State v. Mitchell , 130 Idaho 134 ( 1997 )

937 P.2d 960 (1997) 130 Idaho 134

STATE of Idaho, Plaintiff-Respondent,
v.
Marc Aaron MITCHELL, Defendant-Appellant.

No. 22854.

Court of Appeals of Idaho.

May 1, 1997

Gregory A. Jones, Bonner County Public Defender, Priest River, for defendant-appellant.

Alan G. Lance, Attorney General, Catherine O. Derden, Deputy Attorney General, Boise, for plaintiff-respondent. Catherine O. Derden argued.

LANSING, Judge.

The appellant, Marc Aaron Mitchell, challenges the sufficiency of the trial evidence to support a jury verdict finding him guilty of delivery of a controlled substance. The substance delivered during the transaction in question was not recovered by the police and therefore was not identified by chemical analysis. We hold that circumstantial evidence indicating that the delivered substance was methamphetamine was sufficient to support the verdict, and we therefore affirm the judgment of conviction.

FACTS

The circumstances giving rise to Mitchell's arrest were described as follows through testimony presented at trial. Larry Moore, a confidential informant working with the police, received a telephone call from Mitchell in which Mitchell said he had some methamphetamine to sell. Moore made arrangements to meet Mitchell in a parking lot. Before Moore met with Mitchell, Officers Moe and Gow of the Bonner County Sheriff's Department searched Moore and his car, gave Moore $125 for the purchase and attached to him a transmission device, known as a "body wire," so that the officers could listen to the transaction. When Moore and Mitchell met, Moore gave Mitchell $125 for a "teener."^[1] Mitchell indicated that he did not have the product on him but would have to get it from a nearby house where it was being weighed. After waiting for Mitchell for some time, Moore drove into the driveway of the house that Mitchell had entered. Mitchell came out to Moore's car and handed Moore a film canister. Mitchell stated that this was part of the quantity that Mitchell had paid for and that the rest was still being weighed in the house. Moore removed the lid from the canister and observed within it two clear straws containing a tan powder. Moore placed the canister on the front seat of the car and waited in the car for Mitchell to return with the balance of Moore's purchase. Unbeknownst to Moore, Mitchell had apparently observed the body wire on Moore when he delivered the film canister. Mitchell came back from the house with a confederate named Pete Torres, who grabbed Moore by the hair, held a screwdriver to his throat and threatened to kill him. While Torres and Moore were struggling, Moore saw Mitchell reach into the car and pull his hand out in a closed fist. Officers Gow and Moe, who were listening to and observing the transaction from a distance, arrived quickly and saw Mitchell running away. When Moore's car was searched, the film canister was no longer there, and it was never found by the police.

Mitchell was subsequently arrested and charged with delivery of a controlled substance, methamphetamine, I.C. § 37-2732(a)(1)(A). A jury found him guilty of the charge. Mitchell then filed a motion for a judgment of acquittal pursuant to I.C.R. 29(c), asserting that the verdict was not supported by substantial, competent evidence. This motion was denied, and the court entered a judgment of conviction, imposing a unified four-year sentence with a one and one-half-year minimum term of imprisonment.

On appeal, Mitchell renews his argument that there was not legally sufficient evidence to support the finding of guilt. He argues that because the delivered substance was not recovered by the police and tested, the jury could not properly find that it was methamphetamine.

ANALYSIS

Appellate review of the sufficiency of evidence supporting a criminal conviction is limited. A verdict will not be set aside if there is substantial evidence upon which a rational trier of fact could find the essential elements of the crime to have been proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979), rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State v. Filson, 101 Idaho 381, 386, 613 P.2d 938, 943 (1980); State v. Reyes, 121 Idaho 570, 826 P.2d 919 (Ct.App.1992). Evidence is regarded as substantial if a reasonable trier of fact would accept it and rely upon it in determining whether a disputed point of fact has been proved. Ortiz v. Dep't of Health & Welfare, 113 Idaho 682, 683-84, 747 P.2d 91, 92-93 (Ct.App.1987). In deference to the jury's role of assessing the credibility of witnesses, weighing the evidence, and determining the reasonable inferences to be drawn therefrom, in reviewing a guilty verdict the appellate court views the evidence in the light most favorable to the prosecution. State v. Knutson, 121 Idaho 101, 822 P.2d 998 (Ct.App.1991); State v. Decker, 108 Idaho 683, 701 P.2d 303 (Ct.App.1985).

Mitchell's appeal presents the question whether a chemical analysis is essential to the prosecution of a drug offense, or whether circumstantial evidence, standing alone, may be sufficient to prove the identity of the substance. Although this precise issue has apparently not previously been presented to the Idaho appellate courts, it has long been held in this state that the government's burden to prove the elements of an offense may be met with wholly circumstantial evidence. State v. Chapple, 98 Idaho 475, 567 P.2d 20 (1977); State v. Ponthier, 92 Idaho 704, 449 P.2d 364 (1969); State v. Simmons, 120 Idaho 672, 679, 818 P.2d 787, 794 (Ct. App.1991).

Mitchell has not brought to our attention any authorities holding that a chemical analysis is necessary for proof of the identity of a controlled substance. Our research, however, reveals that a great many jurisdictions hold that the identity of a controlled substance may be proved by circumstantial evidence. Many of these authorities are surveyed by the Kansas Court of Appeals in State v. Northrup, 16 Kan.App.2d 443, 825 P.2d 174 (1992), where it was observed that the courts of at least six federal circuits and twenty-three states had theretofore concluded that the burden of proving a controlled substance may be met with circumstantial evidence. Id. 825 P.2d at 177. In addition to the jurisdictions identified in Northrup, the state of Wyoming has also subscribed to that view. See Urrutia v. State, 924 P.2d 965 (Wyo.1996). A leading case on this issue, United States v. Dolan, 544 F.2d 1219 (4th Cir.1976), describes some of the circumstances that may contribute to proof that an untested material is a controlled substance:

Such circumstantial proof may include evidence of the physical appearance of the substance involved in the transaction, evidence that the substance produced the expected effects when sampled by someone familiar with the illicit drug, evidence that the substance was used in the same manner as the illicit drug, testimony that a high price was paid in cash for the substance, evidence that transactions involving the substance were carried on with secrecy or deviousness, and evidence that the substance was called by the name of the illegal narcotic by the defendant or others in his presence.

Id. at 1221.

We perceive no reason to differentiate the identity of controlled substances from other elements of criminal offenses with respect to the rule permitting proof through circumstantial evidence. We hold, therefore, that circumstantial evidence may be sufficient to prove the identity of a substance where laboratory analysis is not available.

Our holding does not alter the State's burden of proof; it remains incumbent upon the State to provide evidence that meets the standard of proof beyond a reasonable doubt. Chemical analysis of a substance remains the preferable and the most reliable evidence of its identity, and the sufficiency of less direct evidence must be evaluated on a case-by-case basis.

We turn, therefore, to a review of the evidence presented in this case to assess whether it was adequate to allow a reasonable juror to conclude beyond a reasonable doubt that the substance delivered by Mitchell to Moore was methamphetamine. We conclude that the evidence met this standard. Moore, the confidential informant, testified to his experience with methamphetamine and his experience with Mitchell. He testified that, prior to this purchase, he had purchased and used methamphetamine five or six times. In those prior purchases the methamphetamine usually was packaged in straws or bindles. When a straw was used, the straw was burned at one end, the methamphetamine was put into the straw and the straw was then burned at the other end to seal it. The substance that was delivered to Moore in the film canister was packaged by this method. Moore's testimony about how methamphetamine is commonly packaged was corroborated by Officer Moe, who had been assigned to narcotics cases for two and one-half years. Moore also explained to the jury that methamphetamine may appear as a smooth powder or may look rocky depending on how it has been chopped up.

Moore testified that earlier in the summer of 1995 he had made at least three purchases of methamphetamine from Mitchell, and at least one such purchase had been for a "teener" and had cost him $125. Moore also testified that in his previous purchases from Mitchell, Mitchell had personally brought the methamphetamine to Moore, and it was usually packaged in a straw. Moore said that when he had used methamphetamine previously purchased from Mitchell, its effect on Moore was consistent with the effect of other methamphetamine he had used, although the methamphetamine he had purchased from other sources had "amped" him more. All of the foregoing testimony established that Moore was familiar with methamphetamine.

As to the purchase at issue in this case, Moore testified that Mitchell had initiated the transaction by offering to sell "methamphetamine" to Moore. Moore gave Mitchell $125 for a "teener," the same price that Moore had previously paid for methamphetamine. Officer Moe, who was listening to Mitchell's and Moore's conversation over a transmission device, confirmed Moore's description of the transaction. Moore testified that the film canister given to him by Mitchell contained two clear straws with a tannish colored powder inside that looked like methamphetamine.

After apparently discovering that Moore was wearing a wire, Mitchell reached into Moore's car and then pulled out his hand in a closed fist and ran away. From this evidence, the jury could conclude that Mitchell fled with the film canister and its contents. This conduct by Mitchell allows a further inference that he had indeed delivered methamphetamine to Moore and was anxious to recover and dispose of it when he became aware of Moore's body wire.

Mitchell argues that because the officers who came to Moore's rescue were wearing plain clothes and had weapons, Mitchell may have run off in fear, not knowing they were police officers. However, Mitchell had reached into the car before the police arrived, and the jury could reasonably infer that Mitchell had seen the wire on Moore and feared that the police would soon appear.

Mitchell further points out that Moore's ability to recognize methamphetamine was drawn into question when Moore became confused at trial by an illustrative exhibit made up by the State. The exhibit consisted of pieces of straws that were filled with hot apple cider mix, sealed at both ends by burning, and placed in a film canister to duplicate the appearance of the material delivered to Moore. Moore mistakenly thought that this was the actual canister that had been delivered by Mitchell, and he testified that he recognized it as such. This mistake was brought to the jury's attention. Upon further questioning, however, Moore explained that the illustrative exhibit was consistent in appearance with the items delivered to him by Mitchell. It was up to the jury to weigh the reliability of Moore's testimony.

The entirety of the evidence, when viewed in the light most favorable to the State, is sufficient to support the jury's inference that the substance delivered by Mitchell was methamphetamine.

CONCLUSION

We hold that a chemical analysis, though preferable, is not essential to prove the identity of a controlled substance. We further hold that substantial evidence was presented at Mitchell's trial from which the jury could properly find that the substance he delivered was methamphetamine. Therefore, the district court's order denying Mitchell's motion for a judgment of acquittal is affirmed.

WALTERS, C.J., and PERRY J., concur.

NOTES

[1] Moore testified that a "teener" of methamphetamine is seven "quarters." He said a quarter is a 2.5 weight on a grain scale and would fill up about an inch of a regular drinking straw.