State v. Erwin

• Decision Date: 26 April 2011
• Docket Number: No. 09–309.,09–309.
• Citation: 26 A.3d 1,2011 VT 41
• Parties: STATE of Vermontv.James ERWIN.
• Court: Vermont Supreme Court

26 A.3d 1

2011 VT 41

STATE of Vermont

v.James ERWIN.

No. 09–309.

Supreme Court of Vermont.

April 7, 2011.Motion for Reargument Denied April 26, 2011.

William H. Sorrell, Attorney General, David Tartter, Assistant Attorney General, and Anna Cykon, Law Clerk (On the Brief), Montpelier, for Plaintiff–Appellee.Matthew F. Valerio, Defender General, Rebecca Turner, Appellate Defender, and Alfred Waldstein, Law Clerk (On the Brief), Montpelier, for Defendant–Appellant.Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.BURGESS, J.

¶ 1. Defendant appeals from his conviction, following a jury trial, of obtaining a regulated drug by deceit in violation of 18 V.S.A. § 4223(a)(1), and possession of a narcotic in violation of 18 V.S.A. § 4234(a)(1). He raises numerous claims of error, only one of which was preserved. We affirm his conviction.

¶ 2. Defendant, a traveling nurse, was charged with the crimes above in June 2007. The State's information alleged that, while working at Copley Hospital, defendant secretly removed a syringe of Fentanyl, a Schedule II regulated drug, from an anesthesia cart in the operating room and took the drug for his own use. Fentanyl is a clear-colored, free-flowing liquid narcotic, similar in appearance to water. The information also alleged that defendant knowingly and unlawfully possessed a narcotic drug as he was found to have Fentanyl in his system when he had no lawful prescription for the narcotic.

¶ 3. The following evidence was presented at trial. Defendant worked at Copley Hospital for numerous months prior to this incident. He was assigned to the operating room area, which consisted of two operating rooms connected by a substerile room. The substerile room contained a sink and other items that might be needed in the operating rooms. Defendant essentially acted as a patient advocate. He was responsible for patients from the time that they arrived from the holding room for a surgical procedure until the time that they were transferred to a recovery nurse in the recovery room. D.B. also worked in the operating room area, and she knew defendant from working with him for a lengthy period of time. D.B. was an operating room assistant, and responsible for facilitating the transition between surgeries by stocking the shelves, turning over the rooms, helping the anesthesiologist, and performing other necessary tasks.

¶ 4. On June 15, 2006, D.B. observed defendant near a cart that held the anesthesia supplies needed for surgery. D.B. was particularly mindful of defendant because she had noticed him spending a lot of time near this cart over the prior weeks, and defendant had no job responsibility that would require him to be there. On the day in question, D.B. saw defendant take something off the cart and very quickly put it into his chest pocket. She was a few feet away from defendant at the time and the room was brightly lit. Defendant did not see her. Several minutes later, D.B. saw defendant at the sink in the substerile room filling a sterile syringe with water. D.B. was very upset by what she saw and went in search of her supervisor, K.Z., the operating nurse manager. When she couldn't find him, she relayed her concerns to Dr. D.K., the chief of anesthesiology.

¶ 5. At trial, D.B. was not wearing her glasses and she had difficulty identifying defendant in the courtroom. Both the operating nurse manager and chief of anesthesiology, however, identified defendant in the courtroom as the individual named by D.B. who was involved in the June 15, 2006 incident.

¶ 6. The chief of anesthesiology testified that nurses should never be handling the syringes on the anesthesia cart nor would there be any valid reason to wash out a syringe or fill it with tap water. Given this, he was very concerned by D.B.'s report and he decided to perform a test to monitor the integrity of his syringes. The doctor explained that he used colored labels on his syringes—blue labels for Fentanyl syringes—and these labels usually had a serrated edge. He cut the edges of the labels to make a straight edge instead and lined the label up precisely with the hash marks on the syringes. Later that day, the doctor discovered a syringe on his cart that had an uneven blue label with a serrated edge. He immediately took the syringe out of circulation and asked the operating nurse manager to take it to the hospital pharmacist to determine its contents. The pharmacist sent the syringe to an out-of-state facility, which revealed that it did not contain any Fentanyl.

¶ 7. The chief nursing officer, G.M., met with defendant the morning after the doctor's discovery. Defendant indicated that he might have touched a syringe on the anesthesia cart but he denied taking any Fentanyl. G.M. reiterated that there would be no reason for a nurse to be handling a syringe on the anesthesia cart in the operating room. He placed defendant on administrative leave, and defendant insisted on taking a urinalysis test. Defendant provided a urine sample at the hospital that afternoon, and the sample was mailed to an out-of-state facility to be tested for Fentanyl. The State presented extensive testimony about the methodology and chain of custody for this test, as well as for the test performed on the imposter syringe. Defendant's urine tested positive for Fentanyl, and it was later ascertained that he had no valid prescription for this drug.

¶ 8. At the close of the State's evidence, defendant moved for a judgment of acquittal on the charge of obtaining a regulated drug by deceit. Defendant asserted that D.B. was the only witness who saw him do something near the anesthesia cart, and she could not identify him in court nor did she actually see him take any drugs from the cart because she was viewing him from behind. The court denied defendant's motion. It recounted the evidence set forth above, and found it immaterial that D.B. could not identify defendant in the courtroom. The court explained that defendant had been identified by other witnesses and through circumstantial evidence, and the State had shown that the person identified by the other witnesses was the same defendant James Erwin to whom D.B. referred in her testimony. Defendant did not present any witnesses on his behalf. The jury found him guilty on both counts, and this appeal followed.

¶ 9. Defendant first challenges the court's denial of his motion for judgment of acquittal. He maintains that the evidence was insufficient to prove that he was the person who obtained Fentanyl. He reiterates his claim that D.B. was the only eyewitness to what occurred at the anesthesia cart and that she was unable to identify him at trial. In support of his position, defendant offers his version of the evidence and asserts that the State failed to show that the person on trial was the same person that D.B. had identified as “Jim Erwin” when she reported the incident to the doctor.

¶ 10. We review the court's decision de novo, considering “whether the evidence, when viewed in the light most favorable to the State and excluding any modifying evidence, fairly and reasonably tends to convince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt.” State v. Ellis, 2009 VT 74, ¶ 21, 186 Vt. 232, 979 A.2d 1023 (quotation omitted). Applying this standard, we find no error.

¶ 11. It is true that, generally, “an in-court identification of the accused is an essential element in the establishment of guilt beyond a reasonable doubt.” United States v. Weed, 689 F.2d 752, 754 (7th Cir.1982) (citation omitted). “Of course, there is no rule of law that requires identity to be established by an eyewitness.” United States v. Kwong, 14 F.3d 189, 193 (2d Cir.1994). Instead, identity “can be inferred from all the facts and circumstances that are in evidence.” Weed, 689 F.2d at 754; see also Kwong, 14 F.3d at 193.

¶ 12. The State proved beyond a reasonable doubt that this defendant was the same “James Erwin” identified by D.B. as the individual who removed something from the anesthesia cart. As the trial court explained, D.B. knew defendant from working with him, she saw him take something off of the anesthesia cart, she observed him filling a sterile syringe with water, and she reported her concerns to the doctor. These concerns were relayed to others, including the operating nurse manager and the chief nursing officer. All of these individuals knew defendant. The doctor determined that one of the Fentanyl syringes had been tampered with, and later found that the new syringe placed on the cart did not contain any Fentanyl. When defendant was confronted with these concerns, he admitted to the chief nursing officer that he might have touched one of the syringes. Defendant's urinalysis later revealed the presence of Fentanyl.

¶ 13. The operating nurse manager testified that D.B. brought the issue concerning defendant to his attention and he specifically identified defendant in court as the person involved in these events. The chief of anesthesiology similarly recounted that D.B. had approached him and discussed her concerns involving defendant. He too identified defendant in the courtroom as the person involved. The chief nursing officer testified that defendant was the individual he spoke to on the morning after the incident. Additionally, the laboratory manager at the hospital testified that he was familiar with defendant and that he met with defendant to procure a urine sample in connection with these events. He identified defendant in the courtroom during trial as the individual who provided the urine sample. The evidence belies any suggestion that this was a case of mistaken identity, and the court did not err in denying defendant's motion for judgment of acquittal on this ground. ^*

¶ 14. Defendant's three remaining arguments rest on allegations of plain error. We stress that raising a plain error argument on appeal is not a substitute for raising a timely...