Broom v. State

• Decision Date: 22 February 1985
• Docket Number: No. 84-33,84-33
• Citation: 695 P.2d 640
• Parties: Edwin Earl BROOM, also known as Eddie Opendack, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 640

695 P.2d 640

Edwin Earl BROOM, also known as Eddie Opendack, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 84-33.

Supreme Court of Wyoming.

Feb. 22, 1985.

Rehearing Denied March 26, 1985.

Leonard D. Munker, State Public Defender, Sylvia Lee Hackl, Appellate Counsel, Wyoming Public Defender Program, Martin J. McClain, Asst. Appellate Counsel, Wyoming Public Defender Program, Cheyenne, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., Marion Yoder, Asst. Atty. Gen., Cheyenne, for appellee.

Before THOMAS, C.J., and ROSE, ROONEY, BROWN and CARDINE, JJ.

ROONEY, Justice.

Appellant appeals from the judgment and sentence of the court rendered on a jury verdict which found appellant guilty of obtaining possession of a controlled substance by fraud in violation of § 35-7-1033(a)(iii), W.S.1977. ¹ On appeal, appellant contends that there was insufficient evidence to support the jury verdict, and that the trial court erred in not permitting testimony relative to an opinion of a handwriting expert.

We affirm.

I

In determining whether or not there was sufficient evidence to support a jury verdict, we are not to reweigh the evidence. The following standard under which we examine the evidence for sufficiency to support a verdict was set forth in Harvey v. State, Wyo., 596 P.2d 1386, 1387 (1979):

"The oft-repeated rule by which we test the sufficiency of evidence on appeal of a criminal matter is that we examine and accept as true the evidence of the prosecution, leaving out of consideration entirely the evidence of the defendant in Applying the standard, we find the evidence sufficient "to form the basis for a reasonable inference of guilt beyond a reasonable doubt" (emphasis added), Harvey v. State, supra, 596 P.2d at 1387. See also Mirich v. State, Wyo., 593 P.2d 590, 591 (1979).

conflict therewith, and we give to the evidence of the prosecution every favorable inference which may reasonably and fairly be drawn therefrom. Stated another way--it is not whether the evidence establishes guilt beyond a reasonable doubt for us, but rather whether it is sufficient to form the basis for a reasonable inference of guilt beyond a reasonable doubt to be drawn by the jury when the evidence is viewed in the light most favorable to the State. Evanson v. State, Wyo., 546 P.2d 412 (1976); Brown v. State, Wyo., 581 P.2d 189 (1978); Nisonger v. State, Wyo., 581 P.2d 1094 (1978)."

The standard requires us to "leave out of consideration entirely the evidence of the defendant in conflict" with the evidence of the prosecution, which evidence of the prosecution we must "accept as true" and give "every favorable inference which may reasonably and fairly be drawn therefrom." Harvey v. State, supra, 596 P.2d at 1387.

It is not our function to weigh the evidence for a determination as to whether or not it is sufficient to establish guilt beyond a reasonable doubt. We have consistently held that even though it is possible to draw other inferences from the evidence presented, it is the responsibility of the jury to resolve conflicts in the evidence. Russell v. State, Wyo., 583 P.2d 690, 694 (1978); Janski v. State, Wyo., 538 P.2d 271, 277 (1975); Reeder v. State, Wyo., 515 P.2d 969, 971 (1973). The factfinder--in this case, a jury--did that. The jury is entitled to weigh and disregard the evidence intended to discredit the witnesses for the State. Russell v. State, supra, 583 P.2d at 694, citing Curley v. United States, 81 U.S.App.D.C. 389, 392, 160 F.2d 229, 232-233, cert. denied 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850, reh. denied 331 U.S. 869, 67 S.Ct. 1729, 91 L.Ed. 1872 (1947). Certainly the jury is not obligated to believe the defendant's witnesses. Russell v. State, supra, 583 P.2d at 699, citing Newell v. State, Wyo., 548 P.2d 8 (1976).

There is an extra and very important requirement in the standard by which we determine if the conviction should be sustained. We are to determine whether the record evidence could reasonably support the finding of guilt beyond a reasonable doubt. Not whether or not the evidence was sufficient to establish guilt beyond a reasonable doubt, but whether or not the evidence could reasonably support such a finding by the factfinder.

This distinction was nicely noted in Jackson v. Virginia, 443 U.S. 307, 318, 319, 99 S.Ct. 2781, 2788, 2789, 61 L.Ed.2d 560, reh. denied 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979):

" * * * [T]his inquiry does not require a court to 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' Woodby v. INS, 385 U.S. , at 282, 87 S.Ct. , at 486 (emphasis added). Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S. , at 362, 92 S.Ct. [1620], at 1624-1625 . This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon 'jury' discretion only to the extent necessary In this case, the evidence favorable to the prosecution consisted of testimony that appellant, under the name of Eddie Opendack, obtained a prescription from Dr. Stephenson for Preludin. The drug is a Schedule II drug and it comes in three strengths: 25, 50 and 75 milligrams. The prescription form furnished to appellant did not reflect the strength. Appellant presented the prescription form to one pharmacist, who noted that it did not indicate a strength, and since he was in a hurry, he "didn't want to mess with calling Dr. Stephenson to find out." He told appellant he did not carry the drug. When shown the prescription form introduced into evidence, he said that the "75" written on it did not look as if it was written by Dr. Stephenson, but that the rest of the prescription was in the handwriting of Dr. Stephenson. He had filled prescriptions from forms written by Dr. Stephenson for five and one-half years and was familiar with his handwriting. The pharmacist who filled the prescription for appellant said that the "75" was on the prescription form when it was presented to him. He was able to recall appellant as the one for whom the prescription was filled because appellant had been with a Georgia Opendack a week previous when she had a similar prescription filled. On the earlier occasion, the pharmacist had called Dr. Stephenson to determine if the strength "25 milligrams" written on the prescription was proper inasmuch as Georgia Opendack said that the 25-milligram tablets did not resemble the ones she had been taking. Dr. Stephenson then authorized the 75-milligram tablets and the authorized change was noted on the back of the prescription form. This earlier incident caused the pharmacist to recollect the incident subject of the charge in this case and the fact that the form contained the numerals "75." Dr. Stephenson and the second pharmacist had a discussion about the prescription shortly after it was filled. At the trial, both testified that at the discussion the doctor said he had not written the "75" on the prescription form. Specifically, the doctor testified:

to guarantee the fundamental protection of due process of law." (Footnotes omitted and emphasis added.)

" * * * [I]t was my opinion at that time and it is now that I had not put the '75' on the prescription."

The fact that the name on the prescription form was not appellant's true name is not significant. Many times, prescription forms are presented by one person on behalf of another for whom the prescription was made. There is no controversy here but that the prescription was made for appellant under whatever name.

However, the obvious inference to be drawn from the evidence is that the prescription form was altered by adding the numerals "75" between the time it was presented by appellant to the first pharmacist and the time it was presented by him to the second pharmacist. The jury also could infer that the appellant knew this, but even so used the prescription to obtain Preludin 75. This was a reasonable inference that the jury was entitled to draw from the evidence before it. Murray v. State, Wyo., 671 P.2d 320, 328 (1983); Russell v. State, supra, 583 P.2d at 694-700. The availability of these inferences is sufficient to find the appellant guilty beyond a reasonable doubt.

Again, it is not our task to reweigh the evidence or re-examine the credibility of the witnesses. There was evidence which could reasonably support the jury finding of guilt beyond a reasonable doubt. The fact that such evidence is circumstantial is immaterial. Logically connected circumstances may be as cogent proof of existence of fact as direct evidence and may even outweigh opposing direct evidence. Tisthammer v. Union Pacific Railroad Co., 41 Wyo. 382, 392, 286 P. 377, 380 (1930). Circumstantial evidence, with proper inferences to be drawn therefrom, may be sufficient to establish fraud. United States v. Mammoth Oil Co., 14 F.2d 705, 717 (8th Cir.1926), affirmed 275 U.S. 13, 48 S.Ct. 1, 72 L.Ed. 137 (1927).

There was sufficient evidence to form a basis for a reasonable inference of guilt beyond a reasonable doubt.

II

Appellant's wife was asked to testify to the opinion reached by a handwriting expert who had examined the prescription form. The expert witness was not available to testify. The court sustained the objection to such testimony as...