State v. Evilsizer

311 P.3d 983, 258 Or. App. 874, 2013 WL 5561532, 2013 Ore. App. LEXIS 1211
CourtCourt of Appeals of Oregon
DecidedOctober 9, 2013
DocketC092367CR; A149334
StatusPublished
Cited by1 cases

This text of 311 P.3d 983 (State v. Evilsizer) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Evilsizer, 311 P.3d 983, 258 Or. App. 874, 2013 WL 5561532, 2013 Ore. App. LEXIS 1211 (Or. Ct. App. 2013).

Opinion

HADLOCK, J.

Defendant, who worked as a nurse at a nursing home, was charged with tampering with drug records, ORS 167.212. The indictment alleged that she “ma[d]e and utter[ed] a false or forged prescription *** for a controlled substance.” At trial, the state presented evidence that defendant had written on a nursing-home resident’s “medication administration record” (MAR) that she had given the resident three Oxycodone tablets when, in fact, she had given the resident only one tablet and kept the other two for her own use. Defendant moved for a judgment of acquittal, arguing that the MAR is not a written order or prescription within the meaning of ORS 167.212 and that, even if it were, she did not forge the prescribing portion of that document. The trial court denied the motion, and defendant was convicted. We reverse.

In reviewing the denial of a motion for judgment of acquittal, we view the evidence in the light most favorable to the state to determine whether a rational factfinder could have found the elements of the crime beyond a reasonable doubt. State v. Cunningham, 320 Or 47, 63, 880 P2d 431 (1994), cert den, 514 US 1005 (1995). At the nursing home where defendant worked, Camelot Care Center, all medications given to a resident of the facility were prescribed by the resident’s doctor and sent to the facility, where a nurse listed them on the resident’s MAR. Several pages from the April 2009 MAR for G, the resident from whom defendant took the Oxycodone, were submitted into evidence. Each page has preprinted tables on it. On the first page, the left-hand column of the main table is marked “Order.” In the spaces in that column, a nurse wrote the name of each medication that a doctor had prescribed for G, along with the dosage and the frequency at which the medication was to be given. The handwritten order in one space states that G was to receive one to three 5-milligram tablets of Oxycodone every four hours “prn pain” — meaning “as needed for pain.” The table also includes 31 columns, one for each day of the month, that are divided into four spaces for each medication, in which a nurse wrote his or her initials each time the medication was given.

[876]*876Subsequent pages of the MAR include a table labeled “nurse’s medication notes.” The nurse dispensing any “as needed” medications filled in information including the date and time that the medication was given, the nurse’s initials, and the name of the medication. If a nurse attempted to dispense a prescribed narcotic medication and the resident refused it, Camelot’s policy was for the nurse to note the refusal on the MAR and to destroy the medication in another nurse’s presence.

During one eight-hour night shift on April 27 and 28, 2009, defendant recorded on the “nurse’s medication notes” that she had, three times, given G the maximum prescribed three-tablet dose of Oxycodone — at 10:45 p.m., 2:30 a.m., and 6:20 a.m. On the first page, in the spaces provided for nurses to initial each time an ordered medication had been given, defendant initialed one space each for April 27 and 28, even though she had given G two doses on the 28th. Other nurses on the staff became concerned because defendant had administered the medication at somewhat less than four-hour intervals and because the three-tablet dosage was higher than normal for G.

Approximately two weeks later, Adult Protective Services received a complaint about prescription medications being stolen from Camelot residents. An investigator contacted the police, and a police officer interviewed defendant. During the interview, defendant admitted that, on the night in question, she had taken two of G’s prescribed Oxycodone tablets for her own personal use. Defendant later told the investigator from Adult Protective Services that G had not wanted all three tablets one of the times that defendant had administered them, so defendant gave her one tablet and kept the other two.

Defendant was charged with tampering with drug records in violation of ORS 167.212, which provides, in part:

“(1) A person commits the crime of tampering with drug records if the person knowingly:
* % * *
“(c) Makes or utters a false or forged prescription or false or forged official written order for controlled substances [.]”

[877]*877The indictment alleged that defendant “did unlawfully and knowingly make and utter a false or forged prescription or official written order for a controlled substance.”1 The state presented witnesses who testified about the facts described above. In addition, two nurses from the nursing home testified that the MAR was a “direction given by a practitioner for the preparation and use of a drug.”

After the state presented its case-in-chief, defendant moved for a judgment of acquittal. The state conceded, and the trial court agreed, that the state had not presented any evidence concerning an “official written order.” The court ruled, however, that the state had presented enough evidence that the jury could find that defendant had forged a prescription.

Defendant then called one witness, a pharmacist who testified that G’s MAR was not a prescription for Oxycodone. He explained that the MAR did not include information required by law for a prescription for a “schedule 2” drug such as Oxycodone, including the patient’s address and the prescribing doctor’s signature and Drug Enforcement Agency number. On cross-examination, however, he agreed that he would consider a “written, or oral, or electronically transmitted direction given by a practitioner for the preparation and use of a drug” to be a prescription. He also conceded that a written prescription that was not signed by a doctor would be invalid but would “still be a prescription.”

After defendant rested, the court instructed the jury that, to find defendant guilty, it had to find that she had “made or utter [ed] a false or forged prescription for controlled substances * * * ” The court also instructed the jury that a “prescription” is a “written, oral or electronically transmitted direction given by a practitioner for the preparation and use of a drug.”2 The jury found defendant guilty. This appeal followed.

[878]*878Defendant assigns error to the denial of her motion for judgment of acquittal.3 She contends that the MAR is not itself a prescription, but only a record of the prescriptions given by G’s doctor. Even if the “order” portion of the MAR constitutes a prescription — that is, a “direction given by a practitioner for the preparation and use of a drug” — defendant argues that a person “makes or utters a false or forged prescription” only when the person falsifies that part of the MAR, i.e., “falsifies the practitioner’s instruction.” In this case, defendant asserts, the state did not present any evidence that she falsified any portion of the doctor’s instructions for preparing or using the Oxycodone. Instead, she contends, “the state’s evidence and theory of conviction was that defendant logged

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Related

State v. Hoard
386 P.3d 672 (Court of Appeals of Oregon, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
311 P.3d 983, 258 Or. App. 874, 2013 WL 5561532, 2013 Ore. App. LEXIS 1211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-evilsizer-orctapp-2013.