                                             No. 116,649

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                           STATE OF KANSAS,
                                               Appellee,

                                                    v.

                                   ANTHONY MICHAEL BRAZZLE,
                                          Appellant.

                                   SYLLABUS BY THE COURT

1.
        When a criminal defendant challenges the sufficiency of the evidence regarding a
conviction for possession of a controlled substance, uncontroverted testimony by a
witness identifying the substance through consultation with www.drugs.com is sufficient
to support the jury's conclusion beyond a reasonable doubt that the substance was that
identified by the witness.


2.
        Possession of a controlled substance is unlawful under K.S.A. 2016 Supp. 21-
5706. Lawful possession of a controlled substance by prescription is an affirmative
defense. A criminal defendant charged with unlawful possession of a controlled
substance must claim legal authorization to possess the controlled substance at issue
before the State is obligated to disprove that claim beyond a reasonable doubt.

        Appeal from Riley District Court; MERYL D. WILSON, judge. Opinion filed January 12, 2018.
Affirmed.


        Rick Kittel, of Kansas Appellate Defender Office, for appellant.


        James W. Garrison, assistant county attorney, Barry Wilkerson, county attorney, and Derek
Schmidt, attorney general, for appellee.

                                                    1
Before PIERRON, P.J., ATCHESON, J., and WALKER, S.J.


       PIERRON, J.: Anthony Michael Brazzle appeals from several drug-related
convictions. He argues the district court erroneously admitted K.S.A. 60-455 evidence
related to a prior drug sale with undercover police detectives; the district court
erroneously instructed the jury on possession of oxycodone; and the evidence produced at
trial was insufficient to support his conviction for possession of oxycodone.


       Just after midnight on December 12, 2015, police officers Ryan Doehling and
Lusk were staking out the Royal Inn in Manhattan, Kansas. The officers suspected that
drug transactions were being conducted at the Inn, based on undercover operations
conducted at the Inn by other officers.


       The officers saw a dark-colored sedan drive into the Inn parking lot and remain for
10-15 minutes. They could not see whether any passengers were in the vehicle when it
arrived. As the vehicle left the Inn, it failed to stop completely at the parking lot exit
before turning onto the street, a violation of a Manhattan city ordinance. Not wanting to
draw undue attention by conducting a traffic stop in front of the Inn, the officers followed
the sedan for a couple blocks before stopping it at a traffic signal.


       Lusk contacted the driver, who could not provide identification. The driver
originally identified himself as Marcus Brazzle, but when the officers challenged the
identification because his tattoos did not match, Brazzle admitted that his name was
actually Anthony Brazzle.


       While Brazzle was detained to run his identification, a K-9 unit arrived and
conducted a canine search outside the vehicle. The dog alerted at the passenger side door
and at the driver's side door. The canine handler, Officer Andrew Toolin, conducted a
search of the vehicle. Under the front passenger seat, he discovered a Crown Royal bag.

                                               2
Inside this bag were two plastic baggies with substantial amounts of what appeared to be
crystal methamphetamine, a glass smoking device, U.S. currency totaling $128, some
blister packs containing gray pills marked "K 57," and some small, unused plastic
baggies. Under the driver's seat, Toolin discovered an unpackaged gray pill marked "K
57" and a glass smoking device with white residue. Along the driver's side front door
panel, Toolin found a pair of "brass knuckles." Toolin later looked up the gray pill on
www.drugs.com and determined that it was oxycodone hydrochloride.


       Testing by the Kansas Bureau of Investigation confirmed that the crystalline
substance in the two baggies was methamphetamine, one bag contained a net weight of
2.98 grams and the other baggie contained 5.28 grams.


       The State originally charged Brazzle with possession with the intent to distribute
methamphetamine, felony possession of drug paraphernalia, and criminal use of a
weapon. The State later added a charge of unlawful possession of a controlled substance,
i.e., oxycodone. The court conducted a preliminary examination hearing and found
probable cause to bind Brazzle for trial on all counts.


       The State filed a motion seeking admission of K.S.A. 60-455 evidence that
Brazzle was involved in an undercover drug transaction a week before the incident which
supported the charges in this case. Brazzle had not yet been convicted of the former
criminal activity, but the district court found the evidence sufficiently probative to
establish Brazzle's intent to distribute methamphetamine and to outweigh the evidence's
potential for unfair prejudice.


       At a single-day jury trial, Brazzle presented no evidence. The jury convicted
Brazzle of all counts. The district court denied Brazzle's motion for judgment of acquittal
on the possession with intent to distribute charge.


                                              3
         Prior to sentencing, Brazzle moved for a downward dispositional and/or durational
sentencing departure based on his relatively young age and acknowledgement of a drug
problem requiring treatment. At sentencing on August 22, 2016, the district court denied
the departure motion and imposed a controlling sentence of 105 months in prison for
possession with the intent to distribute methamphetamine. The court ran Brazzle's other
sentences concurrent with the base offense of possession with the intent to distribute
methamphetamine.

         On appeal, Brazzle first contends the district court committed reversible error in
admitting evidence that, one week before his arrest in this case, two undercover police
detectives had purchased methamphetamine from Brazzle in two controlled drug
transactions. He contends that the evidence was not probative to demonstrate intent
because he never claimed his possession of the methamphetamine was innocent and
because the potential prejudice from the evidence substantially outweighed its probative
value.


         The issue was properly preserved by argument against the State's motion to admit
the evidence under K.S.A. 2016 Supp. 60-455 and by a contemporaneous and continuing
objection to the detectives' testimony at trial.


Materiality


         K.S.A. 2016 Supp. 60-455 provides for exclusion of evidence of criminal
wrongdoing to establish the defendant's propensity to commit such acts but also provides
a rule of inclusion when such evidence is relevant to prove a material fact. See State v.
Seacat, 303 Kan. 622, 629, 366 P.3d 208 (2016). The list of material facts included in
K.S.A. 2016 Supp. 60-455(b) is not exhaustive. See State v. Barber, 302 Kan. 367, 374,
353 P.3d 1108 (2015). The test for inclusion of this evidence consists of three inquiries:
(1) Does the evidence address a material fact, i.e., does it have some real bearing on the

                                               4
decision in the case? (2) Is the material fact disputed? (3) Does the probative value of the
evidence outweigh the potential for undue prejudice? Seacat, 303 Kan. at 631.


       The State offered the K.S.A. 60-455 evidence to establish Brazzle's plan or intent
for the methamphetamine found in his car during the traffic stop on December 12, 2015.
Citing State v. Bly, 215 Kan. 168, 176, 523 P.2d 397 (1974), and a comment to PIK Crim.
4th 51.030, Brazzle argues that the evidence of his prior criminal activity was not
relevant to establish intent because he did not plead innocence to the charged offense.
This argument completely ignores the defense Brazzle raised in the case, which was
primarily to contend that the State could not establish that the drugs in the car belonged to
him.


       Previously, this court has considered a defendant's prior sale or use of illegal drugs
to be a relevant factor in cases involving nonexclusive possession of drugs. See State v.
Johnson, 33 Kan. App. 2d 490, 502, 106 P.3d 65 (2004); State v. Cruz, 15 Kan. App. 2d
476, 489, 809 P.2d 1233, rev. denied 249 Kan. 777 (1991). But the Kansas Supreme
Court disapproved of the practice of automatically admitting evidence of prior drug
distribution or use in such cases. See State v. Boggs, 287 Kan. 298, 315, 197 P.3d 441
(2008) ("[W]hen a defendant does not assert that his or her actions were innocent but
rather presents some other defense, there is no reason to admit evidence of other crimes
or civil wrongs to prove intent."). Nevertheless, by claiming that the State could not
prove that the items discovered in the sedan belonged to him, Brazzle essentially raised a
defense of innocence. See State v. Graham, 244 Kan. 194, 196-97, 768 P.2d 259 (1989)
(finding that Graham placed intent in issue by presenting a defense that the illegal drugs
were found in clothing which did not belong to Graham and in an automobile that did not
belong to him).


       In the present case, Brazzle's proximity to the methamphetamine in the vehicle he
was driving was not disputed. Accordingly, the only material fact issue in the case is

                                             5
whether he possessed the drugs and paraphernalia, meaning he had control of the drugs
and paraphernalia with the knowledge and intent to do so. See State v. Rosa, 304 Kan.
429, 436-37, 371 P.3d 915 (2016) ("Possible 'innocent explanations' would include the
claims that the defendant either was unaware of the presence of the drugs or was under
the mistaken belief that the drugs were not illegal drugs but were some other lawful
substance."); Boggs, 287 Kan. at 312 (citing favorably State v. Faulkner, 220 Kan. 153,
Syl. ¶ 3, 551 P.2d 1247 [1976]).


       Not only was Brazzle's knowledge of the contraband and intent to exercise control
over the contraband questioned but so was his intent in possessing the contraband, i.e.,
whether he intended the drugs and contraband for personal use or for distribution.
Evidence that Brazzle conducted two sales of methamphetamine with undercover
detectives a week prior to his arrest in this case at a location he had just left before the
traffic stop in this case is highly probative of his intent to distribute the methamphetamine
he possessed rather than to possess it for personal use.


Probative Value vs. Prejudice


       Brazzle further contends that even if the K.S.A. 60-455 evidence was relevant to
his intent, its potential for undue prejudice outweighed any probative value it held.
Before admitting material evidence under K.S.A. 2016 Supp. 60-455, a court must weigh
the probative value of the evidence against the danger of unfair prejudice. Seacat, 303
Kan. at 631. Appellate review of the district court's balancing and weighing of probative
value and potential prejudice is limited to determining whether the court abused its
discretion. State v. Lowrance, 298 Kan. 274, 291, 312 P.3d 328 (2013). Brazzle bears the
burden of establishing an abuse of that discretion. State v. Robinson, 303 Kan. 11, 90,
363 P.3d 875 (2015), cert. denied 137 S. Ct. 164 (2016).




                                               6
       Judicial discretion is abused only when a decision is so arbitrary, fanciful, or
unreasonable that no reasonable person in the position of the court would have rendered a
similar decision or when the decision is inconsistent with the applicable legal framework
or with the evidence in the case as demonstrated by the record on appeal. State v.
Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015).


       The Kansas Supreme Court has previously identified the common types of
potential prejudice arising from the admission of K.S.A. 60-455 evidence.


       "'. . . First, a jury might well exaggerate the value of other crimes as evidence proving
       that, because the defendant has committed a similar crime before, it might properly be
       inferred that he committed this one. Secondly, the jury might conclude that the defendant
       deserves punishment because he is a general wrongdoer even if the prosecution had not
       established guilt beyond a reasonable doubt in the prosecution at hand. Thirdly, the jury
       might conclude that because the defendant is a criminal, the evidence put in on his behalf
       should not be believed. . . .'" State v. Davis, 213 Kan. 54, 58, 515 P.2d 802 (1973)
       (quoting Vernon's Kansas Statutes Annotated, Rules of Evidence, § 60-455, p. 376).


See also State v. Gunby, 282 Kan. 39, 48-49, 114 P.3d 647 (2006) (quoting Davis).


       There is undoubtedly prejudice arising from the jury's consideration of Brazzle's
arrests for methamphetamine sales to undercover detectives. The fact that Brazzle had not
been convicted of these prior criminal acts does not necessary preclude the evidence's
admission. See United States v. Nolan, 551 F.2d 266, 270 (10th Cir. 1977) (holding that
Federal Rule of Evidence 404[b] refers to evidence of other crimes, wrongs, or acts and
does not require proof of a conviction). But the fact that Brazzle had not yet been
convicted of these prior offenses diminishes the probative weight of the evidence, since
he might have a valid defense to the criminal charges. Nevertheless, even if Brazzle
possessed some legal defense to the drug transactions, the circumstances of the prior
methamphetamine sales do not suggest a likelihood of mistaken identity or an absence of

                                                    7
an intent to commit the alleged acts. The district court provided a limiting instruction to
the jury about the use to which it might put the evidence regarding the drug transactions.
As a result, the potential prejudice arising from the admission of the K.S.A. 60-455
evidence does not substantially outweigh its probative value. The district court's decision
to admit the evidence does not constitute an abuse of judicial discretion.


       Brazzle next challenges the district court's elements instruction for possession of
oxycodone. Brazzle tacitly concedes that he did not object to the instruction at trial, citing
the clearly erroneous standard of appellate review. However, the error Brazzle raises may
be deemed invited by him. Both Brazzle and the State submitted proposed jury
instructions. The State's instruction on the elements of possession of oxycodone omitted
the language that Brazzle now contends constituted clear error. In submitting his
proposed instruction, Brazzle cited PIK Crim. 4th 57.040, but also indicated that he
agreed with the State's proposed draft instruction. Since Brazzle advocated the version of
the instruction ultimately given to the jury by the court, he cannot now claim error in the
court's choice. See State v. Bailey, 292 Kan. 449, 459, 255 P.3d 19 (2011) ("When
defendant's requested instruction is given to the jury, the defendant cannot complain the
requested instruction was error on appeal."); State v. Hargrove, 48 Kan. App. 2d 522,
549-50, 293 P.3d 787 (2013) ("If Hargrove's lawyer made a tactical decision to request a
jury instruction . . . , then the invited error doctrine should be applied on direct appeal to
bar a claim that the conviction be reversed based on that omission. . . . A contrary rule
would permit manipulation of the adversary process in a way that inflicts a deep wound
on the systemic fairness vital to that process. The danger is no less when the rights
compromised for strategic purposes rise to a constitutional level.").


       In his next issue on appeal, Brazzle contends that his conviction for possession of
oxycodone was not supported by sufficient evidence. He argues that the State's evidence
was deficient on two points. First, the State failed to present adequate evidence that the
pills found in the vehicle he was driving were in fact oxycodone because the State did not

                                               8
present evidence that any of the pills were tested. Second, the State failed to present any
evidence that Brazzle did not have a prescription for the oxycodone. Brazzle has not
presented any evidence tending to prove the drugs were not oxycodone or that he had a
prescription for the oxycodone.


       When the sufficiency of the evidence is challenged in a criminal case, an appellate
court reviews the evidence in a light most favorable to the State. The conviction will be
affirmed if the court's review of the evidence persuades it that a rational fact-finder could
have found beyond a reasonable doubt that the defendant was guilty of the charged
offense. See State v. Laborde, 303 Kan. 1, 6, 360 P.3d 1080 (2015). In reviewing the
evidence, the court does not reweigh the evidence or reassess the credibility of the
witnesses. See State v. Daws, 303 Kan. 785, 789, 368 P.3d 1074 (2016).


Absence of Testing


       At trial, Office Toolin testified that he compared the small, gray pill with the "K
57" marking with information on www.drugs.com, a resource frequently used by law
enforcement to identify prescription pills, to identify the pill as oxycodone hydrochloride.
Brazzle now contends this evidence was insufficient to establish the identity of the pills
beyond a reasonable doubt.


       Though the issue is one of first impression in Kansas, other courts have generally
addressed reliance upon physical characteristics of a pharmaceutical drug and
consultation with a website by a layperson in terms of hearsay exceptions or witness
qualifications. See People v. Mooring, 15 Cal. App. 5th 928, 223 Cal. Rptr. 3d 616
(2017) (generally upholding reliance on a similar website against hearsay and
confrontation challenges); People v. Spradlin, 56 Misc. 3d 742, 750, 52 N.Y.S.3d 833
(2017) ("While it may be best practice for an officer to recite his training and experience,
such absence is not fatal to an accusatory where the officer specifically identifies the

                                              9
appearance of pills which includes the imprint markings as required by Federal Law [21
C.F.R § 206.10] and enters such data in to the drugs.com data base."); State v. Sandoval,
No. 1 CA-CR14-0242, 2015 WL 1035236, at *6 (Ariz. App. 2015) (unpublished opinion)
(authorizing testimony based on detective's consultation of a drug website to identify the
drugs and confirmation of the pills' identity with a pharmacist). But see People v. Hard,
342 P.3d 572, 579 (Colo. App. 2014) (holding that information on www.drugs.com was
insufficiently reliable to qualify as a market report exception to hearsay); State v. Alston,
802 S.E.2d 753, 755 (N.C. App. 2017) (finding plain error where detective identified
controlled substance by visual inspection and reference to www.drugs.com when the pills
were never submitted for chemical analysis).


       Assuming, for a moment, that Officer Toolin's testimony was properly admissible,
his testimony provided the jury with uncontroverted evidence that the gray pills found in
the vehicle were oxycodone hydrochloride. So any defect in the State's evidence lies in
the admissibility of Toolin's testimony—for the State's alleged failure to qualify him as
an expert, for his lack of foundation to testify about the identity of the pills, and for the
hearsay nature of the information upon which he relied. All of these defects pertain to
evidentiary issues, which Brazzle failed to preserve with a contemporaneous objection.
Accordingly, Toolin's testimony may not be challenged in this appeal. See State v. Solis,
305 Kan. 55, 63-64, 378 P.3d 532 (2016) (adhering to contemporaneous objection rule
for evidentiary issues even when constitutional rights are at stake). Given that the
evidence was admitted without objection, Toolin's testimony provided a sufficient basis
from which the jury could reasonably conclude that the gray pills were oxycodone
hydrochloride. We find it important there was testimony that www.drugs.com is
commonly used to identify drugs and there was no evidence to the contrary.




                                              10
Absence of Prescription


       The parties do not dispute that the State presented no evidence at trial that Brazzle
lacked a prescription for the oxycodone hydrochloride pills. The dispute in this case turns
on whose burden it is to establish proof of a prescription or the lack thereof. Brazzle
naturally argues that the State bears the burden to prove every element of the crime,
including the unlawful nature of Brazzle's possession. The State contends that possession
of oxycodone with a valid medical prescription is an exception to the rule that its
possession is unlawful and, therefore, an authorized prescription for a controlled
substance is in the nature of an affirmative defense, a legal justification for possession of
an otherwise unlawful controlled substance.


       This case squarely addresses the question suggested by the concurring opinion in
State v. Young, No. 111,913, 2015 WL 5750541, at *15 (Kan. App. 2015) (unpublished
opinion) (Atcheson, J., concurring):


               "As the majority notes, Young testified he had a physician's prescription for the
       oxycodone, a controlled substance. As provided in K.S.A. 2014 Supp. 65-4116(c)(3), a
       person may lawfully possess oxycodone if he or she has a legitimate prescription for it.
       But K.S.A. 2014 Supp. 21-5706 criminalizes the possession of controlled substances
       without making reference to or allowance for a lawful prescription. The two statutes
       aren't entirely harmonious. And it's not entirely clear from the statutes whether the lack of
       a legitimate prescription is an element of the offense or the existence of a legitimate
       prescription is an affirmative defense. For purposes of this case, the difference is an
       academic one as I view it." 2015 WL 5750541, at *15.


In the present case, the difference is no longer academic. If the unlawful possession of
oxycodone—to the exclusion of any evidence of a prescription—is an element of the
crime, the State has the burden to establish proof beyond a reasonable doubt. The absence
of any evidence regarding the existence of a prescription in this case would constitute a

                                                    11
failure to prove all the elements of the offense. In contrast, if a prescription for
oxycodone is a legal defense to the otherwise illegal possession of the drug in the nature
of an affirmative defense, the result is different. Since Brazzle has made no claim that he
possessed a prescription for the drug, the State was not required to rule out the legal
defense of a prescription.


       The resolution of the issue rests in the proper interpretation of the relevant statutes,
which is a question of law subject to unlimited appellate review. State v. Collins, 303
Kan. 472, 473-74, 362 P.3d 1098 (2015). The fundamental rule of statutory construction
is that the intent of the Legislature governs if that intent can be ascertained. State v.
Jordan, 303 Kan. 1017, 1019, 370 P.3d 417 (2016).


       K.S.A. 2016 Supp. 21-5706 criminalizes the possession of controlled substances
and refers to various provisions within the Uniform Controlled Substances Act (UCSA),
K.S.A. 65-4101 et seq., to establish what substances constitute controlled substances
within the meaning of the criminal code. Notably, K.S.A. 2016 Supp. 21-5706 does not
provide an exemption or an affirmative defense for prescribed controlled substances.
Nevertheless, the criminal code must make allowance for authorized possession of
controlled substances under the UCSA. Otherwise, our jails would be filled with
pharmacists.


       The UCSA classifies controlled substances by schedule. Oxycodone and its salts
or derivatives are classified as a Schedule II controlled substance. See K.S.A. 2016 Supp.
65-4107(b)(1)(N) and (b)(2). The UCSA authorizes persons licensed by the Kansas
Board of Pharmacy to possess and distribute certain controlled substances. K.S.A. 2016
Supp. 65-4116(a) and (b). K.S.A. 2016 Supp. 65-4123 further restricts the types of
controlled substances that a licensee may possess and distribute. The restrictions are
classified by schedule. See, e.g., K.S.A. 2016 Supp. 65-4123(b) (Schedule II controlled


                                              12
substances). Schedule I controlled substances may not be distributed. K.S.A. 2016 Supp.
65-4123(a).


         K.S.A. 2016 Supp. 65-4116(c), however, provides exceptions for the licensure
requirement. Pertinent to this case, subsection (c)(3) of that statute provides:


                 "(c) The following persons need not register and may lawfully possess controlled
         substances under this act, as specified in this subsection:
                 ....
                 (3) an ultimate user or a person in possession of any controlled substance
         pursuant to a lawful order of a practitioner or a mid-level practitioner or in lawful
         possession of a schedule V substance." (Emphases added.)


         Though the structure of the statutory scheme governing controlled substances does
not conclusively resolve the question, the absolute nature of the prohibition in the
criminal code for the possession of controlled substances is tempered by the authorization
for possession of certain controlled substances in certain circumstances. The statutory
scheme suggests that the limited authorization for the possession of controlled substances
operates as an exception to the general prohibition and effectively constitutes an
affirmative defense. As such, a person charged with violating K.S.A. 2016 Supp. 21-5706
must bring forward a claim of legal authorization to possess the controlled substance at
issue.


         Other jurisdictions to consider similar statutory schemes with the legislative
adoption of the Uniform Controlled Substances Act have reached a similar construction.
See, e.g., People v. Whaley, 159 P.3d 757, 759-60 (Colo. App. 2006); People v.
Kolichman, 218 Ill. App. 3d 132, 144, 578 N.E.2d 569 (1991); State v. Skorvanek, 182
Ohio App. 3d 615, 622, 914 N.E.2d 418 (2009), overruled on other grounds by State v.
Straley, 139 Ohio St. 3d 339, 11 N.E.3d 1175 (2014); State v. Yokel, 196 Wash. App.
424, 430, 383 P.3d 619 (2016).
                                                      13
       Since a prescription forms an affirmative defense to prosecution for possession of
a controlled substance, the State was not required to prove the absence of a prescription
in order to obtain a conviction under K.S.A. 2016 Supp. 21-5706 for possession of
oxycodone hydrochloride. The State presented sufficient evidence to support Brazzle's
conviction for possession of oxycodone hydrochloride.


       Affirmed.


                                           ***


       ATCHESON, J., concurring in part and dissenting in part: I respectfully dissent
from that part of the majority opinion finding sufficient evidence to support the
conviction of Defendant Anthony Michael Brazzle for possession of oxycodone. The
testimony of Riley County Police Officer Andrew Toolin was insufficient to permit a
factual finding that beyond a reasonable doubt the pills found in the car were oxycodone
or any other controlled substance. For that reason, I would reverse Brazzle's conviction of
that crime for insufficient evidence and vacate the concomitant sentence. I otherwise
concur in the results the majority reaches on the remaining issues Brazzle has raised on
appeal.


       In considering a challenge to the sufficiency of the evidence supporting a
conviction, we ask whether reasonable jurors could find the elements of the crime proved
beyond a reasonable doubt taking the evidence in the best light for the State. State v.
McBroom, 299 Kan. 731, 754, 325 P.3d 1174 (2014). By the same token, however, a
conviction cannot depend on speculation or conjecture. See State v. Williams, 229 Kan.
646, 663-64, 630 P.2d 694 (1981); State v. Perez-Rivera, 41 Kan. App. 2d 579, 581-83,
203 P.3d 735 (2009); State v. Judd, No. 112,606, 2016 WL 2942294, at *2 (Kan. App.
2016) (unpublished opinion) ("[C]onvictions may not rest on speculation or surmise.").


                                             14
       The governing issue here is whether the pills in the car Brazzle was driving are
oxycodone. The pills were never chemically tested. Officer Toolin, who found the pills,
described them at trial as "small, gray pills" with "a K 57 marking" on them. The only
evidence the State presented as to the chemical makeup of the pills was this testimony
from Officer Toolin:


                "Q. All right, Officer Toolin, now that you've had a chance to look at your report,
       did you identify that pill?
                "A. Yes, I did.
                "Q. What is it?
                "A. It's Oxycodone hydrochloride.
                "Q. How did you identify that pill?
                "A. Using a common method of drugs.com.
                "Q. Is that something that law enforcement in the United States uses to identify
       pills?
                "A. Yes, we do."


       That's it. Brazzle's lawyer did not cross-examine Officer Toolin on this point. So,
at best, the jurors knew that Officer Toolin looked at some site on the Internet and figured
out the pills were Oxycodone and that other law enforcement agents use the same site.
But the jurors knew nothing about what drugs.com is, what kind of information it offers,
who sponsors it, or why it might be reliable—among all of the stuff swirling around in
cyberspace—in identifying drugs. Nor did the jurors have any idea how Officer Toolin
specifically went about using the site to discern the content of those pills or how it works
for other unknown drugs. Officer Toolin presumably could have explained at least some
of those things to the jurors. But he didn't. What we effectively have as the only evidence
on a key element of the crime is a government agent's statement, "I found it on the
Internet, just the way other officers do."




                                                      15
       To the extent there is a dividing line between testimony presenting barely
sufficient facts and testimony dependent upon juror speculation, this falls well on the
speculation side. The jurors had to fill in not only details but basic facts about the
identification of the pills as oxycodone through means other than the evidence presented.
In short, they were left to guess about how Officer Toolin managed this Internet magic.
And guesses aren't good enough to support criminal convictions, especially when that's
all there is. See State v. Burnison, 247 Kan. 19, 28, 795 P.2d 32 (1990).


       The cases the majority cites in support of its conclusion are inapposite. In both
People v. Mooring, 15 Cal. App. 5th 928, 936-39, 223 Cal. Rptr. 3d 616 (2017), and State
v. Sandoval, No. 1 CA-CR14-0242, 2015 WL 1035236, at *6 (Ariz. App. 2015)
(unpublished opinion), the prosecution presented considerably more evidence about those
particular websites and their use and reliability, along with corroborating circumstantial
evidence the pills at issue contained controlled substances. In People v. Spradlin, 56
Misc. 3d 742, 750, 52 N.Y.S.3d 833 (2017), a judge accepted an officer's reliance on
drugs.com in making a probable cause determination to hold a defendant for trial—a
preliminary step in the adjudicatory process the judge rather deliberately distinguished
from the trial itself. More apt is People v. Hard, 342 P.3d 572, 580 (Colo. App. 2014), in
which the appellate court found an officer's identification of pills as oxycodone using
only drugs.com was legally insufficient to support a conviction.


       I would reverse Brazzle's conviction because we don't find people guilty based on
evidence that requires jurors to guess about the existence of an element of the crime.




                                              16
