RACHEL JONES V. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED : JANUARY 20, 2011
TO BE PUBLISHED
,,VUyrrMr Courf of
ON REVIEW FROM COURT OF APPEALS
CASE NO . 2008-CA-000597-MR
LAUREL CIRCUIT COURT NO . 07-CR-00227
COMMONWEALTH OF KENTUCKY
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.
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
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.' 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.
The alprazolam and clonazepam purchased during the second buy constituted only
one transaction because they are both Schedule IV narcotics . See Commonwealth v.
Grubb, 862 S .W.2d 883 (Ky. 1993) .
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 "alprazolarn 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-dioxyamphetamine, 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
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 notis 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
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 F .2d 535 (7th Cir. 1977)) ; United States v. Jones, 480 F.2d 954,
960 n.4 (5th Cir. 1973) (marijuana) ; United States v. Atkins, 473 F.2d 308, 314
(8th Cir. 1973) (heroin) ; United States v. Fantuzzi, 463 F.2d 683, 689 n.7 (2d
Cir. 19'72) (cocaine) ; United States v. Fiotto, 454 F.2d 252, 254 (2d Cir. 1972)
(heroin) ; United States v. Agueci, 310 F.2d 817, 828 (2d Cir . 1962) (heroin) ;
Toliver v. United States, 224 F.2d 742, 745 (9th Cir. 1955) (heroin) .
This view is not limited to the federal courts. State courts throughout
this country have reached the same conclusion . See, e.g., Vasquez v. State,
741 N .E.2d 1214, 1216 (Ind. 2001) (toluene) ; Campbell v. State, 974 A.2d 156,
164-69 (Del. 2009) (methamphetamine) ; State v. Hernandez, 935 P .2d 623,
627-28 (Wash. Ct. App. 1997) (cocaine) ; People v. Schroeder, 264 Cal.App.2d
217, 227 (Cal . Ct. .App . 1968) (morphine sulfate-pill form) ; State v. Dunn, 472
P.2d 288, 297-98 (Mont. 1970) (LSD-pill form) ; State v. Pipkin, 245 A.2d 72, 7475 (N .J . Super. Ct. App . Div. 1968) (heroin) ; Miller v. State, 330 S .W.2d 466,
468 (Tex. Crim . App. 1959) (marijuana) .
Importantly, for this case, we note that virtually every state has enacted
a simulated-substances statute like that enshrined in KRS 218A .350 . By
1991, all but two states had adopted provisions addressing "imitation
controlled substances ." U .S. Department of Justice, A Guide to State Controlled
Substances Acts 2.1 (1991) . See also Phoebe Carter, Validity, Construction, and
Effect of State Statute Regulating Sale of Counterfeit or Imitation Controlled
Substances, 84 A.L.R . 4th 936 (1991) . Thus, even with the adoption of these
statutes by states across the country, courts still almost uniformly allow the
introduction of circumstantial evidence in the absence of chemical testing to
identify alleged controlled substances .
Undoubtedly, there will be instances where insufficient circumstantial
evidence will cause the absence of testing to be fatal to the prosecution's case .
This is not the situation here . In this case, most of the Dolan factors are
present. The informant, Stanley Howard, is a reformed drug abuser working
with the Task Force . He knows illegal drugs when he sees them and has
purchased illicit drugs many times . See United States v. Paiva, 892 F.2d 148,
157 (1 st Cir . 1989) ("Although a drug user may not qualify as an expert, he or
she may still be competent, based on past experience and personal knowledge
and observation, to express an opinion as a lay witness that a particular
substance perceived was cocaine or some other drug .") . Howard knows the
jargon and slang . He goes to Appellant's home on two separate occasions
and-to everyone's understanding--buys alprazolam . In the first transaction,
the informant paid for both alprazolam and marijuana. In the second
transaction, he paid for both alprazolam and clonazepam . Obviously, both the
seller and the buyer thought the drugs were, in fact, alprazolam . In addition,
two chemists working with the Kentucky State Police Crime Lab confirmed the
clonazepam and marijuana through chemical testing. The confirmation by
chemical testing of two of the alleged illicit drugs lends support to the
likelihood that the other was authentic. We have a witness highly experienced
in dealing with drugs. The transactions involving the alprazolam were carried
out with stealth and undercover operation . Both Appellant and the informant
called the pills by the name of the illegal narcotic .
In addition to the Dolan factors, the alprazolam pills were visually
identified . Two fully-qualified chemists who have each conducted thousands of
examinations of substances like those at issue here related that, based upon
the shape, color, and markings, the drug visually appeared to be alprazolam.
This was confirmed through a review on Identidex, a database only accessible
to law enforcement agencies. Because of the lab's established protocol, the
alprazolam was not chemically tested. The lab protocol authorized the use of
the database as a means of identification of pills. As one federal court has
noted, the trade dress of a pill is akin to looking at a human face .
It has been pointed out before that trade dress is
a legal shorthand term for all the features that
make it up. It is not color alone . It is not size
and shape alone . It is not finish alone. It is all
the features taken together. This is no different
than the common experience that while human
beings have two eyes, a nose and mouth, two
ears, hair, and other facial features, the fact that
two persons may have all of them of the same
color in no way precludes identifying one as a
different person than another. The nose and
mouth may be of different sizes and shapes. So
may the ears . The eyes may be prominent or
sunken. The chin may be dimpled. And so on .
American Home Products Corp. v. Chelsea Laboratories, Inc., ,572 F.Supp .
278, 281 (D .C .N .J . 1982). Thus, the manufacturers of these drugs use every
tool in their arsenal, using different colors, specialized markings, different
kinds of packaging in tablets or capsules or lozenges, and different shapes, in
order to create a unique trade dress .
Further, a similar type of visual identification was found sufficient in
Sterling v. State, 791 S .W.2d 274 (Tex. Crim. App. 1990) . In that case, the
defendant possessed what was believed to be twelve diazepam (valium) tablets
at the time he encountered police . At a hearing, a pharmacist testified that the
tablets were diazepam based on their appearance and markings, and that it
was part of his profession to identify medication which the Texas Controlled
Substances Act required to be dispensed by prescription . No chemical analysis
of the tablets was introduced . The court found that the evidence was sufficient
to support the trial court's finding, stating: "[a] person who is familiar with a
substance may identify it. An expert may identify a controlled substance
without chemical analysis ." Id. at 277 (internal citations omitted) . See also
State v. Stank, 708 N .W.2d 43 (Wis . Ct. App . 2005) ; State v. Carter, 981 So .2d
734 (La . Ct. App. 2008) .
Some deference should be given to the presumed integrity of this
procedure of visual identification . At trial, the identity of the alprazolam was
not brought into question, except indirectly by a generic directed verdict
motion . We also note that Appellant never called into question the reliability of
Identidex as a vehicle for identification of controlled substances . Testimony
was given which indicated that the database used for the identification of the
alprazolam is accessible only to law enforcement agencies. In other words,
simulation would have been extremely difficult. Criminal defendants have free
and open access to independent chemical testing of the evidence in drug cases .
It is highly unlikely that a person will be wrongfully convicted of trafficking in a
controlled substance as opposed to dealing in a simulated drug. Finally, as
noted earlier, when Appellant moved for a directed verdict, she did not mention
the absence of testing; nor did counsel for Appellant object to the testimony of
either chemist or the introduction of their reports . This is a clear indication
that the integrity of the alprazolam was not in doubt by anyone in the
Our duty in considering a directed verdict on appeal is not whether the
evidence would have persuaded us to return a guilty verdict. To the contrary,
our role is strictly limited to determining if, under the evidence as a whole, it
would be clearly unreasonable for a jury to find guilt. Benham, 816 S .W.2d at
187-88 . Based upon the evidence presented at trial, and drawing all fair and
reasonable inferences from the evidence in favor of the Commonwealth, we
believe that there is sufficient circumstantial evidence to support the jury's
verdict. It was not "clearly unreasonable for a jury to find guilt." Therefore, the
trial court did not err in denying Appellant's motion for directed verdict .
Similarly, as there was sufficient evidence as to both the alprazolam and
clonazepam charges, no unanimity violation occurred. See Wells v.
Commonwealth, 561 S .W.2d 85 (Ky. 1978) .
B . Other Acts
Appellant also complains that other instances, of her drug dealings were
discussed in the video of the controlled buys played for the jury. Specifically,
she now objects to statements in the conversations between Howard and
Detective Lewis and between Howard and Appellant. Appellant did not object
to this footage at trial, thus failing to preserve this issue for appeal. She
nonetheless requests review for palpable error. RCr 10 .26 .
Instead of delving into an unnecessary KRE 404(b) analysis of whether
this video footage was admissible or should have been redacted, this Court
simply notes that any possible error in this regard was not of a palpable
nature . To be palpable, an error must result in manifest injustice, either
through the "probability of a different result or error so fundamental as to
threaten a defendant's entitlement to due process of law ." Martin v.
Commonwealth, 207 S.W.3d l, 3 (Ky . 2006) . This alleged error has no
grounding in constitutional law, but merely pertains to an evidentiary policy,
thereby clearly failing the latter form of palpable error. Nor can we say that
there is any real probability that the brief discussion on video of Appellant's
other drug dealing activity caused a different result at trial. Compared to the
direct video recording of Appellant trafficking in drugs on two different
occasions two months apart, the possible additional implication that Appellant
had a disposition to deal drugs contained minimal value and prejudice . Even if
this "other acts" evidence was inappropriately admitted, it did not constitute
For the aforementioned reasons, the decision of the Court of Appeals is
Minton, C .J . ; Abramson, Scott and Venters, JJ ., concur. Noble, J .,
dissents by separate opinion in which Schroder, J., joins .
NOBLE, J., DISSENTING : Respectfully, I dissent.
Relying on case law that is thirty to forty years old, and the fact that
seven other states have agreed with their position, the majority holds that a
"look-see," or visual identification of an alleged drug is sufficient in the
scientific world of today to say that the pills in question here had the chemical
signature of alprazolam. Chemistry being what it is, that view seems to me
comparable to saying any white powder is cocaine-not good science . This
view harkens back to a time when drug abuse was just beginning to be the
problem that it is today, and little was known about trafficking in look-alike
drugs, or how easy it is to counterfeit a common drug. In an effort to save a
conviction, the majority sets a precedent that is unwarranted and will lead to
felony convictions which should rightfully be misdemeanors .
In the only other case from this Court dealing with this issue, 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 and
identified it as methylene-dioxy-amphetamine or "MDA" based on her own
familiarity with that drug and how the defendant reacted 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 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.
In light of current laboratory usage to identify chemical substances and
the subsequent enactment of a statute making trafficking in a simulated
substance a crime, Miller appears to be somewhat a product of the times,
though it is consistent with federal authority allowing proof of identity of a
substance, which will be discussed later in this dissent. However, ironically, in
this case laboratory chemical analysis was done on the other substance sent to
the lab, but not on the "alprazolam." Can any chemical signature be detected
by the naked eye?
Also, in Miller, the witness had observed the effect of the drug on the
person to whom the defendant gave the drug, and she had personal familiarity
with the drug. Id. at 942-43. Thus, her identification resulted from a
combination of the basic physical appearance of the drug, her personal
experience with that type of drug, and the physical effects she observed,
whereas the lab technicians in this case identified the pills solely through a
comparison of the physical appearance of the pills against a drug identification
database . Here the pills were identified as a controlled substance based only
on a visual identification . Additional facts brought out in testimony that
Appellant thought the pills were Xanax, the brand name of alprazolam, and
that the technician had never personally seen simulated Xanax do nothing to
establish that the pills were in fact Xanax.
Miller, decided in 1974, precedes the enactment of the simulated
substances statute, KRS 218A.350, by eight years. That statute was
specifically drafted in recognition of the fact that the drug-trafficking culture
did not always deal in actual controlled substances, and to prevent the defense
that the substance trafficked was not the drug charged. The statute is
generally directed against drug trafficking, and despite not involving an actual
controlled substance, does not violate due process. See Buford v.
Commonwealth, 942 S .W .2d 909, 911-12 (Ky. App . 1997) . However, by its very
definition, it is not a lesser-included offense to trafficking in a controlled
substance. This statute requires that the trafficking be in a substance other
than a controlled substance for the offense to apply . There is also a significant
difference in penalties. Trafficking in a controlled substance is a Class B
felony, and trafficking in a simulated substance is a Class A misdemeanor.
Of course, Appellant was free to challenge the testimony of the
Commonwealth's experts. Indeed, she did by cross-examining the lab
technicians on the possible existence of simulated alprazolam pills, which was
admitted, though the technician further testified that she had never seen any.
Appellant could also have called into question the reliability of Identidex as a
vehicle for identification, through cross-examination, a hearsay challenge, or
otherwise. She also could have challenged the technicians' qualifications as
experts . Additionally, she could have tried to call her own expert to attest to
the alleged unreliability of physical identification or the misidentification of the
pills . These efforts would have clarified the problems of a sight-only
identification of the alprazolam. Her failure to ask these questions, however,
does not change the fact that the burden is on the Commonwealth to prove that
the drug was a controlled substance .
It is a baseline fact that if such a purported drug is not actually a
controlled substance, then it is a simulated controlled substance . This pivotal
fact appears necessary for the Commonwealth to know how to charge in the
case, since trafficking in a simulated substance is not a lesser-included offense
of trafficking in a controlled substance. To prove trafficking in a controlled
substance, the question then is what is necessary to positively identify a
chemical substance as controlled? The statutes which establish the schedule
of drugs and thus determine what is a "controlled substance" are instructive.
KRS 218A .050 and KRS 218A.070 list which drugs are considered to be
Schedule I or Schedule II controlled substances. Each lists "[a)ny material,
compound, mixture or preparation that contains any quantity of the following"
and proceeds to list chemicals that must be present before a substance fits in
that schedule . The list reads like a chemist's final exam .2 Without chemical
For example, KRS 218A .050 lists the follow chemicals :
Any material, compound, mixture, or preparation which contains any quantity of the
following opiates, including their isomers, esters, ethers, salts, and salts of isomers,
esters, and ethers, unless specifically excepted, whenever the existence of these
isomers, esters, ethers, or salts is possible within the specific chemical designation:
Acetylmethadol ; Allylprodine ; Alphacetylmethadol ; Alphameprodine ; Alphamethadol;
Benzethidine ; Betacetylmethadol ; Betameprodine; Betamethadol ; Betaprodine;
Clonitazene; Dextromoramide ; Dextrorphan; Diampromide; Diethylthiambutene ;
Dimenoxadol; Dimepheptanol; Dimethylthiambutene ; Dioxaphetyl butyrate;
Dipipanone ; Ethylmethylthiambutene ; Etonitazene; Etoxeridine; Furethidine;
Hydroxypethidine ; Ketobemidone; Levomoramide ; Levophenacylmorphan ; Morpheridine ;
Noracymethadol ; Norlevorphanol ; Normethadone ; Norpipanone; Phenadoxone;
Phenampromide ; Phenomorphan; Phenoperidine; Piritramide; Proheptazine ;
Properidine; Propiram ; Racemoramide ; Trimeperidine.
. . . Acetorphine; Acetyldihydrocodeine ; Benzylmorphine ; Codeine methylbromide;
Codeine-NOxide ; Cyprenorphine; Desomorphine; Dihydromorphine; Etorphine; Heroin ;
Hydromorphinol ; Methyldesorphine ; Methyldihydromorphine ; Morphine methylbromide,
testing or observing the effect of the drug after ingestion, any "identification" is
mere guesswork, and such testimony should not be allowed . Additionally,
these statutes, though first enacted in the 1970s when widespread drug abuse
and trafficking hit our nation, have been amended six times, most recently in
2005 . The legislature has clearly kept apace with the changing drug scene and
chemical analyses, and it is a miscarriage of justice for the Court to fail to do
Indeed, it can be argued that it is not testimony about Xanax, or even
alprazolam that is required, but rather which of the chemicals in a controlled
substance listed in the schedules was contained in the drug.
Since it is the chemical signature of a substance that identifies it as
belonging to a particular controlled substance category or schedule, that
signature must be identified sufficiently for a jury to find beyond a reasonable
doubt that the substance (drug) is what it is purported to be . It would appear
obvious that a chemical signature cannot be identified to a reasonable level by
looking at the substance or because someone thinks that is what the substance
is . That would be permitting a subjective belief rather than objective proof.
Morphine methylsulfonate; Morphine -N-Oxide ; Myrophine; Nicocodeine; Nicomorphine ;
Normorphine ; Pholcodine ; Thebacon .
. . . 3, 4-methylenedioxyamphetamine; 5-methoxy-3, 4-methylenedioxy amphetamine; 3,
4, 5-trimethoxyamphetamine; Bufotenine ; Diethyltryptamine ; Dimethyltryptamine ; 4methyl-2, 5-dimethoxyamphetamine ; Ibogaine ; Lysergic acid diethylamide ; Marijuana;
Mescaline; Peyote ; N-ethyl-3-piperidyl benzilate; N-methyl-3-piperidyl benzilate ;
Psilocybin ; Psilocyn ; Tetrahydrocannabinols; Hashish; Phencyclidine, 2 Methylamino-Iphenylpropan-1-one (including but not limited to Methcathinone, Cat, and Ephedrone) ;
synthetic cannabinoid agonists or piperazines; salvia.
. gamma hydroxybutyric acid .
KRS 218 .050(1) - (4) .
While it is true that an argument can be made that the identity of the
drug in this case could be established by circumstantial evidence if that
evidence was sufficient to convince a reasonable jury beyond a reasonable
doubt that the substance was alprazolam, a significant level of proof would be
required and would have to include some evidence that at some point the
evidence in question was positively known to be the drug. In United States v.
Scott, 725 F.2d 43 (4th Cir. 1984), the Fourth Circuit enumerated several
circumstantial factors that, when combined, could prove the identity of a
substance, including knowing that the substance produced the expected effects
when ingested and that it was used in the same manner as the illicit substance
would be used, similar to the holding in Miller. However, as the Sixth Circuit
later expressed in a case following Scott, that circumstantial proof must be
substantial and competent, and based on the record as a whole. United States
v. Wright, 16 F .3d 1429 (6th Cir . 1994). The proof in Wright included that two
government witnesses had personally used some of the drugs in question
which were not available for testing.
That level of proof does not exist here . No one testified that any of the
substance had been ingested or that anyone was observed after taking it . The
effect of the chemical reaction which is at the heart of making a substance
controlled was not tested . In short, there was no objective evidence that could
establish that the substance was in fact alprazolam rather than a simulated
And further, as a matter of policy, there is no reason to resort to
circumstantial evidence when a simple chemical analysis can remove all
question. In fact, the other drugs in the Appellant's possession were
chemically tested, and the opportunity surely existed for chemical testing of the
purported alprazolam. Given that Kentucky law recognizes two ways to commit
drug offenses-through a controlled substance or through a simulated
controlled substance-there is a need for objective identification so that
prosecutors can make the appropriate charge . Additionally, for evidence to be
substantial and competent, it must be based on more than a subjective belief.
And while I do not hold that a substance may never be identified by
circumstantial evidence, that situation should be rare and is best limited to
cases where the substance is no longer available for chemical testing .
Obviously, the proof will still have to be competent and substantial, and
sufficient to objectively identify the drug.
Here, the most compelling evidence is that the Appellant thought she was
selling Xanax, and the technicians thought it looked like Xanax and had never
seen any simulated Xanax. There is not even a scintilla of proof that the
substance actually was Xanax, let alone competent and substantial proof.
Because the Commonwealth failed to prove an essential element of its case, the
Appellant was entitled to a directed verdict on' the trafficking in alprazolam
charges. I would reverse and require proof commensurate with sound chemical
testing, easily obtainable in today's scientific world, and which would be sound
Schroder, J., joins this dissenting opinion .
COUNSEL FOR APPELLANT:
Kathleen Kallaher Schmidt
Appeals Branch Manager
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601-1109
COUNSEL FOR APPELLEE :
Michael John Marsch
Assistant Attorney General
Office of Criminal Appeals
Attorney General's Office
1024 Capital Center Drive
Frankfort, Kentucky 40601