William J. Hill, Sr. v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: July 5, 1995
• Docket: 2345933
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Koontz, Elder and Fitzpatrick Argued at Salem, Virginia

WILLIAM J. HILL, SR. MEMORANDUM OPINION * BY v. Record No. 2345-93-3 JUDGE LARRY G. ELDER JULY 5, 1995 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE James F. Ingram, Judge

Charles C. Cosby, Jr. (Andrea C. Long; Boone, Beale, Carpenter & Cosby, on brief), for appellant.

Thomas C. Daniel, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

William J. Hill, Sr. (appellant) appeals his two convictions

for obtaining the controlled substances Cephalexin and Lomotil by

fraud, deceit, misrepresentation, or subterfuge, in violation of

Code § 18.2-258.1. Appellant contends that the evidence was

insufficient to support the convictions. Specifically, appellant

asserts that the Commonwealth (1) failed to prove the nature of

the substances where no chemical analyses were performed; (2)

failed to prove the requisite intent necessary to support the

convictions; and (3) improperly charged him under Code

§ 18.2-258.1. Because the trial court committed no error, we

affirm the convictions.

Appellant's November 22, 1993 convictions stem from two * Pursuant to Code § 17-116.010 this opinion is not designated for publication. separate incidents when he obtained the prescription drugs

Cephalexin and Lomotil from the Super-X pharmacy in Danville,

where he worked as a pharmacist.

Cephalexin, a schedule VI controlled substance, was

validly prescribed to appellant on May 6, 1991, to treat his

continuing nose infection. On November 14, 1992, appellant

dispensed an additional prescription with a notation that one

further refill was authorized. Appellant admitted at trial that

he refilled the Cephalexin prescription himself, that this refill

"was not authorized" by the prescribing doctor, but that he

honestly thought it would be "alright with the doctor if [he]

updated this prescription." Lomotil, a schedule V controlled substance, was validly

prescribed to treat appellant's wife's intestinal problems on

March 21, 1991. On December 28, 1992, appellant dispensed an

additional prescription, without permission, using the name of

the original prescribing doctor's nurse. Although he admitted

updating the Lomotil prescription, appellant maintained that he

had no intent to commit fraud and that the drug was dispensed for

valid therapeutic purposes.

After learning that the pharmacy may have discovered his

actions, appellant obtained additional prescriptions on January

6, 1993, from another physician for Lomotil and Keflex (a brand

name of the generic drug Cephalexin) to attach to the original

prescriptions. Appellant admitted that he secured the

2 prescriptions from this physician to "pacify the pharmacy."

As a preliminary matter, we disagree with the Commonwealth

that this appeal is barred by the doctrine of judicial estoppel.

We recognize that "a defendant in a criminal proceeding cannot

assume inconsistent positions in the trial and appellate courts."

Commonwealth v. Beavers, 150 Va. 33, 38, 142 S.E. 402, 403

(1926). However, the record reveals that appellant never

conceded during or after trial that he was guilty of the crimes

charged; appellant conceded only that he "was guilty of

something" and that he "broke the law." First, we hold that it was unnecessary for the Commonwealth

to produce drug analysis reports to prove that the substances

appellant obtained were actually Cephalexin and Lomotil.

Circumstantial evidence is sufficient to allow the fact finder to

infer the nature of the substance in question. See Hinton v.

Commonwealth, 15 Va. App. 64, 66, 421 S.E.2d 35, 37 (1992); Hill

v. Commonwealth, 8 Va. App. 60, 64, 379 S.E.2d 134, 136 (1989)(en banc). In this case, proof of the substances was provided by

appellant, a pharmacist himself, who, during testimony,

identified the Cephalexin and Lomotil by name and admitted to

obtaining the drugs to treat certain illnesses. See Hill, 8 Va.

App. at 63, 379 S.E.2d at 136.

Second, we hold that the Commonwealth proved the requisite

intent, namely that appellant obtained the drugs "by fraud,

deceit, misrepresentation, . . . or subterfuge." Code

3 § 18.2-258.1. Under familiar standards of appellate review, we

view the evidence and any reasonable inferences fairly deducible

therefrom in the light most favorable to the Commonwealth.

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,

537 (1975). Furthermore, this Court will not set aside the

jury's verdict unless it is plainly wrong or without evidence to

support it. Maynard v. Commonwealth, 11 Va. App. 437, 439, 399

S.E.2d 635, 637 (1990)(en banc). As we have stated, intent may be, and frequently is, shown

by circumstantial evidence. These circumstances include a

person's statements and his conduct. Campbell v. Commonwealth,

12 Va. App. 476, 484, 405 S.E.2d 1, 4 (1991). "The finder of

fact may infer that a person intends the natural and probable

consequences of his acts." Id. (citing Kelly v. Commonwealth, 8

Va. App. 359, 373, 382 S.E.2d 270, 278 (1989)).

Appellant admitted that he dispensed Cephalexin and Lomotil

without permission from authorized medical personnel; that he

increased the dosage of the Cephalexin and used a nurse's name

without her consent to obtain a refill; that he increased the

amount of refills allowed; that he never contacted the original

prescribing doctors to notify them of his actions; and that he

used another physician to "cover" the prescriptions that he

filled. Despite the fact that appellant testified that none of

his actions was committed with the intent to defraud,

misrepresent, deceive, or use subterfuge, it was within the

4 jury's province to draw reasonable inferences from the proven

facts. Johnson v. Commonwealth, 209 Va. 291, 295, 163 S.E.2d

570, 574 (1968). We cannot say that it was unreasonable for the

jury to conclude that appellant possessed the requisite intent to

commit the crimes with which he was charged.

Finally, assuming that the Commonwealth could have

prosecuted appellant under Code § 54.1-3303, we hold that

appellant's prosecution under Code § 18.2-258.1 was also proper

and that the Commonwealth proved every element necessary to

convict him. Code § 18.2-258.1 states that "any person" who

illegally obtains a controlled substance is guilty of violating

this statute. This language does not exempt pharmacists from the

class of persons covered, and we see no reason to read this

limitation into the statute's plain language. See Crews v.

Commonwealth, 3 Va. App. 531, 536, 352 S.E.2d 1, 3, appeal

denied, 360 S.E.2d 715 (1987). While appellant exercised some

form of legal control over the Super-X pharmacy's stock of drugs

by nature of his employment, this control did not extend to

appropriating specific drugs for his own personal use in

violation of state law. See Hilb, Rogal & Hamilton Co. of

Richmond v. DePew, 247 Va. 240, 246, 440 S.E.2d 918, 921

(1994)(stating that an employee's fiduciary duty to his employer

prohibits the employee from acting in a manner adverse to the

employer's interest). Appellant "obtained" the Cephalexin and

Lomotil when they came under his personal dominion and control,

5 and his obtaining the drugs was predicated on providing false

information in an attempt to comply with state law.

Accordingly, we affirm appellant's convictions.

Affirmed.