MEMORANDUM DECISION                                                       FILED
                                                                     May 03 2017, 9:25 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                              CLERK
                                                                      Indiana Supreme Court
precedent or cited before any court except for the                       Court of Appeals
                                                                           and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
William W. Gooden                                        Curtis T. Hill, Jr.
Mt. Vernon, Indiana                                      Attorney General of Indiana
                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Wesley A. Barnes,                                        May 3, 2017

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         65A05-1611-CR-2727
        v.                                               Appeal from the Posey Circuit
                                                         Court.
                                                         The Honorable James M. Redwine,
State of Indiana,                                        Judge.
Appellee-Plaintiff.                                      Cause No. 65C01-1605-F6-256




Barteau, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 65A05-1611-CR-2727 | May 3, 2017            Page 1 of 6
                                          Statement of the Case
[1]   Wesley A. Barnes appeals his conviction of possession of a controlled
                                                   1
      substance, a Class A misdemeanor. We affirm.


                                                       Issue
[2]   Barnes raises one issue, which we restate as: whether the trial court erred in

      concluding Barnes did not have a valid prescription for the Hydrocodone that

      was found in his possession.


                                   Facts and Procedural History
[3]   On May 2, 2016, Deputy Isaac Fuelling of the Posey County Sheriff’s Office

      looked for Barnes with the intent of arresting him on several active warrants.

      Deputy Fuelling and three other deputies went to an address in Posey County

      where they believed Barnes would be found.


[4]   Barnes was at the address, and the officers took him into custody. As they

      patted him down, the officers found a bag of pills in Barnes’ pants. Barnes

      claimed the pills were extra strength Tylenol that a friend had given him for a

      headache. The pills were later determined to consist of 7.5 milligram tablets of

      Hydrocodone, a controlled substance. At trial, Barnes testified his mother gave

      him the pills. He further submitted evidence showing that in August 2013, he




      1
          Ind. Code § 35-48-4-7 (2014).



      Court of Appeals of Indiana | Memorandum Decision 65A05-1611-CR-2727 | May 3, 2017   Page 2 of 6
      had received a valid prescription from Dr. Chou for 112 7.5-milligram tablets of

      Hydrocodone. The prescription indicated that there would be no refills. Barnes

      conceded he had not been to Dr. Chou’s office since 2013 or early 2014, and he

      could not have purchased more Hydrocodone at a pharmacy using the 2013

      prescription.


[5]   The State charged Barnes with possession of a controlled substance as a Level 6

      felony. Barnes waived his right to a jury trial but requested a speedy trial. Prior

      to the bench trial, the parties agreed to reduce the charge from a Level 6 felony

      to a Class A misdemeanor. The court heard evidence and determined Barnes

      was guilty of possession of a controlled substance as a Class A misdemeanor.

      The judge stated, “If you had had these pills left over from your 2013

      prescription, I would agree completely with Mr. Gooden and find you not

      guilty. You got these from somebody else. So this prescription is of no efficacy

      to you in that regard.” Tr. p. 17. Next, the court imposed a sentence, and this

      appeal followed.


                                   Discussion and Decision
[6]   Barnes contends his conviction must be reversed because he proved he had a

      valid prescription for Hydrocodone. The State disagrees with Barnes’ definition

      of a valid prescription. The parties do not appear to dispute the facts. Instead,

      they disagree about the application of the law to undisputed facts. In this

      circumstance, our standard of review is de novo. Austin v. State, 997 N.E.2d

      1027, 1039 (Ind. 2013). We are neither bound by, nor do we defer to, a trial


      Court of Appeals of Indiana | Memorandum Decision 65A05-1611-CR-2727 | May 3, 2017   Page 3 of 6
      court’s legal interpretation of a statute. Houston v. State, 898 N.E.2d 358, 361

      (Ind. Ct. App. 2008), trans. denied.


[7]   The governing statute, Indiana Code section 35-48-4-7, provides, in relevant

      part:

              (a) A person who, without a valid prescription or order of a
              practitioner acting in the course of the practitioner’s professional
              practice, knowingly or intentionally possesses a controlled
              substance (pure or adulterated) classified in schedule I, II, III, or
              IV, except marijuana, hashish, salvia, or a synthetic cannabinoid,
              commits possession of a controlled substance, a Class A
              misdemeanor.

[8]   The State must prove beyond a reasonable doubt that the defendant knowingly

      or intentionally possessed a controlled substance. Schuller v. State, 625 N.E.2d

      1243, 1246 (Ind. Ct. App. 1993). The existence of a valid prescription is a

      defense to the offense, and the defendant has the burden of proving the valid

      prescription by a preponderance of the evidence. Id.


[9]   The General Assembly has not defined a “valid prescription” for purposes of

      this statute, so we resort to our rules of statutory construction. Where the

      language of a statute is clear and unambiguous, we need not apply any rules of

      construction other than to require that words and phrases be taken in their

      plain, ordinary, and usual sense. Houston, 898 N.E.2d at 361. The legislature is

      presumed to have intended the language to be applied logically and not to bring

      about an unjust or absurd result. Id.




      Court of Appeals of Indiana | Memorandum Decision 65A05-1611-CR-2727 | May 3, 2017   Page 4 of 6
[10]   Barnes argues that his 2013 prescription had been issued in accordance with the

       law, thus for purposes of Indiana Code section 35-48-4-7 he had a “valid

       prescription” for Hydrocodone when he possessed the Hydrocodone that his

       mother had given him. The State responds that a prescription can only be

       considered “valid” if it applies to the contraband that is found in a defendant’s

       possession.


[11]   We agree with the State. Barnes’ reading of Indiana Code section 35-48-4-7

       erroneously isolates the “valid prescription” clause from the remainder of the

       statute. A plain language reading of Indiana Code section 35-48-4-7 results in a

       conclusion that the “valid prescription” must apply to the specific pills that the

       defendant is accused of possessing; that is, the specific controlled substance

       must have been obtained pursuant to a prescription. See Burgin v. State, 431

       N.E.2d 864, 867 (Ind. Ct. App. 1982) (affirming conviction for possession of

       Desoxyn without a prescription; appellant failed to demonstrate that he had

       obtained the pills in his possession “under a specific valid prescription.”).


[12]   This reading of the statute is supported by other statutes governing controlled

       substances. Hydrocodone is a schedule II controlled substance. Ind. Code §

       35-48-2-6 (2015). A schedule II controlled substance may not be dispensed

       “without the written or electronic prescription of a practitioner.” Ind. Code §

       35-48-3-9 (2013). Furthermore, “no prescription for a schedule II substance

       may be refilled.” Id. A reader of these statutes must conclude that

       Hydrocodone is to be distributed under tightly controlled circumstances based



       Court of Appeals of Indiana | Memorandum Decision 65A05-1611-CR-2727 | May 3, 2017   Page 5 of 6
       on a specific, limited prescription. An outdated prescription for Hydrocodone

       cannot provide a defense for possession of Hydrocodone pills years later.


[13]   In the current case, we agree with the trial court that Barnes’ defense may have

       been valid if he had shown that the Hydrocodone pills he possessed on May 2,

       2016 were obtained pursuant to the 2013 prescription. Instead, it is undisputed

       that Barnes had not seen Dr. Chou since early 2014 at the latest, that a

       pharmacy would not have given Barnes more Hydrocodone pursuant to the

       2013 prescription, and that Barnes received the pills from his mother rather than

       a licensed pharmacy. Under the plain language of Indiana Code section 35-48-

       4-7, the trial court did not err in concluding Barnes had failed to prove his

       defense of possessing the pills pursuant to a valid prescription.


                                                Conclusion
[14]   For the reasons stated above, we affirm the judgment of the trial court.


[15]   Affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 65A05-1611-CR-2727 | May 3, 2017   Page 6 of 6
