Rivers v. State

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Rivers v. Sta te, No. 10 5, Sept. T erm 20 05. CRIMINAL LAW FAKED CONTROLLED SUBSTANCE NONCONTROLLED SUBSTANCE SUFFICIENCY OF EVIDENCE Rivers appeals from his conviction for distributing a noncontrolled substance as a controlled dangerous substance ( CDS ), in violation of Md. Code (2002), Criminal Law Article, § 5617(a), contending that the evidence was insufficient to prove that the substance he sold was a noncontrolled substance, a required element of the offense. To prove that a substance is a noncontrolled substance, as defined in Md. Code (2002), Criminal Law Article, § 5-101(s), the State is not required to identify the exact chemical composition of the substance. It may utilize instead a process of elimination to show tha t the substan ce is not a C DS. In this process of eliminatio n, the State m ay use circum stantial as we ll as direct evidence. Furthermore, an experienced and well-qualified e xpert may em ploy in his or he r scientific analysis a visual or tactile inspection of the substance in the effort to establish that it is not a contro lled dan gerous substan ce. The State introduced both circumstantial evidence and direct evidence in this process of elimination: Defendant sold a small piece of rocklike substance to a police informant for $30 during a drug operation in an area known for illegal drug transactions; the packaging and the physical appearance of the substance were consistent with those of a $30 piece of crack cocaine; a forensic chemist visually examined the rocklike substance and concluded that the substan ce mo st likely cou ld not b e any con trolled su bstance other th an crac k coca ine. Thus, the State eliminate d all possible CDS s other than cocaine with a reasonable degree of certainty. The ch emist furthe r testified, without objection, that the chemical test she conducted subsequent to the visual inspection showed that the substance, in fact, was not cocaine, and that, in her expert opinion, the substance in question was not a controlled dangerous substance . Therefo re, viewing all the circum stantial and d irect evidenc e in a light most favorable to the State, the Court concluded that the evidence was sufficient to prove that the substance in question was a noncontrolled substance. Circuit Co urt for W ashington C ounty Case # 21-K-04-33146 IN THE COURT OF APPEALS OF MARYLAND No. 105 September Term, 2005 DONALD MARCELL RIVERS, SR. v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Harrell, J. Filed: July 31, 2006 On 22 June 200 4, Dona ld Marce ll Rivers, Sr., Pe titioner, was c onvicted b y a jury in the Circuit Co urt for W ashington Cou nty of one count of possession of a noncontrolled substance with the inte nt to distribute as a controlled dangerous substance ( CDS ) and one count of distribution of a noncontrolled substance that he had represented as a CD S, in violation of Maryland Co de (2002), Criminal Law Article, § 5-61 7(a). 1 Petitioner time ly appealed to the Court of Special Appeals, which affirmed Petitioner s convictions in an unreported opinion. Pe titioner filed w ith this Cour t a Petition for Writ of Certiorari, which we granted , Rivers v. S tate, 390 Md. 284, 888 A.2d 341 (2005), to consider the question, rephrased for clarity: Whether the evidence was sufficient to establish that the substance Petitioner distributed was a noncontrolled substance where (1) witnesses testified that Petitioner sold the substance as crack cocaine; (2) a forensic chemist accepted by the trial court as an expert witness testified without objection th at, judging from the form of the substance, it could not be any controlled substance other than c ocaine; and (3) a single chemical test established that the substance was not cocaine.2 We affirm the judgment of the Court of Special Appeals and hold that there was sufficient evidence to establish that the substance was not a controlled dangerous substance. 1 Maryland Code (2002), Criminal Law Article, § 5-617(a) prohibits the distribution, attempt to distribute, or possession with intent to distribute a noncontrolled substance as a controlled dangerous substance. Unless otherwise provided , all statutory referen ces are to Maryland Code (2002), Criminal Law Article. 2 We note that Petitioner does not appeal from his conviction for possession with intent to distrib ute a no ncontr olled su bstanc e as a co ntrolled dange rous su bstanc e. I. The basic facts o f this case are undisputed. The C ourt of Sp ecial App eals aptly described them: Late on the nigh t of Dece mber 5, 20 03, in a park ing lot in downtown Hagerstown, Maryland, [Rivers] and Vincent Watson were sitting in a parked Honda when a second car, driven by Joseph Tomli n, pulled into the l ot. While Tomlin remained seated in his vehicle , Rivers and Watson exited theirs and approached him. Each sold Tomlin a product tha t Tomlin believed was cr ack co caine. The bag sold by Rivers contained one roc k, a nd th e one sold by Watson contained two. In exchange for the rocks, [Rivers] asked Tomlin for $30 and Watson asked for $40. Because Tomlin had only twenty-dollar bills, Tomlin p aid [Rivers] a nd Wats on $40 e ach. Tom lin told [Rivers] that he could consider the extra $10 a loan. Unbeknownst to Watson, Tomlin was a paid informant employed by the Hagerstown Police Department. On that night, the police had sent him out to purchase drugs, using twenty-dollar bills that had been previously photocopied for the purpose of verifying the receipt by drug sellers of proceeds from their sale of drugs to Tomlin. After making the purchase of what Tomlin thought was crack cocaine from Rivers and Watson, Tomlin signaled nearby police officers that he h ad just b ought d rugs fro m the tw o men . The officers arrived at the parking lo t, while [Rivers] and Watson were still in T omlin s sigh t. [Rivers] was standing on the passenger s side of a vehicle and Watson was standing on the opposite side when the police officers arrived. The police arrested both men and recovered four of the twenty-dollar bills, whose serial numbers had been prerecorded. Two of the twenty-dollar bills were on the ground near [Rivers ] feet, and the other b ills were found on the driver s side of the veh icle that the arrestees had just occupied. Upon searching the car, the police recovered what appeared to be a 2 drug pipe, as well as a third plastic bag that contained what appeared to be five rocks of crack cocaine. After the arrests, Officer David R ussell and a nother off icer field tested the substance found in the bag sold by Rivers and in the bag found on the driver side of the car. All tested negative for the presence of coca ine. These same n egative results were reproduced through later testing conducted by Susan Blankenship, a for ensic scientis t emp loyed by the Hagerstown Police De partment. During trial, the State introduced the above evidence through the testimony of Officer David Russell, Joseph Tomlin, and Ms. Blankenship. Rivers introduced no evidence. Officer Russell testified that he sent Tomlin to an area known for illegal drug transactions, that Tomlin told him that he purchased the substance from Rivers, and that the appearance of the substance Tomlin purchased was consistent with a $40.00 piece of crack cocaine: Q. Alright, now , when the informant was equipped with the microphone and the money, and h ad been searched, where d id he go? A. We relea sed him fr om the pa rking lot of the police departme nt, and, uh, he went into the downtown area. I believe his param eters that nigh t, that I had set the m whe re I want h im to go, was Washington Street, Cannon Avenue, Franklin S treet, and, Potom ac Street. Q. So, a rectang ular are a of ab out . . . A. Yes. Q. . . . four city blocks? A. That s c orrect. 3 Q. Is this an area where, in your experience, you ve conducted succ essf ul investigati ons p reviousl y? A. Yes. Q. And, those have been drug investigations? A. Yes. *** Q. Very good. So, after you saw the informant, uh, post transaction, across Franklin Street, what did you do? A. Uh, he came across the street to me, and, uh, in one hand he had two piece s, two sma ll, like rock, like objects wrapped in, wrapped in plastic, um, th at was co nsistent with the appearance of crack cocaine. Um, he handed me those two, and he pointed to Mr. Watson and stated he had bought those two items from Mr. Watson for $40. In the other hand, separate he had one piece, wrappe d in plastic, the same, same substance. He pointed to Mr. Rivers and advised that he had purchased th at from Mr. Rivers for $40. *** Q. And, are you familiar with the size and shape of a $40 piece of crack c ocaine fro m your exp erience sinc e Augu st? A. Yes. Q. An d, is that c onsisten t with w hat you k now to be . . . [DEFENSE CO UNSEL]: Objection. Q. . . . a $40 piece of cocaine? THE COURT: Overruled. You have a right to cross-examine. Overruled. 4 A. Yes, it is. Tomlin testified that he acted as an police informant for more than a decade and, in that capacity, purchased crack cocaine several hundred times. He further stated that he purchased the rocklike substance from R ivers becau se it appeare d to him to be crack cocaine: Q. And, did there come a time on December 5, 2003, where you acted as a confidential narcotics informant for the Street Crimes Unit? A. Yes, sir, th at s correct. Q. A nd, h ave yo u operate d in this capac ity pre viou sly? A. Yes, sir. Q. A bout how freq uently? A. I do, possibly a month, possibly, maybe, 10. Q. Ten (10) a month? A. Yes, sir. Q. For how long a period? A. Been doing it for 12 years. *** Q. Okay. And, what d [Rivers] do? A. . . . he told me he could really hook me up with a $30 piece, and, uh, I told him I d like, like to see it. He said, Wind your window just halfway down . I said, Well, I m scared I might get robbed or something. So, then, I took my window all the way down then and, um, I told him all I had was $40, then he gave me the piece he had, and I told him he would just owe me $10. 5 On recross, the following exchange occurred between defense counsel and Tomlin: Q. . . . You purc hased crac k cocaine on the streets man y, many times, it that right? A. Yes, sir. Q. How many times would you say you have? A. In my life? Q. Yes. THE COURT: If you know. A. I, I d give an estimate, maybe, 450, with crack cocaine. *** Q. And, and , you re really not concerned what [the substance] is, you we re gonn a buy it tha t night, is th at right . . . A. No, sir. Q. . . . under those circumstances? A. No, sir. No, sir. It appeared to be crack cocaine to me. That s why I bought it, as of. Q. When you say it appeared to be crack cocaine, how w ell did you analyze th is before you purchase d it? A. When you re on the streets, when you re buying drugs, you don t sit and open the stuff up, and pinch it off, you want to get out. The person sells you, the want to go their way. It s like a rush-rush. 6 Ms. Blankenship testified that, as part of her scientific analysis, she visually inspected the rocklike substance before conducting chemical tests, which later determined that the substance was not cocaine: Q. Accord ing to the standards that you, uh, abide by as a forensic chemist, is a physical examination part of those standards? A. Yes, it is. Q. Is it the first step in those standards? A. Yes, it is. Q. And, have you had occasion to obey those standards in examination of a wide variety of controlled dangerous substances. A. Yes, I have. Q. And , hav e you seen a wide variet y of controlled dangerous substances? A. I have seen, um, multiple substances from every single one of the schedules, one through five. Q. And, so, it s, is it . . . do you know what those items look like initially on examination? A. Um, they co me in multiple different forms, most of them, but, uh, the main forms we get in are either tablets, capsules, powders, plantlike substance, or rocklike substance. Q. And, of the rocklike substances, what s . . . withdraw the question. Which category does this substance fit into? A. This is a rocklike substance. 7 Q. Alright. So, it s not a capsule? A. No, it s n ot. Q. It s not a plant substance? A. No, it s n ot. Q. It s not a powde r? A. No, it s n ot. Ms. Blankenship further testified that the rocklike substance, in her expert opinion, could not be any other form of controlled dangerous substance: Q. And, do es this rocklik e appeara nce limit the number of controlled dangerous substances that this could possibly be? A. Yes, it does. Q. And, is that part of your scientific anal ysis, ju st, ba sically, eyeballing of the substance? A. Yes, it is. Q. Alright. N ow, base d on your ex perience a nd your training in the scientific method of examining it, could this be any other substance beside what you did the (inaudible ) chemica l tests for? [ DEFE NSE C OUN SEL ]: Objection , Your Hono r. THE COU RT: Ov erruled. Yo u ll have a right in a cross, which I m sur e you ll do . Q. Mean, meaning a controlled dangerous substances. Not, it s, obvious ly, is another substance, my question is this, could it be any other controlled dangerous substance? 8 A. No, the only controlled dangerous substance that come s into our laboratory as controlled, that appears to be a rocklike substance, is cocaine base. Q. Alright. And, this isn t cocaine base? THE COU RT: Food for cross-examination. A. No, it is no t. The jury found R ivers guilty of bo th possession of a noncontrolled substance with the intent to distribute as a CDS and distribution of a noncontrolled substance that he represented as a CDS, in violation of § 5-617(a). The trial court merged the two convictions for sentencing purposes and sentenced Rivers to four and one-half years in prison. On appeal to the Court of Special Appeals, Rivers contended that his convictions should be reversed because, among other reasons he advanced, the trial court denied erroneou sly his motion for a judgment of acquittal due to the lack of evidence showing that the substance sold was noncontrolled. He asserted that a chemist could not have determined reliably that a substance was a noncontrolled substance solely by conducting a combination of visual inspection and a single chemical procedure testing for the presence of cocaine. The Court of Special A ppeals rejec ted Rivers contention , holding tha t: As to [the question whether the State presented sufficient proof that the substance sold was a noncontrolled dangerous substance], the State did present such proof through Ms. Blankenship s unobjec ted-to op inion testimo ny. [ ] (Footnote omitted .) 9 The Court of Special Appea ls noted Ms. Blan kenship s qualifications and expertise in forensic science: Susan Blanken ship was a ccepted b y the court as an expert in the chemical analysis of controlled dangerou s substances ( CD S ). Ms. Blankenship holds a Master s degree in forensic science from George Washington University. Since 1991 she has been regularly employed as a forensic sc ientist - four years with the federal Drug Enforcement Agency and approximately nine years with the Ha gerstow n Polic e Dep artmen t. Her primary duties in these jobs have been to identify CDS s. Noting that the trial court accepted Ms. Blankenship as an expert in the chemical analysis of controlled dangerous substance, the Court of Special Appeals also rejected Petitioner s contention that a well-trained expert like Ms. Blankenship cannot exclude a substan ce as a p articular type of co ntrolled dange rous su bstanc e by sight. For example, it is obvious fro m the evidence tha t a forensic scientist like Ms. Blankenship who works with controlled dangerous subs tanc e eve ry day could look at a plant-like substance (e.g., a leaf of lettuce) and tell that it is not marijuana. In fact, Ms. Blankenship s unrebutted testimony was that the first action a forensic scientist takes before co nducting te sts is to observe the physical form of the substance. She furth er testified, uncontradictedly, that the only type of CDS that comes in rock-like form is cocaine. This being so, no chemical tests were needed to eliminate the many other drugs that appear on the five schedules listing all other types of CDS.[ ] (Footnote omitted .) II. The appellate stan dard for re viewing c hallenges to the sufficienc y of the evide nce is well established. In State v. Albrecht, 336 Md. 475, 478, 649 A.2d 336, 337 (1994 ), we 10 stated that it is not the function or duty of the appellate court to undertake a review of the record that would amount to, in essence, a retrial of the case. When reviewing a challenge to the sufficiency of the ev idence, the re viewing c ourt view [s] the evide nce, and a ll inferences fairly deducible from the evide nce, in a light most favora ble to the State. Hackley v. State, 389 M d. 387, 389, 885 A.2d 816, 817 (2005) (Citations omitted). We determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonab le doubt. State v. Sm ith, 374 Md. 527, 533, 823 A.2d 664, 668 (2003) (Citations omitted). Petitioner seeks review of his conviction for distributing faked controlled dangerous substance under § 5 -617, wh ich provide s, in pertinent p art: (a) Prohibited. A person m ay not distribute, atte mpt to distribute, or possess with intent to distribute a noncontrolled substance: (1) that the person represents as a controlled dangerous substance; (2) that the person intends for use or distribution as a controlled dangerous substance; or (3) under circumstances whe re one reas onably shou ld know that the noncontrolled substance will be used or distributed for use as a controlled dangerous substance. (b) Considerations. To determine if a person has violated this section, the court or o ther authority shall include in its consideration: (1) whether the noncontrolled substance was package d in a manner norm ally used to distribu te a controlle d dangero us su bstance i llega lly; (2) whether the distribution or attempted distribution included an exchange of or demand for money or other 11 property as consid eration, and whether the amount of consideration was substantially greater than the reasonable value of the noncontrolled substance; and (3) whether the physical appearance of the noncontrolled substance is substantially identical to that of a controlled dangerous substance. (c) Penalty. A person who v iolates this section is guilty of a felony and on conviction is subject to imprisonment not exceeding 5 years or a fine not exceeding $15,000 or both. To support a conviction under § 5-617(a), the State m ust prove th at the substan ce in question is a noncontrolled substance. Noncontrolled substance means a substance that is not classified as a controlled dangerous substance under . . . this title. Maryland Code (2002), Crimin al Law Article, § 5-101(s). 3 Sections 5-401 through 406 of the Criminal Law Article collectively define the list of substances that are classified as controlled dangerous substances under this statute. Maryland Code (2002), Criminal Law Article, §§ 5-401 to 406. To prove w hether a sub stance is con trolled or non controlled, the State may offer circumstan tial evidence as well as direct evidence.4 See Rob inson v. State , 348 Md. 104, 3 The trial court in this case succinctly summarized this pro vision: [The substan ce], either it is, or it isn t [a CDS,] echoing the millennia-old utterance by the Greek philosopher Parmen ides: Wh at is, is; what is not, is not. G ILBERT M URRAY, A H ISTORY OF A NCIENT G REEK L ITERATURE 156 (Edmu nd Gosse ed., 190 0) (1897). 4 Direct evidence is [e]vidence, which if believed, proves existence of [a] fact in issue without inferen ce or pr esump tion. State v. Sm ith, 374 Md. 527, 547 n.8, 823 A.2d 664, 675 n.8 (2003) (citing B LACK S L AW D ICTIONARY 461 (6th ed.1990 )). In contrast, circumstantial evidence is [e]viden ce of facts or circumstances from which the existence or nonexistence of [a] fact in issue may be inferred. Inferences drawn from facts proved. Smith, 374 Md. at 547 n.8, 823 A.2d at 675 n.8 (citing B LACK S L AW D ICTIONARY 243). 12 113-14, 702 A.2d 741, 745 (1997) (citing Weller v. Sta te, 150 M d. 278, 2 82, 132 A. 624, 625-26 (1926)) (holding that the nature of a suspected controlled, dangerous substance, like any other fact in a criminal case, may be proven by circumstantial evidence ) (Footnote omitted). We also have emphasized repeatedly that [a] valid conviction may be based solely on circumstantial evidence. Wilson v. Sta te, 319 Md. 530, 537, 573 A.2d 831, 834 (1990). The same standard applies to all criminal cases, including those resting upon circumstantial evidence, since, generall y, proof of guilt based in whole or in part on circumstantial evidence is no different from proof of guilt based on direct eyewitness accou nts. See Eiland v. S tate, 92 Md. App. 56, 607 A.2d 42 (1992), rev'd on other grounds, 330 Md. 261, 623 A.2d 64 8 (1993). Smith, 374 M d. at 534 , 823 A .2d at 66 8. If the exact chemical composition of the substance is unknown, the State may employ a process of elimination to establish that the substance is not a controlled dangerous substan ce. See In re Timothy F., 343 Md. 371, 374-75, 681 A.2d 501, 503 (1996) (finding that the substance was a nonco ntrolled substance wh ere [l]aboratory analysis . . . confirmed that the substance was not crack cocaine or any other CDS . . . , the child defendant admitted that the subs tance wa s milk chip s, and ano ther individu al in possession of the substance said it w as soa p chips . ). The Court of Specia l Appeals has accep ted consisten tly the process of elimination, if properly conducted, as a reliable scientific methodology in other contexts. See, e.g., CSX v. Miller, 159 M d. App. 123, 204-08, 858 A.2d 1025, 1072-74 (2004) (citing Westberry v. Gislaved Gummi AB, 178 F.3d 257, 26 2-63 (4th Cir. 1999)) 13 (upholding the admiss ibility of a ph ysician s differ ential dia gnosis , . . . a scientific method that laymen would refer to a s the process of elimination, in d iagnosing a patient in a tort action by the patie nt again st his em ployer), cert. granted, 384 Md. 581, 865 A.2d 589 (2005), cert. dismissed as improvidently granted, 387 M d. 351, 875 A.2d 70 2 (2005); Hricko v. State, 134 Md. A pp. 218, 269-70, 75 9 A.2d 1107 , 1133-34 (2000 ) (accepting as sufficient evidence an expert opinion formed through a process of elimination in his analysis of the victim s cause of death). On the other hand, a finding of guilt based upon a process of elimination must effe ctively eliminate the other reasonable possibilities. Davis v. Sta te, 100 Md. App. 369, 391, 641 A.2d 941, 952 (1994) (citing Eiland v. S tate, 92 Md. App. 56, 69, 607 A .2d 42, 4 9 (199 2), rev'd on other grounds, 330 Md. 261 , 623 A.2d 648 (1993)). III. Petitioner argues that th e State failed to introduce sufficient e vidence to prove that the substance he possessed and distributed was noncontrolled. Petitioner bases his argument on the proposition that, in order to prove that the substance was noncontrolled, the State must satisfy a two-pronged test: the State must first introduce sufficient circumstantial evidence to prove t hat the s ubstan ce w as coca ine, then prov e by chemica l analysis that it was in fact not cocaine. Proceeding from this proposition, Petitioner contends that the circumstantial evidence the State introduced through the testimonies of Tomlin, Officer Russell and Ms. Blanken ship was insufficient to prove that the substance was cocaine,5 the first prong of the 5 In his appeal to the Court of Special Appeals, Petitioner acknowledged that the State (continued...) 14 test he proposes. Without first establishing with circumstantial evidence that the substance was cocaine, Petitioner argues, the State only proved with the single chemical test that the substance was not in fact cocaine, but failed to eliminate the possibility of the substance being one of the many other controlled substances outlined in §§ 5-401 to -406, the distribution of which falls outside th e proscription of § 5 -617 and does not su pport his conviction under that section. In support of his contentions, Petitioner cites a number of cases that examined the sufficiency of circumstantial evidence for a conviction of distribution of controlled or noncontrolled substances, including State v. Anderson, 791 P.2d 557 (Wash. App. 1990) (concluding that evidence was sufficient to establish that the substance was noncontrolled where the criminalist testified that the substance was not heroin or cocaine and that he had eliminated 8 0 to 90 perc ent of a ll contro lled sub stances ), Jackson v. State, 165 S.W.3d 467 (Ark. App. 2004) (concluding that evidence was insufficient to prove that the defenda nt delivered or attempted to deliver the counterfeit substance, an element of the offense as defined by the Arka nsas statute), State v. Starr, 664 P.2d 893 (Mont. 1983) (concluding that evidence showing that the substance could be either cocaine or lidocaine d id not support a conviction for the sale o f a dange rous substa nce, becau se lidocaine is not a dangerous substanc e unde r Mon tana law ), State v. Simpson, 318 Md. 194, 567 A.2d 132 (...continued) proved that the subs tance in this case was a controlled dangerous substance with sufficient circumstantial evidence. Petitioner does not explain in his present appeal why the same evidence, which he conceded as sufficient to prove that the substance was a controlled dangerous substance, is insufficient to prove that the substance was cocaine. 15 (1989) (concluding that evidence indicating that the defendant possessed either cocaine or heroine, tho ugh incon clusive as to which, was insufficient to support either or both of two separately charged o ffenses, on e for the po ssession of cocaine and the other for the possession of heroine), and Copelan d v. State, 430 N.E.2d 393 (Ind. App. 1982) (opining that expert testimony by a drug use r was insu fficient to establish that th e substanc e defend ant sold him was Dilaudid, a controlled substance under Indiana law, because he did not explain how he iden tified the substan ce as su ch). The State argues that it is not required first to prove with circumstantial evidence and beyond a reasonable doubt that the substance was cocaine, followed by a chemical test showing that the substance was not cocaine, in order to establish the nature of the substance as noncon trolled. Rathe r, the State asse rts that it proffered sufficient e vidence to prove: (1) that the substance was a noncontrolled substance as defined in § 5-101(s), and (2) that the substance was distributed as a controlled dangerous substance in violation of § 5-617(a). The State contends that Ms. Blankenship s uncontradicted and unobjected-to expert testimony regarding how she determined that the substance was not a controlled dangerous substance was sufficient evidence to prove that the substance was noncon trolled. Mo reover, the S tate maintains that it introduce d sufficien t evidence th rough the testimonies of Tomlin and Officer Russell detailing the circumstances surrounding the sale of the substance , as well as Ms. Blankenship s expert opinion based on her observation of the packaging and physical 16 characteristics of the substance, to prove that Petitioner sold the substance as crack cocaine in violation of § 5-617(a). 6 We reject Petitione r s paradox ical propos ition that the Sta te must pro ve first with circumstantial evidence, and then disprove with chemical analysis, that the substance was cocaine, in order to es tablish that the substance in fact was not a controlled dangerous substance.7 Such a two-pronged test as advanced by Petitioner is neither necessary nor sufficient to establish the substance as a noncontrolled substance. First, Petitioner s twopronged test is unnecessary because laboratory test results alone may establish that the substance was noncontrolled even though the precise chemical composition of the substance remains uniden tified. In In re Timothy F., the defendant was found to be in possession of a medicine pill bottle containing two pieces and three crumbs of a white substance that looked 6 Petitioner does not argue that the State failed to prove that he distributed the substance as a controlled dangerous substan ce. Nonetheless, we recognize that Petitioner s contention that the State must prove first that the substance was cocaine, then disprove the same supposition, would appear less paradoxical if it meant that the State must prove first that the substance was sold as cocaine. Even so, Petitioner s argument concerning the sufficiency of eyewitness and expert testimony as circ umstantial e vidence is o f little relevance to this element of the offense because such evidence , while circumstantial for the purpose of proving that the substance was cocaine, is in f act direct evidence for the purpose of proving that the substance was sold as cocain e. See supra note 4. The testimony included direct evidence of all three considerations set out in § 5-617(b) for determining whether a substance is distributed as a controlled dangerous substance. 7 As a preliminar y observation, we note that a necessary premise of P etitioner s proposition is that the exact chemical composition of this substance is unknown. Otherwise this elemen t of the off ense is easily established. See, e.g., Gipe v. Sta te, 55 Md. App. 604, 606, 466 A.2d 40, 42 (1983) ( It was later determined that on the tray were . . . three other bags containing 50-to- 100 caff eine tablets. ). W e treat Petitione r s argume nt as if this premise were stated. 17 like crack cocaine. In re Timothy F., 343 Md. at 374, 681 A.2d at 50 3. The de fendant sa id the substance was milk chips. Id. Another individual found to be in possession of the same substance said it was soap chips. In re Timothy F., 343 Md. at 375, 681 A.2d at 503. Even though it was unclear whether the exact identity of the substance was ever determined through chemical analysis, this Court noted that laboratory test results sufficiently established the noncontrolled nature of th e substanc e because [l]aborato ry analysis . . . confirmed that the substance was not crack c ocaine or any oth er CD S . . . . In re Timothy F., 343 Md. at 374, 681 A.2d at 503.8 In addition, at least two courts in the cases cited by Petitioner he ld similarly that laboratory analysis alone may establish that the substance was not a controlled dangerous substan ce. See, e.g., Jackson, 165 S.W.3d at 469 ( A drug chemist from the crime lab testified that . . . the other substance weighted 1.365 grams, but no controlled substances were detected in it. ); Anderson, 791 P.2d at 558 (accepting as sufficient evidence a criminalist s testimony that the substance was not heroin or cocaine and that he had eliminated 80 to 90 percent of all possible controlled s ubstances ). Moreo ver, contrary to Petitioner s contention, the two-pronged test he proposes does not establish that the substance was a noncontrolled substance. M erely p roving that a substance is not cocaine fails to prove that it is not some other controlled substance. First proving by use of 8 In In re Timothy F., we did n ot examin e the proce dure ado pted by the lab oratory in arriving at its conclusio n that the sub stance did n ot contain any CDS, nor did we rule on the issue of the extent and nature of laboratory analysis required to prove that a substance is a noncontrolled one. 18 circumstantial eviden ce that th e substa nce is c ocaine , a false conclusion, does n ot support a final determination that the substance is a noncontrolled substance as required by § 5-617. Petitioner fails to distinguish between two alternative methods of proof that a substance is noncon trolled: the process of identification, which establishes what the substance is, and the process o f elimination , which de termines w hat the subs tance is not. Petitioner apparently refers to the process of identification when he argues that the State must prove first that the substance was cocaine and that it failed to do so, and attempts to draw support for his contention from Simpson, Copeland, and Starr, three cases concerning the sufficiency of evidence for the purpose of identifying the suspected CDS as a particular CDS. What Petitioner fails to recognize is that, absent a positive identification of the exact chemical composition of the substance, the process of determining the nature of the substance, controlled or noncontrolled, is in essence a process of elimination. In Simpson, we held that the State must prove the exact identity of the substance in question, given that it brought tw o separate c harges ag ainst the def endant, on e for each of the two possible identities of th e sub stance, and th at it failed to proffer su ffic ient e vide nce t o ide ntify t he substance as either. Simpson, 318 Md. at 197-98, 567 A.2 d at 133-3 4. The C ourt of A ppeals of Indiana in Copeland similarly held that an expert s testimony was insufficient evidence for the purpose of identifying the substance as Dilaudid, a controlled substance under Indiana law, because [the expe rt] s testimony did not illuminate ho w he id entified the dru g . . . . Copeland, 430 N.E.2d at 396. In Starr, the Supreme Court of Montana ruled that, because 19 the field test the State relied on could not identify cocaine with reasonable certainty, there was insufficient evidence to sustain a conviction for sale of a controlled dangerous substance where the substance in question c ould have been lidocaine, a noncontrolled substance under Montana law. Starr, 664 P.2d at 896. In all three cases, the State was required to identify the substance as a specific CDS a nd the evid ence prof fered w as held to be insufficient for that purpose. In contrast, the statute in the present case does not require the State to identify the exact composition of the substance to prove that the substance was n oncon trolled. See In re Timothy F., 343 Md at 374, 681 A.2d at 503. The analysis of evidentiary sufficiency in Simpson, Copeland, and Starr is therefore not applicable to the present case.9 9 We note too that the tw o other cases re lied on b y Petitione r, Jackson v. State, 165 S.W.3d 467 (Ark. App. 2004) and State v. Anderson, 791 P.2d 557 (Wash. App . 1990), are distinguisha ble from the present case. In Jackson, the issue was not whether the State proved that the substance was a noncontrolled substance indeed, the Jackson court did find that the State proved this element with lab oratory an alysis, Jackson, 165 S.W.3d at 469 ( A drug chemist from the crime lab testified that . . . the other substance weighted 1.365 grams, but no controlled substances were detected in it. ) but rather, whether the State proved that the defendant delivered o r attempted to deliver the substance in question or any other of the seven factors require d by the A rkansa s statute. Jackson, 165 S.W.3d at 470. Petitioner also cites Anderson, a case decided by Washington s intermediate appellate court where the evidence was held to be sufficient to establish the noncontrolled nature of the substance, implying that Petitioner is of the position that the State would have met its burden of proof if it introduced evidence similar to that in Anderson. While we do not decide here whether the same evid ence prese nted in Anderson would have been sufficient to prove the substance as noncon trolled unde r Maryland law, we o bserve that, in the present c ase, the State introduced more evidence than did the prosecution in Anderson. In Anderson, the evidence was sufficient to establish beyond a reasonable doubt that the substance was noncontrolled where the expert testified that he conducted three chemical tests on the white powder-like substance and eliminated 80 to 90 percent of all possible controlled substan ces. Anderson, 791 P.2d at 558. In comparison, the expert witness in the present case, Ms. Blankenship, testified that her scientific analysis eliminated all controlled dangerous substances and (continued...) 20 IV. We conclude that the State proffered sufficient evidence through the testimonies of Tomlin, Officer R ussell and Ms. Blankenship to establish, through a process of elimination, that the s ubstan ce Petitio ner sold to Mr. T omlin w as a non contro lled sub stance. To support a conviction u nder § 5-617 based on a pr ocess of e limination, the State must introduce s ufficient ev idence to elim inate effectively all po ssible CDS s. See Davis v. State, 100 Md. App. 369, 395, 641 A.2d 941, 954 (1994) (holding that the evidence was insufficient to convict the defendant for using her residence to distribute prohibited drugs on a recurring basis, a comm on nuisan ce, where the eviden ce reasona bly could not eliminate the possibility that the drugs recovered from her residence were for individual recreational use only). Because the State conducted only one chemical test to prove that the substance was not cocaine, the State was required to introduce sufficient e vidence to eliminate ef fectively the remaining possible CDS s through other means. Such evidence may be circumstantial or direct, because proof of guilt based in whole or in part on circumstantial evidence is no different from proof of guilt based on direct eyewitness accounts. Smith, 374 Md. at 534, 823 A.2d at 668 (citing Eiland v. S tate, 92 Md. App. 56, 607 A.2d 4 2 (199 2), rev'd on other grounds, 330 Md. 261 , 623 A.2d 648 (1993)). 9 (...continued) unequivo cally stated that the rocklike substance she examined was a noncontrolled substance. If Petitioner accepts the evidence in Anderson as sufficien t, there is less reaso n for him to challenge the sufficiency of the evidence in the present case. 21 The State introduced circumstantial evidence through the testimony of Tomlin and Officer Russell showing that if the substance Petitioner sold was a CDS, it could not have been any CDS other than cocaine. The transaction between Tomlin a nd Rivers occurred in an area known for illegal drug sales. Rivers told Mr. Tomlin that he could really hook [Tomlin] up with a $30 piece. Tomlin, who had acted as a confidential informant for some twelve years and, in that role, purchased crack cocaine some 450 times, testified that he purchase d the rocklik e substanc e from P etitioner beca use it appea red to him to be crack cocaine. In addition to Tomlin s testimony, Officer Russell also testified that the substance Petitioner sold appeared to be a small rock, wrapped in plastic, and that its appearance was consistent with a $40.00 piece of crack cocaine.10 The State also introduced direct evidence through the expert testimony of Ms. Blankenship, who pe rformed a visual inspection as part of her scientific analysis and excluded all CDS s other than cocaine b efore she te sted for the presence of cocaine. We resolve that visual or ta ctile inspection may be utilized in a process of elimination by an experienced and well-qualified expert in his or her scientific analysis to establish that a 10 We note that, based on a similar set of facts, the Supreme Court of Georgia rejected the defendant s challenge to the eviden tiary suffi ciency of his con viction. Brown v. State, 581 S.E.2d 35 (Ga. 2003). In Brown, a police info rmant w ent to an area known for illegal drug sales and asked Bro wn for a tw enty, slang for a twenty-dollar rock of crack cocaine. The informant in Brown also testified that the substance Brown sold him appeared to be crack cocaine. The Brown court held that this circumstantial evidence, coupled with a subsequent determination that the rock was in fact not cocaine, was sufficient to convict Brown of distribution of noncontrolled substance. Compared to Brown, the case at bar procee ds upo n a simil arly comp elling se t of circu mstanti al evide nce, if n ot more . 22 substance is not a c ontrolle d dang erous s ubstan ce. The U.S. Supreme Court, in a different context, was of a nonetheless analogous view with respect to the use of visual inspection in a process of elimination condu cted by well-qualified expert witnesses. In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 156-57, 119 S. Ct. 1167, 1178, 143 L. Ed. 2d 238, 255 (1999), a tire expert testified that he visually inspected the failed tire in question and employed a process of elimination in arrivin g at his o pinion as to the cause o f the fa ilure. The Supreme Court noted that [t]ire engineers rely on visual ex amination and proc ess of elimin ation to analyze experimental test tires, and noted with approval that an expert might draw a conclusion from a set of observations based on extensive and speciali zed ex perienc e. 11 Id. In the present c ase, Ms. B lankensh ip concluded that the substance was a noncontrolled substance based on her visual inspection of the substance and drawing upon her specialized experience with the scientif ic analysis of susp ected c ontrolle d dang erous s ubstan ces. As the Court of Special Appeals noted, M s. Blankenship is a foren sic chemist with thirteen years of experience and was accepted by the trial court as an expert witness in this case. She 11 In Kumho, the Court questioned the reliability of the particular ex pert testimon y in that case because, although as a general matter, tire abuse may often be identified by qualified experts through visual or tactile inspection of the tire, the question before the trial court was specific, not general. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 156, 119 S. Ct. 1167, 1178, 143 L. Ed. 2d 238, 255 (1999). The trial court had to decide w hether this particular expert had sufficient specialized knowledge . . . . Id. In the present case, the qualifications of the expert witness, Ms. Blankenship, are not central to our analysis because Petitioner did not challenge, either during trial or on appeal, Ms. Blankenship s expertise and specialized knowledge in the scientific analysis of suspected controlled dangerous substan ces. 23 testified that she perf ormed a v isual inspectio n of the su bstance as p art of her scie ntific analysis, that the substance appeared to be a rocklike form, and that the rocklike substance did not physically resemble any CDS other than cocaine. Ms. Blankenship further testified, without objection that, based on her visual inspection, she eliminated all but one controlled substance, cocaine, from the range of all possible CDS s referenced in § 5-401 to -406: Q. . . . could it be any other controlled dangerous substance? A. No, the only controlled d angerou s substance that come s into our laboratory as co ntrolled, that appears to be a rocklike substance, is cocaine base. The crux of Petitioner s argumen t concernin g Ms. B lankensh ip s expert tes timony is that a visual inspection of the substance, even if perform ed by an exp erienced c hemist, cannot determine conclusive ly the chemica l compos ition of the su bstance. Pe titioner s argument is misdirected. Ms. Blan kenship never testified that she positively identified the substance as cocaine. Rather, her uncontradicted testimony was that she excluded all other controlled dangerous substances through her visual inspection and then used a chemical analysis to determine that the substance was not in fact cocaine, followed by her conclusion that the substance was noncontrolled.12 Petitioner s argument fails to appreciate that the record in this case is not one where the only examination of the substance was visual and 12 Because Petitioner did not object to Ms. Blankenship s testimony the second time she was asked whether the substance was noncontrolled, Ms. Blankenship s expertise to express such an opinion on this issue, following her visual inspection and chemical analysis, is a que stion no t preserv ed for r eview . See Md. Rule 2-5 71(a). 24 where the visual inspection serves only to identify the substance. We distinguish the process of identification and the process of elimination, and highlight that the visual inspection performed by Ms. Blan kenship se rved to bo th identify the su bstance an d at the same tim e eliminate other possib ilities with a rea sona ble d egre e of c ertai nty. 13 In her testimony, Ms. Blankenship characterized the substance as having a rocklike appearance, which limited the number o f controlled substances that the substance possibly could be. Thus, a visual inspection as part of h er scientific an alysis nevertheless may narrow significantly the range of possible CDS s even if it does not determine conclusively the chemical composition of the substance. Furthermore, although Petitioner failed to raise this issue in this case, we agree with the Court of Spe cial Appeals s conclusion that a highly experienced forensic scientist reliably could distinguish crack cocaine from certain other forms of controlled dangerous substances through visual inspec tion. See United States v. Booker, 260 F.3d 820, 823 (7th Cir. 2001) (rejecting the claim that an expert witness could not reliably distinguish crack cocain e from raw co caine th rough visual in spectio n). Therefore, viewing all the abovementioned circumstantial and direct evidence in the light most favo rable to the S tate, we con clude that a ra tional jury could have found, beyond 13 Forensic scientists regularly employ in their analysis a variety of s cientific techniques that serv e such d ual pur poses. See, e.g., People v. Pizarro, 3 Cal. Rptr. 3d 21, 4647 (Cal. App. 2003) (citing NATIONAL R ESEARCH C OUNCIL , DNA T ECHNOLOGY IN F ORENSIC S CIENCE 51 (1992)) (analogizing forensic DNA profiling to a composite sketch and recognizing the dual purpose of these two methods: to identify the defendant as the perpetr ator and to exclu de othe rs in the g eneral p opulatio n with a degree of certa inty). 25 a reasonable doubt, that the substance Petitioner distributed was a noncontrolled substance and tha t he viola ted § 5- 617(a) of the C riminal L aw A rticle. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED; COSTS TO B E PAID BY PETITIONER. 26

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