State v. McCoy

• Court: Wisconsin Court of Appeals
• Writing for the Court: Before EICH; EICH
• Citation: State v. McCoy, 568 N.W.2d 652, 211 Wis.2d 890 (Wis. App. 1997)
• Decision Date: 08 May 1997
• Docket Number: No. 96-2321-CR,96-2321-CR
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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. Willie McCOY, Defendant-Appellant.

Page 652

568 N.W.2d 652

211 Wis.2d 890

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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. Willie McCOY, Defendant-Appellant.

No. 96-2321-CR.

Court of Appeals of Wisconsin.

May 8, 1997.

APPEAL from a judgment of the circuit court for La Crosse County: RAMONA A. GONZALEZ, Judge. Affirmed in part; reversed in part and cause remanded.

Before EICH, C.J., VERGERONT and ROGGENSACK, JJ.

EICH, C.J.

Willie McCoy appeals from a judgment convicting him of conspiring to deliver crack cocaine in excess of 100 grams within 1000 feet of a school (party to the crime), in violation of §§ 161.41(1)(cm)5, 161.49(1),(2)(a), ¹ and 939.05(1), STATS. McCoy's sentence was subject to enhancement under § 161.48, STATS., because he was a repeat drug-law offender, and also under § 161.49 because, as indicated, the offense occurred within 1000 feet of a school.

On appeal, McCoy argues that: (1) the State improperly "aggregated" several separate incidents of delivery of smaller amounts of cocaine into a single count of conspiring to deliver more than 100 grams; (2) the trial court erroneously instructed the jury with respect to the existence of a conspiracy; and (3) the court erred in the manner in which it applied the sentence enhancers.

We conclude that McCoy waived any objection to the 100-gram charge by failing to raise the issue in the trial court, and we reject his claim of instructional error. We also conclude, however, that the court improperly applied one of the penalty-enhancement statutes. We therefore affirm in part and reverse in part, and remand to the trial court for further proceedings.

The facts are not in dispute. Beginning in the summer of 1994, McCoy allowed several people, including Emma Basada, Juan Cathey and Juan's uncle, Oliver Cathey (known as O.J.), to distribute crack cocaine from his house in La Crosse, which was located approximately 700 feet from an elementary school. Juan Cathey and Basada made at least ten trips to La Crosse between June and November 1994, each time bringing an ounce (approximately twenty-eight grams) of cocaine, which they had purchased in Milwaukee for $800, and selling it in La Crosse for approximately $4600. Juan Cathey and Basada and, on occasion, O.J. Cathey sold approximately half the cocaine from McCoy's house and the other half elsewhere. McCoy was "paid" with cocaine for his role as a "middleman," which involved lining up purchasers and collecting money. Juan Cathey testified that there was an "understanding" that he and Basada could distribute cocaine from McCoy's house; each time they left for Milwaukee to make a purchase, he would tell McCoy when they would return.

The jury convicted McCoy of the charged offense and he was sentenced to fifteen years in prison, the first six years to be served without eligibility for parole.

I. Aggregation of Charges: Waiver

Citing State v. Spraggin, 71 Wis.2d 604, 613, 239 N.W.2d 297, 305 (1976) (quotations and quoted sources omitted), where the supreme court recognized that "[r]eceiving ... different articles of stolen property at different times and on separate and unconnected occasions, ... cannot be prosecuted as one crime....," McCoy argues first that the delivery charges were improperly aggregated to total 100 grams because each transaction was a separate unrelated incident. The State argues waiver: that McCoy is attempting to raise the aggregation issue for the first time on appeal, which he may not do. See State v. Dietzen, 164 Wis.2d 205, 212, 474 N.W.2d 753, 755, (Ct.App.1991) (failure to raise an argument in the trial court waives any objection on appeal).

Conceding that he did not object to the charge with particularity, McCoy claims that the following remark his attorney made at the instruction conference should be considered sufficient to preserve the claimed error for appeal:

[I]t still doesn't make any sense. It's just complexity, Your Honor, and I don't see any reason for it except to say that my client is the root of all evil and brought all the cocaine into La Crosse, and the reason that it's all here is because of Willie McCoy....

Whatever the import of such a general remark, McCoy's counsel went on to expressly state that he had no objection to the trial court reading WIS J I-CRIMINAL 6001, which instructs the jury to consider whether the amount of cocaine involved was "more than 100 grams." At the close of the instruction conference, counsel informed the court that he "had the opportunity to review the verdict form"--which contains the "100 grams" question--and, when asked whether he had any objection, replied: "None, Your Honor." The jury was thus asked, without objection by McCoy, to answer the question, and the supreme court has held that, in such circumstances, we lack authority to review the instruction and verdict. State v. Schumacher, 144 Wis.2d 388, 402, 408-09, 424 N.W.2d 672, 677, 679-80 (1988). ²

We conclude, therefore, that McCoy waived any argument that the 100-gram charge resulted from an improper aggregation of several lesser offenses.

II. Jury Instruction: Conspiracy

McCoy also objects to the trial court's conspiracy instruction insofar as it includes O.J. as a principal. ³ He maintains that the evidence was insufficient to support instructing the jury on a single conspiracy involving Juan Cathey, Basada and O.J. Cathey. When considering a challenge to the evidence supporting an instruction, we view the supporting evidence in the light most favorable to the party requesting it, which here is the State. State v. Gaudesi, 112 Wis.2d 213, 223, 332 N.W.2d 302, 306 (1983). The question is whether a reasonable construction of the evidence would allow the jury to find the fact suggested by the instruction. State v. Coleman, 206 Wis.2d 198, 212-13, 556 N.W.2d 701, 706-07 (1996).

McCoy claims that because O.J. Cathey distributed some of his cocaine separately from that of Juan Cathey and Basada, there could be no common objective, and thus no conspiracy, among the three of them. He says, in effect, that there really were two or more conspiracies, and the court was required to frame its instructions to ensure that the jury could "separately identify the scope and the participants of each conspiracy so as not to impute the acts or parties of ... one [conspiracy] to any other." ⁴ And because the court did not do this, but instead presented the case to the jury on a single-conspiracy theory, he claims his right to a fair trial was violated.

We disagree. A conspiracy exists when the parties (1) knowingly join and participate in "a single overriding scheme"; (2) intend to aid in the realization of an illegal objective; and (3) seek a common end through the comprehensive plan. Section 939.31, STATS.; Bergeron v. State, 85 Wis.2d 595, 606-07, 271 N.W.2d 386, 389 (1978). ⁵ We believe there was evidence in this case from which the jury could properly find that a single conspiracy existed--one to which O.J. Cathey was a party. There was testimony, for example, that when Juan Cathey told O.J. Cathey, his uncle, about the opportunities available for profiting from drug sales in La Crosse, O.J. Cathey began showing up at McCoy's to also distribute the cocaine. Juan Cathey and O.J. Cathey were together at McCoy's residence at the same time on at least one occasion, and users were continuously coming to the house asking for cocaine, at least once while O.J. Cathey was present. Viewing this evidence in the light most favorable to the State's position, we believe a jury could reasonably conclude that O.J. Cathey had joined with Juan Cathey, Basada and McCoy to accomplish a common goal of distributing cocaine from McCoy's house and that each had an interest in the overall success of the operation.

Even if Juan Cathey, Basada and O.J. Cathey did not sell to the same people at the same time, or share in the same proceeds--or even if they occasionally disagreed--the cocaine they distributed at McCoy's house created a steady supply of potential customers from which they all profited. We agree with the State that "each ... was aware of the other's distribution of cocaine through McCoy['s] residence and [each] benefited from it." We see no error in adding O.J. Cathey's name to the conspiracy instruction. ⁶

III. Sentence Enhancement

McCoy next challenges the manner in which the trial court applied the applicable penalty enhancers to his sentence. ⁷ It is a matter of statutory interpretation and application--a question of law which we review de novo. State v. Sostre, 198 Wis.2d 409, 414, 542 N.W.2d 774, 776 (1996). The primary goal of statutory construction is to ascertain the legislature's intent, and the first step in the process is to look to the plain language of the statute. Id. And where the import of that language is clear and unambiguous, we simply apply the statute to the facts of the case. Cary v. City of Madison, 203 Wis.2d 261, 264-65, 551 N.W.2d 596, 597 (Ct.App.1996)

McCoy was convicted of violating § 161.41(1)(cm)5, STATS., which carries a minimum penalty of ten years and a maximum of thirty years' imprisonment. Section 161.41(1)(cm) is subject to a "repeater" or "habitual criminality" enhancer set forth in § 161.48(2), STATS., which provides, among other things:

If any person is convicted of a 2nd or subsequent offense under this chapter that is specified in s. 161.41(1)(cm), .... any applicable minimum and maximum fines and minimum and maximum periods of imprisonment under s. 161.41(1)(cm), ... are doubled.

(Emphasis added.) The offense is also subject to enhancement if it occurs near a school. Section 161.49, STATS., states:

(1) If any person violates s. 161.41(1)(cm), ... by distributing ... a controlled substance ... within 1,000 feet of any private or public school premises ..., the maximum term of imprisonment...