State v. Wasanyi

Citation821 S.E.2d 1
Decision Date05 November 2018
Docket Number No. 17-0020,No. 16-1009,16-1009
CourtWest Virginia Supreme Court
Parties STATE of West Virginia, Plaintiff Below, Respondent v. David M. WASANYI, Defendant Below, Petitioner AND State of West Virginia, Plaintiff Below, Respondent v. David M. Wasanyi, Defendant Below, Petitioner

Matthew T. Yanni, Esq., Yanni Law Firm, Martinsburg, West Virginia, Attorney for Petitioner

Patrick Morrisey, Esq., Attorney General, Robert L. Hogan, Esq., Deputy Attorney General, Charleston, West Virginia, Attorneys for Respondent

FARRELL, Justice:

The petitioner and defendant below, David M. Wasanyi, a pharmacist, was convicted in two separate trials of multiple felony counts of unlawful delivery of a controlled substance in violation of West Virginia Code § 60A-4-401(a) (2014).1 In the case docketed as No. 16-1009, the petitioner was convicted of two counts of Delivery of Diazepam and sentenced to one to three years in the penitentiary for each conviction.2 He was also convicted of one count of Delivery of Buprenorphine and sentenced to one to five years in the penitentiary for that conviction.3 The trial court ordered that the three sentences be served consecutively. In the case docketed as No. 17-0020, the petitioner was convicted of five counts of Delivery of Oxycodone and three counts of Delivery of Methadone and sentenced to one to fifteen years in the penitentiary for each conviction.4 He was also convicted of five counts of Delivery of Alprazolam (Xanax) and sentenced to one to three years in the penitentiary for each of those convictions.5 The trial court ordered that certain sentences be served concurrently but consecutive to others, resulting in a total sentence in No. 17-0020 of five to seventy-five years in the penitentiary. The court ordered the sentences to be served consecutive to the sentences imposed in No. 16-1009.

Following his convictions, the petitioner filed separate appeals with this Court. By an order entered on April 4, 2018, this Court consolidated the appeals for purposes of oral argument and decision. In No. 16-1009, the petitioner contends that the circuit court erred by not instructing the jury pursuant to West Virginia Code § 60A-4-402(a)(1) (2014), which provides for a misdemeanor conviction for unlawful delivery of a controlled substance by a pharmacist, which he asserts is a lesser included offense of delivery of a controlled substance as set forth in West Virginia Code § 60A-4-401(a). In No. 17-0020, the petitioner sets forth three assignments of error. He argues that the circuit court erred by: (1) allowing the State to use a peremptory strike in violation of his equal protection rights; (2) refusing to admit into evidence at trial certain exhibits that he wished to use to show his state-of-mind and/or the reasonableness of his actions; and (3) denying his motion for a new trial.

Having considered the parties' briefs and oral arguments, the submitted appendix records, and the pertinent authorities, we find no error. Accordingly, for the reasons set forth below, the petitioner's convictions are affirmed.

I. Facts and Procedural Background

The facts and procedural history for each case are set forth separately below.

A. No. 16-1009

In this case, the petitioner was convicted of three felony counts of unlawful delivery of a controlled substance. At trial, the State presented evidence that the petitioner dispensed Diazepam, a Schedule IV controlled substance, commonly known as Valium, to Barbara Foulks on two separate occasions without a valid prescription. According to trial testimony, Ms. Foulks attempted to obtain prescriptions for this medication, as well as others, from a medical practice in Martinsburg, West Virginia, in March 2014. The physician's assistant who examined Ms. Foulks became suspicious and contacted the police after Ms. Foulks indicated she would obtain the medication from another source. An investigation by the Martinsburg City Police and the West Virginia Board of Pharmacy ensued, which eventually revealed that the petitioner had filled prescriptions for this medication for Ms. Foulks at the City Pharmacy6 on December 24, 2013, and February 4, 2014. However, the pharmacy's electronic records of the prescriptions consisted of images of blank pages from the pharmacy's own prescription pads.

There was also evidence presented at trial that the petitioner had filled a prescription for Buprenorphine

, a Schedule III controlled substance, for Krista Davidian on November 25, 2014. The City Pharmacy's record for that prescription indicated that the medication had been prescribed by Dr. Jafar Almashat. However, Dr. Almashat testified that neither he, nor anyone from his office, had authorized this prescription.

During the trial, the petitioner requested that the jury be instructed pursuant to West Virginia Code § 60A-4-402(a)(1) as a lesser included offense of the general unlawful delivery of a controlled substance offense set forth in West Virginia Code § 60A-4-401(a). The circuit court refused to give the instruction. Following his convictions, the petitioner was sentenced to a total of three to eleven years in the penitentiary by order entered on October 6, 2016. This appeal followed.

B. No. 17-0020

In this case, petitioner was indicted on ninety-two counts of delivery of a controlled substance. Prior to trial, the State elected to proceed on only thirteen counts, dismissing the other charges. As in the prior case, the offenses were alleged to have occurred at the City Pharmacy and involved two other individuals who lacked legitimate prescriptions for the medications dispensed by the petitioner. At trial, Tina Hernandez and Imogene Abshear, both residents of Kentucky, testified that they devised a scheme with another woman known as Dianne Fikes or Dianne Lacy, who worked at a pain clinic in Atlanta, Georgia. In exchange for cash, Ms. Fikes/Lacy would provide prescriptions to Ms. Hernandez and Ms. Abshear that were purportedly issued by a physician named James Murtagh7 who had practiced at the Georgia clinic. According to Ms. Abshear, someone at the Georgia clinic told her that she could have the prescriptions filled at the petitioner's pharmacy in West Virginia, which was six hundred miles from her home in Kentucky. Ms. Abshear further testified that she had obtained the petitioner's cell phone number and would contact him in advance to arrange a time to come to his pharmacy to have the prescriptions filled. The evidence indicated that the petitioner was paid in cash to fill the prescriptions and the transactions were not reported in the Board of Pharmacy's database.

Following a multi-day trial, the petitioner was convicted of all thirteen counts of unlawful delivery of a controlled substance involving the medications Oxycodone, Methadone

, and Alprazolam. After the jury returned its verdict, the petitioner filed a motion for a new trial which was denied by the trial court on November 15, 2016. Subsequently, he was sentenced to a total of five to seventy-five years in the penitentiary by the final order entered on December 15, 2016. This appeal followed.

II. Standard of Review

The petitioner sets forth multiple assignments of error which require us to employ different standards of review. Generally,

[i]n reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Syl. Pt. 3, State v. Vance , 207 W.Va. 640, 535 S.E.2d 484 (2000). When a more specific standard of review applies to a particular issue, it will be set forth in our analysis. Accordingly, we proceed to consider the parties' arguments.

III. Discussion

As with the facts and procedural history, the petitioner's assignments of error with respect to each case will be discussed separately below.

A. No. 16-1009

The petitioner's sole assignment of error in this case is that the trial court erred by refusing to instruct the jury pursuant to West Virginia Code § 60A-4-402(a)(1), which provides that it is unlawful for a pharmacist to dispense a controlled substance without a valid prescription.8 Specifically, West Virginia Code § 60A-4-402 provides:

(a) It is unlawful for any person:
(1) Who is subject to article 3 [§§ 60A- 3 -301 et seq.] to distribute or dispense a controlled substance in violation of section 308 [§ 60A-3-308][.]

West Virginia Code §§ 60A-3-301 to - 308 (2014) provide for the "Regulation of Manufacture, Distribution and Dispensing of Controlled Substances" by the State Board of Pharmacy. Pharmacists, like the petitioner, are required to register with the State Board of Pharmacy,9 and West Virginia Code § 60A-3-308 (2014) provides that pharmacists may only dispense controlled substances pursuant to a lawful prescription of a practitioner.10 The petitioner contends that W.Va. Code § 60A-4-402(a)(1) is a lesser included offense of West Virginia Code § 60A-4-401(a), and the circuit court should have instructed the jury in that regard. He further argues that the jury should have received the instruction even though he was charged under the general delivery statute, West Virginia Code § 60A-4-401(a), because the offenses were alleged to have been committed in his capacity as a pharmacist.

"As a general rule, the refusal to give a requested jury instruction is reviewed for an abuse of discretion. By contrast, the question of whether a jury was properly instructed is a question of law, and the review is de novo ." Syl. Pt. 1, State v. Hinkle , 200 W.Va. 280, 489 S.E.2d 257 (1996). This Court has held that

[a] trial court's refusal to give a requested instruction is reversible error only if: (1) the instruction is a correct
...

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8 cases
  • State v. Sites, 16-0437
    • United States
    • Supreme Court of West Virginia
    • February 7, 2019
    ...the jury to find beyond a reasonable doubt that Petitioner committed the offense set out in Count V. See State v. Wasanyi, ___ W.Va. ___, 821 S.E.2d 1, 5 (2018) ("He was also convicted of five counts of Delivery of Alprazolam (Xanax) and sentenced to one to three years in the penitentiary f......
  • State v. Sites
    • United States
    • Supreme Court of West Virginia
    • February 7, 2019
    ...the jury to find beyond a reasonable doubt that Petitioner committed the offense set out in Count V. See State v. Wasanyi , 241 W.Va. 220, 821 S.E.2d 1, 5 (2018) ("He was also convicted of five counts of Delivery of Alprazolam (Xanax) and sentenced to one to three years in the penitentiary ......
  • State ex rel. Wade v. Hummel
    • United States
    • Supreme Court of West Virginia
    • June 16, 2020
    ...abuse of discretion standard.’ Syl. Pt. 4, State v. Rodoussakis , 204 W. Va. 58, 511 S.E.2d 469 (1998)." Syl. pt. 11, State v. Wasanyi , 241 W. Va. 220, 821 S.E.2d 1 (2018). This discretionary standard applies even when the evidentiary ruling affects constitutional rights. See State v. Kauf......
  • State v. Sheffield
    • United States
    • Supreme Court of West Virginia
    • June 14, 2022
    ...When referring to specific jurors, we use their last initials rather than their full names. See State v. Wasanyi , 241 W. Va. 220, 230 n.12, 821 S.E.2d 1, 11 n.12 (2018) ("We refer to juror number one by an initial rather than her full name because of the personal information disclosed here......
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