he admitted that the substance he purchased was marijuana, that the group "sat there and got high," and that what they smoked was "good shit."

Anderson concedes that in some circumstances expert testimony may not be necessary to prove that a substance is a controlled substance. He cites State v. Wind, 60 Wis.2d 267, 208 N.W.2d 357 (1973), but points out that in that case there were tests of the substance which were not specific for marijuana. Id. at 272, 208 N.W.2d at 360. Anderson also notes that the nature of a substance may be established by an experienced user of a particular type of drug. State v. Johnson, 54 Wis.2d 561, 567, 196 N.W.2d 717, 719 (1972). In Johnson, the court said that an experienced user of LSD had special knowledge of the drug and was qualified to give his opinion as to whether a substance was LSD. The court said:

While a chemical analysis may be a more scientific test to determine the nature of a drug, nevertheless as a practical matter in this type of case where the substance has been ingested, no such test is available. Without the use of satisfactory circumstantial evidence, there could be no convictions in this type of case. When a chemical analysis is impossible, it need not be shown and if the circumstantial evidence is sufficiently strong, it may support a verdict as to the nature of the drug without the aid of medical testimony.

Id. at 567, 196 N.W.2d at 720.

Anderson contends that the circumstantial evidence in this case was not sufficiently strong to support the jury's verdict that the substance Anderson delivered was marijuana. First, he attacks the testimony of Wertheim as lacking in foundation. However, Anderson's trial counsel did not object to Wertheim's answer to the following question:

Q. When you allowed Mr. Anderson to leave your house with it, what did you believe it to be?

A. Marijuana.

Any objection to this testimony was waived. State v. Edelburg, 129 Wis.2d 394, 400, 384 N.W.2d 724, 727 (Ct.App.1986).

In any event, if the admission of Wertheim's testimony was error, it was harmless. The record, without Wertheim's testimony, amply supports the jury's verdict. David Tesar testified that prior to the summer of 1989, and prior to February 1990, he had consumed marijuana "a lot." The "joint" made Tesar light-headed and tasted and smelled different from cigarettes. Tesar testified that marijuana has a distinctive aroma. D.M. testified that the substance he smoked at Anderson's trailer gave him a "buzz," and that it had an aroma different from tobacco. J.C. testified that smoking the "joint" caused him to feel dizzy and hungry after only one or two puffs.

According to Anderson's in-custody statement, he had been making phone calls to the interviewing police officer as to the delivery by others of narcotics over a two or three year period prior to February 8, 1990. On three or four occasions, Anderson had provided the officer with information as to drug dealing.

Anderson admitted that he had obtained "dope" from Percy Werthwein and smoked it in his trailer with Tesar, J.C. and D.M.: he said they "[s]at there and got high." There was another adult present, Randy Meyers, who had an eighth of an ounce of marijuana with him which was also smoked. Anderson admitted to several other instances in which he had used marijuana.

Anderson told the interviewing officer that he got most of his marijuana from a...