State of Ohio, Journal Entry v. Robert Carras, 92-LW-3803
| Decision Date | 27 August 1992 |
| Docket Number | 92-LW-3803,61260 |
| Parties | STATE OF OHIO, JOURNAL ENTRY, Plaintiff-Appellee v. ROBERT CARRAS, Defendant-Appellant |
| Court | Ohio Court of Appeals |
Criminal appeal from Common Pleas Court Case No. CR-256174
For Plaintiff-Appellee: STEPHANIE TUBBS JONES, ESQ., Cuyahoga County Prosecutor, JAMES A. GUTIERREZ, ESQ., DAVID ZIMMERMAN ESQ., Assistant Prosecuting Attorney, The Justice Center 1200 Ontario Street, Cleveland, Ohio 44113.
For Defendant-Appellant: THOMAS E. O'TOOLE, ESQ., 55 Public Square, Suite 1330, Cleveland, Ohio 44113.
On May 29, 1990, appellant, Robert Carras, was indicted by the Cuyahoga County Grand Jury on 25 counts of drug trafficking in violation of R.C. 2925.03(A)(4), and 25 counts of illegal processing of drug documents, in violation of R.C. 2925.23(B)(1). Appellant was reindicted and charged with 25 counts of drug traffic.king, in violation of R.C. 2925.03(A)(6), and 25 counts of illegal processing of drug documents, in violation of R.C. 2925.23(B)(1).
On August 9, 1990, the above two cases were dismissed and appellant was subsequently reindicted on 76 counts of drug laws, in violation of R.C. 2925.03(A)(6) and 76 counts of illegal processing of drug documents, in violation of R.C. 2925.23(B).
On November 26, 1990, appellant was convicted by the jury on all 152 counts. The court sentenced appellant to a term of two years in prison to run concurrently on counts 1 through 76; four to fifteen years with three years actual incarceration on count 77; four to fifteen years with three years actual incarceration on counts 78 through 152 to be served concurrently with the other sentences. Appellant appeals as of right, and for the reasons set forth below, we affirm.
II.
Robert Carras, until his conviction in the within case, was a police officer in the City of Newburg Heights. He joined the police force in 1978. Mr. Carras suffers from a number of medical conditions dating back to 1970 when he was in high school. He had knee, hip and back injuries which necessitated taking various narcotic medications. Mr. Carras' medication included Codeine, Dilaudid, Percodan and Percocet. Mr. Carras also suffered from a bullet wound to his right leg. The medications were prescribed in the late 1970's to early 1980's by Dr. Nowacek.
In 1983, Dr. Nowacek transferred his practice to New York and Mr. Carras' treatment was referred to Dr. Kenneth Klak. Dr. Klak placed Mr. Carras on Tylenol with Codeine for a period of three to six months and later prescribed Percodan to be taken one every four hours. The percodan prescriptions were continued even after Mr. Carras was diagnosed as being dependent on narcotics. The Percodan was discontinued and Mr. Carras was placed on Percocet by Dr. Klak after he was hospitalized in 1988 for a bleeding ulcer.
Dr. Klak testified that in 1988 Mr. Carras was being issued approximately one prescription per week for Percocet. The rate of prescription slightly increased from 1984 to 1989.
Dr. Klak testified that after each examination he usually gave the file to the patient to take back to the business office. He would write a prescription from a pad with a carbon paper underneath the first sheet, thereby producing a carbon copy of the prescription. The carbons are stapled to a red "drug card" (a piece of paper where all drug prescriptions are stapled together). Dr. Klak did not review the drug card on a periodic basis. Dr. Klak testified that the Cuyahoga County Sheriff's Department seized his medical records on April 20, 1990. He later reviewed the files in the presence of the detectives and discovered that the drug card with the stapled carbons for the whole of 1989 and early 1990 were missing from the file.
Dr. Klak testified that he did not write the prescriptions on State's Exhibits 1 through 76. He always used a ball point pen to write because a felt tip pen "would not make a carbon". Although State's Exhibits 1 through 11 were written in ball point pen, they were not written by Dr. Klak and 12 through 76 were in felt tip pen which is a pen he never uses. Dr. Klak knew only two pharmacies that Mr. Carras went to. Dr. Klak testified that he gave no more than four prescriptions of 100 unit dosages of Percocet a month. an cross-examination, he admitted that he wrote as many as three prescriptions a week at one time.
Mr. William Winsley, of the Ohio State Board of Pharmacy, testified that a patient on 100 tablets of Percocet per week from 1984 to 1989 would have to increase the dosage to maintain the same effect because "the effectiveness of the drug probably would have worn off."
Several members of Dr. Klak's staff testified that Mr. Carras was well known at the office. He knew some of the procedures regarding medical files. He always waited in the business office instead of the lobby. Some members of the staff socialize with him outside the office. The employees testified that Dr. Klak usually keeps patient's files in his office and brings them out to the front desk after the paperwork is finished. Dr. Klak usually takes the drug card and progress sheet home, as a result, they are not normally in the file. They testified that Mr. Carras usually took his own file from the business office to the examining room and back to the file room. They never wrote a prescription to Mr. Carras and never noticed the doctor give a carbon to Mr. Carras. All of them testified that they witnessed Mr. Carras staple carbons to the drug card. They testified that the doctor does not use a felt tip pen because the doctor was messy and the pen did not go through a carbon. They further testified that the doctor was "sloppy" and would leave his prescription pad laying around the office.
Dr. Phillip Bouffard, the director of the Lake County Regional Forensic Laboratory, testified as a handwriting expert. Dr. Bouffard analyzed the handwriting on the prescriptions and grouped them into three categories. The first group, which consisted of State's Exhibits 79 through 130, were written in ball point pen and consistent with Dr. Klak's handwriting. Dr. Bouffard presented to the jury a blow up of Dr. Klak's admitted written prescriptions and the alleged forged prescriptions to show the similarities and dissimilarities. Dr. Bouffard testified that he also used a video spectrum comparator which "is a device that uses a TV camera." It uses different wave lengths of light to determine "differences in ink or alterations." Dr. Bouffard testified that his examination revealed that five prescriptions written by Dr. Klak had dates altered in different ink from that used to write the original prescriptions.
Dr. Bouffard called the second group of prescriptions "freehand simulations" which occurs when someone copies another's handwriting. This writing is difficult to determine the author because the writer uses slow, deliberate strokes. While Dr. Bouffard could not determine who wrote the freehand prescriptions he ruled out Dr. Klak as the writer.
The third group of prescriptions were labelled by Dr. Bouffard as "tracings." He explained that tracings are done by shining a light through a writing and then placing a blank sheet of paper over the original and tracing over it. This is called "light box tracings." A second tracing is done by marking over the original writing itself or from a carbon. The tracings were done on State's Exhibit'S 12 through 76. In some of the prescriptions the tracings which dated back to 1988 had the dates changed.
Dr. Bouffard stated that some of the tracings were done by the light box method. Dr. Bouffard in his issued report initially indicated that the trace overs were pencil or pen writings but later changed his opinion and concluded that "they would more likely be tracings over a carbon copy" and that due to the "line quality of the writing underneath," the carbon was an original carbon.
Mr. Carras took the witness stand on his own behalf. He testified that all the prescriptions he got were obtained from Dr. Klak. Mr. Carras testified that he did not have any training in narcotic identification and prosecution. The Percocet he took did not affect his judgment as a police officer. In a one week period in 1985, he took 500 Percocets which amounted to about 71 pills per day. He knew the layout of Dr. Klak's office; he knew where the drug card was and where it was kept. He took all the pills prescribed and did not know how much prescription he was taking per day. Mr. Carras further testified that he was the only one in control of the prescriptions. He was addicted to Percocet and he could not remember how much medication he took from the forged prescriptions. He cashed some of the prescriptions. He did not know how many prescriptions he got and does not know if taking 12,800 Percocets over a 15-month period was excessive.
Eleven pharmacists from the four pharmacies that Mr. Carras used to fill his prescriptions testified. They identified the markings on various scripts as the prescriptions they filled. Nine of the pharmacists identified Mr. Carras and testified that he came to their stores very often. They testified that Mr. Carras received the prescriptions to the best of their knowledge. They testified that they were without the knowledge that Mr. Carras was going to four different pharmacies to fill his prescriptions.
III.
Appellant files the following assignments of error for review:
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