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Sufficiency vs. Admissibility: Drug I.D. after State v. Osborne

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In August, the North Carolina Supreme Court weighed in on drug identification once again in State v. Osborne, ___ N.C. ___ (August 16, 2019). I wrote about the earlier Court of Appeals decision in the case, here. The new Osborne decision clarifies the application of drug identification rules as well as sufficiency of the evidence in this context.

Osborne and Drug ID recap. The defendant in Osborne was found by officers responding to an overdose call. Once revived, the defendant admitted to officers that she had used heroin. No chemical analysis was presented at trial; the State instead relied on the defendant’s statement, along with officers’ lay identification and field tests of the substance. On appeal, the State argued this evidence was sufficient to support conviction of heroin possession, pointing to a line of decisions that the defendant’s admission that something is a controlled substance, or evidence offered by the defendant to that effect, is sufficient to survive a motion to dismiss despite the lack of a chemical analysis. See State v. Bridges, ___ N.C. App. ___ (Feb 6, 2018) (defendant’s out of court admission that she had meth in her bra sufficient to survive motion to dismiss); State v. Nabors, 365 N.C. 306 (defendant’s evidence at trial identified substance as cocaine and was sufficient); State v. Williams 367 N.C. 64 (2013) (same). These cases created an exception to the rule, established in State v. Ward, 364 N.C. 133 (2010), that the State must generally present a chemical analysis to satisfy its burden of showing that a substance is a controlled substance (which I discussed in a blog about Bridges, here). The Court of Appeals in Osborne distinguished these cases, finding that the defendant’s admission to “use” of a substance was different than admitting its identity, and expressing concern that allowing that statement to suffice for evidence of drug identity would render the Ward rule meaningless. That Court of Appeals reversed the trial court and vacated Osborne’s conviction for insufficiency of the evidence on the drug identification issue, while observing that these issues were unsettled and “may warrant further review . . .” The Supreme Court obliged and reversed the Court of Appeals.

Ward and the Requirement of Chemical Analyses. Ward has often been cited by courts and commenters (including me) for the proposition, stated in Ward, that “unless the State establishes before the trial court that another method of identification is sufficient to establish the identity of the controlled substance beyond a reasonable doubt, some form of scientifically valid chemical analysis is required.” Ward, 346 N.C. at 147. What’s often left off from that quote is the next line: “This holding is limited to North Carolina Rule of Evidence 702.” Id. Did these statements mean that the chemical analysis requirement is a rule of evidence or a rule of sufficiency or both? Adding to the confusion was the Supreme Court’s per curiam reversal in State v. Llamas-Hernandez, 363 N.C. 8 (2009). There, the court reversed for the reasons stated in the dissent from the Court of Appeals, which observed that “expert testimony [is] required to establish that a substance is a controlled substance.” Llamas-Hernandez, 189 N.C. App. at 652 (2008) (Steelman, J., concurring in part, dissenting in part). The language in those cases led many to believe that the lack of chemical analysis usually equates to insufficient evidence, at least where exceptions don’t apply. This is wrong, according to the Supreme Court. Osborne holds that the Ward rule applied to admissibility of evidence, not sufficiency of the evidence. It’s still true that a chemical analysis or other reliable method of drug identification is required under Ward for the evidence to be admissible under Rule 702. But, according to the Supreme Court in its Osborne opinion, Ward did not, and does not, speak to sufficiency of the evidence.

Incompetent Evidence Doesn’t Mean Insufficient Evidence. The question for the trial court on a motion to dismiss for sufficiency is whether the State has presented substantial evidence of the elements of the crime and of the defendant as the perpetrator. The evidence is examined in the light most favorable to the State and may be direct or circumstantial. Most importantly for this discussion, “both competent and incompetent evidence that is favorable to the State must be considered by the trial court in ruling on the defendant’s motion to dismiss.” Osborne, Slip Op. at 12. Put another way, trial courts facing a motion to dismiss for insufficiency based on a lack of chemical analysis must consider all the evidence and deny the motion if there is “any evidence of any kind” of the drug’s identity, including evidence that would not be admissible under Rule 702 if such evidence was admitted at trial. In Osborne, the Supreme Court found there was ample evidence of the drug identity: the defendant admitted using the substance, officers testified to their lay opinions that the substance was heroin, and field-tests showed the substance was heroin. This, the Supreme Court held, was sufficient to send the case to the jury, because there was some substantial (if incompetent) evidence of the substance as heroin. The court assumed without deciding that some of that evidence may have been inadmissible but noted the lack of objection by the defense. Under these circumstances, the reviewing court can still examine if the improperly admitted evidence amounted to plain error, but that’s a more exacting standard of review than when the error is preserved by an objection at trial. [Indeed, the Supreme Court sent Osborne’s case back to the Court of Appeals for a determination of whether the admission of drug identity evidence in the case was plain error.]

Remedies. When evidence is erroneously admitted under Rule 702 and the error is prejudicial, the remedy is a new trial. State v. Craven, 367 N.C. 51 (2013). When evidence is insufficient, the remedy is for the conviction to be vacated. The Supreme Court in Osborne found that earlier cases erred in finding the evidence insufficient and vacating the conviction because of a lack of a chemical analysis (at least where there was some other substantial evidence of drug identity). The Court singled out Llamas-Hernandez as a prime example—there, the defendant should have gotten a new trial, not vacatur of his conviction, and the Osborne court expressly disclaimed that outcome.

Any Evidence Will Do? A question that occurs to me here is just how low the bar is for “any evidence of any kind” to survive a motion to dismiss. Under Osborne, improperly admitted drug identification evidence, such as lay opinion and field tests, will suffice to get the case to the jury. But what if the evidence raises only a conjecture or speculation about the nature of the substance? For example, let’s say the officer’s opinion that the substance “might be heroin” is the only evidence of drug identity before the court. A literal reading of the “any evidence” standard in Osborne indicates that this testimony would suffice to send the case to the jury, but that’s a much different situation than the facts in Osborne. I suspect that such evidence, which only raises a conjecture of drug identity, may still be insufficient to support a conviction and defenders should continue to move to dismiss for insufficiency of the evidence in that situation.

Other Thoughts. To be clear, I don’t read Osborne as overruling the basic rule from Ward that the State must show drug identity by a chemical analysis. The remedy, however, differs depending on whether admissibility or insufficiency is at issue. Osborne makes clear that it is incumbent on defenders to object to improper drug identification evidence such as lay opinions and field tests. Where the defendant fails to object and unreliable evidence comes in identifying the substance at issue as a controlled one, that evidence may well suffice to survive a motion to dismiss. But, there are still some open questions about how the State meets its burden in drug cases without a chemical analysis.

One is, if the defendant in Osborne objected to the field tests and lay opinions and the court sustained them, would the defendant’s admission to use, standing alone, have been enough? Osborne indicates it would, but we don’t have that case yet—in Nabors, Bridges, Williams, and Osborne itself, there was additional evidence of drug identity.

Another is a point I mentioned before in a previous post,  here, about the use of the defendant’s admission. Defenders faced with evidence of an admission by a defendant to the identity of the drug should consider asking the court to instruct the jury on the limited use of the admission. While the defendant’s statement about the drug might be admissible under hearsay rules as an admission of a party-opponent and relevant to show the defendant’s knowledge that what he or she possessed was in fact a controlled substance, using the admission as substantive evidence of drug identity might violate admissibility standards under Rule 702. The Bridges court flagged this issue in a footnote, and that issue—the competency of the defendant’s admission to prove drug identity—remains an open question.

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