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COURT OF APPEALS
DECISION
DATED AND FILED
January 13, 2009
David
R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
William Haroy Thornton,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Milwaukee County: JEFFREY
A. KREMERS, Judge. Affirmed.
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 KESSLER, J. William Haroy Thornton
appeals from a judgment of conviction for possession of tetrahydrocannabinols
(THC), second offense, and possession of a firearm by a felon with the habitual
criminality enhancer, contrary to Wis.
Stat. §§ 961.41(3g)(e), 941.29(2) and 939.62 (2005-06). He also appeals from an order denying his
postconviction motion. On appeal, he
argues: (1) the evidence against him was
insufficient to support his conviction; (2) he should have been allowed to
present evidence at the hearing on his postconviction motion; (3) the
trial court should have granted his motion for a new trial in the interests of
justice; and (4) the trial court failed to adequately explain the reasons for
imposing consecutive sentences. We
reject his arguments and affirm.
BACKGROUND
¶2 After serving time in prison for crimes including first-degree
recklessly endangering safety while armed and possession with intent to deliver
while armed, Thornton was paroled in November 2003. On February 8, 2006, his parole agent, Lynda
Lund, and other agents from the Department of Corrections (DOC) conducted a
parole search of Thornton’s
bedroom and vehicle. They found
marijuana in the bedroom and a firearm in the vehicle. As a result, Thornton was charged with possession of THC
with intent to deliver and possession of a firearm by a felon.
¶3 The case proceeded to trial.
Thornton, who had several appointed lawyers during the pretrial
proceedings, decided to represent himself at the pretrial motion hearing and at
the trial to the court. Standby counsel
was also appointed and remained throughout the trial. Thornton’s
defense was that he was not staying in the room where the marijuana was found,
and that the gun had been mistakenly left in the vehicle by Thornton’s
father, who was leaving the car downtown so Thornton could drive it home after meeting
with his parole agent. Thornton’s sister and father testified on his
behalf.
¶4 The court found Thornton’s
two witnesses incredible, noting that they “told some pretty fanciful
stories.” The court accepted the
testimony of the State’s witnesses and found Thornton guilty of simple possession (rather
than possession with intent to deliver, as was originally charged), and being a
felon in possession of a firearm.
¶5 Thornton
was convicted and sentenced as follows.
For possessing THC, he received a two-year sentence, comprised of one
year of initial confinement and one year of extended supervision. For being a felon in possession of a firearm,
he received an eleven-year sentence, comprised of seven years of initial
confinement and four years of extended supervision. The two counts were imposed consecutive to
one another, and consecutive to any previously imposed sentence.
¶6 Thornton, through his newly appointed postconviction counsel,
filed a motion for postconviction relief in which he sought a new trial on the
basis of newly discovered evidence and in the interests of justice. In the alternative, he sought modification of
his sentence on several grounds, arguing: (1) the trial court failed to adequately
explain the basis for making the sentences consecutive; (2) the sentence was
unduly harsh; and (3) new factors justified sentence modification.
¶7 At the hearing on Thornton’s
motion, postconviction counsel was permitted to make offers of proof, but was
not permitted to call any witnesses. The
trial court denied the motion. This
appeal follows.
DISCUSSION
¶8 Thornton
presents numerous challenges to his conviction and sentence. He argues:
(1) the evidence against him was insufficient to support his
convictions; (2) he should have been allowed to present evidence at the hearing
on his postconviction motion; (3) the trial court should have granted his
motion for a new trial in the interests of justice; and (4) the trial court
failed to adequately explain the reasons for imposing consecutive
sentences. We examine each argument in
turn.
I. Sufficiency of the evidence.
¶9 Thornton
challenges the sufficiency of the evidence.
He argues that there was no direct evidence that he ever possessed the
gun or the marijuana, and that the circumstantial evidence was insufficient to
support his conviction. When reviewing a
conviction for sufficiency of the evidence, we will not reverse “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 (1990). We may not substitute
our judgment for that of the trier of fact.
Id.
at 507.
If any possibility exists that the trier of fact could
have drawn the appropriate inferences from the evidence adduced at trial to
find the requisite guilt, an appellate court may not overturn a verdict even if
it believes that the trier of fact should not have found guilt based on the
evidence before it.
Id.
¶10 “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.” Id.
at 501. Poellinger recognized
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.” Id. at 501-02. Poellinger also noted that “[r]egardless
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.” Id.
at 502.
¶11 At trial, the State introduced testimony from five witnesses,
including three witnesses from the DOC, a police officer and a drug
identification chemist from the State Crime Lab. Lund testified
that she served as Thornton’s
parole agent from November 2003 until August 2006, when his parole was
revoked. She said that in January 2004, Thornton began living in a
duplex with his two sisters: Sherri
Thornton lived in the upper unit and Latanga Thornton lived in the lower
unit. Lund
said she visited Thornton
at the duplex “regularly,” on at least a monthly basis.
¶12 Lund testified that sometimes
she visited Thornton
in the upper unit, and sometimes in the lower unit. She explained that “beginning in April of
2005, our home visits were [conducted] in the basement area within a room in
the basement area that [Thornton]
indicated was his bedroom.”
¶13 Lund said that Thornton did not adjust well to
supervision. She explained that he had
not found a full-time job, and had tested positive for drugs and alcohol on
several occasions. Lund
testified that in January 2006, she received an anonymous call that indicated Thornton was dealing drugs in Racine, and was using a “phon[]y penis
device” to tamper with his drug screens.
¶14 On February 2, 2006, Lund and
another agent went to Thornton’s
home for a scheduled home visit. They knocked
on the door and received no answer.
After they returned to their vehicle to leave, an unknown male came to
the door. Lund
called out and asked if Thornton was home; the
man indicated Thornton
was there. Lund and the agent returned to the home and
stood in the entrance area of the duplex, next to the stairs leading to the
basement. Lund
called out for Thornton. She testified:
[E]ventually he came from the basement area up the
stairs, noticed me. He seemed to be
startled or surprised to see me.
It
appeared he put something behind his back … and immediately started to back up
down the stairs. I followed him down the
stairs to the basement area to the room that he indicated was his room. I asked him what had been going on, that this
was a normal, quick visit. Instructed
him to go to Impact for AODA assessment [before] his next appointment [with me].…
Then I left the area.
¶15 Lund said that based on Thornton’s suspicious behavior on February 2, as well as
the anonymous call, she received permission from her supervisors to do a parole
search that would include Thornton’s
bedroom area, his person and any vehicle that he could or would be
driving. The search was ultimately scheduled
to occur on February 8, unbeknownst to Thornton.
¶16 On that day, Thornton reported
to Lund’s office
for a scheduled appointment. Lund said that when she met Thornton, “he stated he had a really hard
time parking.” Lund testified:
I
asked him where he parked. He said he
was able to bully himself in somewhere.
I asked him where he parked, at which time he became evasive with his
answers. On several occasions we asked him
where he parked. He would not answer the
question. Eventually [he] said a friend
had dropped him off.
¶17 Lund said she and another agent
walked the streets around the State Office Building
looking for a vehicle she knew Thornton
had driven in the past, a Chevy Beretta.
They could not find it. However, later,
when they were driving Thornton to his home to
conduct the parole search, they found in his wallet a title to a Ford Taurus
that was titled in the name of “William Thornton Enterprise[s],” which was the
name of a business Thornton
had started. They called law enforcement
and passed on the information. The
vehicle was then found parked on the street about a block from the State Office
Building.
¶18 Meanwhile, at the duplex, Lund used Thornton’s keys to unlock
the front door and the padlock to the basement room that Thornton had, in the
past, identified as his bedroom. In the
bedroom, they found a mason jar containing suspected marijuana next to Thornton’s bed, and a
large baggie containing seven individual baggies filled with suspected marijuana,
in a shoebox.
¶19 When Lund returned to the State
Office Building,
she and other DOC employees proceeded to search Thornton’s
vehicle, using Thornton’s
keys to enter it. Darryl Bucholtz, a
field supervisor with the DOC, testified that before they entered the vehicle,
they saw an individual who identified himself as William Thornton, Sr. (Thornton’s father), approaching
the vehicle. Bucholtz said that he told William
that the DOC had received approval to search the vehicle. William then left the scene. Bucholtz testified that when he was searching
the vehicle, he raised an armrest between the two front seats and saw the
firearm, which was confiscated.
¶20 Thornton
argues that this evidence was insufficient to prove that he possessed either
the marijuana or the firearm. He asserts
that he was living in Port Washington, Wisconsin, rather than in the basement of the Milwaukee duplex. He further contends that the only evidence
linking him to the gun was the title showing ownership of the car. He notes that no witnesses testified that he
was in the car, and that his own father testified at trial—potentially exposing
himself to criminal liability for carrying a concealed weapon—that it was he
who drove the car downtown on February 8 and left his firearm in the car.
¶21 We reject Thornton’s
argument. To the extent there was
conflicting testimony, we must defer to the trier of fact, which “determines
issues of credibility, weighs the evidence and resolves conflicts in
testimony.” See State v. Kienitz, 227 Wis. 2d 423, 435, 597 N.W.2d 712 (1999). Therefore, the issue becomes whether the
testimony presented by the State and relied upon by the trial court provides
sufficient proof that Thornton
possessed the marijuana and the firearm.
We conclude that it does.
¶22 “[T]he term ‘possession’ includes both actual and constructive
possession.” State v. Peete, 185 Wis. 2d 4, 14-15, 517
N.W.2d 149 (1994). The pattern jury
instruction concerning possession instructs as follows:
“Possession” means that the
defendant knowingly had actual physical control of the item.
An item is (also) in a
person’s possession if it is in an area over which the person has control and
the person intends to exercise control over the item.
It is not required that a
person own an item in order to possess it. What is required is that the person exercise
control over the item.
Possession may be shared with
another person. If a person exercises control over an item, that item is in his
possession, even though another person may also have similar control.
Wisconsin JI—Criminal 920 (brackets and footnotes
omitted). We conclude that the evidence
was sufficient to support a finding of constructive possession of both the
marijuana and the gun.
¶23 The trial court could have reasonably found that Thornton was living in
the basement room of the duplex, and that the marijuana was “in an area over
which the person has control and the person intends to exercise control over
the item.” See id. Lund
testified that Thornton
told her the basement room was his, and that she visited him there on numerous
occasions, including less than one week before the search. She further testified that she entered both
the locked duplex and the locked basement room on February 8 using Thornton’s keys. Even if the trial court believed that others
may have had access to the room (a finding it declined to make), that fact would
not negate Thornton’s
constructive possession of the marijuana.
See id. (“Possession may be
shared with another person.”).
¶24 The trial court also could have reasonably found that Thornton drove the Taurus to his appointment with Lund on February 8. Although Thornton’s
father testified that he drove it, Lund
testified that Thornton
said he had parked his vehicle that morning.
The trial court was entitled to weigh the credibility of the witnesses
and resolve conflicts in the testimony. See Kienitz, 227 Wis. 2d at 435. Further, given the location of the gun under
the armrest in the Taurus, the trial court could reasonably infer that Thornton “knowingly had
actual physical control of the item.” See Wis JI—Criminal 920.
¶25 Viewing the evidence “most favorably to the state and the
conviction,” we cannot say that the evidence “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.” See
Poellinger,
153 Wis. 2d
at 501. Therefore, we reject Thornton’s challenge to
the sufficiency of the evidence.
II. Entitlement to an evidentiary hearing.
¶26 Thornton
argues that the trial court erroneously denied him an opportunity to present
evidence at the postconviction hearing. A
defendant seeking postconviction relief is not entitled to an evidentiary
hearing merely because he or she requests one.
State v. Allen, 2004 WI 106, ¶10, 274 Wis. 2d 568, 682 N.W.2d 433. A trial court may deny a postconviction
motion without an evidentiary hearing “if all the facts alleged in the motion,
assuming them to be true, do not entitle the [defendant] to relief; if one or
more key factual allegations in the motion are conclusory; or if the record
conclusively demonstrates that the movant is not entitled to relief.” Id.,
¶12 (footnote omitted).
¶27 Here, Thornton’s motion for
postconviction relief alleged that an investigator’s report of an interview
with Thornton’s sister Latanga, as well as
affidavits from William and Thornton’s
girlfriend, Karen Goins, supported his motion for a new trial on the basis of
newly discovered evidence and in the interests of justice. Latanga reportedly said that she found the
marijuana while doing laundry in the basement, and that she put it in the
bedroom that was used by another man, Ricky Thornton. She told the investigator that when she told
Ricky that the parole agent found marijuana in that room, Ricky replied: “‘Damn, they got my shit.’”
¶28 William’s affidavit repeats his trial testimony, but also adds
that after he parked the car downtown on February 8, he went to the Grand
Avenue Mall to eat and then returned to the Taurus an hour later to retrieve
his gun. Goins’s affidavit states that
she lived with Thornton in a Port
Washington apartment at the time of his arrest. She also states that she was the individual
who drove Thornton to his appointment in
downtown Milwaukee
on February 8.
¶29 We conclude the trial court did not erroneously exercise its
discretion when it denied Thornton’s request for
an evidentiary hearing, because the record conclusively demonstrates that Thornton was not entitled
to relief. See id. To succeed on his
claim for a new trial based on newly discovered evidence, Thornton was required to prove: “‘(1) the evidence was discovered after
conviction; (2) the defendant was not negligent in seeking the evidence; (3)
the evidence is material to an issue in the case; and (4) the evidence is not
merely cumulative.’” See State v. Plude, 2008 WI 58, ¶32, 310
Wis. 2d 28, 750
N.W.2d 42 (citation omitted). As the
trial court noted at the postconviction hearing, the information Thornton proffered was not
newly discovered. Assuming Thornton shared a
residence with Goins, he knew that at the time of trial and could have called
Goins as a witness. In addition, both
Latanga and William testified at trial.
There is nothing in the report or affidavits to suggest that their
additional testimony was not known to Thornton,
or that he was not negligent in seeking it.
¶30 Clearly, the evidence was not newly discovered. Postconviction counsel admitted as much when
he explained that he was trying to make clear for the trial court that Thornton’s competency to
represent himself was at issue. We agree
with the trial court’s analysis that if Thornton
wanted to challenge whether he should have been permitted to represent himself,
he could have done so, but he did not.
The postconviction motion did not support Thornton’s claim for a new trial based on
newly discovered evidence. Therefore,
the motion was properly denied on that basis without an evidentiary hearing. See
Allen,
274 Wis. 2d
568, ¶12.
¶31 Thornton’s
postconviction motion also alleged that he was entitled to a new trial in the interests
of justice. At the motion hearing,
postconviction counsel stated that the report and two affidavits, as well as
the water bill and lease indicating that Thornton
lived in Port Washington, supported his motion
for a new trial in the interests of justice.
Pursuant to Wis. Stat. § 805.15(1),
“[a] party may move to set aside a verdict and for a new trial … in the interests
of justice.” Thornton asserts that his postconviction
motion “alleged facts which, if proved, would have entitled him to relief on
his motion for a new trial in the interests of justice.”
¶32 We conclude that the trial court did not erroneously exercise
its discretion when it denied, without an evidentiary hearing, Thornton’s postconviction motion for a new
trial in the interests of justice. The
facts Thornton offered in support of his motion,
even if true, do not entitle Thornton
to relief. The trial court had already
found incredible the testimony of William and Latanga. In addition, evidence that Thornton
may have also had an apartment in Port Washington would not negate the fact
that he told Lund
he lived in the basement of the duplex, that he regularly met with her there
and that he had a key to the locked room.
Thornton could have exercised control
over both the duplex bedroom and an apartment in Port
Washington, and therefore his guilt for possession would not be
negated. Thus, even if the facts
asserted were true and subsequently offered at trial, it was not likely that a
new trial “‘under optimum circumstances [would] produce a different result.’” See Garcia v. State, 73 Wis. 2d 651, 654, 245
N.W.2d 654 (1976) (citation omitted). Because
the facts alleged in the motion did not entitle Thornton
to relief, the trial court did not erroneously exercise its discretion when it
denied Thornton’s
motion without an evidentiary hearing. See Allen, 274 Wis. 2d 568, ¶12.
III. New trial in the interests
of justice.
¶33 On appeal, Thornton
argues that the trial court erroneously exercised its discretion when it denied
his motion for a new trial in the interests of justice. For the reasons discussed above, we conclude
the trial court did not erroneously exercise its discretion when it denied Thornton’s motion for a
new trial in the interests of justice.
¶34 In addition, Thornton
seeks discretionary reversal from this court. We are authorized to grant a new trial in the interests
of justice pursuant to Wis. Stat. § 752.35
“if it appears from the record that the real controversy has not been fully
tried, or that it is probable that justice has for any reason miscarried.” Id. Thornton
argues that the real controversy was not fully tried because the trial court “was
not given the opportunity to hear important testimony on the issue of whether [Thornton] possessed the
drugs and gun[] … as set forth in the offer of proof and the affidavits.” He also argues that his “presentation and
fixation on collateral issues so clouded the material issues that it cannot be
fairly said [that] the real controversy was fully tried.” We are not convinced.
¶35 The facts Thornton
offered in his affidavits and the offers of proof reiterated testimony that was
offered and found incredible by the trial court at trial. The limited new information in the
affidavits, primarily relating to Thornton’s alleged home in Port Washington,
does not negate the credible evidence that he exercised control over a room in
the basement of the duplex. We are
unconvinced that the real controversy was not fully tried.
¶36 Finally, we reject Thornton’s
suggestion that he is entitled to a new trial because he did not adequately
represent himself. If he wanted to
challenge the trial court’s decision allowing him to represent himself, he
could have done so; he has not. We
decline to grant a new trial on grounds that Thornton’s pro se performance resulted in the real controversy not being fully
tried.
IV. Challenge to the sentencing.
¶37 Thornton argues that the trial court erroneously exercised its
discretion when it sentenced him because the court “failed to articulate
reasons for ordering a consecutive sentence and why it was the minimum amount
of confinement necessary to achieve the legitimate objectives of sentencing in
this case.” Thornton concedes that the
trial court explained why it was ordering the sentences in the instant case
consecutive to any previously imposed sentences, but asserts the court “did not
explain why it was ordering [consecutive sentences] on the two counts of this
case.”
¶38 Our supreme court has recognized that
[w]hen a criminal defendant challenges the sentence
imposed by the [trial] court, the defendant has the burden to show some
unreasonable or unjustifiable basis in the record for the sentence at
issue. When reviewing a sentence imposed
by the [trial] court, we start with the presumption that the [trial] court
acted reasonably. We will not interfere
with the [trial] court’s sentencing decision unless the [trial] court
erroneously exercised its discretion.
State v. Lechner, 217 Wis. 2d 392, 418-19, 576
N.W.2d 912 (1998) (citations and footnote omitted). The primary sentencing factors are the
gravity of the offense, the character of the offender and the need for public
protection. State v. Larsen, 141 Wis. 2d 412, 427, 415
N.W.2d 535 (Ct. App. 1987). “The weight
afforded to each of the relevant factors is particularly within the wide
discretion of the trial court.” State
v. Leighton, 2000 WI App 156, ¶52, 237 Wis. 2d 709, 616 N.W.2d 126. In order to permit meaningful review, “the
trial court ‘must articulate the basis for the sentence imposed on the facts of
the record.’” Id. (citation omitted). The trial court has an additional opportunity
to explain its sentence when challenged by postconviction motion. See
State v. Fuerst, 181 Wis. 2d 903, 915, 512 N.W.2d 243 (Ct. App. 1994). However, if the trial court “fails to
specifically set forth the reasons for the sentence imposed, this court is ‘obliged
to search the record to determine whether in the exercise of proper discretion
the sentence imposed can be sustained.’”
Leighton, 237 Wis.
2d 709, ¶52 (citation omitted).
¶39 Having examined the transcript of the sentencing and the
postconviction motion hearing, we conclude that the trial court explained the primary sentencing factors and
applied the relevant circumstances to those factors. The trial court discussed Thornton’s background and failed rehabilitation. It gave Thornton
some credit for having received his high school equivalency diploma in prison,
but noted that since being out of prison, Thornton
had manipulated the system, returned to using drugs, acquired a gun and armed
himself. The trial court discussed the
seriousness of the offense, noting that “having a gun like this out in the
community is exceedingly dangerous and very serious.” The court addressed the need to protect the
public from people who are not supposed to have guns.
¶40 The
trial court said that after considering all of the relevant factors, “the only
appropriate sentence” was that it was imposing.
First, the court imposed a two-year sentence for the marijuana charge
and noted that it was to be served consecutive to the sentence Thornton was serving after
his parole revocation, because the new crime “is a wholly separate event,
separated by 14 years, and is deserving of separate and individual
consideration and punishment.” The court
imposed a sentence of eleven years on the firearm possession charge,
consecutive to Thornton’s
previous sentence and the sentence on the marijuana charge.
¶41 Although
the trial court at that point in the hearing did not explicitly indicate why it
was making the sentences for the two possession crimes consecutive to one
another, the sentencing hearing as a whole, including the trial court’s
consideration of the proper sentencing factors, demonstrated a proper exercise
of discretion that supports the sentence.
See Leighton,
237 Wis. 2d
709, ¶52. In addition, at the postconviction hearing, the trial court
took advantage of the additional opportunity to explain its
sentence. See Fuerst, 181 Wis. 2d at 915. The trial court stated:
I think it is clear from reading this transcript that I
was very concerned about Mr. Thornton’s prior record, his lack of real
rehabilitation in terms of turning his life around and conforming to the requirements
of society and I think I made it clear that these were separate offenses,
deserving of separate punishments and that is why I entered and ordered
consecutive sentences and I think the record is sufficient to support it.
We conclude that the court’s
statements at sentencing and at the postconviction hearing demonstrate a proper
exercise of sentencing discretion. For
these reasons, we reject Thornton’s
challenge to the sentence.
By the Court.—Judgment and order
affirmed.
Not
recommended for publication in the official reports.