State v. Young

• Decision Date: 28 June 1991
• Docket Number: No. 19647,19647
• Citation: 185 W.Va. 327,406 S.E.2d 758
• Court: West Virginia Supreme Court
• Parties: , 13 A.L.R.5th 899 STATE of West Virginia, Plaintiff Below, Appellee, v. Edward H. YOUNG, Defendant Below, Appellant.

Page 758

406 S.E.2d 758

185 W.Va. 327, 13 A.L.R.5th 899

STATE of West Virginia, Plaintiff Below, Appellee, v. Edward H. YOUNG, Defendant Below, Appellant.

No. 19647.

Supreme Court of Appeals of

West Virginia.

Submitted Jan. 9, 1991.

Decided June 28, 1991.

[185 W.Va. 329] Syllabus by the Court

1. Under W.Va.Code, 60A-4-401(a), as amended, which is part of West Virginia's Uniform Controlled Substances Act, the elements of the offense of a felonious

[185 W.Va. 330] constructive delivery of a controlled substance by a purported prescription issued by a registered physician, dentist or other registered practitioner are as follows

(1) the defendant constructively delivered a controlled substance requiring a valid prescription by the issuance of a purported prescription on behalf of a purported patient who received the controlled substance from a pharmacist who filled such prescription; and

(2) the defendant issued such prescription intentionally or knowingly outside the usual "course of professional practice or research," thereby not engaging in the authorized activities of a "practitioner," as defined in W.Va.Code, 60A-1-101(v), as amended; in other words, such prescription was issued intentionally or knowingly without a legitimate medical, dental or other authorized purpose.

2. A count in an indictment charging that a registered practitioner violated W.Va.Code, 60A-4-401(a), as amended, by "knowingly, intentionally, unlawfully and feloniously" delivering a controlled substance by prescribing the substance even though it was "not necessary in the medical treatment and care" of the purported patient sufficiently states the elements of the offense.

3. "The giving of confusing or incomplete instructions does not constitute reversible error where a reading and consideration of the instructions as a whole cure any defects in the complained of instructions." Syl. pt. 4, State v. Stone, 165 W.Va. 266, 268 S.E.2d 50 (1980).

4. W.Va.Code, 60A-5-506(a) [1971], excusing the State from having to negate, in an indictment or at trial, any exemption or exception under West Virginia's Uniform Controlled Substances Act, is not applicable to a prosecution of a registered practitioner for feloniously prescribing a controlled substance in violation of W.Va.Code, 60A-4-401(a), as amended. Therefore, an indictment in such a prosecution must charge that the prescriptions were issued without a legitimate medical, dental or other authorized purpose, and the State must prove such element of the offense, as well as all other elements of the offense, beyond a reasonable doubt. This burden of proof includes the burden of the State, in its case in chief, to go forward with the evidence on the lack of such legitimate purpose for the prescriptions.

5. "In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done." Syl. pt. 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).

6. "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. W.Va.R.Evid. 404(b)." Syl. pt. 1, State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).

7. "Where improper evidence of a nonconstitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State's case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudicial effect on the jury." Syl. pt. 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1081, 63 L.Ed.2d 320 (1980).

8. A count in an indictment charging that a registered practitioner violated W.Va.Code, 60A-4-401(a), as amended, in that he or she merely "delivered" a controlled substance by prescribing the substance is fatally defective because it does not set forth all of the essential elements of the offense, particularly the lack of a legitimate medical, dental or other authorized purpose for the purported prescription.

9. " 'Circumstantial evidence will not support a guilty verdict, unless the fact of guilt is proved to the exclusion of every reasonable hypothesis of innocence; and circumstances which create only a suspicion of guilt but do not prove the actual commission of the crime charged, are not sufficient to sustain a conviction.' Syl. pt. 2, State v. Dobbs, 163 W.Va. 630, 259 S.E.2d 829 (1979)." Syl. pt. 2, State v. Phillips, 176 W.Va. 244, 342 S.E.2d 210 (1986).

C. Cooper Fulton, Kanawha County Public Defender Corp., Charleston, for appellant.

Joanna I. Tabit, Deputy Atty. Gen., Appellate Div., Charleston, for appellee.

McHUGH, Justice:

The primary issue in this appeal is one of first impression in this jurisdiction, specifically, under what circumstances a registered "practitioner," such as a physician or a dentist, may be held criminally responsible, under West Virginia's Uniform Controlled Substances Act, for the felonious constructive delivery of a controlled substance by the issuance of purported prescriptions for the controlled substance. For the reasons stated in this opinion we conclude that the convictions in this case under the multicount indictment are affirmed in part and reversed in part, and the case is remanded for retrial of count 11 of the indictment. Specifically, we affirm the convictions of three counts of a felonious constructive delivery of a controlled substance (counts 2, 9 and 10), and we affirm the conviction of one count of a felonious obtaining of a controlled substance (count 1). On the other hand, this Court reverses the conviction of one count (count 11) "charging" both a delivery and a felonious obtaining. Finally, this Court reverses the convictions of four counts of a felonious obtaining of a controlled substance (counts 3, 4, 5 and 6).

I.

A. The Convictions--General Information

The appellant, Edward H. Young, D.D.S., a dentist duly licensed to practice in the State of West Virginia, was convicted in the Circuit Court of McDowell County, West Virginia ("the trial court"), of nine felony violations of West Virginia's Uniform Controlled Substances Act, W.Va.Code, 60A-1-101 to 60A-6-605, as amended ("the UCSA"). Specifically, the appellant was convicted (1) of three counts of felonious constructive delivery of a "Schedule II" controlled substance which is also a narcotic drug and (2) of six counts of feloniously obtaining a "Schedule II" controlled substance. ¹

The controlled substance involved in each count is a highly addictive narcotic analgesic with the trade name of "Tylox," which contains oxycodone and acetaminophen. Oxycodone, a derivative of opium, is expressly listed as a "Schedule II" controlled substance and is a "narcotic drug." W.Va.Code, 60A-2-206(b)(1)(M) [1986, 1991]; W.Va.Code, 60A-1-101(p) [1983]. A "Schedule II" controlled substance (1) has a high potential for abuse, (2) has currently According to the 45th edition of the Physicians' Desk Reference (1991), oxycodone can produce drug dependence of the morphine type and, therefore, has the potential for being abused. Psychic dependence, physical dependence and tolerance may develop upon repeated administration of Tylox, and it should be administered with the same degree of caution appropriate to the use of other oral narcotic-containing medications. Id. at 1342. Tylox capsules are indicated for the relief of moderate to moderately severe pain. Id. The usual dosage, for adults, is one Tylox capsule every six hours (four per day) as needed for such pain. Id. at 1343. "However, it should be kept in mind that tolerance to oxycodone can develop with continued use and that the incidence of untoward effects is dose related." Id. ² Expert testimony at trial indicated that Tylox should be used for about a week or so at the most.

                [185 W.Va. 332] accepted medical use in treatment in the United States or currently accepted medical use with severe restrictions and (3) the abuse of such substance may lead to severe psychic or physical dependence.   W.Va.Code, 60A-2-205 [1975].  "Tylox" capsules, containing oxycodone, come under these criteria
                

The convictions involve transactions with two "patients" of the appellant, namely, Frank Gentry and Roger Jones. The three counts, namely, counts 2, 9 and 10, relating to the felonious constructive delivery of Tylox, and similar transactions involving these same two "patients," will be discussed first, in chronological order, followed by a separate discussion of one count (count 11) which "charges" both unlawful obtaining and delivery. Finally, we will discuss the five counts, namely, counts 1, 3, 4, 5 and 6, relating to the felonious obtaining of Tylox.

B. Counts 2, 9 & 10--Felonious Constructive Delivery

Under counts 2, 9 and 10, each charging a felonious constructive delivery of a controlled substance, the State's theory was that the appellant issued purported prescriptions for Tylox intentionally or knowingly without a legitimate dental purpose, but, instead, only to satisfy the...