State v. Young , 462 Md. 159 ( 2018 )

State of Maryland v. Steven Young, No. 2, September Term, 2018, Opinion by Adkins, J.
PRESERVATION FOR APPELLATE REVIEW – MOTION IN LIMINE –
AUTHENTICATION: The Court of Appeals held that, where a party merely references
Maryland Rule 5-803(b)(6), the business records exception to the rule against hearsay, the
party does not preserve an objection to the other party’s ability to authenticate the evidence
if admitted under a different hearsay exception or exemption. Therefore, the State’s
objection to the admissibility of the prescription evidence was not preserved for review.
PRESERVATION FOR APPELLATE REVIEW – MOTION IN LIMINE –
OPORTUNITY FOR OBJECTION – MARYLAND RULES 8-131 AND 4-323:
Maryland Rule 8-131 generally prevents appellate courts from reviewing issues not raised
in the trial court. But when a party has no opportunity to object before a ruling is made,
Maryland Rule 4-323(c) provides that “the absence of an objection at that time does not
constitute waiver of the objection.” Here, the defendant had no opportunity to object to
the trial court’s motion in limine ruling regarding the admissibility of prescription evidence.
Thus, the Court of Appeals held that the trial court’s motion in limine ruling was preserved
for review.
EVIDENCE – EXCLUSION OF EVIDENCE – HEARSAY – NON-HEARSAY
“VERBAL ACTS” – PRESCRIPTIONS – POSSESSION OF CONTROLLED
DANGEROUS SUBSTANCES: Defendants charged with possession of controlled
dangerous substances under Maryland Code (2002, 2012 Repl. Vol), §§ 5-601 and 5-602(2)
of the Criminal Law Article (“CR”) are entitled to offer prescriptions to establish part of
the affirmative defense for possession established by the statute, so long as the prescription
can be authenticated. Admission of the prescription to prove the operative fact of the
prescription’s existence is not hearsay, but a legally operative verbal act. Therefore, the
Court of Appeals held that the prescriptions would have been admissible as non-hearsay if
offered to establish the “prescription” prong of the affirmative defense.
Circuit Court for Baltimore City
Case No.: 114169016
Argued: September 6, 2018
IN THE COURT OF APPEALS
OF MARYLAND
No. 2
September Term, 2018
STATE OF MARYLAND
v.
STEVEN YOUNG
Barbera, C.J.
Greene
*Adkins
McDonald
Watts
Hotten
Getty,
JJ.
Opinion by Adkins, J.
Filed: December 18, 2018
*Adkins, J., now retired, participated in the
hearing and conference of this case while an
active member of this Court; after being recalled
Pursuant to Maryland Uniform Electronic Legal Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document
is authentic.
pursuant to the Md. Constitution, Article IV,
Section 3A, she also participated in the decision
2018-12-18
09:32-05:00 and adoption of this opinion.
Suzanne C. Johnson, Clerk
“The true nature of the hearsay rule is nowhere better illustrated and emphasized
than in those cases which fall outside the scope of its prohibition.” 6 John Henry Wigmore,
Evidence in Trials at Common Law § 1766, at 250 (Chadbourn rev. 1976). Steven Young
was convicted by a jury in the Circuit Court for Baltimore City of possession and
possession with intent to distribute controlled dangerous substances. Before trial, the State
filed a motion to suppress introduction of any supposed prescriptions for controlled
substances, which the Circuit Court granted on hearsay grounds. We consider whether the
alleged prescriptions are barred by the rule against hearsay, or if instead, they are non-
hearsay and admissible as a “verbal act.”
BACKGROUND
In May 2014, Detective Manuel Larbi (“Larbi”) and a team of officers executed a
search warrant for 2580 Marbourne Avenue in Baltimore, Maryland. Larbi observed
Steven Young and another male in front of the house. The officers handcuffed both
individuals and entered the residence. Once inside, the officers observed a third individual,
Angela Grubber, later identified as Young’s wife. After Larbi read Young his rights
pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), Young advised that he had controlled
dangerous substances in the bedroom. Larbi went into the bedroom and found 32 pills of
methadone, 3.5 grams of heroin, seven Xanax pills, and “a digital scale containing a
powder substance.” In the kitchen cabinet, Larbi recovered 342 OxyContin pills, ten gel
caps containing suspected heroin, and $1,498 in cash.
Young was arrested and charged with illegal possession of controlled substances
and possession with intent to distribute controlled substances. Young filed a motion to
suppress evidence of these drugs, asserting that he “attempted to provide [prescriptions] to
police during the incident, and explained that he [had] valid prescriptions for [m]ethadone,
Xanax, and Percocet.” Young also claimed he had “shown that his wife had valid
prescriptions for [m]ethadone, Xanax, and Percocet.” He did not attach copies of the
prescriptions to the motion or otherwise provide specific information about them.
Young’s trial in the Circuit Court began in January 2016. Before jury selection, the
parties met with the trial judge in chambers. No record of the conversation was made.
Upon returning to the courtroom, the prosecutor moved to exclude all evidence that Young
had a prescription for the drugs seized. The court granted this motion in limine, without
providing Young an opportunity to respond:
[PROSECUTOR]: And, Your Honor, the State’s second
motion that we spoke in chambers is the exclusion. State’s
moving a motion in limine to exclude any prescription
evidence as it is, number one, hearsay, and, number two, not
admissible hearsay because it does not fall within the exception
of [Maryland Rule] 803[(b)](6).
Defense is trying to enter into evidence, number one, a
prescription -- an alleged prescription of the defendant and,
number two, a prescription by his wife, Angela Grubber, who
is not going to testify today. These are copies of alleged
prescriptions. They are not certified. The doctor is not present.
There’s no certification or authenticity and it’s excluded under
[Maryland Rule] 803[(b)](6). I do have a case, Bryant v. State,
[129 Md. App. 690 (2000),] by the Court of Special Appeals
where in a murder trial the defense tried to enter in a piece of
paper that was the alleged toxicology report because it was
murder. And the Court said it’s hearsay, number one, even if
the defendant took the stand --
THE COURT: Yeah. I’m familiar with that law because I had
the very same issues several times. Okay. That motion is
granted.
2
Defense counsel did not respond, object, or make a proffer in response. The case proceeded
to trial.1
During its case-in-chief, the State called Detective Larbi, who was accepted as an
expert in the field of narcotics identification and packaging. Larbi testified that, in his
expert opinion, the substances, scale, and currency recovered were for distribution, not
personal use. The detective recalled that during one conversation, “Mr. Young also stated
that he does sell from time to time,” and that aside from four pills that were recovered,
Young took ownership of all the other drugs at the house. Larbi also testified that Young
never claimed to have a prescription for the drugs.
The jury convicted Young of eight counts: possession of heroin, oxycodone,
methadone, and alprazolam; and possession with intent to distribute heroin, oxycodone,
methadone, and alprazolam. After merging the possession charges, the trial judge
sentenced Young to multiple years of imprisonment for the four counts of possession with
intent to distribute.
Young timely appealed to the Court of Special Appeals, which affirmed in part and
reversed in part. See Young v. State, 234 Md. App. 720 (2017). The intermediate appellate
court held that “[v]alid prescriptions provide the basis of a statutory defense to the charges for
possession of and possession with intent to distribute methadone, alprazolam, and oxycodone.
Introducing them for such purpose, when properly authenticated, is not hearsay.” Id. at 736.
1
The Circuit Court for Baltimore City never ruled on Steven Young’s motion to
suppress. The Court of Special Appeals held this issue was not preserved, and Young does
not challenge that holding here.
3
As a result, it reversed each of Young’s convictions, except for his two convictions for
possession of heroin and possession with intent to distribute heroin. See id. at 741.
DISCUSSION
1. Preservation
We first address two preservation issues: (1) Young’s claim that the State failed to
preserve the issue of whether he authenticated the alleged prescriptions; and (2) the State’s
claim that Young failed to preserve his claim that the trial court erred in excluding the
alleged prescriptions.
Young’s Preservation Argument—Authentication
Young argues that the State failed to raise the issue of authentication at trial and
therefore cannot raise that issue on appeal. He maintains that the State’s sole reference to
authentication was in the context of its business records argument. This reference is
insufficient, Young continues, because the prescriptions are not hearsay, and no exception is
needed to properly admit them. Young further asserts that because he could self-authenticate
the prescriptions, neither the physician nor her records custodian need testify.
The State responds that the prosecutor raised the issue of authentication in five
ways. First, the prosecutor argued that there was no “authenticity”—meaning
authentication. Second, by referring to the “alleged prescriptions,” the prosecutor asserted
that they were not genuine. Third, the prosecutor argued that “there’s no certification,”
meaning that the prescriptions were not admissible without a sponsoring witness who could
establish that they were authentic. Fourth, the prosecutor pointed out that “Young’s wife
is not going to testify today” and “the doctor is not present,” meaning that Young was not
4
calling witnesses who could potentially sponsor and authenticate the prescriptions. Finally,
the prosecutor cited Bryant v. State, 129 Md. App. 690 (2000), in which the only issue on
appeal was authentication.
We reject the State’s arguments that it challenged authentication at trial because we
do not ascribe the same meaning to the prosecutor’s statements. Rather, the prosecutor
clearly spelled out her reasons for excluding the prescription evidence, and they all clearly
focused on challenging the prescriptions as inadmissible hearsay. Specifically, the
prosecutor made her motion in limine “to exclude any prescription evidence as it is, number
one, hearsay, and number two, not admissible hearsay because it does not fall within the
exception of [Md. Rule 5-803(b)(6)],” the business records exception. Nor was the
prosecutor’s citation to Bryant v. State supportive, as Bryant involved the question of
whether “the trial court err[ed] in admitting the results of a toxicology report into evidence
as a business record,” and the authentication issue wholly related to the document’s
admission and authentication as a business record. Finally, simply naming absent
witnesses was not sufficient to preserve the State’s objection, because Young could
potentially authenticate the prescriptions through his own testimony. The trial court
granted the motion in limine without giving the defense any chance to proffer or
authenticate the alleged prescriptions.2
2
We have no knowledge of what happened in the off-the-record chambers
discussion between the trial judge and counsel.
5
State’s Waiver Argument—Exclusion of Prescriptions
The State argues that Young failed to preserve his claim that the trial court erred in
excluding the alleged prescriptions. It contends that where a prosecutor has presented two
independently dispositive reasons why the trial court should not take an action, and the
court relies on those reasons, it is incumbent on a defendant to object or demonstrate why
the prosecutor’s arguments are not dispositive.
Young responds that the trial court was on notice of his position based on the crimes
charged and his motion to suppress. Further, he contends that the court’s ruling makes
clear it was aware that he intended to introduce the prescriptions into evidence. As to the
State’s remaining argument, Young asserts that he did not have an opportunity to object to
the ruling—the court granted the motion to exclude before the State finished its argument,
and the court moved to the next motion without giving Young a chance to respond.
Under Maryland Rule 8-131(a), an appellate court will not decide an issue “unless
it plainly appears by the record to have been raised in or decided by the trial court . . . .”
To preserve an issue for appeal, Maryland Rule 4-323(a) requires a party to “object[] to the
admission of evidence . . . at the time the evidence is offered or as soon thereafter as the
grounds for objection become apparent,” or the objection is waived. Maryland Rule 4-
323(c) tempers strict application of this requirement, making clear that a proffer is not the
only way a party may preserve an issue for appeal. The party need only “make[] known to
the court the action that the party desires the court to take or the objection to the action of
the court.” Md. Rule 4-323(c). Moreover, “[i]f a party has no opportunity to object to a
6
ruling or order at the time it is made, the absence of an objection at that time does not
constitute a waiver of the objection.” Id.Based on the record below—Young’s motion to suppress, the prosecutor’s reference
to the discussion in chambers, the prosecutor’s motion in limine, and the judge’s
subsequent ruling—we are satisfied that the judge had sufficient notice of Young’s
intention to introduce the prescriptions into evidence, and that the judge’s ruling excluding
them was intended to be the “final word on the matter . . . .” See Prout v. State, 311 Md.
348, 357 (1988) (applying current Rule 4-323(c)). Additionally, although Young did not
respond or object to the State’s motion in limine, he had “no opportunity” to do so. Md.
Rule 5-323(c). Before the prosecutor finished making her argument, the trial judge cut her
off midsentence and granted her motion. For these reasons, we hold that Young’s objection
to the trial court’s motion in limine ruling is preserved for review.
2. Hearsay
The State also argues that the alleged prescriptions are inadmissible hearsay because
they would be introduced to prove the truth of the matter asserted. The State presents two
iterations of this theory. First, it reasons, the prescriptions go directly to the truth of the
matter asserted. The State construes the word “prescription” in Md. Code (2002, 2012
Repl. Vol), § 5-601 of the Criminal Law Article (“CR”)3 to mean “valid prescription,”
which necessarily means that it was also “from an authorized provider” and that the
3
The parties also contest whether prescriptions are admissible non-hearsay evidence
under Md. Code (2002, 2012 Repl. Vol.), § 5-602 of the Criminal Law Article (“CR”). We
address this issue separately later.
7
provider was “operating in the course of professional practice.” When a doctor writes a
prescription, the State contends, she is essentially asserting that “she has the authority to
issue a prescription to the patient in order to obtain a controlled substance,” or that the
patient is permitted to possess the controlled substance. Second, citing Stoddard v. State,
389 Md. 681 (2005), the State avers that even if the prescriptions do not explicitly state the
information described above, they should still be excluded as hearsay because they are
“implied assertions” inherent in the admission of the prescription.
Young counters that the prescriptions were not offered to prove the truth of the
matter asserted within them. Rather, he says he sought to introduce the prescriptions as
the basis for the statutory defense that he “legally possessed certain of the controlled
substances.” He argues that a prescription is a “legally operative document” and that CR
§ 5-601 “only applies to drugs not obtained by valid prescription and does not require that
the prescription be appropriate for the patient’s medical condition” or that the patient in
fact suffer from a given medical condition. Instead, says Young, legitimacy and
authorization are authentication questions “irrelevant to the hearsay analysis.” For these
reasons, he argues, the trial court erred in ruling that the prescriptions were hearsay.4
A trial court’s ruling on the admissibility of evidence is generally reviewed for abuse
of discretion. See Hopkins v. State, 352 Md. 146, 158 (1998). Yet, appellate review of
whether a statement is hearsay is conducted without deference to the trial court. See
4
Alternatively, even if the prescriptions were hearsay, Young claims that they fall
under the “statements made for the purposes of medical treatment” exception.
8
Bernadyn v. State, 390 Md. 1, 8 (2005) (trial court has no discretion to admit hearsay in
the absence of a provision providing for its admissibility).
Hearsay is a “statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” Md. Rule 5-
801(c). There are two threshold questions when a hearsay objection is raised: “(1) whether
the declaration at issue is a ‘statement,’ and (2) whether it is offered for the truth of the
matter asserted. If the declaration is not a statement, or if it is not offered for the truth of
the matter asserted, it is not hearsay and it will not be excluded under the hearsay rule.”
Stoddard, 389 Md. at 688–89. Maryland Rule 5-801(a) defines a “statement” as “(1) an
oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person
as an assertion.” The parties do not contest that a prescription is an out-of-court
statement—a written assertion. They focus instead on whether the prescriptions are offered
for the truth of the matter asserted.
It is hornbook law that out-of-court statements are generally not admissible to prove
the truth of the matter asserted. Yet, they can be admitted if the statements are “relevant
and proffered not to establish the truth of the matter asserted therein, but simply to establish
that the statement was made[.]” Lunsford v. Bd. of Educ. of Prince George’s Cty., 280 Md.
665, 670 (1977) (citations omitted). This depends on whether the “fact asserted in the out-
of-court statement [must be] sincerely and accurately stated[] in order for the out-of-court
statement to help to prove what it is offered to prove[.]” 6A Lynn McLain, Maryland
Evidence State and Federal § 801:7, at 235 (3d ed. 2013).
9
In most state and federal courts, this hearsay analysis is cabined to intentional
assertions. This is significant because, in other jurisdictions, if the assertion was
unintentional or merely implicit, then it cannot be hearsay. Maryland departs from this
general rule. This departure is best explained by Stoddard v. State, 389 Md. 681 (2005),
the seminal Maryland case on implied assertion. The primary question in Stoddard was
whether out-of-court statements are hearsay when offered to prove the truth of a factual
proposition that was only implicitly—often unintentionally—communicated by the
declarant. See id. at 689.
In Stoddard, the defendant, Erik Stoddard, was convicted of second-degree murder
and child abuse resulting in the death of three-year-old Calen DiRubbo (“Calen”). Id. at
683. Stoddard was the only adult supervising Calen, her older brother, and her cousin,
Jasmine Pritchett (“Jasmine”), for at least part of the time leading up to Calen’s death. Id.
at 684. The central issue involved the testimony of Jasmine’s mother, Jennifer Pritchett.
Id. Over defense counsel’s objection, the court admitted the mother’s testimony that
Jasmine asked her “if [Stoddard] was going to get her.” Id. at 685. The prosecutor offered
this as evidence that Jasmine witnessed Stoddard commit the murder. Id. at 683.
On appeal, Stoddard argued that Jasmine’s utterance was hearsay because it was
both a statement and offered for the truth of the matter asserted. Id. at 687–88. First, the
Court determined that an implied assertion is, in fact, a statement, even though
unintentionally made. To justify this, we compared the Maryland Rules to the Federal
Rules of Evidence. See id. at 693–96. Most courts have adopted the Committee note to
the Federal Rules, which provides that “nothing is an assertion unless intended to be one.”
10
Fed. R. Evid. 801(a). Yet, we have not. Instead, we observed the “Committee note to Md.
Rule 5-801 departs substantially from its federal counterpart. Rather than restricting the
definition of ‘assertion,’ the note does not attempt to define ‘assertion’ . . . .” Stoddard,
389 Md. at 696. From this, we explained, “[i]t is clear that in adopting the Maryland Rule,
this Court did not intend to adopt the federal Advisory Committee’s view that ‘nothing is
an assertion unless intended to be one,’” but rather intended to leave it to the development
of case law. Id. Ultimately, the Court concluded that a verbal or written statement, even
if unintentional, is still a statement under Maryland law.
The Stoddard Court proceeded to evaluate whether Jasmine’s question was offered
for the truth of the matter asserted within it, turning to the wellspring of implied assertion
doctrine, Wright v. Doe d. Tatham (1837) 112 Eng. Rep. 488; 7 Ad. & E. 313. In Wright,
a testator left his estate to his steward, Wright. The testator’s heir at law, Tatham, filed suit
to set aside the will, arguing that the testator was mentally incompetent at the time he made
the will. Id. at 493; 7 Ad. & E. at 324. In response, Wright introduced several letters
addressed to the testator, not for their truth, but so the court could infer from their content
that the writers believed the testator was competent. Id. at 493–94; 7 Ad. & E. at 325.
None of the individuals who wrote the letters testified at trial.
The English court ruled that the letters were hearsay, id. at 500; 7 Ad. & E. at 341,
and we adopted its reasoning. First, the letters could not have been admitted for the truth
of their literal content, because their content was not relevant to the proceeding. The letters
were only valuable inasmuch as the “tone and content impl[ied] a belief in [the testator’s]
competence[.]” Stoddard, 389 Md. at 692. “Thus, as offered, these letters express[ed] the
11
proposition that [the testator] [was] competent[.]” Id. A letter stating as much would
clearly be hearsay. Therefore, the Court concluded that the implied assertion doctrine
excludes such evidence as hearsay “where a declarant’s out-of-court words imply a belief
in the truth of X, . . . [and are] offered to prove that X is true.” Id.Like in Wright, Jasmine’s statement would not have been relevant were it offered
for the literal truth of the question, “Is [Stoddard] going to get me?” Id. at 689. Nor was
Jasmine’s ability to speak the words otherwise relevant. See id. Rather, her question was
only relevant if offered for its implicit meaning: “that, by asking it, Jasmine may have
revealed, by implication, a belief that she had witnessed [Stoddard] assaulting Calen.” Id.Even if a declarant possesses no intent to assert anything, “[i]t ‘is a non sequitur to conclude
from this, as the Advisory Committee [did], that the remaining dangers of perception,
memory, and ambiguity are automatically minimized with this assurance of sincerity.’” Id.
at 699 (citations omitted). The State offered the question to prove the truth of the implied
factual proposition that Jasmine had in fact witnessed Stoddard assaulting Calen. “[W]here
the probative value of words, as offered, depends on the declarant having communicated a
factual proposition, the words constitute an ‘assertion’ of that proposition,” and are offered
for the truth of the matter asserted, or implied. Id. at 703–04. Accordingly, Jasmine’s
unintentional assertion was hearsay and should have been excluded.
12
Since Stoddard, we have consistently resisted an overbroad interpretation of its
holding. In its companion case, authored by the same judge5 and published on the same
date, the Court upheld a trial court’s decision to exclude a medical bill as hearsay, but gave
cautionary advice for future cases. See Bernadyn v. State, 390 Md. 1 (2005). There, a
sheriff’s deputy conducted a valid search of a residence. See id. at 3–4. When the officer
entered, the defendant (“Bernadyn”) was in the living room with a marijuana pipe and
marijuana stems and seeds. Id. at 4. While in the residence, the officer seized a medical
bill addressed to “Michael Bernadyn, Jr., 2024 Morgan Street, Edgewood, Maryland
21040”—the address searched. Id.Over a defense hearsay objection, the trial court allowed the deputy to testify that
he had seized the medical bill from 2024 Morgan Street. Id. Counsel appealed to this
Court. Id. at 7. Although we upheld the judge’s decision to exclude the bill, we found it
significant that the “State did not argue simply that an item bearing Bernadyn’s name was
found in the house and that Bernadyn probably resided at the house.” Id. at 11. Instead,
the State argued that the bill itself was “a piece of evidence that shows who lives there.”
Id. According to the State’s proffered use, the bill was an implied assertion offered for the
truth of the statement that the doctor’s office who sent the bill was asserting that Bernadyn
lived at the address. In highlighting this distinction, the Court curtailed Stoddard’s impact
5
Judge Irma Raker, the author of Stoddard v. State, 389 Md. 681 (2005), and
Bernadyn v. State, 390 Md. 1 (2005), also wrote for the Majority in the current case, sitting
by designation on the Court of Special Appeals.
13
with its seeming approval of an alternate theory favoring admission—offering the
statement as “merely probative circumstantial evidence.”
We continued to limit Stoddard in Garner v. State, 414 Md. 372 (2010). There we
resolved the issue of whether circumstantial evidence probative of a fact that does not rely
on the declarant’s implied assertion can be admissible—picking up directly where
Bernadyn left off. Id. at 374. Garner involved a phone call to the defendant’s number by
someone who asked: “Yo, can I get a 40?,” which referred to $40 worth of cocaine. Id. at
376. An officer answered the phone, heard the unidentified caller make the request, and
then later repeated the statement at trial. Id. at 376–77. Of course, Garner objected—
claiming the testimony was hearsay, and arguing it was an implied assertion and
inadmissible under Stoddard and Bernadyn. Id. at 381.
This Court held that the question, “Yo, can I get a 40?,” was not hearsay, because it
was a verbal act and should have been admitted into evidence. See id. at 388 (“[T]he rule
against hearsay does not operate to exclude evidence of [a] ‘verbal act’ that established a
consequential fact[.]”). As Judge Joseph Murphy pointed out, “neither Stoddard nor
Bernadyn presented the issue of whether the ‘verbal part of an act’” or an out-of-court
statement “that constitutes circumstantial evidence of the declarant’s state of mind” are
subject to exclusion as hearsay. Id. at 381. Accordingly, we characterized the statement
in two different ways. First, we said that it was admissible as a “verbal part of an act”—in
that case, an offer. We explained that “[t]he making of a wager or the purchase of a drug,
legally or illegally, is a form of contract.” Id. at 382 (citing Little v. State, 204 Md. 518,
522–23 (1954)). Therefore, the anonymous caller’s statement had legal significance (i.e.,
14
to prove the existence of a contract), regardless of whether the matter asserted was true.
Alternatively, the Court concluded that the statements were non-hearsay circumstantial
evidence of declarant’s state of mind. Id. at 381–82. Under either rationale, the
“telephoned words of the would-be bettor” were not hearsay.
We rejected the argument that the telephoned statements were an implied assertion,
even though assertions may be implicit within them. “While there may be an ‘implied
assertion’ in almost any question, . . . the only assertion implied in the anonymous caller’s
question was the assertion that the caller had the funds to purchase the drugs . . . .” Id. at
388. We declined to adopt the dissenting view of then-Chief Judge Bell, who would have
interpreted the implied assertion as hearsay—a statement that Garner was selling drugs.
See id. at 414 (Bell, C.J., dissenting). Instead, we reinforced Stoddard’s boundaries.
Garner demonstrates that the Stoddard holding does not foreclose legally operative
verbal acts from being admitted as non-hearsay, even if they contain an implied assertion.
Professor Lynn McClain, in her treatise, Maryland Evidence State and Federal,
summarizes the verbal acts doctrine as follows:
The substantive law gives certain types of out-of-court
statements immediate legal consequences. Such statements are
termed “verbal acts” and are nonhearsay, because they have
relevance even if the declarant was insincere or inaccurate.
Most categories of verbal acts are necessary to the creation of
certain types of claims, charges, and defenses.
McLain, supra, § 801:9, at 240 (footnote omitted) (emphasis in original). See also
Wigmore, supra, § 1770, at 259 (“Where the utterance of specific words is itself a part of
the details of the issue under the substantive law and the pleadings, their utterances may
15
be proved without violation of the hearsay rule, because they are not offered to evidence
the truth of the matter that may be asserted therein.”) (emphasis in original).
Garner is hardly the first Maryland decision to apply the verbal acts doctrine. The
Court of Special Appeals has recognized that verbal acts are non-hearsay when introduced
as an element of a claim or defense. In Banks v. State, 92 Md. App. 422 (1992), the State
sought to introduce testimony from the victim’s mother reporting her son’s statement that
Defendant was, inter alia, “trying to hit him with a sickle” and “was tired of the arguing
[with Defendant] and . . . was just ready to go.” Id. at 430. The State argued that these
statements established the victim’s fear and tendency to avoid conflict, which were relevant
to rebut the Defendant’s battered spouse syndrome defense and establish the State’s murder
and manslaughter charges. Id. The Court recognized that verbal acts are admissible when
they establish the basis of a claim or defense. But in this circumstance, “[n]either fear nor
conflict avoidance . . . [had] any legal significance in establishing the elements of murder
or manslaughter,” nor were they “relevant in rebutting evidence of battered spouse
syndrome or self-defense or hot-blooded provocation.” Id. at 433. Hence, these statements
were not admissible as verbal acts. Id. at 434.
Maryland courts have applied the verbal acts doctrine in various other
circumstances, as well. See, e.g., Hyatt v. Romero, 190 Md. 500, 505 (1948) (lease is
admissible to prove the terms of a tenancy implied by law); Carozza v. Williams, 190 Md.
143, 150 (1948) (“‘Rejection’ of unsatisfactory materials . . . and other statements
accompanying, and relating to, the performance of duties . . . are not hearsay but are verbal
acts . . . .”); Heil v. Zahn, 187 Md. 603, 607–08 (1947) (in suit against the executor of an
16
estate, decedent’s will was admissible because it was “not offered as testimony from the
testator that he did not owe the amount claimed but merely to show the fact that by his will
he made a bequest to the plaintiff-appellant”); Travelers Ins. Co. v. Needle, 171 Md. 517,
518–19 (1937) (although a proof of loss cannot be offered to show the fact or the extent of
the plaintiff’s loss or disability, it is one of the “necessary elements” in an insurance case
that is admissible to show that proofs of loss or proofs of disability or death have been
submitted to the insurer); Catalano v. Bopst, 166 Md. 91, 100–01 (1934) (letter
memorializing terms of contract admissible to establish parties’ intent as to the meaning of
ambiguous word in breach of contract action); Fair v. State, 198 Md. App. 1, 37 (2011)
(“[T]reating the writing on the check as a verbal part of the act of issuing the check, we are
persuaded that the check was merely circumstantial non-assertive crime scene evidence.”).
To review, the State argues that the prescription evidence, had it been admitted,
would have been offered for the truth of the matter explicitly or implicitly asserted by it.
Young believes the evidence could have been offered for a non-hearsay purpose, such as a
verbal act. Given how events unfolded in the trial court, we lack a substantial amount of
relevant information regarding the prescriptions. We do not know what specific
information was included in the supposed prescriptions. Nor do we know the exact purpose
for which they would have been offered. As we discussed, Young was not afforded an
opportunity to object, let alone proffer his means of authentication or an explanation on the
record regarding how he planned to use the prescription evidence. For these reasons, we
need only decide whether the prescriptions could have conceivably been admitted for a
non-hearsay purpose.
17
Young was charged under CR § 5-601(a)(1), which provides that a person may not
“possess or administer to another a controlled dangerous substance, unless obtained
directly or by prescription or order from an authorized provider acting in the course of
professional practice[.]” Thus, the subsection creates a statutory defense for possession,
so long as the substance is obtained: (1) directly or by prescription or order; (2) from an
authorized provider; and (3) from a provider acting in the course of professional practice.
A prescription is a necessary element of the statutory defense under CR § 5-601(a). As
discussed above, evidence offered for the limited purpose of establishing an element of a
claim or defense can be a verbal act, and not hearsay.
Relying in part on legislative history, the State contends that the word
“prescription,” as used in the statute, means “valid prescription.” It points out that CR § 5-
601 was derived from former Art. 27, § 287, which once included reference to “valid”
prescriptions. See Revisor’s Notes; 2002 Md. Laws ch. 26 at 423. The reference to “valid”
prescriptions was ultimately deleted because it was “implicit in the reference to a
‘prescription’ from an authorized provider.” Id. (emphasis added). Therefore, the State
insists, to introduce a prescription is to necessarily assert that the individual suffers from a
condition for which he needs the prescription or that the doctor is authorized to provide it.
We disagree. The Revisor’s Notes only demonstrate that the “authorized provider” prong
of the statutory defense—one of three prongs discussed above—implies validity. But the
prescription would not necessarily have been introduced to satisfy this element of the
defense. We explain.
18
The Garner rationale is instructive. If the “making of a wager or purchase of a
drug, legally or illegally, is a form of contract,” and admissible non-hearsay, Garner, 414
Md. at 382 (emphasis added), so too is a paper entitling an individual to legally purchase
the drugs. The prescriptions could be admitted as a verbal act demonstrating something,
similar to a contract or lease, that is “necessary to the creation of certain types of claims,
charges, and defenses,” McLain, supra, § 801:9, at 240, not the truth of the matter asserted.
We have recognized that many statements can have both hearsay and non-hearsay
uses. We conclude that introducing the alleged prescriptions to establish a statutory
defense is a verbal act because the statute creates legal rights, and the fact of prescription
is relevant regardless of whether its particular components are “true.” Cf. United States v.
Davis, 596 F.3d 852, 857 (D.C. Cir. 2010) (“It would make no sense to ask whether the
money order was true. [The money order] [‘]is, by its nature, neither true nor false and
thus cannot be offered for its truth.’” (internal citation omitted)). But this does not mean
that Young has successfully or convincingly established his affirmative defense. The
ultimate question of whether the prescription is from an authorized provider acting in the
course of professional practice remains a question of fact for the jury to resolve. But
offering a prescription to prove the operative fact of the prescription’s existence would not
19
have been hearsay.6 And that is all we must decide regarding the possession charges.7
Because the trial court erred in granting the motion in limine, we shall affirm the Court of
Special Appeals and remand for a new trial on the specified possession charges, as we
explain infra.
But the State perseveres, pointing out that Young was also charged under CR § 5-
602 for possession with intent to distribute. It explains that, while CR § 5-601 specifically
applies only to drugs not obtained by prescription, CR § 5-602 contains no such enumerated
limitation. This section provides that, “except as otherwise provided” in Title 5, “a person
may not (1) distribute or dispense a controlled dangerous substance; or (2) possess a
6
Other jurisdictions have also held that prescription evidence does not violate the
rule against hearsay. See United States v. Perholtz, 842 F.2d 343, 357 (D.C. Cir. 1988)
(“[I]n this case, the government did not intend to show that any particular item contained
in the script was true. To the contrary, the purpose was to show that the information in the
document was false; to wit, that Dillon knew little about the services supposedly rendered
pursuant to various agreements he had made.”); United States v. Bruner, 657 F.2d 1278,
1284 (D.C. Cir. 1981) (footnote omitted) (“In our view, the prescriptions were not admitted
to prove the truth of the assertions they contained, and are, therefore, not hearsay. They
were not offered to prove Dr. Bashien’s or any of his patients’ addresses. Nor were they
offered to prove the doctor believed that the patient needed the drug prescribed, which is
an assertion probably intended by the doctor when he wrote the prescriptions. They were
offered in evidence to show they were used to obtain drugs.”); Franks v. State, 724 S.W.2d
918, 919 (Tex. Ct. App. 1987) (“Appellant correctly asserts that since the prescriptions
were offered in order to show their existence and not to prove the truth of any matters
asserted therein, the admission of the prescriptions would not violate the hearsay rule.”).
We view these cases as instructive, although we note that the Franks court did not articulate
the non-hearsay purpose for which the prescriptions could be offered; and the D.C. Circuit
follows the majority rule that nothing is an assertion unless it is intended to be one, see
United States v. Long, 905 F.2d 1572, 1579–80 (D.C. Cir. 1990).
7
Young also argues that, even if the prescriptions were hearsay, they would still be
admissible under the “statements made for the purposes of medical treatment” exception.
Because we hold that it was possible for Young to introduce the prescriptions for a non-
hearsay purpose, we need not reach this argument.
20
controlled dangerous substance in sufficient quantity reasonably to indicate under all
circumstances an intent to distribute or dispense a controlled dangerous substance.”
The State characterizes the argument to admit the alleged prescriptions under § 5-
602 as even weaker than the argument to admit them under § 5-601, because prescriptions
are not mentioned in § 5-602. Instead, it asserts the prescriptions are “at most” a “factor”
in the possession with intent to distribute analysis—along with several other factors. In
other words, says the State, the mere fact of having a prescription does not mean that the
individual is not also illegally distributing the drug, even if legally possessed.
Like the Court of Special Appeals, we can quickly dispatch with this argument.
Young was charged with possession with intent to distribute, under § 5-602(2), not with
distributing and dispensing a controlled substance, under § 5-602(1). Under § 5-602(2),
an individual may not “possess a controlled dangerous substance in sufficient quantity” to
indicate an intent to distribute. We interpret § 5-602’s prefatory language—“Except as
otherwise provided in [Title 5]”—to incorporate the possession defense of § 5-601(a)(1),
which is also in the Criminal Law Article, Title 5. Thus, the same statutory defense
available for possession charges under § 5-601 is available for possession with intent
charges under § 5-602(2), and a prescription is admissible to establish the fact of its own
existence as an element of that statutory defense.
Finally, we note that when evidence is offered for a limited purpose, such as a
legally operative verbal act or circumstantial non-assertive evidence, a limiting instruction
is likely appropriate. “If the proponent of a statement claims to offer the evidence for a
purpose other than its truth, but also offers the statement to prove the truth of a matter
21
asserted therein, the court should either exclude the evidence or make clear that the
evidence is admitted for a limited purpose.” Bernadyn, 390 Md. at 15. Thus, depending
on the reason proffered to admit the prescriptions, a limiting instruction is likely advisable.
3. Authentication—Guidance for Remand
Young was never given the opportunity to authenticate the alleged prescriptions
because the trial judge—treating the prescriptions as hearsay—granted the State’s motion
in limine. This was error. The question then becomes what is the proper remedy in this
case? During the off-the-record conference in chambers, defense counsel may have told
the trial judge how he intended to introduce the prescriptions. Counsel may have further
explained how he intended to prove that the prescriptions were from an authorized provider
or that the provider was acting in the course of professional practice. Or maybe he said
nothing at all. Absent a record of this conversation, however, we are unwilling to assume
that Young admitted that he did not have any method to authenticate the prescriptions. He
should have been given an opportunity to proffer his authentication method. For this
reason, we affirm the Court of Special Appeals and remand the case for a new trial on the
charges for which Young alleged he had a prescription.
Although the State failed to preserve the issue of authentication, it will surely do so
on remand. For guidance, we offer the following. “The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims.” Md. Rule 5-
901(a). Testimony from the prescribing doctor is one way to authenticate (or rebut) an
alleged prescription, but we wish to make clear that it is not the only way. As we explained
22
in Sublet v. State, “[t]he most straightforward approach to authenticating a writing is to ask
an individual with personal knowledge about the document whether the matter was what it
purported to be.” 442 Md. 632, 658 (2015) (citing Matthews v. J.B. Colt Co., 145 Md. 667,
672 (1924) (testimony of witness that he saw defendant sign contract was sufficient to
warrant its admission)). There are potentially various people with “personal knowledge”
about the prescription, depending on the specific reason it is introduced. “Familiarity with
the purported author’s signature also has been a basis for authentication, provided that such
familiarity was proven prior to authentication.” Id. (citing Smith v. Walton, 8 Gill 77, 77
(Md. 1849) (“A witness who has seen a party write, or who has corresponded with him, is
qualified to speak with respect to the genuineness of his signature.”)).
“In other circumstances, comparison to a known exemplar may be accomplished
through expert testimony or within the confines of the jury room.” Id. at 658–59 (citing
Hoover v. Hoover, 187 Md. 646, 650 (1947) (“A bank official, whose business it was to
know handwriting, testified as an expert that in his opinion the writing on the disputed note,
and the admitted writing of [the alleged author] on the autographed note, were the same.”);
Haile v. Dinnis, 184 Md. 144, 153–54 (1944) (jury permitted to compare records against
previously admitted exemplars to determine if they were authentic)). “In the absence of
known exemplars, authentication of a writing also could be obtained were the contents or
subject matter of the writing to ‘contain circumstantial evidence indicating the identity of
its author’ by, for example, containing information known only to a chosen few.” Id.(citing 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence §
901.04[3][a] (Joseph M. McLaughlin ed., Matthew Bender 2d ed. 2015)).
23
These are the principles that should guide a court facing a defendant’s proffer of a
prescription as a statutory defense according to CR § 5-601(a). The defendant, in such
instance, must make some prima facie showing that he received the alleged prescriptions
from a physician who prescribed them in the ordinary course of business. It is conceivable
that the defendant could do so via his own testimony. Pertinent testimony from the
prescribing physician or the physician’s custodian of records would obviously suffice.
Absent some valid authentication, the prescriptions are inadmissible on remand.
CONCLUSION
We hold that the issue of whether Young’s alleged prescriptions were properly
authenticated was not raised in or decided by the trial court, and thus it is not preserved for
review. Next, under the facts of this case, the trial judge had sufficient notice that Young
intended to introduce the prescriptions into evidence, and the judge’s ruling was intended
to be the “final word on the matter.” Accordingly, Young had no opportunity to object and
we treat the issue as preserved under Md. Rule 4-323(c). Finally, we hold that evidence of
a valid prescription can fall under the category of “verbal acts”—admissible, not for the
truth of the matter asserted, but as the basis of a statutory defense under CR §§ 5-601(a)
and 602(2).
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED. COSTS
TO BE PAID BY PETITIONER.
24