State v. Cooper

GARTZKE, P.J.

Rodney J. Cooper appeals from a judgment convicting him of attempted delivery of a controlled substance, cocaine, secs. 939.32(1), 939.05(1), 161.16(2)(b), 161.41(l)(b), Stats. The substance delivered was actually lidocaine, a noncontrolled substance. Cooper argues that nothing supports the inference that he believed the substance was cocaine, and therefore the evidence is insufficient to support his conviction. We affirm.

A guilty verdict will be overturned only when the evidence, considered in a light most favorable to the state, is so insufficient that no jury acting reasonably could be convinced to that degree of certitude which the law defines as beyond a reasonable doubt. State v. Roller, 87 *431Wis.2d 253, 266, 274 N.W.2d 651, 658 (1979). The verdict will be affirmed if any possibility exists that the jury could have drawn the appropriate inferences from the evidence to find the requisite guilt. State v. Alles, 106 Wis.2d 368, 377, 316 N.W.2d 378, 382 (1982).

The crime of attempt has two elements: a criminal intent and some acts in furtherance of the intent.1 Berry v. State, 90 Wis.2d 316, 326, 280 N.W.2d 204, 209 (1979), cert. denied, 444 U.S. 1020 (1980). It is primarily the accused's acts which provide evidence of the criminal intent. Hamiel v. State, 92 Wis.2d 656, 663, 285 N.W.2d 639, 644 (1979). Those acts must be so few or of such an equivocal nature as to render doubtful the existence of the requisite criminal intent. Berry, 90 Wis.2d at 327, 280 N.W.2d at 209. With these principles in mind, we turn to the evidence.

Ziebell, a narcotics investigator, testified that he and Don Salser contacted Cooper to buy marijuana or cocaine. Ziebell told Cooper he wanted to buy an eighth of an ounce of cocaine. Cooper said he had some good suppliers and could get all the cocaine Ziebell wanted. Cooper took a folded paper containing a white powder from his pocket and handed it to Ziebell, who tasted it. The powder smelled and numbed Ziebell's gums and tongue like cocaine. Cooper said he got the same reaction. When Ziebell offered Cooper $40 for the envelope, Cooper insisted on $45. After Ziebell agreed to pay $45, Cooper left, returned about ten minutes later, and said he wanted to complete the delivery without being involved. Cooper said he did *432not trust Ziebell and would deal only through Salser. Zie-bell gave the money to Salser.

Salser testified that Cooper said he preferred to sell cocaine to Salser because he didn't trust Ziebell. Cooper discussed the price with Salser and indicated that the transaction would be made by a third party without Cooper involving himself. Salser went to Cooper's car, in which the third party was seated. Salser took an envelope of white powder from a tape case on the console and left the $45 on the console. After tasting its contents and believing it was cocaine, he took the envelope to Ziebell.

The white powder was lidocaine, a noncontrolled substance similar to cocaine in appearance, taste and effect to the tongue and fingers.

Cooper asserts that his acts and statements, even when viewed most favorable to the state, do not unequivocally demonstrate that he intended to deliver cocaine. He asserts the facts are equally consistent with an intent to defraud Ziebell. To support his contention, Cooper relies on three cases.

The first case, United States v. Oviedo, 525 F.2d 881 (5th Cir. 1976), reversed a guilty verdict for attempted distribution of heroin. Defendant had actually distributed an uncontrolled substance. The court of appeals rejected his argument that the evidence was insufficient to establish that he thought the substance was heroin. He had told the purchaser that the substance he was selling was heroin, and a quantity of the substance was found concealed in his television set. The court of appeals held, however, that because the substance was not heroin, defendant's conduct was "ambivalent," and refused to allow a jury's determination of the defendant's intent "to form the sole basis of a criminal offense." Id. at 885-86.

United States v. Quijada, 588 F.2d 1253 (9th Cir. 1978), rejected the result in Oviedo with no discussion. In Quijada, defendant and purchaser negotiated for the sale *433and delivery of "snow." They met three times and spoke once on the telephone. The defendant indicated several times that he had the "stuff” and repeated the assertion to an undercover agent. At the sale, the agent performed a field test on the substance which indicated that it was cocaine. In fact it was lidocaine. The Quijada court said, "[p]roof of what a defendant supposed the facts to be, of course, must be established beyond a reasonable doubt; but that clearly was accomplished in this case.” Id. at 1255.

We reject the result in Oviedo. The objective facts before us consist of negotiation to sell cocaine, an agreement to sell cocaine, complicated maneuvers, and transfer and delivery by intermediaries of a substance having properties similar to those of cocaine. These are sufficient objective facts to demonstrate unequivocally that Cooper intended to deliver cocaine.

Cooper also relies on United States v. Murray, 527 F.2d 401 (5th Cir. 1976), in which the court of appeals reversed a conviction for conspiracy to distribute heroin, which turned out to be lactose. The court of appeals said that the evidence showed the actions of a person involved in a "ripoff" rather than a true conspiracy. Id. at 409. Murray is not in point. There some evidence tended to show that the defendant knew that someone had substituted the lactose. Here no such evidence exists. The third case Cooper relies on is People v. Gonzales, 411 N.Y.S.2d 632 (1978). Gonzales sold lidocaine, claiming it was cocaine, and was convicted of the sale of a controlled substance. Because lidocaine is not a controlled substance, the court reversed the conviction. Id. at 634. Gonzales is not in point.

By the Court. — Judgment affirmed.

Section 939.32(3), Stats., provides:

An attempt to commit a crime requires that the actor have an intent to perform acts and attain a result which, if accomplished, would constitute such crime and that he does act toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that he formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor.