Opinion
No. 91-1297-CR.
Opinion Filed: November 5, 1991.
APPEAL from a judgment of the circuit court for Milwaukee county: LOUISE TESMER, Judge. Affirmed.
[EDITORS' NOTE: THE PUBLICATION STATUS OF THIS OPINION IS GOVERNED BY WIS. STAT. RULE 809.23 (2) AND (3).]
Bruce Michael Cook appeals from a judgment of conviction for possession of a controlled substance, in violation of secs. 161.14(4)(t), 161.01(14), and 161.41(3r), Stats. Cook's sole argument on appeal is insufficiency of the evidence to support the jury's verdict of guilt. He contends that the state failed to prove beyond a reasonable doubt that the substance in question was controlled. This appeal is decided by one Court of Appeals judge, pursuant to sec. 752.31(2)(f), Stats. We affirm.
The standard for review of a jury verdict, based on either direct or circumstantial evidence, is whether the evidence, when "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, 755 (1990). To overcome Cook's presumption of innocence, the state was required to prove each essential element of the crime beyond a reasonable doubt. Id. The test is not whether this court is convinced of Cook's guilt "beyond a reasonable doubt, but whether this court can conclude [that] the trier of facts could, acting reasonably, be so convinced by evidence it had a right to believe and accept as true." Id. at 503-04, 451 N.W.2d at 756 (citation omitted).
FACTS
On July 30, 1988, eighteen-year veteran police officer Gary Szymanski arrested Cook for an unrelated offense. A search of Cook's person revealed a substance which Szymanski suspected of being marijuana. Another veteran officer who assisted in the arrest, Rolf Mueller, also believed the substance to be marijuana.
Mueller delivered it to Detective Ernest Meress for a Duquenois-Levine field test. Meress is a conceded expert on marijuana identification. The parties agree that the Duquenois-Levine test is nonspecific for marijuana. The substance recovered as a result of the search of Cook tested positive for the presence of Tetrahydrocannabinol, an active ingredient of marijuana.
We conclude that the evidence supports the jury's finding of guilt. Officers Szymanski and Mueller testified on the basis for their suspicions that the substance found on Cook's person was marijuana. Mueller described the material as "green leafy matter," and that seeds and stems, characteristic of marijuana, were present. Detective Meress had extensive training and experience in the identification of marijuana. To distinguish marijuana from other plants, Meress explained to the jury, the examiner must identify the leaves themselves, their shape, the number of points on the stalk, the seeds and general appearance. Detective Meress testified without gainsay that Cook told him that the substance was marijuana and that he purchased it for five dollars for the purpose of smoking it. Meress performed a second Duquenois-Levine field test upon the substance in the presence of the jury. It again tested positive for the presence of Tetrahydrocannabinol. The opinion evidence of Meress, an expert whose qualifications were conceded upon appeal, and Cook's admission were sufficient to support the verdict.
Cook relies upon the following sentence in State v. Wind, 60 Wis.2d 267, 208 N.W.2d 357 (1973), in support for his appellate argument: "If this were a possession case, the tests [Duquenois-Levine] would be insufficient." Id. at 272, 208 N.W.2d at 361. Cook is correct in stating that the court of appeals is bound by supreme court decisions. However, Wind is inapposite. State v. Wolske, 143 Wis.2d 175, 186, 420 N.W.2d 60, 63 ( Ct. App. 1988). The statement from Wind is obiter dictum. It is a pronouncement that did not pertain to an issue before the court and as such, it has no precedential force. State ex rel. Kleczka v. Conta, 82 Wis.2d 679, 713, 264 N.W.2d 539, 554 (1978). Furthermore, our conclusion is not premised solely upon the sufficiency of a Duquenois-Levine test, but is also based upon Cook's admission and Meress' opinion.
Implicit in Cook's argument is the proposition that conviction for a drug-related offense must be supported by scientific evidence identifying the controlled substance. Briefs of counsel contain no citation of authority for this proposition and we are aware of none. Balkus v. Security First Nat'l Bank, 128 Wis.2d 246, 255 n. 5, 381 N.W.2d 593, 598 n. 5 (Ct.App. 1985) (a reviewing court may decline to review an issue inadequately briefed). Nevertheless, a statement found in U.S. v. Schrock, 855 F.2d 327, 334 (6th Cir. 1988), is persuasive and pertinent to this case:
To our knowledge, no court has held that scientific identification of a substance is an absolute prerequisite to conviction for a drug-related offense, and we too are unwilling to announce such a rule. In view of the limitations that such a burden would place on prosecutors, and in accordance with general evidentiary principles, courts have held that the government may establish the identity of a drug through cumulative circumstantial evidence. . . . So long as the government produces sufficient evidence, direct or circumstantial, from which the jury is able to identify the substance beyond a reasonable doubt, the lack of scientific evidence is not objectionable (citations omitted) (emphasis added).By the Court. — Judgment affirmed.
This opinion will not be published. Rule 809.23(1)(b)4, Stats.