State v. Metivier

9                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 88-525

                             APRIL TERM, 1991


State of Vermont                  }          APPEALED FROM:
                                  }
                                  }
     v.                           }          District Court of Vermont
                                  }          Unit No. 1, Windham Circuit
                                  }
Michael Metivier                  }
                                  }          DOCKET NO. 1802-11-87WmCr

             In the above entitled cause the Clerk will enter:

     Defendant appeals from a conviction of felony possession of cocaine.
18 V.S.A. { 4224(f)(1)(A). He claims that the trial court's jury
instructions were flawed because they stated that coca leaves or substances
neither chemically nor physically distinguishable from them are narcotic
substances.  He also claims he should be granted a new trial because the
State did not prove that such substances are, in fact, regulated narcotic
drugs.  We affirm.

     The crux of defendant's argument is that pursuant to the clear language
of 18 V.S.A. { 4201(16) only substances designated as narcotic drugs by
regulations adopted by the Board of Health are narcotic drugs and that
because the State did not introduce the regulations adopted by the Board of
Health at trial, it did not prove that cocaine is a regulated substance.
The argument is without merit.

     First, we disagree that in order to constitute a narcotic drug, a
substance must be designated as such by the Board of Health regulations.
Title 18, section 4201(16) defines a narcotic drug as

          opium, coca leaves, pethidine (isonipecaine,
          meperidine), and opiates or their compound, manufacture,
          salt, alkaloid, or derivative, and every substance
          neither chemically nor physically distinguishable from
          them, and preparations containing such drugs or their
          derivatives, by whatever trade name identified and
          whether produced directly or indirectly by extraction
          from substances of vegetable origin, or independently by
          means of chemical synthesis or by a combination of
          extraction and chemical synthesis, as the same are so
          designated in the regulations adopted by the board of
          health under section 4202 of this title.

(emphasis added).  Defendant contends that the last clause modifies the
entire section, and that, therefore, even those substances explicitly
included in the statute are narcotic only if listed in regulations adopted
by the Board of Health.  A more sensible reading of the statute is that the
clause modifies "preparations containing such drugs . . . ."  Any other
interpretation renders superfluous the initial inclusion of particular
drugs.  Here the State proved that defendant possessed a substance neither
chemically nor physically distinguishable from a derivative of coca leaves.
The statute clearly states that such substances are narcotic drugs.

     Even if we accepted defendant's interpretation of the statute, reversal
would not be required.  The regulations list coca leaves, their derivatives
or substances neither chemically nor physically distinguishable, as narcotic
substances, and the State was not required to prove the Board of Health
Regulations as an element of the crime.  Although the identity of a
particular substance is a question of fact for the jury to decide, whether a
particular substance is one which the legislature has decided to regulate is
a question of law to be determined by the court interpreting the relevant
statute.  See Commonwealth v. McKetta, 469 Pa. 223, 227, 364 A.2d 1350, 1352
(1976)(whether Ritalin was a dangerous drug regulated by the legislature was
a question of law for the court to determine); State v. Beck, 114 R.I. 74,
76-77, 329 A.2d 190, 192 (1974)(whether cannabis is a narcotic drug was a
question of law for the trial court to decide).  In deciding the question,
the trial court was not only permitted but, in fact, required to take
judicial notice of domestic law, including state administrative regulations.
E. Cleary, McCormick on Evidence { 335 at 939 (3rd ed. 1984); see V.R.Cr.P.
26.1(a)(in determining an issue concerning an administrative regulation, the
trial court may consider any relevant material or source "whether or not
submitted by a party or admissible under the Vermont Rules of Evidence");
State v. Sullivan, 154 Vt. 437, 438-39, 578 A.2d 639, 640 (1990)(where
defendant did not put into issue whether a regulation was properly
promulgated, or whether the Vermont Fish and Wildlife Board had authority to
promulgate it, the trial court did not err in taking judicial notice of the
regulation).  The court correctly determined that coca leaves, their
derivatives and substances neither chemically nor physically distinguishable
from them, are narcotic drugs and, therefore, regulated drugs.  Having made
that determination, it was required to charge the jury that, in order to
convict defendant, it must conclude beyond a reasonable doubt only that the
substance defendant possessed was, in fact, either coca leaves, their
derivative or a substance neither chemically nor physically distinguishable
from them.  The charge adequately informed the jury of its obligation.

     Affirmed.                     BY THE COURT:


                                   Frederic W. Allen, Chief Justice


                                   Ernest W. Gibson III, Associate Justice


[ ]  Publish                       John A. Dooley, Associate Justice

[ ]  Do Not Publish
                                   James L. Morse, Associate Justice


                                   Denise R. Johnson, Associate Justice