COURT OF APPEALS DECISION DATED AND RELEASED January 7, 1997 |
NOTICE |
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. 94-1725-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Edgar Smith,
Defendant-Appellant,
Mohammad Yessin,
Defendant.
APPEAL from an order of
the circuit court for Milwaukee County:
DAVID A. HANSHER, Judge. Affirmed
and cause remanded.
Before Wedemeyer, P.J,
Fine and Schudson, JJ.
PER CURIAM. Edgar Smith appeals from the trial court
order denying his motion to dismiss the criminal complaint charging him with
conspiracy to receive stolen property, in violation of §§ 939.31 and
943.34(1)(c), Stats.[1] He argues that the complaint is insufficient
because it fails to allege a legally possible offense, fails to allege that he
agreed with any co-conspirator to commit an offense, and fails to allege that
he had a stake in the venture. We
affirm.
Following the
preliminary hearing in this case, Smith was bound over for trial. Smith's arraignment, however, was stayed to
allow him the opportunity to appeal the trial court's denial of his motion to
dismiss the complaint. On September 14,
1994, this court granted Smith leave to appeal. This court subsequently certified this case to the Wisconsin
Supreme Court for resolution of two issues:
(1) whether conspiracy under § 939.31 codifies a “unilateral”
or “bilateral” conspiracy theory; and (2) whether conspiracy under
§ 939.31 includes the element of “stake in the venture.” The supreme court accepted certification
but, following oral argument, concluded:
1.The issues certified by the court of
appeals, whether Wis. Stat. § 939.31 codifies the “unilateral” or
“bilateral” theory of conspiracy and whether “stake in the venture” is an
element of conspiracy, were not raised in the circuit court.
2.The argument of unilateral theory of
conspiracy, if recognized under Wisconsin law, addresses those conspiracies
involving one who with an intent to commit a crime conspires with a police
officer or another lacking the criminal intent to commit the crime.
3.The
only issues addressed by the circuit court and set forth in Smith's petition
for leave to appeal are:
(1) whether the complaint alleges sufficient facts to establish
probable cause that a conspiracy existed between Smith and Yessin, and
(2) whether legal impossibility constitutes a defense to conspiracy.
State
v. Smith, 94-1725-CR, order dated June 20, 1996. Accordingly, the supreme court vacated the
order accepting certification and remanded the appeal to this court.
The criminal complaint
charges Smith and Mohammad Yessin with conspiracy to receive stolen cases of cigarettes
with a value of more than $4,500. The
complaint alleges that on February 14, 1994, an undercover police officer sold
the cigarettes to Yessin for $1,000 as part of a “reverse sting” police
investigation. The complaint explains
that the undercover police gave Yessin information leading him to believe the
cigarettes were stolen when, in fact, they had been provided to police by
retail stores and other sources. The
complaint further alleges Smith's involvement:
Smith
stat[ed] that on February 13, 1994 Mohamud[2]
Yessin came over to his house at approximately 8:15 a.m. and told him he had a
$1,000.00 and that he was going to get cigarettes cheap and wanted Smith to go
along with him. Smith said they then
went in Mohamud's car and drove over to 101st and Hampton. When they arrived Mohammed and Smith loaded
approximately 10 cases of cigarettes into Mohammed's vehicle. Mohammed also told him 1 case of cigarettes
was free. Mohamud Yessin then gave [the
undercover officer] $1,100.00 for the cigarettes. When [the undercover officer] left Mohamud told him [Smith] that
the cigarettes were stolen.... Smith
said that he had an idea that Mohamud was buying stolen cigarettes when they
were driving over to the above-described location (101st and Hampton).
Smith argues that the
complaint is insufficient because it lacks any allegation that he and Yessin
“ever had a mutual understanding to accomplish the criminal objective of
receiving stolen property.” The State
responds that it is “not essential that two or more persons actually agree to
commit an offense. All that is required
for liability, rather, is that the culpable party subjectively believe he is
agreeing with another to commit a crime.”
The State is correct.
A criminal complaint is
sufficient if the alleged facts and reasonable inferences drawn from the
alleged facts establish that the defendant probably committed the charged
crime. State v. Adams,
152 Wis.2d 68, 73-74, 447 N.W.2d 90, 92 (Ct. App. 1980). Whether a complaint is sufficient presents
an issue we review de novo. Id.
at 74, 447 N.W.2d at 92.
Section 939.31, Stats., provides:
Except as provided in ss. 161.41(1x), 940.43(4)
and 940.45(4), whoever, with intent that a crime be committed, agrees or
combines with another for the purpose of committing that crime may, if one
or more of the parties to the conspiracy does an act to effect its object, be
fined or imprisoned or both not to exceed the maximum provided for the
completed crime; except that for a conspiracy to commit a crime for which the
penalty is life imprisonment, the actor is guilty of a Class B felony.
(Emphasis
added.) Thus, the statute does not
require that one person “agree” with another in order to violate § 939.31,
Stats. To be a conspirator under the statute, a person may agree “or
combine[ ] with another for the purpose of committing that crime.” (Emphasis added.)
Here, the complaint
alleges that Smith “had an idea that Mohamud was buying stolen cigarettes when
they were driving over to the ... location” to get them. Nevertheless, according to the complaint,
Smith helped Yessin load the cases of cigarettes into Yessin's car. Clearly, therefore, the complaint
sufficiently alleged that Smith “combined with” Yessin to receive stolen
property.
Smith also argues that
the complaint is insufficient because the crime of receiving stolen property
requires that “the property must be in fact stolen,” and this complaint states
that the cigarettes used by the police in this sting “were provided by retail
stores and other sources and were not in fact stolen.” Thus, he contends, “legal impossibility”
precludes probable cause in the complaint.
Smith, however, offers no reply to the State's argument that State
v. Kordas, 191 Wis.2d 124, 528 N.W.2d 483 (Ct. App. 1995), leads to the
conclusion “that legal impossibility is not a defense to the inchoate crime of
conspiracy,” and “[a]ll that is required for liability ... is that the culpable
party subjectively believe” that he or she is committing the crime. We agree that Kordas controls
and, therefore, that the complaint is sufficient.
By the Court.—Order
affirmed and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.