Pharmacy Times

Customer Guilty of Prescription Fraud by Supporting Friend

Author: Larry M. Simonsmeier, JD, RPh

Issue of the Case In a case arising in Virginia, a court was asked to determine whether a defendant committed prescription fraud when he intimidated a pharmacist and assisted his girlfriend in illegally securing a controlled substance.

Facts of the Case

The defendant accompanied his live-in girlfriend to the pharmacy to pick up 3 prescriptions: an antibiotic, ibuprofen, and a codeine-containing Schedule II controlled substance. A pharmacy clerk found the items, and the girlfriend signed a log sheet verifying her receipt of the prescriptions. According to her testimony, both of them shared "the entire batch of pills" to get high.

The pair returned to the pharmacy the next day and approached the same clerk and asked to pick up some prescriptions. No medications were found under the girlfriend's name. The clerk remembered that they had been there the day before and asked if they had already picked up the medications. The girlfriend denied doing so, and the defendant said nothing.

No one could locate the previous day's log sheet. The pharmacist, who had not worked the day before, double-checked the prescription bins to ensure that they were not incorrectly filed under the wrong name. Computer records showed that 3 prescription labels in the girlfriend's name had been printed the day before, but the records did not indicate whether the items had been picked up.

The pharmacist attempted to make sense of the situation with the girlfriend, but the defendant injected himself into the conversation and became very mouthy. He complained that "he was tired of waiting" and that the whole episode was "ludicrous" and "just ridiculous." Speaking for the girlfriend, he stated," We shouldn't have to be put through this," and he asked, "Is this the way business is normally taken care of?"

At no time did the girlfriend or the defendant truthfully answer the pharmacist's question about receiving the prescriptions the day before. Under the pharmacy's policy, however, if a patient claims that he or she did not receive a prescription, the pharmacist is to refill it. Relying on the girlfriend's denial, the prescriptions were refilled. Again, the couple took the prescriptions home and immediately consumed all of the codeine-containing tablets.

In the meantime, the pharmacy located the log sheet proving that the prescriptions had been picked up the day before. The couple was called and asked to return the medications, but they came back with only the antibiotic and a bad attitude. The defendant was belligerent and cursed the pharmacist. When asked where the ibuprofen and Schedule II prescriptions were, the defendant stated, "You know, we took them. I took them." At this point, the police were called.

The defendant admitted to the police officer that he and his girlfriend had received the medications twice, but he claimed that it was the pharmacy's fault, not his. He further admitted that he got high from the codeine prescription and that "he was wasted right now." He and his girlfriend were arrested and charged with prescription fraud.

The Court's Ruling

The defendant and his girlfriend were both convicted, but the defendant appealed. The Court of Appeals of Virginia upheld the conviction.

The Court's Reasoning

The defendant argued that the evidence was not sufficient to prove that he aided or abetted any prescription fraud. Appellate courts only reverse if the trial court's decision is plainly wrong or without evidence to support it. The decision will stand if reasonable jurors could have made the choice that the jury made.

In the court's review of the evidence, it noted that the defendant's girlfriend had clearly obtained the prescriptions by misrepresentation and deceit. This is an important first step in finding the defendant guilty, because her criminal culpability was necessary to establish his liability as an accessory to the crime.

Next, it had to be shown that the defendant was present at the commission of the crime and incited, encouraged, or assisted in the act. The evidence supported this finding. The defendant not only used the drugs to get high, but he either stood silently while his girlfriend lied or became belligerent and distracting when the pharmacist tried to determine the truth.

The defendant claimed that the entire episode was simply a misunderstanding. The trial court, however, construed his behavior to distract and intimidate the pharmacist as evidence that he "encouraged, countenanced, or approved commission of the crime."

Because the trial court's finding of guilt was not irrational, nor were the facts insufficient, the appellate court affirmed the decision.

Larry M. Simonsmeier is Emeritus Professor of Pharmacy Law at Washington State University College of Pharmacy.