2008 VT 3



State v. McAllister (2006-037)
 
2008 VT 3
 
[Filed 18-Jan-2008]
 
NOTICE: 
This opinion is subject to
motions for reargument under V.R.A.P. 40 as well as formal revision
before
publication in the Vermont Reports.  Readers are requested to
notify the
Reporter of Decisions, Vermont Supreme Court, 109 State Street,
Montpelier, Vermont 05609-0801 of any errors in order that corrections
may be made before
this opinion goes to press.
 
 
                                                                     
2008
VT 3
 
                                                                  
No.
2006-037
 
 
State
of
Vermont                                                                            
Supreme
Court
 
On Appeal from
    
v.                                                                                                
District
Court of Vermont,
Unit No. 1, Windsor Circuit
 
Elizabeth
McAllister                                                                       
February
Term, 2007
 
 
Theresa S. DiMauro, J.
 
William H. Sorrell, Attorney General, and
Jeffrey R. Schinnerer, Assistant Attorney General,
  Montpelier, for Plaintiff-Appellee.
 
Matthew F. Valerio, Defender General, and
Kelly Green, Appellate Defender, Montpelier, for
  Defendant-Appellant.
 
 
PRESENT:
  Reiber, C.J., Dooley, Johnson and Skoglund, JJ., and Bent, Supr. J.,
Specially Assigned      
¶  1.          
SKOGLUND, J.   Defendant Elizabeth McAllister appeals
the trial court’s denial of her motion to suppress certain evidence and her
motion for a judgment of acquittal.  Defendant was convicted of one count of
transportation of a regulated drug into a place of detention, 18 V.S.A.
§ 4249, and one count of possession of a narcotic drug, 18 V.S.A. §
4234(a).  At the close of the State’s evidence, defendant moved to suppress
pills that were taken from her during a strip-search at the Southwest State
Correctional Facility, arguing that the State had not established a sufficient
chain of custody to ensure their identity.  She also moved for a judgment of
acquittal, arguing that the State failed to prove an element of each of the
crimes charged.  We affirm.



¶  2.         
The evidence at
trial established the following.  On January 10, 2005, defendant was
transported by the sheriff’s department to the Southeast State Correctional
Facility from the Southern State Correctional Facility for admission.  As part
of the Southeast State Correctional Facility’s admission procedure, all
detainees coming into the facility are strip-searched in a small room off of
the booking area.  Defendant was no exception.  The correctional officer who
performed the search inspected defendant’s clothes, hair, and body cavities. 
After defendant removed her clothing, the officer noticed plastic protruding
from defendant’s vagina.  When asked to remove the plastic, defendant refused
and pushed it farther into her vagina.  Defendant was warned that if she did
not remove the plastic, she would be taken for an x-ray.  Defendant removed a
plastic bag from her body and held it over her head while seeming to crush the
bag with her hand.  She then repeatedly held her hand out, as if to give the
plastic bag to the officer, and then pulled the hand away.  Eventually,
two small white pills fell from defendant’s hand.  The officer then
grabbed defendant’s hand and ordered her to release the bag.
¶  3.          
When she had custody
of the bag, the officer was able to see that it contained orange and white
pills.  She retrieved the pills that had fallen on the floor, put them in the
plastic bag, pulled her latex glove around the bag and the pills, and placed
the glove in her pocket.  She completed the exam, then contacted her supervisor
and notified him of what she had found.  When the supervisor arrived, he asked
defendant why she had the pills, and defendant responded that they were her “meds”
and that they were methadone and Percocet.



¶  4.          
The supervisor took
possession of the glove with the pills and went to the facility nurse for help
in identifying them.  After identifying some of the pills as methadone, the
supervisor placed the pills in a paper envelope.  The supervisor testified that
it was his common practice to label the item with a detainee’s name, a
description of what was found, and the date. He testified that, in this case,
he sealed the envelope and wrote defendant’s name on it.  The supervisor then
placed the envelope into the facility safe, as is the procedure for contraband
confiscated from inmates.  Later, he retrieved the envelope from the safe and
gave it to State Trooper McLaughlin.  Trooper McLaughlin did not testify.
¶  5.          
In the record, the
envelope next appears in the possession of the senior trooper assigned to
investigate the case.  This officer testified that he was given the evidence
bag containing the envelope and the pills and that the bag did not appear to
have been tampered with in any way.  The investigating officer recognized the
handwriting on the evidence bag as Trooper McLaughlin’s, and testified that it
was “fair to say” that Trooper McLaughlin was the one who packaged the
evidence. 
¶  6.          
Upon receipt of the
evidence bag, the investigating officer immediately opened it and photographed
and inventoried the contents.  He testified that the evidence bag contained a
white envelope, sealed with clear plastic tape, which contained the pills and a
piece of plastic.  The photograph, which was admitted into evidence,
shows that there were fourteen white pills and one broken orange pill.  The
photograph and the investigating officer’s testimony reveal that the envelope
that was in the evidence bag had the return address of the correctional
facility printed on it and the phrase “Pills Taken 1/10/05” written on it, but
that defendant’s name was nowhere on the envelope.  After completing the
inventory and the associated paperwork, the officer put the envelope, pills and
plastic back into the evidence bag, sealed and labeled it with the case number,
and put it in the State Police Barracks evidence room.  He also filled out a
Request for Laboratory Examination form, referred to as a 305 Form, for
examination of the drug evidence.   He testified that the 305 Form also serves
as a tracking form, a detailed documentation of the item or items sent to the
lab for examination, and as a brief case history as well as a chain of custody
report.  



¶  7.          
The next day, the
senior trooper transported the evidence to the Vermont Forensic Laboratory.  The
305 Form indicates that “DJ” at the evidence lab received the evidence bag from
him, and on the same day placed the evidence bag in the forensic lab’s evidence
room.  A forensic chemist at the laboratory testified that when she retrieved
the evidence bag from the evidence room and opened it to perform testing, the
305 Form’s description of what was in the evidence bag was consistent with what
she found in the evidence bag.  She also testified that it is standard
procedure to check the seal on the evidence when she retrieves it for testing,
and that she does it every time.  The forensic chemist was able to identify
some of the pills as two types of methadone and another as oxycodone.  Through
chemical analysis, she was able to establish that the broken pill was morphine.

¶  8.          
A jury trial was held
in September 2005.  At the close of the State’s evidence, defendant moved to
suppress the drug evidence and also moved for a judgment of acquittal.  Both
motions were denied.  The jury found defendant guilty of transporting a
regulated drug into a place of detention and possessing a narcotic drug. 
Defendant appeals. 
¶  9.          
On appeal from denial
of a motion to suppress, we review the trial court’s legal conclusions de
novo.  State v. Coburn, 2006 VT 31, ¶ 8, 179 Vt. 448, 898 A.2d 128.  At
the close of the State’s evidence, defendant moved to exclude all evidence of
the pills and their analysis, claiming that there are two major breaks in the
chain of custody that make testimony about the pills inadmissible.  Defendant
asserts that without the testimony of  Trooper McLaughlin—the officer that took
the evidence from the corrections officials and placed it in an evidence
bag—the chain of custody of the pills cannot be established.  Second, defendant
asserts that the lack of testimony from the person at the Vermont Forensics Lab
who initially received the evidence bag from the investigating officer is another
break in the chain of custody that makes the evidence inadmissable.  Defendant
contends that without the testimony of these two people we cannot be certain
that the pills tested at the lab were the ones taken from defendant.  



¶  10.       “Generally, chain of custody is
established if a sample is sealed and labeled upon collection and received by
the technician performing the test in that condition.”  Dep’t of Soc.
Welfare v. Miller, 157 Vt. 92, 96, 595 A.2d 288, 290 (1991); see also State
v. Comstock, 145 Vt. 503, 506-07, 494 A.2d 135, 137 (1985) (holding that a
chain of custody is sufficient where the evidence arrived at the lab through
the mail in the same condition as when the officer prepared it, with seal
intact, and where there was “no evidence of tampering with, change in, or
confusion of the sample during the mailing”).  “The identity of a specimen used
in drug testing need not be proved beyond all possibility of doubt to be
admissible.”  King v. Gorczyk, 2003 VT 34, ¶ 9, 175 Vt. 220, 825 A.2d
16.  If the circumstances establish “reasonable assurance of the identity of
the sample” tested, then the chain of custody is sufficient to allow admission
of the sample.  Miller, 157 Vt. at  94, 595 A.2d at 290.  “The chain
need not be perfectly established.”  State v. Stevens, 137 Vt. 473, 477, 408 A.2d 622, 625 (1979).



¶  11.       Here, the trial court correctly held that
the chain was sufficiently reliable and established.  The gap in the chain of
custody in this case is similar to the situation presented in State v.
Stevens.  In Stevens, there was no evidence as to who possessed the
sample from the time that it was removed from a police refrigerator until it
was received by the lab technician for testing.  137 Vt. at 477, 408 A.2d at
625-26.  We held that because the sample was received by the lab technician in
the same condition in which the collecting officer had left it, the gap did not
make the sample inadmissible.  Id.  In this case, the correctional
facility supervisor testified that he sealed the evidence in an envelope and
placed it in the facility safe.  The investigating officer testified that he
detected no tampering with the evidence bag, and that the envelope contained
therein was sealed.  He also testified that once he completed his inventory of
the evidence, he put it back in the evidence bag and sealed it.  The forensic
chemist testified extensively about the log-in procedure utilized at the
forensic laboratory and clearly stated that the 305 Form detailing the contents
of the evidence bag accurately described what she found in the bag.  We agree
with the trial court that the evidence gives reasonable assurance as to the
identity of the pills, and thus the pills and the related testimony were
admissible.
¶  12.       Defendant next claims that the trial
court erred in denying her motion for acquittal.  She argues that the State
failed to prove beyond a reasonable doubt one element in each of the statutes
under which she was charged.  The first statute, 18 V.S.A. § 4249(a), reads: “No
person shall knowingly carry or introduce or cause to be carried or introduced
into a . . . correctional facility: . . . (3) a regulated drug,
other than marijuana . . . except upon the prescription or direction of a
practitioner.”  The second statute, 18 V.S.A. § 4234(a)(1), reads: “A person
knowingly and unlawfully possessing a . . . narcotic drug . . . shall be
imprisoned not more than one year or fined not more than $2,000.00, or both.” 
Defendant argues that the state failed to prove beyond a reasonable doubt
that the drugs in her possession did not result from a prescription or
direction of a practitioner or that defendant’s possession of the drugs was
unlawful.



¶  13.       “We will affirm a trial court’s denial of
a motion for acquittal where, viewing the evidence in the light most favorable
to the State, there is sufficient evidence to convince a reasonable trier of
fact that all the elements of the crime have been proven beyond a reasonable
doubt.”  Coburn, 2006 VT 31, ¶ 14; see also V.R.Cr.P. 29.  “In reviewing
a denial of a Rule 29 motion, this Court must determine whether the evidence
presented by the State, taken in the light most favorable to the prosecution
and excluding any modifying evidence, sufficiently and fairly supports a
finding of guilt beyond a reasonable doubt.”  State v. Durenleau, 163 Vt. 8, 10, 652 A.2d 981, 982 (1994).  We assess the strength and quality of the evidence; “evidence
that gives rise to mere suspicion of guilt or leaves guilt uncertain or
dependent upon conjecture is insufficient.”  Id. (citations omitted).  “In
assessing circumstantial evidence, the fact‑finder may draw rational
inferences to determine whether disputed ultimate facts occurred.”  Id. at 12, 652 A.2d at 983.  We make no hard and fast rule as to the sufficiency of
circumstantial evidence in a criminal case.  See State v. Baird,
2006 VT 86, ¶ 13, 180 Vt. 243, 908 A.2d 475.  However, evidentiary gaps
must be filled with more than speculation, and all of the evidence, in sum,
must produce more than a mere suspicion of guilt.  Id.; Durenleau,
163 Vt. at 12-13, 652 A.2d at 983.  Finally, “a judgment of acquittal is proper
only if the prosecution has failed to put forth any evidence to substantiate a
jury verdict.”  State v. Couture, 169 Vt. 222, 226, 734 A.2d 524, 527
(1999).
¶  14.       The prosecution used the same facts to
support the unlawfulness under 18 V.S.A. § 4234(a) and the absence of a
practitioner’s prescription or direction under 18 V.S.A. § 4249, so we analyze
the claims in unison.  Defendant claims that the circumstantial evidence was
insufficient for a reasonable jury to find her guilty as charged.  We disagree.

¶  15.      The medical intake procedure at the
Southeast State Correctional Facility was described for the jury.  The
procedure includes an interview with the facility nurse, who asks the detainee
if she is on any medications.  If the answer is yes, then the nurse
verifies the prescription with the detainee’s doctor, as well as the correctional
facility doctor.  Once verified, the prescription is dispensed by
facility staff during the three daily medication calls.



¶  16.       Due to the discovery of the drugs at
admission, this procedure was detoured.  Testimony established that defendant
did not notify correctional facility staff that she was on medication or that
she was carrying her medication before the strip-search, when the pills were
discovered in defendant’s vagina.  While an individual may carry his or her
possessions in a variety of ways, it was reasonable for the jury to infer that
defendant secreted the pills in this manner because she knew they were
regulated drugs, and she believed she would not be allowed to bring them into
the correctional facility.  Her actions suggest that she did not have a
prescription or the direction of a practitioner, or have legal possession of
the pills.  Second, the jury heard that once the pill-container was discovered,
defendant resisted giving the plastic bag to the correctional facility staff member
and appeared to grind it in her hand.  It could be reasonably inferred that
defendant attempted by this action to destroy the pills to prevent their
identification.  This behavior also suggests that she did not have a
prescription or the direction of a practitioner, and that her possession of the
pills was unlawful.  Third, when asked by the facilities supervisor “what the
story was” behind the pills, defendant did not produce the name of a
prescribing practitioner, a prescription, or a prescription bottle, nor did she
even claim to have a prescription or the direction of a practitioner to take
the pills.  She merely stated that they were her “meds.”  It is a reasonable
inference that she did not do any of these things because she did not have a
prescription or the direction of a practitioner and because her possession of
the pills was unlawful.  Finally, defendant herself identified the pills as
methadone and Percocet—regulated drugs.[1]  A chemical
analysis by the State indicated that the pills were methadone, oxycodone and
morphine—different regulated drugs.  18 V.S.A. § 4201(29). 



¶  17.       There are two types of evidence in every
case from which a jury may find the truth.  Direct evidence—a document or the
testimony of a person  asserting actual and personal knowledge of a particular
fact—leaves no room for inference.  Circumstantial evidence does not directly
prove a fact, but is part of a chain of facts and circumstances that indicate a
defendant’s guilt or innocence.  The law does not require the State to
establish guilt by direct evidence alone.  Baird, 2006 VT 86, ¶ 31.  The
law makes no distinction between the weight given to either direct or
circumstantial evidence, nor is a greater degree of certainty required of
circumstantial evidence than of direct evidence.  See id.  Indeed,
certain types of circumstantial evidence may be more trustworthy than certain
types of direct evidence.  
¶  18.       The evidence of defendant’s actions and
behaviors was sufficient for a reasonable trier of fact to find, beyond a
reasonable doubt, that defendant brought regulated drugs into a correctional
facility, that she did not possess the drugs by prescription or the direction
of a practitioner, and that her possession of the narcotic drugs was unlawful. 
Therefore, the State met its burden of proof on each element and the denial of
the motion for acquittal was appropriate.2



¶  19.       The State’s case against defendant was a
circumstantial one.  It is the nature of such a case that the jury verdict is
both reached and sustainable on the basis of the evidence as a whole. Fundamentally,
the dissent’s evaluation of each piece of circumstantial evidence in a vacuum,
without the benefit of its evidentiary context, is at odds with this principle
and causes the dissent to miss the forest for the trees.  See Baird,
2006 VT 86, ¶ 13 (“When reviewing a case based largely on circumstantial
evidence, the evidence ‘must be considered together, not separately,’ even if
defendant can explain each individual piece of evidence in a way that is
inconsistent with guilt.” (quoting State v. Grega, 168 Vt. 363, 380, 721
A.2d 445, 457 (1998))).  As a consequence and in addition, the dissent makes
two basic errors.  The first is its conclusion that defendant said nothing from
which the jury could properly infer unlawful possession—either because her
statements did not “demonstrate falsity[]” or an intent to “mislead the prison
workers,” infra, ¶ 28, or otherwise.  The second is its conclusion that
therefore the jury relied on so‑called “consciousness-of-guilt evidence”
alone to convict. 
¶  20.       If the jury’s entitlement to infer guilt
from defendant’s explanation for possessing narcotics indeed depends—as the
dissent suggests—on whether her statements demonstrate falsity or an intent to
mislead, when viewed in the light of the surrounding circumstances that threshold
is certainly met here.  Defendant’s monosyllabic explanation for her possession
did not occur in a vacuum.  It was accompanied by an uncouth method of
transportation, a failure to promptly turn over the contraband, and—most
importantly—an attempt to destroy it in order to prevent its identification. 
While a jury may have agreed with the dissent that her answer, “meds,” was
consistent with lawful possession, this jury evidently did not.  And because
defendant’s words were accompanied by evasive and misleading behaviors, even
under the dissent’s logic, it was entitled not to.  But defendant said more
from which the jury could infer unlawful possession.  The jury was entitled to
infer that defendant did not have a prescription for the drugs because she could
not accurately identify them.
¶  21.       The dissent does not argue, nor could it,
that so‑called “consciousness-of-guilt” evidence—which label it
attributes to the balance of the State’s case—is inadmissible.  Rather, it
correctly points out that such evidence is insufficient on its own to support a
verdict.  See, e.g., State v. Unwin, 139 Vt. 186, 193, 424 A.2d 251, 255
(1980) (evidence of flight “is not sufficient by itself to support a conviction”) 
We have already explained why evidence of defendant’s nonverbal behavior need
not support the verdict on its own.  Therefore, even if the dissent
appropriately applies the “consciousness-of-guilt” label to defendant’s actions
in this case, it was appropriate for the jury to also rely on evidence of
defendant’s nonverbal behavior to infer unlawfulness and absence of a
prescription.  



¶  22.       Finally, that the dissent goes to extreme
lengths to characterize defendant’s bizarre actions as consistent with lawful
possession is demonstrated by its absurd conclusion that defendant transported
drugs in her vagina not because her possession was illegal, but because it was “very
likely” that she had heard that “Vermont Department of Corrections was
prohibiting access to methadone in prison for all but a few short-term offenders
and department policy was widely covered in the press.”  Infra, ¶ 34. 
This wide coverage—as reported by the dissent—consists of one newspaper
article.  The dissent's speculation is unpersuasive.
¶  23.       In summary, Vermont law does not require
every person who comes in contact with evidence to testify in order to
establish the chain of custody.  The State presented sufficient evidence to
establish beyond a reasonable doubt that the pills tested by the lab were those
obtained from defendant.  This evidence establishing that the drugs found in
defendant’s vagina were regulated drugs, along with the circumstantial evidence
indicating that defendant did not have a prescription for the same nor was she
in possession of the drugs under the direction of a practitioner was sufficient
for the jury to convict.  We affirm the trial court’s rulings.
Affirmed.
FOR THE COURT:
 
 
 
_______________________________________
Associate Justice
 
¶  24.       DOOLEY, J., dissenting.  The central point of the majority’s
rationale is in its third reason why the motion for acquittal was properly
denied:



Third, when asked by the facilities
supervisor “what the story was” behind the pills, defendant did not produce the
name of the prescribing practitioner, a prescription, or a prescription bottle,
nor did she even claim to have a prescription or the direction of a
practitioner to take the pills.  She merely stated that they were her “meds.” 
It is a reasonable inference that she did not do any of these things because
she did not have a prescription or the direction of a practitioner and because
her possession of the pills was unlawful.
 
Supra, ¶ 16.  This was exactly the rationale of the district
court which relied upon “[d]efendant’s admissions as well as her failure to
avail herself of producing a prescription or availing herself of the procedure
in place in the correctional facility, that it would allow her to have validly
prescribed medication.”  
¶  25.       In other words, defendant can be found
guilty because she failed to prove to the facilities supervisor that she had a
prescription for the pills.  Whatever the strength of the inference the
majority draws, a subject I address below, I believe that it is an inference
fundamentally at odds with the allocation of burdens of proof in a criminal
case.  At its core, the majority’s holding is that defendant can be found
guilty of an essential element of the crimes because she failed to prove her
innocence, relieving the State from its constitutional burden to prove all
elements of its case.  See In re Winship, 397 U.S. 358, 364 (1970) (due
process clause requires the state to prove “every fact necessary to constitute
the crime” beyond a reasonable doubt).  For this primary reason, I dissent from
the affirmance of defendant’s conviction.



¶  26.       Ours is an accusatorial system of
criminal justice including a high burden of proof on the State and an
adversarial process.  Watts v. United States, 338 U.S. 49, 54 (1949).  The burden is on the prosecution to “produce sufficient evidence to
convince the trier of fact of the accused’s guilt . . . without compelling the
accused to assist in this prosecution responsibility.”  1 W. LaFave, J. Israel
& N. King, Criminal Procedure § 1.4(d), at 188 (2d ed. 1999) (describing “cornerstones”
of the criminal justice process).  In short, the prosecution must “shoulder the
entire load.”  Tehan v. United States ex rel Shott, 382 U.S. 406, 415 (1966).  The defendant can “remain inactive and secure, until the prosecution
has taken up its burden and produced evidence and effected persuasion.”  Taylor
v. Kentucky, 436 U.S. 478, 483 n.12 (1978) (quoting 9 J. Wigmore, Evidence
§ 2511, at 407 (3d ed. 1940)).  Shifting the prosecution’s burden to the
defendant is a violation of due process of law.  State v. Cohen, 568 So.
2d 49, 52 (Fla. 1990).
¶  27.       In this case, the State had the burden
for one crime to prove that defendant possessed a narcotic drug “knowingly and unlawfully.” 
18 V.S.A. § 4234(a).  For the other crime, it had the burden to prove that
defendant did not have a “prescription or direction of a practitioner.”3 
  Id. § 4249.   Defendant said nothing from which we could infer
that she possessed the drugs unlawfully.  She was never asked whether she had a
prescription.  When asked the vague question of why she had the pills, she
answered that they were her “meds,” an answer entirely consistent with lawful
possession.  When asked what the pills were, she identified them as methadone
and Percocet, an answer that was correct,4 except that
she did not disclose the one broken pill was morphine.



¶  28.       I  recognize that there are instances
where defendant’s responses to inquiries, although not admissions, establish a
strong enough inference of guilt.  This is not such an instance.  We explained
the distinction in State v. Ovitt, 148 Vt. 398, 402-03, 535 A.2d 1272,
1274 (1987) with respect to statements of alibi.  A “false, fabricated or
fictitious alibi” is evidence of guilt.   Id. at 403, 535 A.2d at 1274. 
On the other hand, simple failure to prove an alibi is not such evidence.  Id. at 402, 535 A.2d at 1274.  We explained in Ovitt:
We agree with defendant that it would
have been error to instruct the jury that failure to prove an alibi constitutes
evidence of guilt.  Such an instruction implies that a defendant has some affirmative
obligation to establish the alibi. . . . An alibi . . . is simply a denial of
the possibility of having committed a crime because of being somewhere else
when it was committed. . . . A jury instruction that a failed attempt to
establish an alibi is evidence of some guilt implies a shifting of the burden
of proof from the State to the defendant, and as such, violates due process. .
. . “[I]t is the burden of the government to prove the complicity of the
defendant, not the burden of the defendant to establish his innocence.”  United States v. Burse, 531 F.2d 1151, 1153 (2d Cir. 1976).
 
Id. (some citations omitted).  Nothing in
defendant’s response demonstrates falsity to mislead the prison workers.  While
defendant’s response was incomplete as to one of fifteen drugs, the variance is
unimportant because defendant admitted all the drugs were narcotics that could
be possessed only with a prescription.
¶  29.       Even if the burden shifting adopted by
the majority were constitutional, it represents a policy choice we have never
adopted and should never adopt.  The choice before us is similar to that before
the United States Court of Appeals for the Second Circuit in United States
v. Jackson, 368 F.3d 59 (2004).  In that case, the prosecution had to prove
that the defendant was a convicted felon and attempted to do so by offering
proof that a person with the same first and last name as the defendant had been
convicted of a felony, arguing that the proof of the criminal record shifted to
the defendant the burden to prove he was not the same person named in the
conviction record.  The court rejected the burden shifting sought by the
prosecution:



[W]e do not rest our holding on a
constitutional ground.  It suffices to say that, at least in this circuit, the
rule proposed by the government has never been recognized, and we see no reason
why it should be.  Putting aside the question whether the courts or Congress or
a state legislature could lawfully establish a presumption that would deem an
essential element of a crime sufficiently proved by some specific evidence, in
the absence of evidence to the contrary, we can see no reason to establish such
a presumption for proof of a prior conviction as an element of the offense. . .
. [A]part from the tensions such a rule would create with the presumption of
innocence, there is no need for such a rule, no logic to support it, and no
precedent in our circuit to justify it.  We decline to create the rule the
government advocates.
 
Id. at 65, 68.  The court found the
presumption unnecessary and of dubious accuracy.
¶  30.       The same reasons expressed by the court
in Jackson apply here.  The corrections intake workers made no serious
attempt to determine the status of the drugs they found.  They did not ask
defendant whether she had a prescription or how she came to possess the drugs. 
They made no independent attempt to determine whether defendant possessed them
lawfully.  On the other hand, the rule that the majority endorses, apart from
its inconsistency with the presumption of innocence, rests on the dubious
assessment that defendant’s failure to volunteer an unrequested explanation for
her possession of the drugs shows she possessed them unlawfully.  Even if the
rule were consistent with defendant’s due process rights, we should not adopt
it.  
¶  31.       I see equal, although different,
difficulties with the other reason the majority gives for finding sufficient
evidence of guilt: that defendant tried to secret the drugs and would not
immediately give them to the prison workers when requested.  The majority’s
logic is that if defendant had a prescription, she would have disclosed the
drugs and requested to keep them in accordance with the medical intake policy. 
There is, however, no evidence that defendant knew of this policy or ever had
an interview with a facility nurse, evidence the State could have easily
provided if it existed.  In the absence of such evidence, there are myriad
reasons why defendant would attempt to hide the drugs, most entirely unrelated
to guilt.



¶  32.       The use of this evidence is based on the
rationale that defendant’s conduct shows consciousness of guilt: “it was
reasonable for the jury to infer that defendant secreted the pills in this
manner because she knew they were regulated drugs, and she believed she would
not be allowed to bring them into the correctional facility.  Her actions
suggest that she did not have a prescription or the direction of a
practitioner, or have legal possession of the pills.” Ante, ¶ 16.  This
consciousness- of-guilt logic is precisely what we employ for evidence of
flight to avoid prosecution, evidence we have said has “little probative value”
and “is not sufficient by itself to support a conviction.”  State v. Unwin,
139 Vt. 186, 193, 424 A.2d 251, 255 (1980); see generally 2 Wigmore, Evidence §
276, at 122 (Chadbourn rev. 1979) (“the fact of an accused’s flight, escape
from custody, resistance to arrest, concealment, assumption of a false name,
and related conduct, are admissible as evidence of consciousness of guilt”);
see also State v. Onorato, 171 Vt. 577, 579, 762 A.2d 858, 859 (2000)
(same as to evidence of a suicide attempt); State v. Giroux, 151 Vt.
361, 366, 561 A.2d 403, 406 (1989) (upholding jury instruction that flight has “very,
very limited probative value” (citation omitted)).  We have emphasized the
ambiguity of the evidence: “there may be multiple reasons to explain the flight
of an innocent person, such as panic, the fear of being apprehended or
confronting the police, and the unwillingness to appear as a witness.”  Onorato,
171 Vt. at 579, 762 A.2d at 859.  We have also noted that it depends upon
multiple inferential steps “from the defendant’s behavior to flight[,] . . .
from flight to consciousness of guilt[,] . . . from consciousness of guilt to
consciousness of guilt concerning the crime charged[,] . . . from consciousness
of guilt concerning the crime charged to actual guilt of the crime charged.”  State
v. Perrillo, 162 Vt. 566, 570, 649 A.2d 1031, 1034 (1994) (quoting United
States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977)).  We have concluded
that “[c]ommon experience does not necessarily support the second and fourth
inferences.”  Id.



¶  33.       Our assessment of the weight of
consciousness-of-guilt evidence is similar to that of other courts around the
country.  Thus, the United States Court of Appeals for the Second Circuit
recently said about false exculpatory statements, another variation of the
consciousness-of-guilt rationale:
Although false exculpatory statements to
law enforcement officials may be circumstantial evidence of consciousness of
guilt and may strengthen inferences supplied by other pieces of evidence, they
do not alone prove guilt. As we [have] explained . . . , falsehoods told by a
defendant in the hope of extricating himself from suspicious circumstances are
insufficient proof on which to convict where other evidence of guilt is weak
and the evidence before the court is as hospitable to an interpretation
consistent with the defendant's innocence as it is to the Government's theory
of guilt.
 
United States v. Glenn, 312 F.3d 58, 69 (2d Cir. 2002)
(citations omitted).



¶  34.       The evidence here has exactly the
deficiencies of the flight evidence.  It is a logical inference that defendant
secreted the pills because she feared that she could not get them into the
correctional facility.  Beyond that first step, the inferences dissolve into
speculation.  Defendant could well have believed that she could not get the
drugs into the correctional center irrespective of whether she had a prescription. 
It is, of course, the nature of a correctional center that many items that are
lawful to possess cannot be possessed in the facility.  Indeed, this belief was
very likely because the Vermont Department of Corrections was prohibiting
access to methadone in prison for all but a few short-term offenders and
department policy was widely covered in the press.   See Bazilchuk, Nine Days
of Hell: If Judges Are Ordering Methadone Treatment, Some Parolees Will End up
in Jail, The Burlington Free Press, July 8, 2001 (“The state does have a
policy: . . . No opiates, not even synthetic opiates such as methadone, in
prison”)5; Vermont Department of
Corrections, Directive: #363.01 (April 9, 2004) (inmates may be allowed access
to methadone, in the sole discretion of the department, but only if
incarcerated for a period that does not exceed thirty days).  Even assuming
defendant herself believed that her behavior was illegal, defendant’s
subjective belief that an act is illegal does not make it so any more than a
defendant’s mistaken belief that her conduct is legal would necessarily excuse
potential wrongdoing. 
¶  35.       In response to this dissent, the majority
attempts to embellish the facts to create a greater inference of guilt.  Thus,
the majority now says that defendant engaged in an “uncouth method of
transportation,” as if an unrefined or boorish method of hiding drugs somehow
adds to the inference of unlawful possession.  The majority says that defendant
attempted to destroy the evidence, apparently by crushing the bag in which the
pills were found, although at best one pill was broken in two and the chemical
makeup of the pills was easy to determine irrespective of their form.
¶  36.       The overall standard for conviction is
that the evidence must “sufficiently and fairly” support a finding of guilt
beyond a reasonable doubt.  State v. Baird, 2006 VT 86, ¶ 13, 180 Vt. 243, 908 A.2d 475.  The evidence in this case does not meet that standard, whether
viewed in isolation or in combination.  It is a combination of
consciousness-of-guilt evidence that is not sufficient to meet the State’s
burden of proof and impermissible inferences drawn from improperly placing the
burden of proof on defendant.  Only the State had the burden to prove that
defendant possessed the drugs unlawfully, and it totally failed to meet that
burden.  If the evidence is sufficient in this case, the unlawful-possession
element has essentially been removed from the crime.



¶  37.       I reiterate that it was a simple matter
in these circumstances for the corrections officers to ask defendant whether
she had a prescription or other direction from a doctor for the drugs she
possessed.  If she asserted that she possessed the drug lawfully, they could
follow up with questions that would enable them to check the accuracy of
defendant’s representations.  It is also a simple matter to inform a person
being admitted to a correctional center of the medical-intake policy with respect
to drugs before the admission occurs.  The failure to take those obvious steps
leaves this Court in a position in which we can affirm a conviction only by
improperly shifting the burden of proof to defendant to explain her actions and
relying on evidence of a type we have found to be inadequate in the past. 
Unlike the majority, I do not believe we can affirm the conviction in these
circumstances.  I would reverse defendant’s convictions.
¶  38.       I am authorized to state that Justice
Johnson joins this dissent.
 
___________________________________
Associate Justice


[1]  The definition of a “regulated drug” 
includes “a narcotic drug.”  18 V.S.A. § 4201(29)(A).  Testimony from the
forensic chemist established that Percocet, morphine, methadone and oxycodone
are all narcotics.  Percocet is a brand name for a blend of oxycodone and
acetominephen produced by the Du Pont Pharmaceutical Company. 


2  The trial court instructed the jury that the State was
required to prove that defendant acted without the prescription or direction of
a practitioner, treating the phrase as an element of the offense which the
State must prove beyond a reasonable doubt.  The State did not object to this
instruction.  The State argues on appeal that even if the circumstantial
evidence was insufficient to convict, this portion of the statute is an
affirmative defense for which defendant, rather than the State, bears the
burden of persuasion.  Given our resolution of defendant’s appeal, we do not
address the State’s argument. 


3  When the court instructed the jury that defendant’s lack
of a prescription was an element of the crime, the State did not object, as the
majority acknowledges.  The State now argues that, even if it did not meet its
burden, the prescription exception was an affirmative defense that the
defendant must prove by a preponderance of the evidence.  Because the State did
not preserve this argument, I do not consider whether, under either statute,
the prescription issue was an affirmative defense.  Fyles v. Schmidt,
141 Vt. 419, 422, 449 A.2d 962, 965 (1982) (issues not fairly raised before the
trial court are not preserved on appeal).


4  Oxycodone is the narcotic drug that is in Percocet, which
is composed of that drug and acetominephen.  See Jane Brody, Many Treatments
Can Ease Chronic Pain, N.Y. Times, Nov. 20,2007, available at http://query.nytimes.com/gst/fullpage.html?res=9907E4DB1F3EF933A
15752C1A961C8B63 (last visited  Dec. 26, 2007).   A State forensic chemist
analyzed the pills and testified at the trial.  She identified the pills by the
narcotic contained within them.  For example, she testified that there were two
different types of methadone pills without identifying how they were
different.  It would be consistent with her testimony to conclude that the
ocxycodone pills were Percocet pills.


5  The
majority chooses to quibble with the description of media coverage of the
methadone policy of the Vermont Department of Corrections as “widespread.”  A
search of three of the major newspapers in the State discloses thirty articles
covering the Department’s methadone policy and the controversy generated by
it.  See, e.g., Tracy Schmaler, Judge Affirms Jail Policy Against Methadone, The
Rutland Herald, Aug. 11, 2001; Jeff Hoffman, Prisoners’ Methadone Policy
Lacking, The Times Argus, Jul. 3, 2001; State Critical of Corrections’
Decision, The Burlington Free Press, Jul. 3, 2001. 
 


