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Illegal Possession Prescription Drug – Sufficiency of Evidence

State v. Troy A. Keys, 2011AP550-CR, District 3, 8/30/11

court of appeals decision (1-judge, not for publication); for Keys: Donna L. Hintze, SPD, Madison Appellate; case activity

Evidence held insufficient to support scienter element of illegal possession of prescription drug,  § 450.11(7)(h). A pill container, container 2 Citalopram pills, were found on Keys’ coffee table The court rejects the State’s argument that the jury reasonably could have inferred Keys’ knowledge the two pills were a prescription drug from his proven knowledge of cocaine and marijuana, ¶9. In addition, the State didn’t prove that he didn’t a prescription for the pills.

¶11      When asked to identify the pills found at Keys’ residence, Katers testified, “This is a metal pill container which I located on the coffee table, and it contained these two pills which I later identified as a nonprescribed prescription, I guess you could say – a controlled prescription.”  (Emphasis added.)  When asked how he identified the pills, Katers explained he used the website Ident-A-Drug.   The record shows Katers did not testify Keys lacked a prescription for the pills, and his use of the word “nonprescribed” was a misstatement that he immediately corrected.

¶12      Further, we disagree with the State that the jury could reasonably infer that, because the pills were found in a metal container instead of a labeled prescription bottle, Keys did not have a prescription for the drugs.  We note that individuals frequently use alternative containers to carry or organize prescription medication.  We conclude the inference, that an individual lacks a prescription solely because a small number of his or her pills are not kept in a labeled bottle, is entirely unreasonable.  See Poellinger, 153 Wis. 2d at 507.  The evidence presented at trial does not sufficiently support Keys’ conviction for illegal possession of a prescription drug.

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