State of Vermont v. Kirby Davis
No. 2018-319
Supreme Court of Vermont
October Term, 2019
2020 VT 20
Michael R. Kainen, J.
David Tartter, Deputy State‘s Attorney, Montpelier, for Plaintiff-Appellee. Matthew Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Defendant-Appellant. PRESENT: Reiber, C.J., Robinson and Eaton, JJ., and Skoglund, J. (Ret.) and Howard, Supr. J. (Ret.), Specially Assigned
¶ 1. HOWARD, Supr., J. (Ret.), Specially Assigned. Defendant appeals her convictions for heroin trafficking and conspiracy to commit heroin trafficking following a jury trial. She argues that the trial court erred in: (1) denying her motion for judgment of acquittal because the State failed to prove the weight of the seized drugs; (2) admitting an out-of-court statement by a deceased co-conspirator; and (3) responding to a question raised by the jury regarding the elements of the conspiracy charge. We affirm.
¶ 2. Defendant was charged with the crimes above following an October 2014 traffic stop. The following evidence was presented at trial. The arresting officer testified that he and another officer approached defendant‘s car after the stop. Defendant was driving and another
¶ 3. Defendant subsequently consented to a search of her car. The arresting officer found drug paraphernаlia inside the car, including syringes, a shoelace, a spoon, and Q-tips in the center console. He found plastic wrap on the floor of the car and an empty container of plastic wrap in the trunk. The officer also discovered a black plastic bag hidden in the trunk. Inside the bag were two tubular-shaped items wrapped in clear plastic wrap, which the officer suspected contained heroin. Defendant and A.G. were arrested. During a search incident to arrest, the officer found 14 individual wax bags of suspected heroin in defendant‘s front left pocket.
¶ 4. Photographs of the seized evidence were admitted into evidence. These included the tubular items, the 91 bundles discovered inside the wrapped material, and individual stamped wax-paper bags from the bundles.1
¶ 5. A forensic chemist from the Vermont Forensic Laboratory testified to the content and weight of the seized material. He explained at the outset that there was not enough instrument or analyst time tо test all the materials in large cases such as this one. Instead, the lab followed guidelines created by the United Nations Office of Drugs and Crime and the European Network of Forensic Science Institutes for statistical-based sampling; the guidelines rely on “a random sampling, with a hypergeometric distribution statistical-based sampling.” This practice was accepted in the scientific community and followed here. The chemist‘s photographs of the seized
¶ 6. Following the guidelines, the chemist placed all 910 bags in a draw-bag and randomly chose twenty-eight bags to be tested. He also tested one of the fourteen bags seized from defendant‘s pocket. It took two days to test 28 bags. The chemist estimated that it would take more than 30 days to test all the bags and it would generate a report of more than 4000 pages.
¶ 7. The chemist weighed the powder inside each randomly selеcted bag. He described the various tests he performed that allowed him to conclude that all 28 bags contained heroin. The guidelines provided a statistically based confidence level based on testing 28 bags in a case involving 1000 or fewer bags. Relying on this, the chemist concluded with 95 percent confidence that 90 percent of the remaining bags contained heroin. The chemist explained that in applying the guidelines he had to ensure that the items were homogenous and similar in style.
¶ 8. The chemist then discussed his report, including the weight of the materials tested. The heaviest material in the tested bags weighed 41 milligrams and the lightest weighed 15.7 milligrams. The chemist noted that this range was not uncommon. The total weight of the powder in all 28 bags was 600.7 milligrams. The State then presented additional evidence, which we discuss below.
¶ 9. Defendant moved for a judgment of acquittal at the close of the State‘s case, arguing that the State failed to prove that she trafficked, or conspired to traffic, the amount of heroin required by statute. She asserted that there had been no testimony as to the weight of the drugs or what one could extrapolate the weight to be, and that it was not up to the jury to make those calculations.
¶ 10. The State responded by citing the chemist‘s testimony above. It explained that the average weight for the tested bags, as reflected in the State‘s admitted exhibit, was 21.5 milligrams. The chemist had concluded with 95% confidence that 90% of the remaining bags contained heroin.
¶ 11. The court agreed with the State and denied defendant‘s motion for judgment of acquittal. It reviewed out-of-state case law and other authority regarding statistically based sampling and found that a majority of states allowed extrapolation. The court also looked at the seized drugs. Because the way in which the evidence had been packaged, however, it was unable to look closely at the majority of the bags to compare them with the random sample. The court nonetheless concluded that the State had presented sufficient evidence to allow the jury to reach a conclusion as to weight. It cited the chemist‘s testimony that the random sample was statistically significant enough to project with confidence the content of the remaining bags. The court found the evidence equally sufficient to assume that the random sample was sufficiently representative of the remaining bags to allow оne to conclude that the remaining bags contained as much heroin as the lightest bag in the random sample. While it would have been better practice for the State to have had a witness run through the mathematical calculation, the court found it appropriate to allow the jury to do the uncomplicated math here.
¶ 12. Following the court‘s ruling, defendant presented evidence on her behalf. She did not renew her motion for judgment of acquittal at the close of the evidence, however, or file a post-verdict motion for judgment of acquittal. The jury convicted defendant of both counts and this appeal followed.
A. Preservation
¶ 13. Defendant first challenges the court‘s denial of her motion for judgment of acquittal. She acknowledges that she failed to renew her motion either after presenting her case or post-verdict. Defendant contends that she should not have to comply with these requirements because her limited evidence did not bear on the argument rаised in her motion for judgment of acquittal. She suggests that this approach is consistent with the plain language of
¶ 14. We reject defendant‘s arguments, which are at odds with our caselaw and with federal caselaw interpreting the identical federal rule. While not explicitly stated in the rule, we have long held that a defendant who fails to renew a motion for judgment of acquittal “either at the close of the evidence or within ten [(now fourteen)] days after the jury ha[s] rendered its verdict” waives his or her “right to challenge the sufficiency of the evidence.” State v. Noyes, 2015 VT 11, ¶ 41, 198 Vt. 360, 114 A.3d 1156 (citing cases so holding); State v. Faham, 2011 VT 55, ¶ 15, 190 Vt. 524, 21 A.3d 701 (same).
¶ 15. Federal courts impose the same requirements under the identical federal rule. See Reporter‘s Notes,
¶ 16. Defendant fails to address (or even acknowledge) the authorities above. She essentially asks us to overrule our well-established case law and deviate from the approach taken under the identical federal rule. We decline to do so. Defendant сites no court that has interpreted Rule 29 in the way she proposes. To the extent that defendant suggests that we have taken such an approach, we reject that argument. Cf. State v. Discola, 2018 VT 7, ¶ 15, 207 Vt. 216, 184 A.3d 1177 (concluding that defendant, who filed motion for judgment of acquittal at close of State‘s case, was not required to renew motion as he did not present any evidence); State v. Johnson, 2013 VT 116, ¶ 24, 195 Vt. 498, 90 A.3d 874 (concluding that defendant, who presented no evidence, complied with rule by moving for judgment of acquittal just after close of all evidence).
¶ 17. Defendant‘s argument would require trial courts to determine if defense evidence relates to a motion to acquit argument or not, a possibly difficult assessment to make depending on the amount of evidence and an unnecessary complication avoided by the simple burden of the timely renewing of a motion to acquit.
¶ 18. The fact that the rule offers various methods of challenging the sufficiency of the evidence does not mean that its filing requirements can be ignored. To the extent that defendant argues that her due process rights are implicated by enforcement of filing deadlines, we reject that argument. See Carlisle v. United States, 517 U.S. 416, 429 (1996) (rejecting as unsupported defendant‘s argument that trial court‘s inability to grant his untimely post-verdict motion for judgment of acquittal violated Fifth Amendment, and “declin[ing] to fashion a new due process right out of thin air“). Defendant failed to preserve her motion for judgment of acquittal and we thus review defendant‘s sufficiency-of-the-evidence claim only for plain error.
¶ 19. Turning to the merits, defendant argues that the State failed to prove that she trafficked, or conspired to traffic, the amount of heroin required by statute: 3.5 grams for the heroin trafficking charge and no less than 10 grams in the aggregate for the conspiracy charge. See
¶ 20. “As we have repeatedly emphasized, plain error exists only in exceptional circumstances where a failure to recognize error would result in a miscarriage of justice, or where there is glaring error so grave and serious that it strikes at the very heart of the defendant‘s constitutional rights.” State v. Erwin, 2011 VT 41, ¶ 15, 189 Vt. 502, 26 A.3d 1 (quotation, alteration, and emphasis omitted). “We have held that errors in unsettled areas of law are not obvious, and therefore not plain.” State v. Provost, 2014 VT 86A, ¶ 14, 199 Vt. 568, 133 A.3d 826 (citing cases); see also State v. Gilbert, 2009 VT 7, ¶ 7, 185 Vt. 602, 969 A.2d 125 (mem.) (finding no plain error where Court had not yet decided issue raised by defendant for first time on appeal, and thus “defendant [could not] show that any error of law the trial court may have made was obvious“).
¶ 21. We are also mindful of “the standard applied to claims that the trial court erred by failing to sua spontе move for acquittal on its own motion under
¶ 23. This was not plain error, if error at all. “Courts of virtually every jurisdiction which have considered the issue generally find random sampling of drugs or contraband sufficient to establish the jurisdictional amount required for conviction in some cases.” M. Osteen, Annotation, Sufficiency of Random Sampling of Drug or Contraband to Establish Jurisdictional Amount Required for Conviction, 45 A.L.R. 5th 1, § 2[a] (updated 2019). While there are variations based on numerous factors, see id., courts have “expressed the view, either directly or indirectly, that the state may establish the amount of a controlled substance by extrapolation from the weight or amount of tested material included in a random sample.” Id. § 6[a] (citing cases).
¶ 25. On appeal, the defendant “questioned the validity of extrapolated measurement on the ground of the allegedly disparate sizes of the packaged crack cocaine units.” Id. at 448. The court rejected this argument. It noted that the chemist had been subject to cross-examination on the extrapolation process and it found that a reasonable factfinder could determine that “the thirty-six packets presented an array of sufficiently proximate sizes tо permit the use of an average weight from a representative sampling.” Id. In addition to the chemist‘s testimony, it noted that the factfinder also had the opportunity to examine the packets and assess their relative sizes “in light of the defendant‘s claim of a disparity rendering extrapolation unreliable.” Id.
¶ 26. While the Crapps court advocated for addressing extrapolation issues before trial in close cases, it emphasized that the Commonwealth was neither obligated “routinely to employ sophisticated statistical methods for the presentation of every representative sampling” nor required “to prove the precise weight of the drugs.” Id. at 449-50. As it explained:
Extrapolation serves valid purposes, including performance of the Commonwealth‘s duty to prepare cases in accordance with the defendant‘s constitutional right to a speedy trial and its duty to employ finite public resources efficiently, and accomplishment of the prosecution‘s entitlement to scientificаlly valid methods of proof.
¶ 27. We find the court‘s analysis persuasive here, mindful that our review is for plain error and, further, that we are considering only if “the evidence is so tenuous that a conviction would be unconscionable.” Erwin, 2011 VT 41, ¶ 17 (quotation omitted). In this case, there was testimony and admitted photographic evidence showing the homogeneity of the drugs in question, including photographs depicting the individual bundles discovered inside the plastic wrapping. The jury also had access to the drugs themselves. The chemist relied on a statistically significant sample in conducting his tests and he was subject to vigorous cross-examination. Like the Crapps court, we conclude that a reasonable jury could find that the individual wax packets “presented an array of sufficiently proximate sizes to permit the use of an average weight from a representative sampling.” 997 N.E.2d at 448. In fact, the trial court relied on an even lower value here, using the lightest weight bag from the statistically significant sample as the “averagе” weight for the remaining bags. Even with this lower value, the weight of the bags exceeded by several grams the highest statutory weight requirement. Defendant was not entitled to a judgment of acquittal sua sponte from the court.2
II. Admission of Co-Conspirator‘s Hearsay Statements
¶ 28. We next consider defendant‘s assertion that the court committed reversible error in admitting an out-of-court statement by A.G.‘s boyfriend, J.C., under
A. Trial Court Record
¶ 29. This issue arose as follows. A.G. testified to her use and sale of heroin. She stated that her boyfriend, J.C., introduced her to the drug. J.C. had since died of a heroin overdose. A.G. knew defendant from school and from the Newpоrt area. She described defendant as “somebody I would do drugs with.”
¶ 30. During the time in question, A.G. did not have a car. When the State asked how the arrangements were made for her to meet up with defendant, A.G. responded that “[J.C.] had told [her] to meet up with—” and at that point, defense counsel objected. Defendant‘s primary objection was that the testimony would violate her Confrontation Clause rights, an argument the court rejected. Following voir dire of A.G., the court indicated that the State must present evidence to support the threshold requirements of
¶ 31. A.G. then testified that on the day in question, defendant picked her up at 6:00 a.m. A.G. fell asleep and woke up in Connecticut. She did not pay defendant for the ride or discuss doing so. The parties went to a gas station off the interstate. They pulled up to a gas pump and A.G. went inside to pay with defendant‘s money. Defendant entered the passenger side of another car parked at the gas station. A.G. did not know the driver of the other car. She knew, howеver, that defendant had communicated with this person on the drive down, telling the person that they were almost there.
¶ 32. When A.G. returned to defendant‘s car, defendant handed her a “slug,” or drugs to be packed inside her body. The slug was wrapped in plastic wrap and electrical tape. A.G.
¶ 33. Another voir dire of A.G. then occurred. The State argued that defendant was part of a conspiracy involving A.G. and J.C. that began in Newport, Vermont. The court agreed and considered both J.C.‘s statemеnt and A.G.‘s testimony in reaching its conclusion. Based on A.G.‘s testimony, the court found that A.G. and defendant went to Connecticut by agreement. The plan was to obtain heroin and pack it on the way back. The purpose of the trip was to commit heroin trafficking. The court found evidence to contradict defendant‘s statement to police that she had only picked up A.G. in Connecticut as a cab fare. The court also noted that defendant had heroin on her person. It determined that a reasonable jury could find that defendant‘s statements to police were not truthful and that she was part of a conspiracy. It found sufficient indicia of reliability to show the trustworthiness of the hearsay statements. The court also cited evidence of phone calls between A.G. and defendant the night before the trip, which corroborated A.G.‘s testimony that she had a conversation with defendant about being picked up. The court thus concluded that, under the circumstances, it would allow A.G. to testify to the statement made by J.C.
¶ 34. A.G. then testified that she had a conversation with J.C. the day before her trip with defendant. The conversation involved the arrangements for the following day. A.G. stated that J.C. told her that defendant was going to pick her up and they would be going to Connecticut to “pick up stuff.” A.G. understood “stuff” to mean heroin although that term was not used.
¶ 35. As indicated above, defendant argues that the court erred in finding the requirements of
¶ 36. We review the court‘s ruling for abuse of discretion, and we find none. See State v. Voorheis, 2004 VT 10, ¶ 24, 176 Vt. 265, 844 A.2d 794 (recognizing that “trial court determines the admissibility of evidence, including preliminary questions of whether statements fall within exceptions to the hearsay rule,” and Supreme Court reviews decision only for abuse of discretion).
¶ 37. As indicated above,
¶ 38. We begin with an overview of the rule. As Wright and Miller explain:
Rule 801(d)(2)(E) treats certain statements made by a party‘s “coconspirator” as party statements, and so admissible even if hearsay, when offered by the opposing party. The rationale for admission of qualifying statements is the same as that for the exemptions that come before it inRule 801(d)(2) . Statements are admitted because “each member of a conspiracy is the agent of each of the other conspirators whenever he [or she] is acting—including speaking—to promote the conspiracy.”
30B C. Wright, supra, § 6777.
¶ 39. A “conspiracy” for purposes of
¶ 40. Wright and Miller further explain that “the precise membership of the conspiracy at the time of the statement‘s utterance [is not] dispositive” and “[s]tatements can be admitted under
¶ 42. It is true that a court cannot rely only on the hearsay statements at issue in finding a conspiracy for purposes of the rule. See Voorheis, 2004 VT 10, ¶¶ 22-26 (stating that “[i]n the absence of a formal conspiracy charge, the court must find independent evidence of a concert of action in which the defendant was a participant,” and considering, among other evidence, testimony by co-conspirator). The federal rule states this explicitly. See
¶ 43. The Bourjaily Court identified the type of corroborating evidence that will suffice to find a conspiracy for purposes of the rule. In that case:
[T]he proffered statements reflected a conspiracy between the declarant and another person, both of whom would, accоrding to the statements, be arriving at a certain location to buy drugs. The existence of this conspiracy was then corroborated by the arrival at the location at the agreed upon time by two persons, including the defendant, along with actions that suggested the participation of both in the subsequent drug transaction. The Supreme Court ruled: “On these facts, the trial court concluded, in our view correctly, that the Government had established the existence of a conspiracy and petitioner‘s participation in it.”
30B C. Wright, supra, § 6781 (quoting Bourjaily, 483 U.S. at 181); see also Bourjaily, 483 U.S. at 180-81 (where out-of-court statement indicated declarant was involved in conspiracy with
¶ 44. We are faced with a similar situation here. As in Bourjaily, J.C.‘s direction to A.G. about her trip to Connecticut with defendant was corroborated by evidence showing that defendant did in fact arrive the following morning to pick up A.G. and they traveled together to Connecticut where they picked up heroin; they understood that they were supposed to pack the heroin and return it to Vermont. They obtained heroin, which they determined was too big to pack, and returned to Vermont with it. The court could rely on A.G.‘s testimony in finding, by a preponderance of the evidence, that the rule‘s requirements were satisfied. It did not abuse its discretion in admitting J.C.‘s out-of-court statement under
III. Response to Jury Question
¶ 45. Finally, we turn to defendant‘s challenge to a supplemental jury instruction. During its deliberations, the jury asked, with respect to the conspiracy-to-traffic-heroin count, if the statutory knowledge requirement on which they had been instructed extended to the amount of drugs required by the statute, or if the law required only that defendant knew that she had drugs, which turned out to weigh a specific amount. Defendant advocated for the former position while the State argued for the latter. The court agreed with the State that the law required a рerson to have knowledge of drugs, which turned out to weigh 10 grams or more. The court thus instructed the jury that defendant “needed to have knowingly possessed drugs that turned out to be more than the prohibited amount.”
¶ 46. Defendant now challenges this instruction on appeal. She argues that the State was required to prove her actual knowledge of the weight of the seized material as an element. Relying on statutory construction tools discussed in State v. Richland, 2015 VT 126, 200 Vt. 401, 132 A.3d 702, she argues that the word “knowingly” in
¶ 47. Assuming that this argument was preserved, we find no error. In interpreting
¶ 48. As in other states, the punishment in Vermont for possessing, selling, and trafficking regulated drugs depends on the amount possessed. See
A person knowingly and unlawfully possessing heroin in an amount consisting of 3.5 grams or more of one or more preparations, compounds, mixtures, or substances containing heroin with the intent to sell or dispense the heroin shall be imprisoned not more than 30 years or fined not more than $1,000,000, or both. There shall be a permissive inference that a person who possesses heroin in an amount of 3.5 grams or more of one or more preparations, compounds, mixtures, or substances containing heroin intends to sell or dispense the heroin. The amount of possessed heroin under this subsection to sustain a charge of conspiracy under
13 V.S.A. § 1404 shall be no less than 10 grams in the aggregate.
¶ 50. We construe this statute to require that a defendant knowingly and unlawfully possess heroin that turns out to weigh a particular amount, not that he or she knowingly possess a particular amount of heroin more than the statutory threshold. This is consistent with the plain language of the statute and the statutory scheme and it implements legislative intent. We do not read Richland to compel a contrary conclusion.
¶ 51. In Richland, we construed a statute providing that “[n]o person shall . . . knowingly enable the consumption of malt or vinous beverages or spiritous liquors by a person under the age of 21.” 2015 VT 126, ¶ 3 (quoting then-governing language of
¶ 52. We reviewed this claim of error using statutory construction principles and concluded that the plain language of the statute required a defendant to “know that the person enabled to consume alcoholic [beverages] is a minor.” Id. ¶ 6. In reaching our conclusion, we cited “a well-established rule of statutory construction . . . codified by the American Law Institute” that a scienter element presumptively applies to all material elements of an offense “unless a contrary purpose plainly appears.” Id. ¶ 9 (quoting Model Penal Code § 2.02(4)); but see id. ¶ 26 n.7 (Eaton, J., dissenting) (noting that Vermont has not adopted § 2.02 of the Model Penal Code, and that adoption of this section “would essentially eliminate all strict liability criminal offenses
¶ 53. Ultimately, we construed the statute at issue to require the State “to prove [the] defendant‘s knowledge that the person he enabled to consume an alcoholic beverage was a minor.” Id. ¶ 21; see also id. ¶ 11 (applying statutory principles above to conclude “that the term ‘knowingly’ applies to the single unitary act of enabling the consumption of alcohol by a person under the age of twenty-one“).
¶ 54. In reaching our conclusion, we acknowledged that the rule of statutory construction on which we relied “was not without its limitations.” Id. ¶ 12. We explained that, “[a]s several of the above-cited authorities indicate[d], the presumption that mens rea attaches to all elements of a statute may be rebutted by a showing of clear legislative intent to the contrary.” Id. (emphasis omitted). While “we [did] not necessarily expect to find an express statement from the Legislature regarding its intent to impose strict liability under
¶ 55. We reach a different conclusion here. As an initial matter, we agree with the State that this case does not present the possibility of a strict liability crime, which concerned the Court in Richland. Section 4233(c) requires, at minimum, that a person knowingly possess heroin. Thus, unlike Richland, it is not the case here that the rule of statutory construction set forth in Model
¶ 56. As we recognized in Richland, moreover, any presumption that mens rea attaches to all elements of a statute is rebuttable. This accords with the U.S. Supreme Court‘s holding in Flores-Figueroa, 556 U.S. at 652, which we cited in Richland. The Flores-Figueroa Court construed a federal statute and observed that, “[a]s a matter of ordinary English grammar, it seems natural to read the statute‘s word ‘knowingly’ as applying to all the subsequently listed elements of the crime.” Id. at 650. It further posited that “[t]he manner in which the courts ordinarily interpret criminal statutes is fully consistent with this ordinary English usage,” stating that “courts ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word ‘knowingly’ as applying that word to each element.” Id. at 652; but see id. at 658 (Scalia, J., concurring) (observing that Court‘s assertion as to whаt “most courts do” might or might not be true, but rejecting notion that statement should stand “as a normative description of what courts should ordinarily do when interpreting such statutes“).
¶ 57. Nonetheless, the U.S. Supreme Court acknowledged that the word “knowingly” did not always modify each element and that the “inquiry into a sentence‘s meaning is a contextual one.” Id. at 651-52; see also id. at 660 (Alito, J., concurring in part) (finding it “fair to begin with a general presumption that the specified mens rea applies to all the elements of [a criminal] offense, but it must be recognized that there are instances in which context may well rebut that presumption“); U.S. v. Washington, 743 F.3d 938, 942 (4th Cir. 2014) (stating that Flores-Figueroa Court “did not purport to establish a bright-line rule that a specified mens rea always applies to every element of the offense“); State v. Miles, 805 S.E.2d 204, 208 (S.C. Ct. App. 2017) (recognizing that U.S. Supreme Court “ordinarily read[s] a ‘statute that introduces the elements of a crime with the word “knowingly” as applying that word to each element,’ ” “[b]ut the Court has not gone so far as to hold that a criminal statute that opens with ‘knowingly’ invariably requires
¶ 58. We reach a different conclusion here. Viewing the statutory scheme as a whole, we conclude that any presumption that the word “knowingly” should extend to the amount of drugs that a person possesses is rebutted by the Legislature‘s purpose in enacting the drugs laws and by common sense and practicality concerns. See Miles, 805 S.E.2d at 210 (“While we can interpret statutes by bringing in rules of grammar, logic, and other tools, we must be careful not to construe common sense out.“); Avis Rent A Car Sys., Inc. v. Hertz Corp., 782 F.2d 381, 385 (2d Cir. 1986) (“Fundamental to any task of interpretation is the principle that text must yield to context.“).
¶ 59. The Legislature could not have intended to require the State to prove beyond a reasonable doubt that a defendant knew the actual weight or dosage of the drugs that he or she possessed, to be convicted of various enhanced drug offenses under Title 18. The absurdity of such an interpretation is illustrated by its application to certain crimes enumerated in Title 18, which share similar statutory language to the provision at issue here. To be subject to harsher penalties in cases involving depressants, stimulants, or narcotic drugs other than heroin or cocaine, for example, under defendant‘s theory, the State would have to prove that a defendant knew the definition of a “benchmark unlawful dosage” as set forth in the Department of Mental Health regulations and knew how many dosages he or she possessed. See
¶ 60. The Legislature obviously intended to punish those who possess greater quantities of regulated drugs more harshly than those who do not; as the State notes, the public is obviously mоre seriously harmed when a defendant is in possession of 3.5 or 10 grams of heroin than when he or she is in possession of less than 200 milligrams—regardless of the defendant‘s specific knowledge as to the particular amount possessed. Defendant‘s interpretation of the law would make prosecutions for the more egregious offenses difficult to impossible. The Legislature could not have intended for enforcement of its harshest punishments to depend on a defendant‘s exposure to or familiarity with definitions in the Department of Mental Health rules or a defendant‘s expertise in weights and measures. Section 4233 “must be construed in context and in light of the intended purpose of the statute in a manner which harmonizes with its subject matter and accords with its general purpose.” Miles, 805 S.E.2d at 208 (quotation omitted) (concluding that statutory scheme governing drugs presented “special context” and that by using word “knowingly” in drug
¶ 61. It is a reasonable policy not to criminalize an otherwise legal act—providing alcohol to someone—unless done knowingly to a minor. It is not a reasonable policy to protect a person committing a crime—illegal possession of heroin—from an enhanced penalty if the amount is sufficient for trafficking or conspiracy by requiring specific knowledge of the weight.
¶ 62. Other courts have reached similar conclusions. See, e.g., Commonwealth v. Rodriquez, 614 N.E.2d 649, 652 (Mass. 1993) (rejecting defendant‘s unpreserved argument that she was entitled to jury instruction requiring Commonwealth to prove that she had actual knowledge that amount of cocaine involved exceeded statutory amount); Grant v. State, 788 So. 2d 815, 818 (Miss. Ct. App. 2001) (holding that “though proof of the quantity of drug is an element of the offense, it is not necessary to demonstrate that the defendаnt had actual knowledge that the amount of drugs possessed met or exceeded any statutorily-designated quantity” and citing cases from other jurisdictions reaching same conclusion); State v. Taylor, 473 S.E.2d 817, 819 (S.C. Ct. App. 1996) (finding no error in trial court‘s refusal to instruct jury that defendant must have actual knowledge of amount of drugs at issue to convict her of trafficking).
¶ 63. As the Grant court observed:
To hold otherwise would require the State to go to ridiculous extremes to prove a defendant‘s knowledge and skill in the science of weights and measures. . . . So long as the State satisfactorily proves that the defendant had actual knowledge that the substance in question constituted an illegal drug, the necessary criminal intent has been established. Proof of the quantity beyond a reasonable doubt is, of course, also an element of the crime but it is not necessary to prove that the defendant had a conscious appreciation of the quantity in order to impose a particular degree of punishment that is dependent on quantity.
¶ 64. Given the Legislature‘s obvious intent, it is essential that we consider the words it chose “in their surrounding environment,” particularly given the extensiveness of the statutory scheme and the fact that it “represents the Legislature‘s will in the massive field of drug interdiction.” Miles, 805 S.E.2d at 209. As expressed by the Miles court, “[g]iven this background, if ever we are justified in reading a statute, not narrowly as through a keyhole, but in the broad light of the evils it aimed at and the good it hoped for, it is here.” Id. (quotation and alteration omitted). We find no error in the trial court‘s supplemental instruction to the jury with respect to the knowledge requirement in
Affirmed.
FOR THE COURT:
Superior Judge (Ret.), Specially Assigned