State v. Shawn D. Carney

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.
June 18, 2026
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2024AP1879-CR Cir. Ct. No. 2019CF138

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

SHAWN D. CARNEY,

DEFENDANT-APPELLANT.

APPEAL from a judgment and orders of the circuit court for Rock
County: KARL HANSON, Judge. Affirmed.

Before Graham, P.J., Blanchard, and Kloppenburg, 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).

¶1 PER CURIAM. Shawn Carney, pro se, appeals a judgment of
conviction for possession of cocaine with intent to deliver following a jury trial
No. 2024AP1879-CR

and the circuit court’s denial of his postconviction motion for relief and motion to
reconsider, which were based on claims that the evidence was insufficient and that
the State committed prosecutorial misconduct. We conclude that the evidence at
trial was sufficient to support the jury’s verdict on the cocaine charge and that
Carney fails to develop the claim of alleged prosecutorial misconduct.
Accordingly, we affirm.

Background

¶2 Carney was riding in the front passenger seat of a vehicle that was
pulled over by police officer Todd Radloff because it had no working taillights.
After Radloff activated his squad car’s emergency lights, but before the vehicle
that Carney was in came to a stop, Radloff saw a white object larger than a
snowball being thrown out of the front passenger window of the vehicle. Radloff
then saw a second, much smaller object being thrown out of the same window. He
called for other officers to assist him in retrieving these thrown objects. The
officers recovered a small baggy holding a substance later identified as heroin.
They also found chunks of the larger object, later confirmed to be cocaine, which
had broken into pieces when it hit the curb and was dissolving into the snowbank
along the road. When Carney was ordered out of the vehicle, Radloff observed
white powder on Carney’s pants. No white powder was observed on either of the
other two people in the vehicle with Carney. Officers found additional cocaine on
the front passenger seat and on the floor in front of that seat. They also found
$1,875, including 73 twenty-dollar bills, on Carney’s person.

¶3 Carney was charged with one count of possession of heroin with
intent to deliver and one count of possession of cocaine with intent to deliver. At
a jury trial, officers testified as to the details above regarding the traffic stop and

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No. 2024AP1879-CR

Carney’s arrest. Radloff further testified that, in his experience, the quantity of
drugs Carney possessed and the amount of money found on Carney were
consistent with drug resale rather than personal drug use. Another officer, Aaron
Dammen, testified to the following: approximately 4.7 grams of heroin and more
than 13 grams of cocaine were recovered and weighed; while the heroin was
contained in a baggy, the cocaine was “found in large chunks throughout the snow
banks” along the side of the road, and was “just starting to become wet on the
bottom.” Consistently with Radloff’s testimony on the same point, Dammen
testified that “people that we come across with this amount of drugs … are doing
some form of dealing” and that the amounts in this case are higher than a typical
user would have for personal consumption.

¶4 Durante Carr, the backseat passenger of the vehicle during the
incident described above, also testified at trial. Carr testified that Carney was the
front seat passenger in the vehicle at the time of the incident. Further, Carr
confirmed that, shortly after the incident, Carr had told officers that Carney had
just thrown objects out of the vehicle and made it look as though it was snowing.
At the conclusion of Carr’s testimony, the prosecutor asked Carr to confirm that he
was granted immunity for his testimony, which meant that he “cannot be
prosecuted for anything [he said,] as long as [he] testif[ied] truthfully.” Carr
confirmed that he had been granted immunity.

¶5 During the State’s rebuttal closing argument, the prosecutor
reminded the jury that Carr “was given immunity, which means anything he
testified to could not be used against him, unless he testified falsely.” The
prosecutor continued:

So Mr. Carr could have got up on the stand and said, yes, I
threw the cocaine out the window and there’s nothing the

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No. 2024AP1879-CR

State could have done about it, except prosecute him for
perjury for falsely claiming the cocaine was his. He didn’t
do that because he knew that it was [Carney] who threw the
cocaine out the window.

Carney, who had been granted permission to represent himself (with former
counsel as standby) at this point in the trial, did not object.

¶6 The jury found Carney guilty of possessing cocaine with intent to
deliver. On the heroin charge, the jury found Carney guilty of the lesser offense of
possession of heroin, but not of possession with intent to deliver.

¶7 Carney filed a motion for postconviction relief, arguing that the
prosecutor’s comments to the jury about Carr’s immunity constituted prosecutorial
misconduct and that the State introduced insufficient evidence to support his
conviction for possessing cocaine with the intent to deliver. 1 After conducting an
evidentiary hearing, the circuit court denied Carney’s motion. The court also
denied Carney’s motion for reconsideration. Carney appeals.

Discussion

¶8 We first address Carney’s claim challenging the sufficiency of the
evidence on the cocaine charge. Specifically, Carney argues that the evidence of
the two types of drugs that he possessed and the cash found on his person was
insufficient to support the jury verdict on the charge of possession of cocaine with
intent to deliver, because the evidence provided no basis for the jury to reasonably
infer that Carney intended to sell the cocaine. He also argues that the jury’s return
of a verdict of guilty on only the charge of possession of heroin—and not

1
Although his postconviction motion included other asserted grounds for relief, Carney
has abandoned these other grounds on appeal.

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No. 2024AP1879-CR

possession with intent to deliver heroin as charged—is inconsistent with, and
requires vacating, the verdict on the cocaine delivery charge.

¶9 “This court independently reviews whether the evidence was
sufficient to sustain the jury verdict, ‘but in so doing, we view the evidence most
favorably to sustaining the conviction.’” State v. Hibbard, 2022 WI App 53, ¶9,
404 Wis. 2d 668, 982 N.W.2d 105 (quoting State v. Hanson, 2012 WI 4, ¶15, 338
Wis. 2d 243, 808 N.W.2d 390). “[A] defendant challenging the sufficiency of the
evidence bears a heavy burden to show the evidence could not reasonably have
supported a finding of guilt.” State v. Beamon, 2013 WI 47, ¶21, 347 Wis. 2d
559, 830 N.W.2d 681. If the evidence, including both direct and circumstantial
evidence, supports more than one reasonable inference, this court “must accept
and follow the inference drawn by the [jury] unless the evidence on which that
inference is based is incredible as a matter of law.” State v. Poellinger, 153
Wis. 2d 493, 506-07, 451 N.W.2d 752 (1990).

¶10 Here, the State presented evidence that: Carney threw cocaine out of
a moving vehicle from the front passenger seat; the cocaine the officers were able
to recover from that area of the vehicle and the snowbank into which the cocaine
was thrown amounted to more than thirteen grams; and Carney was carrying
$1,875 in cash, including 73 twenty-dollar bills. In addition, the State presented
testimony from police officers that this quantity of cocaine was more than an
amount typically associated with personal use, and that the amount of cash and
denomination of the bills found were consistent with selling drugs.

¶11 Carney does not direct us to binding authority to support his
contention that this evidence was insufficient as a matter of law for a jury to
reasonably infer that he intended to sell at least some of the cocaine at issue.

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No. 2024AP1879-CR

Citing State v. Wilson, 180 Wis. 2d 414, 509 N.W.2d 128 (Ct. App. 1993), he
argues that intent to deliver may be inferred only if there is additional evidence
indicating drug sales, such as evidence of packaging materials, scales, weapons,
pay-owe sheets, or digital communications reflecting sales. Wilson, however,
does not mention these items or discuss what evidence is necessary to prove intent
to deliver. Instead, the issue in that case is whether the jury was properly
instructed about indirect delivery of a controlled substance. Id. at 418. Similarly,
the Romero case cited by Carney does not discuss the evidence necessary to prove
intent to deliver. The sole issue in that case is whether there was probable cause
for a search warrant based in part on statements of an unnamed person. State v.
Romero, 2009 WI 32, ¶2, 317 Wis. 2d 12, 765 N.W.2d 756.

¶12 Carney has not demonstrated that “additional indicators of
trafficking” are “critical elements” to a finding of intent to deliver.2 Carney
contends that “the existence of cash [and] drugs does not automatically equate to
intent to deliver.” This general point is true as far as it goes, but as an argument
here it fails to take into account incriminating evidence that the jury was free to
consider. The issue is not whether the incriminating evidence compelled the jury
to find him guilty of possession of cocaine with the intent to deliver, but whether

2
Carney also refers to “State v. Hanson” as a purported case stating that “intent cannot
be inferred solely from quantity without contextual indicators of distribution.” None of the
citations provided are associated with a case by that name, and none of the citations lead to cases
dealing with the proof required for a conviction on a charge of possessing drugs with intent to
distribute them. Carney also cites a number of cases from other jurisdictions, which, even to the
extent they address the issues in this appeal, are not binding on this court. See United States v.
Martorano, 709 F.2d 863 (3d Cir. 1983); Commonwealth v. Harvard, 64 A.3d 690 (Pa. Super.
2013); United States v. Boissoneault, 926 F.2d 230 (2d Cir. 1991).

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No. 2024AP1879-CR

the evidence supported a reasonable inference that he intended to deliver cocaine.3
See Poellinger, 153 Wis. 2d at 506-07.

¶13 Nor has Carney demonstrated inconsistency in the jury’s verdicts
that would undermine his conviction for possession of cocaine with intent to
deliver. Carney points out that the jury returned of a verdict of guilty on the lesser
charge of heroin possession, and from this he argues that the cocaine and heroin
possession with intent to deliver charges must logically stand or fall together
because the drugs were found together and prosecuted under the same theory. But
this rests on the false premise that one delivery charge depended on the other
delivery charge. These were separate charges for distinct conduct, with proof that
varied between the cocaine and the heroin. Carney gives us no reason to think that
the jury did not properly consider each charge separately based on the evidence
relevant to that charge.

¶14 In sum on this issue, because Carney has not met his “heavy burden”
of showing that the evidence was insufficient to support a reasonable inference
that he was guilty of possessing cocaine with the intent to deliver, we affirm the
circuit court’s decision with respect to the sufficiency of the evidence. See
Beamon, 347 Wis. 2d 559, ¶21.

¶15 We now turn to Carney’s assertion that the State engaged in
prosecutorial misconduct. Carney asserts that the prosecutor’s statements about
the immunity granted to Durante Carr constituted “improper bolstering [and]

3
At some points, Carney seems to suggest that the evidence was insufficient to support
the jury’s verdict on the cocaine charge because his conviction rested on nothing more than being
in a vehicle with drugs. As we have explained, the evidence at trial amounted to far more than
Carney merely being in a vehicle in which drugs were found.

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No. 2024AP1879-CR

vouching for this witness” that unduly influenced the jury. We reject this
contention because Carney fails to develop it in any way.

¶16 It is standard practice for a circuit court to instruct a jury, as it did in
this case, that a witness who has received immunity “like any other witness, may
be prosecuted for testifying falsely” and that the jury “should consider whether
receiving immunity affected the testimony and give the testimony the weight … it
is entitled to receive.” See WIS JI—CRIMINAL 246 (2000). Furthermore, as this
court has stated, informing the jury that a witness is testifying subject to an
immunity agreement “‘is not likely to bolster his [or her] credibility’” but might
“‘have the opposite effect, by imputing a motive for the witness’s testifying as the
prosecution wants … regardless of the truth.’” See State v. Lammers, 2009 WI
App 136, ¶19, 321 Wis. 2d 376, 773 N.W.2d 463 (quoted source omitted). We
recognize that Carney advocates for himself, but he completely fails to explain
how the prosecutor’s comments were improper under the law or infringed his
rights. We affirm the circuit court’s decision with respect to prosecutorial
misconduct on that basis. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d
633 (Ct. App. 1992) (stating that this court may decline to review arguments that
are undeveloped and unsupported by authority).4

4
Notably, none of the three opinions that Carney cites in purported support of the claim
of prosecutorial misconduct involve a prosecutor discussing a witness’s immunity. In United
States v. Young, 470 U.S. 1, 18 (1985), the United States Supreme Court affirmed a conviction
despite the prosecutor giving his personal opinion on the defendant’s guilt in response to defense
counsel’s attacks on the prosecution’s integrity. In Berger v. United States, 295 U.S. 78, 88-89
(1935), the court reversed a conviction because a prosecutor’s misconduct, including “improper
suggestions, insinuations, and, especially, assertions of personal knowledge,” was so
“pronounced and persistent” that it likely had a consequential effect on the jury. In Darden v.
Wainwright, 477 U.S. 168, 180-81 (1986), the court concluded that a prosecutor’s improper
comments during closing argument, which included “offensive comments reflecting an emotional
reaction to the case,” did not violate due process.

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No. 2024AP1879-CR

Conclusion

¶17 For the foregoing reasons, the judgment of conviction and circuit
court orders denying postconviction relief are affirmed.

By the Court.—Judgment and orders affirmed.

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

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