State v. Blocker
| Decision Date | 11 May 2004 |
| Docket Number | No. SC 85704.,SC 85704. |
| Citation | 133 S.W.3d 502 |
| Parties | STATE of Missouri, Respondent, v. Billy Lynn BLOCKER, Appellant. |
| Court | Missouri Supreme Court |
John M. Albright, Stephen E. Walsh, Poplar Bluff, MO, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
Billy Lynn Blocker appeals his conviction and sentence after a jury trial for possession of a controlled substance, section in violation of 195.202, RSMo Supp. 19981. The circuit court of Iron County sentenced Blocker to ten years imprisonment as a prior and persistent offender under section 558.016. Because the trial court erred in denying Blocker's motion for a continuance so he could present the testimony supporting his defense that he was in lawful possession of the substance, the judgment is reversed and the case is remanded for a new trial.
On August 25, 1999, Mr. Blocker and his brother, Cary Ray, were traveling in their grandfather's car from Poplar Bluff, Missouri, to Hillsboro, Missouri. Blocker lived with his grandparents in Poplar Bluff. While Ray was driving, the car was stopped by the Missouri Highway Patrol. Blocker removed a pill from Ray's cigarette package. Blocker's grandmother had given Ray the pill to "calm his nerves down." Ray was arrested on an outstanding warrant.
Following Ray's arrest, Blocker was asked to empty his pockets. The officer found the pill in Blocker's pant pocket. Subsequent testing showed the pill to be diazepam,2 a schedule IV controlled substance listed in section 195.017.8.3
At trial, Blocker tried to argue that he was in lawful possession of the pill as an "ultimate user." Blocker argued that because he was living with his grandmother, who had a valid prescription for diazepam, he lawfully possessed "a controlled substance... for the use of a member of his household" and was, therefore, an "ultimate user" under section 195.010(40).
To support this defense, Blocker subpoenaed pharmacist Brenda Lunsford to testify that she filled a diazepam prescription for Blocker's grandmother near the time of Blocker's arrest. However, the pharmacist was temporarily unavailable to testify because of a family medical emergency on the Friday before the Monday trial. Blocker learned the pharmacist would be unavailable on Sunday, the day before trial, and obtained an affidavit from her. In the affidavit, the pharmacist stated the reasons for her temporary unavailability to testify and attached the prescription records she would have identified at trial. She further stated that she had recently filled a diazepam prescription for Blocker's grandmother.
The trial court overruled Blocker's motion for a continuance. The court determined that the pharmacist's testimony would not support Blocker's defense because the diazepam was not in the original container, but in Blocker's pocket, and was prescribed for his grandmother. Alternatively, Blocker sought to admit the pharmacist's affidavit and business records into evidence. The court accepted the offer of proof but did not furnish the affidavit or records to the jury.
After a jury trial, Blocker was sentenced to ten years imprisonment. Blocker argues that the circuit court erred in denying his motion for continuance so that he could present the pharmacist's testimony in support of his "ultimate user" defense.
The decision to grant a continuance is within the sound discretion of the trial court. State v. Edwards, 116 S.W.3d 511, 535 (Mo. banc 2003). A defendant must demonstrate that the denial of a continuance was prejudicial. State v. Taylor, 944 S.W.2d 925, 930 (Mo. banc 1997). If a continuance is not likely to result in the presence of the witness at trial, the court will not be held to have abused its discretion in denying the continuance. Edwards, at 535, (quoting State v. Dodd, 10 S.W.3d 546, 554 (Mo.App.1999)).
The primary rule of statutory construction is to give effect to legislative intent as reflected in the plain language of the statute. State v. Grubb, 120 S.W.3d 737, 739 (Mo. banc 2003). Each word or phrase in a statute must be given meaning if possible. Related statutes are also relevant to further clarify the meaning of a statute. State v. Withrow, 8 S.W.3d 75, 80 (Mo. banc 1999). If the plain language of statute creates an ambiguity, the statute will be construed to avoid unreasonable or absurd results. In re Beyersdorfer, 59 S.W.3d 523, 526 (Mo. banc 2001).
Section 195.180.1 provides, in relevant part, that:
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 section 195.005 to 195.425. (Emphasis added).
The statute provides that a person can lawfully possess or control a controlled substance if it is obtained "directly from" or "pursuant to" a valid prescription. The use of different phrases implies that each has a different meaning. Although neither phrase is statutorily defined, the plain meaning of the phrase "directly from" a valid prescription refers to possession of a controlled substance by the prescription holder. What constitutes lawful possession "pursuant to" a valid prescription is not clear. Related statutes indicate that lawful possession "pursuant to" a valid prescription can, in some circumstances, include the other members of the prescription holder's household.
Section 195.010(11) allows drugs to be dispensed to an "ultimate user" pursuant to a prescription. Section 195.010(40) defines an ultimate user as:
[A] person who lawfully possesses a controlled substance or an imitation controlled substance for his own use or for the use of a member of his household or for administering to an animal owned by him or a member of his household. (Emphasis added).
The definition of "ultimate user" indicates that the General Assembly intended to allow a household member to possess or control the prescriptions of another household member. However, the scope of lawful possession is limited by the prescription. Once a person has lawful possession, it remains lawful only so long as the prescribed substance is for "his own use" or "for the use of member of his household." Section 195.010(40). For instance, a son could lawfully retrieve a prescription drug for his bedridden father. Lawful possession would cease if the son used the drug himself or transferred it for use by another person.
If household members could not lawfully possess or control substances prescribed to others in the household, the results would be absurd. For instance, if spouses share and have joint control over a medicine cabinet, the spouse without the prescription could be charged with illegally possessing a controlled substance prescribed to the other. That would be the case if one spouse stored an illegal narcotic, such as methamphetamine, in a shared cabinet. See, State v. Hall, 687 S.W.2d 924 (Mo.App.1985) (). However, by including household members among those who may lawfully possess or control substances prescribed to another household member, the General Assembly exempted household members from prosecution for prescription drugs because each household member's possession or control arises "pursuant to" a prescription.
Blocker's motion for continuance and affidavit established that his grandmother, a household member, had a prescription for the diazepam he was charged with possessing. Blocker was entitled to a continuance until he could secure the pharmacist's testimony. She was the only witness who could supply the testimony necessary for Blocker to establish his defense. Whether Blocker was holding the pill for the use of a household member with a prescription is a jury question. Under the circumstances of this case, it is quite possible that the jury could have found that the state failed to prove its case if Blocker had been able to present his defense with the pharmacist's testimony. The trial court...
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...a controlled substance for the purpose of returning it to its lawful owner. ( Miller, supra, 193 P.3d at p. 97.) In State v. Blocker (Mo.2004) 133 S.W.3d 502 ( Blocker ), the defendant was charged with the possession of a controlled substance he claimed had been prescribed to his grandmothe......
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..., 116 S.W.3d 511, 535 (Mo. banc 2003). An accused must demonstrate he was prejudiced by the denial of the continuance. State v. Blocker , 133 S.W.3d 502, 504 (Mo. banc 2004). "If a continuance is not likely to result in the presence of the witness at trial, the court will not be held to hav......
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