The opinion
*434 DYKMAN, J.
(dissenting). Defendant was tried for attempted delivery of cocaine. Section 939.32(3), Stats., defines attempt:
An attempt to commit a crime requires that the actor have an intent to perform acts and attain a result which, if accomplished, would constitute such crime and that he does acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that he formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor.
Because defendant was charged with attempted sale of cocaine, the jury must have been able to draw an inference that defendant believed the substance he was delivering was cocaine. The "extraneous factor" that prevented the complete crime is the fact that the substance transferred was lidocaine.
The majority sets out the objective facts this case: "[N]egotiation to sell cocaine, an agreement to sell cocaine, complicated maneuvers, and transfer and delivery by intermediaries of a substance having properties similar to those of cocaine." It concludes, without explanation, that these facts demonstrate unequivocally that defendant intended to deliver cocaine.
"Unequivocal" means "leaving no doubt: CLEAR, UNAMBIGUOUS." Webster's New Collegiate Dictionary 1277 (8th ed. 1977). What fact or facts suggest that defendant knew he was delivering cocaine? He said he wanted to sell cocaine, he agreed to sell cocaine, he acted like he was selling an illegal substance, and the substance he sold looked like cocaine. None of these facts are direct evidence that defendant believed the substance to be cocaine. The facts are circumstantial evidence from which an inference can be drawn that defendant believed he was selling cocaine. Circumstantial evidence is "[T]he proof of certain facts from which a jury may logically infer the ex *435 istence of other facts according to the knowledge or common experience of mankind." Wis. J I — Criminal 170.
Because the evidence of defendant’s belief as to the authenticity of the cocaine is circumstantial, we use a special test for evidence sufficiency. "A conviction may be based upon circumstantial evidence, however when circumstantial evidence is relied upon, as here, a conviction should be upheld if the evidence is strong enough to exclude to a moral certainty every reasonable hypothesis of innocence." State v. Stanfield, 105 Wis.2d 553, 564 , 314 N.W.2d 339, 344 (1982). This rule refers to evidence the jury could have believed and relied upon. Peters v. State, 70 Wis.2d 22, 34, n.14 , 233 N.W.2d 420, 427 (1975). Thus, we exclude evidence the jury could not have relied upon— i.e. unreasonable evidence — and examine the remaining evidence to determine whether a reasonable hypothesis of innocence exists. This is an appellate test. Id.
A reasonable hypothesis of innocence of this crime is that defendant was trying to cheat, "rip-off" or "burn" Ziebell by selling him an inexpensive substance represented to be cocaine, thus increasing defendant's profit margin. I conclude that this hypothesis is reasonable in the sense that it is plausible. We read newspaper accounts of this type of transaction — and the sometimes dire consequences for the cheater. Television reports this type of fraud both in its news and entertainment functions. The legislature has recognized that persons might try to pass off other substances as controlled substances. Sec. 161.41(4)(a)l, Stats., provides: "No person may knowingly deliver, attempt to deliver or cause to be delivered a non-controlled substance and expressly or impliedly represent to the recipient: 1. The substance is a controlled substance; . . . ."
I also conclude that the only evidence presented is consistent with defendant's innocence of attempted delivery of cocaine. Defendant did not testify. There is no evi *436 dence to reject as unreasonable without also destroying the state's case. I see no reason why negotiating to sell cocaine is inconsistent with defendant's belief that the drug was lidocaine. No one would expect a rip-off artist to lead off with negotiations to sell powdered sugar or li-docaine. Similarly, if the object is to cheat the buyer, the seller would not agree to sell the phony item. Finally, complicated maneuvers and transfers by intermediaries is consistent with defendant's knowledge that he was selling lidocaine. Fraud involves an attempt to cheat in some way. The closer the counterfeit is to the real thing, the less the chance of discovery. The more closely the transaction mimics the real thing, the less suspicion is aroused. One would not expect defendant to have suggested an open and obvious transfer of the substance.
I cannot conclude that the evidence excludes, to a moral certainty, every reasonable hypothesis of innocence. I do not believe the majority can reach that conclusion either, because it does not explain how it reaches its conclusion, but only that the facts clearly show that defendant intended to deliver cocaine. Calling a matter "clear" does not make it so.
Adoption of my theory of this case does not hamper prosecution of drug frauds. Section 161.41(4)(a), Stats., criminalizes the very transaction defendant suggests occurred. Under the majority's theory, that statute is sur-plusage, for every transfer of a noncontrolled substance coupled with a representation that the substance was controlled would be an attempted sale of a controlled substance. Statutes should be construed so as to avoid the conclusion that the legislature passed a meaningless law. State v. Wisconsin Telephone Co., 91 Wis.2d 702, 714 , 284 N.W.2d 41, 46 (1979). I would reverse and permit defendant to be prosecuted under the proper statute.