COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, Elder and Fitzpatrick
Argued at Salem, Virginia
WILLIAM J. HILL, SR.
MEMORANDUM OPINION * BY
v. Record No. 2345-93-3 JUDGE LARRY G. ELDER
JULY 5, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Charles C. Cosby, Jr. (Andrea C. Long; Boone, Beale,
Carpenter & Cosby, on brief), for appellant.
Thomas C. Daniel, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
William J. Hill, Sr. (appellant) appeals his two convictions
for obtaining the controlled substances Cephalexin and Lomotil by
fraud, deceit, misrepresentation, or subterfuge, in violation of
Code § 18.2-258.1. Appellant contends that the evidence was
insufficient to support the convictions. Specifically, appellant
asserts that the Commonwealth (1) failed to prove the nature of
the substances where no chemical analyses were performed; (2)
failed to prove the requisite intent necessary to support the
convictions; and (3) improperly charged him under Code
§ 18.2-258.1. Because the trial court committed no error, we
affirm the convictions.
Appellant's November 22, 1993 convictions stem from two
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
separate incidents when he obtained the prescription drugs
Cephalexin and Lomotil from the Super-X pharmacy in Danville,
where he worked as a pharmacist.
Cephalexin, a schedule VI controlled substance, was
validly prescribed to appellant on May 6, 1991, to treat his
continuing nose infection. On November 14, 1992, appellant
dispensed an additional prescription with a notation that one
further refill was authorized. Appellant admitted at trial that
he refilled the Cephalexin prescription himself, that this refill
"was not authorized" by the prescribing doctor, but that he
honestly thought it would be "alright with the doctor if [he]
updated this prescription."
Lomotil, a schedule V controlled substance, was validly
prescribed to treat appellant's wife's intestinal problems on
March 21, 1991. On December 28, 1992, appellant dispensed an
additional prescription, without permission, using the name of
the original prescribing doctor's nurse. Although he admitted
updating the Lomotil prescription, appellant maintained that he
had no intent to commit fraud and that the drug was dispensed for
valid therapeutic purposes.
After learning that the pharmacy may have discovered his
actions, appellant obtained additional prescriptions on January
6, 1993, from another physician for Lomotil and Keflex (a brand
name of the generic drug Cephalexin) to attach to the original
prescriptions. Appellant admitted that he secured the
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prescriptions from this physician to "pacify the pharmacy."
As a preliminary matter, we disagree with the Commonwealth
that this appeal is barred by the doctrine of judicial estoppel.
We recognize that "a defendant in a criminal proceeding cannot
assume inconsistent positions in the trial and appellate courts."
Commonwealth v. Beavers, 150 Va. 33, 38, 142 S.E. 402, 403
(1926). However, the record reveals that appellant never
conceded during or after trial that he was guilty of the crimes
charged; appellant conceded only that he "was guilty of
something" and that he "broke the law."
First, we hold that it was unnecessary for the Commonwealth
to produce drug analysis reports to prove that the substances
appellant obtained were actually Cephalexin and Lomotil.
Circumstantial evidence is sufficient to allow the fact finder to
infer the nature of the substance in question. See Hinton v.
Commonwealth, 15 Va. App. 64, 66, 421 S.E.2d 35, 37 (1992); Hill
v. Commonwealth, 8 Va. App. 60, 64, 379 S.E.2d 134, 136 (1989)(en
banc). In this case, proof of the substances was provided by
appellant, a pharmacist himself, who, during testimony,
identified the Cephalexin and Lomotil by name and admitted to
obtaining the drugs to treat certain illnesses. See Hill, 8 Va.
App. at 63, 379 S.E.2d at 136.
Second, we hold that the Commonwealth proved the requisite
intent, namely that appellant obtained the drugs "by fraud,
deceit, misrepresentation, . . . or subterfuge." Code
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§ 18.2-258.1. Under familiar standards of appellate review, we
view the evidence and any reasonable inferences fairly deducible
therefrom in the light most favorable to the Commonwealth.
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975). Furthermore, this Court will not set aside the
jury's verdict unless it is plainly wrong or without evidence to
support it. Maynard v. Commonwealth, 11 Va. App. 437, 439, 399
S.E.2d 635, 637 (1990)(en banc).
As we have stated, intent may be, and frequently is, shown
by circumstantial evidence. These circumstances include a
person's statements and his conduct. Campbell v. Commonwealth,
12 Va. App. 476, 484, 405 S.E.2d 1, 4 (1991). "The finder of
fact may infer that a person intends the natural and probable
consequences of his acts." Id. (citing Kelly v. Commonwealth, 8
Va. App. 359, 373, 382 S.E.2d 270, 278 (1989)).
Appellant admitted that he dispensed Cephalexin and Lomotil
without permission from authorized medical personnel; that he
increased the dosage of the Cephalexin and used a nurse's name
without her consent to obtain a refill; that he increased the
amount of refills allowed; that he never contacted the original
prescribing doctors to notify them of his actions; and that he
used another physician to "cover" the prescriptions that he
filled. Despite the fact that appellant testified that none of
his actions was committed with the intent to defraud,
misrepresent, deceive, or use subterfuge, it was within the
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jury's province to draw reasonable inferences from the proven
facts. Johnson v. Commonwealth, 209 Va. 291, 295, 163 S.E.2d
570, 574 (1968). We cannot say that it was unreasonable for the
jury to conclude that appellant possessed the requisite intent to
commit the crimes with which he was charged.
Finally, assuming that the Commonwealth could have
prosecuted appellant under Code § 54.1-3303, we hold that
appellant's prosecution under Code § 18.2-258.1 was also proper
and that the Commonwealth proved every element necessary to
convict him. Code § 18.2-258.1 states that "any person" who
illegally obtains a controlled substance is guilty of violating
this statute. This language does not exempt pharmacists from the
class of persons covered, and we see no reason to read this
limitation into the statute's plain language. See Crews v.
Commonwealth, 3 Va. App. 531, 536, 352 S.E.2d 1, 3, appeal
denied, 360 S.E.2d 715 (1987). While appellant exercised some
form of legal control over the Super-X pharmacy's stock of drugs
by nature of his employment, this control did not extend to
appropriating specific drugs for his own personal use in
violation of state law. See Hilb, Rogal & Hamilton Co. of
Richmond v. DePew, 247 Va. 240, 246, 440 S.E.2d 918, 921
(1994)(stating that an employee's fiduciary duty to his employer
prohibits the employee from acting in a manner adverse to the
employer's interest). Appellant "obtained" the Cephalexin and
Lomotil when they came under his personal dominion and control,
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and his obtaining the drugs was predicated on providing false
information in an attempt to comply with state law.
Accordingly, we affirm appellant's convictions.
Affirmed.
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