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December 8, 2019

11/2/2019 7:30:00 AM
Verdict in drug possession case hinged on prescriptions

Jamie Taylor
River News Reporter

When Oneida County Circuit Court Judge Patrick O'Melia announced his verdict Tuesday afternoon following Anthony J. Klein's two-day bench trial on drug charges he took care to explain the statutory definitions as to who can issue a prescription and what is considered a legal prescription.

Klein, 33, a School District of Rhinelander fourth grade teacher, was on trial on two charges - possession of narcotic drug, a class I felony, and possession of a controlled substance, a misdemeanor.

The charges stem from an incident on March 27 when Klein was found in a "very lethargic" state at a Rhinelander gas station. When searched by an Oneida County deputy at the time of the arrest, Klein was found to have hydrocodone/acetaminophen, a schedule II drug used to treat long-term pain, on his person. He also was in possession of two different doses of Alprazolam, a schedule IV prescription drug.

In addition to the possession charges, Klein also received a traffic citation for OWI first offense.

At trial, Klein's defense attorney Maggie Hogan argued that her client had legal prescriptions for both drugs, although one dated back to 2014.

Meanwhile, assistant district attorney Jillian Pfeifer contended that while Klein was able to produce prescriptions for some of the medication he had in his possession at the time of the incident, he was unable to produce a valid prescription for two of the medications, including the one filled in 2014.

During the first day of the trial, Pfeifer called deputy Michael Baran, the officer who responded to the gas station, to the stand.

Baran testified that of the "thousands" of calls he has responded to during his career, about 10 percent of them have substance abuse-related.

"I observed that (Klein) appeared drowsy and his movements were slow," Baran said. "I did not detect the odor of intoxicants coming from the defendant or the vehicle."

Baran testified that Klein admitted to taking his medication after finishing his duties at Central Intermediate School. He also failed tests designed to determine if an individual was under the influence of a controlled substance.

Baran identified the prescription bottle that Klein had on him at the time, as well as the pills found inside the bottle. He described how they were logged into evidence after he used an online medication directory to identify the medications based on their markings. The department's evidence technician then sent the pills to the state crime lab in Wausau for positive identification.

Under cross-examination by Hogan, Baran said that Klein would have had to show proof of valid prescriptions to the DA's office. He also stated that the vehicle Klein was found in was properly parked in a stall when he arrived.

The next witness Pfeifer called was state crime lab analyst Michell Gee, who testified to the procedures she used to test the pills.

Under cross-examination, Gee told the court that while her scientific instruments can identify what the pills were, it could not identify the strength of the medication.

On the second day of trial, Hogan called Klein to testify in his own behalf. Klein explained his history of spinal disc degeneration that has required surgery and explained the circumstances surrounding his 2014 trip to California where he received an emergency pill refill after a piece of luggage was misplaced by an airline.

Before testimony ended, Pfeifer called one more witness who was not available earlier, Seth Moe, owner and pharmacist of Three Lakes Pharmacy. Moe testified about the procedures used to fill prescriptions as well as how the markings on medication can be used to identify the drug and its dosage.

In her closing remarks, Pfeifer said Klein did not present valid prescriptions for the two drugs he was charged with illegally possessing.

In her closing, Hogan asserted that Klein received the alprazolam prescription in 2014 while on vacation in California, and that Pfeifer was unable to prove that he was in possession of medication that belonged to anyone other than himself.

Before rendering his verdict, O'Melia went through the jury instructions that apply to the charges, as well as the elements the state was required to prove. He said that the only defense to the charges "is if, by a preponderance of evidence, that the defendant can prove they had a valid prescription."

He also read aloud the statutory definitions of the charges, as well as who can write a "valid prescription" and where a prescription can be filled

"Both of those subparts say 'in this state,'" O'Melia said. "In other words, a physician, nurse, dentist or veterinarian in this state; a pharmacy, hospital or institution in this state."

"In this case, there is no prescription for the Alprazolam .5 (milligrams)," O'Melia noted. "There is no prescription bottle, and it is incumbent on the defendant to provide that."

The judge also noted that Klein was taking a combination of drugs that a medical provider most likely would not prescribe to be taken together.

"He was taking pills that were contradictory to each other and dangerous," O'Melia said.

The defense claimed the writing on the alprazolam bottle from 2014 had faded and Klein wrote his own label on it to keep track of which medication it was, however O'Melia said that didn't prove that he possessed the Alprazolam by virtue of a legal prescription.

"So, the state has proven beyond a reasonable doubt the elements, and the court will find that the defendant did not truly have the existence of, or that pill was subject to a valid prescription," O'Melia said. "Regarding the hydrocodone, there was a prescription for that from March of 2018. It has since been substituted with other pain relievers, one of which is codeine. But by more than a preponderance of evidence those hydrocodone pills were possessed pursuant to a valid prescription."

Sentencing has been set for Dec. 10.

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