Wiggins v. State

• Court: Supreme Court of Delaware
• Decided: April 7, 2020
• Docket: 46, 2019
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

DARREN WIGGINS, § § No. 46, 2019 Defendant Below, § Appellant, § § v. § Court Below: Superior Court § of the State of Delaware STATE OF DELAWARE, § § Cr. ID No. 1802014575 (N) Plaintiff Below, § Appellee. §

Submitted: January 8, 2020 Decided: April 7, 2020

Before SEITZ, Chief Justice; VALIHURA, VAUGHN, TRAYNOR, and MONTGOMERY-REEVES, Justices, constituting the Court en Banc.

Upon appeal from the Superior Court. REVERSED and REMANDED.

Nicole M. Walker, Esquire, (argued) Office of the Public Defender, Wilmington, Delaware, for Defendant-Appellant Darren Wiggins.

Matthew C. Bloom, Esquire, (argued) Department of Justice, Wilmington, Delaware, for Plaintiff-Appellee State of Delaware. MONTGOMERY-REEVES, Justice, for the Majority:

The facts, for the purposes of this appeal, are not in dispute. On February 22,

2018, Appellant Darren Wiggins was arrested. He had in his possession a vial

containing an amber liquid with brown chunks suspended in the liquid. The State’s

chemist tested the amber liquid, which tested positive for phencyclidine (“PCP”);

she did not test or otherwise identify the brown chunks. The chemist also weighed

the liquid PCP and brown chunks together and determined that they weighed 17.651

grams. The chemist did not weigh the liquid or the brown chunks separately. At

trial, the State presented no evidence regarding the nature of the brown chunks or

their relation to the liquid PCP other than their co-location within the same vial.

Nonetheless, the jury found Wiggins guilty of Aggravated Possession of PCP under

Delaware’s Uniform Controlled Substances Act.

The General Assembly has adopted a statutory scheme that criminalizes drug

possession in tiers. Possession of greater amounts of controlled substances results

in steeper penalties regardless of the drugs’ purity. At issue here, possession of 15

grams or more of PCP, or of any mixture containing any such substance, is classified

as a Class B Felony and carries a minimum sentence of two years at Level V

incarceration.

The parties’ sole focus in this appeal is on whether a rational jury could have

concluded that the State met its burden to prove that the liquid PCP and brown

2 chunks in Wiggins’s vial constituted a “mixture” under the statutory scheme. Both

parties point to federal precedent, arguing opposing sides of a federal circuit split to

support competing interpretations of “mixture.” Wiggins argues that this Court

should follow the majority of federal circuits and hold that “mixtures” include only

the weight of marketable or usable drug compounds. The State, emphasizing the

minority viewpoint, argues that dictionary definitions are dispositive of “mixture’s”

plain meaning; and under the dictionary definitions, the weight of all components

with the controlled substances should be included.

After considering the text of the statute and this Court’s precedent, we hold

that the meaning of “mixture” within Delaware’s statutory scheme requires a

showing that the mixture is marketable or usable. As the State presented no evidence

concerning what the brown chunks were, that they were in any way associated with

liquid PCP, or that they were conventionally sold or used with PCP mixtures, the

State made no showing that the liquid PCP and unidentified brown chunks were a

marketable or usable drug mixture. Therefore, we vacate the conviction for

Aggravated Possession of PCP and remand for sentencing for the lesser-included

offense of Misdemeanor Possession of PCP.

3 I. BACKGROUND

On February 22, 2018, police arrested Darren Wiggins during a routine traffic

stop after discovering outstanding warrants. 1 Police conducted a search incident to

arrest and found a glass vial on Wiggins’s person that the officers suspected

contained PCP. 2 The officers took Wiggins into custody and sent the vial to the

Delaware State Forensic Laboratory for testing.3

Heather Moody, a forensic chemist at the Division of Forensic Science,

examined the vial and reported that it contained “amber liquid with brown chunks”

floating in it. 4 Moody tested a sample of the amber liquid and confirmed it was

PCP. 5 Moody did not, however, test a sample of the brown chunks that were floating

in the vial, 6 and she did not know what the brown chunks were. 7 Moody also

weighed the vial’s contents. Together, the amber liquid and the brown chunks

weighed a total of 17.651 grams. 8 Moody never weighed the liquid and the brown

chunks separately. 9

1 App. to Opening Br. A13-16 (“A__” hereafter). 2 A14. Police also found other drugs during their search of Wiggins that are not the subject of this appeal. Id. 3 A20. 4 A20-24. 5 Id. 6 Id. 7 A24. 8 A23. 9 Id.

4 The State charged Wiggins with four counts in connection with the

February 22, 2018 arrest: two counts of Illegal Possession of a Controlled Substance;

one count of Possession of Marijuana; and one count of Aggravated Possession of

PCP. 10 Wiggins’s one-day trial took place on September 5, 2018.11 After the

prosecution rested, Wiggins moved for a judgment of acquittal as to the Aggravated

Possession charge, arguing that the State failed to prove that the PCP mixture met

the 15-gram statutory weight threshold.12 Because the State did not separately weigh

or test the brown chunks, it presented no evidence that those chunks were part of the

PCP mixture except that they were in the same vial as the liquid PCP.13

The Superior Court denied Wiggins’s Motion, and the jury convicted Wiggins

of all charges, including the charge of Tier 3 Aggravated Possession of PCP.14

Wiggins now appeals the trial judge’s denial of his motion for judgment of acquittal,

arguing that the State presented insufficient evidence to establish that Wiggins was

guilty of Tier 3 Aggravated Possession.

II. STANDARD OF REVIEW

This Court “review[s] the denial of a motion for judgment of acquittal de novo

to determine whether any rational trier of fact, viewing the evidence in the light most

10 A7-8. 11 A9. 12 A26-28. 13 Id. 14 A28, 40.

5 favorable to the State, could find the defendant guilty beyond a reasonable doubt.”15

III. ANALYSIS

Wiggins appeals the Superior Court’s denial of his motion for judgment of

acquittal and argues that no rational jury could find that the State proved, beyond a

reasonable doubt, the 15-gram weight threshold for Tier 3 Aggravated Possession.

Wiggins argues that the brown chunks were not part of the mixture containing

PCP because they were easily separated from the liquid PCP, visually and physically

distinct, not diffused throughout the liquid PCP, and not used to dilute the substance

or facilitate distribution.16 Wiggins adds that because the State did not test the brown

chunks, the jury had no way of knowing whether they had to be removed before

using the PCP.17 Because the chunks were not part of the mixture, and there was no

evidence that the chunks were PCP, Wiggins argues that the weight should not have

included the brown chunks, and as a result, the State failed to prove the threshold

weight.

The State responds that it presented “sufficient evidence at trial to convict

Wiggins of aggravated possession of PCP.” 18 It contends that the liquid PCP and

brown chunks constituted a mixture under the word’s plain meaning as determined

15 Pardo v. State, 160 A.3d 1136, 1149–50 (Del. 2017) (internal quotation marks and citation omitted). 16 Opening Br. 15. 17 Id. at 14. 18 Answering Br. 3.

6 by dictionary definitions. The State argues that it was unnecessary to present

evidence concerning the nature of the brown chunks because the jury could find that

the vial’s contents were a mixture based on the presence of both the PCP and brown

chunks within the same vial.

Thus, this case turns on the meaning of “mixture.”

A. Defining “Mixture” in Delaware’s Uniform Controlled Substances Act

Delaware’s Uniform Controlled Substances Act (the “Act”) imposes harsher

sentences based on the weight of the controlled substance in an offender’s

possession. At the time of Wiggins’s arrest, the relevant Aggravated Possession

provision within the Act stated that “any person who . . . [p]ossesses a controlled

substance in a Tier 3 quantity . . . shall be guilty of a class B felony.” 19 A separate

provision defined a Tier 3 controlled substance quantity as “15 grams or more of

phencyclidine [PCP], or of any mixture containing any such substance.” 20

When interpreting a statute, the Court must first “determine whether the

statute is ambiguous, because if it is not, then ‘the plain meaning of the statutory

language controls.’ The fact that the parties disagree about the meaning of the statute

does not create ambiguity.” 21 Instead, “[i]f a statute is reasonably susceptible of

19 16 Del. C. § 4752(4), amended by 82 Del. Laws ch. 217, § 6 (2019). 20 16 Del. C. § 4751C(3)(f), amended by 82 Del. Laws ch. 217, § 4 (2019). 21 Chase Alexa, LLC v. Kent Cty. Levy Ct., 991 A.2d 1148, 1151 (Del. 2010) (citations omitted).

7 different conclusions or interpretations, it is ambiguous.”22 When an unambiguous

statute contains words or phrases that are undefined, those “[w]ords and phrases

shall be read with their context and shall be construed according to the common and

approved usage of the English language.”23

This Court has held that previous versions of Delaware’s Aggravated

Possession provision were unambiguous. In Lloyd v. State, this Court interpreted a

statute that made possession of “15 grams or more of methamphetamine . . . or of

any mixture containing any such substance” a felony. 24 This Court held that the

statute was not open to multiple interpretations; instead, it unambiguously

criminalized the possession of a “mixture” including methamphetamine. 25

Likewise, in Shy v. State, this Court held that a statute criminalizing the possession

of “8 grams or more of any morphine, opium or any salt, isomer or salt of an isomer

thereof, including heroin . . . or 8 grams or more of any mixture containing any such

substance,” was unambiguous. 26

22 Coastal Barge Corp. v. Coastal Zone Indus. Control Bd., 492 A.2d 1242, 1246 (Del. 1985) (citations omitted). 23 1 Del. C. § 303; see also Coastal Barge Corp., 492 A.2d at 1245 (“A statute is passed by the General Assembly as a whole and not in parts or sections. Consequently, each part or section should be read in light of every other part or section to produce an [sic] harmonious whole.”). 24 534 A.2d 1262, 1266 (Del. 1987) (emphasis removed). 25 Id. 26 459 A.2d 123, 125 (Del. 1983).

8 The Aggravated Possession provision at issue here mirrors the language and

structure of the provisions at issue in Lloyd and Shy; thus, it also is unambiguous.

Yet, despite the Aggravated Possession provision’s unambiguous nature, it does not

specifically define “mixture.” Therefore, we assign “mixture” its common and

ordinary meaning in the context of the Act.27

1. The United States Supreme Court’s holding in Chapman

To determine the common meaning of “mixture” in the Act, both parties point

to the United States Supreme Court’s decision in Chapman v. United States, which

interpreted the meaning of “mixture” under a similar federal aggravated possession

statute.28 In Chapman, the Court considered whether liquid LSD and the blotter

paper on which it was applied were a “mixture” for the purpose of weight for

sentencing.29 The federal sentencing guidelines assigned steeper penalties for

possession depending on the weight of a “mixture or substance containing a

detectable amount” of LSD. 30 Because the federal statute did not define “mixture,”

the Court relied on its ordinary meaning derived from dictionaries. 31 The Court also

27 16 Del. C. § 4701; 1 Del. C. § 303; see also Pennewell v. State, 977 A.2d 800, 801 (Del. 2009). 28 500 U.S. 453 (1991). 29 Id. at 453-54. 30 Id. at 461. 31 Id. at 462 (“A ‘mixture’ is defined to include ‘a portion of matter consisting of two or more components that do not bear a fixed proportion to one another and that however thoroughly commingled are regarded as retaining a separate existence.’ Webster’s Third New International Dictionary 1449 (1986). A ‘mixture’ may also consist of two substances

9 noted in Chapman that “Congress adopted a ‘market-oriented’ approach to

punishing drug trafficking, under which the total quantity of what is distributed,

rather than the amount of pure drug involved, is used to determine the length of the

sentence.”32 The Court reasoned that “Congress did not want to punish retail

traffickers less severely, even though they deal in smaller quantities of the pure drug,

because such traffickers keep the street markets going.”33

The Court then applied that statutory context to analyze the LSD and blotter

paper. It held that “[a]lthough LSD is not sold by weight, but by dose, and a carrier

medium is not, strictly speaking, used to ‘dilute’ the drug, that medium [the blotter

paper] is used to facilitate the distribution of the drug.”34 Further, the LSD was

“diffused among the fibers” of the blotter paper, not distinguishable or easily

separated from the paper, and “[l]ike cutting agents used with other drugs that are

ingested, the blotter paper, gel, or sugar cube carrying LSD can be and often is

ingested with the drug.”35 The Court also distinguished the blotter paper from

packaging materials and containers like glass vials, which would not be considered

part of a mixture.36

blended together so that the particles of one are diffused among the particles of the other. 9 Oxford English Dictionary 921 (2d ed. 1989).”). 32 Id. at 461. 33 Id. 34 Id. at 466. 35 Id. at 462. 36 Id. at 462-63.

10 Therefore, because the blotter paper “medium [was] used to facilitate the

distribution of the drug” and acted as a “tool of the trade for those who traffic in

[LSD],” the United States Supreme Court held that the LSD and the blotter paper

were a mixture and included the weight of the blotter paper for sentencing.37

2. The Federal Circuit split

After Chapman, federal circuits split over the decision’s application to other

potential mixtures. The majority of circuits that have considered this issue38

determine whether a component is part of a mixture based on whether the compound

remains “usable in the chain of distribution” after the component is included.39

For example, the Third Circuit considered the effects of Chapman in United

States v. Rodriguez, where defendants sold brick-like packages consisting of 65.1

37 Id. at 458, 462. 38 See United States v. Killion, 7 F.3d 927, 932 (10th Cir. 1993) (assessing the circuit split and noting that the “Second, Third, Sixth, Seventh, Ninth, and Eleventh Circuits have adopted the approach that sentencing calculations . . . may not be based on the weight of mixtures containing unusable, unmarketable materials”); United States v. Acosta, 963 F.2d 551, 554, 556 (2d Cir. 1992) (excluding the weight of crème liqueur which contained dissolved cocaine from the weight for sentencing because it was not ingestible, unmarketable, and functionally equivalent to packaging material); United States v. Robins, 967 F.2d 1387, 1389 (9th Cir. 1992) (excluding cornmeal masked by cocaine because they were easily distinguished by their colors, cornmeal was not a tool of the trade, not used to facilitate or cut the cocaine, had to be separated before using the cocaine, and the cornmeal was the “functional equivalent of packaging material”); United States v. Jennings, 945 F.2d 129, 137 (6th Cir. 1991) (excluding the toxic byproduct of methamphetamine found in a crockpot containing the methamphetamine because the defendants could only sell or distribute the amount of methamphetamine eventually distilled from the crockpot); United States v. Rolande-Gabriel, 938 F.2d 1231, 1237 (11th Cir. 1991) (excluding liquid waste mixed with cocaine because it did not facilitate the use, marketing and access to cocaine). 39 Rolande-Gabriel, 938 F.2d at 1237.

11 grams of cocaine and 2,976 grams of boric acid. 40 The brick packages had a thin

layer of cocaine on top of the boric acid and were “constructed in an effort to fool

an unsuspecting customer—in this case a federal drug agent—into thinking that they

were comprised wholly of cocaine.” 41 The trial court considered the entire weight

of the cocaine and boric acid for sentencing, and the Third Circuit reversed.

The Third Circuit reasoned that unlike the LSD and blotter paper in Chapman,

the cocaine and boric acid compound in Rodriguez “was not the ordinary drug

product moving in the stream of commerce in the manner envisioned by

Congress.” 42 Instead, the boric acid was visibly distinguishable from the cocaine,

easily separated from the rest of the compound, not routinely used in cocaine

distribution, and not “intended to be used as a cutting agent.” 43 Moreover, “the

proportion of cocaine to boric acid in the whole mass, if mixed, would render the

resulting product unsalable and unusable—and probably even toxic.”44 Thus, the

Third Circuit held that the boric acid rendered the compound unusable and “that the

defendants should have been sentenced based on the 65.1 grams of usable cocaine

that had been mixed with a cutting agent.” 45

40 975 F.2d 999, 1001 (3d Cir. 1992). 41 Id. 42 Id. at 1005. 43 Id. 44 Id. at 1006. 45 Id. at 1007.

12 Other circuit courts reject the majority approach and include the additional

weight of components even when those components render the drug compound

unusable.46 For instance, in United States v. Walker, the Fifth Circuit held that “the

district court correctly used the entire weight of a mixture or substance containing a

detectable amount of methamphetamine” even though the majority of that mixture

consisted of toxic chemical byproduct.47 There, the police seized the defendant’s

crockpot, which was being used to “cook” methamphetamine and held “a quantity

of a toxic liquid substance . . . and a small percentage of methamphetamine.”48

Since the toxic byproduct and methamphetamine were found in the same crockpot,

the Fifth Circuit held that the contents of that crockpot were one “mixture” regardless

of the compound’s usability. 49

Thus, while most circuits only consider the weight of useable drug compounds

for sentencing, the minority of courts include the weight of additional unusable

components. As the Supreme Court has not resolved the circuit split following

46 See Killion, 7 F.3d at 933-34 (noting that the First, Fifth, and Tenth Circuits do not consider the marketability of a drug substance “provided, of course, that the mixture or substance contains a detectable amount of the controlled substance in question”); United States v. Mahecha–Onofre, 936 F.2d 623 (1st Cir. 1991) (entire weight of suitcases composed of cocaine bonded chemically with acrylic suitcase material minus all metal parts was includable for sentencing purposes, reasoning that “ingestion” would not seem to play a critical role in the definition of “mixture or substance”). 47 960 F.2d 409, 412 (5th Cir. 1992). 48 Id. at 413. 49 Id.

13 Chapman, the parties advocate the reasoning of opposite sides of the federal split.50

Wiggins argues that the approach adopted by the majority of federal circuits

correctly captures the meaning of “mixture” in the Delaware statute.51 The State

responds that minority circuit jurisdictions are more faithful to the dictionary

definitions of “mixture” and that this Court’s precedents directly conflict with the

majority approach.52

B. Delaware’s Aggravated Possession Statute

In Traylor v. State, this Court acknowledged that the General Assembly

intentionally adopted a “market-oriented” sentencing scheme—similar to the federal

scheme in Chapman—that imposes steeper penalties for introducing higher

quantities of drugs into the market, regardless of the purity of those drugs:

[D]angerous drugs are generally marketed in a diluted or impure form. If illegal substances are so distributed, then the General Assembly does not act irrationally or unreasonably when it addresses the marketing of the compound rather than the pure form of the drug. Drug dealers at the bottom of the distribution chain obviously need a source of supply if they are to make sales. It is equally clear that major traffickers need a network of

50 While the Supreme Court has not settled the circuit split, Wiggins argues that current Federal Sentencing Guidelines have. The Guidelines’ commentary appears to adopt the majority approach by saying that a “[m]ixture or substance does not include materials that must be separated from the controlled substance before the controlled substance can be used.” FCJ Federal Sentencing Guidelines Manual § 2D1.1. Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses). 51 Opening Br. 12-14. 52 Answering Br. 9.

14 people to make the actual sales to users. Stiff penalties for possession of a mixture that contains an illegal drug are therefore rational since traffickers may be less able to find street-level peddlers willing to risk possession of large, but diluted, amounts of illegal drugs. 53

As this Court recognized in Traylor, Delaware’s “market-oriented” Aggravated

Possession scheme punishes offenders for possessing drugs that, even if in “a diluted

or impure form,” are still usable in the stream of commerce. 54

Weighing only the marketable, or usable, amount of controlled substances for

sentencing punishes the “possession of large, but diluted, amounts of illegal drugs”

that the statutory scheme targets.55 Excluding the additional weight of unmarketable

components makes common sense and is also consistent with the goal of the

statutory scheme. Unmarketable components do not dilute and increase the amount

of ordinary drugs available on the market; they do not facilitate the distribution of

the drug like the blotter paper in Chapman; and they present no financial advantage

to drug dealers, who must remove the excess substance before selling.

Therefore, the plain meaning of “mixture,” read in context with Delaware’s

statutory scheme, is consistent with the approach adopted by the Third Circuit and

53 458 A.2d 1170, 1177 (Del. 1983) (emphasis added). The defendant in Traylor was convicted under 16 Del. C. § 4753A (1983), which concerned aggravated possession for mixtures containing heroin. Id. at 1176. 54 Id. at 1177. 55 Id.

15 the majority of other federal circuits that have considered this issue; mixtures include

only those compounds that are marketable or “usable in the chain of distribution.”56

The State argues that this interpretation “narrow[s] the definition of mixture

beyond its common understanding by introducing concepts of marketability and

usability.” 57 To that end, the State contends that assessing a mixture’s marketability

or usability is inconsistent with Delaware law for two reasons: first, the common

meaning of “mixture” is set by its dictionary definitions, which make no mention of

marketability or usability; and second, this Court has previously affirmed

convictions for Aggravated Possession without requiring the State to demonstrate

marketability. Both of these arguments fail.

1. Dictionary definitions

The State argues that the dictionary definitions of “mixture” establish a plain

meaning that renders the vial’s contents a “mixture” regardless of its usability. 58

Merriam-Webster defines “mixture” as “a portion of matter consisting of two or

more components in varying proportions that retain their own properties.”59

Similarly, Oxford defines mixture as “a combination of different things in which the

56 Rodriguez, 975 F.2d at 1007 (quoting Rolande-Gabriel, 938 F.2d at 1237). 57 Answering Br. 10. 58 Id. at 9. 59 Mixture, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/mixture? utm_campaign=sd&utm_medium=serp&utm_source=jsonld. (last visited Mar. 20, 2019).

16 component elements are individually distinct.”60 Because the dictionary definitions

do not reference a mixture’s “usability,” the State argues that requiring a drug

compound to be marketable or usable reads additional requirements into the plain

meaning of “mixture” that do not actually exist.

The dictionary definitions of “mixture,” on their face, could describe almost

any group of objects. It is hard to conceive of any group of materials that could not

be described as “a portion of matter consisting of two or more components in varying

proportions that retain their own properties.” For example, that would include a

combination of PCP and pennies or PCP and peanuts. And though those seem like

an extreme hypotheticals, they help to illustrate the key point: the weight of foreign

objects haphazardly (and perhaps unintentionally) mixed in with a controlled

substance should not, as a matter of policy and logic, be considered as part of the

controlled substance’s weight for the purpose of determining the severity of

the penalty to be imposed for possession. As the Supreme Court recognized in

Chapman, common sense imposes a rational limiting principle on the dictionary

definitions and prevents courts from applying the dictionary definition of “mixture”

in ways that lead to absurd or nonsensical results:

[N]onsense is not the necessary result of giving the term “mixture” its dictionary meaning. The term does not include LSD in a bottle, or LSD in a car, because the drug

60 Mixture, LEXICO, https://www.lexico.com/en/definition/mixture. (last visited Mar. 20, 2019).

17 is easily distinguished from, and separated from, such a “container.” The drug is clearly not mixed with a glass vial or automobile; nor has the drug chemically bonded with the vial or car. 61

Like considering the weight of drug “containers,” considering the weight of

components that are not marketable or usable is an unrealistic application of

mixture’s dictionary definitions. Therefore, common sense dictates that such a

construction “is not the necessary result of giving the term ‘mixture’ its dictionary

meaning.”62 To conclude otherwise would result in courts imposing vastly different

penalties for the same level of culpable conduct, undermining the fairness of the

statutory scheme as a whole. 63 As the Third Circuit reasoned in Rodriguez, “[i]t

defies logic to say that the two [defendants] should be sentenced differently under

guidelines that were designed to penalize dealers for the amount of drugs they place

61 Chapman, 500 U.S. at 462-63. 62 Id. at 461-63. The Supreme Court also noted in Chapman that the federal sentencing scheme, which is remarkably similar to the Delaware statute, “intended the penalties for drug trafficking to be graduated according to the weight of the drugs in whatever form they were found—cut or uncut, pure or impure, ready for wholesale or ready for distribution at the retail level.” Id. (emphasis added). 63 For instance, a defendant arrested in the process of manufacturing methamphetamine would face a higher sentence because the total weight of other chemical byproducts would be included; in contrast, a defendant who completed the manufacture process would receive a lesser sentence for the same amount of usable drugs after distilling the methamphetamine and removing it from the byproduct. Compare Walker, 960 F.2d at 411-412 (convicting a defendant for possession based on the total weight of a liquid substance when “‘over ninety-five per cent of the volume or weight of those liquids’ was solvents”) with Rolande- Gabriel, 938 F.2d at 1235 (rejecting the State’s argument that a defendant should be sentenced for possession of 241.6 grams of liquid material that contained only 72 grams of consumable drugs).

18 into the market.”64 Instead, the approach supported by this Court’s opinion in

Traylor and adopted by the majority of federal circuits provides a sound limiting

principle to the dictionary definitions that correctly excludes weight of components

that render the drug compounds unmarketable.

2. This Court’s precedent

The State also argues that Delaware precedent conflicts with conducting any

marketability analysis because “[p]rior decisions of this Court . . . have upheld

convictions based on the weight of drug mixtures without requiring anything of the

other substances in the mixture.” 65 To support its claim, the State points to this

Court’s opinions in Lloyd v. State 66 and Shy v. State. 67

In Lloyd, this Court affirmed a conviction for the possession and sale of a

mixture consisting of 2.77 grams of methamphetamine and 24.68 grams of

unidentified powder. 68 Similarly, in Shy, this Court affirmed a conviction where the

defendant possessed a 22-gram mixture containing .64 grams of heroin and other

unidentified powder. 69 This Court affirmed the convictions in both cases despite the

64 975 F.2d at 1007. 65 Answering Br. 9. 66 534 A.2d 1262. 67 459 A.2d 123. 68 534 A.2d at 1266. 69 459 A.2d at 124.

19 fact that the State did not test nor present any evidence as to the chemical makeup

of the non-drug powder in the respective compounds. 70

Here, the State argues that since the Court upheld the convictions in Lloyd and

Shy without knowing the chemical makeup of the diluting powders, Delaware law

must not require the State to demonstrate that controlled-substance compounds are

marketable or usable. 71 The State’s argument incorrectly characterizes both the

State’s burden and the evidence presented in Lloyd and Shy.

The Aggravated Possession statute does not require the prosecutor to present

evidence showing a compound’s entire chemical makeup. Instead, it requires only

that the State present some evidence that the drug compound is “usable in the chain

of distribution.”72 For example, the prosecution in Lloyd presented evidence that the

defendant intentionally sold the diluted methamphetamine compound to a

consumer. 73 Because the defendant sold the drug compound in the form intended

for use by a known user, the State demonstrated that the compound was a marketable

mixture in the chain of distribution and that the unidentified powder was a diluting

agent.74

70 Lloyd, 534 A.2d at 1266; Shy, 459 A.2d at 124. 71 Answering Br. 9. 72 Rolande-Gabriel, 938 F.2d at 1237. 73 Lloyd, 534 A.2d at 1263-64. 74 Id. at 1266.

20 Similarly, in Shy, this Court found that the entire 22-gram weight of the heroin

mixture containing .64 grams of heroin should be used for sentencing when the State

presented police testimony that “[t]his concentration . . . was typical of street-level

heroin sold in the Wilmington area.”75 The police testimony established that the

21.36 grams of unidentified powder was conventionally used to dilute the drug and

therefore was part of the mixture. 76 Thus, the State, in these prior Aggravated

Possession cases, presented some evidence concerning a drug compound’s

marketability.

Therefore, both the plain meaning of “mixture” in Delaware’s Aggravated

Possession statute and this Court’s precedent are consistent with considering only

the weight of substances that are marketable and usable in the chain of distribution.77

C. The State’s Evidence Regarding the Alleged Mixture

The question here is whether a rational jury could find beyond a reasonable

doubt that the brown chunks were anything but a foreign object (like a penny or a

peanut) as opposed to a substance that was marketable or usable in the chain of

distribution. The State presented evidence at trial that the PCP liquid and brown

chunks were found in the same vial and that, together, the vial’s contents met the

75 459 A.2d at 124. 76 Id. 77 16 Del. C. §§ 4751C, 4752.

21 threshold weight for Aggravated Possession.78 The State did not present evidence

or testimony concerning the nature of the brown chunks or their relationship to the

rest of the PCP compound. The State’s own chemist testified that the brown chunks

were visibly separate from the liquid PCP but that she did not know what the brown

chunks were. 79 Like the boric acid and cocaine compound considered by the Third

Circuit in Rodriguez, the brown chunks here were visibly distinguishable and easily

separated from the rest of the drug compound, and they were not thoroughly

intermixed or bonded.80 There also was no evidence that brown chunks are routinely

used in PCP distribution or that brown chucks are some form of cutting agent. And

there was no evidence here that the brown chunks were meant for or capable of

consumption.

When Wiggins moved for judgment of acquittal prior to closing arguments

and without the jury present, the State argued to the trial judge that “when you are

ingesting PCP, you’re not leaving behind any of the substance . . . why would it be

in the vial if you’re not taking it. It is part of the mixture.”81 But, the State never

presented that argument to the jury; nor did it present any evidence supporting its

claim that a drug user could actually ingest the brown chunks with the PCP. During

78 A20-24. 79 A24. 80 975 F.2d at 1001-1006. 81 A27.

22 closing arguments, the State argued that “[t]hose little brown things are mixed into

a mixture of liquid that is PCP,” “[i]t is a mixture contained within a single glass

vial,” and “a mixture is when two things are together.” 82 But again, the State

presented no evidence concerning what the brown chunks were, where they came

from, how they got in the vial, whether they were ingestible, or whether they were

in any way related to or associated with the liquid PCP. In sum, the State presented

no evidence concerning the nature of the brown chunks at all.83

The standard for the State was not high, but it did require the State to present

some evidence that the weighed components were a marketable or usable drug

compound. Had the State offered any evidence to the jury that the chunks were a

PCP byproduct, in the vial at the time of distribution, necessary for distribution, used

for dilution, often a result of storing PCP, consumed along with PCP, or simply that

they did not render the vial’s contents unusable or unsellable, it very well could have

met its burden. Although we must view all evidence in its favor, here the State

offered no evidence about the chunks. The brown chunks could have been toxic

particles that fell into the liquid by accident, clumps of residue present in the vial

82 A32-33. 83 The State attempts to draw a connection between the PCP liquid and the brown chunks on appeal, arguing that “[t]he brown chunks floating in Wiggins’s PCP are akin to impurities in the drug.” Answering Br. 13. But again, there is no evidence supporting that assertion, and after-the-fact speculation about the brown chunks cannot cure the insufficiency of the State’s evidence at trial.

23 before the PCP was poured in, or solidified portions of the liquid PCP. We have no

way of knowing.

The State had the opportunity to chemically test the brown chunks, to remove

the chunks and weigh the liquid PCP separately, and to submit testimony concerning

a relationship between the components or the appearance of similar brown chunks

in other PCP cases. It did none of those things. Instead, the State relied only on the

fact that the chunks and liquid were co-located in the same vial, shown by the photos

of the vial and Moody’s testimony. But evidence that the PCP and brown chunks

were co-located does not demonstrate that the brown chunks were usable in the chain

of distribution or somehow enhanced the marketability (that is, increased the price)

of the liquid PCP.84

The State had the burden to prove each element of Aggravated Possession. It

failed to present any evidence that the brown chunks, as a weighed component, were

84 Moreover, it is unclear under these facts that the State could have met its burden even if this Court had adopted the reasoning of the First, Fifth, and Tenth Circuits. Even in those cases, the unmarketable components weighed by the State still had more significant connections to the drug compounds than just co-location. For example, in Walker, the Fifth Circuit included in the weight of methamphetamine and toxic liquid waste product “left over from the methamphetamine manufacturing process.” 960 F.2d at 412. More than just being found in the same crockpot, the waste product was instrumental in producing the drug. Id. Likewise, in Mahecha-Onofre, the First Circuit included the entire weight of suitcases that were constructed out of “2.5 kilograms of cocaine bonded chemically with the acrylic suitcase material.” 936 F.2d at 624-26. Even though the drug compound was unmarketable in the suitcase form, the usable and unusable components were connected via chemically bonding. Id. Here, by contrast, the State presented no evidence of any relationship between the liquid PCP and the brown chunks outside of their co-location within the glass vial.

24 part of the mixture containing PCP. The State also presented no evidence concerning

the weight of the liquid PCP absent the brown chunks. For these reasons, we hold

that no rational jury could have found that the brown chunks were part of a mixture

that met the threshold weight for Tier 3 Aggravated Possession. Thus, the trial court

erred in denying Wiggins’s motion for judgment of acquittal.

IV. CONCLUSION

Based on the foregoing, the Superior Court’s conviction for Tier 3 Aggravated

Possession is REVERSED, and we REMAND for re-sentencing based on the lesser

offense of Misdemeanor Possession.

25 VAUGHN, Justice, Dissenting:

I dissent because I believe the jury could rationally conclude that the contents

of the vial were a mixture.

A jury’s duty is to determine the facts from the evidence, apply the law as

given by the judge to the facts as the jury finds them, and in that way decide the

case.1 A motion for judgment of acquittal asks the court to determine whether a

rational juror, viewing the evidence in the light most favorable to the State, could

find the defendant guilty beyond a reasonable doubt.2 Because it asks whether a

rational, rather than a reasonable, juror could find the defendant guilty, it is a

deferential standard, recognizing the jury’s constitutional role as trier of fact.

The Majority holds that the meaning of the word “mixture” requires a showing

that the mixture is marketable or usable and that under this definition no rational

juror could find the contents of the vial were a mixture. The Controlled Substances

Act, however, does not contain any provision requiring that a mixture be marketable

or usable. It does not contain any definition of the word mixture or any provision

1 See Del. Const. art. IV, § 19 (“Judges shall not charge juries with respect to matters of fact, but may state the questions of fact in issue and declare the law.”); see also Herring v. State, 805 A.2d 872, 876 (Del. 2002) (elaborating that Article IV, § 19 of the Delaware Constitution serves to delineate the respective roles of judge and jury in jury trials with the purpose of “protect[ing] the province of the jury on factual issues” while leaving unrestrained the trial judge’s role “in either passing upon the legal admissibility of evidence or in instructing the jury on the law”). 2 E.g., Pardo v. State, 160 A.3d 1136, 1149-50 (Del. 2017).

1 which bears upon the meaning of the word. 3 Since there is no statutory definition of

the word mixture, I think the sufficiency of the evidence should be tested against the

legal principles explained to the jury by the court in its instructions. The trial judge

instructed the jury that “where I have not defined a word, such word has its

commonly accepted meaning.”4 The issue before us then, in my view, is whether a

juror following the instruction to give the word “mixture” its commonly accepted

meaning could rationally find that the contents of the vial were a mixture beyond a

reasonable doubt.

The instruction given by the trial judge is actually derived from Title 11,5 but

it is routinely given as a standard instruction in both Title 11 and Title 16 cases. It

is consistent with 1 Del. C. § 303, which provides that “[w]ords and phrases shall be

read with their context and shall be construed according to the common and

approved usage of the English language.”

The charge of Aggravated Possession required the State to prove that the

defendant possessed 15 grams or more of a mixture containing PCP. 6 In looking at

3 16 Del. C. § 4701 (defining terms for purposes of Delaware’s Controlled Substances Act). Although the General Assembly has amended § 4701 several times since Wiggins’s February 22, 2018 arrest, it has left “mixture” undefined. Compare 16 Del. C. § 4701 (2018), with 16 Del. C. § 4701 (2020). 4 A34. 5 11 Del. C. § 221. 6 16 Del. C. § 4752(4), amended by 82 Del. Laws ch. 217, § 6 (2019) (prohibiting the aggravated possession, including possession of a Tier 3 quantity, of a controlled substance); 16 Del. C. § 4751C(3)(f), amended by 82 Del. Laws ch. 217, § 4 (2019)

2 the evidence, the primary testimony concerning the contents of the vial came from

the forensic chemist who tested it. The evidence shows that she applied the testing

procedure that a forensic chemist would apply to a mixture. When an illegal

substance is part of a mixture, there are two relevant factors: (1) the presence of the

illegal substance and (2) the weight of the entire mixture. The chemist first tested

for the presence of an illegal substance and found that the liquid was PCP. She then

weighed the entire contents of the vial. She did not separately weigh the PCP and

the brown substance, because in a mixture the relative weight of the PCP and the

brown substance is not relevant. She did not identify the brown substance because

its identity was not relevant. The State had no burden, in my opinion, under Title 16

to establish that the brown substance was marketable or useable in connection with

the PCP.

The State and the defendant, knowing that the jury would be instructed to give

undefined words their commonly accepted meaning, were both entitled to rely on

that instruction. Both parties were aware they could argue to the jury that the

contents of the vial were, or were not, a mixture. There was nothing unusual about

the way the State presented its evidence in this case.

(classifying the possession of 15 grams or more of PCP or a mixture containing the same as a Tier 3 quantity of a controlled substance).

3 In closing arguments, the State made the following argument about the PCP:

The indictment, which is also included in here, talks about a mixture containing any of the substances.

Why is that important? Because there’s little brown things floating about in that PCP. Those little brown things are mixed into a mixture of liquid that is PCP. The weight of the PCP or the mixture containing it is 17. some grams. . . . It is a mixture contained within a single glass vial taken [from] Mr. Wiggins[]. 7

In his closing, defense counsel countered as follows:

Do you remember the medical examiner said she didn’t test what the solids were. She doesn’t know what they are. And you remember she said she weighed them together without knowing what they are. And really the question you will have when you go back there, the question I think you will spend most of your time on is, what is a mixture? At the end of the day, that’s your call. That’s not my call. It’s not the State’s call. It’s not the Judge’s call. What is a mixture? Is a mixture solids inside of a liquid? I mean a mixture is like brownie mix. You can put the brownie mix, the egg and the milk in there and then you mix it up. You can’t really take those things apart and tell what they are. They’re together. It’s one thing. It’s like if someone was making pot brownies. You don’t know how much of that is weed and how much of that is brownie. It’s a mixture. You can’t separate those things out. But here we have a solids inside of a liquid. We have different ways of doing it. But there’s a way to separate those things to make them not a mixture and tell us just how much PCP we have and tell us how much whatever the other substance is that’s in there. 8

7 A32. 8 A33.

4 Defense counsel urged the jury to find that the contents of the vial were not a

mixture because the PCP and the brown substance could be separated. He argued

that, in a mixture, “[y]ou can’t separate those things out.” 9 The contents of the vial

were not a mixture, he argued, because “there’s a way to separate those things to

make them not a mixture.”10 The defendant has continued to make that argument on

appeal. In his opening brief, the defendant argues that “[b]ecause the chunky

substances could be easily distinguished and separated from the liquid, the two

substances were not a mixture.”11

The defendant’s argument describes a homogeneous mixture. The contents

of the vial are obviously not a homogeneous mixture. The problem with the

defendant’s argument is that a mixture can also be heterogeneous. In its answering

brief, the State offers two dictionary definitions of mixture which describe a

heterogeneous mixture. Merriam-Webster defines mixture as “a portion of matter

consisting of two or more components in varying proportions that retain their own

properties.” 12 Oxford defines mixture as “[a] combination of different things in

which the component elements are individually distinct” or, as in chemistry, “[t]he

product of the random distribution of one substance through another without any

9 Id. 10 Id. 11 Opening Br. 8. 12 Id. at 9 (quoting Mixture, MERRIAM-WEBSTER, https://www.merriam- webster.com/dictionary/mixture (last visited Apr. 3, 2020)).

5 chemical reaction.”13 In other words, matter consisting of two or more components

or a combination of different things can be considered a mixture even if the

individual parts of the mixture remain distinct and can be separated out of the mix.

“Under well-settled case law, Delaware courts look to dictionaries for

assistance in determining the plain meaning of terms which are not defined [in a

statute].” 14 Dictionary definitions should be considered with some caution,

however, as different definitions appear in different dictionaries. The usefulness of

dictionary definitions may vary depending on the facts of a case, but they can serve

as helpful guides in determining the plain or commonly accepted meaning of a word.

The Majority rejects these dictionary definitions on the grounds that “on their

face, [they] could describe almost any group of objects.” They cite Chapman v. U.S.

for the proposition that common sense imposes a rational limiting principle on

dictionary definitions and prevents courts from applying a dictionary definition in a

way that leads to absurd or nonsensical results. That, of course, is true. No one

could rationally argue that the vial itself in this case, for example, was part of a

mixture with the PCP. If that was the State’s theory, I would agree that no rational

juror could find that the vial itself and the PCP were a mixture. I would also agree

13 Id. (quoting Mixture, LEXICO, https://www.lexico.com/definition/mixture (last visited Apr. 3, 2020)). 14 Dickerson v. State, 975 A.2d 791, 798 n.16 (Del. 2009) (alteration in original) (quoting Cephas v. State, 911 A.2d 799, 801 (Del. 2006)).

6 that if a container held PCP and pennies, or PCP and peanuts, or PCP and some other

such thing that was obviously nothing more than a foreign object, the State could

not proceed on a mixture theory, and if it tried to do so a motion for judgment of

acquittal should be granted. But cases should be decided on their own facts, not

hypotheticals. Here, the brown particles were floating in the PCP. The issue is

whether a juror could rationally find that the combination of the brown particles and

the PCP was a mixture, giving the word its commonly accepted meaning. I think

that a juror could rationally decide that the meaning of the word “mixture” is broad

enough to cover the PCP and the brown particles. Whether I think the contents of

the vial were a mixture, or even whether a reasonable juror would think they were a

mixture, is not relevant.

For me, the analysis would end there. I think the federal cases discussed by

the parties in their briefs and the Majority in its opinion are beside the point. The

jury had no knowledge of such cases. I do not believe that those cases can have any

bearing on what the jury could rationally conclude from the evidence it heard. In

addition, the cases mentioned involve legal interpretations of the word mixture in

federal sentencing statutes and guidelines. 15 This case involves a question of fact

15 Chapman v. United States, 500 U.S. 453, 461-62 (1991); Griffith v. United States, 871 F.3d 1321, 1330-31 (11th Cir. 2017); United States v. Killion, 7 F.3d 927, 929 (10th Cir. 1993); United States v. Rodriguez, 975 F.2d 999, 1004 (3d Cir. 1992); United States v. Bristol, 964 F.2d 1088, 1089-90 (11th Cir. 1992) (per curiam); United States v. Robins, 967 F.2d 1387, 1391 (9th Cir. 1992); United States v. Sherrod, 964 F.2d 1501, 1509 (5th

7 submitted to a jury. The standards of review are different.16 I also do not think that

the description of the Controlled Substances Act as a “market-oriented”

classification scheme 17 is of any helpful relevance in the context of a motion for

judgment of acquittal. The jury was not asked to consider this scheme in its

deliberations over whether the State had proven, beyond a reasonable doubt, that the

defendant was guilty of Aggravated Possession of PCP.

The power to define crimes belongs to the General Assembly, not this Court,

and the public is entitled to have a criminal statute enforced exactly as enacted by

the General Assembly. 18 The Controlled Substances Act now includes 52 statutory

Cir. 1992), cert. denied sub nom. Sewell v. United States, 507 U.S. 953 (1993); United States v. Acosta, 963 F.2d 551, 553 (2d Cir. 1992); United States v. Walker, 960 F.2d 409, 412-13 (5th Cir. 1992), cert. denied sub nom. Walker v. United States, 506 U.S. 967 (1992); United States v. Jennings, 945 F.2d 129, 134-35 (6th Cir. 1991); United States v. Rolande- Gabriel, 938 F.2d 1231, 1233 (11th Cir. 1991); United States v. Mahecha-Onofre, 936 F.2d 623, 625 (1st Cir. 1991). 16 This Court typically reviews de novo the Superior Court’s interpretation of a statute, Dennis v. State, 41 A.3d 391, 393 (Del. 2012), but in this case, while we review the denial of a motion for judgment of acquittal de novo, we are tasked with applying a more deferential standard of review in considering whether any rational juror, viewing the evidence in the light most favorable to the State, could have concluded beyond a reasonable doubt that the substances inside the vial constituted a mixture of PCP, see Pardo, 160 A.3d at 1149-50. 17 As recognized in Traylor v. State, 458 A.2d 1170, 1177 (Del. 1983) (finding that Delaware’s Controlled Substances Act withstood equal protection scrutiny because a rational basis for the Act existed and concluding that such a rational basis existed by favorably comparing the Act with similar statutory regimes as interpreted by courts in Florida, Illinois, Michigan, and New York). 18 See State v. Sturgis, 947 A.2d 1087, 1090-91 (Del. 2008) (discussing the separation of powers inherent in Delaware’s constitutional structure, warning against the encroachment of one branch on the province of another, and recognizing the General Assembly’s role in defining and attaching punishments to crimes).

8 definitions, but the General Assembly has not chosen to enact a definition of

“mixture.”19 The General Assembly has not included any language in the Act which

narrows the meaning of “mixture” by requiring a showing that the mixture be

marketable or useable or that a drug compound be usable in the chain of distribution.

It has left the meaning of the word mixture, like any other undefined word, as a

question of fact to be decided by a jury, guided only by the standard instruction that

the jury is to give undefined words their commonly accepted meaning. Our role is

simply to decide whether a juror so instructed could rationally conclude that the

contents of the vial were a mixture. I believe a juror could rationally so find, and I

would affirm the judgment of the Superior Court.

19 See 16 Del. C. § 4701.