Douglass v. State, 789

• Decision Date: 01 September 1988
• Docket Number: No. 789,789
• Citation: 552 A.2d 1371,78 Md.App. 328
• Parties: Holly Madeline DOUGLASS v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 328

78 Md.App. 328

552 A.2d 1371

Holly Madeline DOUGLASS v. STATE of Maryland.

No. 789, Sept. Term, 1988.

Court of Special Appeals of Maryland.

Feb. 7, 1989.

Mark Colvin, Asst. Public Defender (Alan H. Murrell, Public Defender on the brief) Baltimore, for appellant.

Diane E. Keller, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Andrew L. Sonner, State's Atty for Montgomery County, Rockville, on the brief), for appellee.

Submitted before GILBERT, C.J., and WILNER and ROSALYN B. BELL, JJ.

WILNER, Judge.

Md.Ann.Code art. 27, § 287(b) makes it unlawful for any person

"To obtain or attempt to obtain a controlled dangerous substance ... or to procure or attempt to procure the administration of any controlled dangerous substance by (1) fraud, deceit, misrepresentation or subterfuge, or (2) by the forgery or alteration of a prescription or a written order, or (3) by the concealment of any material fact or by the use of false name or address, or (4) by falsely assuming the title of or representing himself to be a manufacturer, distributor or practitioner, or (5) by making or uttering any false or forged prescription or written order."

Essentially at issue in this appeal is whether the acts proscribed by subsection (b)(2) and (3) are also subsumed in the proscription of subsection (b)(1)--i.e., whether the alteration of a prescription or the use of a false name to obtain a controlled dangerous substance will support a conviction for obtaining or attempting to obtain such substance by "fraud, deceit, misrepresentation or subterfuge." We shall answer in the negative and therefore reverse the judgment entered against Holly Madeline Douglass by the Circuit Court for Montgomery County.

Factual Setting

On June 5, 1987, Ms. Douglass, a Virginia resident, appeared in the emergency room of Georgetown University Hospital in the District of Columbia complaining of symptoms indicative of an upper respiratory infection. The attending physician examined her and, apparently satisfied that her complaints were legitimate, gave her a prescription for Tussionex, a cough medicine that is classified as a controlled dangerous substance under Schedule III, Md.Ann.Code art. 27, § 279(c). The doctor prescribed this particular drug after Ms. Douglass reported a codeine allergy. Ms. Douglass gave the physician a false name and address, Deb Engelhard of Knoxville, Tennessee, and the prescription was written in that name.

Accompanied by a friend, Jeffery, Ms. Douglass presented the prescription at a pharmacy in Gaithersburg, Maryland. The prescription as presented purported to authorize the dispensing of sixteen ounces of Tussionex. There is considerable dispute, however, over whether the doctor originally prescribed anything more than six ounces. The doctor could not recall the details concerning how much of the drug he prescribed. He testified, however, that Tussionex was usually prescribed in six-ounce quantities and that he never knowingly prescribed, nor would he prescribe, sixteen ounces of the addictive drug. There is, in other words, a fair inference that Ms. Douglass altered the prescription by increasing the prescribed dosage. The pharmacy initially dispensed four ounces of the drug, as Ms. Douglass requested.

In the ensuing week, the pharmacy placed the "Engelhard" prescription under close scrutiny. A store pharmacist and the attending physician testified that a prescription for sixteen ounces of a narcotic that was normally dispensed in four- or six-ounce quantities would naturally arouse suspicion. In addition, an unidentified person telephoned in a refill request on June 11, at a different store in the same chain of pharmacies, giving a different address and telephone number from that written on the prescription. Although this refill was never picked up, there was testimony that Jeffery went to that store and waited for the refill but left "because it was taking too long."

On June 14, Ms. Douglass appeared at the original drug store and asked for a refill of "Debbie Inglehart['s]" prescription. She claimed that her friend Debbie had called in a refill request a few days earlier and that she was there to pick it up. Because the prescription was under surveillance by the pharmacy, the store pharmacist called the police. Upon their arrival, Ms. Douglass said that she had obtained the prescription "from a woman outside the pharmacy who asked her to get it filled for her."

Unpersuaded, the police placed Ms. Douglass under arrest and charged her, in the District Court, with (1) "Obtain[ing] A CDS Of Schedule III, To Wit: Tussionex By The Use of A False Name And Address," (2) "Obtain[ing] A CDS Of Schedule III, To Wit: Tussionex, By Fraud, Deceit, Misrepresentation and Subterfuge," and (3) "Att[empting] To Obtain A CDS of Schedule III, To Wit: Tussionex, By Fraud, Deceit, Misrepresentation And Subterfuge," all in violation of art. 27, § 287. Upon Ms. Douglass's prayer for jury trial, the case was transferred to the Circuit Court. The State was content to proceed on the charging document filed in the District Court. See Md. Rule 4-201(c)(3).

The Issue

Even before trial commenced, Ms. Douglass more or less conceded that she had given a false name and address to the prescribing physician. She argued, however, then and at the conclusion of the evidence, that the State had no evidence that the doctor ever relied upon that false information in issuing the prescription and that reliance was an essential element of the fraud charge. That question became particularly well crystallized when, at the end of its case, the State, offering no explanation, nol prossed the first count of the charging document--obtaining a CDS by the use of a false name and address--and elected to proceed solely on the "fraud, deceit, misrepresentation and subterfuge" charges. Throughout, however, the court seemed to view the proscriptions of subsection (b)(3), and, by implication, those of subsection (b)(2) as well, as incorporated in subsection (b)(1). In response to Ms. Douglass's argument, the court declared

"[T]he gravamen of the offense is the actual use of a false name, and false address. Whatever the hidden agenda of the Defendant was is not a concern of the State, in my view.

Whatever mental reservation the Defendant may have held to herself for reasons that she would not give her correct name and address, is not something that the State has to concern itself with by either negating, or proving up the contrary in some fashion, in its' [sic] case in chief.

I am ruling specifically that all the State needs to show is what it has shown in this case, that there was a false name imprinted upon there, on this prescription, that was created by the Defendant.

That she then went to a drugstore and obtained drugs by the use of that prescription."

Its instructions to the jury followed that assumption:

"The Defendant is charged in this matter in two counts. In the first count she is charged with obtaining a controlled dangerous substance by fraud, deceit, misrepresentation, or subterfuge. That is on the date of June 5, 1987.

In the second count she is charged with the attempt to do the same thing, and that is on the date of June 14, the date that she was arrested.

* * *

Now, I am going to instruct you on the law as it applies to the particular charges involved. First let me start with the date of June 5, 1987. That is the date upon which the State is charging the Defendant of [sic] obtaining the controlled dangerous substance by the use of fraud, deceit, misrepresentation, or subterfuge. The law in Maryland is as follows:

It is unlawful for any person to obtain or attempt to obtain a controlled dangerous substance, or controlled paraphernaila [sic], or to procure, or attempt to procure the administration of any controlled dangerous substance by, one, fraud, deceit, misrepresentation, or subterfuge; or two, by the concealment of any material facts, or by the use of false name or address.

The second count that the State is going on, is that on the date of June 14, 1987, that the Defendant, Holly Douglass, attempted to commit the crime that I have just defined for you."

The State's view of the law was argued succinctly to the jury, as the prosecutor told the panel:

"First of all, the fact that she may or may not have been validly entitled to this Tussionex, if she had not given a phony name, is completely irrelevant. So what?

The Judge has already told you that the mere giving of the phoney name is a violation of the law. Any fraudulent act that you do to obtain a controlled dangerous substance is a violation of the law.

The legislature has mandated that. It is written down in the books. I have it right here. The Judge has it, and [Defense Counsel] has it. He knows that. There is no doubt about that."

The jury convicted Ms. Douglass on both charges. From the judgment entered on those convictions, she has brought this appeal pressing her statutory construction argument and contending that (1) the evidence was insufficient to sustain her convictions and (2) the trial court erred "in not instructing the jury as to materiality or causation and in prohibiting defense counsel from arguing those matters to the jury."

Discussion

Although appellant's argument focuses on the element of reliance, which is normally an essential ingredient in a charge of fraud, her complaint as to the sufficiency of the evidence raises as well the somewhat broader issue of whether, in light of the specific proscriptions stated in § 287(b)(2) and (3), the obtention or attempt to obtain a controlled dangerous substance solely through alteration of a prescription or use of a false name or address can support a conviction under § 287(b)(1). That is the issue we shall consider, because it is determinative.

The issue is one of statutory construction, of course, and would seem rather clearly to be controlled by the principle, well established in...