State v. Graves, 200-80

• Decision Date: 01 September 1981
• Docket Number: No. 200-80,200-80
• Citation: 140 Vt. 202,436 A.2d 755
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Deborah Lynn GRAVES.

Page 755

436 A.2d 755

140 Vt. 202

STATE of Vermont v. Deborah Lynn GRAVES.

No. 200-80.

Supreme Court of Vermont.

Sept. 1, 1981.

Mark J. Keller, Chittenden County State's Atty. and Robert V. Simpson, Jr., Deputy State's Atty., Burlington, for plaintiff.

James L. Morse, Defender Gen., William A. Nelson, Appellate Defender, and Ellen Cooghan, Law Clerk, Montpelier, on the brief, for defendant.

Before BARNEY, C. J., and LARROW, BILLINGS, HILL and UNDERWOOD, JJ.

UNDERWOOD, Justice.

The defendant was charged with the crime of uttering a false prescription, in violation of 18 V.S.A. § 4223(e). After a trial and a jury verdict of guilty, the defendant moved for a judgment of acquittal, notwithstanding the verdict, on the ground that the State had failed to prove that the defendant knew that the prescription was false. The court denied the motion and entered a judgment of conviction on the verdict. The defendant appeals.

The appeal raises two issues: whether the State proved, beyond a reasonable doubt, that (1) the prescription was false, and (2) the defendant offered the prescription knowing of its falsity.

On September 28, 1979, the defendant, then 22 years old, entered a pharmacy wearing a neck brace and presented a prescription. It bore the following printed notation at the top: "Central Vermont Medical Center, Inc." It was dated September 28, 1979, and was made out to Linda Ayers, of Bolton, age 23. It prescribed four milligrams of pain killer called Dilaudid, and was purportedly signed by Dr. A. B. Bresseau. Under his signature appeared the handwritten Drug Enforcement Agency number, AB1118835.

The pharmacy knew that the Central Vermont Medical Center had reported the theft of prescription blanks from its emergency room. The owner of the pharmacy therefore became suspicious and called the police department. When a policeman arrived, the defendant explained to him that a man named Charles had asked her to get the prescription filled for his girlfriend while he did some errands. She claimed that she had danced with him at a Burlington discotheque and that he was five feet six inches tall and blonde, but that she did not know his last name or where he lived. She expressly denied any knowledge that the prescription was false.

The jury obviously did not believe her story, because it brought in a verdict of guilty, but the State has the burden of proving, beyond a reasonable doubt, the two essential elements of the crime charged. It must prove that the prescription was false and that the defendant offered it as genuine, knowing of its falsity. If the State fails in its burden of proof on either of these essential elements, the conviction cannot be sustained. State v. Green, 126 Vt. 311, 312, 228 A.2d 792, 793 (1967).

We conclude that the State did not prove beyond a reasonable doubt that the prescription was false. For that reason alone, the defendant's motion for an acquittal should have been granted. At best, the State's evidence on this issue was ambiguous and equivocal, and therefore not sufficient to satisfy the State's burden of proof. State v. Carter, 138 Vt. 264, 269, 415 A.2d 185, 188 (1980).

The State relied entirely upon the testimony of a secretary who had worked at the Central Vermont Medical Center for the past 20 years. She testified that by a rule of the hospital, prescription blanks were available in the emergency room, only for use there, and only by those physicians admitted to practice in the hospital. She then testified that Dr. Bresseau was not listed on the hospital's list of those physicians, and that in her 20 years of employment at the hospital, she had never heard of a Dr. A. B. Bresseau. No attempt was made to show that Dr. Bresseau was not licensed to practice...