People v. Pegenau, Docket No. 137109

• Citation: 501 N.W.2d 211,199 Mich.App. 161
• Decision Date: 05 April 1993
• Docket Number: Docket No. 137109
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Paul PEGENAU, Jr., Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 211

501 N.W.2d 211

199 Mich.App. 161

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Paul PEGENAU, Jr., Defendant-Appellant.

Docket No. 137109.

Court of Appeals of Michigan.

Submitted Oct. 6, 1992, at Marquette.

Decided April 5, 1993, at 10:05 a.m.

Released for Publication June 24, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Gary L. Walker, Pros. Atty., and Joni Brandon, Asst. Pros. Atty., for the People.

Mark Peter Stevens, Marquette, for defendant-appellant.

Before CONNOR, P.J., and BRENNAN and MARILYN J. KELLY, JJ.

MARILYN J. KELLY, Judge.

Following a jury trial, defendant was convicted of unlawful possession of Valium and Xanax. M.C.L. § 333.7403(2)(b); M.S.A. § 14.15(7403)(2)(b). His sentence was sixty days in jail and twenty-four months' probation. On appeal, he argues that he was denied a fair trial by certain remarks made by the prosecutor which improperly shifted the burden of proof to him. Defendant asserts, also, that there was no evidence of unlawful possession, and the jury verdict was against the great weight of the evidence. Therefore, the court erred in denying his motions for directed verdict, judgment notwithstanding the verdict and new trial. We reverse.

The police arrested defendant for drunk driving. During a custodial search, they discovered a bottle of pills in his pocket later identified as containing Valium and Xanax. Defendant told the police that he had a prescription for the pills but did not remember the name of the doctor who had prescribed them.

At trial, defendant testified that he had injured his back some years earlier, and doctors in several locations had prescribed Valium and Xanax to relieve the pain. Defendant's job required extensive travel. He had recently seen a doctor in Syracuse, New York, but could not remember the name. Defendant produced no written documentation confirming that he had a prescription for the drugs.

Dr. Ronald Sanders testified that he had examined defendant and found that he suffered from a longstanding back injury. He indicated that it would be appropriate to prescribe Xanax and Valium for defendant's injury. By examining defendant's medical records, Sanders determined that doctors had prescribed those drugs, plus others, for defendant during the nine-year period after his back injury.

I

On appeal, defendant argues that he was denied a fair trial, because the court permitted the prosecutor to shift the burden to him. It was the prosecution's position at trial that defendant had to produce documentary proof to rebut the statutory presumption of illegal possession. Defendant alleges that the nondocumentary evidence he did present was sufficient to rebut the presumption. We agree.

The Public Health Code provides that a person found with a controlled substance does not possess it illegally if he obtained it through the valid prescription of a practitioner. M.C.L. § 333.7403(1); M.S.A. § 14.15(7403)(1). The burden of proving he falls under this exception is on the defendant. M.C.L. § 333.7531; M.S.A. § 14.15(7531). The statute provides:

(1) It is not necessary for this state to negate any exemption or exception in this article in a complaint, information, indictment, or other pleading or in a trial, hearing, or other proceeding under this article. The burden of proof of an exemption or exception is upon the person claiming it.

(2) In the absence of proof that a person is the authorized holder of an appropriate license or order form issued under this article, the person is presumed not to be the holder of the license or order form. The burden of proof is upon the person to rebut the presumption. [M.C.L. § 333.7531; M.S.A. § 14.15(7531).]

If the defendant adduces any evidence or some competent evidence that he was authorized to possess the substance, the prosecution must prove lack of authorization beyond a reasonable doubt. People v. Wooster, 143 Mich.App. 513, 517, 372 N.W.2d 353 (1985), citing People v. Bailey, 85 Mich.App. 594, 599, 272 N.W.2d 147 (1978); People v. Bates, 91 Mich.App. 506, 516, 283 N.W.2d 785 (1979). This Court has never required a defendant to show a specific prescription for a controlled substance in order to rebut the presumption of unlawful possession. We likewise refuse to do so here.

At trial, defendant testified that he had severely injured his back. Dr. Sanders confirmed the fact of the injury. Defendant also indicated that the drugs found in his possession were remnants from prescriptions he had received from out-of-town physicians with whom he had treated. We believe defendant provided "some competent...