State v. Scott F. Ferguson

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 20, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP1651-CR Cir. Ct. No. 2015CF4240

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

SCOTT F. FERGUSON, JR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee
County: M. JOSEPH DONALD, Judge. Affirmed.

Before Brash, P.J., Kessler and Dugan, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2018AP1651-CR

¶1 PER CURIAM. Scott F. Ferguson, Jr., appeals from a judgment of
conviction for one count of first-degree intentional homicide by use of a dangerous
weapon and four counts of possession of a firearm by an adjudicated delinquent.
See WIS. STAT. §§ 940.01(1)(a), 939.63(1)(b), and 941.29(2)(b) (2015-16).1
Ferguson argues that he is entitled to a new jury trial because the admission of a
particular photograph violated his constitutional right of confrontation. He also
argues that there was insufficient evidence to convict him of three firearm
possession charges. We affirm.

BACKGROUND

¶2 The criminal complaint alleged that Ferguson was the man who
exited his car, fought in the street with a man named Marqui D. Hogan, and then
shot Hogan multiple times, causing his death. The complaint indicated that video
from a security camera shows that the man who shot Hogan was driving a white
SUV. Ferguson was charged with one count of being a delinquent in possession
of a firearm and first-degree intentional homicide while armed.

¶3 At the preliminary hearing, a detective testified that after Ferguson
was charged, he was arrested at the home of a friend. Officers who searched the
home found three firearms. Based on that testimony, the information was
amended to add three additional charges of possession of a firearm by an
adjudicated delinquent.

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2018AP1651-CR

¶4 The case proceeded to trial. Ferguson was found guilty of all
charges. For the homicide, the trial court sentenced Ferguson to life imprisonment
without the possibility of release. For the firearm possession convictions, the trial
court imposed four sentences of five years of initial confinement and five years of
extended supervision, to be served concurrent with each other but consecutive to
the homicide count. This appeal follows.

DISCUSSION

¶5 Ferguson presents two arguments on appeal. First, he argues that the
admission of a particular photograph at trial violated his constitutional right of
confrontation. Second, he argues that there was insufficient evidence to convict
him of three firearm possession charges. We consider each issue in turn.

I. Admission of the photograph.

¶6 Before opening statements, the State asked the trial court to rule on
the admissibility of a photograph of Ferguson sitting in a white vehicle. The State
said that a police officer would testify that he received the photograph from a
confidential informant on July 4, 2015, which was two months before Hogan was
shot. The State explained that it wanted to introduce the photograph to support its
theory that the white car in the photograph “is the white automobile that the
defendant was in at the time of the homicide, and which was subsequently
recovered in October of 2015.”

¶7 The defense opposed the admission of the photograph on hearsay
and confrontation grounds. In response, the State argued, “There is no
confrontation issue here because sending a photograph to an officer is not
testimonial; it’s not a statement.” The State explained that the officer would be

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providing “simply an explanation of the source of the photograph.” The trial court
ruled that the photograph could be admitted, noting that the defense would be able
to cross-examine the officer.

¶8 As anticipated, Officer Daniel Keller, an intelligence analyst,
testified that a confidential source emailed the photograph to him on July 4, 2015.
The State did not ask Keller why the photograph was sent to him, although it did
ask this general question: “[I]s it part of your responsibility as an intelligence
analyst to keep in touch with confidential sources and to acquire information from
them?” Keller replied, “Yes.” Keller testified that he printed the photograph and
showed it to other police officers, but he did not specify why he did so.

¶9 The State asked Keller to describe what was in the photograph.
Keller pointed out letters on the car’s inner door frame that were stamped on a
metal plate. Keller said he conducted research on vehicles and determined that
that type of metal plate can be found in the inner door frame of a Subaru Tribeca,
which was the type of vehicle the State alleged Ferguson was driving at the time
of the shooting and which was recovered in October 2015. The defense did not
ask Keller any questions about the photograph.

¶10 The jury also heard brief testimony about the photograph from a
woman named Tara O’Kelly, who lived in the home where Ferguson was arrested
and where officers found three firearms. The State showed O’Kelly the
photograph and asked if she recognized anyone in it. She indicated that the man in
the driver’s seat of the vehicle was Ferguson.

¶11 On appeal, Ferguson argues that his constitutional right to confront a
witness against him was violated because the confidential informant who provided
the photograph to Keller was not called to testify. We begin our analysis with the

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applicable law. “[A] defendant’s right to confrontation is violated if the trial court
receives into evidence out-of-court statements by someone who does not testify at
the trial if those statements are ‘testimonial’ and the defendant has not had ‘a prior
opportunity’ to cross-examine the out-of-court declarant.” State v. Mattox, 2017
WI 9, ¶24, 373 Wis. 2d 122, 890 N.W.2d 256 (citation omitted). “[W]hether the
admission of evidence violates a defendant’s right of confrontation is a question of
law subject to independent appellate review.” State v. Griep, 2015 WI 40, ¶17,
361 Wis. 2d 657, 863 N.W.2d 567 (citation omitted).

¶12 Ferguson contends that “[p]roviding the digital photo to police was a
‘statement’” by the informant and that the statement was “testimonial” as those
terms are used in the relevant case law. See, e.g., Mattox, 373 Wis. 2d 122, ¶24.
Ferguson further argues that the informant was not unavailable and that the
defense should have had an opportunity to cross-examine the informant. We
reject Ferguson’s argument because we conclude that sending the photograph to
the officer was not a statement. Therefore, we need not consider whether the
statement was testimonial, whether the informant was unavailable, or other issues
in the confrontation analysis. See State v. Blalock, 150 Wis. 2d 688, 703, 442
N.W.2d 514 (Ct. App. 1989) (holding that “cases should be decided on the
narrowest possible ground”).

¶13 Wisconsin’s rules of evidence define hearsay as “a statement, other
than one made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” See WIS. STAT. § 908.01(3).
Section 908.01(1) defines a “statement” as “(a) an oral or written assertion or
(b) nonverbal conduct of a person, if it is intended by the person as an assertion.”

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No. 2018AP1651-CR

¶14 Ferguson argues that sending the photograph to the officer was
“nonverbal conduct” by the informant that was intended to be “an assertion” that
Ferguson was involved in crime. See id. In support, he quotes United States v.
Cromer, 389 F.3d 662, 675 (6th Cir. 2004), which states: “Tips provided by
confidential informants are knowingly and purposely made to authorities, accuse
someone of a crime, and often are used against the accused at trial.” Ferguson
argues that here, “since the informer’s act of providing the photo was functionally
the same as making an oral statement the person in the photo was involved in
crime, providing the digital photo was a ‘statement’ as defined by statute.”

¶15 We are not persuaded. Even if we assume there are factual
situations where sending a photo to an officer could constitute a nonverbal
statement as defined by WIS. STAT. § 908.01(1)(b), the facts do not support that
conclusion in this case. The jury was not told why the informant sent the
photograph to the officer. Ferguson assumes that the informant was asserting that
Ferguson “was involved in crime,” but there was no testimony to support that
conclusion. The informant may have been sharing the photograph with the officer
because Ferguson was a victim or a witness, because Ferguson would provide an
alibi for someone, because Ferguson was displaying a unique hand gesture,
because Ferguson was wearing an article of clothing the officer asked about, or for
a host of other reasons. We will not assume that by providing the photograph the
informant intended to assert anything, much less that Ferguson was involved in
crime. Furthermore, there is no possibility that the informant was asserting that
Ferguson was involved in the crimes for which he was on trial because the
photograph was sent to the officer two months before the shooting.

¶16 In short, the informant’s act of providing the photograph to the
officer was not an out-of-court statement as defined by WIS. STAT. § 908.01(1)(b).

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No. 2018AP1651-CR

Therefore, admitting that photograph into evidence did not violate Ferguson’s
confrontation rights. See Mattox, 373 Wis. 2d 122, ¶24.

II. Sufficiency of the evidence concerning three firearms.

¶17 Ferguson argues there was insufficient evidence that he possessed
three firearms that were recovered from O’Kelly’s home about two weeks after the
shooting.2 In order to convict Ferguson, the State had to prove that he possessed a
firearm and was previously adjudicated delinquent of a crime that would have
been a felony. See WIS. STAT. § 941.29(2)(b) (2015-16); WIS JI—CRIMINAL
1343. Ferguson stipulated to his prior adjudication, so the jury was asked to
determine only whether Ferguson possessed the weapon. The jury was instructed:

“[P]ossessed” means that the defendant knowingly had
actual physical control of a firearm.

An item is also in a person’s possession if it is in an
area over which the person has control and the person
intends to exercise control over the item. It is not required
that a person own an item in order to possess it. What is
required is that the person exercises control over the item.
Possession may be shared with another person. If a person
exercises control over an item, that item is in his possession
even though another person may also have similar control.

See WIS JI—CRIMINAL 1343.

¶18 Whether the evidence was sufficient to sustain a guilty verdict is a
question of law that we review independently. See State v. Smith, 2012 WI 91,
¶24, 342 Wis. 2d 710, 817 N.W.2d 410. We apply a “highly deferential” test

2
The State did not argue that any of the three firearms were used to kill Hogan. Indeed,
the firearms expert testified that the firearms recovered from the closet were not the firearms used
to shoot Hogan.

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No. 2018AP1651-CR

when reviewing the sufficiency of the evidence to support a defendant’s
conviction. State v. Kimbrough, 2001 WI App 138, ¶12, 246 Wis. 2d 648, 630
N.W.2d 752. We will not substitute our judgment for that of the factfinder “unless
the evidence, viewed most favorably to the [S]tate and the conviction, is so
lacking in probative value and force that no trier of fact, acting reasonably, could
have found guilt beyond a reasonable doubt.” State v. Poellinger, 153 Wis. 2d
493, 507, 451 N.W.2d 752 (1990). We must affirm “[i]f any possibility exists that
the trier of fact could have drawn the appropriate inferences from the evidence
adduced at trial to find the requisite guilt.” Id. This standard applies regardless of
whether a verdict is based on direct or circumstantial evidence. Id. at 503.

¶19 Ferguson was arrested at O’Kelly’s home, where he had spent the
night.3 When detectives searched the home, they found the following items in
O’Kelly’s bedroom closet: “three firearms, two boxes of ammunition, a ballistic
vest, a box for a cell phone, and also a cell phone broken into four pieces.” One of
the firearms was found in a blue bag that O’Kelly testified was hers, but she
denied that any of the firearms belonged to her. She said that she did not know
where the firearms came from, adding that many people visit her home with
firearms. She also said that Ferguson did not bring anything with him to the home
the night before he was arrested.

¶20 The jury heard evidence that Ferguson’s fingerprint was found on a
plastic storage tray inside a box of ammunition designed for a ten millimeter
firearm, which was one type of firearm found in the closet. The fingerprint

3
O’Kelly testified that she and Ferguson had been friends for a couple of years and that
he spent the night on the living room couch.

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No. 2018AP1651-CR

examiner also said that Ferguson could not be excluded as the source of a
fingerprint left on electrical tape that was removed from two ammunition
magazines that were taped together and inserted into one of the firearms.4 In
addition, the jury heard evidence that Ferguson’s DNA was recovered from the
broken cell phone that was found near the firearms.

¶21 Viewing the evidence in a light most favorable to the verdicts, see
Poellinger, 153 Wis. 2d at 507, we conclude that there was sufficient evidence to
support the jury’s findings that Ferguson possessed the firearms. Not only were
they found in a home where he was staying, he was linked by fingerprint and DNA
evidence to two items found with the firearms in O’Kelly’s closet: the box of
ammunition and the cellphone. Further, O’Kelly denied the firearms were hers.
Based on the evidence presented, the jury could reasonably find that Ferguson
brought the firearms to O’Kelly’s home and exercised control over the firearms at
the residence.5 See WIS JI—CRIMINAL 1343.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

4
The fingerprint examiner testified: “I found that the right index finger for
Mr. Ferguson could not be excluded as the source for this print. However, this print had certain
amounts of distortion that precluded me from making a positive identification.”
5
The jury was free to accept O’Kelly’s testimony that the firearms did not belong to her
and to reject her testimony that Ferguson did not bring anything into the house. See O’Connell v.
Schrader, 145 Wis. 2d 554, 557, 427 N.W.2d 152 (Ct. App. 1988) (“[T]he jury, as ultimate
arbiter of credibility, has the power to accept one portion of a witness’[s] testimony, reject
another portion and assign historical facts based upon both portions.”).

9