State v. Woods
| Decision Date | 15 December 2020 |
| Docket Number | No. COA19-985,COA19-985 |
| Citation | 853 S.E.2d 177 |
| Parties | STATE of North Carolina v. Ciera Yvette WOODS, Defendant. |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Assistant Attorney General Matthew L. Liles, for the State.
Appellate Defender Glenn Gerding, by Appellate Defender Glenn Gerding and Assistant Appellate Defender Aaron Thomas Johnson, for defendant-appellant.
On May 9, 2019, a Mecklenburg County jury found Ciera Yvette Woods ("Defendant") guilty of embezzlement of a controlled substance by an employee of a registrant or practitioner under N.C. Gen. Stat. § 90-108(a)(14). Defendant appeals, arguing that the trial court (1) erred when it denied Defendant's motion to dismiss because the State did not prove Defendant's actions constituted embezzlement or that CVS Pharmacy ("CVS") was a "registrant;" and (2) plainly erred when it failed to instruct the jury on the statutory definition of "registrant." We disagree.
Defendant was employed as a pharmacy technician at CVS in Charlotte, North Carolina.
As a pharmacy technician, Defendant was responsible for the intake of prescriptions, entry of prescriptions to create labels for medication, and ensuring that the information on the prescriptions was correct. Once Defendant verified that the prescription information was correct, the pharmacist would fill the prescription and place it in a waiting bin for Defendant to retrieve and distribute to the customer.
On April 16, 2016, Defendant was receiving patient prescriptions at the drive-thru window. During Defendant's shift, an unidentified male provided Defendant with two prescriptions – one for Oxycodone
, and one for Percocet. The Percocet prescription was complete, but the Oxycodone prescription only had the "drug listed and quantity" and did not provide patient information. A $100 bill was placed in between the two prescriptions. The unidentified male asked Defendant to complete the Oxycodone prescription with another patient's information.
Defendant accepted $100.00 from the unidentified individual and then accessed CVS's "patient portal system," retrieved a different patient's information, and fraudulently filled out the incomplete Oxycodone
prescription using that patient's information. The two prescriptions were filled by the pharmacist and placed in a waiting bin. Defendant retrieved the prescriptions from the bin and gave them to the unidentified individual.
That same day, a CVS pharmacist filed a report expressing her concern that a technician may be passing fraudulent prescriptions. CVS then initiated an investigation. The following day, after reviewing the security footage and the prescriptions filled the prior day, the investigators interviewed Defendant. Defendant signed a written statement admitting that she took prescriptions from an individual in the drive-thru, and that she received $100.00 in payment to fraudulently process the two prescriptions.
Defendant was indicted on one count of embezzlement of a controlled substance by an employee of a registrant or practitioner pursuant to N.C. Gen. Stat. § 90-108(a)(14). At trial, Defendant made a motion to dismiss arguing that she did not violate N.C. Gen. Stat. § 90-108(a)(14) because she did not rightfully possess the prescriptions when she forged the patient information. Defendant also argued at trial that traditional embezzlement requires authorized possession of the diverted property. The trial court denied Defendant's motion to dismiss, and Defendant was convicted of embezzlement of a controlled substance by an employee of a registrant or practitioner under N.C. Gen. Stat. § 90-108(a)(14).
Defendant appeals, arguing that the trial court (1) erred when it denied Defendant's motion to dismiss because the State did not prove Defendant's actions constituted embezzlement or that CVS was a "registrant;" and (2) plainly erred when it failed to instruct the jury on the statutory definition of "registrant."
"We review the trial court's denial of a motion to dismiss de novo. " State v. Blakney , 233 N.C. App. 516, 518, 756 S.E.2d 844, 846 (2014) (citation omitted). "Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal." State v. Williams , 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (citation and quotation marks omitted).
"If there is more than a scintilla of competent evidence to support the allegations in the warrant or indictment, it is the court's duty to submit the case to the jury." State v. Horner , 248 N.C. 342, 344-45, 103 S.E.2d 694, 696 (1958). "The terms ‘more than a scintilla of evidence’ and ‘substantial evidence’ are in reality the same and simply mean that the evidence must be existing and real, not just seeming or imaginary." State v. Earnhardt , 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982) (citation omitted). "Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion." State v. Scott , 356 N.C. 591, 597, 573 S.E.2d 866, 869 (2002) (citation omitted). "In ruling on a motion to dismiss for insufficient evidence, the trial court must consider the evidence in the light most favorable to the State, which is entitled to every reasonable inference which can be drawn from that evidence." State v. Dick , 126 N.C. App. 312, 317, 485 S.E.2d 88, 91 (1997) (citation omitted).
State v. Pabon , ––– N.C. App. ––––, ––––, 850 S.E.2d 512, –––– (2020). Further, "in borderline or close cases, our courts have consistently expressed a preference for submitting issues to the jury." State v. Coley , 257 N.C. App. 780, 789, 810 S.E.2d 359, 365 (2018) (purgandum ).
Defendant contends that the evidence presented at trial did not show embezzlement because Defendant never lawfully possessed the prescriptions which were obtained through fraud. However, Defendant was not charged with embezzlement of property received by virtue of employment pursuant to N.C. Gen. Stat. § 14-90. Rather, Defendant was convicted of violating N.C. Gen. Stat. § 90-108(a)(14), which states, in relevant part:
N.C. Gen. Stat. § 90-108(a)(14) (2019).
State v. Reaves-Smith , ––– N.C. App. ––––, ––––, 844 S.E.2d 19, 24 (2020) (citation omitted).
By its plain language, N.C. Gen. Stat. § 90-108(a)(14) makes it unlawful for an employee who is "authorized to possess controlled substances" or who has "access to controlled substances by virtue of their employment," to misapply or divert a controlled substance for an unauthorized or illegal use. N.C. Gen. Stat. § 90-108(a)(14). See State v. Moraitis , 141 N.C. App. 538, 541, 540 S.E.2d 756, 757-58 (2000) (). Accordingly, because N.C. Gen. Stat. § 90-108(a)(14) has two clauses connected by the disjunctive "or," the State had the burden of proving Defendant was either "authorized to possess controlled substances" or had "access to them by virtue her employment." See State v. Conway , 194 N.C. App. 73, 77-78, 669 S.E.2d 40, 43 (2008) .
At trial, Dr. Lauren Kaskie, a CVS pharmacist, testified that when a prescription was dropped off at the pharmacy, the pharmacy technician had "access to patient portals" which included patient information, and would "go to [the] computer system, ... to generate a label." Once a label is generated, the prescription is then filled by the pharmacist and placed in a "waiting bin" where the pharmacy technician would then "walk to the waiting bin to retrieve" the prescription for the customer. Dr. Kaskie further testified that pharmacy technicians cannot count or fill Schedule II prescriptions, including Oxycodone
and Percocet, but "they are entrusted with handing prescriptions to the appropriate customer."
Here, after Defendant received the incomplete Oxycodone
prescription, she accessed the CVS patient portal system and completed the prescription with a different patient's information. Defendant then sent the prescription to the pharmacist to be filled. After being placed in the waiting bin, Defendant took the fraudulently filled prescription and delivered it to the unidentified individual. Accordingly, Defendant had "access to [the prescriptions] by virtue of her employment" because she was allowed to take prescriptions from the waiting bins once they were filled by the pharmacist. Therefore, the trial court did not err in denying her motion to dismiss.
Defendant next argues that the State failed to...
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