State v. Preston P. Rodenkirch

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.
April 1, 2021
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. 2017AP2002-CR Cir. Ct. No. 2016CF98

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

PRESTON P. RODENKIRCH,

DEFENDANT-APPELLANT.

APPEAL from judgments of the circuit court for La Crosse County:
SCOTT L. HORNE, Judge. Affirmed.

Before Fitzpatrick, P.J., Kloppenburg, and Nashold, 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. 2017AP2002-CR

¶1 PER CURIAM. Preston Rodenkirch appeals judgments of
conviction. The issue is whether the evidence was sufficient to show that
Rodenkirch’s possession of a controlled substance was without a prescription. We
conclude that it was, and therefore we affirm.

¶2 In reviewing sufficiency of the evidence, we affirm the verdict unless
the evidence, viewed most favorably to the State and the conviction, is so
insufficient in probative value and force that no reasonable trier of fact could have
found guilt beyond a reasonable doubt. State v. Poellinger, 153 Wis. 2d 493, 501,
451 N.W.2d 752 (1990).

¶3 Among other offenses, Rodenkirch was convicted of possession of
buprenorphine. The jury was instructed that the first two elements of the offense
were that Rodenkirch possessed a prescription drug and that he knew or believed it
was a substance that is a prescription drug. In this appeal we are concerned with the
third and final element: “The prescription drug was not dispensed to the defendant
upon a prescription order issued by a practitioner.”

¶4 Rodenkirch argues that the evidence was insufficient on that element
because the State did not present evidence about whether Rodenkirch had a
prescription. No witness testified that Rodenkirch did not have a prescription, and
there was no evidence of a statement by Rodenkirch admitting that he lacked a
prescription. He points out that this lack of evidence was also reflected in the State’s
closing argument, which did not discuss this element of the crime.

¶5 The State responds that the jury could reasonably have inferred that
Rodenkirch lacked a prescription beyond a reasonable doubt from the circumstances
surrounding Rodenkirch’s possession of the substance. We agree with the State.

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No. 2017AP2002-CR

¶6 Those circumstances include the fact that a single buprenorphine pill
was found in a small plastic bag. They also include the fact that the pill was found
in Rodenkirch’s vehicle along with an assortment of other controlled substances,
such as THC, methamphetamine, and hydrocodone.

¶7 In addition, the vehicle contained evidence suggesting that
Rodenkirch was engaged in the sale of controlled substances, such as multiple cell
phones and a scale. It is also significant that it appears that Rodenkirch was living
in the vehicle at the time, but no prescription container for buprenorphine was found
there, from which it could be inferred that Rodenkirch did not possess such a
container.

¶8 In sum, these circumstances were sufficient to allow a reasonable jury
to infer beyond a reasonable doubt that Rodenkirch possessed the buprenorphine
without a prescription.

By the Court.—Judgments affirmed.

This opinion will not be published. See WIS. STAT. § 809.23(1)(b)5.
(2019-20).

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