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Delinquency – Possession of Non-Narcotic Controlled Substance (Adderall)

State v. Anthony M. S., 2010AP1669, District 4, 6/9/11

court of appeals decision (1-judge, not for publication); for Anthony M.S.: Shelley Fite, SPD, Madison Appellate; case activity

The State sought to prove that the pills Anthony M.S. possessed were a non-narcotic controlled substance (Adderall), § 961.41(3g), through the testimony of the Osseo Police Chief that the website Drugs.com established the pills’ identity. The trial court found Anthony M.S. delinquent on this testimony, but the court of appeals holds that the proof was insufficient to establish guilt. The pills may have been “Adderall,” but the State was required to show that they contained a controlled substance, such as amphetamine. Even if the information attributed to Drugs.com was admissible (rather than mere hearsay), it made no reference to Adderall, nor did the State present other evidence proving the presence of amphetamine in Adderall. (“It is plainly not a matter of common knowledge that amphetamine is an ingredient of the prescription drug Adderall.”) State v. Stank, 2005 WI App 236, 288 Wis. 2d 414, 708 N.W.2d 43 (PDR used to establish nature of substance), distinguished.

¶11      In arguing that the evidence was sufficient to prove that the pills contained a controlled substance, the State points to Zachary’s testimony that the pills he gave to Anthony were prescribed to him for attention deficit disorder, and that they were called Adderall; Gregerson’s testimony that he identified the pills using Drugs.com; and the Drugs.com print-out.[4] As discussed above, this evidence does not establish that the pills in Anthony’s possession contained a controlled substance.  It shows, at most, that Anthony possessed the prescription drug Adderall.  However, Adderall is not listed on the schedules of controlled substances.  See Wis. Stat. §§ 961.14, 961.16, 961.18, 961.20, 961.22.

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