Sufficiency of Evidence-Knowing Possession

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Delmario Lamar Smith

Case No.: 2024AP002264-CR

Officials: Stark, P.J., Hruz, and Gill, JJ.

Focus: Sufficiency of Evidence-Knowing Possession

Smith was found with a tan rocklike substance that laboratory testing later established contained both heroin and fentanyl. Although the State presented evidence that Smith possessed the substance and that fentanyl was present in his bloodstream, the jury was instructed that it had to find that Smith knew or believed the substance contained fentanyl specifically. The State argued that it was sufficient to prove only that Smith knew he possessed a controlled substance.

The Court of Appeals rejected that argument, explaining that the sufficiency of the evidence must be evaluated under the jury instructions actually given. The court found no direct evidence that Smith knew the substance contained both heroin and fentanyl. The substance’s appearance did not distinguish fentanyl from heroin, and there was no evidence showing that Smith packaged or sold it as containing both drugs. The presence of fentanyl in Smith’s bloodstream also did not establish that he had used the charged substance, particularly because no heroin was detected in his system.

The court further declined to consider information contained only in the police report and not presented at trial. Because no reasonable jury could find beyond a reasonable doubt that Smith knowingly possessed fentanyl, the court reversed Count 3 and ordered entry of a judgment of acquittal. His remaining convictions were affirmed.

Affirmed in part, reversed in part and remanded.

Decided 08/11/26

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