Jones v. Commonwealth of Ky., 2009–SC–000375–DG.

• Decision Date: 20 January 2011
• Docket Number: No. 2009–SC–000375–DG.,2009–SC–000375–DG.
• Citation: 331 S.W.3d 249
• Parties: Rachel JONES, Appellant,v.COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

331 S.W.3d 249

Rachel JONES, Appellant,

v.COMMONWEALTH of Kentucky, Appellee.

No. 2009–SC–000375–DG.

Supreme Court of Kentucky.

Jan. 20, 2011.

Kathleen Kallaher Schmidt, Appeals Branch Manager, Department of Public Advocacy, Frankfort, KY, Counsel for appellant.Jack Conway, Attorney General, Michael John Marsch, Assistant Attorney General, Office of Criminal Appeals, Attorney General's Office, Frankfort, KY, Counsel for appellee.Opinion of the Court by Justice CUNNINGHAM.

Appellant, Rachel Jones, was convicted in Laurel Circuit Court of multiple felony drug trafficking offenses for both controlled substances and marijuana. Her appeal centers on the claim that some of the drugs were not chemically tested, making the evidence of the controlled substance offenses insufficient for a conviction. She also claims error in the admission of evidence revealing other illegal drug transactions. Based upon the following, we affirm the decision by the Court of Appeals.

I. Background

Appellant's convictions arose from a pair of controlled buys by Stanley Howard, an informant, under the direction of Detective Brian Lewis. Howard had informed Detective Lewis of his previous drug purchases from Appellant.

The first controlled buy was on January 22, 2007. With the detective waiting in a car, Howard purchased marijuana and fifteen purported alprazolam (Xanax) pills from Appellant. Two months later, on March 19, Howard and the detective arranged a second buy. This time Howard purchased three clonazepam (Klonopin) pills and another purported alprazolam pill.

After the pills were secured by police, they were turned over to the Kentucky State Police Crime Lab for identification. Three pills were confirmed through chemical testing to be clonazepam, a Schedule IV narcotic. The other pills were identified visually by two lab technicians using the pharmaceutical database Identidex. Based on their physical appearance, the pills were identified as alprazolam, also a Schedule IV narcotic. No chemical testing was performed to verify this identification.

Based on these two transactions, Appellant was charged with three counts of trafficking: one for the marijuana in the first buy; one for the alprazolam in the first buy; and one for the alprazolam and clonazepam in the second buy. ¹ Appellant was convicted of trafficking in marijuana and two counts of third-degree trafficking in a controlled substance, second offense. She was sentenced to five years on each count, to be served consecutively, for a combined fifteen-year sentence.

Upon Appellant's matter of right appeal to the Kentucky Court of Appeals, the convictions were affirmed. This Court granted review to determine whether a conviction for trafficking in a controlled substance may be sustained, absent chemical testing.

II. Analysis

A. Chemical Testing

The crux of Appellant's argument is that chemical testing is necessary to prove that a substance, such as a pill, is actually a controlled substance. Without such testing, Appellant urges, she cannot be convicted of trafficking in a controlled substance because the evidence of guilt is insufficient. Based on this theory, Appellant maintains that she was entitled to a directed verdict on the “alprazolam only” charge because there was no chemical evidence that the substance Appellant sold to Howard was actually alprazolam and not, for example, a simulated substance. Likewise, Appellant maintains that she was effectively denied a unanimous verdict on the “alprazolam and/or clonazepam” charge because one of the two theories of guilt (trafficking in alprazolam) was unsupported by sufficient evidence. See, e.g., Commonwealth v. Whitmore, 92 S.W.3d 76, 80–81 (Ky.2002).

The proper standard of review on a motion for directed verdict is stated in Commonwealth v. Benham, 816 S.W.2d 186 (Ky.1991) as follows:

On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.

On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.

Id. at 187–88 (internal citations omitted).

We note at the outset that Appellant failed to specify the grounds in her generic motion for a directed verdict. Such is required by CR 50.01, and this rule applies to criminal cases. Potts v. Commonwealth, 172 S.W.3d 345 (Ky.2005). “We have previously applied CR 50.01 to criminal cases and have held that its requirement of ‘specific grounds' must be followed to preserve for appellate review a denial of a motion for a directed verdict of acquittal.” Id. at 348. See also Pate v. Commonwealth, 134 S.W.3d 593, 597–98 (Ky.2004); Daniel v. Commonwealth, 905 S.W.2d 76, 79 (Ky.1995); Hicks v. Commonwealth, 805 S.W.2d 144, 148 (Ky.App.1990). Here, Appellant merely stated that the evidence was insufficient to sustain a conviction. Appellant's motion made no mention of a lack of chemical analysis.

Despite this procedural deficiency, we conclude that Appellant's argument must still fail. Prior Kentucky case law has made clear that chemical testing of an alleged controlled substance is not required to sustain a conviction. In Miller v. Commonwealth, 512 S.W.2d 941 (Ky.1974), a witness for the Commonwealth had observed the defendant prepare and inject a drug into his body. The witness identified the drug as methylene-dioxy-amphetamine, or “MDA,” based on her own familiarity with MDA and the defendant's reaction to the drug. In response, the defendant noted the testimony of a state police narcotics officer who claimed that MDA could not be identified outside a laboratory. Based on this testimony, the defendant argued that the physical identification of the drug was insufficient to sustain his conviction because the drug had not been analyzed in a laboratory. Id. at 943. The Court held that, notwithstanding the officer's testimony, the jury was free to believe the Commonwealth's witness due to her familiarity with the drug, and also because she was on the same footing as the officer who had not been qualified as an expert. Id. The Court reasoned that “[t]o hold otherwise and demand laboratory analysis would defeat the purpose of the statute and allow traffic or transfer of controlled substances to flourish in the secret confines of society.” Id.

Additionally, in Howard v. Commonwealth, 787 S.W.2d 264 (Ky.App.1989), the alleged controlled substance, marijuana, was not even in existence at the time of trial nor introduced into evidence. Everyone just said it was marijuana. The Court of Appeals stated: “Although it would certainly have been desirable for the Commonwealth to have produced a sample of the marijuana ... we do not believe it to be essential because proof of the nature of the substance can be had by circumstantial evidence. In the case before us appellant offered to sell the substance he had with him as marijuana. It is, therefore, evident he thought it was marijuana.” Id. at 267.

This state does not stand alone in this regard. To the contrary, courts around the nation have uniformly held that circumstantial evidence is enough to sustain a conviction for an offense involving a controlled substance. See 28A C.J.S. Drugs and Narcotics § 406. The reason for this is straightforward.

As the Sixth Circuit Court of Appeals noted:

Illegal drugs will often be unavailable for scientific analysis because their nature is to be consumed. As a practical matter, therefore, the evidentiary rule urged by Schrock would insulate from prosecution a large class of unlawful acts involving illicit drugs when the government happens upon the scene too late to seize a sample of the substance. To our knowledge, no court has held that scientific identification of a substance is an absolute prerequisite to conviction for a drug-related offense, and we too are unwilling to announce such a rule. In view of the limitations that such a burden would place on prosecutors, and in accordance with general evidentiary principles, courts have held that the government may establish the identity of a drug through cumulative circumstantial evidence.

United States v. Schrock, 855 F.2d 327, 334 (6th Cir.1988) (emphasis added).

In order to determine if. a substance—whether in the possession of police or not—is an illicit drug, both federal and state courts have, almost uniformly, adopted the following test:

[L]ay testimony and circumstantial evidence may be sufficient, without the introduction of an expert chemical analysis, to establish the identity of the substance involved in an alleged narcotics transaction. Such circumstantial proof may include evidence of the physical appearance of the substance involved in the transaction, evidence that the substance produced the expected effects when sampled by someone familiar with the illicit drug, evidence that the substance was used in the same manner as the illicit drug, testimony that a high price was paid in cash for the substance, evidence that transactions involving the substance were carried on with secrecy or deviousness, and evidence that the substance was called by the name of the illegal narcotic by the defendant or others in his presence.

United States v. Dolan, 544 F.2d 1219, 1221–22 (4th Cir.1976) (citations omitted) (LSD-pill form). See also United States v. Quesada, 512 F.2d 1043, 1045 (5th Cir.1975) (heroin); United States v. Lawson, 507 F.2d 433, 438–39 (7th Cir.1974) (cocaine) (overruled on other grounds by United States v. Hollinger, 553...