State v. Clausing
| Decision Date | 24 October 2002 |
| Docket Number | No. 70957-2.,70957-2. |
| Citation | 56 P.3d 550,147 Wn.2d 620,147 Wash.2d 620 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. Vernon CLAUSING, Petitioner. |
Nielssen, Broman & Associates, Eric Nielsen, James Dixon, David Koch, Seattle, for Petitioner.
Norm Maleng, King County Prosecutor, James Whisman, Deputy, Randi Austell, Deputy, Seattle, William Berg, Sandpoint, for Respondent.
It is unlawful for any person to deliver a legend drug except upon prescription of a physician. RCW 69.41.030. Vernon Clausing is a defrocked osteopathic physician. He delivered a legend drug2 to a police agent. The State charged him with violating former RCW 69.41.030 (1994). The dispositive question is whether the jury instructions correctly specified the elements of former RCW 69.41.030. The trial court effectively instructed the jury that it was a crime to deliver a legend drug unless delivery was by a licensed practitioner. The statute does not require delivery by a practitioner. The instructions were therefore defective. We also conclude that the trial judge should not have allowed the executive director of the Washington State Board of Pharmacy to answer the legal question of whether a prescription remains effective after the issuing physician loses his license. We therefore reverse the judgment and sentence.
The essential facts here are undisputed.
The Washington State Board of Osteopathic Medicine and Surgery revoked the license of Dr. Vernon Clausing in April 1995 for violating RCW 18.130.1803 by overprescribing the legend drugs carisoprodol (Soma) and nalbuphine (Nubain).
Undeterred, Dr. Clausing hired two licensed physicians to staff his clinic on an occasional basis. He then continued to purchase these drugs, using the prescription drug authorization numbers of the two licensed physicians. Dr. Clausing then continued to supply Soma and Nubain as refills of what he claimed were valid prescriptions issued prior to the revocation of his license to practice.
Sheryl Reynaga is a former patient and former volunteer employee of Dr. Clausing. In July 1995, she reported to the King County police that Dr. Clausing was still distributing legend drugs despite his license suspension. Police enlisted her support for a sting operation. She made three controlled buys from Dr. Clausing while fitted with a recording device. Dr. Clausing delivered Nubain and Soma to her.
Based on this evidence, police executed search warrants on Dr. Clausing's clinic and home. They seized large quantities of Nubain and several bulk bottles of Soma tablets. The State charged Dr. Clausing with numerous violations of the drug act. He was tried to a jury in 1997. The jury was unable to reach a verdict on three counts of unlawful delivery of a legend drug and one count of possession with intent to deliver a legend drug, all contrary to former RCW 69.41.030. The State retried those counts before a jury in 1998. And the jury found Dr. Clausing guilty of all four counts. These guilty verdicts are the subject of this appeal.
Former RCW 69.41.030 provides in pertinent part: "It shall be unlawful for any person to sell, deliver, or possess any legend drug except upon the order or prescription of a physician under chapter 18.71 RCW, an osteopathic physician or an osteopathic physician and surgeon under chapter 18.57 RCW...." The statute contains the proviso that it does not apply to a practitioner acting within his or her license.
Dr. Clausing conceded that he delivered Nubain and Soma, and that these were legend drugs as defined by the statute. He also conceded that he was not licensed as a physician or pharmacist and was not, therefore, a "practitioner" as defined in former RCW 69.41.010(11) (1994). Report of Proceedings (RP) (Feb. 24, 1998) at 39, 44; RP (Feb. 26, 1998) at 85, 86-87. His defense was that Ms. Reynaga had a valid prescription. RP (Feb. 26, 1998) at 83, 122. He produced no evidence of a written prescription at trial. Nor could he state who issued the specific prescription here, or when. Id. at 87. Dr. Clausing testified, however, that his medical files had been seized by the State. And, although the State had granted him access to these files, Ms. Reynaga's most recent medical file had been lost. Id. at 15-16. Ms. Reynaga did not testify. Dr. Clausing insisted that he never delivered legend drugs without a prescription. Id. at 122-23.
Donald Williams is the executive director of the Washington State Board of Pharmacy. He testified, over Dr. Clausing's objection, that a prescription issued by a physician became invalid when the doctor's license was revoked. The court instructed the jury that the director's opinion was not to be taken as a legal opinion, but only from the practical perspective of a pharmacist. RP (Feb. 11, 1998 morning) at 15.
The court first instructed the jury that:
It is a crime for any person to deliver a legend drug except upon the order or prescription of a licensed physician or osteopathic physician except as authorized by law.
Clerk's Papers (CP) at 200 (Instruction No. 7) (emphasis added). This modifies the pattern instruction. The word "physician" is not qualified by "licensed" in the pattern instruction. 11 WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 55.03, at 693 (2d ed. 1994) (WPIC). But it accurately states the substance of former RCW 69.41.030.
If the defendant asserts that a prescription exists, WPIC 55.03 directs the court to add the following burden of proof instruction found in WPIC 55.06:
CP at 210 (Instruction No. 17) (emphasis added). A corresponding instruction was given for the possession count. CP at 218 (Instruction No. 25).
Dr. Clausing objected to Instruction No. 17 arguing it was confusing and should be omitted from the instructions entirely: RP (Mar. 2, 1998) at 24. The court explained that the added language was necessary because the statute was "less than well written." Id. at 21-22.
The jury found Dr. Clausing guilty as charged.
Dr. Clausing contends that the trial court's burden of proof instruction misstated the requirements of the statute under which he was charged. Specifically, he points out that former RCW 69.41.030 does not make it a crime to deliver without a license to practice. The statute prohibits "any person"— licensed or not—from delivering without a prescription. Dr. Clausing maintains that the challenged instruction substitutes a new element—that a legend drug must be "dispensed by a licensed practitioner" or "delivered by a practitioner acting within the scope of his or her license "—for the actual element of lack of a prescription. CP at 210 (emphasis added). This effectively eliminated Dr. Clausing's only defense—the existence of a valid prescription—and relieved the State of the burden of establishing the "no prescription" element beyond a reasonable doubt.
Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law. State v. Riley, 137 Wash.2d 904, 908 n. 1, 909, 976 P.2d 624 (1999). We review the adequacy of jury instructions de novo as a question of law. State v. Pirtle, 127 Wash.2d 628, 656, 904 P.2d 245 (1995). It is prejudicial error to submit an issue to the jury that is not warranted by the evidence. State v. Fernandez-Medina, 141 Wash.2d 448, 455, 6 P.3d 1150 (2000).
First, it is important to remember that we are not charged with passing on the social or moral propriety of Dr. Clausing's activities. Conduct may well be harmful, offensive, immoral, or just plain wrong. But whether it is also criminal is a judgment left to the legislature. In re Welfare of Colyer, 99 Wash.2d 114, 139, 660 P.2d 738 (1983). The legal question before us is a narrow one—did the court's instructions inform the jury of the elements of the crime of unlawful delivery of a legend drug as set out in former RCW 69.41.030 ().
Dr. Clausing conceded that he delivered a legend drug. He also conceded that he was not a practitioner. The only factual question before the jury was, therefore, whether Ms. Reynaga had a valid prescription for these drugs. The absence of a physician's prescription was the single essential element of the offense of unlawful delivery, which the State had to prove beyond a reasonable doubt. Dr. Clausing did not have to prove that Ms. Reynaga did have a prescription. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (...
To continue reading
Request your trial
-
State v. Yusuf
...).21 Id. (citing Dep't of Ecology v. Campbell & Gwinn, L.L.C., 146 Wash.2d 1, 11, 43 P.3d 4 (2002) ; State v. Clausing, 147 Wash.2d 620, 630, 56 P.3d 550 (2002) (Owens, J. dissenting)).22 State v. Delgado, 148 Wash.2d 723, 727, 63 P.3d 792 (2003) (quoting Davis v. Dep't of Licensing, 137 Wa......
-
State v. Oeung
... ... Jury instructions are ... sufficient when they are supported by the evidence, allow ... each party to argue its theory of the case, and inform the ... jury of the applicable law. Fleming , 155 Wn.App. at ... 503-04 (citing State v. Clausing , 147 Wn.2d 620, ... 626, 56 P.3d 550 (2002)). Failure to offer or request an ... instruction at trial precludes appellate review to challenge ... the absence of such instruction. State v. Lucero , ... 140 Wn.App. 782, 787, 167 P.3d 1188 (2007); State v ... Scott , ... ...
-
State v. Hatt
...to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law." State v. Clausing, 147 Wash.2d 620, 626, 56 P.3d 550 (2002). We review alleged instructional errors de novo, in the context of the instructions as a whole. State v. Brett, 126 Wash......
-
State v. Walker
...a whole, they accurately state the law, are not misleading, and permit each party to argue its theory of the case. State v. Clausing, 147 Wash.2d 620, 626, 56 P.3d 550 (2002). ¶ 21 Under the first degree premeditated murder statute, the State must prove that the defendant, with premeditated......