Defendant's Motion for Directed Verdict

STATE OF WISCONSIN CIRCUIT COURT MARATHON COUNTY

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TRIAL BRIEF IN SUPPORT OF DEFENDANT'S MOTION FOR DIRECTED VERDICT

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The Defendant in the above-captioned action, Theodore O. Leary, has been charged with aiding and abetting the crime of delivering a controlled substance contrary to sections 961.41(1)(h)1 and 939.05(2)(b), Wisconsin Statutes. This trial brief is submitted in support of defendant's motion pursuant to section 805.14(3), Wisconsin Statutes, for an order directing a verdict of not guilty on the grounds that there was insufficient evidence at the conclusion of the State's case to support a jury finding beyond a reasonable doubt that the Defendant delivered a controlled substance as party to a crime by aiding and abetting.

The Defendant is the sole owner of Block Heads, a store that sells tobacco products (Leary Statement). On October 24, 1996, he sold three (3) rolling paper packages to Andrew Warhohl (Leary Statement). The rolling paper packages are intended for use in making tobacco cigarettes and provide instructions on such use (Testimony of John Biaz, Trial Transcript, 4).

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n in the execution of a crime, and he or she desires or intends that his or her conduct will yield such assistance. State v. Ivy (1983) 350 N.W.2d 622, 626; see also Hawpetoss v. State (1971) 187 N.W.2d 823. Moreover, the Wisconsin jury instruction on liability of an aider and abettor reads as follows: A person intentionally aids and abets the commission of a crime when acting with knowledge or belief that another person is committing or intends to commit a crime, he knowingly either renders aid to the person who commits the crime or is ready and willing to render aid if needed, and the person who commits the crime knows of his willingness to aid him. Ivy, 350 N.W.2d at 629, quoting Wis.J.I.--Criminal, Vol. I, 400A; see also State v. Haugen (1971) 191 N.W.2d 12 (one person must know that the other is committing a criminal act); State v. Nutley (1964) 129 N.W.2d 155 (same). Thus, the aider and abettor will be considered a party to the crime when he knowingly acts in furtherance of the other's conduct with the awareness that a crime was being committed. See Haugen, 191 N.W.2d at 15. Consequently, the participants in the crime must perform all the necessary elements of the crime with mutual awareness of what the other is doin

Category: Government - D