Alarcon v. State, 41A04-8911-CR-530

• Docket Nº: No. 41A04-8911-CR-530
• Citation: 573 N.E.2d 477
• Case Date: June 20, 1991
• Court: Court of Appeals of Indiana

Page 477

573 N.E.2d 477 Arcadio ALARCON, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff. No. 41A04-8911-CR-530 ¹. Court of Appeals of Indiana,
Fifth District. June 20, 1991.
Rehearing Denied July 22, 1991.

Page 478

James H. Voyles, Dennis E. Zahn, Indianapolis, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Geoff Davis, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

RUCKER, Judge.

After a trial by jury Appellant-defendant Arcadio Alarcon (Alarcon) was convicted on 34 counts of Dealing in a Schedule IV Controlled Substance, Class C felonies. ² He received a total executed sentence of twelve (12) years imprisonment with eight (8) years suspended and ten (10) years probation.

Alarcon presents two interrelated issues, which we combine and rephrase as follows:

Whether Ind.Code Sec. 35-48-4-3(a)(1) is applicable to the act of writing a prescription by a licensed physician.

We find that it is applicable and therefore affirm.

The facts most favorable to the State disclose that Alarcon, a licensed physician, was the subject of a police investigation into his drug prescription practices. During the period of November, 1987 to May, 1988, a paid informant and undercover police officers were sent to Alarcon's office to solicit prescriptions. Alarcon issued prescriptions to them for Diazepam (Valium), Temazepan (Restoril), Dextropropoyphene (Darvon), and Dextropropoxyphene (Darvocet), all Schedule IV Controlled Substances. Ind.Code Sec. 35-48-2-10.

In some instances, Alarcon wrote the prescriptions without a physical examination or questioning as to the need for the drugs. At other times, Alarcon wrote prescriptions with only a cursory examination and questioning; sometimes he relied on the patient's memory as a basis for refilling prescriptions. The visits lasted no

Page 479

more than ten minutes; some were as short as two minutes.

On one occasion, Alarcon wrote a prescription for one patient in the name of another and advised the first patient to take the prescribed medication. He also issued post-dated prescriptions when the date of issuance was too close in time to prior prescriptions, and wrote prescriptions that were not requested. On a few occasions Alarcon refused to issue a requested prescription, expressing concerns about police surveillance. Many of the prescription transactions were accompanied by Alarcon's sale of discount watches, jewelry and clocks to the same individuals.

Alarcon contends that the conduct forming the basis for the charges against him is the issuing of prescriptions; and that the statute under which he was convicted does not apply to licensed physicians issuing prescriptions. Therefore, according to Alarcon, the evidence against him as a matter of law is insufficient to sustain the verdicts. We disagree but note this is a case of first impression in the State of Indiana. ³

Courts in a number of states have held that their dealing statutes, similar to ours, do not apply to the writing of prescriptions by licensed physicians. Hales v. State (1989), 299 Ark. 93, 771 S.W.2d 285; Ex parte Evers (1983), Ala., 434 So.2d 813; State v. Best (1977), 292 N.C. 294, 233 S.E.2d 544; Santoscoy v. State (1980), Tx.Cr.App., 596 S.W.2d 896. On the other hand courts in other jurisdictions have held to the contrary. United States v. Moore (1975), 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333; State v. Carr (1981), (App.), 95 N.M. 755, 626 P.2d 292, cert. den., 454 U.S. 853, 102 S.Ct. 298, 70 L.Ed.2d 145; People v. Alford (1979), 405 Mich. 570, 275 N.W.2d 484; People v. Cliche (1982), 111 Ill.App.3d 593, 67 Ill.Dec. 413, 444 N.E.2d 649. As set forth below we adopt the reasoning of those jurisdictions which hold that their "dealing" statutes apply to licensed physicians who write prescriptions for scheduled drugs.

In support of his argument Alarcon relies on Ind.Code Sec. 35-48-3-3(c), which provides in pertinent part:

Persons registered by the board under this article to ... dispense ... controlled substances ... may ... dispense ... those substances to the extent authorized by their registration and in conformity with the other provisions of this chapter.

and Ind.Code Sec. 35-48-1-12, which provides in part:

'Dispense' means to deliver a controlled substance to an ultimate user ... by ... the lawful order of a practitioner and includes the prescribing ... necessary to prepare the substance for that delivery.

Alarcon contends, consistent with the foregoing statutory authorization, a licensed physician who dispenses controlled substances by writing prescriptions within the scope of his registration, has an absolute defense to a charge of Dealing in a controlled substance.

The United States Supreme Court rejected a similar argument in Moore, supra, and held that only the lawful acts of registrants were exempted from prosecution under the federal act. Referring to a statutory authorization nearly identical to...