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COURT OF APPEALS
DECISION                                                                  NOTICE
DATED AND FILED
This  opinion  is  subject  to  further  editing.  If
published, the official version will appear in the
bound volume of the Official Reports.
April 12, 2001
                                                                                                                                         A  party  may  file  with  the  Supreme  Court  a
                                                                                                                                         petition  to  review  an  adverse  decision  by  the
                                                                          Cornelia G. Clark
                                                                                                                                         Court of Appeals.   See WIS. STAT. § 808.10 and
                                                                          Clerk, Court of Appeals
                                                                                                                                         RULE 809.62.
                                                                          of Wisconsin
No.                                                                       99-3235-CR
STATE OF WISCONSIN                                                        IN COURT OF APPEALS
                                                                          DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
ARTHUR J. MCCOY,
DEFENDANT-APPELLANT.
APPEAL  from a judgment and an order  of  the circuit court for
La Crosse County:   DENNIS G. MONTABON, Judge.   Affirmed.
Before Vergeront, Roggensack and Deininger, JJ.
¶1                                                                        PER CURIAM.    Arthur  McCoy  appeals  from  a  judgment  of
conviction and an order denying his postconviction motion.   We affirm.




No(s). 99-3235-CR
¶2                                                                                        McCoy  first  argues  that  his  right  to  a  fair  trial  was  prejudiced
because, at the conclusion of jury selection, one of the jurors saw an officer
putting McCoy in leg shackles for transport back to jail.   At the postconviction
hearing, McCoy and his trial attorney testified about the incident.    McCoy, in
particular, testified he was seen by one of the jurors who was to sit on his case.
According to McCoy, the juror was standing in the doorway of the courtroom
while McCoy was near counsel tables with a sheriff’s deputy in the act of putting
shackles on him.1
¶3                                                                                        The trial court denied the motion because it concluded McCoy failed
to meet his burden of proof to show that the juror observed the deputy putting the
shackles on or attempting to put them on.    The court stated:  “The court takes
judicial notice because the counsel tables have front and side panels that extend
within approximately 6 inches of the floor.   It would have been very difficult if not
impossible for a juror to see what the defendant alleges from the alleged point of
observation of the jurors.”
¶4                                                                                        On appeal, McCoy argues this finding was clearly erroneous because
it was contrary to the testimony at the postconviction hearing.   However, the trial
court is obviously in a better position than this court to determine whether that
testimony was credible in light of the courtroom layout.   Furthermore, on cross-
examination McCoy conceded that maybe the juror could not see his feet.
¶5                                                                                        McCoy also appears to argue there were other moments before or
after jury selection when jurors may have seen him in shackles.   However, there is
1   Although McCoy testified two jurors saw him while that incident took place, he said
that only one of those jurors was on the panel that decided his case.
2




No(s). 99-3235-CR
no specific evidence that any particular juror saw him at those times, other than
speculation based on the circumstances.
¶6                                                                                           McCoy’s  second  argument  is  that  the  trial  court  erroneously
admitted other acts evidence.   McCoy was on trial for alleged delivery of cocaine
on May  27,  1998.    Shawn Martin testified that on May  27 he obtained crack
cocaine from McCoy three times, all without paying.   Martin testified that at their
last meeting they agreed he would pay $400 the next day.   Martin then went to the
police and agreed to meet with McCoy the next day to pay him, and also to
attempt a new  “controlled buy” of more cocaine, while wearing a microphone.
Martin met with McCoy on May 28, but the meeting ended prematurely when
McCoy inadvertently gave police the prearranged signal that the transaction was
done.   However, a tape recording was made of the meeting and officers testified as
to what they observed during and after that meeting when they attempted to arrest
McCoy.   It could be inferred from the evidence that McCoy was willing to sell
additional cocaine on May 28, though none was found on his person when he was
apprehended.
¶7                                                                                           Before trial, McCoy filed a motion in limine to bar all evidence of
the new attempted controlled buy.   The trial court denied the motion on the ground
that the evidence was other acts evidence admissible for intent, preparation, and
plan under WIS. STAT. § 904.04(2) (1999-2000).2   On appeal, McCoy argues the
evidence was not admissible under that statute, while the State argues that it was.
However, we conclude the evidence was not evidence of other acts.   The evidence
2   All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise
noted.
3




No(s). 99-3235-CR
was essentially part of the same transaction rather than evidence of McCoy’s
character.
¶8                                                                                         McCoy  next  makes  two  arguments  that  there  was  insufficient
evidence  that  the  substance  he  delivered  to  Martin  on  May  27  was  cocaine.
Martin testified he smoked the substances, and as a result they were not preserved
or tested.
¶9                                                                                         McCoy’s first argument is that the State failed to prove whether the
substance was cocaine, or was instead an analog of cocaine.    He argues that
delivery of a cocaine analog is “a separate crime” from delivery of cocaine.   In the
statute McCoy was charged with violating, it is a crime to deliver “a controlled
substance or controlled substance analog.”    WIS. STAT.  § 961.41(1)  (1995-96).
The term “controlled substance analog” is defined in WIS. STAT. § 961.01(4m)
(1995-96).    McCoy  also  notes  that  there  is  a  separate  jury  instruction  for
possession of an analog based on that definition.   However, the instruction given
in this case was only for cocaine, not for analogs.   McCoy does not argue that he
presented any evidence to the jury about the possibility that the substance in this
case was an analog rather than cocaine.   Nor does McCoy cite any authority for
the  proposition  that  it  was  the  State’s  burden  to  affirmatively  eliminate  the
possibility that the substance was an analog in order to obtain a conviction under
the current statute.   Therefore, we conclude that if the State introduced testimony
sufficient to establish that the substance was cocaine, the jury’s verdict is founded
on sufficient evidence.
¶10    McCoy also argues the evidence was insufficient to establish the
substance was cocaine.   In response, the State relies on Martin’s testimony about
the transactions and the substance.   Martin said he had a cocaine “problem” for
4




No(s). 99-3235-CR
about twenty years, that he bought “rock” cocaine from McCoy three times on
May 27, and that he smoked it after each purchase.   He said it was common for
him to  smoke  these  amounts  “when  I  get  going.”    Although  Martin  did  not
specifically describe the appearance of the substance or its effect on him, it was
implied within his testimony that he recognized the substance as cocaine.    In
addition, the fact that Martin made three separate purchases from McCoy on the
same day suggests the substance Martin obtained was indeed the one that he was
intending to purchase, namely, cocaine.
By the Court.—Judgment and order affirmed.
This opinion will not be published.   WIS. STAT. RULE 809.23(1)(b)5.
5

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