State v. Bell

• Decision Date: 10 June 1993
• Docket Number: No. 21114,21114
• Citation: 189 W.Va. 448,432 S.E.2d 532
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Timothy Randall BELL, Defendant Below, Appellant.

Page 532

432 S.E.2d 532

189 W.Va. 448

STATE of West Virginia, Plaintiff Below, Appellee, v. Timothy Randall BELL, Defendant Below, Appellant.

No. 21114.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 13, 1993.

Decided June 10, 1993.

Syllabus by the Court

1. "A trial court may in its discretion order two or more indictments, or informations, or both, to be tried together if the offenses could have been joined in a single indictment or information, that is, the offenses are of the same or similar character or are based on the same act or transaction, or on two or more acts or transactions connected together or constituting a common scheme or plan." Syl. pt. 5, State v. Mitter, 168 W.Va. 531, 285 S.E.2d 376 (1981).

2. " ' "Rulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion." State v. Louk, W.Va. , 301 S.E.2d 596, 599 (1983).' Syl. pt. 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983)." Syl. pt. 4, State v. Farmer, 185 W.Va. 232, 406 S.E.2d 458 (1991).

3. "A judgment of conviction will not be reversed because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice." Syl. pt. 5, State v. Ocheltree, 170 W.Va. 68, 289 S.E.2d 742 (1982).

4. "The decision of a trial court to deny probation will be overturned only when, on the facts of the case, that decision constituted a palpable abuse of discretion." Syl. pt. 2, State v. Shafer, 168 W.Va. 474, 284 S.E.2d 916 (1981).

Michael E. Froble, Bluefield, for appellant.

Darrell V. McGraw, Jr., Atty. Gen., Marcella Gower, Charleston, for appellee.

PER CURIAM:

This action is before this Court upon an appeal from the March 4, 1991, order of the Circuit Court of McDowell County, West Virginia. Two indictments were returned against the appellant, one in October, 1990, and the other in February, 1991. The appellant was charged in the first indictment with two counts of feloniously acquiring a controlled substance with prescriptions dated July 6 and July 20, 1990. In the second indictment, the appellant was charged with one count of feloniously acquiring a controlled substance with a prescription dated June 6, 1990. The appellant, Timothy Randall Bell, was convicted on those three counts of feloniously acquiring a controlled substance and sentenced to one to four years in prison on each of the three counts, to run concurrently. The appellant raises seven issues on appeal: (1) the trial court erred by allowing the case to go to the jury despite the invalidity of the prescriptions; (2) the trial court erred by allowing the case to go to the jury despite the fact that the appellant received only 2.5 more milligrams of hydrocodone than the prescription originally called for; (3) the trial court erred by improperly joining the two separate indictments against the appellant; (4) the trial court erred by not declaring a mistrial based upon the prosecuting attorney's violation of appellant's fifth amendment right against self-incrimination by questioning him as to comments and actions occurring at the state police headquarters; (5) the trial court erred by not declaring a mistrial based upon the prosecuting attorney's improper questioning and commenting in reference as to whether the appellant stole a certain missing prescription dated July 20, 1990; (6) the trial court erred by not declaring a mistrial based upon the prosecuting attorney's improper questioning and commenting with respect to the appellant's occupation as a school bus driver; and, (7) the trial court erred by failing to properly consider the factors for probation when the appellant was sentenced. This Court has before it the petition for appeal, all matters of record and the briefs of counsel. For the reasons stated below, the judgment of the circuit court is affirmed.

I.

The chronology of events leading up to the appellant's conviction is as follows:

In 1989-90, the appellant underwent three knee operations.

May 29, 1990: The appellant went to the office of Dr. Charito Flores complaining of pain and swelling in his knee. After examining the appellant's knee, Dr. Flores gave the appellant a prescription for Tylenol Number 3 to relieve the pain.

June 6, 1990: The appellant returned to Dr. Flores' office complaining that the Tylenol 3 was making him sick. The appellant requested she prescribe another medication for the pain. Dr. Flores then wrote the appellant a prescription for Lorcet. The prescription was filled for Lorcet Plus at the Rite-Aid Pharmacy by pharmacist John Bell. ¹

July 6, 1990: The appellant returned to Dr. Flores' office complaining of knee pain. Again, Dr. Flores wrote the appellant another prescription for Lorcet.

July 7, 1990: The pharmacist filled the prescription dated July 6, 1990, with Lorcet Plus.

July 20, 1990: The appellant returned to Dr. Flores' office requesting more painkillers, because he was going on vacation. Dr. Flores wrote the appellant a prescription for Lorcet and Naprosyn. The appellant presented the prescription to the pharmacist to be filled. The pharmacist became suspicious when he began to fill the prescription for Lorcet Plus. The word "Plus," as the pharmacist noted, appeared as if it had been added to the prescription after it had been written by the physician. The pharmacist attempted to reach Dr. Flores but was unsuccessful. Nevertheless, he filled the prescription with the intent of calling Dr. Flores the next day to verify the prescription.

July 21, 1990: The pharmacist contacted Dr. Flores. Dr. Flores confirmed the pharmacist's suspicions. Dr. Flores said she had written the prescription for Lorcet and not Lorcet Plus. The pharmacist then contacted Trooper Thomas Calvin Jennings, and he gave the trooper a computer printout with the appellant's name and the particular drugs that the appellant had received from the pharmacy. The change in the prescription, from Lorcet to Lorcet Plus, enabled the appellant to obtain 7.5 milligrams of hydrocodone, compared with 5 milligrams of hydrocodone, as contained in Lorcet-HD. ² The difference, as the pharmacist later attested to, could lead to "one-and-a-half more times potential of the addicting manifestation."

July 27, 1990: Trooper Jennings met with Dr. Flores. Dr. Flores confirmed the fact that she did not write the appellant a prescription for Lorcet Plus. Trooper Jennings then arrested the appellant pursuant to an arrest warrant charging the appellant with feloniously acquiring a controlled substance. At the state police headquarters, during the booking process of filling out the paperwork and obtaining fingerprints, the appellant asked to see the July 20, 1990, prescription. Trooper Jennings handed the appellant the prescription. The appellant then claims that he stepped outside of the office to speak with his father, and when he returned the prescription was no longer lying on the trooper's desk. It was during the booking process that the prescription was lost.

September, 1990: The pharmacist received a subpoena to testify at trial. In reviewing the computer printouts on the appellant's pharmaceutical transactions, the pharmacist noticed an altered prescription dated July 6, 1990, for Lorcet Plus, which had been filled on July 7, 1990. The pharmacist informed Trooper Jennings of his discovery. Trooper Jennings confirmed the pharmacist's discovery by obtaining another statement from Dr. Flores that she did not prescribe Lorcet Plus for the appellant on that date.

The appellant was arrested a second time for feloniously acquiring a controlled substance with the July 6, 1990, prescription. After the second arrest, the appellant was suspended from his job as a school bus driver for the McDowell County Board of Education.

The pharmacist received a subpoena requesting that he bring the July 6 and July 20, 1990, prescriptions to court. However, the pharmacist was unsure as to whether the subpoena read July 7, 1990, the day in which he filled the July 6, 1990, prescription, or June 6, 1990. The pharmacist then went back through the computer profile and discovered another prescription for Lorcet Plus on June 6, 1990. ³

Based upon the above allegations, the appellant was charged with two counts of obtaining a controlled substance, hydrocodone, by misrepresentation, fraud, forgery, deception or subterfuge pursuant to an indictment for the July 6 and July 20, 1990, prescriptions. The prosecuting attorney was unaware of the third offense until he was preparing the pharmacist for trial.

On November 29, 1990, the jury was unable to reach a verdict and a mistrial was declared. The trial was rescheduled for March 4, 1991.

On February 19, 1991, the appellant was indicted by the grand jury for the June 6, 1990, prescription.

On March 4, 1991, the jury found the appellant guilty on all the charges brought against him, that is, the two counts contained in the first indictment for the July 6 and July 20, 1990, prescriptions, and the single count contained in the second indictment, resulting from the June 6, 1990, prescription.

The appellant was sentenced to one to four years in prison on each count, to run concurrently.

It is from his conviction of March 4, 1991, that the appellant appeals to this Court.

II.

A.

The appellant was convicted under W.Va.Code, 60A-4-403(a)(3) [1971] which provides, in relevant part, that "it is unlawful for any person knowingly or intentionally [t]o acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge[.]" Thus, the primary issue before this Court is whether the appellant wrote the word "Plus" on the prescription and by doing so violated W.Va.Code, 60A-4-403(a)(3) [1971].

The appellant's first two arguments will be discussed together. First, the appellant contends that the prescriptions were not lawful because t...