Dover v. State

• Decision Date: 09 June 1983
• Docket Number: No. 83-19,83-19
• Citation: 664 P.2d 536
• Parties: Gary DOVER, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 536

664 P.2d 536

Gary DOVER, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 83-19.

Supreme Court of Wyoming.

June 9, 1983.

Dan R. Price, II, of Morgan, Brorby, Price & Roberts, Gillette, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., and Sharon A. Lyman, Sr. Asst. Atty. Gen., Cheyenne, for appellee.

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

BROWN, Justice.

Appellant is a registered pharmacist who was convicted of knowingly possessing a controlled substance in violation of the law. He contends that the evidence was insufficient to support his conviction, that an affirmative defense available to him was void for vagueness, and that he was found guilty of a charge other than that set out in the information.

We affirm.

I

Appellant was convicted of violating § 35-7-1031(c), W.S.1977:

"It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to a valid prescription or order of, a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this act. * * * Any person who violates this subsection is guilty of a misdemeanor and may be imprisoned in the county jail not more than six (6) months and fined not more than one thousand dollars ($1,000.00). * * * "

Appellant has two arguments which will be discussed together. He argues that the evidence was insufficient to convict him of violating § 35-7-1031(c), supra. He also argues that he proved the affirmative defense set out in § 35-7-1024(b), W.S.1977:

"(b) Extent of manufacture, distribution or dispensing.--Persons registered by the board under this act [§§ 35-7-1001 to 35-7-1055] to manufacture, distribute, dispense, or conduct research with controlled substances may possess, manufacture, distribute, dispense, or conduct research with those substances to the extent authorized by their registration and in conformity with the other provisions of this article [§§ 35-7-1023 to 35-7-1030]." (Emphasis added.)

Appellant moved for a judgment of acquittal, which the trial court denied. Under Rule 30(a), Wyoming Rules of Criminal Procedure, a trial court shall order the entry of a judgment of acquittal upon motion if the evidence is insufficient to sustain a conviction. The trial court must assume that the State's evidence is true and must give the State the benefit of all legitimate inferences. A reviewing court can only overrule the denial of a motion for acquittal when there is no substantial evidence from which reasonable persons could say that the defendant is guilty beyond a reasonable doubt.

" 'Our responsibility in considering the propriety of a ruling on a motion for judgment of acquittal is the same as that of the trial court. * * * It is proper to grant a motion for judgment of acquittal only if there is no substantial evidence to sustain the material allegations relating to the offense that is charged. * * * ' " Haight v. State, Wyo., 654 P.2d 1232, 1236 (1982).

Appellant argues that none of the evidence showed that his possession was unauthorized. We disagree. Appellant was registered as a pharmacist entitled to dispense controlled substances. His pharmacist's certificate provided that he was

" * * * duly registered and entitled to act as a registered pharmacist under the provisions of the Pharmacy Law now in force and is permitted to open and conduct a pharmacy, dispensary, drugstore, apothecary shop, or store for the purpose of retailing, compounding, or dispensing drugs, medicines or poisons, and to compound, recommend, dispense and sell at retail drugs, medicines and poisons from the date hereof until the 31st day of December 1981, when this certificate expires." (Emphasis added.)

The jury was instructed that a pharmacist is licensed to dispense controlled substances pursuant to law and that dispensing controlled substances means to deliver them to an ultimate user pursuant to a prescription. Section 35-7-1002(a)(vii), W.S.1977, defines dispensing a controlled substance as the act of delivering it to an ultimate user or research subject by or pursuant to the lawful order of a practitioner. If appellant possessed a controlled substance for any other purpose than to dispense it to an ultimate user, he was in excess of his statutory authority.

The court gave Instruction No. 3 on the elements of the crime:

"The defendant is charged with the crime of possession of a controlled substance. The defendant pleads not guilty.

"To establish this charge, each of the following claims must be proved:

"1. That the defendant knowingly possessed Percodan-demi.

"2. That the defendant was not acting within the authority conferred upon him as a registered pharmacist. ¹

"3. That the incident occurred on or about the 26th day of May, 1982, in Campbell County, Wyoming."

A Mr. Wilk testified at trial. Although Mr. Wilk did not say that appellant was the pharmacist who filled his prescription, the evidence was that he went to get a prescription at the pharmacy where appellant worked, and that appellant was the only pharmacist on duty. The pharmacist who was on duty said that he was out of Percodan-Demi, the drug which had been prescribed by Mr. Wilk's dentist. The pharmacist made a telephone call, after he had said that he would have to call the dentist to change the prescription. The dentist received a phone call from a pharmacist at the pharmacy where appellant worked. Mr. Wilk then received a prescription of Percocet-5. The pharmacist can write up a prescription if ordered over the phone by a doctor, who must then supply a written prescription to the pharmacy within 72 hours.

There were three prescription slips for the same date in the file for Mr. Wilk, one for Percodan-Demi and two for Percocet-5. The two drugs have the same active ingredient. One prescription was in appellant's writing; the other two were in the dentist's. The manager of the pharmacy testified that there was an established procedure for substituting prescriptions. The one which is not filled is cancelled out. That was not done to the Percodan-Demi prescription in Mr. Wilk's name. Appellant knew this procedure. The handwritten prescription, the one for Percocet-5, was filled first, according to the numbers on the prescriptions. Then the one for Percodan-Demi was filled.

The manager of the pharmacy also testified that she looked in the appellant's lunch bag at around 3:30 or 4:00 of the afternoon appellant was arrested and saw that there was a prescription vial made out to a Mr. Gerald Wilk in the sack. She then called Mr. Wilk's dentist to see why there were three prescription slips for the same date in the file for Mr. Wilk. Shortly after, appellant picked up his lunch sack and left the store. As he left, the manager of the store stopped him and asked him to return to the store. The manager had already called the police.

Appellant first explained that he was delivering the Percodan-Demi to a customer. He later said that he was taking the drugs to his grandmother. The manager of the pharmacy testified that the pharmacy does not make deliveries. She testified that there was no charge ever rung up on the register for the Percodan-Demi. She also testified that if a prescription was ever delivered, it would be in a sack, stapled shut, with a receipt or charge slip inside the sack. There was no receipt or charge slip inside appellant's lunch sack.

Taking the evidence in the light most favorable to the State, the trial court could easily have concluded that there was substantial evidence to sustain the material allegations relating to the offense, and that the case should therefore go to the jury. The jury could have reasonably inferred that appellant filled the prescription for Percocet-5 which the dentist had ordered over the phone. Then, instead of cancelling the Percodan-Demi prescription as he was supposed to, appellant filled it and put the bottle in his lunch sack. Because the store did not make deliveries, and because the prescription charge was never rung up, the jury could reasonably infer that appellant was going to dispose of the drugs in a manner not authorized by law.

Plainly stated, appellant's argument is that the statutes and his license authorize him to take someone else's prescription and use it in any way he sees fit just because he is a pharmacist. Other jurisdictions have interpreted similar statutes. A Massachusetts statute provided:

" 'Except as authorized by this chapter, no person shall knowingly or intentionally manufacture, distribute, dispense, or possess with intent to manufacture, distribute or dispense a controlled substance * * *.' " Commonwealth v. Comins, 371 Mass. 222, 356 N.E.2d 241, fn. 1, (1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1976).

The appellant there was a licensed osteopathic physician convicted for illegally dispensing controlled substances. There was a statutory exception for a prescription for a controlled substance " 'issued for a legitimate medical purpose by a practitioner acting in the usual course of his professional practice.' " The court held that a physician illegally dispensed controlled substances when he did not intend to achieve a legitimate medical objective.

In State v. Mann, 119 R.I. 720, 382 A.2d 1319 (1978), the court held that the phrase "any person" included physicians in a statute making possession illegal for any person not specifically exempted.

" * * * The stated purpose, as we have noted, is to establish a scheme to identify and protect legitimate drug handlers and to curtail the flow of drugs to persons not legitimately in possession. * * * "

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" * * * They are exempt from the penalties imposed under the Act only when they are registered and acting within the scope of their...