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State v. Graham

Court of Appeals of Missouri, Eastern District, Third Division

April 25, 2017

STATE OF MISSOURI, Plaintiff/Respondent,
v.
JOSHUA GRAHAM, Respondent/Appellant.

         Appeal from the Circuit Court of the City of St. Louis Honorable Robert H. Dierker, Jr.

          OPINION

          Lisa S. Van Amburg, Judge

         Appellant, Joshua Graham, appeals from his conviction and sentence for possession of a controlled substance and unlawful use of drug paraphernalia. We reverse and remand.

         Background

         As 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.

         On 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 inject himself."

         Graham 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", [1] 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 follows.

         Standard of Review

         In a 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).

         Discussion

         Graham 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.

         Mo. 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." [2] 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.

         In 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 substance ...


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