Linda I. Thomas v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: March 26, 1996
• Docket: 0671952
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bray and Fitzpatrick Argued at Richmond, Virginia

LINDA I. THOMAS

v. Record No. 0671-95-2 MEMORANDUM OPINION * BY JUDGE JOHANNA L. FITZPATRICK COMMONWEALTH OF VIRGINIA MARCH 26, 1996

FROM THE CIRCUIT COURT OF NORTHUMBERLAND COUNTY Joseph E. Spruill, Jr., Judge Wayne L. Emery (Wilkins, Davison & Emery, on brief), for appellant.

Patricia L. McKenney, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Linda I. Thomas (appellant) was convicted in a bench trial

of two counts of making or uttering a false or forged

prescription in violation of Code § 18.2-258.1(E). On appeal,

she argues that the trial court erred in finding the evidence

sufficient to convict because the Commonwealth failed to prove

that: (1) the prescriptions were for drugs; (2) the

prescriptions were forged; and (3) she made or uttered the

prescriptions. Finding no error, we affirm. BACKGROUND

On July 27, 1994, appellant and a companion entered the

pharmacy owned by Dr. Michael J. Mangano, a licensed pharmacist.

Dr. Mangano's clerk handed him two prescriptions purportedly

* Pursuant to Code § 17.116.010 this opinion is not designated for publication. ordered by Dr. James F. Hamilton. The prescriptions were for

Tylenol No. 4, which contains codeine, and Xanax, an anxiety

medication. Dr. Mangano had filled over 5,000 of Dr. Hamilton's

prescriptions and was familiar with both his signature and his

method of prescribing medication. He called Dr. Hamilton to

verify the prescriptions. After this telephone call, he

immediately notified the police of a possible irregularity and

filled the prescriptions. Dr. Mangano did not see who initially left the prescriptions

but called the name, "Carrie Brown," which was listed on the

requests. Appellant responded to the name, and Dr. Mangano

"counseled her" about the pills, referring to her as "Carrie

Brown." After appellant left the store with the medication,

Lieutenant Wilkins and Captain Neale of the Northumberland County

Sheriff's Department confronted her in the parking lot and

questioned her about the prescriptions. Appellant was "very

vague at first." She then said Carrie Brown was a friend, but

could not give an address, phone number, or other identifying

information for her. PRESCRIPTION FOR "DRUGS"

Appellant argues that the Commonwealth failed to prove that

the items requested in the prescriptions were "drugs." We

disagree.

"When considering the sufficiency of the evidence on appeal

of a criminal conviction, we must view all the evidence in the

2 light most favorable to the Commonwealth and accord to the

evidence all reasonable inferences fairly deducible therefrom."

Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719,

721 (1988). "The judgment of a trial court sitting without a

jury is entitled to the same weight as a jury verdict and will

not be set aside unless it appears from the evidence that the

judgment is plainly wrong or without evidence to support it."

Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987). Code § 18.2-258.1 provides as follows: A. It shall be unlawful for any person to obtain or attempt to obtain any drug or procure or attempt to procure the administration of any controlled substance or marijuana: (i) by fraud, deceit, misrepresentation, embezzlement, or subterfuge; or (ii) by the forgery or alteration of a prescription or of any written order; or (iii) by the concealment of a material fact; or (iv) by the use of a false name or the giving of a false address. B. It shall be unlawful for any person to furnish false or fraudulent information in or omit any information from, or willfully make a false statement in, any prescription, order, report, record, or other document required by Chapter 34 of Title 54.1. C. It shall be unlawful for any person to use in the course of the manufacture or distribution of a controlled substance or marijuana a license number which is fictitious, revoked, suspended, or issued to another person. D. It shall be unlawful for any person, for the purpose of obtaining any controlled substance or marijuana, to falsely assume the title of, or represent himself to be, a manufacturer, wholesaler, pharmacist, physician, dentist, veterinarian or other authorized person. E. It shall be unlawful for any person

3 to make or utter any false or forged prescription or false or forged written order. F. It shall be unlawful for any person to affix any false or forged label to a package or receptacle containing any controlled substance. G. This section shall not apply to officers and employees of the United States, of this Commonwealth or of a political subdivision of this Commonwealth acting in the course of their employment, who obtain such drugs for investigative, research or analytical purposes, or to the agents or duly authorized representatives of any pharmaceutical manufacturer who obtain such drugs for investigative, research or analytical purposes and who are acting in the course of their employment; provided that such manufacturer is licensed under the provisions of the Federal Food, Drug and Cosmetic Act; and provided further, that such pharmaceutical manufacturer, its agents and duly authorized representatives file with the Board such information as the Board may deem appropriate. H. Any person who shall violate any provision herein shall be guilty of a Class 6 felony.

(Emphasis added). The Virginia Drug Control Act defines

"prescription" as "an order for drugs or medical supplies." Code

§ 54.1-3401. "While penal statutes must be strictly construed

against the Commonwealth, '[t]he plain, obvious, and rational

meaning of a statute is always preferred to any curious, narrow

or strained construction; a statute should never be construed so

that it leads to absurd results.'" Newton v. Commonwealth, 21

Va. App. 86, 89, 462 S.E.2d 117, 119 (1995) (quoting Branch v.

Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1992)).

Examining the plain meaning of Code § 18.2-258.1(E), we hold

4 that the term "prescription" refers to "an order for drugs or

medical supplies." In this case, Dr. Mangano testified that the

prescriptions at issue were for pain and anxiety medicine. One

of the prescriptions was for Tylenol Number 4, which contains

sixty milligrams of codeine. This testimony was sufficient to

identify the substances listed in the prescriptions as "drugs." LAY WITNESS TESTIMONY AS TO HANDWRITING

Appellant next argues that the trial court erred in

admitting Dr. Mangano's testimony to establish that the

signatures on the prescriptions were not Dr. Hamilton's. At trial, Dr. Mangano testified that he had filled over

5,000 prescriptions for Dr. Hamilton and was familiar with his

signature. He examined the two prescriptions and stated that

they were not signed by Dr. Hamilton. He also testified that Dr.

Hamilton did not normally prescribe the types or quantities of

drugs contained in the prescriptions, nor the number of refills

indicated. Appellant argued that, in the absence of a showing

that Dr. Hamilton was unavailable, Dr. Mangano's lay opinion as

to the authenticity of the signatures was inadmissible.

"[A] [lay] witness is competent to testify to the

genuineness of a controverted signature if he has the proper

knowledge of the party's handwriting." Pepper v. Barnett, 63 Va.

(22 Gratt.) 405, 407 (1872). The lack of familiarity with the

handwriting of another affects the weight of the testimony, not

its admissibility. Id. The party offering the handwriting

5 evidence is not required to show that the author is unavailable.

See Foulkes v. Commonwealth, 41 Va. (2 Rob.) 836, 841 (1843).

See also 1 Charles E. Friend, The Law of Evidence in Virginia

§ 15-9, at 627-28 (4th ed. 1993).

In the instant case, the evidence established that Dr.

Mangano was very familiar with Dr. Hamilton's signature, having

filled over 5,000 prescriptions written by Dr. Hamilton. After

questioning the authenticity of the prescriptions, Dr. Mangano

called Dr. Hamilton to verify them and immediately after the

conversation called the police. Dr. Mangano testified that the

signatures on the two prescriptions were not Dr. Hamilton's and

that Dr. Hamilton did not normally prescribe these types and

quantities of drugs, nor the number of refills. Additionally,

the Commonwealth introduced into evidence, without objection, an

authentic prescription of Dr. Hamilton that clearly differed from

the two presented in this case. The testimony of Dr. Mangano was

clearly admissible, and his intimate knowledge of Dr. Hamilton's

signature was entitled to great weight. The pharmacist's

testimony was competent, not inherently incredible, and was

sufficient to prove beyond a reasonable doubt that the

prescriptions had been forged. UTTERING A PRESCRIPTION

Lastly, appellant argues that the evidence is insufficient

to show that she made or uttered the prescriptions.

"Uttering" is defined as "'[t]o put or send [as a forged

6 check] into circulation . . . to utter and publish.' It is an

assertion by word or action that a writing known to be forged is

good and valid." Ramsey v. Commonwealth, 2 Va. App. 265, 269,

343 S.E.2d 465, 468 (1986) (quoting Bateman v. Commonwealth, 205

Va. 595, 599-600, 139 S.E.2d 102, 106 (1964)).

Viewing the evidence in the light most favorable to the

Commonwealth, the evidence proved that appellant entered the

pharmacy with a companion. Dr. Mangano's store clerk then handed

him two prescriptions to be filled. After Dr. Mangano filled the

prescriptions, he called the name "Carrie Brown," listed on the

prescriptions. Appellant responded, and Dr. Mangano proceeded to

counsel her on the medicine. Appellant then left the store with

the drugs. Under these circumstances, the trial court was

entitled to infer that appellant had not only picked up the drugs

for "Carrie Brown," but also was the one who gave the

prescriptions to the clerk. The trial court was not required to

believe appellant's self-serving testimony that the prescriptions

were for a friend. See Daniel v. Commonwealth, 15 Va. App. 736,

744, 427 S.E.2d 423, 428 (1993) ("[T]he trial court as the trier

of fact is not required to accept any of [appellant's] testimony

and may rely on it in whole, in part, or reject it completely.").

Thus, the evidence is sufficient to prove beyond a reasonable

doubt that appellant made or uttered the forged prescriptions in

violation of Code § 18.2-258.1(E).

Accordingly, the judgments of the trial court are affirmed.

7 Affirmed.