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  • WisBar Court Review
    December 28, 2021

    Circumstantial Evidence Means Trace Amount of Heroin Is Sufficient to Sustain Conviction

    A state appeals court has ruled that a trace amount of heroin found on a defendant provides a basis for the offense of narcotics possession, because a jury could have reasonably inferred from compelling circumstantial evidence of recent drug use that the defendant knowingly possessed the heroin.

    Jeff M. Brown

    Drunk Driving 

    Dec. 28, 2021 – A state appeals court has ruled that a trace amount of heroin found on a defendant provides a basis for the offense of narcotics possession, because a jury could have reasonably inferred from compelling circumstantial evidence of recent drug use that the defendant knowingly possessed the heroin.

    In State v. Chentis, 2020AP1699-CR (Dec 1, 2021), the Court of Appeals District II held that Nakyta. T. Chentis had failed to demonstrate that withdrawing his plea to a count of narcotics possession was necessary to correct a manifest injustice.

    In July 2017 a police officer stopped Chentis, wh​o was driving in Waukesha County. During the traffic stop, a K-9 unit alerted on Chentis’ vehicle. The police officer who pulled Chentis over saw track marks on Chentis’s arm – marks the officer knew were consistent with the recent injection of drugs. 

    A police search of the vehicle turned up the following: a case full of needles; cotton ball; a water-like solution; needles wrapped with a constrictor band; a metal cap or “tin cooker;” a crack pipe; and a baggie containing white powder.

    When tested, the white powder proved to be oxycodone. The tin cooker contained a trace amount of heroin. 

    Arrested for Trace Amount

    The Waukesha County District Attorney charged Chentis with possession of a narcotic drug and possession of drug paraphernalia.

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    Chentis pled guilty to possession of a narcotic drug; the drug paraphernalia charge was dismissed and read in. During the plea colloquy, Chentis’ lawyer told the court that the basis for the plea was the trace amount of heroin, not the oxycodone.

    After the court sentenced Chentis, he filed a post-conviction motion seeking to withdraw his plea. Chentis argued that there was no basis for the court to have concluded that he knowingly possessed the trace amount of heroin found in the tin cooker.

    The circuit court denied the motion, on the grounds that reasonable jurors could have inferred from the drug paraphernalia and from Chentis’ physical characteristics at the time of his arrest that he had recently used heroin and therefore knew about the heroin in the tin cooker.

    Manifest Injustice?

    In an opinion written by Presiding Judge Mark D. Gundrum, the three-judge appellate panel affirmed the circuit court’s decision.

    Chentis bore the burden of showing by clear and convincing evidence that withdrawing his plea was necessary to correct a manifest injustice, Gundrum wrote. The failure by a circuit court to establish a factual basis for the offense to which Chentis pled would constitute such an injustice.

    Chentis asserted that the court had failed to establish a factual basis in his case. There was no way his possession of the heroin could be knowing, Chentis argued, because so little of it was found in the tin cooker.

    In support of that proposition, Chentis cited Kabat v. State, 76 Wis. 2d 224, 251 N.W.2d 38 (1977). In that case, the defendant was convicted of possessing marijuana after a pipe that was confiscated from him was found to contain a tiny amount of ashy residue that contained a chemical ingredient of marijuana.

    The defendant admitted using the pipe to smoke marijuana weeks earlier. But he testified he had no reason to believe the pipe contained marijuana because he’d cleaned it two weeks before the police found it.

    The supreme court held that it was a defendant’s awareness of the presence of a narcotic, and not the presence of the narcotic itself, that governed. Because a lay person would not have known that the ashy residue that remained after the defendant cleaned the pipe contained ingredients of a narcotic, the circuit court was wrong to impute knowledge of that narcotic to the defendant.

    ‘Strong Circumstantial Evidence’

    However, Gundrum, explained that Kabat does not require overturning a conviction for narcotics possession merely because only a trace of narcotics is found in a defendant’s possession.

    In State v. Poellinger, 153 Wis. 2d. 493, 451 N.W.2d 752 (1990), the supreme court upheld the conviction of a defendant who was prosecuted for possessing a vial that contained cocaine residue on the cap threads.

    In that case, the court held that the jury could reasonably infer that Poellinger had either seen the residue when replacing the cap or knew that, absent taking extraordinary measures to clean the vial, some amount of the cocaine would remain behind. Such an inference, the court, held, would be enough to satisfy the knowledge element of the crime.

    A jury could have made a similar inference in Chentis’s case, Gundrum wrote.

    The wide variety of drug paraphernalia found on Chentis when he was arrested was “strong circumstantial evidence of Chentis’s knowledge that the tin cooker contained a trace amount of heroin … [a]dditionally, and significantly, Chentis’s arm had fresh track marks that police believed were consistent with recent drug use and needle injection.”  

    Moreover, nothing in the record suggested that Chentis had recently cleaned the tin cooker, or that he had any other reason to think that drug residue would have been removed from it. Given those inferences, Gundrum wrote, a factual basis existed for Chentis’s plea, and he was not entitled to withdraw it.



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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2021 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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