State v. Ponce-Sanchez, No. 2008AP588-CR (Wis. App. 1/21/2009), 2008AP588-CR.

• Decision Date: 21 January 2009
• Docket Number: No. 2008AP588-CR.,2008AP588-CR.
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Ancelmo Ponce-Sanchez, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

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State of Wisconsin, Plaintiff-Respondent, v. Ancelmo Ponce-Sanchez, Defendant-Appellant.

No. 2008AP588-CR.

Court of Appeals of Wisconsin, District III.

Opinion Filed: January 21, 2009.

APPEAL from a judgment and an order of the circuit court for Brown County: DONALD R. ZUIDMULDER, Judge. Affirmed.

Before Hoover, P.J., Peterson and Brunner, JJ.

¶ 1 PER CURIAM.

Ancelmo Ponce-Sanchez appeals a judgment convicting him of possessing more than forty grams of cocaine with intent to deliver as a party to a crime and maintaining a drug trafficking place. He also appeals an order denying his postconviction motion. Ponce-Sanchez contends the State failed to prove he had knowledge of the drugs and drug activities or had dominion and control over the drugs. Therefore, he contends the guilty verdicts are based entirely on his status as the lessee of the premises. Based on that contention, he argues the charges are multiplicitous and the jury was improperly instructed. Because we reject the underlying premise that the convictions were based solely on Ponce-Sanchez's status as lessee and the remaining issues were not properly preserved, we affirm the judgment and order.

¶ 2 Police executed a search warrant at Ponce-Sanchez's residence. They found cocaine in six separate locations, three in the basement and three on the main floor. They found small amounts of cocaine in both bedrooms, one quarter ounce of cocaine in a linen closet, and 323.89 grams of cocaine in bags in the basement. Ponce-Sanchez's fingerprints were found on a paper bag and a plastic baggie containing the cocaine found in the basement. Officers also found two electronic scales and a "grinder" that appeared to be used to modify tires for the purpose of drug smuggling. An officer testified the total amount of cocaine seized would supply 13,000 doses with a street value of approximately $130,000.

¶ 3 Immediately after the search, Ponce-Sanchez told an officer he lived in the house for approximately five or six months and his brother, Julian, had moved in approximately three or four months ago. A cousin also lived in the house and slept in the living room. Ponce-Sanchez told the officer his bedroom was the southeast bedroom, the one where officers found a DVD jacket with a plastic baggie of cocaine and some loose cocaine inside.

¶ 4 At trial, Julian, who had already been convicted of possessing cocaine with intent to deliver, testified the drugs were his and Ponce-Sanchez knew nothing about the drugs in the house or the drug business. He testified the southeast bedroom was his, and also took responsibility for the cocaine found in the other bedroom. He also testified he was living in the house first and Ponce-Sanchez moved in later. Ponce-Sanchez also testified he knew nothing of Julian's cocaine business and had never seen drugs in the residence. He testified he and Julian moved into the house at approximately the same time. He explained his fingerprints on the bags by testifying he would grab whatever bag was available in the kitchen when he packed his lunch and...