COURT OF APPEALS DECISION DATED AND RELEASED May 22, 1996 |
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
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No. 95-1124-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ANDREW M. SHERROD,
Defendant-Appellant.
APPEAL from judgments of
the circuit court for Racine County:
EMMANUEL VUVUNAS, Judge. Affirmed.
Before Anderson, P.J.,
Nettesheim and Snyder, JJ.
PER
CURIAM. Andrew M. Sherrod appeals from judgments convicting
him of being party to the crimes of possession of cocaine with intent to
deliver and burglary with intent to commit a felony. On appeal, Sherrod claims that there was no evidence that he
actually or constructively possessed cocaine or aided and abetted in the
possession of cocaine by others. We
disagree and affirm.
Upon a challenge to the
sufficiency of the evidence to support a jury's verdict, 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. It is the
jury's province to fairly resolve conflicts in the testimony, weigh the
evidence and draw reasonable inferences from the facts. See id. at 506, 451
N.W.2d at 757. We must accept the
reasonable inferences drawn from the evidence by the jury. Id. at 507, 451 N.W.2d at
757. If more than one reasonable
inference can be drawn from the evidence, the reviewing court must adopt the
inference which supports the conviction.
State v. Hamilton, 120 Wis.2d 532, 541, 356 N.W.2d 169,
173-74 (1984).
Sherrod was tried for
two crimes: possession with intent to
deliver a controlled substance and burglary with intent to commit a felony,
both as parties to the crime. With
regard to the controlled substance charge, the State had to prove that Sherrod
possessed a substance, that the substance was cocaine base, that Sherrod knew
or believed that the substance was cocaine base and that Sherrod possessed
cocaine base with intent to deliver it.
See Wis J I—Criminal
6035. A person is a party to a
crime if he or she directly commits the crime, intentionally aids and abets the
commission of the crime, or is a party to a conspiracy to commit a crime. See § 939.05(2), Stats.
A
person intentionally aids and abets the commission of a crime when, acting with
knowledge or belief that another person is committing or intends to commit a
crime, he knowingly either
(a)assists the person who commits the
crime, or
(b)is
ready and willing to assist and the person who commits the crime knows of the
willingness to assist.
Wis J I—Criminal 400.
Sherrod argues that his
mere presence at a Racine house where controlled substances were found was
insufficient to establish actual or constructive possession of the substances
or that he aided and abetted possession and delivery of controlled substances. We disagree.
There was sufficient evidence from which the jury could infer Sherrod's
guilt as party to the crime.
The charges against
Sherrod arose out of activities in a residence located at 1804 Hamilton Street,
Racine. The tenants of the property,
Mary and Darryl Redmon, had vacated the property by February 5, 1994, and the
landlord had not given permission to anyone else to be inside the residence
after that date. On February 6, the
landlord received a telephone call from the Racine police department regarding
activity at the house and authorized the police to enter the premises. The landlord did not know any of the persons
found there by police on February 6.
A neighbor of the
residence, aware that the property should have been vacant as of February 5,
noticed activity at the house on February 6.
He saw two individuals unsuccessfully attempt to enter the house. Shortly thereafter, a vehicle later
identified as owned by Sherrod pulled up to the house and someone from
Sherrod's vehicle assisted everyone in entering the dwelling. A light came on in the kitchen and
individuals brought items into the house and covered up a kitchen window. The neighbor then called the police. After the police arrived, the neighbor
watched one man exit the house and head toward Sherrod's car. A police officer said something to the man,
the man slipped and fell, got up and began to run.
Sergeant William Krenzke
testified that he was dispatched to the Hamilton Street residence on February
6. He saw Sherrod leave the house and
yelled at him to stop. Sherrod then ran
from Krenzke and was captured by another officer.
Krenzke discovered that
the front door lock of the house had been dismantled and removed. Krenzke was advised by police dispatch that
the owner of the residence had advised the police department that there was
unauthorized activity in the house and that it looked like people were moving
in. Sherrod was identified at trial by
the apprehending officer as the individual he stopped that night. Another officer testified that he searched
Sherrod after he was taken into custody and located $281 in cash on him.
Officer Mark Sorensen
testified that he was dispatched to the Hamilton Street address on
February 6. He entered the house
through the front door and found Nakia Hayes and Nathan Sherrod (the
defendant's brother) in the kitchen, and Melvin Waldrop and Gina Sago hiding in
an upstairs bedroom. The vehicle in
front of the residence belonged to the defendant and a white powdery substance
was found in Sago's purse after it was recovered from the defendant's car. Police found scales, crack cocaine, a wad of
money, beer bottles, a microwave and baggies in the kitchen. The house was devoid of furniture.
Investigator David
Boldus of the Racine police department interviewed Sherrod on February 7. Sherrod told Boldus that he went to the
house to pick up his girlfriend, Sago, and that he arrived with Angel
Rivera. Sherrod explained that he ran
from police because he was uncertain who was hailing him and the area is
somewhat dangerous.
The parties stipulated
that crack cocaine was taken from the house and evidence was presented that
crack cocaine was being processed and packaged at the house. The State presented evidence that Sherrod's
fingerprints were found on one of the beer bottles taken from the kitchen. Police officers testified that two pagers
were recovered during the investigation and described the role pagers play in
drug transactions.
Waldrop testified that
he was on the premises on February 6 and it appeared to him that the people in
the kitchen, Nathan and Andrew Sherrod, Hayes and Rivera, were preparing to
process drugs.
Sherrod, a resident of
Illinois, testified that he went to the Hamilton Street residence because he
knew Darryl Redmon and wanted to spend the night there with his girlfriend,
Sago, instead of renting a hotel room.
Sherrod testified that when he arrived at the house, Rivera was already
there. When Redmon did not return to
the residence, Sherrod left the residence, saw the officer approaching him and
fled. Sherrod testified that he
believed Redmon was in the process of moving but that Redmon still had the
landlord's permission to be on the property.
Sherrod denied that the drugs belonged to him or that he went there to
buy or sell drugs. On
cross-examination, Sherrod conceded that he saw cocaine on the premises along
with drug paraphernalia.
Sherrod's testimony was
inconsistent with the statement he gave to Investigator Boldus and the
neighbor's testimony. Sherrod testified
that Rivera and Hayes were already in the house with the kitchen light on
before he arrived with Sago. He told
Boldus that he and Rivera arrived together.
The neighbor testified that the light did not go on until the vehicle
owned by Sherrod arrived.
We agree with the State
that there was evidence from which the jury could reasonably infer that Sherrod
was party to the crime of possessing cocaine with intent to deliver. Although the jury could have believed
Sherrod's version of events, it was not bound to do so. It was the jury's province to resolve
conflicts in the testimony. Poellinger,
153 Wis.2d at 506, 451 N.W.2d at 757.
We must accept the reasonable inferences drawn from the evidence by the
jury.
In addition to evidence
that Sherrod aided and abetted possession of cocaine with intent to deliver, we
note that Sherrod fled from the police.
Flight can be circumstantial evidence of consciousness of guilt. See State v. Winston,
120 Wis.2d 500, 505, 355 N.W.2d 553, 556 (Ct. App. 1984). The jury was free to reject Sherrod's
explanation for his flight from the officer.
Sherrod relies heavily
on State v. R.B, 108 Wis.2d 494, 322 N.W.2d 502 (Ct. App. 1982),
to support his claim that there was insufficient evidence of actual or
constructive possession of a controlled substance. R.B. is distinguishable because in that case the
defendant was not charged as party to the crime and the State was required to
prove that he possessed beer while a minor.
Here, Sherrod was charged as party to the crime and the State met its
burden of proof on that charge.
Finally, we reject
Sherrod's challenge to the sufficiency of the evidence of his guilt of burglary
because his challenge is premised on the insufficiency of the evidence that he
entered the Hamilton Street residence with intent to be party to the crime of
possessing cocaine with intent to deliver.
Having found sufficient evidence to support the latter crime, we need
not address Sherrod's challenge to the former.
By the Court.—Judgments
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.