State of Iowa v. Melissa J. Ricke

• Court: Court of Appeals of Iowa
• Decided: October 15, 2014
• Docket: 13-1432
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 13-1432 Filed October 15, 2014

STATE OF IOWA, Plaintiff-Appellee,

vs.

MELISSA J. RICKE, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Cerro Gordo County, DeDra L.

Schroeder, Judge.

A defendant appeals her convictions for prohibited acts and possession of

hydrocodone without a valid prescription. AFFIRMED.

Joseph R. Lapointe, Mason City, for appellant.

Thomas J. Miller, Attorney General, Katie Fiala, Assistant Attorney

General, Carlyle D. Dalen, County Attorney, and Steven D. Tynan, Assistant

County Attorney, for appellee.

Considered by Potterfield, P.J., and Tabor and Mullins, JJ. 2

TABOR, J.

Melissa Ricke appeals from the jury verdicts finding her guilty beyond a

reasonable doubt of obtaining hydrocodone with a forged prescription and

unauthorized possession of hydrocodone. She contends the State failed to

prove she knew the doctor’s signature on the prescription for pain killers was

forged. Because the State offered credible evidence creating a jury question on

the knowledge element, we affirm her convictions.

At trial, the State offered proof of the following facts which support the

guilty verdicts. Mason City police officers started investigating suspicious

prescriptions presented at local pharmacies by nurse Gina Splitt. Their

investigation eventually turned to Ricke, who was Splitt’s co-worker and best

friend. Police Officer Jeremy Ryal discovered Ricke had filled a prescription for

Norco, a mixture of acetaminophen and hydrocodone, at the Mason City

Walgreens on September 17, 2012.

The prescription was ostensibly signed by Dr. Gholam “Gino” Zadeii, a

cardiologist at the Mason City Clinic. Ricke told Officer Ryal she “happened to

bump into Dr. Zadeii” at the hospital and had a conversation with him about pain

medication for a shoulder injury she had suffered. Ricke told the officer her own

medical provider had cut back on her prescription without telling her about it.

According to Ricke, she later made arrangements with Dr. Zadeii over the phone

for nurse Splitt to pick up the Norco prescription for Ricke.

Dr. Zadeii testified he never met Ricke before the investigation, she was

not his patient, and he never examined her shoulder or discussed her injury. He 3

also denied prescribing Ricke any medication and testified the signature on the

Norco prescription at issue was not his. In fact, he did not prescribe narcotics at

all in his cardiology practice, according to his testimony. Dr. Zadeii testified he

did know nurse Splitt from the hospital, but never prescribed drugs for her.

The defense presented testimony from Splitt, who admitted lying to police

when they were investigating her and admitted having been “really foggy” during

the investigation because she was in the “throes of addiction” to pain killers.

Splitt told the jury that she had seen Dr. Zadeii conversing with Ricke “outside the

cath lab” and she recalled picking up prescriptions for Ricke. On cross-

examination, Splitt acknowledged having several felony convictions for crimes of

dishonesty.

The State started the trial alleging eight counts against Ricke: three counts

of prohibited acts for fraudulently obtaining prescriptions, three counts of

possession of controlled substances without valid prescriptions, and two counts

of insurance fraud. The district court entered judgment of acquittal on the

insurance fraud counts and the jury acquitted Ricke on four of the remaining six

counts. The jury returned guilty verdicts on two charges involving Ricke’s

conduct on September 17, 2012: the prohibited act of obtaining hydrocodone

with a forged prescription, a class “C” felony, in violation of Iowa Code section

155A.23 (2013), and possession of hydrocodone without a valid prescription, a

serious misdemeanor, in violation of Iowa Code section 124.401(5). The court

entered judgment on those counts and sentenced Ricke to a suspended prison 4

term, not to exceed ten years, and placed her on probation for three years on the

felony count, as well as imposing a two-day jail term on the misdemeanor count.

On appeal, Ricke argues the State failed to offer sufficient proof she knew

the prescription she used to obtain the hydrocodone was forged. We review

sufficiency-of-the-evidence challenges for correction of errors at law. State v.

Thomas, 847 N.W.2d 438, 442 (Iowa 2014). We consider all evidence in the

record, both favorable and unfavorable to the verdicts, as well as all reasonable

inferences that may be fairly drawn from the evidence. See State v. Showens,

847 N.W.2d 438, 439–40 (Iowa 2014). We uphold the jury’s verdicts if they are

supported substantial evidence in the record. See id. at 440. “Evidence is

considered substantial if, when viewed in the light most favorable to the State, it

can convince a rational jury that the defendant is guilty beyond a reasonable

doubt.” State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012).

On the prohibited acts count, the jury found the State’s evidence satisfied

the following elements:

1. On or about the 17th day of September, 2012, the defendant obtained or attempted to obtain a prescription drug or procured or attempted to procure administration of the prescription drug hydrocodone. 2. The defendant did so by one or more of the following methods: a. Fraud, and/or b. Deceit, and/or c. Misrepresentation, and/or d. Subterfuge, or 3. The defendant made or uttered a false or forged prescription.

On the possession count, the jury found the evidence satisfied the

following elements: 5

1. On or about the 17th day of September, 2012, the defendant knowingly or intentionally possessed Hydrocodone, a Schedule II Controlled Substance and a Prescription Drug. 2. The defendant knew that the substance she possessed was Hydrocodone, a Schedule II Controlled Substance and a Prescription Drug.

The court also instructed the jury: “For the defendant to have knowledge

of something means she had a conscious awareness that the prescription

contained false information concerning a material fact.”

It is the knowledge element Ricke contests on appeal. She argues

presenting a forged prescription to a pharmacy to be filled “does not amount to

sufficient proof of guilty knowledge.” Ricke contends the State did not offer

sufficient evidence to rebut the testimony of her friend, Gina Splitt, who claimed

Dr. Zadeii did speak to Ricke about her shoulder pain. Splitt, who acknowledged

her credibility problems on the witness stand, also claimed she picked up valid

prescriptions at the lab and delivered them to Ricke.

Dr. Zadeii denied, under oath, having such a conversation with Ricke.

The cardiologist also testified he did not prescribe her narcotics. Dr. Zadeii’s

testimony created a strong inference Ricke lied to police and her friend Splitt

gave unreliable testimony. The district court rightly allowed the jury to settle the

credibility contest. “A jury is free to believe or disbelieve any testimony as it

chooses and to give as much weight to the evidence as, in its judgment, such

evidence should receive.” State v. Nitcher, 720 N.W.2d 547, 556 (Iowa 2006).

On this record, a reasonable juror could have found Ricke’s version of events

incredible and concluded she knew Dr. Zadeii’s signature was forged when she

presented the prescription to the pharmacy. See State v. Taggart, 525 N.W.2d 6

877, 880 (Iowa Ct. App. 1994) (deciding defendant had requisite knowledge

based on her unbelievable explanations for incriminating evidence). Accordingly,

we find the State presented substantial evidence to support the conviction for

prohibited acts.

As for the possession conviction under section 124.401(5), we conclude

the same evidence created a jury question pitting the credibility of Dr. Zadeii

against that of Ricke and Splitt. Faced with those conflicting versions, a

reasonable juror could have believed the cardiologist and concluded Ricke

knowingly possessed hydrocodone without a valid prescription and knew the

substance was hydrocodone.

Viewing the evidence in the light most favorable to the jury’s verdicts, we

affirm both convictions.

AFFIRMED.