State of WV v. Williams
Annotate this Case
September 1996 Term
___________
No. 23289
___________
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
v.
FRANKLIN WILLIAMS,
Defendant Below, Appellant
___________________________________________________
Appeal from the Circuit Court of McDowell County
Honorable W. Kendrick King, Judge
Criminal Action No. 94-F-202
AFFIRMED
___________________________________________________
Submitted: September 17, 1996
Filed: December 6, 1996
Robert E. Blair
Welch, West Virginia
Attorney for the Appellant
Darrell V. McGraw, Jr.
Attorney General
Dawn E. Warfield
Deputy Attorney General
W. Brent Hackney
Special Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellee
This Opinion was delivered PER CURIAM.
JUDGE RECHT sitting by temporary assignment.
SYLLABUS BY THE COURT
1. "When offering evidence under Rule 404(b) of the West Virginia Rules of
Evidence, the prosecution is required to identify the specific purpose for which the evidence
is being offered and the jury must be instructed to limit its consideration of the evidence to
only that purpose. It is not sufficient for the prosecution or the trial court merely to cite or
mention the litany of possible uses listed in Rule 404(b). The specific and precise purpose
for which the evidence is offered must clearly be shown from the record and that purpose
alone must be told to the jury in the trial court's instruction." Syl. pt. 1, State v. McGinnis,
193 W. Va. 147, 455 S.E.2d 516 (1994).
2. "Where an offer of evidence is made under Rule 404(b) of the West
Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West Virginia
Rules of Evidence, is to determine its admissibility. Before admitting the evidence, the trial
court should conduct an in camera hearing as stated in State v. Dolin, 176 W. Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, the trial court must
be satisfied by a preponderance of the evidence that the acts or conduct occurred and that the
defendant committed the acts. If the trial court does not find by a preponderance of the
evidence that the acts or conduct was committed or that the defendant was the actor, the
evidence should be excluded under Rule 404(b). If a sufficient showing has been made, the
trial court must then determine the relevancy of the evidence under Rules 401 and 402 of the
West Virginia Rules of Evidence and conduct the balancing required under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then satisfied that the Rule 404(b)
evidence is admissible, it should instruct the jury on the limited purpose for which such
evidence has been admitted. A limiting instruction should be given at the time the evidence
is offered, and we recommend that it be repeated in the trial court's general charge to the jury
at the conclusion of the evidence." Syl. pt. 2, State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994).
3. "A criminal defendant challenging the sufficiency of the evidence to support
a conviction takes on a heavy burden. An appellate court must review all the evidence,
whether direct or circumstantial, in the light most favorable to the prosecution and must
credit all inferences and credibility assessments that the jury might have drawn in favor of
the prosecution. The evidence need not be inconsistent with every conclusion save that of
guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations
are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when
the record contains no evidence, regardless of how it is weighed, from which the jury could
find guilt beyond a reasonable doubt. To the extent that our prior cases are inconsistent, they
are expressly overruled." Syl. pt. 3, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163
(1995).
Per Curiam:
This case is before this CourtSee footnote 1 upon an appeal from the final order of the
Circuit Court of McDowell County, West Virginia, entered on July 3, 1995, sentencing the
appellant, Franklin Williams, to a penitentiary term of not less than one nor more than fifteen
years, and imposing a $500 fine, for a violation of the West Virginia Uniform Controlled
Substances Act. Specifically, a McDowell County jury found the appellant guilty of
possession of, with intent to deliver, a substance "contained in tylox and identified as
oxycodone, a Schedule II controlled substance and a narcotic." The possession of, with intent
to deliver, such a controlled substance violates the provisions of W. Va. Code, 60A-4-
401(a)(i) [1983], of the Act.
This Court has before it the petition for appeal, all matters of record and the
briefs and argument of counsel. This case concerns Rule 404(b) of the West Virginia Rules
of Evidence as that Rule relates to "other crimes, wrongs or acts" allegedly committed by the
appellant, concerning tylox, prior to the incident in question. For the reasons stated below,
this Court is of the opinion that the circuit court acted correctly with regard to Rule 404(b),
and the final order is, therefore, affirmed.
I
The appellant and his wife, Gloria Marie Williams, lived in Davy, McDowell
County, West Virginia. The appellant's sister-in-law, Daisy Goren, lived in Hollywood,
Florida.
The record indicates that, prior to the incident in question, the appellant stated
to various individuals in the McDowell County area that he periodically received tylox
tablets in the mail from his sister-in-law in Florida and that he often sold the tablets to others.
Information concerning the appellant's statements ultimately came to the attention of Robert
K. Bowman, a police officer of the City of Welch, West Virginia. At the time, Officer
Bowman was on temporary assignment to the West Virginia State Police to do investigative
work concerning violations of the West Virginia Controlled Substances Act. Officer
Bowman contacted the postal inspector in Charleston, West Virginia, and on February 1,
1994, a "parcel watch" was placed by the postal inspector upon the Davy Post Office mail
box registered to the appellant and his wife.
On February 22, 1994, a package arrived at the Davy Post Office addressed to
Gloria Marie Williams from "D. Goren" of Hollywood, Florida. The postal authorities in
Davy alerted the postal inspector in Charleston. A police dog "sniff-test" performed soon
after indicated the presence of a controlled substance in the package, and a search warrant
concerning the package was obtained by Officer Bowman.
On the morning of February 23, 1994, Ms. Williams appeared at the Davy Post
Office and asked whether a package from her sister had arrived from Florida. The reply was
in the negative. Thereafter, at noon, the appellant appeared at the post office and checked the mail box. Finding it empty, he left without making any inquiry concerning the package. Later
that day, at approximately 3:25 p.m., Launa Hale, a Davy Post Office official, called Ms.
Williams at the direction of the postal inspector and told Ms. Williams that a package had
arrived. Shortly thereafter, Ms. Williams appeared at the post office and received the
package.
Having exited the building, Ms. Williams was approached in the post office
parking lot by the postal inspector and Officer Bowman. Ms. Williams consented to open the
package at that time, and its contents revealed 120 tablets found in the leg of an item of baby
clothing. Upon subsequent analysis by the State Police, the tablets proved to be tylox,
containing oxycodone. Although Ms. Williams was placed under arrest on February 23,
1994, the appellant was not arrested prior to indictment.
II
In October 1994, the appellant, Gloria Marie Williams and Daisy Goren were
jointly indicted by a McDowell County grand jury concerning the incident of February 23,
1994. In particular, the appellant and Ms. Williams were charged with possession of tylox,
with intent to deliver, in violation of W. Va. Code, 60A-4-401(a)(i) [1983],See footnote 2 and Daisy Goren was charged with the delivery of that substance. The appellant was tried separately
from his co-defendants. Following a mistrial in January 1995 resulting from a jury deadlock,
the appellant was again tried upon the indictment in April 1995.
On April 6, 1995, the circuit court conducted an in camera hearing concerning
the admissibility by the State of "other crimes, wrongs or acts" evidence within the meaning
of Rule 404(b) of the Rules of Evidence. The evidence consisted of the appellant's alleged
possession of tylox tablets prior to February 23, 1994. The first witness to testify during the
hearing was Cathy Jack, a teacher at Mount View High School in McDowell County. Ms.
Jack testified that in November or December 1993 the appellant, a custodian at the school,
gave her a tylox tablet when she complained of a headache. Ms. Jack stated that she assumed
that the appellant had a prescription for tylox tablets and that the word "tylox" was printed
upon the tablet he gave her. According to Ms. Jack, the appellant did not charge her for the
tablet. In addition to Ms. Jack, two others who worked at Mount View High School, i.e.,
Linda Dalton and John Watts, testified at the in camera hearing. Linda Dalton testified that the appellant indicated to her, prior to February 23, 1994, that he frequently received tylox
tablets in the mail, wrapped in baby clothes, from his sister-in-law and that he sold the tablets
for $13.00 each. Similarly, John Watts testified that, in February or March 1992, the
appellant indicated to him that he received tylox tablets in the mail from his sister-in-law.
At the conclusion of the hearing, the circuit court, citing this Court's decision in State v.
McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994), ruled that the above evidence was
admissible at trial under Rule 404(b).
The appellant's trial began on the day following the in camera hearing, and the
State's witnesses included Cathy Jack, Linda Dalton and John Watts. Each of those witnesses
gave testimony similar to that adduced during the in camera hearing.See footnote 3 Moreover, at the conclusion of the testimony of each of those witnesses, the circuit court gave the following
limiting instruction to the jury:
Ladies and gentlemen of the jury, in the testimony of this
witness, the State has introduced into evidence in this case
certain evidence of alleged other wrongs or other acts of the
defendant, Frank Williams. Please understand that such
evidence was introduced and allowed to be admitted solely and
only for the limited purpose of providing proof of motive, intent,
plan, knowledge, control and dominion over the substances at
issue herein, or absence of accident, and such evidence must be
considered by you only for that limited purpose and no other.
You are hereby instructed and directed that you must consider
such evidence only for that limited purpose and no other.
In addition, the State's witnesses included Doug Ramey, the Postmaster for the
Davy Post Office, and Launa Hale, the Postmaster Relief for the Davy Post Office. Those
witnesses indicated, over the objection of the appellant, that, prior to February 23, 1994,
other packages had been mailed to the Williams' post office mail box from Florida. Mr.
Ramey and Ms. Hale stated, however, that they had no knowledge of the contents of those
other packages. Although no Rule 404(b) in camera hearing was conducted as to those witnesses, the circuit court, at the conclusion of Mr. Ramey's testimony, gave a limiting
instruction to the jury which was similar to the instruction set forth above.
The appellant's evidence at trial consisted solely of his testimony denying any
connection to tylox tablets and denying any involvement concerning mailings from Daisy
Goren to Ms. Williams. At the conclusion of the trial, the circuit court's charge to the jury
included a limiting instruction of the nature described above.
The verdict of the jury, finding the appellant guilty of possession of a
controlled substance, with intent to deliver, was rendered on April 10, 1995. Following the
denial of post-trial motions and the sentencing of the appellant to the penitentiary, this appeal
followed.
III
Rule 404(b) of the West Virginia Rules of Evidence provides:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show
that he or she acted in conformity therewith. It may, however,
be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident, provided that upon request by
the accused, the prosecution in a criminal case shall provide
reasonable notice in advance of trial, or during trial if the court
excuses pretrial notice on good cause shown, of the general
nature of any such evidence it intends to introduce at trial.
As this Court has often stated, rulings on the admissibility of evidence are
largely within a trial court's sound discretion and should not be disturbed unless there has
been an abuse of discretion. Syl. pt. 2, State v. Franklin, 191 W. Va. 727, 448 S.E.2d 158 (1994); syl. pt. 2, State v. Slaman, 189 W. Va. 297, 431 S.E.2d 91 (1993); syl. pt. 2, State
v. Perolis, 183 W. Va. 686, 398 S.E.2d 512 (1990); syl. pt. 7, State v. Dietz, 182 W. Va. 544,
390 S.E.2d 15 (1990). That general concept was applied, in McGinnis, supra, with regard
to Rule 404(b) evidence. As the McGinnis opinion states, this Court reviews a circuit court's
decision "to admit evidence pursuant to Rule 404(b) under an abuse of discretion standard."
193 W. Va. at 159, 455 S.E.2d at 528. Moreover, this Court stated in that opinion that,
recognizing the potential prejudicial impact inherent in Rule 404(b) evidence, we,
nevertheless, review the admission of such evidence in the light most favorable to the party
offering it. 193 W. Va. at 159, 455 S.E.2d at 528.
In the subsequent case of State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613
(1996), the standard of review concerning Rule 404(b) evidence was further explained. The
LaRock opinion states:
The standard of review for a trial court's admission of
evidence pursuant to Rule 404(b) involves a three-step analysis.
First, we review for clear error the trial court's factual
determination that there is sufficient evidence to show the other
acts occurred. Second, we review de novo whether the trial
court correctly found the evidence was admissible for a
legitimate purpose. Third, we review for an abuse of discretion
the trial court's conclusion that the 'other acts' evidence is more
probative than prejudicial under Rule 403.
196 W. Va. at ___, 470 S.E.2d at 629-30.
Here, the appellant contends that the circuit court committed error in allowing
Cathy Jack to testify at trial that the appellant gave her a tylox tablet in 1993. Specifically,
the appellant asserts that, in allowing that evidence to go to the jury, the circuit court merely recited the language of Rule 404(b), without requiring the State to establish a specific
purpose for the admission of that evidence. The State, on the other hand, contends that the
admission of Ms Jack's testimony at trial complied with the requirements of McGinnis and
that, in view of the in camera hearing and the limiting instructions, the admission of that
testimony was within the circuit court's discretion.
The legal principles of McGinnis notwithstanding, a review of the record in
this case reveals factual circumstances unlike those described in the McGinnis opinion. In
McGinnis, the defendant was convicted of murder of the first degree following a trial during
which the State was allowed to make "extensive use" of Rule 404(b) evidence. In particular,
although the defendant therein was charged with the murder of his wife, evidence of other
matters, including infidelity, embezzlement, arson and tax fraud, was given to the jury.
Concluding, in McGinnis, that the State had engaged in "shotgunning" with regard to that
evidence and that the State had failed to establish the relevancy thereof to the murder charge,
this Court ordered that the defendant's conviction be set aside. Noting that a review of the
record demonstrated "no logical nexus between the massive Rule 404(b) evidence and the
material issues in this murder case," 193 W. Va. at 161, 455 S.E.2d at 530, we held, in
McGinnis, as follows in syllabus points 1 and 2:
1. When offering evidence under Rule 404(b) of the West
Virginia Rules of Evidence, the prosecution is required to
identify the specific purpose for which the evidence is being
offered and the jury must be instructed to limit its consideration
of the evidence to only that purpose. It is not sufficient for the
prosecution or the trial court merely to cite or mention the litany
of possible uses listed in Rule 404(b). The specific and precise purpose for which the evidence is offered must clearly be shown
from the record and that purpose alone must be told to the jury
in the trial court's instruction.
2. Where an offer of evidence is made under Rule 404(b)
of the West Virginia Rules of Evidence, the trial court, pursuant
to Rule 104(a) of the West Virginia Rules of Evidence, is to
determine its admissibility. Before admitting the evidence, the
trial court should conduct an in camera hearing as stated in State
v. Dolin, 176 W. Va. 688, 347 S.E.2d 208 (1986). After hearing
the evidence and arguments of counsel, the trial court must be
satisfied by a preponderance of the evidence that the acts or
conduct occurred and that the defendant committed the acts. If
the trial court does not find by a preponderance of the evidence
that the acts or conduct was committed or that the defendant
was the actor, the evidence should be excluded under Rule
404(b). If a sufficient showing has been made, the trial court
must then determine the relevancy of the evidence under Rules
401 and 402 of the West Virginia Rules of Evidence and
conduct the balancing required under Rule 403 of the West
Virginia Rules of Evidence. If the trial court is then satisfied
that the Rule 404(b) evidence is admissible, it should instruct
the jury on the limited purpose for which such evidence has
been admitted. A limiting instruction should be given at the time
the evidence is offered, and we recommend that it be repeated
in the trial court's general charge to the jury at the conclusion of
the evidence.
See also syl. pts. 2 and 3, State v. Phelps, No. 23254, ___ W. Va. ___, ___ S.E.2d___ (Oct.
11, 1996); syl. pts. 3 and 4, State v. McGhee, 193 W. Va. 164, 455 S.E.2d 533 (1995).
Unlike the facts in McGinnis, however, a "logical nexus" between the
testimony of Cathy Jack, that the appellant gave her a tylox tablet in 1993, and the issue at
trial concerning possession of tylox, with intent to deliver, is more demonstrable. During the
April 6, 1995, in camera hearing, the State indicated that one of the purposes for the
admission of such testimony was to negate any assertion by the appellant that Daisy Goren sent the tylox tablets to the appellant and Ms. Williams on February 23, 1994, in order that
Ms. Goren would be sure to have them, as prescribed by a doctor, when she visited West
Virginia. In particular, the State explained during the in camera hearing that evidence of the
appellant's involvement with tylox prior to February 23, 1994, would show "absence of
accident" within the meaning of Rule 404(b) because "the defense's position has been
consistent that the reason these pills were sent was that it was a one-time occasion by Daisy
Goren who was planning a trip and that nobody up here, nobody being Frank or Gloria Marie
Williams, knew that those pills were coming [.]" In fact, we observe that, during the
appellant's trial, Linda Dalton testified that the appellant once stated that, if he ever got
caught by the police, he would simply say that he and Ms. Williams received the tylox
because Daisy Goren "had come one time and lost them, or they didn't get here, or she lost
her prescription, or something." Notably, neither the petition for appeal nor the appellant's
brief mentions Linda Dalton or John Watts, both of whom testified during the in camera
hearing and at trial that the appellant stated, prior to February 23, 1994, that he received
tylox tablets in the mail. Rather, the appellant focused this assignment of error upon the
testimony of Cathy Jack.
At the conclusion of the April 6, 1995, in camera hearing, the circuit court
specifically found the Rule 404(b) evidence, including the testimony of Cathy Jack
concerning the delivery of a tylox tablet to her in 1993, to be established by a preponderance
of the evidence and relevant to the charge described in the indictment. Moreover, the circuit
court concluded that the evidence met the "balancing test requirements so that it should be admitted and presented to the trier of fact in this case, and [that] its probative value on the
guilt or innocence of this Defendant [did] outweigh any prejudicial effect [.]" Of course, for
purposes of Rule 404(b), it is of no import that the appellant was not charged with or
convicted of transferring the tylox tablet to Ms. Jack. See, 1 F.D. Cleckley, Handbook on
Evidence for West Virginia Lawyers, § 4-5(A) (Michie 1994). As indicated above, a limiting
instruction was given during the trial following Ms. Jack's testimony and given again at the
conclusion of the trial during the circuit court's charge to the jury.
In contrast to the facts in McGinnis, there was no "shotgunning" here by the
State concerning Rule 404(b) evidence. Clearly, the circumstances in this case lack the
compelling quality which, in McGinnis, resulted in a setting aside of the defendant's
conviction. Thus, the appellant's contention that the circuit court committed error in allowing
Cathy Jack to testify at trial, that the appellant gave her a tylox tablet in 1993, is without
merit.
Nor does this Court find persuasive the appellant's second assignment of error
concerning the testimony of Doug Ramey and Launa Hale. As stated above, Doug Ramey
was the Postmaster for the Davy Post Office, and Launa Hale was the Postmaster Relief for
that office. Those witnesses testified at trial, over the objection of the appellant, that prior
to February 23, 1994, other packages had been mailed to the Williams' post office mail box
from Florida. Mr. Ramey and Ms. Hale stated, however, that they had no knowledge of the
contents of those other packages. Citing Rule 404(b) and indicating that no in camera hearing was conducted concerning that testimony, the appellant contends that the circuit court
committed error in admitting the testimony of Mr. Ramey and Ms. Hale to the jury.
That assignment of error is deprived of significance, however, when viewed
in the context of the entire record below. First, although no Rule 404(b) in camera hearing
was conducted as to those witnesses, the circuit court, at the conclusion of Mr. Ramey's
testimony, gave a limiting instruction to the jury, as suggested in syllabus point 2 of
McGinnis. More significantly, however, the testimony of Mr. Ramey and Ms. Hale was
elicited at trial following the testimony of Linda Dalton and John Watts to the effect that the
appellant stated, prior to February 23, 1994, that he received tylox tablets in the mail. A
review of the State's evidence at trial as a whole, therefore, demonstrates that the testimony
of Mr. Ramey and Ms. Hale was cumulative of, and less inculpatory than, the testimony of
Linda Dalton and John Watts. Accordingly, this Court is of the opinion that the admission
of the testimony of Mr. Ramey and Ms. Hale did not constitute an abuse of discretion, and
that assignment of error is without merit.
In this case, the State relied upon the theory of constructive possession in its
prosecution of the appellant upon the indictment concerning the incident of February 23,
1994. As stated in syllabus point 4 of State v. Dudick, 158 W. Va. 629, 213 S.E.2d 458
(1975): "The offense of possession of a controlled substance also includes constructive
possession, but the State must prove beyond a reasonable doubt that the defendant had
knowledge of the controlled substance and that it was subject to [the] defendant's dominion
and control." See also syl. pt. 3, State v. Chapman, 178 W. Va. 678, 363 S.E.2d 755 (1987). Here, the appellant and Gloria Marie Williams resided together as husband and wife and
maintained a post office mail box registered in their names. Moreover, prior to the incident
of February 23, 1994, the appellant, as demonstrated through the testimony of various
witnesses, was involved in the receipt of tylox tablets through the mail. Of particular
significance was the testimony, at trial, of Cathy Jack, who stated that the appellant gave her
a tylox tablet in November or December 1993, an occurrence relatively close in time to the
incident in question. Although Ms. Jack's testimony was admitted at trial pursuant to Rule
404(b), that evidence constituted "substantive evidence" for the consideration of the jury. 1
F.D. Cleckley, Handbook on Evidence for West Virginia Lawyers, § 4-5(B)(2) (Michie
1994). Consequently, although the appellant also challenges the sufficiency of the evidence
to support the verdict, this Court is of the opinion to reject that challenge. As we stated in
syllabus point 3 of State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995):
A criminal defendant challenging the sufficiency of the
evidence to support a conviction takes on a heavy burden. An
appellate court must review all the evidence, whether direct or
circumstantial, in the light most favorable to the prosecution and
must credit all inferences and credibility assessments that the
jury might have drawn in favor of the prosecution. The evidence
need not be inconsistent with every conclusion save that of guilt
so long as the jury can find guilt beyond a reasonable doubt.
Credibility determinations are for a jury and not an appellate
court. Finally, a jury verdict should be set aside only when the
record contains no evidence, regardless of how it is weighed,
from which the jury could find guilt beyond a reasonable doubt.
To the extent that our prior cases are inconsistent, they are
expressly overruled.
See also syl. pt. 2, State v. LaRock, supra.
Finally, this Court is of the opinion that the appellant's remaining assignments
of error concerning the proceedings of the grand jury, the selection of the jury at trial and the
manner in which the State established venue in this case were not sufficiently raised below
and are, therefore, also without merit.
Accordingly, upon all of the above, the final order of the Circuit Court of
McDowell County, entered on July 3, 1995, is affirmed.
Affirmed.
Footnote: 1
The Honorable Arthur M. Recht resigned as Justice of the West Virginia
Supreme Court of Appeals effective October 15, 1996. The Honorable Gaston Caperton,
Governor of the State of West Virginia, appointed him Judge of the First Judicial Circuit on
that same date. Pursuant to an administrative order entered by this Court on October 15,
1996, Judge Recht was assigned to sit as a member of the West Virginia Supreme Court of
Appeals commencing October 15, 1996 and continuing until further order of this Court.Footnote: 2
Specifically, the appellant and Ms. Williams were charged in the indictment
with possession of, with intent to deliver, a substance "contained in tylox and identified as
oxycodone, a Schedule II controlled substance and a narcotic." See W. Va. Code, 60A-2-
206(b)(1) [1991], concerning oxycodone. As the penalty statute, W. Va. Code, 60A-4-
401(a)(i) [1983], states:
(a) Except as authorized by this chapter, it is unlawful for
any person to manufacture, deliver, or possess with intent to
manufacture or deliver, a controlled substance.
Any person who violates this subsection with respect to:
(i) A controlled substance classified in Schedule I or II
which is a narcotic drug, is guilty of a felony, and, upon
conviction, may be imprisoned in the penitentiary for not less
than one year nor more than fifteen years, or fined not more
than twenty-five thousand dollars, or both [.]
Footnote: 3
Cathy Jack, for example, testified at trial as follows:
A. I went in Linda's office after my workday, and I was
complaining about what a stressful headache I had. I have a lot
of stressful days at school, of course, and I was just in a lot of
pain, and he was sitting there in her office and said he had
something that would help me with my headache --
Q. When you say "he," are you referring to the Defendant
--
A. To Frank.
Q. -- Frank Williams?
A. Yes, and I said 'What?' and he said, 'A tylox,' and he
pulled it out of his pocket, and he handed it to me [.]
. . . .
Q. And, is there anything else from the appearance of the
capsule that makes you believe it was a tylox?
A. It said tylox.
Q. Written on the capsule?
A. Yes.
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