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COURT OF APPEALS
DECISION
DATED AND FILED
March 1, 2011
A.
John Voelker
Acting 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 III
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State of Wisconsin,
Plaintiff-Respondent,
v.
Nakiea L. Davis,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Marathon County: THOMAS CANE
and VINCENT K. HOWARD,
Judges. Reversed in part; affirmed in part, and cause
remanded with directions.
Before Hoover,
P.J., Peterson and Brunner, JJ.
¶1 PER CURIAM. Nakiea Davis appeals a
judgment of conviction for misdemeanor endangering safety by negligent handling
of a dangerous weapon and possession with intent to deliver between five and
fifteen grams of cocaine, as party to a crime.
He also appeals an order partially denying
his postconviction motion. Davis argues there was
insufficient evidence to convict him of either charge. We conclude the State presented insufficient
evidence to convict Davis
of negligent handling of a dangerous weapon, but presented sufficient evidence
to convict him of the cocaine possession charge. We therefore direct the circuit court to
enter a judgment of acquittal on the negligent handling of a dangerous weapon
charge.
BACKGROUND
¶2 Wausau police officer Jason
Rasmussen testified he responded in August 2006 to a hospital emergency room, where
he observed Davis
with a gunshot wound to the upper calf of his left leg. Davis
reported he was “rapping” with two friends, Little Field and B, in the area of
Seventh and Franklin Streets, when he thought he heard a car backfire. Davis
then fell to the ground as he realized he had been shot. Davis
stated he did not know Little Field’s or B’s name. He told Rasmussen he was driven to the
hospital by Joe. Rasmussen later learned
Joe was Davis’s
cousin, Malcolm,
who was also present at the hospital. Davis claimed a female had
called Malcolm, who was parked on Eighth
Street. Davis reported he did not
know who shot him and there were no other people or cars in the area.
¶3 Rasmussen testified that he eventually told Davis
he thought Davis
had shot himself. Rasmussen further told
Davis that Malcolm’s car was being impounded, a
search warrant would be obtained, and if the evidence showed Davis
was being untruthful, Davis
would be charged with obstructing an officer. Davis
then admitted he shot himself. Davis indicated he had
been with his friends, Little Field and B, at the location identified earlier when
he saw what he thought was a BB gun lying on the ground. He stated he picked it up and, as he was
getting in the car, it fell and went off without anyone pulling the trigger.
¶4 Police obtained a key to the car that transported Davis to the hospital from Kristy Matti, the mother of Davis’s children. Police searched the vehicle, a Lincoln Town
Car, license plate number 250 GHE. Officers
discovered a pistol between the driver’s seat and the center console. The weapon contained a loaded magazine and a spent
casing in the chamber. A second magazine
containing ammunition was found in a compartment beneath a hinged armrest in
the passenger door. Beneath that
magazine was a photograph of Davis and Matti. In a similar compartment on the driver’s door,
the officers found twelve individually wrapped baggies containing cocaine. Lying loose in the back seat was a license
plate, number 438 JTT. Blood was located
on the passenger seat and the armrest between the seats, and the interior of
the windshield above the passenger seat contained blood spatter. No latent
fingerprints suitable for comparison were found on the gun, magazine, or
baggies. The jury was shown photos of
the blood in the car. Davis did not testify.
¶5 The pistol discovered in the car, a 9mm semiautomatic World
War II German P38, was examined at the state crime lab by William Newhouse. Newhouse testified that the weapon properly expelled
spent casings when he fired it in the laboratory. Newhouse opined the most likely explanation
for the presence of the empty casing found in the chamber was that the pistol’s
operator interfered with the slide mechanism, preventing it from properly
moving back and ejecting the casing.
However, he believed the discovery of the spent casing in the magazine could
also be related to the manner in which the pistol was fired. Newhouse explained that a firm grip by the
operator resists a semiautomatic pistol’s recoil force, which then permits the
action to eject the casing as designed. However,
if a semiautomatic pistol is held loosely, or goes off when dropped, the recoil
is not resisted and the cartridge casing could remain in the gun.
¶6 Kronenwetter police chief Daniel Joling testified he
photographed a duplex located at 2322 and 2324 Bonney Dune Drive in Kronenwetter in
March 2005. He had personal knowledge that
Davis and Matti
lived at the 2322 address. The photographs
showed a Lincoln Town Car, license number 250 GHE, parked in front of 2322. In May 2006, Joling observed Davis driving a Cadillac with license plate number
438 JTT. In May or June 2006, Joling
photographed a GMC Suburban bearing license plate 250 GHE parked next to the 2322 Bonney Dune Drive
residence. That same day he photographed
the Lincoln Town Car with the same license plate number, 250 GHE, parked nearby.
DISCUSSION
¶7 Davis
argues there was insufficient evidence to convict him of either endangering
safety by negligent handling of a dangerous weapon or possession with intent to
deliver cocaine. We may not substitute our
judgment for that of the jury unless the evidence, viewed most favorably to the
State and the conviction, is so lacking in probative value and force that no jury,
acting reasonably, could have found guilt beyond a reasonable doubt. State v. Poellinger, 153 Wis. 2d 493, 507,
451 N.W.2d 752 (1990). If any
possibility exists that the jury could have drawn the appropriate inferences
from the evidence adduced at trial to find the requisite guilt, we may not
overturn a verdict even if we believe that the jury should not have found guilt
based on the evidence before it. Id.
Endangering
safety by negligent handling of a dangerous weapon
¶8 To convict Davis of endangering
safety by negligent handling of a dangerous weapon, the State was required to
prove: (1) Davis
handled a dangerous weapon; (2) Davis handled a
dangerous weapon in a criminally negligent manner; and (3) Davis’s handling of a dangerous weapon in a
criminally negligent manner endangered the safety of another. Wis JI—Criminal 1320 (May 2005); see Wis.
Stat. §§ 941.20(1)(a),
939.25(2). Further, to demonstrate the criminal
negligence element, the State had to prove: (1) Davis’s handling of the pistol
created a risk of death or great bodily harm; (2) the risk of death or great
bodily harm was unreasonable and substantial; and (3) Davis should have been
aware that his handling of a dangerous weapon created the unreasonable and
substantial risk of death or great bodily harm. See Wis. Stat. § 939.25(1); Wis JI—Criminal 1320 (May 2005).
¶9 Wisconsin JI—Criminal 1320 (May 2005), which was
provided to the jury, defines a dangerous weapon as “any firearm, whether
loaded or unloaded.”
Davis
concedes there was sufficient evidence of the first element, that he handled a
dangerous weapon. However, Davis argues the State
failed to present sufficient evidence that his conduct was criminally negligent
or substantially endangered the safety of another.
¶10 Criminal negligence has been explained in various ways, all of
which focus on conduct. The criminal
code defines it as “ordinary negligence to a high degree, consisting of conduct that the actor should realize
creates a substantial and unreasonable risk of death or great bodily harm to
another[.]” Wis. Stat. § 939.25(1) (emphasis
added). We have explained, “In criminal
negligence cases, the emphasis is on the conduct[.]” State v. Lindvig, 205 Wis. 2d 100, 105,
555 N.W.2d 197 (Ct. App. 1996). Further,
“the relevant inquiry is whether a reasonable person, under the same or similar
circumstances, would realize that the conduct
creates a substantial and unreasonable risk of death or great bodily harm.” Id.
(emphasis added). The supreme court has
described criminal negligence as “conduct
that not only creates an unreasonable risk of bodily harm to another, but also
involves a high degree of probability that substantial harm will result to such
other person.” Hart v. State, 75 Wis. 2d 371, 381
n.2, 249 N.W.2d 810 (1977) (emphasis added).
“[A] high degree of negligence consists of the standard definition of
ordinary negligence with the additional element of ‘a high probability of death
or great bodily harm’ as a result of the
culpable act.” Id. at 383 (emphasis added).
¶11 We agree with the State that, based on the extra loaded
magazine found in the vehicle, the jury could reasonably reject Davis’s claim that he
found the pistol on the ground and thought it was a BB gun. For the same reason, the jury could also reasonably
infer Davis
knew the pistol was loaded.
¶12 However, there was no
direct evidence of Davis’s
handling of the pistol—his conduct—prior to dropping it. The only evidence arguably relevant to Davis’s
handling of the pistol was the following: Davis’s statement that he dropped it while
entering the car and it fired without anyone pulling the trigger, the bullet
wound to Davis’s upper calf, blood spatter on the windshield, and Newhouse’s
testimony about why an empty casing might remain in a semiautomatic
pistol. The State presented no witness
who observed Davis
handling the pistol.
¶13 Additionally, there was no evidence presented bearing on the
likelihood of the pistol discharging. No
witness testified to the likelihood of a semiautomatic pistol, generally, or a
German P38, specifically, firing when dropped.
No witness testified whether a P38 has a manually operated safety or, if
so, whether use of it could prevent the pistol from firing when dropped.
¶14 It is altogether possible that Davis handled the pistol in a criminally
negligent manner. Perhaps Davis was twirling the
pistol on his finger; perhaps he was waving the pistol around; perhaps he threw
the pistol; perhaps he was startled by a car backfiring; perhaps he tripped. Yet, none of these possibilities constitutes
a reasonable inference deduced from actual evidence. Absent any evidence of Davis’s handling of
the P38 prior to dropping it, much less the likelihood—or for that matter, the
possibility—of discharge when dropped, the jury could only speculate whether
Davis handled the pistol with the requisite lack of care.
¶15 Davis
further argues the State failed to present sufficient evidence for the jury to
conclude his handling of the pistol created a substantial and unreasonable risk
of severe harm to another person. Davis argues there was no
direct evidence that any other person was nearby when the weapon discharged
into his calf. The State responds that because
the shooting occurred in a residential neighborhood, any number of people were
potentially at risk. The State further contends
that the jury could infer Little Field or B was present, or that because Davis was entering the vehicle’s
passenger side, somebody else was present to occupy the driver seat.
¶16 Regardless of the presence or proximity of others, because the
jury did not know the nature of Davis’s conduct leading to dropping the pistol,
it was impossible for the jurors to assess whether that conduct created an
unreasonable and substantial risk of harm to another person.
¶17 The State failed to present sufficient evidence on which the
jury could reasonably rely to convict Davis
of criminally negligent handling of a dangerous weapon beyond a reasonable
doubt. Davis is therefore entitled to a judgment of
acquittal on that count. See State
v. Miller, 2009 WI App 111, ¶44, 320 Wis. 2d 724, 772 N.W.2d 188.
Possession with intent to
deliver cocaine
¶18 Davis
next argues the State presented insufficient evidence to prove he possessed the
cocaine recovered from the Lincoln Town Car.
We reject this argument.
¶19 Davis
emphasizes the physical evidence demonstrated he rode to the hospital in the
passenger seat, while the cocaine was found in the driver’s door. A defendant need not, however, maintain
exclusive possession of cocaine to be convicted. Rather, as the jury was instructed:
An item is 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.
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.
See Wis JI—Criminal 6035 cmt. n.2 (May 2010); Wis JI—Criminal 920 (Apr. 2000).
¶20 The jury learned that the Town Car and both sets of license
plate numbers were tied to Davis
or his residence. Davis’s fiancée, Matti, produced a key for
the Town Car, on a key ring no less. Police
found a photograph of Davis and Matti beneath the loaded magazine. All of this evidence linking Davis
to the Town Car could suggest Davis
either owned or exercised authority over the vehicle. Further, Davis’s possession of a loaded pistol, and an
additional loaded magazine, is evidence that he exercised control over the
drugs for two reasons. First, possession
of a loaded weapon gave Davis
the ability to exert control over any people or items in the car. Second, the individually bagged cocaine
provides a possible explanation for carrying the weapon and extra ammunition—it
is no secret drug dealers often carry weapons.
These facts demonstrate there was sufficient evidence on which the jury
could rely to conclude Davis
possessed the cocaine.
By the Court.—Judgment and order reversed
in part; affirmed in part, and cause remanded with directions.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.