Leslie Nichole Mulligan, s/k/a, etc v. Commonwealth

Tuesday 7th

January, 2003.

Leslie Nichole Mulligan, s/k/a
Leslie Nicole Mulligan, Appellant,

against Record No. 2905-01-1
Circuit Court No. CR01-1043-01

Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing En Banc

Before the Full Court

On December 10, 2002 came the appellee, by the Attorney

General of Virginia, and filed a petition praying that the Court set

aside the judgment rendered herein on November 26, 2002, and grant a

rehearing en banc thereof.

On consideration whereof, the petition for rehearing en

banc is granted, the mandate entered herein on November 26, 2002 is

stayed pending the decision of the Court en banc, and the appeal is

reinstated on the docket of this Court.

The parties shall file briefs in compliance with Rule

5A:35. The appellee shall attach as an addendum to the opening brief

upon rehearing en banc a copy of the opinion previously rendered by

the Court in this matter. It is further ordered that the appellee
shall file with the clerk of this Court twelve additional copies of

the appendix previously filed in this case.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk

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 Tuesday 8th

July, 2003.

Leslie Nichole Mulligan, s/k/a
Leslie Nicole Mulligan, Appellant,

against Record No. 2905-01-1
Circuit Court No. CR01-1043-01

Commonwealth of Virginia, Appellee.

Upon a Rehearing En Banc

Before Chief Judge Fitzpatrick, Judges Benton, Elder, Annunziata,
Bumgardner, Frank, Humphreys, Clements, Felton and Kelsey

Stephen K. Smith for appellant.

Michael T. Judge, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on brief),
for appellee.

By memorandum opinion dated November 26, 2002, a divided

panel of this Court reversed the judgment of the trial court. We

stayed the mandate of that decision and granted rehearing en banc.

Upon rehearing en banc, it is ordered that the November 26,

2002 mandate is vacated, and the judgment of the trial court is

affirmed for the reasons set forth in the panel dissenting opinion.

The appellant shall pay to the Commonwealth of Virginia thirty

dollars damages.

Judges Frank and Benton would reverse the trial court for

the reasons set forth in the panel majority opinion.

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 It is ordered that the trial court allow counsel for the

appellant a total fee of $925 for services rendered the appellant on

this appeal, in addition to counsel's costs and necessary direct

out-of-pocket expenses.

The Commonwealth shall recover of the appellant the amount

paid court-appointed counsel to represent her in this proceeding,

counsel's costs and necessary direct out-of-pocket expenses, and the

fees and costs to be assessed by the clerk of this Court and the

clerk of the trial court.

This order shall be certified to the trial court.

Costs due the Commonwealth
by appellant in Court of
Appeals of Virginia:

Attorney's fee $925.00 plus costs and expenses

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk

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 COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Frank and Kelsey
Argued at Chesapeake, Virginia

LESLIE NICHOLE MULLIGAN, S/K/A
LESLIE NICOLE MULLIGAN
MEMORANDUM OPINION * T BY
v. Record No. 2905-01-1 JUDGE ROBERT P. FRANK
NOVEMBER 26, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF YORK COUNTY
Thomas B. Hoover, Judge

Stephen K. Smith for appellant.

Michael T. Judge, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on brief),
for appellee.

Leslie Nicole Mulligan (appellant) was convicted in a bench trial

of obtaining a prescription drug by fraud, in violation of Code

§ 18.2-258.1. On appeal, she contends the trial court erred in finding

the evidence was sufficient to convict. For the reasons stated, we

reverse her conviction.

BACKGROUND

Around noon on March 4, 2001, Dave Smith, a pharmacist at Kroger

Pharmacy, in York County, Virginia, received a telephone order for a

prescription. A female, who identified herself as Brenda Thomas,

indicated she was calling on behalf of Dr. Robert McLean.

* Pursuant to Code § 17.1-413, this opinion is not designated
for publication.

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 Thomas gave Smith "the name of the medication, the quantity, how

it was supposed to be taken, the name of the patient [Robin Barker] and

the patient information, address, phone number, [and] date of birth,"

as well as McLean's Drug Enforcement Agency (DEA) number. Smith wrote

all this information down on a prescription pad, and the pad was

introduced at trial as Commonwealth's Exhibit 1. The medication

(Lorcet) was a Schedule III narcotic containing hydrocone and Tylenol,

"a combination drug for pain."

That same day, at approximately 1:00 p.m., appellant arrived at

Kroger and told Smith she was there to pick up "a prescription for

Robin Barker." Smith had appellant fill out a patient profile for

Barker since he did not have her information in the computer. The

information given included Barker's name, an address of 31 Belray Road,

Newport News, Virginia, and a phone number, all matching the

information relayed over the phone. Smith also examined appellant's

driver's license and recorded her driver's license number on the

prescription. Appellant then paid for the medication, and Smith gave

her the drug.

Dr. McLean testified he "never had [Robin Barker] as a patient."

Dr. McLean further indicated no one named Brenda Thomas had ever been

with his practice as either a patient or an employee.

However, Dr. McLean had seen appellant as a patient. He had

prescribed Lorcet to appellant "on a couple of occasions." On the

occasions he prescribed Lorcet for appellant, Dr. McLean did not call

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in the prescription by telephone, but provided her with a handwritten

prescription. That handwritten prescription included his DEA number.

Dr. McLean did not prescribe any medication for appellant on March

4, 2001, and did not contact Smith on that date regarding "any Lorcet

prescription." Dr. McLean testified he personally calls a pharmacist

with any prescription. No one else makes such calls on his behalf.

Agent Jason Robinson of the Virginia State Police investigated

this matter. He entered Barker's name and date of birth from the

prescription into the Division of Motor Vehicles system, which returned

with an address on LaSalle Avenue in Hampton, Virginia, an address

different from the one the caller provided. Agent Robinson went to the

Hampton address, as well as the Newport News address, but was unable to

locate Robin Barker at either address.

Agent Robinson also called the two telephone numbers on the

prescription. The doctor's phone number had been disconnected, and the

number provided for Barker "just rang." Robinson was never able to

reach anyone at that number. Robinson testified Dr. McLean's DEA

number was the same number provided by the caller.

Appellant moved to strike the evidence at the conclusion of the

Commonwealth's evidence and at the conclusion of all of the evidence.

Appellant presented no evidence. The trial court denied both motions,

convicting appellant of the offense as charged. The trial court

concluded appellant was either the caller or worked in concert with the

caller.

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 ANALYSIS

Appellant does not contend the prescription was lawfully obtained.

She argues the Commonwealth failed to prove she was the caller or had

any involvement with the call. She maintains she simply picked up the

prescription for Robin Barker, with no knowledge of any fraud or

illegality.

"On appeal, we review the evidence in the light most favorable to

the Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom." Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987). When the sufficiency of the evidence is

challenged on appeal, "it is our duty to look to that evidence which

tends to support the verdict and to permit the verdict to stand unless

plainly wrong." Snyder v. Commonwealth, 202 Va. 1009, 1016, 121 S.E.2d

452, 457 (1961). "The judgment of a trial court sitting without a jury

is entitled to the same weight as a jury verdict and will not be set

aside unless it appears from the evidence that the judgment is plainly

wrong or without evidence to support it." Martin, 4 Va. App. at 443,

358 S.E.2d at 418.

"When the evidence is wholly circumstantial . . .
all necessary circumstances proved must be
consistent with guilt and inconsistent with
innocence and exclude every reasonable hypothesis
of innocence. The chain of necessary
circumstances must be unbroken. Nevertheless, it
is within the province of the jury to determine
what inferences are to be drawn from proved
facts, provided the inferences are reasonably
related to those facts." Inge v. Commonwealth,
217 Va. 360, 366, 228 S.E.2d 563, 567-68 (1976).

* * * * * * *

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 The Commonwealth, however, is not required to
exclude every possibility that others may have
committed the crime for which a defendant is
charged, but is only required to exclude hypotheses
of innocence that flow from the evidence.

Dowden v. Commonwealth, 260 Va. 459, 468, 536 S.E.2d 437, 441-42

(2000). "[A]n appellate court is not permitted to substitute its own

judgment for that of the finder of fact, even if the appellate court

might have reached a different conclusion." Commonwealth v. Presley,

256 Va. 465, 466, 507 S.E.2d 72, 72 (1998).

The Commonwealth contends every reasonable hypothesis of innocence

has been excluded. The Commonwealth argues appellant was a patient of

Dr. McLean's, had access to his DEA number, and took the same

medication called into the pharmacy. Further, appellant gave the

pharmacist the same information concerning Robin Barker that the caller

conveyed. The trooper investigating the case could not confirm Robin

Barker's address or phone number.

Clearly, no evidence proves appellant made the call to the

pharmacy. Appellant's name was not used, and her voice was not

identified as the caller's voice. The trial court never found she made

the call, but instead suggested that even if she did not make the call,

she was guilty because she picked up the drugs, had Barker's

information, and knew the doctor and the drug involved. Therefore, we

must decide if the evidence and the reasonable inferences support this

conclusion.

While a conviction may properly be based upon
circumstantial evidence, suspicion or even
probability of guilt is not sufficient. There
must be an unbroken chain of circumstances
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 "proving the guilt of the accused to the
'exclusion of any other rational hypothesis and
to a moral certainty.'" Brown v. Commonwealth,
211 Va. 252, 255, 176 S.E.2d 813, 815 (1970).

Gordon v. Commonwealth, 212 Va. 298, 300, 183 S.E.2d 735, 737 (1971).

The Commonwealth's evidence does not provide an "unbroken chain."

The evidence proved appellant had the same information on Barker

that someone provided over the phone with the fraudulent prescription.

This evidence permits the inference that appellant knew Barker, but not

the inference that she knew Barker so well that she assisted her with

fraud. In fact, the logical inference from the evidence is that Barker

is a real person, with a valid Virginia driver's license. Her home

addresses exist, and her phone number is in working order. The

officer's inability to contact her at those addresses, without more,

does not allow the inference that her information was false. 1

The evidence also proved Dr. McLean prescribed Lorcet for

appellant when she was his patient. He gave her a written prescription

with his DEA number on it, as the law requires. This evidence allows

the inference that she knew his DEA number, but it does not reasonably

follow that she used it to commit fraud. If such an inference were

allowed, every person for whom Dr. McLean wrote a prescription could be

guilty.

The central inference of the Commonwealth's case is based on

appellant picking up the prescription for Barker, given she had access

1
The trooper's testimony did not provide any details regarding
his investigation. We do not know how often he attempted to contact
Barker or at what time of day. We do not know if anything suggested
that other people lived at the addresses.
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to the doctor's DEA number. Although suspicious, we do not believe

that the intersection of these two factors reasonably allows the

inference that appellant knew the prescription was false, to the

exclusion of all reasonable "hypotheses of innocence that flow from the

evidence." Dowden, 260 Va. at 468, 536 S.E.2d at 442. In fact,

assuming she knew which doctor and what drug were on the

"prescription," a reasonable hypothesis is that appellant knew this

doctor prescribed this drug, so she had no reason to question Barker's

actions.

This case is unlike Pancoast v. Commonwealth, 2 Va. App. 28, 32,

340 S.E.2d 833, 835-36 (1986), where the Commonwealth proved a false

name was used. Instead, the evidence here proved Barker existed and

proved appellant used her actual name.

We believe this case is controlled by Williams v. Commonwealth, 14

Va. App. 666, 418 S.E.2d 346 (1992). This Court found in Williams:

[T]he Commonwealth can point to no evidence to
prove Williams knew or should have known that
Dr. Mathews had not prescribed the prescription
for Sidney Johnson. . . . Williams simply asked
to pick up the prescription for Sidney Johnson.

No evidence proved that Williams' statement to
the police that he was merely picking up the
prescription for a third party was any less
likely than the Commonwealth's claim that he was
illegally trying to procure a controlled
substance.

Id. at 669, 418 S.E.2d at 348.

The Commonwealth argues, unlike in Williams, appellant knew the

doctor's DEA number and was familiar with the drug. However, access

to a doctor's DEA number does not generally lead to abuse of that
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information. While these facts increase suspicion that appellant was

involved in the crime, this evidence does not support inferences

sufficient to prove appellant guilty beyond a reasonable doubt. The

inference is just as strong, if not stronger, that appellant simply

chose to do a favor for the wrong friend.

Reversed and dismissed.

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Kelsey, J., dissenting.

"'Evidence is seldom sufficient to establish any fact as

demonstrated and beyond all doubt.'" Harris v. Commonwealth, 206 Va.

882, 887, 147 S.E.2d 88, 92 (1966) (quoting Toler v. Commonwealth,

188 Va. 774, 780, 51 S.E.2d 210, 213 (1949)). This axiom, despite

being widely acknowledged as self-evident, often winces in

circumstantial evidence cases. I am not sure why. Circumstantial

evidence is "not subject to the human frailties of perception,

memory, and truthful recital," and for that reason, "it is often more

reliable than the accounts of eyewitnesses." Epperly v.

Commonwealth, 224 Va. 214, 228, 294 S.E.2d 882, 890 (1982). "When

convincing, it is entitled to the same weight as direct testimony."

Id. (citations omitted).

In circumstantial evidence cases, the reasonable doubt standard

requires proof "sufficiently convincing to exclude every reasonable

hypothesis except that of guilt." Coleman v. Commonwealth, 226 Va.

31, 53, 307 S.E.2d 864, 876 (1983). This construct has two important

subsidiary rules. First, only a hypothesis of innocence flowing

"from the evidence, not those that spring from the imagination of the

defendant" must be considered. Stevens v. Commonwealth, 38 Va. App.

528, 535, 567 S.E.2d 537, 540 (2002) (citation omitted). Second,

whether an "alternative hypothesis of innocence is reasonable is a

question of fact and, therefore, is binding on appeal unless plainly

wrong." Id.; Harris v. Commonwealth, 38 Va. App. 680, 691, 568

S.E.2d 385, 391 (2002); Archer v. Commonwealth, 26 Va. App. 1, 12-13,

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492 S.E.2d 826, 832 (1997). In other words, only when a fact finder

"arbitrarily" ignores the reasonableness of the innocence hypothesis

should the decision be overturned on appeal. Stevens, 38 Va. App. at

535, 567 S.E.2d at 540 (citation omitted).

In this case, all agree that the prescription was fraudulent.

Dr. McLean did not call it in to the pharmacy. No one by the name

Brenda Thomas has ever worked for Dr. McLean. These undisputed facts

eliminate the possibility that the person who called in the

prescription (identifying herself as Brenda Thomas, an employee of

Dr. McLean) did so innocently. That leaves only three logical

possibilities: two in which Mulligan is guilty, and one in which she

is innocent.

In the first scenario, Mulligan called in the fraudulent

prescription herself. She used the DEA information she had received

earlier from Dr. McLean, and she ordered exactly the same narcotic he

had earlier prescribed for her. Under the second scenario,

Mulligan's friend (Robin Barker, a person police officers could never

find) called in the fraudulent prescription. Mulligan joined in the

subterfuge by providing her friend with Dr. McLean's DEA information

and by picking up the prescription from the pharmacy. In the third

scenario, Mulligan's friend called in a fraudulent prescription and

then duped the wholly unaware Mulligan into picking it up from the

pharmacy —— all without Mulligan having any idea of the fraud.

Faced with these three possibilities, the majority surveys the

facts, weighs the competing inferences, and then settles upon the

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third: "The inference is just as strong, if not stronger, that

appellant simply chose to do a favor for the wrong friend." Ante at

8. Problem is, that hypothesis of innocence, declared reasonable by

the majority, was found unreasonable by the trial judge. In his

judgment, as the trier of fact, the hypothesis simply did not

reasonably explain what actually happened in this case. No doubt he

came to this conclusion because:

Dr. McLean has never treated a patient named Robin
Barker, Mulligan's alleged friend,

Dr. McLean had previously treated Mulligan,

Dr. McLean had previously prescribed Lorcet for
Mulligan,

when Dr. McLean previously prescribed Lorcet for
Mulligan, he did so by giving her a "handwritten
prescription,"

Dr. McLean's handwritten prescriptions always include
his DEA number,

the fraudulent prescription picked up by Mulligan
included Dr. McLean's DEA number,

Lorcet is a Schedule 3 narcotic used for pain
medication, and

by definition, a narcotic is an "addictive drug,"
Black's Law Dictionary 1044 (7th ed. 1999), thus
explaining the possible motive Mulligan might have in
wanting more of it.

Faced with these facts, the majority appears to separate one

from another and then find each insufficient by itself. Under this

approach, for example, it is legally insignificant that Mulligan knew

Dr. McLean's DEA number. "If such an inference were allowed, every

person for whom Dr. McLean wrote a prescription could be guilty." Ante
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at 7. True enough. But this same if-then syllogism could be asserted

for every fact in this case when analyzed in isolation, without any

consideration for the composite picture. 2

An appellate court cannot "consider otherwise innocent

circumstances in isolation and conclude that each circumstance

standing alone" falls short of proving the defendant's guilt. Hughes

v. Commonwealth, 18 Va. App. 510, 524, 446 S.E.2d 451, 460 (1994).

We cannot do so because "that approach denies reality." Id. Our

common experiences teach that circumstances "do not exist in

isolation of one another but exist together with every other proven

fact and circumstance in the case." Id. "While no single piece of

evidence may be sufficient, the 'combined force of many concurrent

and related circumstances, each insufficient in itself, may lead a

reasonable mind irresistibly to a conclusion.'" Stamper v.

Commonwealth, 220 Va. 260, 273, 257 S.E.2d 808, 818 (1979) (quoting

Karnes v. Commonwealth, 125 Va. 758, 764, 99 S.E. 562, 564 (1919)).

Given the composite of circumstances in this case, it matters

not whether we, as appellate judges reading briefs and transcripts,

find the evidence compelling enough to render the

poor-choice-of-friends hypothesis a reasonable one. The issue is

whether the trial judge, in reaching the opposite conclusion, was

"plainly wrong or without evidence to support it." Code § 8.01-680;

2
While mistaken, the majority's effort is considerably better
than Mulligan's. The entire argument section of the appellant's
opening brief takes up a single paragraph.
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see Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162

(2002); McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d

259, 261 (1997) (en banc). In this respect, Code § 8.01-680

maintains a subtle, but potent, distinction between mere error (I

would not have convicted based on these facts) and plain error (I do

not believe any reasonable jurist could have convicted on these

facts).

Stated differently, we must ask whether the trial court acted

unreasonably in finding that the "wrong friend" hypothesis did not

reasonably explain the facts in this case. The reasonableness

inquiry, therefore, must establish a plot on each intersecting axis.

Any other approach compromises our duty not to "substitute our

judgment for that of the trier of fact, even were our opinion to

differ." Wactor, 38 Va. App. at 380, 564 S.E.2d at 162 (citing

Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72 (1998)).

That said, I cannot agree that the trial judge was "plainly

wrong," Code § 8.01-680, in finding against Mulligan. He found it

simply too much to believe that Mulligan's mysterious "wrong friend"

—— who had never been a patient of Dr. McLean —— would have (i)

called in a fraudulent prescription using her own name, (ii) for

exactly the same addictive narcotic previously prescribed for

Mulligan, (iii) identifying Dr. McLean as the prescribing physician,

(iv) who was exactly the same doctor who had previously prescribed

the narcotic to Mulligan, (v) using the doctor's DEA number, which

only could have been known by someone (like Mulligan) who had

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previously obtained a written prescription issued by Dr. McLean, and

(vi) then send Mulligan, completely guileless and unaware of the

fraud, to the pharmacy to pick up the narcotic. I am not surprised

the trial judge struggled with this tale. Having often instructed

jurors to use their "common sense," 1 Virginia Model Jury

Instructions: Criminal, No. I-12, at 2.050 (2001), the trial judge

cannot be faulted for using his.

Perhaps the "wrong friend" hypothesis may be reasonable in some

metaphysical, abstract sense. The trial judge, however, found it

unreasonable given the specific facts and circumstances of this case.

And the hypothesis is not, as a matter of law, so probable that a

fact finder could not disbelieve it. Once that hypothesis is

disbelieved by the fact finder, only one other logical possibility

exists: Mulligan is guilty —— either because (i) she called in the

fraudulent prescription herself, or (ii) she provided the DEA

information to her friend and then completed the fraud by picking the

prescription up from the pharmacy. The trial court interpreted the

facts to establish Mulligan's guilt, beyond a reasonable doubt, in

this latter sense:

Someone has called in a false prescription, whether
it was this defendant or someone calls for her,
someone calls in the false prescription.

* * * * * * *

She may not —— maybe someone else called it in, but
she's at least —— not the principal in the first
degree, but she's an active participant. She's at
least some participant, at least in the second
degree, which makes it the same culpability.

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 * * * * * * *

I don't think it's just a coincidence that Ms.
Mulligan had the same physician and had the same
medication. I think that a jury question is
created. As a trier of fact, I find that the
information and the evidence that's been presented
by the Commonwealth is sufficient beyond a
reasonable doubt to establish that Ms. Mulligan was
again at least as a principal in the second [degree]
involved in obtaining these drugs by a forged
prescription, forgery in the sense that it's called
in by subterfuge from —— not from the doctor's
office, but with that as a scam.

Because reasonable jurists can disagree as to that conclusion, I

respectfully dissent. 3

3
Suffice it to say, I am unpersuaded by the majority's reliance
on Williams v. Commonwealth, 14 Va. App. 666, 418 S.E.2d 346 (1992)
(Benton, J.), particularly the assertion that "this case is
controlled" by Williams. Ante at 7. In Williams, the only evidence
of guilt was that the defendant picked up the fraudulent prescription
at the pharmacy. If the trial judge in our case had been presented
with only that fact —— and nothing more —— I would join the majority
in reversing Mulligan's conviction. But that, it seems clear to me,
is not the case before us.
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