State v. Poellinger

• Decision Date: 28 February 1990
• Docket Number: No. 88-1470-CR,88-1470-CR
• Citation: 451 N.W.2d 752,153 Wis.2d 493
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Karin S. POELLINGER, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 752

451 N.W.2d 752

153 Wis.2d 493

STATE of Wisconsin, Plaintiff-Respondent, v. Karin S. POELLINGER, Defendant-Appellant-Petitioner.

No. 88-1470-CR.

Supreme Court of Wisconsin.

Submitted on Briefs Nov. 1, 1989.

Decided Feb. 28, 1990.

Ruth S. Downs, Asst. State Public Defender, for defendant-appellant-petitioner.

Thomas J. Balistreri, Asst. Atty. Gen. and Donald J. Hanaway, Atty. Gen., for plaintiff-respondent.

CECI, Justice.

This case is before the court on petition for review of an unpublished decision of the court of appeals, dated January 19, 1989, 148 Wis.2d 953, 438 N.W.2d 597. The court of appeals affirmed a judgment of conviction entered by the La Crosse county circuit court, Peter G. Pappas, Circuit Judge, after a jury found the defendant, Karin S. Poellinger, guilty of possession of marijuana, contrary to sec. 161.41(3), Stats., and of possession of cocaine, contrary to sec. 161.41(3m) Stats. Two issues are presented for review. The first issue is whether the court of appeals correctly decided that the standard for reviewing the sufficiency of the evidence to support a conviction is the same in both circumstantial and direct evidence cases. We hold that the court of appeals correctly decided that the standard of review is the same. The second issue is whether the court of appeals correctly decided that there was sufficient evidence presented at trial to support the jury's finding, beyond a reasonable doubt, that the defendant knew that she possessed cocaine. We hold that the court of appeals correctly decided that the evidence was sufficient. We therefore affirm the decision of the court of appeals.

The facts of this case are undisputed. On January 8, 1988, at approximately 11:30 p.m., the defendant was traveling as a passenger in a pickup truck in La Crosse Wisconsin. A police officer stopped the truck after he observed that its windows were frosted over and were not adequately scraped. As the officer approached the truck to advise the occupants of the reason for the stop, he noticed movement on the passenger side of the vehicle, and, upon reaching the truck, he smelled the odor of burned marijuana. The officer asked the defendant to produce the marijuana, but she denied that any marijuana had been smoked in the truck.

After obtaining the defendant's consent, the officer searched her purse. The purse contained a wooden lacquered case, a small glass vial, a carpet knife blade, and a woman's metal compact with two mirrors. The officer found a marijuana pipe and a substance which appeared to be marijuana inside the wooden lacquered case and recognized the glass vial as the type used to transport small amounts of cocaine. He also observed that the mirrors of the metal compact appeared to have been recently licked or wiped off wet, leaving a powdery residue. At that point, the officer placed the defendant under arrest for possession of marijuana and cocaine.

The contents of the defendant's purse were sent to the Wisconsin Department of Justice Crime Laboratory Bureau for substance analysis. The wooden lacquered case was found to contain .2 grams of marijuana, and the glass vial was found to contain residual amounts of cocaine in the threads holding the cap. Neither the compact nor the carpet knife blade contained any amount of a controlled substance.

The defendant testified at her trial that she was aware that the glass vial had contained cocaine at one time, but she thought that the vial was empty at the time of her arrest. She testified that she had purchased the cocaine in the vial for her boyfriend's birthday on August 1, 1987, had used the cocaine with him, and had placed the vial in her purse. The arresting officer testified that the wooden lacquered case, the glass vial, the carpet knife blade, and the mirrors were consistent with items used by a person taking drugs. The officer was unwilling to give an opinion as to whether the defendant had recently used cocaine or whether she knew that there was cocaine in her purse. An analyst from the Wisconsin Department of Justice Crime Laboratory Bureau testified that when he removed the cap of the vial to test for a controlled substance, he observed a white powdery residue on the threads of the vial holding the cap.

A jury found the defendant guilty of possession of marijuana, contrary to sec. 161.41(3), Stats., and of possession of cocaine, contrary to sec. 161.41(3m), Stats.

The defendant appealed her conviction of possession of cocaine, arguing that under Kabat v. State, 76 Wis.2d 224, 227, 251 N.W.2d 38 (1977), a defendant cannot be convicted of possession of a controlled substance unless the state proves not only that the defendant was in possession of a dangerous drug, but also that he or she knew or believed that he or she was. The defendant contended that the evidence presented at her trial to prove her knowledge of possession of the cocaine was insufficient to sustain her conviction. She also argued that because that evidence was entirely circumstantial, it had to exclude every reasonable hypothesis of innocence in order to be sufficient to prove guilt beyond a reasonable doubt. The defendant contended that her possession of an apparently empty bottle permitted a reasonable inference that she did not know that she possessed cocaine and was, therefore, insufficient to support her conviction.

The court of appeals stated that when a defendant challenges the sufficiency of the evidence to support a conviction, the standard of review is whether that evidence, viewed in the light most favorable to the state, is so insufficient in probative value and force that as a matter of law no reasonable jury could have found guilt beyond a reasonable doubt. The court observed that where, as here, the evidence in support of the conviction was entirely circumstantial, ¹ the standard of review might differ because circumstantial evidence must be strong enough to exclude every reasonable hypothesis of the defendant's innocence. The court concluded, however, that that rule was not an appellate test and that the standard for reviewing the sufficiency of the evidence was the same in both direct and circumstantial evidence cases.

The court noted that the defendant's possession of an apparently empty vial permitted an inference that she did not know that she possessed cocaine. The court concluded, however, that the jury could reject testimony and reasonable inferences which support a reasonable hypothesis of innocence, and, therefore, the only question was whether there was a reasonable hypothesis of guilt. The court found that the jury, taking into account its knowledge in the affairs of life, could have reasonably concluded that it is a matter of common knowledge that unless one takes extraordinary measures to remove the contents of a bottle after all usable amounts are gone, some of those contents (whether peanut butter, salt, sand, or cocaine) will remain behind. The court held that this common knowledge, together with the defendant's admission that the vial once contained cocaine, was sufficient to establish that she knew that she possessed cocaine, albeit a very small amount.

The defendant petitioned this court for review of the decision of the court of appeals, which we granted.

The first issue on review concerns the standard which an appellate court must apply in reviewing the sufficiency of circumstantial evidence to support a criminal conviction. We hold that the standard for reviewing the sufficiency of the evidence to support a conviction 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. We believe that this issue is before us today because of confusion concerning the oft-stated rule that circumstantial evidence must be strong enough to exclude every reasonable hypothesis of innocence. We therefore begin our analysis of the first issue presented in this case with a discussion of that rule in circumstantial evidence cases.

In order to overcome the presumption of innocence accorded a defendant in a criminal trial, the state bears the burden of proving each essential element of the crime charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). It is well established that a finding of guilt may rest upon evidence that is entirely circumstantial and that circumstantial evidence is oftentimes stronger and more satisfactory than direct evidence. See Clark v. State, 62 Wis.2d 194, 197, 214 N.W.2d 450 (1974). Regardless of whether the evidence presented at trial to prove guilt is direct or circumstantial, it must be sufficiently strong and convincing to exclude every reasonable hypothesis consistent with the defendant's innocence in order to meet the demanding standard of proof beyond a reasonable doubt. Schwantes v. State, 127 Wis. 160, 176, 106 N.W. 237 (1906).

When circumstantial evidence is used to prove guilt, the Wisconsin courts ordinarily ² follow the practice of instructing the jury that it must acquit the defendant unless, after a careful consideration of all the evidence, that evidence cannot be reconciled to support any reasonable theory consistent with the innocence of the accused. ³ This instruction is not intended to reflect any special infirmity in the nature of circumstantial evidence but is intended to impress upon the jury the serious nature of its deliberations and decision and to emphasize the rule that an accused person is entitled to go free unless guilt is established beyond a reasonable doubt. See id.

The rule that the evidence must exclude every reasonable hypothesis of innocence does not mean that if any of the...