COURT OF APPEALS DECISION DATED AND RELEASED December 7, 1995 |
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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-2594-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
BRIAN L. EDWARDS,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Dane County: STUART A. SCHWARTZ, Judge.
Affirmed.
Before Eich, C.J.,
Gartzke, P.J., and Sundby, J.
PER
CURIAM. Brian L. Edwards appeals from a judgment of conviction
and postconviction order denying his motion to vacate the conviction and enter
a judgment of acquittal. The court
found Edwards guilty of possessing between 3 and 10 grams of cocaine base, with
intent to deliver, within 1000 feet of a school. On appeal, Edwards argues that there was insufficient evidence of
the three elements of the crime: (1) possession; (2) intent to deliver;
and (3) possession within 1000 feet of a school. Because sufficient evidence supports the finding of guilt, we
affirm.
Upon a challenge to the
sufficiency of the evidence to support a jury finding of guilt, 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 reasonable jury could have found guilt beyond a reasonable
doubt. State v. Poellinger,
153 Wis.2d 493, 507, 451 N.W.2d 752, 757-58 (1990). We will uphold the verdict if any possibility exists that the
jury could have drawn the inference of guilt from the evidence. See id. at 507, 451 N.W.2d at
758.
The jury is the sole
arbiter of witness credibility. State
v. Serebin, 119 Wis.2d 837, 842, 350 N.W.2d 65, 68 (1984). The jury, not this court, resolves conflicts
in the testimony, weighs the evidence and draws reasonable inferences from
basic facts to ultimate facts. Poellinger,
153 Wis.2d at 506, 451 N.W.2d at 757.
When the record contains facts that support more than one inference, we
must accept and follow the inference drawn by the jury unless the evidence on
which that inference is based is incredible as a matter of law. Id. at 506-07, 451 N.W.2d at
757.
Edwards waived his right
to a jury trial and was tried before the court. When the court is the fact finder, a challenge to the sufficiency
of the evidence is measured against the same standard of review as when a jury
is the fact finder. See Gaddis
v. State, 63 Wis.2d 120, 127, 216 N.W.2d 527, 531 (1974).
The following evidence
was presented at trial. A City of
Madison police officer, who knew Edwards from prior contacts and knew that he
did not have a driver's license, saw Edwards driving. A passenger was also in the car.
The officer followed the car and observed Edwards' vehicle pass within
950 feet of a school and stop outside a liquor store. Edwards and the passenger entered the store. The officer stopped and arrested Edwards for
operating after revocation.
The officer performed a
"pat-down" search of Edwards at the scene but did not find any
weapons or contraband. The officer did
not handcuff Edwards but placed him in the back seat of the squad car, where he
was alone for several minutes.
Eventually the officer transported Edwards to the police station, where
he searched him again and found several slips of paper bearing phone numbers
and $225 in currency. After Edwards was
inside the police station, the arresting officer searched the squad car and
found a plastic bag containing thirty individually wrapped pieces of cocaine
base wedged into the back seat.
The officer testified
that he searched his squad car at the beginning of his duty shift and there was
no cocaine in the back seat. The
officer testified that he would have seen the cocaine if it had been there at
the time of the search. The search is
routine police procedure and includes removing the back seat. The officer also testified that no one but
Edwards had been in the squad car prior to the discovery of the cocaine.
Edwards argues that the
evidence does not permit the fact finder to infer that the cocaine found in the
squad car was his cocaine. Edwards
suggests that such an inference is speculative and unreasonable because no
cocaine was discovered during the pat-down search. Edwards acknowledges that the inference of possession rests
largely on the officer's testimony that he searched the squad car before his
shift and saw no cocaine in the back seat.
Edwards fails to explain, however, why the fact finder could not accept
the officer's testimony as credible.
The record contains sufficient evidence that Edwards possessed cocaine.
Edwards also contends
that there is no evidence that he intended to deliver the cocaine. We disagree. The plastic bag contained thirty individually wrapped pieces of
cocaine base, with a street value of between $1200 and $1400. Edwards possessed a sizeable amount of
currency and several pieces of paper bearing phone numbers. The record contains sufficient evidence
indicating Edwards' intent to deliver the cocaine. See State v. Prober, 87 Wis.2d 423, 437-38,
275 N.W.2d 123, 128-29 (Ct. App. 1978), rev'd on other grounds, 98
Wis.2d 345, 297 N.W.2d 1 (1980).
Edwards next contends
that there is no evidence that he possessed the cocaine within 1000 feet of a
school. Edwards does not dispute that
he drove within 1000 feet of a school.
The enhancing statute of § 161.49, Stats., applies if a person drives within 1000 feet of a
school while in possession of cocaine with intent to deliver. State v. Rasmussen, 195 Wis.2d
109, 114, 536 N.W.2d 106, 108 (Ct. App. 1995).
Edwards does dispute, however, the inference that he possessed the
cocaine when he drove near the school.
Edwards suggests that his passenger could have possessed the cocaine at
that time or that he could have obtained the cocaine at the liquor store.
The court could
reasonably infer that Edwards possessed the cocaine when he drove within 1000
feet of the school. At trial, Edwards
testified that he noticed the squad car before he drove within 1000 feet of the
school. Edwards also knew that the
squad car had stopped at the liquor store.
We agree with the State that, given Edwards' awareness of the officer's
presence, it is unlikely that Edwards would try to acquire cocaine either from
the passenger or at the liquor store.
The inference that Edwards possessed the cocaine when he drove within
1000 feet of a school is reasonable based on the evidence. This court must accept the inference drawn
by the fact finder. Poellinger,
153 Wis.2d at 506-07, 451 N.W.2d at 757.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.