State v. Guimarais, 90-0409-CR
| Decision Date | 26 September 1990 |
| Docket Number | No. 90-0409-CR,90-0409-CR |
| Citation | 462 N.W.2d 551,158 Wis.2d 354 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Raibel F. GUIMARAIS, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Appeal from a judgment of the circuit court for Kenosha county: Robert V. Baker, Judge.
Circuit Court, Kenosha County.
AFFIRMED.
Before NETTESHEIM, P.J., and SCOTT and ANDERSON, JJ.
Raibel F. Guimarais, a/k/a "Redbone," appeals from a judgment of conviction for one felony count of delivery of a controlled substance in an amount more than ten grams but not more than thirty grams under secs. 161.41(1)(c)2 1 and 161.16(2)(b), Stats., and one felony count of possession, with intent to deliver, of a controlled substance in an amount of ten grams or less under secs. 161.41(lm)(c)1 and 161.16(2)(b). The defendant was sentenced as a repeater pursuant to sec. 939.62(1)(b), Stats. We affirm the judgment.
A paid informant of the Kenosha Police Department purchased ten "folds" of cocaine from the defendant for $1000. Before the transaction, the defendant, to insure privacy, asked the informant's girlfriend, actually an undercover police officer, to leave. The transaction took place when the informant and the defendant were alone in a car located in a private area of a park. The police made the arrest after the transaction was completed. At the time of the arrest, two additional folds of cocaine were found on the floor of the car's passenger side where the defendant had been sitting.
At trial, the defendant denied having knowledge that the ten folds contained a controlled substance and that the two additional folds found in the car were in his possession. At issue on appeal is whether the evidence is sufficient to support the verdict that the defendant had knowledge that the substance was of a controlled nature and that he had possession of a controlled substance.
The Wisconsin Supreme Court recently clarified the standard of review an appellate court must use when reviewing the sufficiency of circumstantial evidence to support a criminal conviction. The standard of review:
is the same in either a direct or circumstantial evidence case. Under that standard, an appellate court may not reverse a conviction unless the evidence, viewed most favorably to the state and the conviction, 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.
State v. Poellinger, 153 Wis.2d 493, 501, 451 N.W.2d 752, 755 (1990). The state bears the burden of proving each essential element of the crime beyond a reasonable doubt. Id. If there is any possibility the trier of fact could have drawn inferences which support the verdict, an appellate court may not overturn a verdict. Id. at 507, 451 N.W.2d at 758.
The first issue is whether there was sufficient evidence for the trier of fact to conclude beyond a reasonable doubt that the defendant had knowledge that the substance delivered was of a controlled nature. Knowledge or belief that the substance was of a controlled nature is an element of the crime of delivery of a controlled substance. State v. Smallwood, 97 Wis.2d 673, 675-76, 294 N.W.2d 51, 52 (Ct.App.1980).
The evidence showed that the defendant: (1) agreed to sell three-fourths of an ounce of cocaine for $1100; (2) wanted to make the exchange away from the informant's girlfriend and in a private area of a park; (3) waited in the automobile while the informant weighed the substance on a scale; (4) allowed the informant to open a package to examine the substance; and (5) received $1000 in cash for ten folds of a substance wrapped in...
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