State v. Best , 31 N.C. App. 250 ( 1976 )

VAUGHN, Judge.

Defendant’s first argument is that the court erred “in failing to find G.S. 90-86, et seq. [North Carolina Controlled Substances Act] to be so imprecise in delineating the parameters of the lawful prescription of controlled substances by a physician as to be unconstitutionally vague, and thus violative of the Fourteenth Amendment to the Constitution of the United States.”

In support of this argument, defendant contends that the act is inconsistent within itself in delineating when a physician’s actions in the prescribing of drugs are lawful or unlawful. Defendant refers to the definitions given for a “Practitioner” and a “Prescription.”

The statute defines a “Practitioner” as:

“a. A physician, dentist, veterinarian, scientific investigator, or other person licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance so long as such activity is within the normal course of professional practice or research in this State.” G.S. 90-87 (22) a.

A “Prescription” is defined as:

“a. A written order or other order which is promptly reduced to writing for a controlled substance as defined in this Article, or for a preparation, combination, or mixture thereof, issued by a practitioner who is licensed in this State to administer or prescribe drugs in the course of his professional practice; a prescription does not include an order entered in a chart- or other medical record of a patient by a practitioner for the administration of a drug. . . .” G.S. 90-87 (23) a.

Defendant’s quarrel is with the use of “the normal course of professional practice” in the section defining a practitioner and “in the course of his professional practice” in the section defining a prescription. (Emphasis added.) We see no substance in the argument.

The clause “who is licensed . . . to . k . prescribe drugs in the course of his professional practice” in subsection (23) a is an adjective clause modifying the preceding noun “practitioner.” It describes the one issuing the prescription. It does not change the definition of practitioner as given in subsection (22) a. A practitioner who is licensed to issue a prescription in the course of “his” professional practice may not do so unless that “activity is within the normal course of professional practice.” In other words, a lawful prescription must be one that is issued by a practitioner, who is licensed to prescribe drugs in the course of his practice, within the normal course of professional practice in this State.

In further support of his first argument defendant contends that the statute is unconstitutionally vague because it forbids conduct in such terms that men of common intelligence must necessarily guess at their meaning and application.

The statute is explicit:

“Except as authorized by this Article, it is unlawful for any person:

(1) To manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance. . . .” G.S. 90-95 (a) (1).

For perfectly obvious reasons a practitioner cannot be immune from the law solely because of his status. Defendant must bring himself within an exception to the foregoing prohibition. G.S. 90-113.1. He argues, nevertheless, that to allow conduct otherwise proscribed by the statute only if it is by a practitioner “within the normal course of professional practice” necessarily requires a finding of unconstitutionality. (Emphasis added.) The argument is without merit.

A practitioner who distributes drugs other than for a legitimate medical purpose within the normal course of professional practice has no more exemption from the law than does an illicit street vendor.

The term “within the normal course of professional practice” is not vague. It gives every practitioner fair notice of the standard he must follow if his conduct is to come within the exception of the statute. That is all the Constitution requires. U. S. v. Moore, 423 U.S. 122, 46 L.Ed. 2d 333, 96 S.Ct. 335; U.S. v. Rosenburg, 515 F. 2d 190, (9th Cir. 1975) cert. den. 423 U.S. 1031. See also U. S. v. Collier, 478 F. 2d 268 (5th Cir.1973) and cases cited therein.

The clarity of the standard of conduct required and the burden placed on the State in this case is illustrated by the following excerpts from the judge’s instruction to the jury:

“Now, within that term ‘normal course of professional practice in this State,’ there comes the question of what is normal. . . . The Court instructs you that the meaning you will apply in approaching this case as to the word ‘normal’ is as follows: Within a principle of right action binding upon the members of a group and serving to guide, control or regulate proper and acceptable behavior of the members of that group.

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So, I charge you that if you find from the evidence and beyond a reasonable doubt that . . . the defendant, Andrew Arthur Best, knowingly, wilfully and intentionally delivered a prescription for Ritalin to Martha Owens for the sole purpose of keeping her awake while working jobs as waitresses and while working as a prostitute; and if you further find that such purpose was not in the normal course of a doctor’s professional practice in North Carolina, and that as a result of the delivery of the prescription, Martha Owens obtained a quantity of Ritalin, a controlled substance, it would be your duty to return a verdict of guilty. If you fail to so find or have a reasonable doubt as to any one of those elements, you should give him the benefit of that doubt and you should acquit him.

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Now, ladies and gentlemen of the jury, when you come to consider the guilt or innocence of Dr. Andrew Best, the Court instructs you, as I have touched on before that a physician may in good faith and in the. course of his professional practice within the State of North Carolina prescribe, administer and dispense narcotic drugs or have them administered by an assistant under his direct supervision. I further charge you that to determine good faith refers to the defendant’s honest belief that the patient was suffering from a condition which required the administration of drugs in accordance with accepted medical practice. If you find that Dr. Andrew Best believed the prescription he issued served a legitimate medical purpose, then the dispensation or prescription or both of such controlled substances would not be unlawful, even though the doctor’s medical judgment may have been faulty. You may not find absence of good faith on the part of Dr. Best beyond a reasonable doubt solely by reason of prescribed doses in excess of present needs. A physician violates the law when he prescribes drugs only if he does so without good faith, that is to say, only when in so prescribing he was acting outside the normal course of professional practice in the State.

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The fact that the defendant may have made a medical mistake in prescribing the drugs does not establish that he failed to prescribe them in good faith. You are entitled to consider all of the circumstances surrounding the prescription or dispensation in question to determine whether the defendant acted in good faith, but if you find that the defendant honestly thought the prescription or dispensation would serve a legitimate medical purpose, then these prescriptions and dispensations would not be unlawful even if the defendant exhibited poor professional judgment.” (Emphasis added.)

Defendant’s second argument is that there is a fatal variance between the allegation that defendant distributed controlled substance not in the course of his professional practice and the proof and instruction to the jury that the distribution was not in the normal course of a doctor’s professional practice in North Carolina. For the reasons we have indicated elsewhere in this opinion, we find no merit in the argument.

Defendant’s third and fourth arguments should be considered together. In the third, he contends the court erred in allowing to stand the verdicts of guilty as to the two prescriptions in view of the alleged inconsistent verdicts acquitting defendant on the indictment relating to the initial prescription on which the subsequent refills were based. In his fourth argument he contends the court erred in denying “the motion for judgment notwithstanding the verdict and to set aside the verdict as contrary to the weight of evidence.” In support of the latter argument he stresses that the State’s hypothetical questions tied the refills to the initial prescription with regard to which defendant was acquitted. He argues that when the jury acquitted defendant as to the initial prescription it necessarily rejected the evidence of its unlawfulness and that evidence was essential to the unlawfulness of the refills.

Both arguments require the same answer. A jury is not required to be consistent. State v. Davis, 214 N.C. 787, 1 S.E. 2d 104. Speaking through then Chief Judge Mallard, this Court has said:

“In short, defendant says that he was either guilty on both counts or not guilty on both counts. From the purely logical standpoint, this may or may not be true, but where the evidence on each separate count was sufficient to support a conviction, we are not at liberty to speculate as to why a jury may convict on one count and not on another. ‘In any event, a jury is not required to be consistent and mere inconsistency will not invalidate the verdict.’ ” State v. Black, 14 N.C. App. 373, 376, 377, 188 S.E. 2d 634.

There is evidence in this record sufficient to have supported a conviction on each of the charges for which defendant was tried. The jury was at liberty to accept or reject that evidence and the inferences arising thereon, in whole or in part.

The judge who presided over the trial denied defendant’s motion to set the verdicts aside. These motions were addressed to his discretion. State v. Moore, 279 N.C. 455, 183 S.E. 2d 546. No abuse of discretion has been shown and, therefore, the decision of the trial judge is not reviewable on appeal. State v. Bridgers, 267 N.C. 121, 147 S.E. 2d 555.

We have carefully reviewed every assignment of error brought forward on this appeal. In these, defendant has failed to show any prejudicial errors of law that would require a reversal.

No error.

Judge Morris concurs. Judge Clark dissents.