Jones v. Commonwealth

dеfined, hence, pellant, sufficiently concept may genuine that establish is- warn of duty whether the railroad had a sue material negate fact to the railroad’s so, doing we mis- approach. the train’s for summary judgment. demand inquiry direct toward the the focus Accordingly, I dissent because I believe crossing, geography of the railroad that remand of case upon to the trial away using the from the conduct of these court, should we overrule obsolete doc- private crossing, whether rail or unreasonably trine that shields railroads and, way. approach, road A more direct duty ordinary from the to exercise care for view, my just аpproach, recog- a more is to safety of persons private at crossings. every private crossing poses nize that danger some for rail- degree of both the CUNNINGHAM, J., joins. private crossing road and those it on a way, upon duty of impose and to each a

ordinary care. The motorist has the tradi- ordinary

tional in the duty to exercise care

operation safety, vehicle for of his his own safety passengers

and the of his and oth-

ers, including personnel, railroad’s and its railroad, property; duty for to exer- JONES, Appellant, Rachel ordinary operation cise care safety crossing train of persons for the tracks, duty any and the traditional Kentucky, COMMONWEALTH landowner in a property to maintain its Appellee. condition, rеasonably safe and to exercise ordinary care to discover and correct No. 2009-SC-000375-DG. conditions, unreasonably hazardous or to Supreme Kentucky. Court of danger. warn others of the Jan. 2011. A return to this more reasonable stan- way dard of care in no Mrs. would relieve duty ordinary

Calhoun care of her own safety.

for A jury her own would un- But,

doubtedly close look take a at that.

there was evidence the train failed to

sound its it cross- approached horn as foggy on the dark December

morning; travelling high that was at

speed, accelerating as it neared the

crossing; the railroad had not along

trimmed the growth trees that, part,

tracks at least in screened ap-

train from the vehicular traffic on the and,

proach crossing; prescriptions

train’s med- engineer abili- impaired

ications that could have

ty. appropriately Under an structured care,

standard of those circumstances Ap-

viewed in the most favorable to light

from Appellant. later, Two months March Howard and the detective ar- ranged buy. a second This time Howard purchased three clonazepam (Klonopin) pills and another purported alprazolam pül. Schmidt, Kathleen Kallaher Appeals pills After the were securеd by police,

Branch Manager, Department of Public they were turned over to the Kentucky Frankfort, KY, Advocacy, ap- Counsel for State Police Crime Lab for identification. pellant. pills Three were through confirmed chemi- General, Jack Conway, Attorney Mi- cal testing to be clonazepam, a Schedule Marsch, chael John Assistant Attorney IV narcotic. The other pills were identi- General, Office of Appeals, Criminal Attor- fied visually by two lab using technicians Office,Frankfort, KY, ney General’s Coun- pharmaceutical database Identidex. appellee. sel for Based on their appearance, pills were identified аlprazolam, also a Opinion of the Court Justice Schedule IV narcotic. No chemical testing CUNNINGHAM. performed was verify this identification. Jones, Appellant, Rachel was convicted transactions, Based on these two Appel- in Laurel multiple felony Circuit Court of lant charged was with three counts of traf- drug trafficking offenses for both con- ficking: one for the marijuana in the first trolled substances and marijuana. Her buy; alprazolam one for the in the first appeal centers on the claim that some of buy; and one for the alprazolam and clona- tested, chemically were not zepam in the second buy.1 Appellant was mаking the evidence of the controlled sub- convicted of trafficking marijuana stance offenses insufficient for a convic- two counts of third-degree trafficking in a tion. She also claims error in the admis- substance, controlled second offense. She revealing sion of evidence illegal other years count, sentenced to five on each upon transactions. Based the follow- to be served consecutively, for a combined ing, we affirm the decision by the Court fifteen-year sentence. Appeals.

Upon Appellant’s matter right appeal Background I. Kentucky Appeals, Court of convictions were affirmed. This Court Appellant’s convictions arose from a pair granted review to determine whether a Howard, buys by Stanley controlled an trafficking conviction for in a controlled informant, under the direction of Detective sustained, absent chemi- Brian Lewis. Howard had informed De- cal testing. tective Lewis of previous ‍‌‌‌‌‌‌​‌​‌‌‌‌‌‌​​‌‌‌​‌‌‌​‌​​​​‌‌‌​‌‌‌‌‌‌‌​‌‌‌​​​‍drug pur- Appellant. chases from Analysis II. The first buy January on Testing A. Chemical 22, 2007. With the detective waiting in a car, purchased Howard marijuana and fif- Appellant’s argument crux of is that (Xanax) purported teen alprazolam pills chemical testing necessary prove 1. The clonazepam purchased Grubb, IV narcotics. See Commоnwealth v. during buy the second constituted one (Ky.1993). 862 S.W.2d 883 they transaction because are both Schedule verdict. generic motion for directed pill, actually such as 50.01, Without such test- rule controlled substance. Such is CR and this required cannot con- urges, she ing, Appellant cases. Potts v. Com applies to criminal in a controlled sub- trafficking victed of monwealth, (Ky.2005). 172 S.W.3d 345 guilt the evidence stance because applied 50.01 previously “We have CR theory, Appel- Based on insufficient. re and have held that its criminal cases was entitled to a maintains that she lant must be quirement ‘specific grounds’ only” “alprazolam verdict directed review preserve appellate followed to no chemical evi- there was charge because for a verdict of denial of a motion directed to the sold dence that v. at Pate acquittal.” Id. 348. See also not, actually alprazolam and Howard was Commonwealth, 593, 134 S.W.3d 597-98 substance. Like- example, a simulated Commonwealth, 905 (Ky.2004); v. Daniel wise, that was Appellant maintains she 76, (Ky.1995); v. S.W.2d 79 Hicks Com verdict on effectively denied a unanimous monwealth, 144, (Ky.App. 805 S.W.2d 148 clonazepam” “alprazolam the and/or 1990). Here, stated that Appellant merely the two theories of charge because one of a the was insufficient to sustain evidence unsup- was guilt (traffiсking alprazolam) no motion made Appellant’s conviction. See, e.g., sufficient evidence. ported analysis. mention of a lack Whitmore, 92 S.W.3d Commonwealth v. 76, (Ky.2002). 80-81 Despite procedural deficien The of review proper standard cy, Appellant’s argument we conclude verdict stated on a motion for directed law Kentucky must Prior case still fail. Benham, v. 816

in Commonwealth S.W.2d testing of an has clear that chemical made (Ky.1991) 186 as follows: alleged is not re controlled substance verdict, the trial On motion for directed quired a conviction. In Miller to sustain fair and court must draw all reasonable Commonwealth, (Ky. 512 941 S.W.2d inferences from the evidеnce favor 1974), the witness for a Commonwealth If the the Commonwealth. evidence prepare had the defendant observed juror sufficient to a reasonable to induce inject drug body. into his The witness a beyond reasonable believe doubt drug methylene-dioxy-am- as identified the ver- guilty, the defendant is directed “MDA,” own phetamine, or based on her given. pur- should For the dict not motion, MDA familiarity with and the defendant’s trial pose ruling on the court must that the evidence for response, assume reaction to the In true, but reserv- the Commonwealth of a state defendant noted the to jury questions as the credi- claimed that police narcotics оfficer who bility given to be to such weight MDA outside could not identified testimony. testimony, the laboratory. on this Based review, appellate On the test a direct- identi argued defendant is, ed verdict if under the evidence as fication was insufficient whole, clearly unreasonable would be sustain his conviction because jury guilt, for a to find then analyzed laboratory. Id. been is entitled to a directed ver- defendant that, at 943. The notwith Court held acquittal. dict of jury testimony, the officer’s standing (internal omitted). at 187-88 citations Id. believe the free to Commonwealth’s familiarity her with witness due to Appel outset that We note at the was on the grounds drug, in her and also becausе she specify lant failed

253 the officer who had not footing willing same such announce a rule. qualified expert. been as an Id. The Court view of the limitations that such a bur- reasoned that hold otherwise and de place prosecutors, “[t]o den would and in laboratory analysis mand would defeat the accordance general evidentiary with purpose of the statute and allow traffic or principles, held gov- courts have that the transfer of controlled substances to flour ernment the identity establish of a ish in the of society.” secret confines Id. drug through cumulative circumstantial evidence.

Additionally, in Howard Common- wealth, Schrock, Unitеd (Ky.App.1989), 787 S.W.2d States v. 855 F.2d (6th Cir.1988) added). alleged marijuana, (emphasis was not even in existence at the time of In order to determine if. a substance— trial into Every- nor introduced evidence. whether in the possession police just marijuana. one said it Court not—is an illicit both drug, federal and of Appeals “Although stated: it would cer- have, state courts almost uniformly, tainly have been for the desirable Com- adopted the test: following produced a sample monwealth to have [L]ay testimony and circumstantial evi- marijuana ... we do not believe it to sufficient, may dence without proof be essential because the nature of expert introductiоn of an by the substance can be had circumstantial analysis, to identity establish of the appellant evidence. In the case before us substance involved an alleged nar- offered to sell the substance he had with cotics transaction. Such circumstantial is, therefore, him marijuana. as It evident proof may include evidence of the marijuana.” he thought it was Id. at 267. appearance substance

This state does not stand alone in this transaction, involved in the evidence regard. contrary, To the courts around produced the substance the ex- uniformly the nation have held that cir- pected sampled by effects when some- enough cumstantial evidence to sustain a one familiar with the illicit drug, ‍‌‌‌‌‌‌​‌​‌‌‌‌‌‌​​‌‌‌​‌‌‌​‌​​​​‌‌‌​‌‌‌‌‌‌‌​‌‌‌​​​‍evi- involving conviction for an offense a con- dence that the substance was used in trolled substance. See 28A Drugs C.J.S. the same drug, manner as illicit § and Narcotics 406. reason for this price that a high paid straightforward. cash for the evidence involving transactions the substance

As the Appeals Sixth Circuit Court of secrecy were carried on with or devi- noted: ousness, and evidence the sub- Illegal drugs will often be unavailable stance was called the name of the for analysis scientific because their na- illegal narcotic the defendant or ture practical is to be consumed. As a others in presence. matter, therefore, the evidentiary rule Dolan, urged by 1219, Schrock would insulate from United States v. 544 F.2d (4th (citations omitted) Cir.1976) prosecution large class of unlawful 1221-22 acts form). involving drugs illicit when the govern- (LSD-pill See also United States v. Quesada, 1043, (5th ment the scene happens upon too late to 512 F.2d 1045 Cir. 1975) (heroin); Lawson, seize a sample of the substance. To our States v. United (7th Cir.1974) (co 433, knowledge, no court has held that 507 F.2d scien- 438-39 caine) (overruled grounds by substance is an on other tific identification Hollinger, absolute prerequisite conviction a United States v. 553 F.2d 535 and, (7th Jones, drug-related Cir.1977)); offense, we too are un- States v. United 254 (5th Cir.1973) (mаri 954, there will be instances Undoubtedly, n. 4

480 F.2d 960 Atkins, where insufficient circumstantial evidence F.2d v. 473 juana); United States fatal Cir.1973) testing will cause absence to be (8th (heroin); 308, United 314 prosecution’s to the case. This is not 683, F.2d n. 7 v. 463 689 States Fantuzzi In this most of the situation here. (2d Cir.1972) (cocaine); v. United States The infor- present. Dolan factors are Cir.1972) (2d 252, Fiotto, 254 454 F.2d mant, Howard, Stanley reformed (heroin); v. 310 Agueci, States United working abuser with the Task Force. He Cir.1962) (2d (heroin); 817, Toliv 828 F.2d illegal when them knows he sees (9th States, 742, 224 F.2d 745 er v. United purchased drugs many has illicit Cir.1955) (heroin). Paiva, 892 times. See United States v. limited federal This view is not Cir.1989) (1st 148, (“Although 157 F.2d throughout this coun courts. State courts may expert, user he qualify an the same conclusion. try have rеached competent, or she still be based State, See, e.g., v. 741 N.E.2d Vasquez experience personal knowledge past (Ind.2001) 1214, (toluene); Campbell 1216 observation, express opinion an as a (Del.2009) State, 156, 974 A.2d 164-69 lay particular v. witness that a Hernandez, (methamphetamine); perceived State was cocaine some other drug.”). jargon knows the 623, Howard Wash.App. 935 627-28 P.2d goes slang. Appellant’s He home on (1997) Schroeder, (cocaine); People separate everyone’s two occasions and —to (Cal. 227, 217, 70 Cal.App.2d Cal.Rptr. 491 understanding buys alprazolam. In the form); Ct.App.1968) (morphine sulfatepill — transaction, paid first the informant Dunn, 319, Mоnt. State v. 155 472 P.2d marijuana. alprazolam both and In the (1970) 288, form); (LSD-pill 297-98 State transaction, paid he al- second for both 72, 598, N.J.Super. Pipkin, v. 101 245 A.2d prazolam clonazepam. Obviously, and (heroin); (App.Div.1968) 74-75 Miller buyer thought both the seller and the the State, 570, 466, 168 Tex.Crim. 330 S.W.2d were, fact, alprazolam. In addi- (1959)(marijuana). 468 tion, working two Ken- chemists with the note that Importantly, for we tucky State Police Crime Lab confirmed virtually every state has enacted a simulat- clonazepam marijuana through the and like ed-substances statute that enshrined by chemical The confirmation testing. By 1991, in KRS 218A.350. all but two chemical of two of the illicit testing alleged provisions addressing states had adopted drugs lends to the support likelihood “imitation the other authentic. have a wit- controlled substances.” U.S. We Justice, highly experienced dealing A ness with Department of Guide to State al- (1991). drugs. involving transactions the Acts See Controlled Substances 21 out prazolam were carried with stealth and Carter, Phoebe Validity, also Construc- operation. Both Appellant undercover and tion, Regulat- State Statute Effect of pills by the informant the the name called ing Imitation Con- Sale of Counterfeit illegal the narcotic. Substances, trolled 84 A.L.R.4th 936 (1991). Thus, with adoption even the factors, addition to the Dolan coun- these statutes states across the pills visually werе identified. try, uniformly courts still almost allow fully-qualified chemists who have each Two introduction of circumstantial evidence conducted thousands of examinations identify testing the absence of chemical at related substances like those issue here that, color, shape, alleged upon controlled substances. based visually appeared zepam markings, appearance to be based on their confirmed alprazolam. through markings, This was part and that it was pro- Identidex, review on a database ac- fession to medication identify which the agencies. cessible to law enforcement Be- Texas required Cоntrolled Substances Act protocol, cause of the lab’s established to be dispensed prescription. No chemically alprazolam was not tested. analysis of the tablets was intro- protocol The lab authorized the use of the duced. The court found the evidence of identification database a means of was sufficient support the trial court’s noted, court has pills. As one federal finding, stating: who “[a]person is familiar akin to pill looking trade dress of a at a with a may identify it. An ex- human face. pert may identify a controlled substance It has been out before that pointed trade (in- without chemical Id. analysis.” at 277 legаl dress is a term for shorthand all omitted). ternal citations See also State v. up. the features that make it It is not Stank, 288 Wis.2d 708 N.W.2d 48 color alone. It is not size and shape Carter, (Wis.Ct.App.2005); State alone. It is not finish alone. It is all So.2d 734 (La.Ct.App.2008). together. the features taken This is no Some given deference should be

different than common experience presumed integrity procedure of this beings eyes, that while have human two trial, visual identity identification. At mouth, ears, hair, a nose and two of the alprazolam features, brought into other facial the fact that two question, indirectly by a except generic all of them persons may have way precludes directed identify- same color in no verdict motion. We also note that person one as a than question different anoth- into never called may er. The nose and mouth reliability of as a Identidex vehicle for shapes. different sizes and So identification of controlled substances. eyes may prominent ears. The or Testimony given was which indicated that dimpled. sunken. The chin And the database used for identification of so on. alprazolam is accessible to law words, agencies. enforcement other Corp. American Home Products v. Chel- simulation been Inc., extremely would have dif- Laboratories, 278, sea F.Supp. 572 (D.C.N.J.1982). Thus, ficult. Criminal dеfendants have free and 281 the manufac- drugs open every independent turers ‍‌‌‌‌‌‌​‌​‌‌‌‌‌‌​​‌‌‌​‌‌‌​‌​​​​‌‌‌​‌‌‌‌‌‌‌​‌‌‌​​​‍of these use tool in aceess to chemical test- arsenal, colors, their different using spe- in It evidence cases. markings, pack- cialized kinds of different highly person unlikely that will be aging capsules in or lozenges, tablets or wrongfully trafficking convicted of in a and in shapes, different order to create a opposed to dealing substance as unique trade dress. Finally, in a simulated as noted earlier, when moved for a Appellant direct-

Further, type a similar of visual identifi- verdict, ed mention she did not the ab- cation was in Sterling found sufficient sence of did counsel testing; Ap- nor State, 791 274 (Tex.App.-Corpus S.W.2d pellant 1990). object of either Christi In that the defendant chemist or the introduction of their re- possessed what believed to be twelve (valium) ports. This is indication diazepam at a clear that tablets the time he integrity At a in police. hearing, phar- alprazolam encountered macist by anyone testified that the tablets were doubt courtroom. dia- 256 wealth, (Ky.2006). This 207 S.W.3d a directed ver considering duty

Our in constitu grounding evidence error has no alleged whether the is not appeal dict on law, to an evi- guilty merely pertains us to return a but persuaded have tional would contrary, our role is strict thereby clearly failing dentiary policy, verdict. To if, determining under the we error. Nor can ly palpable limited to latter form of whole, clearly it would be probability evidence as that there is real say guilt. to find Ben jury for a Appellant’s unreasonable on video of the brief discussion upon ham, 187-88. Based at dealing activity 816 S.W.2d caused differ other trial, at and draw presented the evidence to the direct Compared at trial. ent result inferences from reasonable ing all fair and trafficking in recording Appellant video favor of the Common the evidence in occasions two drugs on two different wealth, sufficient that there is we believe possible impli additional apart, months support to circumstantial evidence disposition to Appellant cation “clearly unrea It was not jury’s verdict. contained minimal value deal There guilt.” find jury sonable for a if this “other acts” evi prejudice. Even fore, denying not err in the trial court did admitted, it did inappropriately dence was for directed verdict. Appellant’s motion palpable error. not constitute was sufficient evi- Similarly, as there III. Conclusion and clona-

dence as both oc- unanimity no violation zepam charges, reasons, aforementioned the de- For the Commonwealth, curred. See Wells Appeals hereby cision of the Court (Ky.1978). S.W.2d 85 affirmed. B. Other Acts C.J.; ABRAMSON, MINTON, SCOTT complains also Appellant JJ., NOBLE, J., VENTERS, concur. drug dealings of her were other instances opinion in which by separate dissents the controlled discussed the video of SCHRODER, J., joins. jury. Specifically, she

buys played for the NOBLE, J., Dissenting: in the conversa objects now to statements and Detective Lew tions between Howard I Respectfully, dissent. Appellant. is and between Howard thirty case law that Relying on footage at object did not to this old, the fact that seven forty years trial, this issue for failing preserve thus to posi- with their agreed other states have review requests She nonetheless appeal. “look-see,” tion, a majоrity the holds that error. RCr 10.26. palpable alleged drug of an or visual identification today of to in the scientific world delving of into an unnec sufficient

Instead 404(b) question in here had the say pills whether that the essary analysis KRE signature alprazolam. Chem- footage admissible or should chemical this video was is, redacted, that view seems to simply istry being what have been this Court any saying pow- white regard comparable in this me any possible notes that error good science. This be der is cocaine—not palpable palpa of a ñatee. To was not drug a time when ble, injus view harkens back to an error must result in manifest tice, beginning prob- to be thе just of a abuse was through “probability either the today, and little was known fundamental as lem that it different result or error so drugs, or trafficking in entitlement to about look-alike to threaten a defendant’s to counterfeit a common easy how it is of law.” Martin v. Common process due conviction, In the drug. an effort to save a lam.” chemical signature Can de- precedent eye? sets a that is unwar- tected the naked majority and will lead to convictions felony ranted Miller, Also, in the witness ob- had rightfully should misdemeanors. which served the effect of the drug on the person gave whom the defendant drug, the and the only In other case from this Court she personаl familiarity drug. with the issue, dealing with this Miller Common- Thus, Id. at 942-43. her re- identification wealth, (Ky.1974), 512 S.W.2d 941 a wit- sulted from combination of the basic ness for the Commonwealth had observed physical appearance drug, the per- her inject defendant prepare drug the sonal with experience type drug, body it as methy- into and identified observed, physical the effects she lene-dioxy-amphetamine or “MDA” based lab whereas the technicians in this case familiarity drug on her own with that pills solely identified the through a com- how defendant reacted to the In parison of the appearance of the response, defendant noted testimo- pills against drug identification database. officer, ny police of a state narcotics who Here the were pills identified aas con- that MDA claimed could not be identified trolled substance based on a visual laboratory. outside a this testi- Based on identification. Additional brought facts - mony, argued phys- the defendant out in thought ical identification of the drug insuffi- Xanax, the pills were brand name cient to sustain his conviction because the alprazolam, and that the technician had drug had not been analyzed in laborato- never seen personally simulated Xanax do ry. Id. at 943. The that not- Court held nothing to establish that in pills were withstanding testimony, the officer’s faсt Xanax. was free to jury believe the Common- Miller, decided precedes the familiarity witness wealth’s due to her with enactment of the simulated substances and because on the same she was statute, 218A.350, by KRS eight years. footing officer, as the who had not been That specifically statute drafted as an qualified expert. Id. The Court recognition of fact that the drug-traf- reasoned that hold otherwise and de- “[t]o ficking always culture did not deal actu- laboratory analysis mand defeat the would substances, al prevent and to purpose statute and allow traffic or that the defense substance trafficked transfer of controlled to flour- substаnces drug charged. was not the The statute is society.” the secret ish confines of Id. in. generally against trafficking, directed light laboratory usage current despite involving an actual con- identify chemical and the sub- substances trolled does not violate due pro- sequent enactment of making a statute Commonwealth, cess. See Buford trafficking in a simulated substance 909, 911-12 (Ky.App.1997). S.W.2d How- crime, Miller appears to be somewhat a ever, definition, very a its it is not times, of the product though is consis- lesser-included offense to in a trafficking with allowing tent federal authority proof substance. This re- controlled statute substance, identity of a will of which be quirеs trafficking the that be in a sub- However, discussed later in this dissent. stance other than a controlled substance ironically, laboratory in this case apply. for to a the offense There is also analysis was done on the other substance significant penalties. difference Traf- lab, to “alprazo- sent the but not the ficking in a controlled substance is a Class pur- It is fact if such a trafficking in a simulated a baseline felony, B a A misdemeanor. is Class a ported drug actually substance is not controlled substance, then it is a simulated controlled course, free chal- Appellant was to Of nec- pivotal appears substance. This fact of thе Common- lenge the Indeed, essary to know how experts. she did for the Commonwealth wealth’s cross-examining lab technicians on the trafficking to in the since charge existence of simulated possible not a lesser-includ- simulated admitted, though the tech- which pills, in a trafficking ed offense of never further testified that she had nician in a prove trafficking substance. To con- also called any. Appellant could have seen then question trolled reliability of as Identidex question into necessary positively identify what to identification, through cross- a vehicle as chemical substance controlled? examination, challenge, hearsay оr other- of statutes which establish schedule have challenged wise. She also could drugs a “con- and thus determine what is experts. qualifications technicians’ Ad- trolled are substance” instructive. KRS ditionally, she could have tried call her KRS which 218A.050 and 218A.070 list alleged expert own to attest to the unrelia- I are considered be Schedule or or bility identification the mis- II controlled Each Schedule substances. These pills. identification efforts material, lists mixture “[a]ny compound, or ‍‌‌‌‌‌‌​‌​‌‌‌‌‌‌​​‌‌‌​‌‌‌​‌​​​​‌‌‌​‌‌‌‌‌‌‌​‌‌‌​​​‍problems would have clarified the preparation any quantity contains alprazolam. sight-only identification proceeds to list chemi- following” questions, Her failure ask thеse howev- present cals that must be before sub- er, change the fact that the bur- does stance in that The list fits schedule. reads prove on the Commonwealth to den is was a like a final exam.2 Without controlled substance. chemist’s n ide; Propi- example, Proheptazine; Properidine; 2. For KRS 218A.050 lists the follow- Racemoramide; ram; Trimeperidine. chemicals: Acetorphine; Acetyldihydrocodeine; material, mixture, Any compound, or Benzylmorphine; methylbromide; Codeine preparation quantity which contains Codeine-N-Oxide; Cyprenorphine; Deso- following opiates, including their esters, salts, isomers, ethers, morphine; Dihydromorphine; Etorрhine; salts Heroin; esters, isomers, ethers, Hydromorphinol; Methyldesor- specifi- unless phine; Methyldihydromorphine; Morphine cally excepted, whenever the existence of isomers, ethers, esters, Morphine methylsulfonate; methylbromide; these salts is Myrophine; possible specific Morphine-N-Oxide; within Nicoco- chemical des- deine; ignation: Nicomorphine; Normorphine; Acetylmethadol; Allylprodine; Pholcodine; Alphameprodine; Alphacetylmethadol; Al- Thebacon. Benzethidine; Betacetylme- 4-methylenedioxyamphetamine; ... 5- phamethadol; thadol; Betamethadol; 4-methylenedioxy amphet- Betameprodine; methoxy-3, Clonitazene; amine; 3, 4, Betaprodine; 5-trimethoxyamphetamine; Dextromoram- ide; Bufotenine; Dimethyl- Dextrorphan; Diampromide; thyltryptamine; Die Die Dimenoxadol; tryptamine; 4-methyl-2, thylthiambutene; Dime- 5-dimethox- Ibogaine; pheptanol; Dimethylthiambutene; Lysergic acid yamphetamine; Dioxa- die Mescaline; butyrate; Ethylmethyl- thylamide; Marijuana; Peyote; phetyl Dipipanone; thiambutene; Etonitazene; Etoxeridine; benzilate; N-methyl- N-ethyl-3-piperidyl benzilate; Furethidine; Psilocyn; Psilocybin; Hydroxypethidine; 3-piperidyl Ketobemi- Levomoramide; Hashish; done; Phency- Levophenacylmor- Tetrahydrocannabinols; clidine, Moipheridine; Noracymethadоl; Methylamino-l-phenylpropan-1- phan; Normethadone; Norlevorphanol; Norpipa- (including one but limited to Methcathi- none; Phenadoxone; none, Cat, Ephedrone); synthetic Phenampromide; can- agonists Phenomorphan; Phenoperidine; piperazines; or salvia. Piritram- nabinoid testing observing chemical or the effect tity of a including knowing that drug after ingestion, any “identifica- the substance produced expected ef- guesswork, tion” is mere and such testimo- ingested fects when and that it was used in ny should not be Additionally, allowed. the same manner as the illicit substance statutes, though these first enacted in used, the would be similar to the holding in widеspread drug 1970s when abuse However, and Miller. as the Sixth Circuit la- nation, trafficking hit our have been expressed ter Scott, in a case following times, amended six most in recently 2005. proof circumstantial must be substan- The legislature clearly kept apace has with tial and competent, and based on the rec- the changing drug scene and chemical ord as a whole. United States v. Wright, analyses, miscarriage justice (6th and it is a Cir.1994). 16 F.3d 1429 proof for the Court fail to do so. Wright government included that two wit- nesses had personally used some of the Indeed, it can argued that it is not question which were not available Xanax, alprazolam about or even testing. rеquired, that is but rather which of the chemicals in a controlled substance listed That level proof does not exist here. in the schedules was contained in the drug. No one testified that any of the substance ingested been anyone or that

Since it is the signature of a after taking observed it. The effect of the substance that identifies it belonging chemical reaction which is at the heart of a particular controlled category substance making a substance controlled was not schedule, signature must be identi- short, tested. In there was no objective sufficiently fied for a jury beyond to find evidence that could establish that the sub- reasonable doubt that the (drug) substance stance was in fact rather than a is what it purported to be. It would simulated substance. appear obvious signature that a chemical cannot be identified to a reasonable level further, And as a matter policy, there by looking at the substance or because is no reason to resort to circumstantial someone thinks that is what the substance evidence when a simple chemical analysis is. That would be permitting subjective fact, can all question. remove the other objective rather than proof. belief drugs in the Appellant’s possession were

While it is true that an argument tested, can be chemically and the opportunity made that the identity surely existed for chemical testing of the case could be established circumstantial purported alprazolam. Given that Ken- evidence if that evidence was sufficient to tucky recognizes law ways two to commit convince a jury beyond reasonable a rea- through a controlled sub- offenses— sonable doubt that the substance was al- stance or through a simulated controlled prazolam, a significant level of proof would substance —there is a objective need for required and would have to include prosecutors identification so that can make some evidence that point at some the evi- appropriate charge. Additionally, for question dence in positively known to evidence to be competent, substantial and Scott, be the In United States v. 725 it must be based on more subjective than a (4th Cir.1984), F.2d 43 the Fourth Circuit belief. And while I do not hold that a enumerated several circumstantial factors never be identified cir- that, combined, when prove evidence, could the iden- cumstantial that situation should gamma hydroxybutyric

... acid. 218.050(l)-(4). KRS limited where rare and best to cases be longer no available

the substance is will Obviously, proof testing.

chemical substantial, competent have

still objectively identify

and sufficient to

Here, compelling the most evidence Appellant thought selling

that the she

Xanax, thought and the technicians like and had never seen

looked Xanax There is not even

simulated Xanax. actual- proof

scintilla of Xanax, alone

ly competent let Because proof.

substantial the Common- an element prove

wealth failed to essential to a

of its was entitled in al- trafficking on the

directed verdict I charges. would reverse and

prazolam

require proof commensurate with sound in to- ‍‌‌‌‌‌‌​‌​‌‌‌‌‌‌​​‌‌‌​‌‌‌​‌​​​​‌‌‌​‌‌‌‌‌‌‌​‌‌‌​​​‍testing, easily obtainable world, and

day’s scientific which would policy.

sound

SCHRODER, J., joins dissenting

opinion. Kentucky,

COMMONWEALTH

Appellant, ADKINS, Appellee.

James David

No. 2009-SC-000782-DG.

Supreme Kentucky. Court 20, 2011.

Jan.

Case Details

Case Name: Jones v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Jan 20, 2011

Citation: 331 S.W.3d 249

Docket Number: 2009-SC-000375-DG

Court Abbreviation: Ky.