Linda I. Thomas v. Commonwealth ( 1996 )

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
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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
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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
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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
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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
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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.
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Affirmed.
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