PUBLISHED OPINION
Case No.: No. 95-0323-CR
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JAY A. JANSEN,
Defendant-Appellant.
Submitted on Briefs: November 20, 1995
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: December 20, 1995
Opinion Filed: December 20, 1995
Source of APPEAL Appeal
from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Washington
(If "Special", JUDGE: Lawrence F. Waddick
so indicate)
JUDGES: Brown,
Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of the defendant-appellant, the cause was submitted on the briefs of Waring
R. Fincke of Dvorak & Fincke, S.C. of Milwaukee.
Respondent
ATTORNEYSOn
behalf of the plaintiff-respondent, the cause was submitted on the brief of James
E. Doyle, attorney general, and Mary V. Bowman, assistant attorney
general.
COURT OF APPEALS DECISION DATED AND RELEASED December 20, 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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0323-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JAY A. JANSEN,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Washington County:
LAWRENCE F. WADDICK, Judge. Reversed.
Before Brown, Nettesheim
and Snyder, JJ.
BROWN, J. Jay
A. Jansen contends that the trial court erred in its analysis of his entrapment
defense. Although the trial court
accepted his claim and acquitted him of the charged offense, it nonetheless
found him guilty of a lesser included crime.
Jansen argues that once the trial court found entrapment, it was
precluded from considering any lesser included charges as a matter of law. We agree and reverse his conviction.
In May 1991, the State
charged Jansen on a single count of attempted marijuana possession with intent
to deliver. Jansen had purchased about
520 grams from two undercover officers.
This arranged sale followed a year-long investigation by the Washington
County Drug Unit.
After lengthy pretrial
proceedings, the parties agreed to a bench trial in February 1993. Each submitted briefs and the trial court
reviewed the facts within the record.
Jansen presented two
theories. First, he argued that the
undercover officers entrapped him. In
support, he primarily pointed to testimony which showed how the officers had
repeatedly tried to buy drugs from him but to no avail. Jansen also argued that the officers alone
set the terms of sale, i.e., amount and price, and refused his counter offer to
buy less. He claimed that these facts
revealed how the officers induced him into breaking the law. See generally Jacobson v.
United States, 503 U.S. 540, 548-49 (1992).
As an alternative
defense, Jansen claimed that the State failed to prove that he intended to
deliver the marijuana to others. He
challenged the State's evidence on this element which consisted of a reference
by Jansen that he could get rid of all 520 grams in just one day. Jansen proposed that his statement was just part
of the give and take common to all drug transactions. Therefore, it alone did not show that he intended to buy the
drugs with an eye towards future sales.
The trial court accepted
Jansen's entrapment argument.
Nonetheless, it concluded that the State had established all the
elements of simple possession and found Jansen guilty on this lesser included
offense. In its decision memorandum,
the trial court first reviewed the facts; it then set out its reasoning as
follows:
This drug purchase by the defendant was at all times initiated by the
Government agents. They had actively
and unrelentingly pursued him to purchase drugs for a period of at least eight
months. Their ingratiating contact with
him was for approximately one year.
There was no evidence offered by the State that the defendant was
predisposed to possessing controlled substances with intent to deliver,
or attempting to do so as he is charged in this matter. The Government agents induced him to commit
the crime. The only evidence which
could reasonably be linked to predisposition was the incident 10 years prior to
this transaction, and that is so “stale” that it cannot possibly be accepted as
evidence of current predisposition. The
burden of showing predisposition is upon the State, beyond a reasonable
doubt. See Wisconsin Jury Instruct
[sic] 780, and Jacobson v. U.S., 118 L Ed 2d 2174 (U.S. Supreme Court
1992), U.S. v. Hollingsworth, 1994 WL 236976 (7th Cir. C.A., (Ind)), and State v. Saternus,
127 Wis.2d 460 (S.C. 1986).
....
These agents induced Jansen to purchase the tetrahydrocannabinols and in
an amount rigidly demanded by them.
There was no State testimony that the amount of tetrahydrocannabinols
involved would be consistent with an intent to deliver a controlled substance,
i.e. an amount over 500 grams. The
Court cannot take judicial notice of such a presumption and believes that it is
simply one of the criteria to consider with respect to determining intent. The conclusion that this Court can and does
reasonably draw from the actions of the defendant was that he was only
interested in personal use and that the State failed to meet its burden of
proof to show that he intended to deliver a controlled substance. His mere statement that he could get “rid of
it in one day” was directed to its quality, rather than any desire to deliver
it. In accordance with the findings of
fact of this Court and applying the applicable law, this Court finds that Mr.
Jay A. Jansen was entrapped by the Government into the offense of attempted
possession of a controlled substance with intent to deliver. Even if he was not entrapped into that
offense, the Court has not been shown, to a degree beyond a reasonable doubt,
that he intended to deliver a controlled substance, and therefore, I do find
him not guilty of that offense.
However, I do find that he did, beyond a reasonable doubt, commit the
crime of possession of a controlled substance, contrary to §161.41(3), which is
a lesser included offense to possession of a controlled substance with intent
to deliver.
These
passages reveal that the trial court made three findings; first, Jansen was not
guilty of possession with intent to deliver because he was entrapped; second,
he was not guilty of the same charge because the State had not proven the
intent to deliver element; and third, the State had proven that Jansen was
guilty of simple possession.
After the verdict was
announced, Jansen brought a motion for reconsideration. There he argued that once the trial court
made its entrapment finding, it was precluded from considering any lesser
included offenses. The motion was
denied and Jansen now renews this argument.
This issue involves interpretation of the entrapment defense, which is a
matter of law. See State v.
Saternus, 127 Wis.2d 460, 475, 381 N.W.2d 290, 296-97 (1986). We therefore apply de novo review. See First Nat'l Leasing Corp. v. City
of Madison, 81 Wis.2d 205, 208, 260 N.W.2d 251, 253 (1977).
We begin our analysis
with further discussion of the trial court's decision. The above excerpt shows that it accepted
Jansen's entrapment defense to a limited extent. The trial court reasoned that the evidence suggesting that Jansen
took possession with designs on future sales arose only because of police
conduct and therefore found that Jansen's entrapment defense was valid. The court determined that the defense
extinguished the “intent to deliver” element.
Accordingly, it also agreed with Jansen that the State had not met its
burden on this same element.
The trial court, however,
did not stop there. It looked at the
evidence within the record and concluded that Jansen was nonetheless guilty of
the lesser included offense of simple possession. Compare § 161.41(1m), Stats., (possession with intent to deliver) with § 161.41(3)
(simple possession). Here, the trial
court seemed to have reasoned that Jansen's interest in obtaining marijuana for
personal use did not arise out of police conduct. As it explained in its findings, Jansen admitted to past
use. Thus, in essence, the trial court
limited Jansen's entrapment defense to the “intent to deliver” element of the
charged offense. Indeed, it seems
logical that Jansen, an admitted drug user, could have been entrapped into
becoming a drug dealer.
This plain and simple
approach, however, resulted in a verdict that was inconsistent as a matter of
law.[1] The entrapment defense may only be applied
when all the elements of the charged offense are established. Saternus, 127 Wis.2d at 468,
381 N.W.2d at 293. As Jansen explains
in his briefs, the supreme court's interpretation of the entrapment defense in State
v. Monsoor, 56 Wis.2d 689, 203 N.W.2d 20 (1973), therefore precludes a
trial court from considering the lesser included charges once it finds
entrapment.
In Monsoor,
the court held that a defendant who stood on the entrapment defense could not
request instructions on lesser included charges. Id. at 696-97, 203 N.W.2d at 23-24. In reaching this conclusion, it observed
that before a fact finder is instructed on a lesser included charge, there must
be doubt about the accused's guilt on the greater charge. See id.
at 695, 203 N.W.2d at 23. And
because assertion of entrapment requires the accused to admit guilt,
consideration of the defense legally precludes the fact finder from looking at
any lesser included offenses as there can be no doubt that the defendant
fulfilled all the elements of the greater charge. Here, given Jansen's assertion of the entrapment defense, under Monsoor
a finder of fact could not have been instructed on both the intent to deliver
charge and the simple possession charge.
We thus hold that the trial court erred when it found him guilty of the
lesser charge.[2]
Although we appreciate the trial court's
commonsense approach to the facts before it, the face of its decision, through
references to Wis J I—Criminal 780 and
the Saternus decision, nonetheless reveals that the trial court made
a finding that Jansen was “entrapped.”
We must therefore follow Monsoor which informs us that it
is an all or nothing proposition.[3] Any advancements or modifications in this
doctrine must arise in the supreme court.
See State v. Grawien, 123 Wis.2d 428, 432, 367
N.W.2d 816, 818 (Ct. App. 1985).
In reaching this
conclusion, we reject the State's argument that State v. Sarabia,
118 Wis.2d 655, 348 N.W.2d 527 (1984), “implicitly overruled Monsoor's
unbending approach” and thus supports the trial court's application of the
entrapment doctrine. The Sarabia
decision laid out a special exception to the rule on when lesser included
charges may be submitted to the jury.
It provides that a lesser included charge that is contrary to the
defendant's exculpatory testimony during the case may nonetheless be submitted
if there is other, distinct evidence which supports the lesser charges and acquittal
on the greater charge. See Sarabia,
118 Wis.2d at 663, 348 N.W.2d at 532.
The State argues that
the Sarabia rule should be extended to cover the defendant's
submission of entrapment. Just like the
jury could have completely rejected Sarabia's exculpatory testimony and thus
convicted him of the lesser included charge, the State contends that a fact
finder should be able to reject the defendant's “admission” to all the elements
of the crime that is coupled with the use of entrapment and convict him or her
of a lesser included charge. See id. In addition, the State points to evidence in
the record, aside from that produced by Jansen, which would support the simple
possession conviction.
As explained above,
however, we decline to make this or any other extensions to the entrapment
defense. Moreover, we observe that the Sarabia
decision was carefully confined to the problem presented when a defendant's
exculpatory testimony is inconsistent with his or her request for a lesser
included charge. See id. It did not address, nor even hint at in
dicta, whether a defendant's claim of entrapment would be the same type of
“special situation.” See id.
To summarize, we reverse
Jansen's conviction because the trial court decision reveals an error of
law. Although it may not have intended
to describe its doubts about the State's evidence with the term “entrapment,”
the inclusion of this word and supporting citations nonetheless require us to
apply the case law as it stands.
By the Court.—Judgment
reversed.
[1]
The State concedes that the trial court returned an inconsistent
verdict, but reasons that the simple possession verdict was the trial court's
primary ruling and argues:
The trial court's alternative
ruling that Jansen was entrapped as to the greater offense is legally
irrelevant. Like an inconsistent
verdict rendered by a jury, it simply has no legal effect on the valid verdict
which was returned.
The State, however, provides no authority supporting its proposal to simply jettison the trial court's entrapment finding. Moreover, we observe that the excerpt of the ruling set out above reveals that the conclusion of the trial court was that “Jay A. Jansen was entrapped by the Government into the offense of attempted possession of a controlled substance with intent to deliver.” In a criminal proceeding, we do not see how such a clear statement can be deemed legally “irrelevant.” Cf. State v. Reid, 166 Wis.2d 139, 144, 479 N.W.2d 572, 574 (Ct. App. 1991) (once a court has accepted the jury's verdict it cannot order it to redeliberate).
[2]
In State v. Monsoor, 56 Wis.2d 689, 695, 203 N.W.2d 20, 23
(1973), the court cautioned that:
a determination of whether an
instruction on a lesser included crime should be given to a jury is not solved
by merely determining the crime charged includes the lesser offense because
juries are not to be given the discretion or freedom to pick and choose what
offense the accused should be found guilty of.
[Quoted source omitted.]
Although this was a bench trial, once the trial court put on its fact-finding hat, it was bound to consider only the charges that the parties had submitted.
[3] The Monsoor court faced another problem with an all or nothing entrapment defense. The defendant claimed that it placed him in the “intolerable” position of having to choose between going for broke on entrapment or compromising with a lesser included charge. See Monsoor, 56 Wis.2d at 696, 203 N.W.2d at 23.