Preview:

COURT OF APPEALS
NOTICE
DECISION
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.
October 4, 2005
A party may file with the Supreme Court a
Cornelia G. Clark                                                                                                                                         petition to review an adverse decision by the
Clerk of Court of Appeals                                                                                                                                 Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                          and RULE 809.62.
                                                                                                                                                          Cir. Ct. No.   2003CF1242
Appeal No.                                                                              2004AP2911-CR
STATE OF WISCONSIN                                                                                                                                        IN COURT OF APPEALS
                                                                                                                                                          DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
SHALAMAR BURSINGER,
DEFENDANT-APPELLANT.
APPEAL  from  a  judgment  of  the  circuit  court  for  Milwaukee
County:  TIMOTHY G. DUGAN, Judge.   Affirmed.
Before Wedemeyer, P.J., Fine and Curley, JJ.
¶1                                                                                      PER  CURIAM.    Shalamar  Bursinger  appeals  from  a  judgment
entered  after  a  jury  convicted  him  of  possession  of  a  controlled  substance
(cocaine)  with  intent  to  deliver,  and  possession  of  a  controlled  substance
(marijuana) with intent to deliver, contrary to WIS. STAT.  §§ 961.41(1m)(cm)4.




No.   2004AP2911-CR
and 961.41(1m)(h)3. (2003-04).1   Bursinger claims the evidence was insufficient
to support the convictions.   Because the evidence is sufficient to support the jury’s
verdict, we affirm.
BACKGROUND
¶2                                                                                           On February 21, 2003, City of Milwaukee police officers executed a
search warrant at 2520-22 West Mitchell Street.   This was a two-story residence,
with living space in the third-story attic.   In searching the attic, the officers located
two individuals, Joshua Weber and Terence Gray.2   Bursinger was not home at the
time of the search, although it is undisputed that he lived at that residence.
¶3                                                                                           The  officers indicated that the  attic  had a  “significant”  smell of
marijuana.   In the bedroom area of the attic, the police found a closet-type box,
which was used to store clothing.    The box was zippered shut.    The odor of
marijuana in the box was strong.   Inside that box, the officers located a smaller
box, which contained three large plastic bags of marijuana.
¶4                                                                                           Police officers also found a number of jackets along an attic wall,
one of which contained bags of marijuana and cocaine.   In addition, in plain view,
they  found  a  notebook  with  notations  of  information  relating  to  the  sale  of
marijuana and cocaine.   They also found an electronic scale, a marijuana pipe,
“blunts,”  knives,  a  loaded-unregistered  handgun  and  a  variety  of  documents
addressed to Bursinger, including telephone bills, a medical bill, a letter from an
1  All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise
noted.
2  Joshua Weber is also referred to as Joshua Gray.   Terence Gray is also referred to as
Terrance Gray.
2




No.   2004AP2911-CR
insurance company, a notice of a hearing from municipal court and a W-2 wage
statement.   The documents all were dated within the four months preceding the
search.   Bursinger’s driver’s license was also found in the attic.
¶5                                                                                         The two individuals found in the attic were arrested and each took a
coat from the attic before exiting the home.   Neither individual took the coat that
had the contraband removed from the pockets.
¶6                                                                                         Bursinger told police that he lived in the upper and lower levels of
the home.   He was charged as noted above and entered a not guilty plea.   The case
was presented to a jury.
¶7                                                                                         During trial, Bursinger’s half-sister was subpoenaed to testify.   She
refused to comply with the subpoena, but did eventually come to court on a body
attachment.   When asked who lived in the attic, she said she did not know―that
“no one” lived in the attic.   She claimed Bursinger used the attic for storage.   She
also testified that she could smell marijuana from the house’s vent work, but did
not know whether the vents were connected to the attic or the lower level of the
house.   Her trial testimony contradicted her statement to police at the time of the
search―that Bursinger lived in the attic alone and she would occasionally smell
marijuana coming from the attic vents.
¶8                                                                                         The husband of Bursinger’s half-sister, another resident of the home,
also testified at trial.   He stated that Bursinger “stayed on and off” in the attic and
that Bursinger lived in the attic alone.   He said that he saw a lot of people coming
and going from the attic, smelled marijuana coming from the attic, and never
heard people in the attic unless Bursinger was there.
3




No.   2004AP2911-CR
¶9                                                                                         Bursinger  did  not  testify at  trial.    The  defense  did  not  call  any
witnesses.    The  jury  found  Bursinger  guilty  on  both  counts.    Judgment  was
entered.   He now appeals.
DISCUSSION
¶10    Bursinger’s  only  claim  is  that  the  evidence  was  insufficient  to
support  the  jury’s  verdict  that  he  was  guilty  of  possession  of  marijuana  and
cocaine.   In essence, he argues that, as a matter of law, he could not be found
guilty of possession because there was insufficient evidence to demonstrate that he
had dominion and control over the area where the contraband was found and that
he knew of the presence of the drugs.   He argues that the more reasonable view of
the evidence is that the two individuals found in the attic during the search had
hidden the drugs in the attic when they heard the police enter the home.   The State
responds that the evidence supports the reasonable inference that Bursinger knew
the drugs were present in the attic.   We agree that the evidence was sufficient to
uphold the jury’s determination.
¶11    Our review of a sufficiency of the evidence claim is limited.   We
will not reverse a conviction unless the evidence, viewed most favorably to the
state and the conviction, is so insufficient in probative value and force that it can
be said as a matter of law that no trier of fact, acting reasonably, could have found
guilt beyond a reasonable doubt.   State v. Poellinger, 153 Wis. 2d 493, 501, 451
N.W.2d 752 (1990).
¶12    In his claim, Bursinger attacks only the possession element of the
crimes.   He argues that the evidence does not support any reasonable inference
that  he  possessed  either  the  cocaine  or  the  marijuana  because  there  was  no
evidence that he knew of the presence of the drugs.
4




No.   2004AP2911-CR
¶13    This case involved constructive  (as opposed to actual) possession.
In order to prove that Bursinger had possession of the contraband, the State needed
to establish that “‘the contraband is found in a place immediately accessible to the
accused and subject to his exclusive or joint dominion and control,’” Ritacca v.
Kenosha County Court,  91 Wis.  2d  72,  82,  280 N.W.2d  751  (1979)  (citation
omitted) and that he had “‘knowledge of the presence of the drug,’” id. (citation
omitted).
¶14    Bursinger admits that the drugs were found in a place subject to his
control.   He challenges only the second part of the test—that he had no knowledge
of the presence of the drugs.   When possession of the premises is non-exclusive,
certain circumstances will support an inference of knowledge that the drugs are in
the premises.   These include:                                                            (1) the defendant had access to the area where the
drugs were found; (2) whether the drugs were in plain view; and (3) the presence
of items used to make or package the drugs.   State v. Allbaugh, 148 Wis. 2d 807,
813, 436 N.W.2d 898 (Ct. App. 1989).
¶15    The record reflects that all these elements were presented to the jury
in this case.   There is no dispute that Bursinger had access to the areas in the attic
where the drugs were discovered.   His half-sister testified he used the attic for
storage, and her husband testified that Bursinger lived “on and off” in the attic.
¶16    Next, some of the drugs discovered were in plain view, including the
marijuana remnants found on the table and the blunts found on the scale in the
corner of the attic.   Finally, items used to make or package the drugs were found in
the attic.
¶17    The jury heard testimony that Bursinger lived sporadically in the
attic, which had a strong odor of marijuana.   The “clothes”-like box also smelled
5




No.   2004AP2911-CR
of marijuana.   Anyone opening it would have known that it contained marijuana.
The drugs were found in readily accessible areas.    The jury heard one house
resident testify that he only smelled marijuana coming from the attic vents when
Bursinger was in the attic.   The evidence presented to the jury included personal
papers suggesting that Bursinger was living in the attic, and the drug paraphernalia
and a drug ledger were in plain view in the attic.
¶18    Given all of these facts, we cannot say that no jury could have found
Bursinger guilty beyond a reasonable doubt.   Further, as the State points out, the
evidence could also support a finding that the individuals discovered in the attic
during the search planted all the drug evidence to avoid liability.   Nonetheless, it is
not the role of this court to resolve conflicts in the testimony.    Weighing the
evidence and determining who is telling the truth is a task particularly assigned to
the jury.   Poellinger, 153 Wis. 2d at 506.   This court “need not concern itself in
any way with evidence which might support other theories of the crime.”   Id. at
507-08.   Rather, our review is limited to determining whether there is sufficient
evidence to support that view, which the jury decided was the truth.   We have
concluded that there is sufficient evidence to support the determinations reached
by the jury.   Accordingly, we affirm.
By the Court.—Judgment affirmed.
                                                                                           This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                                  (b)5.
6

Download 19778.pdf

Wisconsin Law