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).
At trial, Jane Lennon, a sales clerk in the Defendant's store, testified that Warhohl was a frequent customer who "sometimes" came into the store smelling of marijuana (Trial Transcript, 7). However, on the day in question she did not notice that Warhohl smelled of marijuana (Trial Transcript, 8). She further testified that Warhohl came into the store at least once a week, "sometimes more," to purchase approximately three (3) packages of rolling paper at a time but he never purchased tobacco. (Trial Transcript, 6). She was aware that Warhohl used marijuana and was a well-known supplier of marijuana to high-school students. Sh...