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COURT OF APPEALS DECISION DATED AND RELEASED September 6, 1995 |
NOTICE |
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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. 95-0769-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
TERRANCE T. FLETCHER,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Waukesha County:
MARIANNE E. BECKER, Judge. Affirmed.
NETTESHEIM, J. Terrance
T. Fletcher appeals from a judgment of conviction for selling a dangerous
weapon to a child pursuant to § 948.60(2)(b), Stats.,
1991-92.[1] On appeal, Fletcher contends that the
evidence at the close of the State's case did not establish that he sold the
weapon to the child. More specifically,
Fletcher contends that the evidence does not establish a physical transfer of
possession of the weapon to the child.
We reject Fletcher's argument.
We affirm the conviction.
Before we set out the
facts, we clarify the scope of the evidence which we consider on the appellate
issue. When we are asked to review a
trial court's ruling on a motion to dismiss at the close of the State's case,
we must consider all of the evidence presented in the case if the
defendant has proceeded to present evidence following the court's denial of
the motion to dismiss. State v.
Kelley, 107 Wis.2d 540, 544, 319 N.W.2d 869, 871 (1982). Here, after the trial court denied his
motion to dismiss at the close of the State's case, Fletcher proceeded to
present evidence in support of his defense.
We therefore look to all the evidence in reviewing the trial court's
ruling.
In determining whether
the evidence was sufficient, we inquire whether the evidence adduced, if
believed and rationally considered by the jury, was sufficient to establish the
elements of the crime for which the defendant was found guilty. See State v. Kaufman,
188 Wis.2d 485, 490, 525 N.W.2d 138, 139 (Ct. App. 1994).
The evidence showed the
following. On November 15, 1993, the
date of the offense, Fletcher was living with his friend Rick Ronkowski at
Ronkowski's home. In a statement to the
police, Fletcher admitted that he sold a pistol for $60 to a minor, then
sixteen years of age. The transaction
took place in Fletcher's bedroom at the Ronkowski home.
The minor had previously
given the police a statement concerning the transaction. A portion of this statement was read to the
jury. In his statement, the minor
admitted that he had purchased the pistol from Fletcher for $60. He also stated that he did not take the
pistol to his home because he did not want his parents to know about the
transaction. In addition, the minor
testified at the trial. In his
testimony, the minor again admitted the transaction, but added that “I never
took it into possession.” However, the
minor conceded that he took the pistol and placed it in an end table in
Ronkowski's bedroom. At another point
in his testimony, the minor retreated from this statement, contending that he
could not remember if he took the pistol to Ronkowski's room. Later, the minor directed the police to the
location of the pistol in Ronkowski's room.[2]
On appeal, Fletcher
argues that a physical transfer of the possession of the weapon is necessary to
establish a “sale” pursuant § 948.60(2)(b), Stats.,
1991-92, and that the evidence we have summarized does not establish such a
transfer. We will assume, without
deciding, that a sale of a dangerous weapon within the meaning of the statute
requires proof of transfer of possession.
Nonetheless, we hold that the evidence was sufficient to establish a
transfer of the weapon.
Both Fletcher and the
minor admitted that the transaction took place. The only reason the minor did not take the pistol to his home was
because he feared his parents would learn about the purchase. Thus, the minor chose to leave the weapon at
the Ronkowski home. This evidence alone
supports a reasonable inference that Fletcher had transferred and surrendered
possession of the pistol to the minor.
At a minimum, the evidence established constructive possession of the
weapon in the minor. He was then the
owner of the weapon with full entitlement to its possession.
Moreover, the minor
admitted in his testimony that he placed the pistol in the end table in
Ronkowski's room. This constitutes
direct evidence of the minor's physical possession, dominion and control of the
pistol after the sale was completed.
The minor's later testimony that he never took possession of the weapon
presented a credibility determination for the jury. The jury, as ultimate arbiter of credibility, has the power to
accept one portion of a witness's testimony and reject another portion. O'Connell v. Schrader, 145
Wis.2d 554, 557, 427 N.W.2d 152, 153 (Ct. App. 1988). Here, the jury obviously chose to believe that portion of the
minor's testimony that he placed the pistol in the end table. The minor's ability to later direct the
police to the location of the pistol in Ronkowski's room strongly supports the
jury's choice on this question.
We hold that the
evidence demonstrated a transfer of the possession of the pistol from Fletcher
to the minor.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.