Opinion
No. 2013AP2469.
2014-08-26
STATE of Wisconsin ex rel. Quinell SMITH, Petitioner–Appellant, v. David SCHWARZ Administrator, Division of Hearings and Appeals, Respondent–Respondent.
Appeal from an order of the circuit court for Milwaukee County: Jeffrey A. Conen, Judge. Reversed and cause remanded with directions.
Before CURLEY, P.J., FINE and BRENNAN, JJ. ¶ 1 PER CURIAM.
Quinell Smith appeals a trial court order affirming a decision of the Administrator of the Division of Hearings and Appeals that revoked Smith's probation. We reverse and remand to the Division for further proceedings.
¶ 17 In Schwartz, a prohibition-era case, the State charged the defendant with possessing alcohol in his soft-drink shop. See id. at 415, 212 N.W. 664. The evidence presented at trial revealed that police entered the shop and found a single bottle of alcohol. See id. at 416, 212 N.W. 664. An employee was on the premises, but the defendant was not. See id. at 415–16, 212 N.W. 664. The employee testified that he carried the alcohol into the shop while the defendant was away and without the defendant's knowledge. See id. at 416, 212 N.W. 664. The supreme court deemed the evidence “clearly insufficient” to support a guilty verdict, explaining that unlawful possession requires evidence of “some claim of right, control, or dominion with knowledge of the facts.” See id. at 418, 212 N.W. 664.
¶ 18 Here, the Division emphasizes that Smith acknowledged watching the dispute between Williams and his uncle outside of 3286 N. 25th Street on June 14, 2012, and the statement in the police report that Williams saw Smith “walk [ ] back to 3286 N. 25th Street” after she called the police. The Division suggests that these facts show access to the residence shortly before the police found the gun and thus “ ‘buttress' the inference of knowing possession from joint occupancy of premises in which [contraband is] found.’ ” See Allbaugh, 148 Wis.2d at 813, 436 N.W.2d 898 (citation omitted). We cannot agree. The Division does not explain why Smith's observation of events outside his home constitutes evidence that he knowingly possessed contraband later found inside. As to the statement in the police report that Williams saw Smith walk back to the residence, Smith accurately points out that the same police report describes Williams's statement that, after her neighbors confronted her with guns, only two of those neighbors—identified as Jermaine L. Moore and Garland T. Peterson—“walked into 32[86] N. 25th Street.” Further, Williams said that when the police squad car arrived, only Moore and Peterson “were exiting the house,” but “Smith and the other subject who were outside ran through the gang way eastbound.” The police report describing Williams's statements does not permit an inference that Smith knew about and controlled a gun inside 3286 N. 25th Street. Rather, the materials show that Smith was outside of 3286 N. 25th Street when Williams saw other men with guns go inside.
Some portions of the police reports describe the subject residence as 3268 N. 25th Street while other portions describe the residence as 3286 N. 25th Street. The parties do not suggest that references to 3268 N. 25th Street are anything other than clerical errors, and we treat all references to both 3286 N. 25th Street and to 3268 N. 25th Street as describing the same residence at 3286 N. 25th Street.
¶ 19 In sum, the record shows that the administrative law judge did not believe that Smith participated in the armed confrontation with Williams, and the judge did not believe that Smith possessed a gun during that incident. The record further shows that, on June 14, 2012, Smith left the residence at 3286 N. 25th Street during the day, and he was not in that residence when Williams saw other people who had guns go inside. The record also shows that Smith was not in the residence during the protective sweep that uncovered a gun and that he was not inside the residence just before that sweep. Further, unlike the circumstances described in Allbaugh, the residence was not so packed with contraband when officers arrived as to permit a reasonable inference that the contraband was necessarily present earlier in the day. Based on this record, the conclusions that Smith knew the home contained a gun and that he exercised control over that gun rest entirely on speculation. Speculation, however, fails to satisfy even the low burden required to prove that Smith violated his rules of probation. Absent some facts to show that Smith knew about the gun and had some “right, control, or dominion” over the gun, the evidence is not sufficient to prove he possessed the gun. See Schwartz, 192 Wis. at 418, 212 N.W. 664.
¶ 20 The Division revoked Smith's probation based on three probation violations, including the allegation that Smith possessed a gun. We conclude, however, that the Division did not prove that he possessed a gun. The Division asserts that, in the event we reach such a conclusion, Smith's remedy is a remand to the Division to determine whether revocation of his probation is appropriate in light of the two probation violations that he admitted. Smith concurs, and we agree as well. See Snajder v. State, 74 Wis.2d 303, 312, 246 N.W.2d 665 (1976). Accordingly, we reverse and remand to the Division for further proceedings consistent with this opinion.
Order reversed and cause remanded with directions.
This opinion will not be published. See Wis. Stat. RuleE 809.23(1)(b)5.