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COURT OF APPEALS DECISION DATED AND RELEASED November 27, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3601-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ABRAHAM H. SALAZAR,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Manitowoc County: DARRYL W. DEETS, Judge. Affirmed.
Before Anderson, P.J.,
Nettesheim and Snyder, JJ.
PER
CURIAM. Abraham H. Salazar appeals from a judgment convicting
him of conspiracy to deliver and possession of tetrahydrocannabinol (THC) with
intent to deliver within 1000 feet of a school in an amount exceeding 25 grams
and from an order denying his motion for postconviction relief. On appeal, he challenges the introduction of
a photograph of his alleged drug supplier and the severity of his
sentence. We reject both challenges and
affirm.
Salazar was charged with
one count of conspiracy to deliver THC, possessing more than 25 grams of THC
with intent to deliver within 1000 feet of a school and conspiracy to deliver
cocaine.[1] Salazar lived with Diana Schindler and James
Basler and shared a bedroom with their infant.
During a search of the residence, officers found marijuana and cocaine. A quantity of marijuana was found in a laundry
basket located in Salazar's room.
Officers also seized items from the rest of the house normally
associated with the packaging, processing and selling of controlled
substances. The officers also found
$4700 in cash, $1500 of which was found in a suit coat hanging in Salazar's
bedroom closet. An officer testified
that the amount of marijuana and money found in Salazar's bedroom indicated
that he possessed marijuana for distribution, not for personal use.
Salazar filed a motion
in limine to prevent the use of any photographs other than fifteen photographs
defense counsel viewed prior to trial.
The prosecutor responded that counsel had had an opportunity to review
all of the pictures and that the photographic evidence would consist of fifteen
pictures on a contact sheet. Defense
counsel stated that he believed these would be the only photographs offered
into evidence. The prosecutor responded
that those were the only photographs of which he was aware.
At the outset of
Schindler's testimony, the State offered Exhibit 15, a photograph of Salazar's
alleged drug supplier. Defense counsel
objected to Exhibit 15 on the grounds that he had specifically moved the trial
court to determine which photographs would be admissible at trial, he was told
that the fifteen photographs were the only photographs which would be used, and
he was not told that Exhibit 15, an additional photograph, would be used. Defense counsel admitted seeing Exhibit 15
when he saw the rest of the pictures.
The prosecutor stated that he reviewed the photographs with defense
counsel the previous Friday, defense counsel saw the photograph offered as
Exhibit 15 and was told that the State would likely offer that picture into
evidence. The prosecutor did not
realize that Exhibit 15 was not in the group of photographs discussed in the
context of Salazar's motion in limine.
The court ruled that defense counsel saw the photograph the previous
Friday and therefore there was no surprise.
Schindler testified that
Salazar and Basler sold marijuana from the home. Schindler identified the individual in Exhibit 15 as Salazar's
drug supplier and stated that he was the only individual from whom Salazar and
Basler received drugs. Another witness,
Kenneth Root, testified that the individual depicted in Exhibit 15 had
visited the Basler-Schindler residence, and he observed Basler, Salazar and
another give money to him. Another
witness, Andrew Palomino, identified the individual in Exhibit 15 but never saw
him deliver drugs or receive money from anyone in the Basler-Schindler
household. Other witnesses were unable
to identify the individual in Exhibit 15.
The admission of
evidence is within the trial court's discretion. State v. Lindh, 161 Wis.2d 324, 348, 468 N.W.2d
168, 176 (1991). We will uphold the
exercise of discretion if there is a reasonable basis for the trial court's
determination. Id. at
349, 468 N.W.2d at 176.
The outcome of Salazar's
motion in limine was an apparent understanding between the parties that fifteen
photographs were the only photographs the prosecutor intended to offer into
evidence. The trial court never
actually ruled on Salazar's motion.
When Exhibit 15, the picture of the alleged drug supplier, became an
issue, the trial court was required to rule on its admissibility. The court made an implicit finding that
there was no surprise to the defense.
Salazar protests the use
of the photograph to support the State's contention that he was involved in a
drug conspiracy. Mark Anderson of the
Manitowoc County Metro Drug Unit testified that Basler said his drug supplier
was Mexican. Anderson testified that
after the search warrant was executed, officers monitored the Basler-Schindler
residence to see if the supplier would appear.
The individual in Exhibit 15 appeared, and when his vehicle was stopped,
officers found a note with Salazar's name on it and a phone number for
Salazar's brother.
We conclude that the
photograph was proper evidence of the existence of an alleged drug dealer and a
conspiracy and was not particularly prejudicial to Salazar. Two witnesses identified the individual in
the photograph and described conduct from which the jury could infer a drug
conspiracy: the delivery of drugs on
one occasion and the receipt of money from the recipient(s) of the drug
delivery on another. The testimony
linked the events to a photograph of an involved party. Furthermore, the trial court's finding that
defense counsel was not surprised by Exhibit 15 is not clearly erroneous. We conclude that the trial court had a
reasonable basis for admitting Exhibit 15 into evidence and did not misuse its
discretion.
Salazar claims that his
sentence is unduly harsh because the court imposed the presumptive minimum
three-year term after suggesting that a lesser jail term would have been more
appropriate. The court imposed the
minimum sentence of three years on count two (intent to deliver within 1000
feet of a school) and a consecutive period of eighteen months of probation on
count one (conspiracy to deliver a controlled substance).
Section 161.438, Stats.,[2]
makes the minimum sentence under ch. 161, Stats.,
a presumptive minimum sentence. The
court may impose a sentence less than the presumptive minimum or may impose
probation only if the court finds "that the best interests of the
community will be served and the public will not be harmed and if it places its
reasons on the record." Id.
In his postconviction
motion, Salazar argued that he should have received probation instead of a
three-year sentence for possession of THC with intent to deliver. He argued that there were factors which
would have allowed the trial court to place him on probation rather than
imposing the presumptive minimum sentence and that the court imposed the
presumptive minimum only because the statute directs it. The court rejected Salazar's arguments. He renews them on appeal.
At the sentencing
hearing, Salazar argued for probation, pointing to his lack of prior
significant criminal activity and claiming that probation would not put the
community at risk. In its sentencing
remarks, the court noted that Salazar continued to deny involvement in the
crimes for which he was convicted and that the evidence most strongly supported
the conviction for possession with intent to deliver. The court acknowledged the requirement of a presumptive minimum
sentence unless the court could satisfy itself that the interests of the
community would be served and the public not harmed by placing Salazar on
probation. The court found that
Salazar, a convicted felon who continues to deny criminal conduct, is not a
good candidate for probation because it is highly likely that Salazar will
again sell drugs. The court found that
Salazar had not maintained steady employment and had quit several jobs. The court stated: "If this was a straight sentencing with no presumptive
minimum, probably the court would be putting Mr. Salazar on probation with a
long jail term, but that is not the case.
We have a presumptive minimum and the court cannot make the findings
necessary to put him on probation for the reasons stated."
Salazar argues that the
last remark indicates an erroneous belief that the court's only alternative to
the presumptive minimum sentence was probation. He argues that § 161.438, Stats.,
permits the court to impose a sentence less than the presumptive minimum or
place a defendant on probation if the best interests of the community will be
served and the public would not be harmed.
Salazar's argument takes
the trial court's sentencing remark out of context. The trial court was responding to Salazar's request for
probation, not a request for a lesser sentence. The trial court examined Salazar's character, the gravity of the
offense and the need to protect the public, appropriate factors in sentencing, see
State v. Paske, 163 Wis.2d 52, 62, 471 N.W.2d 55, 59 (1991), and
determined that probation was not appropriate.
The weight to be accorded these sentencing factors is for the sentencing
court to determine in its discretion. See
State v. Spears, 147 Wis.2d 429, 446, 433 N.W.2d 595, 603 (Ct.
App. 1988). Salazar did not persuade
the trial court that anything other than the presumptive minimum would be in
the public's best interests. We discern
no misuse of discretion in declining to place Salazar on probation or imposing
less than the presumptive minimum sentence.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.