Opinion
NO. 2013-KA-0617
01-15-2014
STATE OF LOUISIANA v. DENISE M. FAGGIN
Leon A. Cannizzaro, Jr. District Attorney J. Bryant Clark, Jr. Assistant District Attorney Parish of Orleans COUNSEL FOR APPELLANT, STATE OF LOUISIANA Sherry Watters LOUISIANA APPELLATE PROJECT COUNSEL FOR DEFENDANT/APPELLEE, DENISE M. FAGGIN
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 502-329, SECTION "A"
Honorable Laurie A. White, Judge
Judge Dennis R. Bagneris, Sr.
(Court composed of Judge Dennis R. Bagneris, Sr., Judge Edwin A. Lombard, Judge Joy Cossich Lobrano)
LOBRANO, J., DISSENTS WITH REASONS
Leon A. Cannizzaro, Jr.
District Attorney
J. Bryant Clark, Jr.
Assistant District Attorney
Parish of Orleans
COUNSEL FOR APPELLANT, STATE OF LOUISIANA
Sherry Watters
LOUISIANA APPELLATE PROJECT
COUNSEL FOR DEFENDANT/APPELLEE, DENISE M. FAGGIN
AFFIRMED
The State asserts the trial court abused its discretion in granting defendant's, Denise Faggin's ("Faggin"), motion to quash the bill of information under La. C.Cr.P. art. 532(10) and La. R.S. 40:961(40). The State asserts that the defendant cannot extend the plain meaning of La. C.Cr.P. art. 532(10) to allow a household member to retrieve a controlled dangerous substance for another family member. For the following reasons, we hereby affirm the judgment of the trial court.
FACTS
On November 24, 2010, Ms. Faggin was arrested for possession of hydrocodone. On December 2, 2010, the State filed a bill of information charging Ms. Faggin with possession of hydrocodone, a violation of La. R.S. 40: 967(C)(2). Ms. Faggin entered a plea of not guilty on December 16, 2010. On November 14, 2012, Ms. Faggin's attorney filed a motion to quash the bill of information with supporting documentation in the form of medical and pharmaceutical records belonging to her live-in partner, John Ezeb, in compliance with La. R.S. 40:991(A), La. C. Cr. P arts. 532(10) and 535(A)(7). A ruling on the motion was set for November 29, 2012.
La. R. S. art. 40:991(A) provides:
A. An individual who claims possession of a valid prescription for any controlled dangerous substance as a defense to a violation of the provisions of the Uniform Controlled Dangerous Substances Law shall have the obligation to produce sufficient proof of a valid prescription to the appropriate prosecuting office. Production of the original prescription bottle with the defendant's name, the pharmacist's name, and prescription number shall be sufficient proof of a valid prescription as provided for in this Section.
La. C. Cr. P. art. 535(A) provides:
A motion to quash may be filed of right at any time before commencement of the trial, when based on the ground that:
(7) The individual charged with a violation of the Uniform Controlled Dangerous Substances Law has a valid prescription for that substance.
On November 29, 2012, Ms. Faggin based her motion to quash on the La. C. Cr. P. art 532(10) argument that she was arrested while delivering the hydrocodone to her spouse, John Ezeb, and presented evidence to support her argument that Mr. Ezeb had a valid prescription for the drug, including records from Mr. Ezeb's pharmacy. The State did not file a response. The trial court ruled as follows:
Ms. Murphy, you filed a motion to quash the bill of information on behalf of Ms. Faggin. After reviewing the record, it appears the defendant's husband validly possessed a prescription for the substance hydrocodone making the defendant a valid possessor of the prescription as a household member pursuant to Louisiana Code of Criminal Procedure Article 532 and Louisiana Revised Statute 40:961.
The court would, therefore, grant the motion to quash the bill of information.
The State now appeals this final judgment, arguing that the trial abused its discretion when it granted the defendant's motion to quash.
DISCUSSION
A trial court's ruling on a motion to quash is a discretionary one, which should not be disturbed absent a clear abuse of discretion. State v. Tran, 20121219 (La. App. 4 Cir. 4/24/13), 115 So.3d 672. The State argues that Ms. Faggin failed to provide valid grounds to justify the granting of a motion to quash, citing La. C. Cr. P. art. 532. Further, the State argues that Ms. Faggin's statement that she was retrieving the banned substance for a member of her household who has a valid prescription for hydrocodone does not fall within the exception found at La. C. Cr. P. art 532(10). The State asserts that phrases "the individual charged" and "has a valid prescription" refer exclusively to the person for whom the prescription was written and argues that the circumstances of this arrest do not comply with the requirements of that provision. Thus, the State avers that Ms. Faggin cannot extend the plain meaning of La. C. Cr. P. art 532(10) to allow a household member to retrieve a controlled dangerous substance for another family member and that the prescription profile shows that Mr. Ezeb's first hydrocodone prescription was filled on March 14, 2011, three and one half months after Ms. Faggin was arrested. The State further argues that no evidence was presented to the court in support of the assertion that Ms. Faggin and Mr. Ezeb were actually members of the same household at the time of the arrest.
La. C. Cr. P. art. 532(10) provides, in pertinent part:
A motion to quash may be based on one or more of the following grounds:
(10) The individual charged with a violation of the Uniform Controlled Dangerous Substances Law has a valid prescription for that substance.
Actual initial prescription date was October 18, 2010. She was arrested on November 24, 2010.
Ms. Faggin argues that she has timely filed a motion to quash the State's bill of information under La. C. Cr. P. art. 535(A)(7) and La. R.S. 40:991(C) , and that her statement that she was retrieving the controlled substance for a member of her household, who has a valid prescription for hydrocodone, falls squarely within the exception found at La. C. Cr. P. art 532(10). Ms. Faggin argues that she has met her burden of proof under La. R.S. 40:990(A) by providing the State and the trial court with "sufficient proof" of a valid prescription as required under La. R. S. art. 40:991(A) in the form of Mr. Ezeb's medical and prescription records and of uncontested testimony. Ms. Faggin cites La. R. S. 40:961(40) which provides the following:
La. R.S. 40:991(C ) provides:
C. Any individual who claims the defense of a valid prescription for any controlled dangerous substance shall raise this defense before commencement of the trial through a motion to quash.
La. R.S. 40:990(A) provides:
A. It shall not be necessary for the state to negate any exemption or exception set forth in this part in any complaint, information, indictment or other pleading or in any trial, hearing, or other proceeding under this part, and the burden of proof of any such exemption or exception shall be upon the person claiming its benefit.
"Ultimate user" means a person who lawfully possesses a controlled dangerous substance for his own use or for the use of a member of his household or for administration to an animal owned by him or by a member of his household.
Ms. Faggin argues that the trial court was satisfied that she and Mr. Ezeb shared a household on the day of the arrest and that the pharmacy records show that Mr. Ezeb was prescribed Hydrocodone by a licensed physician on October 18, 2010, approximately one month prior to her arrest. Thus, Ms. Faggin alleges that the trial court correctly found that she was a member of Mr. Ezeb's household and that she was covered by his prescription for the medication she was delivering to him.
The issue before this Court is whether Ms. Faggin met her burden in establishing the existence of a fellow resident or family member who has received a valid prescription for the controlled dangerous substance and has met her burden of proof under La. R.S. 40:990(A) and La. R.S. 40:961(40) by providing the State and the trial court with "sufficient proof" of a valid prescription for herself or her family member as required under La. R. S. art. 40:991(A).
La. R.S. 40:990(A) places the burden of proof of any exemption or exception upon the person claiming its benefit rather than upon the State. However, the responsibility for weighing the probative value of any evidence presented by that person is left to the discretion of the trial court.
In the case of State v. Williams, this Court found that the trial court did not abuse its discretion in finding that the defendant sufficiently carried his burden of proof in his motion to quash by relying upon a "prescription profile print-out" from Walgreens to establish that he possessed a valid prescription for a controlled dangerous substance at the time of his arrest. In State v. Tran, 2012-1219 (La. App. 4 Cir. 5/24/13) 115 So.3d 672, this Court followed its "abuse-of-discretion standard" ruling in Williams, and went on to find that the defendant's prescription was valid, and furthermore, "[found] nothing irregular or suspicious in this prescription and are satisfied that the trial judge, especially in the absence of any contravening evidence, did not abuse her discretion in finding that Mr. Tran bore his burden of sufficiently proving that he possessed a valid prescription for Carisprodol and accordingly sustaining the motion to quash." Tran, 2012-1291, p. 6, 115 So.3d at 675.
In State v. Williams, 2012-0110, p. 2, 101 So. 3d at 534, this Court held:
A trial court's ruling on a motion to quash is discretionary and should not be disturbed absent a clear abuse of discretion. State v. Sorden, 09-1416, p. 3 (La. App. 4 Cir. 8/4/10), 45 So.3d 181, 183; State v. Kitchens, 09-0834, 09-0836, p. 4 (La. App. 4 Cir. 3/24/10), 35 So.3d 404, 406; State v. Ramirez, 07-0652, p. 4 (La. App. 4 Cir. 1/9/08), 976 So.2d 204, 207; State v. Love, 00-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206 ("[b]ecause the complementary role of trial courts and appellate courts demands that deference be given to a trial court's discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court's discretion").
Ms. Faggin demonstrated that her spouse, Mr. Ezeb, was given a prescription on October 18, 2010 to treat his back pain. Ms. Faggin provided medical records and pharmacy records to show Mr. Ezeb shared the same address as she did, which was 1815 Leboeuf Ct. New Orleans La. 70114. This evidence supports Ms. Faggin's argument that on the day of her arrest, November 24, 2010, she had a valid reason to be in possession of the hydrocodone. Because the State failed to offer any opposition at the hearing, we find no error in the trial court's ruling to grant the motion to quash under La.C.Cr.P. art. 532(10). Accordingly, we hereby affirm the judgment of the trial court.
AFFIRMED