Opinion
No. State 221.
Argued June 4, 1974. —
Decided June 28, 1974.
APPEAL from a judgment of the circuit court for La Crosse county: PETER G. PAPPAS, Circuit Judge. Affirmed.
For the appellant there were briefs by Howard B. Eisenberg, state public defender, and Richard M. Sals, assistant state public defender, and oral argument by Mr. Sals.
For the respondent the cause was argued by Christine M. Wiseman, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
Facts.
Defendant-appellant, Gerald Edward Trimbell, was charged with possession of hashish with intent to deliver, contrary to secs. 161.41 (1m) and 161.41 (1m) (b), Stats., in a complaint filed April 6, 1973, and with possession of opium with intent to deliver, contrary to secs. 161.41 (1m) and 161.41 (1m) (a), in a complaint filed April 27, 1973. On April 5, 1973, the defendant was bound over to the circuit court for trial on both charges. On June 29, 1973, defendant's pretrial motions were denied, and the two charges consolidated for trial. Trial to jury was had on August 27-28, 1973. The defendant was found guilty on both charges on August 28, 1973. On September 16, 1973, postverdict motions of defendant were denied by the court. On October 1, 1973, defendant was sentenced to concurrent terms of two and one-half years on the hashish charge, and four years on the opium charge. On October 2, 1973, notice of appeal was filed.
On March 23, 1973, federal drug enforcement special agents, Theodore J. Scoufis and Frank Wingert, inspected a package at the La Crosse post office. The package measured about eight by ten by four inches, and was addressed to defendant's sister at her residence in La Crosse. The return address was to a Robert L. Crawford, Kathmandu, Nepal. The agents unwrapped the package and found a wooden plaque. Boring holes into the wooden plaque, they extracted material which proved to be hashish. They rewrapped the package for delivery.
On March 27, 1973, the package was delivered in the normal course of delivering mail to defendant's sister at her home. She assumed that the package was for her brother, the defendant, because she had before received a letter from abroad for him. She telephoned her sister, who lived with defendant in their parents' home, to tell defendant that a package had arrived from abroad for him. Immediately upon receiving the telephone message, defendant bicycled to his sister's home, arriving there at 11:45 a.m. Defendant told his sister that the package contained wooden carvings, and that she would receive one for her home. Placing the package in a purple cloth bag, defendant bicycled away from his sister's house and was stopped by the federal agents and La Crosse police officers at the corner of 14th and King Streets in La Crosse at 12:15 p.m. He was placed under arrest.
On the same day, March 27, 1973, at the police station, the package carried by defendant was opened. The wooden plaque was divided into two sections — each of which was found to contain just under one pound of substance. One block was field-tested and determined to be hashish, described by federal agent Scoufis as being of "high quality." The other block was analyzed at the state crime laboratory and found to be opium, almost 100 percent pure. Analysis of the hashish indicated presence of delta-1-tetrahydrocannabinol. The hashish was estimated to be worth $2,000 to $4,000 on the street, and the opium to be worth between $20,000. and $24,000.
At the police station, defendant told police officers that he did not know anyone named Robert Crawford. He stated that he did know a Richard Clements who was traveling in the Far East. Defendant stated that Clements had been to his sister's house, and knew her address. (The sister testified that she had never met Clements.) Defendant also told police that he had received from Clements another wooden plaque about two weeks previously which was still at his home. Defendant was heard to tell his sister that he was sorry she had become involved in the matter. Pursuant to a search warrant, police officers searched defendant's home, but found no wooden plaque. They did find sixteen Nepalese stamps and a note entitled, "Ricki Schedule," indicating that Ricki would be visiting Nepal. A "hash pipe" containing marijuana residue was found near defendant's bed.
At the trial, defendant testified that he had previously received a plaque, containing about one-half ounce of hashish, from Clements in Nepal. He testified that the earlier package had been mailed and addressed to his parents. He testified that he believed that the first plaque had been thrown away. Defendant admitted having received a letter from Clements in Nepal in March of 1973. He testified that he had spoken with Clements in January of 1973, and that Clements had told him of his planned trip to Nepal, and had stated that he might send defendant some gifts and possibly hashish. Defendant testified that he expected Clements to send at the most a few grams of hashish. Defendant testified that he never intended to sell or deliver hashish or opium to anyone. He admitted to having used hashish for several years, and to having used marijuana, LSD, mescaline and tranquilizers. Defendant's girl friend, who stated she had spent almost every day in the past four years with defendant, testified that she had seen him use small quantities of hashish, but never knew him to deal in any drugs or have anything to do with opium.
Three questions are asked by this appeal regarding the two convictions — one for possession of hashish with intent to deliver; and the other for possession of opium with intent to deliver.
Secs. 161.41 (1m) and 161.41 (1m) (b), Stats.
Secs. 161.41 (1m) and 161.41 (1m) (a), Stats.
Was the evidence sufficient to sustain the jury verdict, as to the "knowing possession" of hashish and opium by the defendant?
I. Was the jury entitled to infer knowing possession of hashish and opium on the basis of the evidence introduced at trial? That is the standard and that is the test laid down in a recent case, State v. Christel, affirming a conviction for possession of marijuana. As the statute there provided and as Christel makes clear, the prosecution must prove not only that the defendant is in possession of a dangerous drug, ". . . but also that he knows or believes that he is. . . . Such knowledge or belief may be shown circumstantially by conduct, directly by admission, or indirectly by contradictory statements from which guilt may be inferred. In Christel, this court held that the jury ". . . was entitled to infer knowing possession on the basis of the evidence that Suzor, who did not reside at the apartment to which the package was delivered, signed for the package even though he was not the addressee, and then left the apartment with the package, in the company of Christel, who had arrived just moments earlier." This court held, in Christel, "This inference is justified for the reason that normally one does not purport to sign for a package addressed to someone else, and then depart the premises with the package in one's possession, particularly when the addressee of the package is not on the premises when the package is delivered."Both as to possession of hashish and opium, the facts in the case before us, warranting an inference of knowing possession, are far stronger than the single fact relied upon in Christel. They include (1) the defendant's knowing the sender, and expecting a package from him; (2) the earlier receipt of a package from the same sender containing hashish; (3) the package being mailed to defendant's sister at her address, with the earlier mailing made by the same sender to defendant's parents; (4) the defendant's dissembling to his sister as to the nature of the package's contents; (5) the defendant's having been told by the sender, who used a pseudonym as a return address name, that he might send defendant some hashish; and (6) the defendant's prompt traveling to his sister's residence to pick up the package, when he was informed that it had arrived. As one court has put it, ". . . It could not be one of those rare instances where one may receive and accept a package unanticipated from an unknown sender." While cases in point appear to deal with possession of one illegal substance rather than two, the facts which warrant an inference of knowing possession of one illegal substance here support the jury-drawn inference that the defendant knowingly possessed two illegal substances. The probabilities more than adequately support the inference of knowing possession on the part of the defendant as to both hashish and opium. Was the evidence sufficient to sustain the jury verdict, finding the defendant possessed the hashish and opium "with intent to deliver?"
People v. Reisman (1971), 29 N.Y.2d 278, 287, 277 N.E.2d 396, 327 N.Y. Supp. 2d 342, certiorari denied, 405 U.S. 1041, 92 Sup. Ct. 1315, 31 L.Ed.2d 582.
See: Id. at page 285, 286, 287; Petty v. People (1968), 167 Colo. 240, 245, 447 P.2d 217; State v. Offord (1973), 14 Or. App. 195, 512 P.2d 1375, 1376.
Is there here a different but reasonable view of the evidence that would establish guilt as to the lesser offense of a simple possession beyond reasonable doubt and also leave a reasonable doubt as to the element of intent to deliver, which is included in the greater offenses charged but not in the lesser offenses of simple possession of hashish and opium? We hold that there is not. In Gedko, this court said of the two defendants' possessing $8,000 to $12,000 worth of marijuana, ". . . It is hardly reasonable to believe that these defendants would have that amount in their possession for their own personal use. . . ." With the single defendant here having in his possession $2,000 to $4,000 worth of hashish and $20,000 to $24,000 worth of opium, we hold it entirely unreasonable to believe that this defendant, an admitted user of hashish but not opium, would have these quantities and values of illegal drugs in his possession for purposes other than sale or delivery to others. Additionally, other probative evidence on the issue of intent was discussed by this court, including ". . . the activities and antics of the defendants when they were fearful that they might be apprehended by hiding some and attempting to burn the rest of the marijuana in an effort to destroy incriminating evidence. . . ." Equally probative in the case before us is the evidence earlier discussed concerning (1) the mailing of the package to the home of defendant's sister; (2) defendant's dissembling as to the nature of the contents; (3) the defendant's knowing the sender, and expecting a package from him; (4) the earlier mailing of a controlled substance by the sender to defendant; and (5) defendant's prompt pickup of the package when he was informed it had arrived at his sister's home. Given the quantity, quality and value of the hashish and opium here involved, plus the surrounding circumstances above listed, we hold that the trial court here was not required to instruct or submit to the jury the lesser and included offenses of simple possession as alternative verdicts.
State v. Gedko, supra, at page 650.
Id. at page 650.
By the Court. — Judgment affirmed.