State v. Erwin, 189 Vt. 502

Erwin, a traveling nurse, was charged in June 2007 with obtaining a regulated drug by deceit and possessing a narcotic after fentanyl appeared in his system without a prescription.
Evidence showed he took fentanyl from an anesthesia cart, refilled a syringe with water, and returned it to the cart.
D.B., an operating room assistant, testified she saw him near the cart and fill a syringe with water; she later identified Erwin in the courtroom by process of elimination through related witnesses.
The chief of anesthesiology conducted a syringe integrity test after discovering tampering and confirmed the fentanyl-containing syringe was not fentanyl.
Urinalysis after his administrative leave showed fentanyl in his system, supporting possession by deceit; multiple hospital witnesses, managers, and the lab notes connected Erwin to the events.
Prior to trial, the court denied a defense motion for acquittal; the jury convicted Erwin on both counts.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence linking Erwin to obtaining fentanyl by deceit	Erwin identified as the person described by D.B. and other witnesses	D.B. testimony alone insufficient for identity	Sufficient evidence to support conviction
Plain error for sua sponte acquittal on obtaining drug by deceit	Record shows deception occurred by removing, using, and re-carding drug	No direct causal link proven between deceit and acquisition	No plain error; proper standard satisfied
Plain error regarding sua sponte acquittal on possession of narcotic	Urinalysis plus circumstantial evidence prove possession	Insufficient proof beyond urinalysis to prove knowingly possessed	No plain error; evidence sufficient to prove possession beyond reasonable doubt
Admission of laboratory reports and confrontation rights	Lab reports admitted as business records; witnesses testified	Reports might be testimonial; Confrontation clause issue	Admission not plain error; not a testimonial use under Melendez-Diaz; business records exception applied

State v. Ellis, 186 Vt. 232 (2009 VT 74) (standard of review for sufficiency of evidence and de novo review)
United States v. Weed, 689 F.2d 752 (7th Cir. 1982) (identity can be inferred from circumstantial evidence)
United States v. Kwong, 14 F.3d 189 (2d Cir. 1994) (identity may be proven by non-eyewitness testimony and circumstances)
Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (Supreme Court 2009) (testimonial nature of lab certs; regular business records exception analyzed)
State v. Yoh, 180 Vt. 317 (2006 VT 49A) (plain error standard applied in Vermont)