State v. Jackson

468 N.W.2d 431, 161 Wis. 2d 527, 1991 Wisc. LEXIS 297

• Court: Wisconsin Supreme Court
• Decided: May 1, 1991
• Docket: 90-0117-CR
• Status: Published

Opinion

STEINMETZ, J.

When the court accepted this petition for review by the state of Wisconsin subsequent to an unpublished court of appeals decision, the court believed two issues existed pursuant to sec. 809.62, Stats., which sets forth the criteria for accepting petitions. On review, it is obvious that the only question presented pertains to the sufficiency of the evidence. We now determine the petition for review was improvidently granted.

In accepting the petition for review, the court believed it would be presented with evidence that the particular field test for cocaine used by the police, a version of the cobalt thiocyanate test, offered improved reliability and accuracy over other field tests such that the positive result from the test might in itself be sufficient to support a conviction for possession of the drug. No such evidence was presented; in fact, the state now concedes that the cobalt thiocyanate test is nonspecific and at most raises a presumption of the presence of cocaine.

In addition, the nonspecific character of cobalt thio-cyanate test results notwithstanding, the court believed it would be presented with circumstantial evidence which, combined with the positive field test result, might have been sufficient to meet the state's burden of proof. See State v. Wind, 60 Wis. 2d 267, 208 N.W.2d 357 (1973). The circumstantial evidence the court received, however, did not in any way support a determination as to the nature of the substance in question.

The evidence presented by the state may have been sufficient for a finding of probable cause. However, it does little to prove beyond a reasonable doubt an element of a crime which would be necessary for a valid conviction, i.e., that the substance recovered was cocaine.

By the Court. — The petition for review is dismissed.