State v. Kirby Davis

: 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 by email at: JUD.Reporter@vermont.gov or by mail at: 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.

2020 VT 20

No. 2018-319

State of Vermont Supreme Court

On Appeal from
v. Superior Court, Windham Unit,
Criminal Division

Kirby Davis October Term, 2019

Michael R. Kainen, J.

David Tartter, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier,
for Defendant-Appellant.

PRESENT: Reiber, C.J., Robinson and Eaton, JJ., and Skoglund, J. (Ret.) and
Howard, Supr. J. (Ret.), Specially Assigned

¶ 1. HOWARD, Supr., J. (Ret.), Specially Assigned. Defendant appeals her

convictions for heroin trafficking and conspiracy to commit heroin trafficking following a jury

trial. She argues that the trial court erred in: (1) denying her motion for judgment of acquittal

because the State failed to prove the weight of the seized drugs; (2) admitting an out-of-court

statement by a deceased co-conspirator; and (3) responding to a question raised by the jury

regarding the elements of the conspiracy charge. We affirm.

¶ 2. Defendant was charged with the crimes above following an October 2014 traffic

stop. The following evidence was presented at trial. The arresting officer testified that he and

another officer approached defendant’s car after the stop. Defendant was driving and another
female, A.G., was in the front passenger seat. The officer observed what appeared to be track

marks on both individuals’ hands. Defendant was extremely nervous. After exiting the car,

defendant told the officer that she had picked A.G. up in Hartford, Connecticut as a taxi fare. A.G.

recounted a different version of events. A.G. said that she had traveled from Newport, Vermont

with defendant and that they had dropped someone off at a bus station in Greenfield,

Massachusetts.

¶ 3. Defendant subsequently consented to a search of her car. The arresting officer

found drug paraphernalia inside the car, including syringes, a shoelace, a spoon, and Q-tips in the

center console. He found plastic wrap on the floor of the car and an empty container of plastic

wrap in the trunk. The officer also discovered a black plastic bag hidden in the trunk. Inside the

bag were two tubular-shaped items wrapped in clear plastic wrap, which the officer suspected

contained heroin. Defendant and A.G. were arrested. During a search incident to arrest, the officer

found 14 individual wax bags of suspected heroin in defendant’s front left pocket.

¶ 4. Photographs of the seized evidence were admitted into evidence. These included

the tubular items, the 91 bundles discovered inside the wrapped material, and individual stamped

wax-paper bags from the bundles.1

¶ 5. A forensic chemist from the Vermont Forensic Laboratory testified to the content

and weight of the seized material. He explained at the outset that there was not enough instrument

or analyst time to test all the materials in large cases such as this one. Instead, the lab followed

guidelines created by the United Nations Office of Drugs and Crime and the European Network

of Forensic Science Institutes for statistical-based sampling; the guidelines rely on “a random

sampling, with a hypergeometric distribution statistical-based sampling.” This practice was

accepted in the scientific community and followed here. The chemist’s photographs of the seized

1
The officer testified that a bundle or “bun” is ten wax paper bags bound by an elastic
band.
2
material were discussed and admitted into evidence. The drugs themselves, inside evidence bags,

were also admitted.

¶ 6. Following the guidelines, the chemist placed all 910 bags in a draw-bag and

randomly chose twenty-eight bags to be tested. He also tested one of the fourteen bags seized

from defendant’s pocket. It took two days to test 28 bags. The chemist estimated that it would

take more than 30 days to test all the bags and it would generate a report of more than 4000 pages.

¶ 7. The chemist weighed the powder inside each randomly selected bag. He described

the various tests he performed that allowed him to conclude that all 28 bags contained heroin. The

guidelines provided a statistically based confidence level based on testing 28 bags in a case

involving 1000 or fewer bags. Relying on this, the chemist concluded with 95 percent confidence

that 90 percent of the remaining bags contained heroin. The chemist explained that in applying

the guidelines he had to ensure that the items were homogenous and similar in style.

¶ 8. The chemist then discussed his report, including the weight of the materials tested.

The heaviest material in the tested bags weighed 41 milligrams and the lightest weighed 15.7

milligrams. The chemist noted that this range was not uncommon. The total weight of the powder

in all 28 bags was 600.7 milligrams. The State then presented additional evidence, which we

discuss below.

¶ 9. Defendant moved for a judgment of acquittal at the close of the State’s case, arguing

that the State failed to prove that she trafficked, or conspired to traffic, the amount of heroin

required by statute. She asserted that there had been no testimony as to the weight of the drugs or

what one could extrapolate the weight to be, and that it was not up to the jury to make those

calculations.

¶ 10. The State responded by citing the chemist’s testimony above. It explained that the

average weight for the tested bags, as reflected in the State’s admitted exhibit, was 21.5 milligrams.

The chemist had concluded with 95% confidence that 90% of the remaining bags contained heroin.

3
The State asserted that it was simple math to calculate the weight of the heroin. Assuming an

average weight of 21 milligrams multiplied by 793 bags resulted in 16,653 milligrams, or more

than 16 grams of heroin, well above the statutory requirement of 3.5 grams for trafficking and at

least 10 grams in the aggregate for the conspiracy charge. The State engaged in a similar

calculation using the lightest bag rather than the average weight, which also exceeded the statutory

requirements. The State maintained that the jury could reasonably infer from the evidence that the

statutory weight threshold was satisfied.

¶ 11. The court agreed with the State and denied defendant’s motion for judgment of

acquittal. It reviewed out-of-state case law and other authority regarding statistically based

sampling and found that a majority of states allowed extrapolation. The court also looked at the

seized drugs. Because the way in which the evidence had been packaged, however, it was unable

to look closely at the majority of the bags to compare them with the random sample. The court

nonetheless concluded that the State had presented sufficient evidence to allow the jury to reach a

conclusion as to weight. It cited the chemist’s testimony that the random sample was statistically

significant enough to project with confidence the content of the remaining bags. The court found

the evidence equally sufficient to assume that the random sample was sufficiently representative

of the remaining bags to allow one to conclude that the remaining bags contained as much heroin

as the lightest bag in the random sample. While it would have been better practice for the State to

have had a witness run through the mathematical calculation, the court found it appropriate to

allow the jury to do the uncomplicated math here.

¶ 12. Following the court’s ruling, defendant presented evidence on her behalf. She did

not renew her motion for judgment of acquittal at the close of the evidence, however, or file a post-

verdict motion for judgment of acquittal. The jury convicted defendant of both counts and this

appeal followed.

4
 I. Motion for Judgment of Acquittal

A. Preservation

¶ 13. Defendant first challenges the court’s denial of her motion for judgment of

acquittal. She acknowledges that she failed to renew her motion either after presenting her case

or post-verdict. Defendant contends that she should not have to comply with these requirements

because her limited evidence did not bear on the argument raised in her motion for judgment of

acquittal. She suggests that this approach is consistent with the plain language of Vermont Rule

of Criminal Procedure 29 and the rule’s “ultimate concern” of allowing a court to consider

additional relevant evidence impacting the earlier request for judgment of acquittal.

¶ 14. We reject defendant’s arguments, which are at odds with our caselaw and with

federal caselaw interpreting the identical federal rule. While not explicitly stated in the rule, we

have long held that a defendant who fails to renew a motion for judgment of acquittal “either at

the close of the evidence or within ten [(now fourteen)] days after the jury ha[s] rendered its

verdict” waives his or her “right to challenge the sufficiency of the evidence.” State v. Noyes,

2015 VT 11, ¶ 41, 198 Vt. 360, 114 A.3d 1156 (citing cases so holding); State v. Faham, 2011 VT

55, ¶ 15, 190 Vt. 524, 21 A.3d 701 (same).

¶ 15. Federal courts impose the same requirements under the identical federal rule. See

Reporter’s Notes, V.R.Cr.P. 29 (noting that V.R.Cr.P. 29 is “identical to Federal Rule [of Criminal

Procedure] 29” with exception (since changed) of 10-day, rather than 14-day, post-verdict filing

deadline). Under the federal rule, a defendant who offers evidence after the denial of his or her

motion for judgment of acquittal at the close of the State’s case thereby waives “the issues raised

by the [earlier filed] motion.” Id.; see also 2A C. Wright, et al., Federal Practice and Procedure

§ 469 (4th ed. 2018) (reciting same rule). Federal cases hold that the failure to renew the motion

either at the close of the evidence or post-verdict “forecloses appellate consideration of all issues

of sufficiency of the evidence.” Reporter’s Notes, V.R.Cr.P. 29 (noting that federal courts

5
nonetheless “frequently review the evidence in the absence of a motion as a matter of discretion

or in application of the plain error doctrine”).

¶ 16. Defendant fails to address (or even acknowledge) the authorities above. She

essentially asks us to overrule our well-established case law and deviate from the approach taken

under the identical federal rule. We decline to do so. Defendant cites no court that has interpreted

Rule 29 in the way she proposes. To the extent that defendant suggests that we have taken such

an approach, we reject that argument. Cf. State v. Discola, 2018 VT 7, ¶ 15, 207 Vt. 216, 184

A.3d 1177 (concluding that defendant, who filed motion for judgment of acquittal at close of

State’s case, was not required to renew motion as he did not present any evidence); State v.

Johnson, 2013 VT 116, ¶ 24, 195 Vt. 498, 90 A.3d 874 (concluding that defendant, who presented

no evidence, complied with rule by moving for judgment of acquittal just after close of all

evidence).

¶ 17. Defendant’s argument would require trial courts to determine if defense evidence

relates to a motion to acquit argument or not, a possibly difficult assessment to make depending

on the amount of evidence and an unnecessary complication avoided by the simple burden of the

timely renewing of a motion to acquit.

¶ 18. The fact that the rule offers various methods of challenging the sufficiency of the

evidence does not mean that its filing requirements can be ignored. To the extent that defendant

argues that her due process rights are implicated by enforcement of filing deadlines, we reject that

argument. See Carlisle v. United States, 517 U.S. 416, 429 (1996) (rejecting as unsupported

defendant’s argument that trial court’s inability to grant his untimely post-verdict motion for

judgment of acquittal violated Fifth Amendment, and “declin[ing] to fashion a new due process

right out of thin air”). Defendant failed to preserve her motion for judgment of acquittal and we

thus review defendant’s sufficiency-of-the-evidence claim only for plain error.

6
 B. Merits

¶ 19. Turning to the merits, defendant argues that the State failed to prove that she

trafficked, or conspired to traffic, the amount of heroin required by statute: 3.5 grams for the heroin

trafficking charge and no less than 10 grams in the aggregate for the conspiracy charge. See 18

V.S.A. § 4233(c). According to defendant, the State relied upon unfounded assumptions in

proving weight. Specifically, she contends that the jury could not reasonably assume that “the

remainder of the untested bags weighed the same” or that “the lightest weighted bag among the 28

bags tested was the lightest weighted bag among the 910 bags admitted at trial.” Given the

evidence, defendant asserts that the court committed plain error by failing to sua sponte move for

a judgment of acquittal.

¶ 20. “As we have repeatedly emphasized, plain error exists only in exceptional

circumstances where a failure to recognize error would result in a miscarriage of justice, or where

there is glaring error so grave and serious that it strikes at the very heart of the defendant’s

constitutional rights.” State v. Erwin, 2011 VT 41, ¶ 15, 189 Vt. 502, 26 A.3d 1 (quotation,

alteration, and emphasis omitted). “We have held that errors in unsettled areas of law are not

obvious, and therefore not plain.” State v. Provost, 2014 VT 86A, ¶ 14, 199 Vt. 568, 133 A.3d

826 (citing cases); see also State v. Gilbert, 2009 VT 7, ¶ 7, 185 Vt. 602, 969 A.2d 125 (mem.)

(finding no plain error where Court had not yet decided issue raised by defendant for first time on

appeal, and thus “defendant [could not] show that any error of law the trial court may have made

was obvious”).

¶ 21. We are also mindful of “the standard applied to claims that the trial court erred by

failing to sua sponte move for acquittal on its own motion under V.R.Cr.P. 29(a).” Erwin, 2011

VT 41, ¶ 17. “[A] court should move for acquittal only when the record reveals that the evidence

is so tenuous that a conviction would be unconscionable.” Id. (quotation omitted). Defendant fails

to satisfy these standards here.

7
 ¶ 22. First, defendant mischaracterizes the record below. She asserts that the State’s case

rested on assumptions that “the court readily and repeatedly recognized” as unsupported by the

evidence. To the contrary, the court specifically found that it would be reasonable for the jury to

conclude from the evidence that the State had established the statutory weight limits. Defendant

apparently refers to the trial court’s observation that because the individual bags of heroin were

“all bunched in one large bag,” it could not “look at the bags, the twenty-nine bags that were

weighed, and make a determination that all the bags in the main sample are at least as heavy or

there’s at least as much in those as there is in the lightest bag.” In the very next sentence, however,

the court found it reasonable to assume, based on the chemist’s testimony, that the random sample

he selected was statistically significant enough to project with confidence both what was in 90%

of the remaining bags and also to rely on the lightest bag from the random sample to calculate the

total weight of the bags in question. It found that the majority of courts allowed proof by

extrapolation. While the court noted that it would be better if the jury could compare the random

sample bags to the rest of the bags, it determined that the jury was not required to engage in an

impermissible assumption here that the remaining bags were at least as heavy as the lightest bag

in the random sample.

¶ 23. This was not plain error, if error at all. “Courts of virtually every jurisdiction which

have considered the issue generally find random sampling of drugs or contraband sufficient to

establish the jurisdictional amount required for conviction in some cases.” M. Osteen, Annotation,

Sufficiency of Random Sampling of Drug or Contraband to Establish Jurisdictional Amount

Required for Conviction, 45 A.L.R. 5th 1, § 2[a] (updated 2019). While there are variations based

on numerous factors, see id., courts have “expressed the view, either directly or indirectly, that the

state may establish the amount of a controlled substance by extrapolation from the weight or

amount of tested material included in a random sample.” Id. § 6[a] (citing cases).

8
 ¶ 24. In Commonwealth v. Crapps, the court considered and rejected an argument similar

to that raised here. 997 N.E.2d 444, 448 (Mass. App. Ct. 2013) (recognizing that Massachusetts

“permits extrapolation processes,” and referencing Massachusetts authorities and other federal and

state jurisdictions allowing similar method of computation). In Crapps, the defendant was

convicted, following a bench trial, of trafficking in 28 to 100 grams of crack cocaine. Police

discovered a white tube sock in the defendant’s car that contained, among other things, a plastic

bag holding 36 individual packets of apparent crack cocaine and another plastic bag containing a

larger chunk of apparent crack cocaine. A chemist testified “to the net weight of the drugs, and to

the process of extrapolated measurement of that weight.” Id. at 446. She randomly selected and

weighed 4 of 36 homogenous packets of crack cocaine. Using Excel, she calculated “an average

weight of the four packets and a standard deviation to produce an aggregate net weight” of all 36

packets. Id. This was added to the undisputed weight of the larger chunk of crack cocaine.

¶ 25. On appeal, the defendant “questioned the validity of extrapolated measurement on

the ground of the allegedly disparate sizes of the packaged crack cocaine units.” Id. at 448. The

court rejected this argument. It noted that the chemist had been subject to cross-examination on

the extrapolation process and it found that a reasonable factfinder could determine that “the thirty-

six packets presented an array of sufficiently proximate sizes to permit the use of an average weight

from a representative sampling.” Id. In addition to the chemist’s testimony, it noted that the

factfinder also had the opportunity to examine the packets and assess their relative sizes “in light

of the defendant’s claim of a disparity rendering extrapolation unreliable.” Id.

¶ 26. While the Crapps court advocated for addressing extrapolation issues before trial

in close cases, it emphasized that the Commonwealth was neither obligated “routinely to employ

sophisticated statistical methods for the presentation of every representative sampling” nor

required “to prove the precise weight of the drugs.” Id. at 449-50. As it explained:

9
 Extrapolation serves valid purposes, including performance of the
Commonwealth’s duty to prepare cases in accordance with the
defendant’s constitutional right to a speedy trial and its duty to
employ finite public resources efficiently, and accomplishment of
the prosecution’s entitlement to scientifically valid methods of
proof.

Id. at 450.

¶ 27. We find the court’s analysis persuasive here, mindful that our review is for plain

error and, further, that we are considering only if “the evidence is so tenuous that a conviction

would be unconscionable.” Erwin, 2011 VT 41, ¶ 17 (quotation omitted). In this case, there was

testimony and admitted photographic evidence showing the homogeneity of the drugs in question,

including photographs depicting the individual bundles discovered inside the plastic wrapping.

The jury also had access to the drugs themselves. The chemist relied on a statistically significant

sample in conducting his tests and he was subject to vigorous cross-examination. Like the Crapps

court, we conclude that a reasonable jury could find that the individual wax packets “presented an

array of sufficiently proximate sizes to permit the use of an average weight from a representative

sampling.” 997 N.E.2d at 448. In fact, the trial court relied on an even lower value here, using

the lightest weight bag from the statistically significant sample as the “average” weight for the

remaining bags. Even with this lower value, the weight of the bags exceeded by several grams the

highest statutory weight requirement. Defendant was not entitled to a judgment of acquittal sua

sponte from the court.2

II. Admission of Co-Conspirator’s Hearsay Statements

¶ 28. We next consider defendant’s assertion that the court committed reversible error in

admitting an out-of-court statement by A.G.’s boyfriend, J.C., under Vermont Rule of Evidence

801(d)(2)(E). That rule identifies as nonhearsay a statement offered against a party that is made

2
We do believe in some such cases it would be appropriate to have the trial court review
challenged issues of extrapolation through pre-trial motions, such as whether the selection of
samples was truly random or sufficient, as the Crapps court advocated. See id. at 448-49.
10
by the party’s co-conspirator “during the course and in furtherance of the conspiracy.” V.R.E.

801(d)(2)(E). The rule further provides that such statements “may only be admitted if the court

finds that the declarant is unavailable and that there is sufficient indicia of reliability to show its

trustworthiness.” V.R.E. 801(d)(2). Defendant argues that the court erred in finding the rule’s

requirements satisfied here. We reject this argument.

A. Trial Court Record

¶ 29. This issue arose as follows. A.G. testified to her use and sale of heroin. She stated

that her boyfriend, J.C., introduced her to the drug. J.C. had since died of a heroin overdose. A.G.

knew defendant from school and from the Newport area. She described defendant as “somebody

I would do drugs with.”

¶ 30. During the time in question, A.G. did not have a car. When the State asked how

the arrangements were made for her to meet up with defendant, A.G. responded that “[J.C.] had

told [her] to meet up with—” and at that point, defense counsel objected. Defendant’s primary

objection was that the testimony would violate her Confrontation Clause rights, an argument the

court rejected. Following voir dire of A.G., the court indicated that the State must present evidence

to support the threshold requirements of Rule 801(d)(2)(E).

¶ 31. A.G. then testified that on the day in question, defendant picked her up at 6:00 a.m.

A.G. fell asleep and woke up in Connecticut. She did not pay defendant for the ride or discuss

doing so. The parties went to a gas station off the interstate. They pulled up to a gas pump and

A.G. went inside to pay with defendant’s money. Defendant entered the passenger side of another

car parked at the gas station. A.G. did not know the driver of the other car. She knew, however,

that defendant had communicated with this person on the drive down, telling the person that they

were almost there.

¶ 32. When A.G. returned to defendant’s car, defendant handed her a “slug,” or drugs to

be packed inside her body. The slug was wrapped in plastic wrap and electrical tape. A.G.

11
identified a picture of the two tubular items as the slugs in question. A.G. tried to make the slug

smaller by wrapping it in more plastic wrap and electrical tape. Ultimately, A.G. and defendant

decided that the slugs were too big to pack and defendant hid the slugs in the trunk. The parties

then shot up heroin in the parking lot and drove back to Vermont. A.G. identified the drug “kit”

found in the car as belonging to defendant and one of the needles and cotton balls as her own.

A.G. did not contribute any money for the slugs. A.G. texted J.C. on the way back to Vermont.

¶ 33. Another voir dire of A.G. then occurred. The State argued that defendant was part

of a conspiracy involving A.G. and J.C. that began in Newport, Vermont. The court agreed and

considered both J.C.’s statement and A.G.’s testimony in reaching its conclusion. Based on A.G.’s

testimony, the court found that A.G. and defendant went to Connecticut by agreement. The plan

was to obtain heroin and pack it on the way back. The purpose of the trip was to commit heroin

trafficking. The court found evidence to contradict defendant’s statement to police that she had

only picked up A.G. in Connecticut as a cab fare. The court also noted that defendant had heroin

on her person. It determined that a reasonable jury could find that defendant’s statements to police

were not truthful and that she was part of a conspiracy. It found sufficient indicia of reliability to

show the trustworthiness of the hearsay statements. The court also cited evidence of phone calls

between A.G. and defendant the night before the trip, which corroborated A.G.’s testimony that

she had a conversation with defendant about being picked up. The court thus concluded that, under

the circumstances, it would allow A.G. to testify to the statement made by J.C.

¶ 34. A.G. then testified that she had a conversation with J.C. the day before her trip with

defendant. The conversation involved the arrangements for the following day. A.G. stated that

J.C. told her that defendant was going to pick her up and they would be going to Connecticut to

“pick up stuff.” A.G. understood “stuff” to mean heroin although that term was not used.

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 B. Merits

¶ 35. As indicated above, defendant argues that the court erred in finding the

requirements of Rule 801(d)(2)(E) satisfied. She relies on Glasser v. United States, 315 U.S. 60,

75 (1942), and asserts that the preliminary requirements of the rule must be established by evidence

independent of J.C.’s hearsay statement. She appears to argue that the court could not consider

A.G.’s testimony in reaching its conclusion and that the evidence was otherwise insufficient to

show a conspiracy.3 As to this latter point, defendant asserts that to be part of a conspiracy for

purposes of Rule 801, she had to be aware of the planned venture and intend to associate with it at

the time that J.C. made his statement to A.G. She maintains that there was no evidence to this

effect.

¶ 36. We review the court’s ruling for abuse of discretion, and we find none. See State

v. Voorheis, 2004 VT 10, ¶ 24, 176 Vt. 265, 844 A.2d 794 (recognizing that “trial court determines

the admissibility of evidence, including preliminary questions of whether statements fall within

exceptions to the hearsay rule,” and Supreme Court reviews decision only for abuse of discretion).

¶ 37. As indicated above, Rule 801(d)(2)(E) treats as nonhearsay a statement offered

against a party that is made “by a co-conspirator of a party during the course and in furtherance of

the conspiracy.” Federal Rule of Evidence 801(d)(2)(E) similarly identifies as nonhearsay a

statement offered against an opposing party that was made by the “party’s coconspirator during

and in furtherance of the conspiracy.” While Vermont case law is not particularly helpful in

3
Defendant does not raise any specific challenge to the court’s determination that J.C.’s
statement exhibited sufficient indicia of reliability. We thus do not address this portion of the rule.
Even if we did, however, we would defer to the trial court’s assessment of the evidence. We note
that F.R.E. 801(d)(2)(E) does not require the court to make a finding regarding reliability. The
U.S. Supreme Court has deemed such a finding unnecessary. See Bourjaily v. U.S., 483 U.S. 171,
183 (1987) (recognizing “that no independent inquiry into reliability is required when the evidence
falls within a firmly rooted hearsay exception” and “co-conspirator exception to the hearsay rule
is firmly enough rooted in our jurisprudence that . . . a court need not independently inquire into
the reliability of such statements” (quotation omitted)).
13
addressing defendant’s arguments, there is ample authority interpreting the analogous federal rule

that squarely refutes defendant’s arguments. We find this authority persuasive here.

¶ 38. We begin with an overview of the rule. As Wright and Miller explain:

Rule 801(d)(2)(E) treats certain statements made by a party’s
“coconspirator” as party statements, and so admissible even if
hearsay, when offered by the opposing party. The rationale for
admission of qualifying statements is the same as that for the
exemptions that come before it in Rule 801(d)(2). Statements are
admitted because “each member of a conspiracy is the agent of each
of the other conspirators whenever he [or she] is acting—including
speaking—to promote the conspiracy.”

30B C. Wright, supra, § 6777.

¶ 39. A “conspiracy” for purposes of Rule 801(d)(2)(E) does not need to satisfy criminal

conspiracy standards but instead contemplates a “joint venture.” Id. § 6778. A party must be “a

willing participant in the enterprise” and “[t]he key is coordinated action.” Id.; see also Voorheis,

2004 VT 10, ¶ 22 (“In the absence of a formal conspiracy charge, the court must find independent

evidence of a concert of action in which the defendant was a participant.”).

¶ 40. Wright and Miller further explain that “the precise membership of the conspiracy

at the time of the statement’s utterance [is not] dispositive” and “[s]tatements can be admitted

under Rule 801(d)(2)(E) even if the party against whom the evidence is offered did not join the

conspiracy until after the statements were made.” 30B C. Wright, supra, § 6779. This disposes of

defendant’s argument regarding the timing of J.C.’s statement to A.G. See id. (“The courts explain

that a party takes the conspiracy as he found it, and invoke the well-established principle that

statements of coconspirators before a defendant joins the conspiracy are nonetheless admissible

against him.”); see also Voorheis, 2004 VT 10, ¶ 26 (“The fact that defendant may not have been

aware of a particular act [his alleged co-conspirator] took in furtherance of the conspiracy does not

exclude it from the conspiracy’s scope.”).

14
 ¶ 41. Defendant is equally mistaken about what evidence the court may consider in

making the necessary preliminary findings under the rule. She erroneously relies on Glasser, 315

U.S. at 75, which predated the enactment of the Federal Rules of Evidence and which has been

superseded. See Boujaily, 483 U.S. at 177-78 (so holding). In Glasser, the Supreme Court held

that declarations of a co-conspirator “are admissible over the objection of an alleged co-

conspirator, who was not present when they were made, only if there is proof aliunde that he is

connected with the conspiracy”; “[o]therwise,” the Court stated, “hearsay would lift itself by its

own bootstraps to the level of competent evidence.” Id. at 177; see also Black’s Law Dictionary

(11th ed. 2019) (defining “aliunde” to mean “[f]rom another source; from elsewhere”). The U.S.

Supreme Court subsequently held that “[t]o the extent that Glasser meant that courts could not

look to the hearsay statements themselves for any purpose, it has clearly been superseded by

[Federal Rule of Evidence] 104(a).” Bourjaily, 483 U.S. at 180-81 (finding “little doubt that a co-

conspirator’s statements could themselves be probative of the existence of a conspiracy and the

participation of both the defendant and the declarant in the conspiracy”); see F.R.E. 104(a)

(providing that “court must decide any preliminary question about whether . . . evidence is

admissible” and “[i]n so deciding, the court is not bound by evidence rules, except those on

privilege”); see also V.R.E. 104(a) (similarly providing that “[p]reliminary questions

concerning . . . the admissibility of evidence shall be determined by the court,” and “[i]n making

a determination under this subdivision, the court is not bound by the rules of evidence except those

with respect to privileges”).

¶ 42. It is true that a court cannot rely only on the hearsay statements at issue in finding

a conspiracy for purposes of the rule. See Voorheis, 2004 VT 10, ¶¶ 22-26 (stating that “[i]n the

absence of a formal conspiracy charge, the court must find independent evidence of a concert of

action in which the defendant was a participant,” and considering, among other evidence,

testimony by co-conspirator). The federal rule states this explicitly. See F.R.E. 801(d)(2)

15
(providing that hearsay statement itself must be considered in determining existence of a

conspiracy, but statement alone cannot “establish . . . the existence of the conspiracy or

participation in it”).4 Instead, there must be “some evidence apart from the proffered statement

itself that demonstrates the existence of the conspiracy and the party’s participation in that

conspiracy.” 30B C. Wright, supra, § 6781. “[T]he evidence the judge considers on the question

need not itself be admissible, and the controlling standard is preponderance of the evidence.” Id.;

see also Bourjaily, 483 U.S. at 176 (“[W]e hold that when the preliminary facts relevant to Rule

801(d)(2)(E) are disputed, the offering party must prove them by a preponderance of the

evidence.”). Defendant cites no authority beyond Glasser for the proposition that a court cannot

rely on the testimony of a co-conspirator in finding a conspiracy for purposes of Rule 801(d)(2)(E).

As indicated, we reject this argument.

¶ 43. The Bourjaily Court identified the type of corroborating evidence that will suffice

to find a conspiracy for purposes of the rule. In that case:

[T]he proffered statements reflected a conspiracy between the
declarant and another person, both of whom would, according to the
statements, be arriving at a certain location to buy drugs. The
existence of this conspiracy was then corroborated by the arrival at
the location at the agreed upon time by two persons, including the
defendant, along with actions that suggested the participation of
both in the subsequent drug transaction. The Supreme Court ruled:
“On these facts, the trial court concluded, in our view correctly, that
the Government had established the existence of a conspiracy and
petitioner’s participation in it.”

30B C. Wright, supra, § 6781 (quoting Bourjaily, 483 U.S. at 181); see also Boujaily, 483 U.S. at

180-81 (where out-of-court statement indicated declarant was involved in conspiracy with

4
This language was added in 1997 “to clarify the mechanics of preliminary determinations
of admissibility” under certain provisions of F.R.E. 801, including Rule 801(d)(2)(E). 30B
C. Wright & A. Miller, Federal Practice and Procedure § 6781. The Bourjaily Court held that trial
courts could rely on the hearsay statements at issue in determining the existence of a conspiracy
under the rule but it did not resolve whether they alone would be sufficient. See id. The rule was
modified to “incorporate[] Bourjaily’s holding,” and “answer[] the unresolved question in the
negative.” Id.
16
defendant to buy and distribute cocaine, Court found statement was corroborated by fact that

defendant “showed up at the prearranged spot at the prearranged time,” he picked up drugs, and

“significant sum of money was found in his car”).

¶ 44. We are faced with a similar situation here. As in Bourjaily, J.C.’s direction to A.G.

about her trip to Connecticut with defendant was corroborated by evidence showing that defendant

did in fact arrive the following morning to pick up A.G. and they traveled together to Connecticut

where they picked up heroin; they understood that they were supposed to pack the heroin and

return it to Vermont. They obtained heroin, which they determined was too big to pack, and

returned to Vermont with it. The court could rely on A.G.’s testimony in finding, by a

preponderance of the evidence, that the rule’s requirements were satisfied. It did not abuse its

discretion in admitting J.C.’s out-of-court statement under Rule 801(d)(2)(E).

III. Response to Jury Question

¶ 45. Finally, we turn to defendant’s challenge to a supplemental jury instruction. During

its deliberations, the jury asked, with respect to the conspiracy-to-traffic-heroin count, if the

statutory knowledge requirement on which they had been instructed extended to the amount of

drugs required by the statute, or if the law required only that defendant knew that she had drugs,

which turned out to weigh a specific amount. Defendant advocated for the former position while

the State argued for the latter. The court agreed with the State that the law required a person to

have knowledge of drugs, which turned out to weigh 10 grams or more. The court thus instructed

the jury that defendant “needed to have knowingly possessed drugs that turned out to be more than

the prohibited amount.”

¶ 46. Defendant now challenges this instruction on appeal. She argues that the State was

required to prove her actual knowledge of the weight of the seized material as an element. Relying

on statutory construction tools discussed in State v. Richland, 2015 VT 126, 200 Vt. 401, 132 A.3d

702, she argues that the word “knowingly” in 18 V.S.A. § 4233 applies to all successive elements

17
of that statute, including the amount of heroin involved. Defendant maintains that the court’s

instruction was not harmless error, and constituted plain error, because there was no evidence to

show she knew the weight of the drugs at issue. She does not cite any cases where a court has

interpreted a state’s drug laws in a similar manner.

¶ 47. Assuming that this argument was preserved, we find no error. In interpreting

§ 4233, we strive to implement the Legislature’s intent. Richland, 2015 VT 126, ¶ 6. Section

4233 is one component of a broader statutory scheme addressing the possession, sale, and

trafficking of regulated drugs. Thus, in interpreting this provision, we must consider the statutory

scheme as a whole. See State v. Blake, 2017 VT 68, ¶ 9, 205 Vt. 265, 174 A.3d 126 (explaining

that Court must determine legislative intent “by analyzing not only [a statute’s] language, but also

its purpose, effects and consequences,” and thus, “laws relating to a particular subject should be

construed together and in harmony if possible” (quotations omitted)). “We will not interpret a

single word or phrase in isolation from the entire statutory scheme. Individual statutes . . . are to

be construed with others in pari materia as parts of one system.” Id. (quotation omitted).

¶ 48. As in other states, the punishment in Vermont for possessing, selling, and

trafficking regulated drugs depends on the amount possessed. See 18 V.S.A. §§ 4231-4235a. For

some drugs, including heroin, that amount is based on weight. See, e.g., id. § 4231 (cocaine),

§ 4232 (LSD), § 4233 (heroin), § 4233a (fentanyl). For depressants, stimulants, or narcotic drugs

other than heroin or cocaine, the amount is measured by a multiple of “a benchmark unlawful

dosage or its equivalent as determined by the Board of Health by rule.” See id. § 4234. For

hallucinogenic drugs other than LSD, the severity of punishment is determined by the number of

doses, defined as “that minimum amount of a hallucinogenic drug, not commonly used for

therapeutic purposes, which causes a substantial hallucinogenic effect,” as established by rules of

the Board of Health. Id. § 4235. The requirement as to the knowing possession of drugs is similar

in all of these provisions.

18
 ¶ 49. The provision at issue here, § 4233(c), specifically provides:

A person knowingly and unlawfully possessing heroin in an
amount consisting of 3.5 grams or more of one or more preparations,
compounds, mixtures, or substances containing heroin with the
intent to sell or dispense the heroin shall be imprisoned not more
than 30 years or fined not more than $1,000,000, or both. There
shall be a permissive inference that a person who possesses heroin
in an amount of 3.5 grams or more of one or more preparations,
compounds, mixtures, or substances containing heroin intends to
sell or dispense the heroin. The amount of possessed heroin under
this subsection to sustain a charge of conspiracy under 13 V.S.A.
§ 1404 shall be no less than 10 grams in the aggregate.

¶ 50. We construe this statute to require that a defendant knowingly and unlawfully

possess heroin that turns out to weigh a particular amount, not that he or she knowingly possess a

particular amount of heroin more than the statutory threshold. This is consistent with the plain

language of the statute and the statutory scheme and it implements legislative intent. We do not

read Richland to compel a contrary conclusion.

¶ 51. In Richland, we construed a statute providing that “[n]o person shall . . . knowingly

enable the consumption of malt or vinous beverages or spiritous liquors by a person under the age

of 21.” 2015 VT 126, ¶ 3 (quoting then-governing language of 7 V.S.A. § 658(a)(2)). The

defendant argued that the State had to prove not only that he knowingly enabled the victim to

consume alcohol, but also that he knew the victim was under 21.

¶ 52. We reviewed this claim of error using statutory construction principles and

concluded that the plain language of the statute required a defendant to “know that the person

enabled to consume alcoholic [beverages] is a minor.” Id. ¶ 6. In reaching our conclusion, we

cited “a well-established rule of statutory construction . . . codified by the American Law Institute”

that a scienter element presumptively applies to all material elements of an offense “unless a

contrary purpose plainly appears.” Id. ¶ 9 (quoting Model Penal Code § 2.02(4)); but see id. ¶ 26

n.7 (Eaton, J., dissenting) (noting that Vermont has not adopted § 2.02 of the Model Penal Code,

and that adoption of this section “would essentially eliminate all strict liability criminal offenses

19
except for those imposing only fines”). While we did not expressly adopt this provision, we found

that “[t]his method of construction align[ed] with our own presumption in favor of requiring an

element of mens rea in criminal statutes,” citing cases for the proposition that “the existence of a

mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal

jurisprudence.” Id. (citing State v. Stanislaw, 153 Vt. 517, 523, 573 A.2d 286, 290 (1990)

(additional citation omitted)). We stated that the U.S. Supreme Court had “adopted a similar

distributive rule in Flores-Figueroa v. United States, 556 U.S. 646 (2009).” Richland, 2015 VT

126, ¶ 10.

¶ 53. Ultimately, we construed the statute at issue to require the State “to prove [the]

defendant’s knowledge that the person he enabled to consume an alcoholic beverage was a minor.”

Id. ¶ 21; see also id. ¶ 11 (applying statutory principles above to conclude “that the term

‘knowingly’ applies to the single unitary act of enabling the consumption of alcohol by a person

under the age of twenty-one”).

¶ 54. In reaching our conclusion, we acknowledged that the rule of statutory construction

on which we relied “was not without its limitations.” Id. ¶ 12. We explained that, “[a]s several of

the above-cited authorities indicate[d], the presumption that mens rea attaches to all elements of a

statute may be rebutted by a showing of clear legislative intent to the contrary.” Id. (emphasis

omitted). While “we [did] not necessarily expect to find an express statement from the Legislature

regarding its intent to impose strict liability under § 658(a)(2),” we “look[ed] to the legislative

history for evidence that the statute’s purpose w[ould] be frustrated if the State [was] required to

prove knowledge of the minor’s age.” Id. We did not find such intent in Richland. Id. ¶ 13.

¶ 55. We reach a different conclusion here. As an initial matter, we agree with the State

that this case does not present the possibility of a strict liability crime, which concerned the Court

in Richland. Section 4233(c) requires, at minimum, that a person knowingly possess heroin. Thus,

unlike Richland, it is not the case here that the rule of statutory construction set forth in Model

20
Penal Code § 2.02(4) “aligns with our own presumption in favor of requiring an element of mens

rea in criminal statutes.” Richland, 2015 VT 126, ¶ 9.

¶ 56. As we recognized in Richland, moreover, any presumption that mens rea attaches

to all elements of a statute is rebuttable. This accords with the U.S. Supreme Court’s holding in

Flores-Figueroa, 556 U.S. at 652, which we cited in Richland. The Flores-Figueroa Court

construed a federal statute and observed that, “[a]s a matter of ordinary English grammar, it seems

natural to read the statute’s word ‘knowingly’ as applying to all the subsequently listed elements

of the crime.” Id. at 650. It further posited that “[t]he manner in which the courts ordinarily

interpret criminal statutes is fully consistent with this ordinary English usage,” stating that “courts

ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word

‘knowingly’ as applying that word to each element.” Id. at 652; but see id. at 658 (Scalia, J.,

concurring) (observing that Court’s assertion as to what “most courts do” might or might not be

true, but rejecting notion that statement should stand “as a normative description of what courts

should ordinarily do when interpreting such statutes”).

¶ 57. Nonetheless, the U.S. Supreme Court acknowledged that the word “knowingly” did

not always modify each element and that the “inquiry into a sentence’s meaning is a contextual

one.” Id. at 651-52; see also id. at 660 (Alito, J., concurring in part) (finding it “fair to begin with

a general presumption that the specified mens rea applies to all the elements of [a criminal] offense,

but it must be recognized that there are instances in which context may well rebut that

presumption”); U.S. v. Washington, 743 F.3d 938, 942 (4th Cir. 2014) (stating that Flores-

Figueroa Court “did not purport to establish a bright-line rule that a specified mens rea always

applies to every element of the offense”); State v. Miles, 805 S.E.2d 204, 208 (S.C. Ct. App. 2017)

(recognizing that U.S. Supreme Court “ordinarily read[s] a ‘statute that introduces the elements of

a crime with the word ‘knowingly’ as applying that word to each element,’ ” “[b]ut the Court has

not gone so far as to hold that a criminal statute that opens with ‘knowingly’ invariably requires

21
each element be proven by that level of intent” (quoting Flores-Figueroa, 556 U.S. at 652)). We

note that in considering how to interpret the statute at issue in Flores-Figueroa, the Court

considered not only legislative history, which it found inconclusive, but also the Government’s

argument that it would be difficult “in many circumstances” to prove “beyond a reasonable doubt

that a defendant has the necessary knowledge.” 556 U.S. at 655. In that case, the Court concluded

that such intent generally would not be difficult to prove. Id. at 656.

¶ 58. We reach a different conclusion here. Viewing the statutory scheme as a whole,

we conclude that any presumption that the word “knowingly” should extend to the amount of drugs

that a person possesses is rebutted by the Legislature’s purpose in enacting the drugs laws and by

common sense and practicality concerns. See Miles, 805 S.E.2d at 210 (“While we can interpret

statutes by bringing in rules of grammar, logic, and other tools, we must be careful not to construe

common sense out.”); Avis Rent A Car Sys., Inc. v. Hertz Corp., 782 F.2d 381, 385 (2d Cir. 1986)

(“Fundamental to any task of interpretation is the principle that text must yield to context.”).

¶ 59. The Legislature could not have intended to require the State to prove beyond a

reasonable doubt that a defendant knew the actual weight or dosage of the drugs that he or she

possessed, to be convicted of various enhanced drug offenses under Title 18. The absurdity of

such an interpretation is illustrated by its application to certain crimes enumerated in Title 18,

which share similar statutory language to the provision at issue here. To be subject to harsher

penalties in cases involving depressants, stimulants, or narcotic drugs other than heroin or cocaine,

for example, under defendant’s theory, the State would have to prove that a defendant knew the

definition of a “benchmark unlawful dosage” as set forth in the Department of Mental Health

regulations and knew how many dosages he or she possessed. See 18 V.S.A. § 4234; see also Vt.

Dep’t of Health, Regulated Drug Rule 3.2,

https://www.healthvermont.gov/sites/default/files/documents/pdf/Regulated%20Drug%20Rule.F

inal%20Adopted.7.15.19.pdf [https://perma.cc/3F3X-LMFZ] (defining “Benchmark Unlawful

22
Dosage” as “the quantity of a drug commonly consumed over a twenty-four-hour period for any

therapeutic purpose, as established by manufacturer of the drug” and stating that definition is not

a “medical or pharmacologic concept” but is instead “a legal concept established only for the

purpose of calculating penalties for improper sale, possession, or dispensing of drugs pursuant to

18 V.S.A. § 4234”); id. Rule 9.2 (identifying benchmark doses for particular drugs). With respect

to hallucinogenic drugs other than LSD, the State would have to prove that a defendant knew the

definition of a “dose” set forth in Board of Health rules. See 18 V.S.A. § 4235. It is difficult to

conceive how such proof could ever be provided. See Miles, 805 S.E.2d at 209 (finding it doubtful

that in enacting drug trafficking laws, Legislature “meant to create a scenario where a defendant

is culpable only if armed with a proficiency in chemistry on par with a pharmacist or Walter

White”5).

¶ 60. The Legislature obviously intended to punish those who possess greater quantities

of regulated drugs more harshly than those who do not; as the State notes, the public is obviously

more seriously harmed when a defendant is in possession of 3.5 or 10 grams of heroin than when

he or she is in possession of less than 200 milligrams—regardless of the defendant’s specific

knowledge as to the particular amount possessed. Defendant’s interpretation of the law would

make prosecutions for the more egregious offenses difficult to impossible. The Legislature could

not have intended for enforcement of its harshest punishments to depend on a defendant’s exposure

to or familiarity with definitions in the Department of Mental Health rules or a defendant’s

expertise in weights and measures. Section 4233 “must be construed in context and in light of the

intended purpose of the statute in a manner which harmonizes with its subject matter and accords

with its general purpose.” Miles, 805 S.E.2d at 208 (quotation omitted) (concluding that statutory

scheme governing drugs presented “special context” and that by using word “knowingly” in drug

5
Walter White is a fictional character with chemistry expertise from the television show
“Breaking Bad.”
23
law, “Legislature did not intend to require the State to prove a defendant knew the specific type of

illegal drug he [or she] was trafficking,” but only that defendant knew he possessed a controlled

substance” (citation omitted)). Defendant’s interpretation would frustrate the Legislature’s

purpose.

¶ 61. It is a reasonable policy not to criminalize an otherwise legal act—providing

alcohol to someone—unless done knowingly to a minor. It is not a reasonable policy to protect a

person committing a crime—illegal possession of heroin—from an enhanced penalty if the amount

is sufficient for trafficking or conspiracy by requiring specific knowledge of the weight.

¶ 62. Other courts have reached similar conclusions. See, e.g., Commonwealth v.

Rodriquez, 614 N.E.2d 649, 652 (Mass. 1993) (rejecting defendant’s unpreserved argument that

she was entitled to jury instruction requiring Commonwealth to prove that she had actual

knowledge that amount of cocaine involved exceeded statutory amount); Grant v. State, 788 So.

2d 815, 818 (Miss. Ct. App. 2001) (holding that “though proof of the quantity of drug is an element

of the offense, it is not necessary to demonstrate that the defendant had actual knowledge that the

amount of drugs possessed met or exceeded any statutorily-designated quantity” and citing cases

from other jurisdictions reaching same conclusion); State v. Taylor, 473 S.E.2d 817, 819 (S.C. Ct.

App. 1996) (finding no error in trial court’s refusal to instruct jury that defendant must have actual

knowledge of amount of drugs at issue to convict her of trafficking).

¶ 63. As the Grant court observed:

To hold otherwise would require the State to go to ridiculous
extremes to prove a defendant’s knowledge and skill in the science
of weights and measures. . . . So long as the State satisfactorily
proves that the defendant had actual knowledge that the substance
in question constituted an illegal drug, the necessary criminal intent
has been established. Proof of the quantity beyond a reasonable
doubt is, of course, also an element of the crime but it is not
necessary to prove that the defendant had a conscious appreciation
of the quantity in order to impose a particular degree of punishment
that is dependent on quantity.

24
788 So.2d at 818.

¶ 64. Given the Legislature’s obvious intent, it is essential that we consider the words it

chose “in their surrounding environment,” particularly given the extensiveness of the statutory

scheme and the fact that it “represents the Legislature’s will in the massive field of drug

interdiction.” Miles, 805 S.E.2d at 209. As expressed by the Miles court, “[g]iven this

background, if ever we are justified in reading a statute, not narrowly as through a keyhole, but in

the broad light of the evils it aimed at and the good it hoped for, it is here.” Id. (quotation and

alteration omitted). We find no error in the trial court’s supplemental instruction to the jury with

respect to the knowledge requirement in § 4233(c).

Affirmed.

FOR THE COURT:

Superior Judge (Ret.), Specially Assigned

25