Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of the City of St. Louis Honorable
Robert H. Dierker, Jr.
S. Van Amburg, Judge
Joshua Graham, appeals from his conviction and sentence for
possession of a controlled substance and unlawful use of drug
paraphernalia. We reverse and remand.
indicated in the trial court's order and memorandum,
there is no real dispute about the facts of this case. Graham
was hospitalized at Barnes-Jewish Hospital on October 2014.
An attending physician wrote an order providing that Graham
could be administered oxycodone for pain. Under such order,
the nurse was to deliver the tablet to Graham, observe him
take it by mouth, and record the event.
October 12, 2014, the nurse provided an oxycodone tablet to
Graham and testified that she believed he had taken it by
mouth as directed pursuant to the order. Shortly thereafter,
the nurse responded to a call light from the bathroom in
Graham's hospital room. She found Graham on the floor
with a needle in his arm and crushed powder in a spoon
nearby. The trial court found that "[t]here can be no
doubt that [Graham] had used the crushed oxycodone tablet to
was charged by indictment with possession of a controlled
substance and possession of drug paraphernalia with intent to
use. Graham waived jury trial and, on October 30, 2015, the
cause proceeded to a bench trial. The trial court found
Graham guilty of both charges. Graham subsequently filed a
"Motion to Reconsider",  claiming that he obtained the drug
pursuant to the valid order of a licensed medical
practitioner. As a result, Graham argued there was
insufficient evidence that Graham committed the offenses
charged because his possession of oxycodone was pursuant to a
valid prescription. The court held that the plain language of
the statute evinces a legislative intent to exempt controlled
substances that are obtained in accordance with a
prescription or physician's order; however, it did not
exempt persons who converted the substance to a different
form for a different, non-therapeutic purpose. As a result,
the court denied Graham's motion to reconsider and
sentenced him to three years for possession and a concurrent
90 days for unlawful use of drug paraphernalia. This appeal
court-tried case, the sufficiency of the evidence is
determined by the same standard as in a jury-tried case, and
that is whether or not there was sufficient evidence from
which the trier of fact could have reasonably found guilt.
State v. Downen, 3 S.W.3d 434, 435 (Mo. App. S.D.
1999). In determining whether or not there is evidence
sufficient to support a finding of guilt, an appellate court
may not weigh the evidence, but accepts as true all evidence
tending to prove guilt together with all reasonable
inferences that support the verdict, and all contrary
evidence and inferences are ignored. Id. However,
"[s]tatutory interpretation is a question of law, and
questions of law are reviewed de novo." State v.
Downing, 359 S.W.3d 69, 70 (Mo. App. W.D. 2011)
(internal citations omitted).
challenges the sufficiency of the evidence to support his
conviction on both charges. In Point I, he argues that the
State failed to prove beyond a reasonable doubt that Graham
committed the offense of possession of a controlled substance
because he possessed oxycodone pursuant to a valid
prescription. In Point II, Graham argues that because he
possessed the controlled substance lawfully, the State could
not prove beyond a reasonable doubt that he committed the
offense of unlawful use of drug paraphernalia because the
statute requires either the presence of an unlawful
controlled substance or evidence that paraphernalia was to be
used in connection with an unlawful substance.
Rev. Stat. § 195.202.1 provides "Except as
authorized by sections 195.005 to 195.425, it is unlawful for
any person to possess or have under his control a controlled
substance."  Mo. Rev. Stat.
§ 195.180.1 provides:
A person may lawfully possess or have under his control a
controlled substance if such person obtained the controlled
substance directly from, or pursuant to, a valid prescription
or order of a practitioner while acting in the course of a
practitioner's professional practice or except as
otherwise authorized by sections 195.005 to 195.425.
essence, the statute provides the defendant with a defense to
a possession charge, and the burden of proof is on the
defendant to show that his possession of a controlled