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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.
August 7, 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.                                                                                   99-2831-CR
STATE OF WISCONSIN                                                                    IN COURT OF APPEALS
                                                                                      DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
WILLY J. LOVE,
DEFENDANT-APPELLANT.
APPEAL  from  a  judgment  and  order  of  the  circuit  court  for
Milwaukee County:   KITTY K. BRENNAN, Judge.   Affirmed.
Before Fine, Schudson and Curley, JJ.
¶1                                                                                    PER CURIAM.   Willy J. Love appeals from a judgment, entered
after a jury trial, convicting him of possession of cocaine with intent to deliver,
second or subsequent offense, as a party to a crime, and possession of cocaine
without the tax stamp, in violation of WIS. STAT. §§   961.41(1m)(cm)4, 961.48,




No. 99-2831-CR
939.05 and 139.89.1   He also appeals from an order denying him postconviction
relief.   Love asserts the following claims of error:  (1) he was denied effective
assistance of counsel because his trial lawyer did not attempt to impeach a police
officer  at  the  suppression  hearing;                                                               (2)  the  trial  court  erred  by  excluding  the
testimony of Love’s accomplice, whom, he claims, would have testified that the
cocaine belonged to him; and (3) his convictions for both possession of cocaine
with intent to deliver and possession of cocaine without the tax stamp violate
double jeopardy.   We affirm.
I.   BACKGROUND
¶2                                                                                                    Love was a passenger in a car driven by his half-brother, Robert
Davis, when two police officers stopped the car for having an obstructed view.   In
the police report, Officer August Halama stated that the view was obstructed by a
“pine cone” on the rear view mirror.   Police approached the car and saw several
cell phones and a bag of sandwich baggies on the floor behind the driver and the
passenger.   After the driver consented to a search of the vehicle, police found a
digital scale with white residue.   Love consented to a search of his person and
police found a plastic baggie containing cocaine in his pants.   According to Love,
1  WISCONSIN   STAT.                                                                                  § 139.89                                                               (1991-92),  the  tax  stamp  law,  was  found  to
unconstitutionally compel self-incrimination in State v. Hall, 207 Wis. 2d 54, 557 N.W.2d 778
(1997).   Effective October 14, 1997, however, the tax stamp law was amended to accommodate
Hall’s criticisms. See                                                                                1997  WIS. ACT  27  § 2979m.    The crimes alleged in this case were
committed in September  1998, after the amendment’s effective date.   Love does not raise a
constitutional challenge to WIS. STAT. § 139.89, other than his contention that conviction for both
possession and possession without affixation of a tax stamp violates his right to be free from
double jeopardy.
All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise
noted.
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No. 99-2831-CR
the cocaine belonged to Davis, who had thrown the cocaine to him when the
police stopped the car.
¶3                                                                                         Love moved to suppress the cocaine as the fruit of an illegal stop.
At the suppression hearing, Officer Halama was not called to testify.   Instead, his
partner, Officer Jeffrey Timmerman, testified and, as characterized by the trial
court, “gave a precise, detailed description of a hundred dollar bill air freshener in
a fan shape, 5 inches by 4 to 6 inches below the mirror, plus two Styrofoam eight
balls hanging from the rear-view mirror approximately 3 to 4 inches below the
mirror of golf ball size.”    Love also testified at the suppression hearing.    He
admitted that a pine cone air freshener was hanging about four inches below the
rear view mirror.    Defense counsel did not impeach Officer Timmerman with
Officer Halama’s police report, however.   The trial court found the stop to be valid
and denied Love’s motion to suppress, stating: “I believe Officer Timmerman that
there was an obstructed view at least in the officer’s judgment.”   The trial court
also found: “The defendant says it was just a pine cone air freshener … but I did
not believe his version of what was hanging from the rear-view mirror.”
¶4                                                                                         Prior  to  trial,  defense  counsel  proffered the  testimony of  Robert
Davis, who would have testified that the cocaine found on Love belonged to him,
that he threw it to Love when the car was stopped, and that Love did not know
about the presence of the cocaine before it was thrown to him.   The trial court
excluded this evidence as not relevant to the elements of possession with intent to
deliver  cocaine,  reasoning  that  it  did  not  matter  if  the  cocaine  belonged  to
someone else since Love possessed it in his pants.   In addition, the trial court
noted that at the suppression hearing Love had testified that he intended to throw
the cocaine back to Davis after the police left, which the court considered to be a
“delivery.”   At trial, Love testified that the cocaine did not belong to him but that
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No. 99-2831-CR
he would have left the cocaine on the ground rather than giving it back to Davis.
As noted, the jury found Love guilty of both charges.
¶5                                                                                      At the postconviction hearing, held pursuant to State v. Machner, 92
Wis.  2d  797,  285 N.W.2d  905  (Ct. App.  1979)  (evidentiary hearing generally
required for ineffective-assistance-of-counsel claims), the court determined that
Love’s trial lawyer “ably litigated the suppression motion.”   The trial court found:
“Timmerman’s testimony was remarkable … and I say that even today after I’ve
seen the back of the citation, the police report and heard the testimony,” and
determined that its conclusion would have been the same.   The court again found
Robert Davis’s proffered testimony to be irrelevant and rejected Love’s double
jeopardy argument.
II.   DISCUSSION
A.   Ineffective-Assistance-of-Counsel Claim
¶6                                                                                      Love first claims that he was denied effective assistance of counsel
because his trial lawyer did not attempt to impeach Officer Timmerman with the
police report and testimony of Officer Halama at the suppression hearing.   The
familiar  two-pronged  test  for  ineffective-assistance-of-counsel  claims  requires
defendants to prove: (1) deficient performance and (2) prejudice. See Strickland v.
Washington, 466 U.S. 668, 690 (1984); State v. Johnson, 133 Wis. 2d 207, 216-
217, 395 N.W.2d 176, 181 (1986).   To prove deficient performance, a defendant
must show specific acts or omissions of counsel which were  “outside the wide
range of professionally competent assistance.” Strickland, 466 U.S. at 690.   To
show prejudice, a defendant must demonstrate that the result of the proceeding
was unreliable. See id., 466 U.S. at 687.   If a defendant fails on either aspect—
deficient  performance  or  prejudice—the  ineffective-assistance-of-counsel  claim
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No. 99-2831-CR
fails. See id.,                                                                           466 U.S. at  697.    We will  “strongly presume” counsel to have
rendered  adequate  assistance.  Id.,                                                     466  U.S.  at                                                           690.   Whether  counsel’s
representation constituted ineffective-assistance-of-counsel is a mixed question of
law and fact. See Johnson, 133 Wis. 2d at 216, 395 N.W.2d at 181.   On appeal,
the trial court’s findings of fact will be upheld unless they are clearly erroneous.
See State v. Pitsch, 124 Wis. 2d 628, 634, 369 N.W.2d 711, 714 (1985).   Whether
a lawyer’s performance is deficient or, if so, there is prejudice, is a question of law
that this court reviews de novo. See id., 124 Wis. 2d at 634, 369 N.W.2d at 715.
¶7                                                                                        We  conclude  that  Love  has  failed  to  show  he  was  prejudiced.
Accordingly, we need not determine whether counsel’s performance was deficient.
See Strickland, 466 U.S. at 697.   The main issue of the suppression hearing in this
case was whether the police officers had probable cause to believe that the driver’s
view was obstructed.2   Here, the trial court clearly believed Officer Timmerman’s
testimony that the driver’s view  was obstructed by  “a hundred dollar bill air
freshener in a fan shape … plus two Styrofoam eight balls hanging from the rear-
view mirror,” and did not believe Love’s testimony that it was only a pine cone air
freshener.   The postconviction court concluded that even if Love’s trial lawyer had
impeached  Officer  Timmerman  with  Officer  Halama’s  testimony  and  police
report, its decision to deny the motion would not have changed.   Love argues that
the trial court’s holding relies on clearly erroneous facts.   We disagree.   The trial
judge was the finder-of-fact at the suppression hearing and also presided over the
2  WISCONSIN STAT. § 346.88(3)(b) provides:
Obstruction of operator’s view or driving mechanism.   No
person shall drive any motor vehicle upon a highway with any
object so placed or suspended in or upon the vehicle so as to
obstruct the driver’s clear view through the front windshield.
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No. 99-2831-CR
postconviction hearing.                                                                    “We must give due regard to the trial court’s opportunity
to judge the credibility of … witnesses.”   State v. Yang, 201 Wis. 2d 725, 735, 549
N.W.2d 769, 773 (Ct. App. 1996).   Moreover, while the evidence differs on what
exactly hung from the rear view mirror, there is no conflict that something did:
Love himself testified that a pine cone air freshener was hanging about four inches
below the rear view mirror.    This alone may have given the officers probable
cause to believe a traffic violation had occurred. See State v. Gaulrapp, 207 Wis.
2d  600,  605,  558 N.W.2d  696,  698  (Ct. App.  1996)  (traffic stop reasonable if
officers have probable cause to believe a traffic violation has occurred); WIS.
STAT. § 346.88(3)(b) (“No person shall drive any motor vehicle … with any object
so placed or suspended … so as to obstruct the driver’s clear view through the
front  windshield.”).    Thus,  we  conclude  that  Love  was  not  denied  effective
assistance of counsel because counsel’s attempts to impeach Officer Timmerman
would not have changed the result of the suppression motion.
B.                                                                                         Exclusion of Proffered Testimony
¶8                                                                                         Love  next  argues  that  the  trial  court  improperly  excluded  the
relevant, proffered testimony of Robert Davis that the cocaine belonged to him
and  not  to  the  defendant.    Specifically,  Love  argues  that  this  testimony  was
relevant because it went to whether he intended to deliver cocaine.   The State
counters that Davis’s testimony was not relevant because Love was charged as a
party to the crime.    A trial court’s decision to admit or exclude evidence is a
discretionary determination and will not be upset on appeal if it has “a reasonable
basis”  and  was  made                                                                     “‘in  accordance  with  accepted  legal  standards  and  in
accordance with the facts of record.’” State v. Pharr, 115 Wis. 2d 334, 342, 340
N.W.2d 498, 501 (1983) (citation omitted).
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No. 99-2831-CR
¶9                                                                                          Evidence is relevant if it has “any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” WIS. STAT. § 904.01.   The
phrase “any tendency” reflects the “low threshold for the introduction of evidence
that the relevancy statute creates.” State v. Richardson, 210 Wis. 2d 694, 707, 563
N.W.2d 899, 904 (1997).   The proffered testimony of Davis met this low threshold
of relevance and the trial court erred by excluding it.
¶10    An evidentiary error, however, is subject to a harmless-error inquiry.
See State v. Britt, 203 Wis. 2d 25, 41, 553 N.W.2d 528, 534 (Ct. App. 1996); see
also  WIS.  STAT.  §  805.18(2).3    In  this  inquiry,  the  State  has  the  burden  of
establishing, beyond a reasonable doubt, that there is no “reasonable possibility
that the error contributed to the conviction.” State v. Dyess, 124 Wis. 2d 525, 543,
544 n.11, 370 N.W.2d 222, 232 n.11 (1985).   This is a question of law that we
review de novo. See State v. Harris, 199 Wis. 2d 227, 256-263, 544 N.W.2d 545,
557-559 (1996).   In determining whether an error is harmless, we weigh the effect
of the trial court’s error against the totality of the credible evidence supporting the
verdict. See id., 199 Wis. 2d at 255, 544 N.W.2d at 557.   We conclude that the
State has met its burden.
3  WISCONSIN STAT. § 805.18(2) provides, as material here:
Mistakes and omissions; harmless error.   No judgment shall
be reversed or set aside or new trial granted in any action or
proceeding  on  the  ground  of  …  the  improper  admission  of
evidence  … unless in the opinion of the court to which the
application is made, after an examination of the entire action or
proceeding,  it shall appear  that the error  complained  of has
affected the substantial rights of the party seeking to reverse or
set aside the judgment, or to secure a new trial.
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No. 99-2831-CR
¶11    Intent to deliver may be demonstrated by evidence of the quantity
and  monetary  value  of  the  controlled  substance,  the  possession  of  the
manufacturing implements or paraphernalia, and the activities or statements of the
person in possession of the controlled substance. See WIS. STAT. § 961.41(1m).
Here, the evidence that either Love or Davis intended to deliver cocaine was
overwhelming, due to the amount of cocaine found on Love and the other items
found in the car.   In addition to the forty-gram single chunk of cocaine found on
Love, police found sandwich bags on the rear floor of the car, two or three cell
phones between the car seats, $65 worth of $5 bills on Love, and a digital scale
with white residue on it.   Moreover, “[i]n Wisconsin there is no requirement that
an  aider  and  abettor  share  the  specific  intent required for  commission of  the
substantive offense he aids and abets.” State v. Zelenka, 130 Wis. 2d 34, 47, 387
N.W.2d 55, 60 (1986).   We conclude that there was no reasonable possibility that
the exclusion of the evidence contributed to the convictions.
¶12    Love alternatively argues that his trial counsel was ineffective for
failing to explain the relevance of Robert Davis’s testimony to the trial court.   We
disagree.   Trial counsel was not ineffective in this regard because Love suffered no
prejudice.   We reach this conclusion based on the same rationale contained in the
harmless-error analysis of this opinion.   See State v. Myren, 133 Wis. 2d 430, 441,
395 N.W.2d 818, 824 (Ct. App. 1986) (The “‘reasonable possibility’ test” under
the harmless-error analysis established by State v. Dyess, 124 Wis. 2d 525, 543,
370 N.W.2d 222, 231-232 (1985), “is substantively the same as the ‘reasonable
probability’ test declared by the Supreme Court” in Strickland v. Washington,
466 U.S. 668, 694 (1984)).
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No. 99-2831-CR
C.   Double Jeopardy
¶13    Finally, Love claims that his convictions for possession of cocaine
with intent to deliver and possession of cocaine without the tax stamp violate his
protections against double jeopardy.   The Double Jeopardy Clause, embodied in
both the Fifth Amendment of the United States Constitution and article 1, section
8  of  the Wisconsin Constitution, provides, among other things, for protection
against multiple punishments for the same offense.4 See State v. Kurzawa, 180
Wis.  2d  502,  515,  509 N.W.2d  712,  717  (1994)  (citation omitted).    Where a
defendant alleges that a charging document is multiplicitous, a two-pronged test is
utilized.   First, the court inquires whether the charges are identical in law and fact.
“The  determination  of  whether  offenses  are  different  in  law  or  whether  one
offense is a lesser-included offense of another is controlled by the ‘elements only’
test set out in Blockburger v. United States, 284 U.S. 299, 304 (1932).” State v.
Lechner, 217 Wis. 2d 392, 405, 576 N.W.2d 912, 919 (1998).   Second, the court
must then consider whether the legislature intended that multiple punishments
could be imposed. See Lechner,  217 Wis. 2d at 402-403, 576 N.W.2d at 918.
Whether an individual’s constitutional right to be free from double jeopardy has
been violated is a question of law that this court reviews de novo. See State v.
Anderson, 219 Wis. 2d 739, 746, 580 N.W.2d 329, 332 (1998).
¶14    This exact question presented in this case was resolved by State v.
Dowe, 197 Wis. 2d 848, 852, 541 N.W.2d 218, 220 (Ct. App. 1995), rev’d on
other grounds, State v. Hall,  207 Wis.  2d  54,  557 N.W.2d  778  (1997), which
4 The Double Jeopardy Clause of the United States Constitution provides: “[N]or shall
any person be subject for the same offense to be twice put in jeopardy of life and limb.” U.S.
Const. amend. V.   Similarly, article I, § 8 of the Wisconsin Constitution provides: “[N]o person
for the same offense may be put twice in jeopardy of punishment.”
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No. 99-2831-CR
specifically held that “possession of a controlled substance with intent to deliver is
not a lesser-included offense of a tax stamp violation.”5   Accordingly, we affirm.
By the Court.—Judgment and order affirmed.
                                                                                                        This  opinion  will  not  be  published.  See  WIS.  STAT.  RULE
809.23(1)                                                                                               (b)5.
5   Although State v. Dowe, 197 Wis. 2d 848, 541 N.W.2d 218 (Ct. App. 1995) was
subsequently reversed on other grounds, the supreme court did not reverse the double jeopardy
holding.   Thus, it retains its precedential value and this court is bound by it. See State v. Byrge,
225 Wis. 2d 702, 717 n.7, 594 N.W.2d 388, 394 n.7 (Ct. App. 1999); Cook v. Cook, 208 Wis. 2d
166, 186, 560 N.W.2d 446, 254 (1997).
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