961.41 Annotation Being a procuring agent of the buyer is not a valid defense to a charge under this section. By facilitating a drug deal, the defendant was party to the crime. State v. Hecht, 116 Wis. 2d 605, 342 N.W.2d 721 (1984).

961.41 Annotation When police confiscated a large quantity of drugs from an empty home and the next day searched the defendant upon his return to the home, confiscating a small quantity of the same drugs, the defendant's conviction for the lesser-included offense of possession and the greater offense of possession with intent to deliver did not violate double jeopardy. State v. Stevens, 123 Wis. 2d 303, 367 N.W.2d 788 (1985).

961.41 Annotation The defendant was properly convicted of attempted delivery of cocaine even though a noncontrolled substance was delivered. State v. Cooper, 127 Wis. 2d 429, 380 N.W.2d 383 (Ct. App. 1985).

961.41 AnnotationPossession is not a lesser included offense of manufacturing. State v. Peck, 143 Wis. 2d 624, 422 N.W.2d 160 (Ct. App. 1988).

961.41 Annotation Identification of a controlled substance can be established by circumstantial evidence such as lay experience based on familiarity through prior use, trading, or law enforcement. State v. Anderson, 176 Wis. 2d 196, N.W.2d (Ct. App. 1993).

961.41 Annotation A conspiracy under sub. (1x) must involve at least 2 people with each subject to the same penalty for the conspiracy. If the buyer of drugs is guilty of misdemeanor possession only, a felony conspiracy charge may not be brought against the buyer. State v. Smith, 189 Wis. 2d 496, 525 N.W.2d 264 (1995).

961.41 Annotation The state is not required to prove that a defendant knew the exact nature or precise chemical name of a possessed controlled substance. The state must only prove that the defendant knew or believed that the substance was a controlled substance. State v. Sartin, 200 Wis. 2d 47, 546 N.W.2d 449 (1996), 94-0037.

961.41 Annotation A delivery conspiracy under sub. (1x) requires an agreement between a buyer and a seller that the buyer will deliver at least some of the controlled substance to a 3rd party. State v. Cavallari, 214 Wis. 2d 42, 571 N.W.2d 176 (Ct. App. 1997), 96-3391.

961.41 Annotation Standing alone, the presence of drugs in someone's system is insufficient to support a conviction for possession, but it is circumstantial evidence of prior possession. Evidence that the defendant was selling drugs is irrelevant to a charge of simple possession. Evidence that the defendant had money but no job does not have a tendency to prove possession. State v. Griffin, 220 Wis. 2d 371, 584 N.W.2d 127 (Ct. App. 1998), 97-0914.

961.41 Annotation Delivery under sub. (1m) requires transfer from one person to another. Intent to transfer drugs to the person from whom they were originally received satisfies this definition. Transfer to a 3rd party is not required. State v. Pinkard, 2005 WI App 226, 287 Wis. 2d 592, 706 N.W.2d 157, 04-2755.

961.41 Annotation A person may be a member of a conspiracy, in particular, a conspiracy to manufacture a controlled substance, based on the person's sale of goods that are not illegal to sell or possess. One does not become a party to a conspiracy by aiding and abetting it, through sales of supplies or otherwise, unless he or she knows of the conspiracy, the inference of which knowledge cannot be drawn from mere knowledge that the buyer will use the goods illegally. The gist of the conspiracy is the seller's intent, when given effect by an overt act to further, promote, and cooperate in the buyer's intended illegal use. There must be clear, unequivocal evidence of the seller's knowledge of the buyer's intended illegal use. State v. Routon, 2007 WI App 178, 304 Wis. 2d 480, 736 N.W.2d 530, 06-2557.

961.41 Annotation Possession requires evidence that the individual had a substance in his or her control. When combined with other corroborating evidence of sufficient probative value, evidence of ingestion can be sufficient to prove possession. State v. Patterson, 2009 WI App 161, 321 Wis. 2d 752, 776 N.W.2d 602, 08-1968.

961.41 Annotation Sub. (3g) (c) requires that the prior conviction be connected to controlled substances if a prior conviction is to trigger penalty enhancement. When the statute underlying a prior conviction presents alternative methods of violating the statute, it is appropriate to consult a limited class of documents to determine what statutory alternative formed the basis for the defendant's prior conviction. A trial court judge, rather than a jury, is allowed to determine the applicability of a defendant's prior conviction for sentence enhancement purposes, when the necessary information concerning the prior conviction can be readily determined from an existing judicial record. State v. Guarnero, 2015 WI 72, 363Wis. 2d 857, 867 N.W.2d 400, 2013-1753.

961.41 Annotation Double jeopardy was not violated when the defendant was convicted of separate offenses under s. 161.41 [now s. 961.41] for simultaneous delivery of different controlled substances. Leonard v. Warden, Dodge Correctional Inst. 631 F. Supp. 1403 (1986).

961.42(1) (1) It is unlawful for any person knowingly to keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft or other structure or place, which is resorted to by persons using controlled substances in violation of this chapter for the purpose of using these substances, or which is used for manufacturing, keeping or delivering them in violation of this chapter.

961.42 Annotation “Keeping" a substance under sub. (1) means more than simple possession; it means keeping for the purpose of warehousing or storage for ultimate manufacture or delivery. State v. Brooks, 124 Wis. 2d 349, 369 N.W.2d 183 (Ct. App. 1985).

961.42 Annotation Warehousing or storage under Brooks does not encompass merely possessing an item while transporting it. Cocaine was not warehoused or stored when the cocaine was carried in the defendant's truck while moving from one location to another. State v. Slagle, 2007 WI App 117, 300 Wis. 2d 662, 731 N.W.2d 284, 06-0775.

961.43(1)(b) (b) Without authorization, to make, distribute or possess any punch, die, plate, stone or other thing designed to print, imprint or reproduce the trademark, trade name or other identifying mark, imprint or device of another or any likeness of any of the foregoing upon any drug or container or labeling thereof so as: