State of Maryland v. Steven Young, No. 2, September Term, 2018, Opinion by Adkins, J.

PRESERVATION FOR APPELLATE REVIEW – MOTION IN LIMINE –
AUTHENTICATION: The Court of Appeals held that, where a party merely references
Maryland Rule 5-803(b)(6), the business records exception to the rule against hearsay, the
party does not preserve an objection to the other party’s ability to authenticate the evidence
if admitted under a different hearsay exception or exemption. Therefore, the State’s
objection to the admissibility of the prescription evidence was not preserved for review.

PRESERVATION FOR APPELLATE REVIEW – MOTION IN LIMINE –
OPORTUNITY FOR OBJECTION – MARYLAND RULES 8-131 AND 4-323:
Maryland Rule 8-131 generally prevents appellate courts from reviewing issues not raised
in the trial court. But when a party has no opportunity to object before a ruling is made,
Maryland Rule 4-323(c) provides that “the absence of an objection at that time does not
constitute waiver of the objection.” Here, the defendant had no opportunity to object to
the trial court’s motion in limine ruling regarding the admissibility of prescription evidence.
Thus, the Court of Appeals held that the trial court’s motion in limine ruling was preserved
for review.

EVIDENCE – EXCLUSION OF EVIDENCE – HEARSAY – NON-HEARSAY
“VERBAL ACTS” – PRESCRIPTIONS – POSSESSION OF CONTROLLED
DANGEROUS SUBSTANCES: Defendants charged with possession of controlled
dangerous substances under Maryland Code (2002, 2012 Repl. Vol), §§ 5-601 and 5-602(2)
of the Criminal Law Article (“CR”) are entitled to offer prescriptions to establish part of
the affirmative defense for possession established by the statute, so long as the prescription
can be authenticated. Admission of the prescription to prove the operative fact of the
prescription’s existence is not hearsay, but a legally operative verbal act. Therefore, the
Court of Appeals held that the prescriptions would have been admissible as non-hearsay if
offered to establish the “prescription” prong of the affirmative defense.
Circuit Court for Baltimore City
Case No.: 114169016
Argued: September 6, 2018
                                                                             IN THE COURT OF APPEALS

                                                                                    OF MARYLAND


                                                                                          No. 2

                                                                                 September Term, 2018


                                                                                STATE OF MARYLAND

                                                                                            v.

                                                                                   STEVEN YOUNG


                                                                                   Barbera, C.J.
                                                                                   Greene
                                                                                   *Adkins
                                                                                   McDonald
                                                                                   Watts
                                                                                   Hotten
                                                                                   Getty,

                                                                                          JJ.


                                                                                  Opinion by Adkins, J.


                                                                                   Filed: December 18, 2018

                                                                     *Adkins, J., now retired, participated in the
                                                                     hearing and conference of this case while an
                                                                     active member of this Court; after being recalled
Pursuant to Maryland Uniform Electronic Legal Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document
is authentic.
                                                                     pursuant to the Md. Constitution, Article IV,
                                                                     Section 3A, she also participated in the decision
                             2018-12-18
                             09:32-05:00                             and adoption of this opinion.
Suzanne C. Johnson, Clerk
       “The true nature of the hearsay rule is nowhere better illustrated and emphasized

than in those cases which fall outside the scope of its prohibition.” 6 John Henry Wigmore,

Evidence in Trials at Common Law § 1766, at 250 (Chadbourn rev. 1976). Steven Young

was convicted by a jury in the Circuit Court for Baltimore City of possession and

possession with intent to distribute controlled dangerous substances. Before trial, the State

filed a motion to suppress introduction of any supposed prescriptions for controlled

substances, which the Circuit Court granted on hearsay grounds. We consider whether the

alleged prescriptions are barred by the rule against hearsay, or if instead, they are non-

hearsay and admissible as a “verbal act.”

                                     BACKGROUND

       In May 2014, Detective Manuel Larbi (“Larbi”) and a team of officers executed a

search warrant for 2580 Marbourne Avenue in Baltimore, Maryland. Larbi observed

Steven Young and another male in front of the house. The officers handcuffed both

individuals and entered the residence. Once inside, the officers observed a third individual,

Angela Grubber, later identified as Young’s wife. After Larbi read Young his rights

pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), Young advised that he had controlled

dangerous substances in the bedroom. Larbi went into the bedroom and found 32 pills of

methadone, 3.5 grams of heroin, seven Xanax pills, and “a digital scale containing a

powder substance.” In the kitchen cabinet, Larbi recovered 342 OxyContin pills, ten gel

caps containing suspected heroin, and $1,498 in cash.

       Young was arrested and charged with illegal possession of controlled substances

and possession with intent to distribute controlled substances. Young filed a motion to
suppress evidence of these drugs, asserting that he “attempted to provide [prescriptions] to

police during the incident, and explained that he [had] valid prescriptions for [m]ethadone,

Xanax, and Percocet.” Young also claimed he had “shown that his wife had valid

prescriptions for [m]ethadone, Xanax, and Percocet.” He did not attach copies of the

prescriptions to the motion or otherwise provide specific information about them.

       Young’s trial in the Circuit Court began in January 2016. Before jury selection, the

parties met with the trial judge in chambers. No record of the conversation was made.

Upon returning to the courtroom, the prosecutor moved to exclude all evidence that Young

had a prescription for the drugs seized. The court granted this motion in limine, without

providing Young an opportunity to respond:

              [PROSECUTOR]: And, Your Honor, the State’s second
              motion that we spoke in chambers is the exclusion. State’s
              moving a motion in limine to exclude any prescription
              evidence as it is, number one, hearsay, and, number two, not
              admissible hearsay because it does not fall within the exception
              of [Maryland Rule] 803[(b)](6).

              Defense is trying to enter into evidence, number one, a
              prescription -- an alleged prescription of the defendant and,
              number two, a prescription by his wife, Angela Grubber, who
              is not going to testify today. These are copies of alleged
              prescriptions. They are not certified. The doctor is not present.
              There’s no certification or authenticity and it’s excluded under
              [Maryland Rule] 803[(b)](6). I do have a case, Bryant v. State,
              [129 Md. App. 690 (2000),] by the Court of Special Appeals
              where in a murder trial the defense tried to enter in a piece of
              paper that was the alleged toxicology report because it was
              murder. And the Court said it’s hearsay, number one, even if
              the defendant took the stand --

              THE COURT: Yeah. I’m familiar with that law because I had
              the very same issues several times. Okay. That motion is
              granted.


                                             2
Defense counsel did not respond, object, or make a proffer in response. The case proceeded

to trial.1

        During its case-in-chief, the State called Detective Larbi, who was accepted as an

expert in the field of narcotics identification and packaging. Larbi testified that, in his

expert opinion, the substances, scale, and currency recovered were for distribution, not

personal use. The detective recalled that during one conversation, “Mr. Young also stated

that he does sell from time to time,” and that aside from four pills that were recovered,

Young took ownership of all the other drugs at the house. Larbi also testified that Young

never claimed to have a prescription for the drugs.

        The jury convicted Young of eight counts: possession of heroin, oxycodone,

methadone, and alprazolam; and possession with intent to distribute heroin, oxycodone,

methadone, and alprazolam.         After merging the possession charges, the trial judge

sentenced Young to multiple years of imprisonment for the four counts of possession with

intent to distribute.

        Young timely appealed to the Court of Special Appeals, which affirmed in part and

reversed in part. See Young v. State, 234 Md. App. 720 (2017). The intermediate appellate

court held that “[v]alid prescriptions provide the basis of a statutory defense to the charges for

possession of and possession with intent to distribute methadone, alprazolam, and oxycodone.

Introducing them for such purpose, when properly authenticated, is not hearsay.” Id. at 736.


        1
         The Circuit Court for Baltimore City never ruled on Steven Young’s motion to
suppress. The Court of Special Appeals held this issue was not preserved, and Young does
not challenge that holding here.

                                                3
As a result, it reversed each of Young’s convictions, except for his two convictions for

possession of heroin and possession with intent to distribute heroin. See id. at 741.

                                       DISCUSSION

                                       1. Preservation

        We first address two preservation issues: (1) Young’s claim that the State failed to

preserve the issue of whether he authenticated the alleged prescriptions; and (2) the State’s

claim that Young failed to preserve his claim that the trial court erred in excluding the

alleged prescriptions.

                     Young’s Preservation Argument—Authentication

        Young argues that the State failed to raise the issue of authentication at trial and

therefore cannot raise that issue on appeal. He maintains that the State’s sole reference to

authentication was in the context of its business records argument. This reference is

insufficient, Young continues, because the prescriptions are not hearsay, and no exception is

needed to properly admit them. Young further asserts that because he could self-authenticate

the prescriptions, neither the physician nor her records custodian need testify.

        The State responds that the prosecutor raised the issue of authentication in five

ways.     First, the prosecutor argued that there was no “authenticity”—meaning

authentication. Second, by referring to the “alleged prescriptions,” the prosecutor asserted

that they were not genuine. Third, the prosecutor argued that “there’s no certification,”

meaning that the prescriptions were not admissible without a sponsoring witness who could

establish that they were authentic. Fourth, the prosecutor pointed out that “Young’s wife

is not going to testify today” and “the doctor is not present,” meaning that Young was not


                                               4
calling witnesses who could potentially sponsor and authenticate the prescriptions. Finally,

the prosecutor cited Bryant v. State, 129 Md. App. 690 (2000), in which the only issue on

appeal was authentication.

       We reject the State’s arguments that it challenged authentication at trial because we

do not ascribe the same meaning to the prosecutor’s statements. Rather, the prosecutor

clearly spelled out her reasons for excluding the prescription evidence, and they all clearly

focused on challenging the prescriptions as inadmissible hearsay.           Specifically, the

prosecutor made her motion in limine “to exclude any prescription evidence as it is, number

one, hearsay, and number two, not admissible hearsay because it does not fall within the

exception of [Md. Rule 5-803(b)(6)],” the business records exception. Nor was the

prosecutor’s citation to Bryant v. State supportive, as Bryant involved the question of

whether “the trial court err[ed] in admitting the results of a toxicology report into evidence

as a business record,” and the authentication issue wholly related to the document’s

admission and authentication as a business record.          Finally, simply naming absent

witnesses was not sufficient to preserve the State’s objection, because Young could

potentially authenticate the prescriptions through his own testimony. The trial court

granted the motion in limine without giving the defense any chance to proffer or

authenticate the alleged prescriptions.2




       2
         We have no knowledge of what happened in the off-the-record chambers
discussion between the trial judge and counsel.

                                              5
                   State’s Waiver Argument—Exclusion of Prescriptions

       The State argues that Young failed to preserve his claim that the trial court erred in

excluding the alleged prescriptions. It contends that where a prosecutor has presented two

independently dispositive reasons why the trial court should not take an action, and the

court relies on those reasons, it is incumbent on a defendant to object or demonstrate why

the prosecutor’s arguments are not dispositive.

       Young responds that the trial court was on notice of his position based on the crimes

charged and his motion to suppress. Further, he contends that the court’s ruling makes

clear it was aware that he intended to introduce the prescriptions into evidence. As to the

State’s remaining argument, Young asserts that he did not have an opportunity to object to

the ruling—the court granted the motion to exclude before the State finished its argument,

and the court moved to the next motion without giving Young a chance to respond.

       Under Maryland Rule 8-131(a), an appellate court will not decide an issue “unless

it plainly appears by the record to have been raised in or decided by the trial court . . . .”

To preserve an issue for appeal, Maryland Rule 4-323(a) requires a party to “object[] to the

admission of evidence . . . at the time the evidence is offered or as soon thereafter as the

grounds for objection become apparent,” or the objection is waived. Maryland Rule 4-

323(c) tempers strict application of this requirement, making clear that a proffer is not the

only way a party may preserve an issue for appeal. The party need only “make[] known to

the court the action that the party desires the court to take or the objection to the action of

the court.” Md. Rule 4-323(c). Moreover, “[i]f a party has no opportunity to object to a




                                              6
ruling or order at the time it is made, the absence of an objection at that time does not

constitute a waiver of the objection.” Id.

       Based on the record below—Young’s motion to suppress, the prosecutor’s reference

to the discussion in chambers, the prosecutor’s motion in limine, and the judge’s

subsequent ruling—we are satisfied that the judge had sufficient notice of Young’s

intention to introduce the prescriptions into evidence, and that the judge’s ruling excluding

them was intended to be the “final word on the matter . . . .” See Prout v. State, 311 Md.

348, 357 (1988) (applying current Rule 4-323(c)). Additionally, although Young did not

respond or object to the State’s motion in limine, he had “no opportunity” to do so. Md.

Rule 5-323(c). Before the prosecutor finished making her argument, the trial judge cut her

off midsentence and granted her motion. For these reasons, we hold that Young’s objection

to the trial court’s motion in limine ruling is preserved for review.

                                         2. Hearsay

       The State also argues that the alleged prescriptions are inadmissible hearsay because

they would be introduced to prove the truth of the matter asserted. The State presents two

iterations of this theory. First, it reasons, the prescriptions go directly to the truth of the

matter asserted. The State construes the word “prescription” in Md. Code (2002, 2012

Repl. Vol), § 5-601 of the Criminal Law Article (“CR”)3 to mean “valid prescription,”

which necessarily means that it was also “from an authorized provider” and that the



       3
        The parties also contest whether prescriptions are admissible non-hearsay evidence
under Md. Code (2002, 2012 Repl. Vol.), § 5-602 of the Criminal Law Article (“CR”). We
address this issue separately later.

                                              7
provider was “operating in the course of professional practice.” When a doctor writes a

prescription, the State contends, she is essentially asserting that “she has the authority to

issue a prescription to the patient in order to obtain a controlled substance,” or that the

patient is permitted to possess the controlled substance. Second, citing Stoddard v. State,

389 Md. 681 (2005), the State avers that even if the prescriptions do not explicitly state the

information described above, they should still be excluded as hearsay because they are

“implied assertions” inherent in the admission of the prescription.

       Young counters that the prescriptions were not offered to prove the truth of the

matter asserted within them. Rather, he says he sought to introduce the prescriptions as

the basis for the statutory defense that he “legally possessed certain of the controlled

substances.” He argues that a prescription is a “legally operative document” and that CR

§ 5-601 “only applies to drugs not obtained by valid prescription and does not require that

the prescription be appropriate for the patient’s medical condition” or that the patient in

fact suffer from a given medical condition.          Instead, says Young, legitimacy and

authorization are authentication questions “irrelevant to the hearsay analysis.” For these

reasons, he argues, the trial court erred in ruling that the prescriptions were hearsay.4

       A trial court’s ruling on the admissibility of evidence is generally reviewed for abuse

of discretion. See Hopkins v. State, 352 Md. 146, 158 (1998). Yet, appellate review of

whether a statement is hearsay is conducted without deference to the trial court. See




       4
        Alternatively, even if the prescriptions were hearsay, Young claims that they fall
under the “statements made for the purposes of medical treatment” exception.

                                              8
Bernadyn v. State, 390 Md. 1, 8 (2005) (trial court has no discretion to admit hearsay in

the absence of a provision providing for its admissibility).

       Hearsay is a “statement, other than one made by the declarant while testifying at the

trial or hearing, offered in evidence to prove the truth of the matter asserted.” Md. Rule 5-

801(c). There are two threshold questions when a hearsay objection is raised: “(1) whether

the declaration at issue is a ‘statement,’ and (2) whether it is offered for the truth of the

matter asserted. If the declaration is not a statement, or if it is not offered for the truth of

the matter asserted, it is not hearsay and it will not be excluded under the hearsay rule.”

Stoddard, 389 Md. at 688–89. Maryland Rule 5-801(a) defines a “statement” as “(1) an

oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person

as an assertion.”    The parties do not contest that a prescription is an out-of-court

statement—a written assertion. They focus instead on whether the prescriptions are offered

for the truth of the matter asserted.

       It is hornbook law that out-of-court statements are generally not admissible to prove

the truth of the matter asserted. Yet, they can be admitted if the statements are “relevant

and proffered not to establish the truth of the matter asserted therein, but simply to establish

that the statement was made[.]” Lunsford v. Bd. of Educ. of Prince George’s Cty., 280 Md.

665, 670 (1977) (citations omitted). This depends on whether the “fact asserted in the out-

of-court statement [must be] sincerely and accurately stated[] in order for the out-of-court

statement to help to prove what it is offered to prove[.]” 6A Lynn McLain, Maryland

Evidence State and Federal § 801:7, at 235 (3d ed. 2013).




                                               9
       In most state and federal courts, this hearsay analysis is cabined to intentional

assertions.   This is significant because, in other jurisdictions, if the assertion was

unintentional or merely implicit, then it cannot be hearsay. Maryland departs from this

general rule. This departure is best explained by Stoddard v. State, 389 Md. 681 (2005),

the seminal Maryland case on implied assertion. The primary question in Stoddard was

whether out-of-court statements are hearsay when offered to prove the truth of a factual

proposition that was only implicitly—often unintentionally—communicated by the

declarant. See id. at 689.

       In Stoddard, the defendant, Erik Stoddard, was convicted of second-degree murder

and child abuse resulting in the death of three-year-old Calen DiRubbo (“Calen”). Id. at

683. Stoddard was the only adult supervising Calen, her older brother, and her cousin,

Jasmine Pritchett (“Jasmine”), for at least part of the time leading up to Calen’s death. Id.

at 684. The central issue involved the testimony of Jasmine’s mother, Jennifer Pritchett.

Id. Over defense counsel’s objection, the court admitted the mother’s testimony that

Jasmine asked her “if [Stoddard] was going to get her.” Id. at 685. The prosecutor offered

this as evidence that Jasmine witnessed Stoddard commit the murder. Id. at 683.

       On appeal, Stoddard argued that Jasmine’s utterance was hearsay because it was

both a statement and offered for the truth of the matter asserted. Id. at 687–88. First, the

Court determined that an implied assertion is, in fact, a statement, even though

unintentionally made. To justify this, we compared the Maryland Rules to the Federal

Rules of Evidence. See id. at 693–96. Most courts have adopted the Committee note to

the Federal Rules, which provides that “nothing is an assertion unless intended to be one.”


                                             10
Fed. R. Evid. 801(a). Yet, we have not. Instead, we observed the “Committee note to Md.

Rule 5-801 departs substantially from its federal counterpart. Rather than restricting the

definition of ‘assertion,’ the note does not attempt to define ‘assertion’ . . . .” Stoddard,

389 Md. at 696. From this, we explained, “[i]t is clear that in adopting the Maryland Rule,

this Court did not intend to adopt the federal Advisory Committee’s view that ‘nothing is

an assertion unless intended to be one,’” but rather intended to leave it to the development

of case law. Id. Ultimately, the Court concluded that a verbal or written statement, even

if unintentional, is still a statement under Maryland law.

       The Stoddard Court proceeded to evaluate whether Jasmine’s question was offered

for the truth of the matter asserted within it, turning to the wellspring of implied assertion

doctrine, Wright v. Doe d. Tatham (1837) 112 Eng. Rep. 488; 7 Ad. & E. 313. In Wright,

a testator left his estate to his steward, Wright. The testator’s heir at law, Tatham, filed suit

to set aside the will, arguing that the testator was mentally incompetent at the time he made

the will. Id. at 493; 7 Ad. & E. at 324. In response, Wright introduced several letters

addressed to the testator, not for their truth, but so the court could infer from their content

that the writers believed the testator was competent. Id. at 493–94; 7 Ad. & E. at 325.

None of the individuals who wrote the letters testified at trial.

       The English court ruled that the letters were hearsay, id. at 500; 7 Ad. & E. at 341,

and we adopted its reasoning. First, the letters could not have been admitted for the truth

of their literal content, because their content was not relevant to the proceeding. The letters

were only valuable inasmuch as the “tone and content impl[ied] a belief in [the testator’s]

competence[.]” Stoddard, 389 Md. at 692. “Thus, as offered, these letters express[ed] the


                                               11
proposition that [the testator] [was] competent[.]” Id. A letter stating as much would

clearly be hearsay. Therefore, the Court concluded that the implied assertion doctrine

excludes such evidence as hearsay “where a declarant’s out-of-court words imply a belief

in the truth of X, . . . [and are] offered to prove that X is true.” Id.

       Like in Wright, Jasmine’s statement would not have been relevant were it offered

for the literal truth of the question, “Is [Stoddard] going to get me?” Id. at 689. Nor was

Jasmine’s ability to speak the words otherwise relevant. See id. Rather, her question was

only relevant if offered for its implicit meaning: “that, by asking it, Jasmine may have

revealed, by implication, a belief that she had witnessed [Stoddard] assaulting Calen.” Id.

Even if a declarant possesses no intent to assert anything, “[i]t ‘is a non sequitur to conclude

from this, as the Advisory Committee [did], that the remaining dangers of perception,

memory, and ambiguity are automatically minimized with this assurance of sincerity.’” Id.

at 699 (citations omitted). The State offered the question to prove the truth of the implied

factual proposition that Jasmine had in fact witnessed Stoddard assaulting Calen. “[W]here

the probative value of words, as offered, depends on the declarant having communicated a

factual proposition, the words constitute an ‘assertion’ of that proposition,” and are offered

for the truth of the matter asserted, or implied. Id. at 703–04. Accordingly, Jasmine’s

unintentional assertion was hearsay and should have been excluded.




                                                12
       Since Stoddard, we have consistently resisted an overbroad interpretation of its

holding. In its companion case, authored by the same judge5 and published on the same

date, the Court upheld a trial court’s decision to exclude a medical bill as hearsay, but gave

cautionary advice for future cases. See Bernadyn v. State, 390 Md. 1 (2005). There, a

sheriff’s deputy conducted a valid search of a residence. See id. at 3–4. When the officer

entered, the defendant (“Bernadyn”) was in the living room with a marijuana pipe and

marijuana stems and seeds. Id. at 4. While in the residence, the officer seized a medical

bill addressed to “Michael Bernadyn, Jr., 2024 Morgan Street, Edgewood, Maryland

21040”—the address searched. Id.

       Over a defense hearsay objection, the trial court allowed the deputy to testify that

he had seized the medical bill from 2024 Morgan Street. Id. Counsel appealed to this

Court. Id. at 7. Although we upheld the judge’s decision to exclude the bill, we found it

significant that the “State did not argue simply that an item bearing Bernadyn’s name was

found in the house and that Bernadyn probably resided at the house.” Id. at 11. Instead,

the State argued that the bill itself was “a piece of evidence that shows who lives there.”

Id. According to the State’s proffered use, the bill was an implied assertion offered for the

truth of the statement that the doctor’s office who sent the bill was asserting that Bernadyn

lived at the address. In highlighting this distinction, the Court curtailed Stoddard’s impact




       5
        Judge Irma Raker, the author of Stoddard v. State, 389 Md. 681 (2005), and
Bernadyn v. State, 390 Md. 1 (2005), also wrote for the Majority in the current case, sitting
by designation on the Court of Special Appeals.

                                             13
with its seeming approval of an alternate theory favoring admission—offering the

statement as “merely probative circumstantial evidence.”

       We continued to limit Stoddard in Garner v. State, 414 Md. 372 (2010). There we

resolved the issue of whether circumstantial evidence probative of a fact that does not rely

on the declarant’s implied assertion can be admissible—picking up directly where

Bernadyn left off. Id. at 374. Garner involved a phone call to the defendant’s number by

someone who asked: “Yo, can I get a 40?,” which referred to $40 worth of cocaine. Id. at

376. An officer answered the phone, heard the unidentified caller make the request, and

then later repeated the statement at trial. Id. at 376–77. Of course, Garner objected—

claiming the testimony was hearsay, and arguing it was an implied assertion and

inadmissible under Stoddard and Bernadyn. Id. at 381.

       This Court held that the question, “Yo, can I get a 40?,” was not hearsay, because it

was a verbal act and should have been admitted into evidence. See id. at 388 (“[T]he rule

against hearsay does not operate to exclude evidence of [a] ‘verbal act’ that established a

consequential fact[.]”). As Judge Joseph Murphy pointed out, “neither Stoddard nor

Bernadyn presented the issue of whether the ‘verbal part of an act’” or an out-of-court

statement “that constitutes circumstantial evidence of the declarant’s state of mind” are

subject to exclusion as hearsay. Id. at 381. Accordingly, we characterized the statement

in two different ways. First, we said that it was admissible as a “verbal part of an act”—in

that case, an offer. We explained that “[t]he making of a wager or the purchase of a drug,

legally or illegally, is a form of contract.” Id. at 382 (citing Little v. State, 204 Md. 518,

522–23 (1954)). Therefore, the anonymous caller’s statement had legal significance (i.e.,


                                             14
to prove the existence of a contract), regardless of whether the matter asserted was true.

Alternatively, the Court concluded that the statements were non-hearsay circumstantial

evidence of declarant’s state of mind.       Id. at 381–82.     Under either rationale, the

“telephoned words of the would-be bettor” were not hearsay.

       We rejected the argument that the telephoned statements were an implied assertion,

even though assertions may be implicit within them. “While there may be an ‘implied

assertion’ in almost any question, . . . the only assertion implied in the anonymous caller’s

question was the assertion that the caller had the funds to purchase the drugs . . . .” Id. at

388. We declined to adopt the dissenting view of then-Chief Judge Bell, who would have

interpreted the implied assertion as hearsay—a statement that Garner was selling drugs.

See id. at 414 (Bell, C.J., dissenting). Instead, we reinforced Stoddard’s boundaries.

       Garner demonstrates that the Stoddard holding does not foreclose legally operative

verbal acts from being admitted as non-hearsay, even if they contain an implied assertion.

Professor Lynn McClain, in her treatise, Maryland Evidence State and Federal,

summarizes the verbal acts doctrine as follows:

                     The substantive law gives certain types of out-of-court
              statements immediate legal consequences. Such statements are
              termed “verbal acts” and are nonhearsay, because they have
              relevance even if the declarant was insincere or inaccurate.
              Most categories of verbal acts are necessary to the creation of
              certain types of claims, charges, and defenses.

McLain, supra, § 801:9, at 240 (footnote omitted) (emphasis in original). See also

Wigmore, supra, § 1770, at 259 (“Where the utterance of specific words is itself a part of

the details of the issue under the substantive law and the pleadings, their utterances may



                                             15
be proved without violation of the hearsay rule, because they are not offered to evidence

the truth of the matter that may be asserted therein.”) (emphasis in original).

       Garner is hardly the first Maryland decision to apply the verbal acts doctrine. The

Court of Special Appeals has recognized that verbal acts are non-hearsay when introduced

as an element of a claim or defense. In Banks v. State, 92 Md. App. 422 (1992), the State

sought to introduce testimony from the victim’s mother reporting her son’s statement that

Defendant was, inter alia, “trying to hit him with a sickle” and “was tired of the arguing

[with Defendant] and . . . was just ready to go.” Id. at 430. The State argued that these

statements established the victim’s fear and tendency to avoid conflict, which were relevant

to rebut the Defendant’s battered spouse syndrome defense and establish the State’s murder

and manslaughter charges. Id. The Court recognized that verbal acts are admissible when

they establish the basis of a claim or defense. But in this circumstance, “[n]either fear nor

conflict avoidance . . . [had] any legal significance in establishing the elements of murder

or manslaughter,” nor were they “relevant in rebutting evidence of battered spouse

syndrome or self-defense or hot-blooded provocation.” Id. at 433. Hence, these statements

were not admissible as verbal acts. Id. at 434.

       Maryland courts have applied the verbal acts doctrine in various other

circumstances, as well. See, e.g., Hyatt v. Romero, 190 Md. 500, 505 (1948) (lease is

admissible to prove the terms of a tenancy implied by law); Carozza v. Williams, 190 Md.

143, 150 (1948) (“‘Rejection’ of unsatisfactory materials . . . and other statements

accompanying, and relating to, the performance of duties . . . are not hearsay but are verbal

acts . . . .”); Heil v. Zahn, 187 Md. 603, 607–08 (1947) (in suit against the executor of an


                                             16
estate, decedent’s will was admissible because it was “not offered as testimony from the

testator that he did not owe the amount claimed but merely to show the fact that by his will

he made a bequest to the plaintiff-appellant”); Travelers Ins. Co. v. Needle, 171 Md. 517,

518–19 (1937) (although a proof of loss cannot be offered to show the fact or the extent of

the plaintiff’s loss or disability, it is one of the “necessary elements” in an insurance case

that is admissible to show that proofs of loss or proofs of disability or death have been

submitted to the insurer); Catalano v. Bopst, 166 Md. 91, 100–01 (1934) (letter

memorializing terms of contract admissible to establish parties’ intent as to the meaning of

ambiguous word in breach of contract action); Fair v. State, 198 Md. App. 1, 37 (2011)

(“[T]reating the writing on the check as a verbal part of the act of issuing the check, we are

persuaded that the check was merely circumstantial non-assertive crime scene evidence.”).

       To review, the State argues that the prescription evidence, had it been admitted,

would have been offered for the truth of the matter explicitly or implicitly asserted by it.

Young believes the evidence could have been offered for a non-hearsay purpose, such as a

verbal act. Given how events unfolded in the trial court, we lack a substantial amount of

relevant information regarding the prescriptions.        We do not know what specific

information was included in the supposed prescriptions. Nor do we know the exact purpose

for which they would have been offered. As we discussed, Young was not afforded an

opportunity to object, let alone proffer his means of authentication or an explanation on the

record regarding how he planned to use the prescription evidence. For these reasons, we

need only decide whether the prescriptions could have conceivably been admitted for a

non-hearsay purpose.


                                             17
       Young was charged under CR § 5-601(a)(1), which provides that a person may not

“possess or administer to another a controlled dangerous substance, unless obtained

directly or by prescription or order from an authorized provider acting in the course of

professional practice[.]” Thus, the subsection creates a statutory defense for possession,

so long as the substance is obtained: (1) directly or by prescription or order; (2) from an

authorized provider; and (3) from a provider acting in the course of professional practice.

A prescription is a necessary element of the statutory defense under CR § 5-601(a). As

discussed above, evidence offered for the limited purpose of establishing an element of a

claim or defense can be a verbal act, and not hearsay.

       Relying in part on legislative history, the State contends that the word

“prescription,” as used in the statute, means “valid prescription.” It points out that CR § 5-

601 was derived from former Art. 27, § 287, which once included reference to “valid”

prescriptions. See Revisor’s Notes; 2002 Md. Laws ch. 26 at 423. The reference to “valid”

prescriptions was ultimately deleted because it was “implicit in the reference to a

‘prescription’ from an authorized provider.” Id. (emphasis added). Therefore, the State

insists, to introduce a prescription is to necessarily assert that the individual suffers from a

condition for which he needs the prescription or that the doctor is authorized to provide it.

We disagree. The Revisor’s Notes only demonstrate that the “authorized provider” prong

of the statutory defense—one of three prongs discussed above—implies validity. But the

prescription would not necessarily have been introduced to satisfy this element of the

defense. We explain.




                                              18
       The Garner rationale is instructive. If the “making of a wager or purchase of a

drug, legally or illegally, is a form of contract,” and admissible non-hearsay, Garner, 414

Md. at 382 (emphasis added), so too is a paper entitling an individual to legally purchase

the drugs. The prescriptions could be admitted as a verbal act demonstrating something,

similar to a contract or lease, that is “necessary to the creation of certain types of claims,

charges, and defenses,” McLain, supra, § 801:9, at 240, not the truth of the matter asserted.

       We have recognized that many statements can have both hearsay and non-hearsay

uses. We conclude that introducing the alleged prescriptions to establish a statutory

defense is a verbal act because the statute creates legal rights, and the fact of prescription

is relevant regardless of whether its particular components are “true.” Cf. United States v.

Davis, 596 F.3d 852, 857 (D.C. Cir. 2010) (“It would make no sense to ask whether the

money order was true. [The money order] [‘]is, by its nature, neither true nor false and

thus cannot be offered for its truth.’” (internal citation omitted)). But this does not mean

that Young has successfully or convincingly established his affirmative defense. The

ultimate question of whether the prescription is from an authorized provider acting in the

course of professional practice remains a question of fact for the jury to resolve. But

offering a prescription to prove the operative fact of the prescription’s existence would not




                                             19
have been hearsay.6 And that is all we must decide regarding the possession charges.7

Because the trial court erred in granting the motion in limine, we shall affirm the Court of

Special Appeals and remand for a new trial on the specified possession charges, as we

explain infra.

       But the State perseveres, pointing out that Young was also charged under CR § 5-

602 for possession with intent to distribute. It explains that, while CR § 5-601 specifically

applies only to drugs not obtained by prescription, CR § 5-602 contains no such enumerated

limitation. This section provides that, “except as otherwise provided” in Title 5, “a person

may not (1) distribute or dispense a controlled dangerous substance; or (2) possess a


       6
         Other jurisdictions have also held that prescription evidence does not violate the
rule against hearsay. See United States v. Perholtz, 842 F.2d 343, 357 (D.C. Cir. 1988)
(“[I]n this case, the government did not intend to show that any particular item contained
in the script was true. To the contrary, the purpose was to show that the information in the
document was false; to wit, that Dillon knew little about the services supposedly rendered
pursuant to various agreements he had made.”); United States v. Bruner, 657 F.2d 1278,
1284 (D.C. Cir. 1981) (footnote omitted) (“In our view, the prescriptions were not admitted
to prove the truth of the assertions they contained, and are, therefore, not hearsay. They
were not offered to prove Dr. Bashien’s or any of his patients’ addresses. Nor were they
offered to prove the doctor believed that the patient needed the drug prescribed, which is
an assertion probably intended by the doctor when he wrote the prescriptions. They were
offered in evidence to show they were used to obtain drugs.”); Franks v. State, 724 S.W.2d
918, 919 (Tex. Ct. App. 1987) (“Appellant correctly asserts that since the prescriptions
were offered in order to show their existence and not to prove the truth of any matters
asserted therein, the admission of the prescriptions would not violate the hearsay rule.”).
We view these cases as instructive, although we note that the Franks court did not articulate
the non-hearsay purpose for which the prescriptions could be offered; and the D.C. Circuit
follows the majority rule that nothing is an assertion unless it is intended to be one, see
United States v. Long, 905 F.2d 1572, 1579–80 (D.C. Cir. 1990).
       7
        Young also argues that, even if the prescriptions were hearsay, they would still be
admissible under the “statements made for the purposes of medical treatment” exception.
Because we hold that it was possible for Young to introduce the prescriptions for a non-
hearsay purpose, we need not reach this argument.

                                             20
controlled dangerous substance in sufficient quantity reasonably to indicate under all

circumstances an intent to distribute or dispense a controlled dangerous substance.”

       The State characterizes the argument to admit the alleged prescriptions under § 5-

602 as even weaker than the argument to admit them under § 5-601, because prescriptions

are not mentioned in § 5-602. Instead, it asserts the prescriptions are “at most” a “factor”

in the possession with intent to distribute analysis—along with several other factors. In

other words, says the State, the mere fact of having a prescription does not mean that the

individual is not also illegally distributing the drug, even if legally possessed.

       Like the Court of Special Appeals, we can quickly dispatch with this argument.

Young was charged with possession with intent to distribute, under § 5-602(2), not with

distributing and dispensing a controlled substance, under § 5-602(1). Under § 5-602(2),

an individual may not “possess a controlled dangerous substance in sufficient quantity” to

indicate an intent to distribute. We interpret § 5-602’s prefatory language—“Except as

otherwise provided in [Title 5]”—to incorporate the possession defense of § 5-601(a)(1),

which is also in the Criminal Law Article, Title 5. Thus, the same statutory defense

available for possession charges under § 5-601 is available for possession with intent

charges under § 5-602(2), and a prescription is admissible to establish the fact of its own

existence as an element of that statutory defense.

       Finally, we note that when evidence is offered for a limited purpose, such as a

legally operative verbal act or circumstantial non-assertive evidence, a limiting instruction

is likely appropriate. “If the proponent of a statement claims to offer the evidence for a

purpose other than its truth, but also offers the statement to prove the truth of a matter


                                              21
asserted therein, the court should either exclude the evidence or make clear that the

evidence is admitted for a limited purpose.” Bernadyn, 390 Md. at 15. Thus, depending

on the reason proffered to admit the prescriptions, a limiting instruction is likely advisable.

                       3. Authentication—Guidance for Remand

       Young was never given the opportunity to authenticate the alleged prescriptions

because the trial judge—treating the prescriptions as hearsay—granted the State’s motion

in limine. This was error. The question then becomes what is the proper remedy in this

case? During the off-the-record conference in chambers, defense counsel may have told

the trial judge how he intended to introduce the prescriptions. Counsel may have further

explained how he intended to prove that the prescriptions were from an authorized provider

or that the provider was acting in the course of professional practice. Or maybe he said

nothing at all. Absent a record of this conversation, however, we are unwilling to assume

that Young admitted that he did not have any method to authenticate the prescriptions. He

should have been given an opportunity to proffer his authentication method. For this

reason, we affirm the Court of Special Appeals and remand the case for a new trial on the

charges for which Young alleged he had a prescription.

       Although the State failed to preserve the issue of authentication, it will surely do so

on remand. For guidance, we offer the following. “The requirement of authentication or

identification as a condition precedent to admissibility is satisfied by evidence sufficient to

support a finding that the matter in question is what its proponent claims.” Md. Rule 5-

901(a). Testimony from the prescribing doctor is one way to authenticate (or rebut) an

alleged prescription, but we wish to make clear that it is not the only way. As we explained


                                              22
in Sublet v. State, “[t]he most straightforward approach to authenticating a writing is to ask

an individual with personal knowledge about the document whether the matter was what it

purported to be.” 442 Md. 632, 658 (2015) (citing Matthews v. J.B. Colt Co., 145 Md. 667,

672 (1924) (testimony of witness that he saw defendant sign contract was sufficient to

warrant its admission)). There are potentially various people with “personal knowledge”

about the prescription, depending on the specific reason it is introduced. “Familiarity with

the purported author’s signature also has been a basis for authentication, provided that such

familiarity was proven prior to authentication.” Id. (citing Smith v. Walton, 8 Gill 77, 77

(Md. 1849) (“A witness who has seen a party write, or who has corresponded with him, is

qualified to speak with respect to the genuineness of his signature.”)).

       “In other circumstances, comparison to a known exemplar may be accomplished

through expert testimony or within the confines of the jury room.” Id. at 658–59 (citing

Hoover v. Hoover, 187 Md. 646, 650 (1947) (“A bank official, whose business it was to

know handwriting, testified as an expert that in his opinion the writing on the disputed note,

and the admitted writing of [the alleged author] on the autographed note, were the same.”);

Haile v. Dinnis, 184 Md. 144, 153–54 (1944) (jury permitted to compare records against

previously admitted exemplars to determine if they were authentic)). “In the absence of

known exemplars, authentication of a writing also could be obtained were the contents or

subject matter of the writing to ‘contain circumstantial evidence indicating the identity of

its author’ by, for example, containing information known only to a chosen few.” Id.

(citing 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence §

901.04[3][a] (Joseph M. McLaughlin ed., Matthew Bender 2d ed. 2015)).


                                             23
       These are the principles that should guide a court facing a defendant’s proffer of a

prescription as a statutory defense according to CR § 5-601(a). The defendant, in such

instance, must make some prima facie showing that he received the alleged prescriptions

from a physician who prescribed them in the ordinary course of business. It is conceivable

that the defendant could do so via his own testimony. Pertinent testimony from the

prescribing physician or the physician’s custodian of records would obviously suffice.

Absent some valid authentication, the prescriptions are inadmissible on remand.

                                      CONCLUSION

       We hold that the issue of whether Young’s alleged prescriptions were properly

authenticated was not raised in or decided by the trial court, and thus it is not preserved for

review. Next, under the facts of this case, the trial judge had sufficient notice that Young

intended to introduce the prescriptions into evidence, and the judge’s ruling was intended

to be the “final word on the matter.” Accordingly, Young had no opportunity to object and

we treat the issue as preserved under Md. Rule 4-323(c). Finally, we hold that evidence of

a valid prescription can fall under the category of “verbal acts”—admissible, not for the

truth of the matter asserted, but as the basis of a statutory defense under CR §§ 5-601(a)

and 602(2).

                                           JUDGMENT OF THE COURT OF
                                           SPECIAL APPEALS AFFIRMED. COSTS
                                           TO BE PAID BY PETITIONER.




                                              24
