Customer Guilty of Prescription Fraud by Supporting Friend

Issue of the CaseIn a case arising in Virginia, a court wasasked to determine whether a defendantcommitted prescription fraud when heintimidated a pharmacist and assistedhis girlfriend in illegally securing a controlledsubstance.

Facts of the Case

The defendant accompanied his live-ingirlfriend to the pharmacy to pick up 3prescriptions: an antibiotic, ibuprofen,and a codeine-containing Schedule IIcontrolled substance. A pharmacy clerkfound the items, and the girlfriend signeda log sheet verifying her receipt of theprescriptions. According to her testimony,both of them shared "the entire batchof pills" to get high.

The pair returned to the pharmacy thenext day and approached the same clerkand asked to pick up some prescriptions.No medications were found under thegirlfriend's name. The clerk rememberedthat they had been there the day beforeand asked if they had already picked upthe medications. The girlfriend denieddoing so, and the defendant said nothing.

No one could locate the previous day'slog sheet. The pharmacist, who had notworked the day before, double-checkedthe prescription bins to ensure that theywere not incorrectly filed under thewrong name. Computer records showedthat 3 prescription labels in the girlfriend'sname had been printed the daybefore, but the records did not indicatewhether the items had been picked up.

The pharmacist attempted to makesense of the situation with the girlfriend,but the defendant injected himself intothe conversation and became verymouthy. He complained that "he wastired of waiting" and that the wholeepisode was "ludicrous" and "just ridiculous."Speaking for the girlfriend, he stated,"We shouldn't have to be put throughthis," and he asked, "Is this the way businessis normally taken care of?"

At no time did the girlfriend or thedefendant truthfully answer the pharmacist'squestion about receiving the prescriptionsthe day before. Under thepharmacy's policy, however, if a patientclaims that he or she did not receive aprescription, the pharmacist is to refill it.Relying on the girlfriend's denial, the prescriptionswere refilled. Again, the coupletook the prescriptions home andimmediately consumed all of thecodeine-containing tablets.

In the meantime,the pharmacylocated the logsheet proving thatthe prescriptionshad been pickedup the day before.The couple wascalled and askedto return the medications,but theycame back withonly the antibiotic and a bad attitude. Thedefendant was belligerent and cursedthe pharmacist. When asked where theibuprofen and Schedule II prescriptionswere, the defendant stated, "You know,we took them. I took them." At this point,the police were called.

The defendant admitted to the policeofficer that he and his girlfriend hadreceived the medications twice, but heclaimed that it was the pharmacy's fault,not his. He further admitted that he gothigh from the codeine prescription andthat "he was wasted right now." He andhis girlfriend were arrested and chargedwith prescription fraud.

The Court's Ruling

The defendant and his girlfriend wereboth convicted, but the defendantappealed. The Court of Appeals ofVirginia upheld the conviction.

The Court's Reasoning

The defendant argued that the evidencewas not sufficient to prove that heaided or abetted any prescription fraud.Appellate courts only reverse if the trialcourt's decision is plainly wrong or withoutevidence to support it. The decisionwill stand if reasonable jurors could havemade the choice that the jury made.

In the court's review of the evidence, itnoted that the defendant's girlfriend hadclearly obtained the prescriptions by misrepresentationand deceit. This is animportant first step in finding the defendantguilty, because her criminal culpabilitywas necessary to establish his liabilityas an accessory to the crime.

Next, it had to be shown that thedefendant was present at the commissionof the crime and incited, encouraged,or assisted in the act. The evidencesupported this finding. The defendant notonly used the drugs to get high, but heeither stood silently while his girlfriendlied or became belligerent and distractingwhen the pharmacist tried to determinethe truth.

The defendant claimed that the entireepisode was simply a misunderstanding.The trial court, however, construed hisbehavior to distract and intimidate thepharmacist as evidence that he "encouraged,countenanced, or approved commissionof the crime."

Because the trial court's finding of guiltwas not irrational, nor were the factsinsufficient, the appellate court affirmedthe decision.

Larry M. Simonsmeier isEmeritus Professor ofPharmacy Law atWashington State UniversityCollege of Pharmacy.