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                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


Grafton
No. 2014-0528


                          THE STATE OF NEW HAMPSHIRE

                                        v.

                              ALBERT J. BOUTIN, III

                            Argued: October 14, 2015
                          Opinion Issued: March 8, 2016

      Joseph A. Foster, attorney general (Jason A. Casey on the brief and
orally), for the State.


      Thomas Barnard, senior assistant appellate defender, of Concord, on the
brief and orally, for the defendant.

       HICKS, J. The defendant, Albert J. Boutin, III, appeals his conviction,
following a jury trial in Superior Court (MacLeod, J.), on one count of
misdemeanor possession of marijuana. See RSA 318-B:2, I (2011). We affirm.

      The jury could have found the following facts. On July 26, 2013, State
Trooper McCarthy and Corporal Magoon of the Woodstock Police Department
went to the defendant’s residence to execute a warrant for his arrest and a
warrant to search the premises for ammunition that the defendant was
required to relinquish pursuant to a domestic violence order. A young girl,
later identified as the defendant’s daughter, answered the door and summoned
the defendant from a back bedroom. The defendant was arrested without
incident, and the police then began to search the residence. McCarthy testified
that “there was an overwhelming odor of marijuana as soon as you walked into
the apartment.” He discovered that the source of the odor was the back
bedroom from which the defendant had previously emerged. Inside the
bedroom, McCarthy found, among other things, a substance that he believed to
be marijuana. McCarthy photographed areas of the room before seizing certain
items, including the suspected marijuana.

      The defendant was charged with, among other things, possession of
marijuana, and was tried before a jury. At trial, the State did not produce the
marijuana seized from the defendant’s apartment, but rather relied upon
photographs and other documentary evidence, and the testimony of the police
and the state laboratory worker who analyzed a sample of the seized
marijuana.

       After the State rested its case, the defendant moved to dismiss the charge
for possession of marijuana, arguing that “the state hasn’t proven a prima facie
case because there is no marijuana . . . in evidence.” The trial court denied the
motion. The defendant again moved to dismiss at the close of his case, and the
trial court again denied the motion. The defendant was convicted of possession
of marijuana and now appeals.

        On appeal, the defendant argues that the trial court erred in: (1) allowing
a laboratory analyst to testify about a substance that was not introduced at
trial; and (2) failing to dismiss the marijuana charge for insufficiency of the
evidence. We first address the defendant’s argument that the trial court
erroneously allowed the State’s analyst to testify about the substance alleged to
be marijuana. He argues that “because the State failed to introduce the
substance alleged to be marijuana into evidence, the evidence was not
sufficient to support a finding that the substance tested by the analyst was the
substance seized from [his] apartment.”

       The State’s analyst, Patrick Keough, a Criminalist II at the state police
forensic laboratory, testified as an expert in the identification and analysis of
controlled drugs. “The admission or exclusion of expert testimony is within the
trial court’s sound discretion.” Laramie v. Stone, 160 N.H. 419, 429 (2010).
“We review the trial court’s decision for an unsustainable exercise of
discretion.” Id.

      “One of the most important prerequisites for the admission of the results
of chemical tests for [drugs] is that the specimen analyzed shall be traced to
the accused.” State v. Reenstierna, 101 N.H. 286, 287 (1958) (challenging
admission of result of blood alcohol test in prosecution for driving under
influence of intoxicating liquor). “The State is required to establish the


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essential links in the chain of evidence relied on to identify the [specimen]
analyzed as being the [evidence] taken from the accused.” Id. at 288.

      Here, McCarthy testified that, after he seized evidence, including the
marijuana, from the defendant’s residence, he assigned each piece of evidence
an identifier consisting of his initials — SAM — and a number. He then filled
out an evidence examination request form, which instructs the laboratory
whether to test or hold certain evidence, and secured the evidence in the
evidence locker at the troop station. The evidence request form, which was
entered as an exhibit, identified evidence sample SAM-3 as “Baggie marijuana,
straw, plastic container, rolling papers, [and] ‘scraper,’” and instructed the
laboratory to test the evidence for marijuana.

      Detective Sergeant Belanger of the state police testified that he
transported the evidence in this case from the evidence locker to the state
laboratory, having it in his possession the entire time. He also testified that he
signed the evidence request form accordingly.

      Keough testified that at the time the evidence was taken into the
laboratory it was assigned a laboratory number, which is used to track
evidence within the laboratory. That number is entered into the laboratory’s
evidence tracking system, and “logged to a particular location in the
laboratory,” which, “[is] a secure vault for the holding of evidence until it’s
analyz[ed].” Keough testified that he retrieved the evidence in this case from
the evidence locker and analyzed it. He testified that he examined the
packaging of SAM-3 and determined that it was properly sealed. He performed
a number of tests and concluded that the vegetative matter inside the
packaging was marijuana. Thereafter, he logged the evidence back into the
main evidence vault.

       The defendant cites our observation that “[g]aps in a chain of custody are
most significant where the contested evidence is fungible, and not readily
distinguishable by a unique feature or other identifying mark.” State v.
Moscillo, 139 N.H. 79, 81 (1994). We noted in Moscillo that “[g]enerally, drug
evidence is fungible.” Id. The defendant contends that distinguishability of the
evidence here was further diminished by McCarthy’s use of his initials to
identify the evidence, a practice the defendant contends McCarthy “likely” used
on drug evidence in other investigations.

      Nevertheless, “gaps in the chain [of custody] affect only the weight to be
accorded proffered evidence,” particularly when “the defendant produces no
evidence of alteration or other foul play.” Id. The defendant contends that,
although this rule might be warranted if the State had introduced the alleged
marijuana or if the substance had, without the fault of the State, been lost or
destroyed prior to trial, it should not apply when the State provides neither the
substance nor “any reasonable explanation for [its] absence.” The defendant


                                        3
suggests no legal basis for this distinction, and we can find none. We conclude
that the State presented sufficient chain of custody evidence to allow its
analyst to testify and, accordingly, we find that the trial court did not
unsustainably exercise its discretion in admitting the analyst’s testimony.

       We now turn to the defendant’s sufficiency of the evidence challenge. “A
challenge to the sufficiency of the evidence raises a claim of legal error;
therefore, our standard of review is de novo.” State v. Collyns, 166 N.H. 514,
517 (2014). “In reviewing a sufficiency of the evidence claim, we view the
evidence presented at trial, and all reasonable inferences drawn therefrom, in
the light most favorable to the State and uphold the jury’s verdict unless no
rational trier of fact could have found guilt beyond a reasonable doubt.” State
v. Graham, 142 N.H. 357, 360 (1997) (citation omitted). “The defendant bears
the burden of demonstrating that the evidence was insufficient to prove guilt.”
Id.

       The defendant argues that without the substance alleged to be marijuana
in evidence at trial, “no reasonable factfinder, even viewing the evidence in the
light most favorable to the State, could have found that the substance was
marijuana.” The State counters that “the defendant’s argument is against the
weight of an overwhelming amount of legal authority holding that substantive
drug charges may be proven beyond a reasonable doubt without admitting the
actual drugs into evidence during trial, or even subjecting the drugs to forensic
analysis.” The State cites, for example, United States v. Agueci, 310 F.2d 817
(2d Cir. 1962), in which the court held, with respect to the federal narcotics
laws:

      [T]he jury must be convinced beyond a reasonable doubt that the
      substance imported[,] sold, concealed, or adulterated was in fact a
      narcotic drug. . . . But it is not necessary that [this element] be
      proved by direct evidence. Just as with any other component of
      the crime, the existence of and dealing with narcotics may be
      proved by circumstantial evidence; there need be no sample placed
      before the jury, nor need there be testimony by qualified chemists
      as long as the evidence furnished ground for inferring that the
      material in question was narcotics.

Agueci, 310 F.2d at 828.

      Among the reasons given for this rule is that “[i]llegal drugs will often be
unavailable for scientific analysis because their nature is to be consumed.”
United States v. Schrock, 855 F.2d 327, 334 (6th Cir. 1988). Thus, “courts
have held that the government may establish the identity of a drug through
cumulative circumstantial evidence.” Id.




                                         4
       The defendant cites this justification as a distinguishing factor between
cases in which “circumstances outside the State’s control — such as the
defendant’s dispossession of the substance prior to its seizure or the complete
consumption of the substance during testing” — and this case, in which, he
alleges, “the prosecution is able to introduce the substance at issue, but simply
chooses not to.” We are not persuaded. In Schrock, upon which the defendant
relies in part, the court noted that the rule is not only justified by “the
limitations that [the] burden [of requiring scientific identification] would place
on prosecutors,” but that it also accords “with general evidentiary principles.”
Id. These principles, as alluded to in Agueci, 310 F.2d at 828, establish that
“[a]though the State must establish guilt beyond a reasonable doubt on all the
essential elements [of the charged offense], it may rely on circumstantial,
rather than direct, evidence.” State v. Noel, 119 N.H. 522, 527 (1979)
(quotation omitted). We see no reason why this rule should not apply to proof
that a substance is a controlled drug. Thus, even if the only evidence the State
produced at trial had been circumstantial, introduction of the actual substance
seized from the defendant’s residence would not have been necessary to prove
the substance was marijuana. See, e.g., United States v. Kelly, 14 F.3d 1169,
1174 (7th Cir. 1994) (“A narcotics violation need not be proved by direct
evidence; there is no need for a sample of the narcotics seized to be placed
before the jury.”).

      Here, however, the State’s evidence was not solely circumstantial. The
State produced direct evidence through Keough that the substance he tested
was marijuana. See Wallace v. State, 215 S.E.2d 703, 705 (Ga. Ct. App. 1975)
(holding that expert’s testimony that powder tested by crime laboratory
“contained cocaine was direct, not circumstantial” evidence); cf. State v. Kelley,
159 N.H. 449, 454 (2009) (noting that “chemical evidence does not constitute
the sole form of direct evidence of [alcohol] impairment”). In addition, as
discussed above, the State presented sufficient chain of custody evidence for a
rational jury to conclude that the substance tested by Keough was the same
substance seized from the defendant’s apartment. Accordingly, we conclude
that there was sufficient evidence for the jury to find the defendant guilty of
possession of marijuana.

                                                  Affirmed.

      DALIANIS, C.J., and CONBOY, LYNN, and BASSETT, JJ., concurred.




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