Armstrong v. State, CACR
| Decision Date | 19 May 1982 |
| Docket Number | No. CACR,CACR |
| Citation | 5 Ark.App. 96,633 S.W.2d 51 |
| Parties | Robbie ARMSTRONG, Appellant, v. STATE of Arkansas, Appellee. 81-143. |
| Court | Arkansas Court of Appeals |
William R. Simpson, Jr., Public Defender and Jeff Rosenzweig, Deputy Public Defender by Deborah R. Sallings, Deputy Public Defender, Little Rock, for appellant.
Steve Clark, Atty. Gen. by Arnold M. Jochums, Asst. Atty. Gen., Little Rock, for appellee.
Appellant was found guilty of obtaining a controlled substance with a fraudulent prescription in violation of Ark.Stat.Ann. § 82-2619(2) (Repl.1976). The jury fixed her sentence at fifteen years as a habitual offender and a fine of $5000. On appeal, it is contended that the evidence was insufficient to support the conviction. We believe the evidence was sufficient and we affirm.
On September 2, 1980, appellant presented a prescription for Tussionex, a Schedule III narcotic cough suppressant, at Baker Drug in North Little Rock. The prescription was written on a St. Vincent prescription pad and bore what purported to be the signature of Dr. Jess Clanton. Because the writing on the prescription pad was out of the ordinary and because he knew Tussionex to be a frequently abused substance, the pharmacist telephoned the North Little Rock Police. The pharmacist then filled the prescription from his larger pharmaceutical container of Tussionex and the prescription bottle was given to appellant. Appellant was arrested as she left the pharmacy and the bottle was seized.
At trial, appellant objected to the testimony of the pharmacist that the substance in the prescription bottle was Tussionex. She based her objection on the grounds that the substance had not been scientifically and chemically tested and she asserted there, and asserts here, that the state failed to prove that she obtained a controlled substance. We know of no Arkansas case which requires chemical analysis as a precondition to the identification by a pharmacist of a substance which he dispensed. Appellant cites only one case, Lee v. State, 264 Ark. 384, 571 S.W.2d 603 (1978), in support of this contention. That case is readily distinguishable.
Lee was charged with the theft of four men's suits. The only testimony as to the value of the property stolen was that of a store security guard, who based his valuation on the price tags he had observed on the suits. The court held this to be inadmissible hearsay, but noted "no salesperson or any other employee, who had knowledge of the property's value from the business books or records of the store, was called as a witness."
An argument similar to appellant's was made in United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir. 1976) where the court said "lay testimony and circumstantial evidence may be sufficient, without the introduction of an expert chemical analysis, to establish the identify (sic) of the substance involved in an alleged narcotics transaction." The court added:
Such circumstantial proof may include evidence of the physicial...
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