¶1 Terrill L. Wallace appeals from a judgment convicting him of delivering heroin and being a felon in possession of a firearm. He also appeals from a circuit court order rejecting without an evidentiary hearing his postconviction allegations of ineffective assistance of trial counsel, the States failure to inform him that it would recommend probation for a key witness in return for that witnesss cooperation against him, the States improper closing argument, and insufficient evidence to convict him of the firearm possession offense. We affirm the circuit courts discretionary decision to reject these claims without an evidentiary hearing.
¶2 Wallace was charged with delivering heroin to the key witness against him, Mr. Hajdini. Shortly after Wallace arrived at a home being surveilled by law enforcement for drug activity, Hajdinis vehicle also arrived at the home. Wallace interacted with Hajdini while Hajdini remained in his vehicle; Wallace leaned inside and placed his hands inside the vehicles window. Shortly after Hajdini drove away, the police stopped him for a traffic violation and found a significant amount of heroin between the drivers seat and the console. Although Hajdini initially claimed that the heroin belonged to another user of his vehicle, he later admitted that he made this false claim because he had children at home and wanted to avoid going to jail after being arrested. Hajdini later admitted at the police station that Wallace fronted him the heroin with payment due later. A jury convicted Wallace of delivering heroin.
¶3 On appeal, Wallace challenges the circuit courts denial of his postconviction motion without an evidentiary hearing. The circuit court had discretion to deny a postconviction motion without a hearing if the motion was legally insufficient. State v. Allen, 2004 WI 106, ¶12, 274 Wis. 2d 568, 682 N.W.2d 433.
The circuit court may deny a postconviction motion for a hearing if all the facts alleged in the motion, assuming them to be true, do not entitle the movant to relief; if one or more key factual allegations in the motion are conclusory; or if the record conclusively demonstrates that the movant is not entitled to relief.
Id. ¶12 (footnote omitted).
Ineffective Assistance of Trial Counsel and Hajdinis Cooperation
¶4 To succeed on an ineffective assistance of counsel claim, a defendant must demonstrate that counsels representation was deficient and that the deficiency was prejudicial. State v. Jeannie M.P., 2005 WI App 183, ¶6, 286 Wis. 2d 721, 703 N.W.2d 694. We will uphold the circuit courts factual findings unless they are clearly erroneous. Id. We review de novo whether counsels performance was deficient or prejudicial. Id. To show prejudice arising from counsels performance, a defendant “must show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id., ¶26 (citations omitted). We need not consider whether trial counsels performance was deficient if we can resolve the ineffectiveness issue on the ground of lack of prejudice. State v. Moats, 156 Wis. 2d 74, 101, 457 N.W.2d 299 (1990).
¶5 Postconviction, Wallace claimed that his trial counsel was ineffective because counsel failed to impeach Hajdini with evidence that he was motivated to falsely implicate Wallace in delivering heroin.
1
Specifically, Wallace complains, his trial counsel did not take adequate steps to put before the jury that upon his arrest and after, Hajdini repeatedly said he wanted to see his children and asked law enforcement officers what he needed to do to avoid jail. Thereafter, Hajdini stated that he obtained the heroin from Wallace.
¶6 The record supports the circuit courts finding that Hajdinis credibility and alleged motive for stating he obtained the heroin from Wallace were addressed at trial. During opening statements, Wallaces trial counsel stated that Hajdini lied to the police about Wallace and was motivated to do so because he wanted to avoid jail. At trial, Hajdini admitted that to avoid being jailed and separated from his children, he lied when he denied a connection with the heroin found in his vehicle. From that testimony the jury could have inferred that Hajdini ultimately implicated Wallace as the heroins source to serve his own purposes. The jury also knew that Hajdini had been convicted of possessing heroin with intent to deliver. During closing arguments, Wallaces counsel argued that Hajdini had a motive to falsely accuse Wallace and was otherwise not credible. Based on this record, the circuit court found that Hajdinis credibility was challenged during Wallaces trial and concluded that none of Wallaces postconviction challenges would have changed the trials outcome. Therefore, Wallace was not prejudiced by his trial counsels performance.
¶7 We agree with the circuit court that Hajdinis credibility was challenged before the jury. Because the record conclusively demonstrates that Wallace was not prejudiced by his trial counsels performance, the circuit court did not err when it rejected this claim without a hearing. Allen, 274 Wis. 2d 568, ¶12.
¶8 Wallace next argues that the State failed to disclose that it had agreed to recommend probation for Hajdini at Hajdinis sentencing in return for his cooperation against Wallace, and Wallaces trial counsel failed to pursue this issue. Seven months after he was sentenced, Hajdini testified at Wallaces trial about his plea agreement and stated that the plea agreement did not have anything to do with Wallaces case. At the postconviction motion hearing, the State clarified that references at Wallaces trial to Hajdinis cooperation with law enforcement referred to Hajdinis time-of-arrest statements to police that he received the heroin from Wallace. The State denied that Hajdini received any additional consideration in relation to Wallaces case. The circuit court found that there was no evidence of an agreement with Hajdini relating to Wallaces case or that the States probation recommendation was tied to Hajdinis cooperation against Wallace. Therefore, there was nothing the State failed to disclose or that trial counsel failed to unearth. These findings are not clearly erroneous. Jeannie M.P., 286 Wis. 2d 721, ¶6. Finally, Hajdini was sentenced before he testified at Wallaces trial. Because the record conclusively demonstrates that Wallace was not prejudiced by his trial counsels performance, the circuit court did not err when it rejected this claim without a hearing. Allen, 274 Wis. 2d 568, ¶12.
¶9 We conclude that the circuit court did not misuse its discretion when it denied Wallaces ineffective assistance of trial counsel claims without an evidentiary hearing. See id.
States Closing Argument
¶10 Wallace next contends that the circuit court should have ordered a new trial on the heroin delivery offense because the State improperly argued during its closing that Hajdini did not have a motive to lie and had nothing to gain by accusing Wallace of delivering heroin to him. Postconviction, the circuit court determined that at the time of the closing arguments in Wallaces case, Hajdini had already been sentenced, and there was no evidence that he had a continuing obligation to cooperate with the State in Wallaces case in order to gain something for himself.
2
On this record, we agree with the circuit court that the States closing argument was not a basis for a new trial.
Sufficiency of the Evidence
¶11 Finally, Wallace argues that the evidence was insufficient to convict him of being a felon in possession of a firearm. Postconviction, the circuit court concluded that there was sufficient evidence from which the jury could have inferred that Wallace possessed a firearm.
¶12 We review whether the evidence, “viewed most favorably to the state and the conviction, is so insufficient in probative value and force that it can be said as a matter of law that no trier of act, acting reasonably, could have found guilt beyond a reasonable doubt.” State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990). The standard is the same whether the evidence is direct or circumstantial. Id. It was the jurys function to decide issues of credibility, weigh the evidence and resolve conflicts in the testimony. Id. at 506. We must accept the reasonable inferences drawn from the evidence by the jury. Id. at 506-07.
¶13 Wallace stipulated that he was a convicted felon, leaving the State to prove at trial that he possessed a firearm. Wis JI—Criminal 1343. As defined for the jury, possession meant that Wallace “knowingly had actual physical control of a firearm,” including any firearm “in an area over which the person has control and the person intends to exercise control over the item” or a firearm over which Wallace exercised control “even though another person may also have similar control.” Id.
¶14 We agree with the State that there was sufficient evidence and reasonable inferences from that evidence to convict Wallace of being a felon in possession of a firearm. The firearm was found in the basement of the house owned by the mother of Wallaces romantic partner. The evidence showed that Wallace was routinely in the house, occasionally gave the houses address as his own, his personal property was found in the house, he delivered heroin from the house on the day of the crime, the firearm was hidden near where some of Wallaces personal identifying information was found, bullets matching the caliber of bullets found with the firearm were found in a duffle bag containing Wallaces property, and the jury did not have to believe Wallaces partners testimony that she owned and solely possessed the firearm and that Wallace was unaware of the firearm. We agree with the State that there was sufficient evidence to convict Wallace of possessing a firearm while a felon. See generally State v. Richardson 156 Wis. 2d 128, 144, 456 N.W.2d 830 (1990) (“Several cases have found that drug dealers and weapons go hand in hand.”).
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
FOOTNOTES
1
. Wallace also contends that his trial counsel should have sought to introduce Hajdinis recorded police interview into evidence. The jury heard Hajdinis testimony and other evidence about his connection to the heroin found in his vehicle. The absence of the recorded interview from evidence was not prejudicial because the key points about Hajdinis role in the case were otherwise before the jury. See State v. Moats, 156 Wis. 2d 74, 101, 457 N.W.2d 299 (1990).
2
. After the first postconviction motion hearing, the circuit court ordered the State to disclose any additional information in its possession relating to any concessions offered to Hajdini in connection with his role as a witness in Wallaces case. After the State reported that it had located no additional information, the circuit court entered the order denying Wallaces postconviction motion.
PER CURIAM.