dissenting:
The sole issue addressed by the majority in the instant appeal is whether the State’s evidence was sufficient to prove beyond a reasonable doubt that the defendant prescribed Valium outside the scope of regular medical treatment, in violation of section 312(h) of the Illinois Controlled Substances Act. (Ill. Rev. Stat. 1985, ch. 56½, par. 1312(h).) In my view, the State’s evidence amply demonstrated that the defendant prescribed Valium outside the course of regular medical treatment, and his conviction should be affirmed. Accordingly, I respectfully dissent.
It is beyond question or debate that the standard of review in all criminal cases, regardless of the nature of the offense or the degree of education or professional standing of the defendant (see People v. Pintos (1989), 133 Ill. 2d 286, 549 N.E.2d 344), is whether there was sufficient evidence to prove the defendant guilty beyond a reasonable doubt. Thus, “[i]n reviewing the sufficiency of the evidence to sustain a conviction, the relevant inquiry is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. [Citation.]” People v. Williams (1987), 118 Ill. 2d 407, 416, 515 N.E.2d 1230; see also People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 461.
It is the role of the trier of fact to determine the credibility of witnesses and weigh the strength of the evidence against the accused, and a reviewing court may not encroach upon that function. (People v. Steidl (1991), 142 Ill. 2d 204, 226, 568 N.E.2d 837.) The determination of the trier of fact is not to be set aside on review unless it is palpably contrary to the evidence or unless the evidence is so unreasonable, improbable or unsatisfactory as to cause a reasonable doubt of the defendant’s guilt. People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267.
Applying these principles to the case at bar, I conclude that the evidence of record is more than sufficient to sustain the trial court’s determination that defendant was guilty of prescribing Valium outside the scope of acceptable medical treatment. The evidence presented shows that Agent Mark Padilla, when he first visited defendant’s medical office, requested Valium “to get high” because he had nothing else to do. Defendant asked whether Padilla was sick or depressed, and Padilla responded that he was not. Defendant then agreed to give Padilla a prescription for 10 tablets of Valium. Thereafter, defendant conducted a brief physical examination of Padilla and gave Padilla the Valium prescription. Defendant told Padilla that in the future, Padilla would be able to get a prescription for 30 tablets of Valium for $15. Defendant advised Padilla to return in two weeks.
Less than two weeks later, Padilla returned to defendant’s office for another Valium prescription. When defendant asked Padilla why he returned so soon, Padilla replied that he had already used the Valium prescribed by defendant to get high, because it was a long, boring summer. Padilla testified that although he made no medical complaints to defendant, defendant gave Padilla a prescription for 30 tablets of Valium. Defendant told Padilla to return in a month.
Approximately 10 days later, Padilla again returned to defendant’s office. Padilla told defendant he wanted to purchase more Valium and charge it to Public Aid. Defendant advised Padilla that he would have to pay cash for the Valium prescription, since Public Aid could only be used if Padilla were sick. Defendant gave Padilla a prescription for 30 Valium tablets, for which Padilla paid $15 in cash.
Finally, 10 days later, Padilla again returned to defendant’s medical office and told defendant he wanted more Valium. When defendant informed Padilla he could not come back for a month, Padilla asked defendant how to obtain more Valium within the month. Defendant responded that Padilla would have to see other doctors. Before Padilla left defendant’s office on this visit, he received another refill for 30 Valium tablets.
Agent Oscar Aguillera visited defendant three times and received prescriptions for Valium on each of the visits. To obtain the prescriptions, Aguillera told defendant either that he was all right but that he felt better when he took Valium before going to sleep, or that he slept better when he took Valium. At Aguillera’s last visit, he told defendant that he was fine but wanted a prescription for 30 Valium tablets, rather than the 15 Valium tablets previously prescribed, and also asked defendant to prescribe Tylenol 3 for Aguillera’s wife. On the prescription blank, defendant prescribed 30 tablets of Valium and 30 tablets of Tylenol 3, and checked a box in the blank indicating that the prescription was issued from the Cuneo Hospital.
Agent Mary Avent testified to four visits with defendant. On her first visit, Avent told defendant that she wanted a Valium prescription. Defendant asked Avent how she felt. Avent answered that she was fine and was probably as healthy as he was. Defendant gave her a prescription for 15 Valium tablets, although he conducted no physical examination of her and she refused to take a blood test. On her next visit, defendant agreed to give Avent a prescription for 20 Valium tablets, and thereafter asked how she was feeling. Two weeks later, Avent returned to defendant’s office and requested a refill of her Valium prescription. Avent also asked for a prescription for Tylenol 3. When defendant inquired why she wanted Tylenol 3, Avent asked if she needed a reason. Defendant responded that she did, and Avent told him that she needed the Tylenol 3 for headaches or stomachaches, “or whatever.” Defendant then gave Avent a prescription for 30 tablets each of Valium and Tylenol 3. Approximately one month later, Avent returned to defendant’s medical office and requested refills on her Valium and Tylenol prescriptions. Defendant complied with her request, but performed no physical examination.
At trial, defendant testified that he prescribed the Valium in each instance because he diagnosed each of the agents as suffering from an anxiety disorder or phobia. He also stated that he noted the word “anxiety” on each of the agents’ medical charts. However, defendant further testified that he did not note any manifestations of anxiety in the agents’ medical records, although he considered significant some of the agents’ anxiety manifestations.
Dr. Lahmeyer, the State’s expert witness, testified that defendant’s charted information was insufficient data from which an anxiety diagnosis could be made. According to Dr. Lahmeyer, the testimony of the agents failed to indicate that they suffered from a medical condition for which Valium should have been prescribed to the officers. Dr. Lahmeyer testified that defendant’s issuance of Valium prescriptions to the agents was not within the ordinary course of medical treatment.
In my view, this evidence was sufficient to prove defendant guilty beyond a reasonable doubt, and his conviction should be affirmed. AH of the agents to whom defendant issued Valium prescriptions informed defendant that he or she was in good health and offered no medical basis for the prescription. The agents testified that the defendant agreed to provide the requested Valium prescription before the defendant performed any physical examination of the agents. Following cursory and pretextual physical examinations of and discussion with the agents, the defendant prescribed the Valium requested by the agents. Return visits by the agents, sometimes before the Valium prescription had expired, also resulted in renewed prescriptions from the defendant without bona fide physical examinations of the agents. Dr. Lahmeyer, the State’s expert witness, testified that in his medical opinion, the defendant did not prescribe Valium to the agents in the normal course of acceptable medical treatment.
On this evidence, a rational trier of fact could have readily concluded that defendant’s purported physical examinations and notations on medical records and charts were merely performed as a guise or ruse to shield defendant’s illegal prescription of Valium outside the scope of reasonable medical treatment. The trier of fact could reasonably have determined that the defendant attempted to circumvent the Act’s limitations by performing cursory physical examinations, and by inventing or exaggerating anxiety conditions in the agents, in order to fabricate a factual basis to support his defense. (See, e.g., Commonwealth v. De La Cruz (1982), 15 Mass. App. 52, 443 N.E.2d 427 (in criminal proceeding for delivery of controlled substance, physician’s claim that patients needed controlled substance because of medical treatment was ruse to disguise doctor’s prescription of drugs outside course of regular medical treatment); cf. Douglass v. Board of Medical Quality Assurance (1983), 141 Cal. App. 3d 645, 190 Cal. Rptr. 506 (medical disciplinary action appropriate for doctor’s wrongful prescription of controlled substance outside acceptable medical treatment, as “evidence *** revealfed] a physician quite willing to prescribe dangerous drugs to new patients with only cursory medical examinations”).) In my opinion, the evidence of record is not so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt of the defendant’s guilt.
The majority disregards the substantial evidence presented by the State which, implicit in its decision, the trial court found credible. The majority not only fails to review the evidence in the light most favorable to the State, but impermissibly views the evidence in the light most favorable to the defendant. In so doing, the majority adopts a result-oriented analysis that distorts the facts of record in order to reverse the defendant’s conviction.
Initially, the majority attacks the credibility and weight to be accorded to the State’s medical expert, Dr. Lahmeyer. Without citation to any legal authority, the majority disregards Dr. Lahmeyer’s testimony on the reasoning that “where a defendant’s conviction rests on a finding that he has violated the standards of his profession, [the defendant] has the right to have the quality of his conduct judged by the standards specific to his area of practice and not the standards that a specialist from a different practice assumes are proper for the defendant.” (216 Ill. App. 3d at 264-65.) The majority also observes that Dr. Lahmeyer gave questionable testimony because he did not take into account the records and charts made by the defendant during his treatment of the officers, and because he did not consider certain “uncontroverted” facts of record. 216 Ill. App. 3d at 265.
I cannot concur in the majority’s reasoning. Dr. Lahmeyer testified to his qualifications, and the trial court determined that he was qualified to render an expert opinion with respect to whether the defendant prescribed Valium during the regular course of medical treatment. Such a trial court ruling is discretionary and cannot be reversed absent an abuse of that discretion. (See, e.g., Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322.) The defendant does not claim that the trial court abused its discretion when it recognized Dr. Lahmeyer as qualified to render an expert opinion. Consequently, we must assume, for the purpose of review, that Dr. Lahmeyer was qualified to render an expert opinion at trial with respect to whether the defendant’s prescription of Valium occurred in the regular course of medical treatment. In addition, the deficiencies which the majority attributes to the testimony given by the State’s witness, an attribution with which I do not agree, would have affected its weight and credibility, which are matters reserved to the trier of fact. The majority improperly redetermines, de novo in this appeal, the credibility and weight to be given to Dr. Lahmeyer’s testimony, and then erroneously rejects this testimony.
The majority also engages in an impermissible reweighing of other evidence presented in the State’s case. (216 Ill. App. 3d at 265.) For example, the majority posits that “there is no significant evidence in this case that the writing of prescriptions for controlled substances was a disproportionate share of Albano’s practice.” (216 Ill. App. 3d at 265.) However, section 312(h) does not require that illegal prescriptions constitute a “disproportionate share” of defendant’s practice. Section 312(h) prohibits even a single prescription of a controlled substance outside the course of regular medical treatment.
The majority also relies upon the amount and dosages of Valium defendant prescribed for the agents, and the defendant’s performance of physical examinations of the agents. The majority notes that defendant “kept charts for each of his patients, in most cases making notations or references to the charts during the office visits. Each of the charts contained a reference to ‘anxiety/ a condition the experts agreed could reasonably call for Valium treatment.” (216 Ill. App. 3d at 265.) However, none of the agents ever informed defendant that he or she was suffering from anxiety, nervousness, or stress. Defendant’s charts failed to note any manifestations of anxiety in any of the agents, even though the defendant testified that some of the anxiety manifestations that he allegedly perceived were significant. Moreover, all of these circumstances recited and relied upon by the majority were considered and rejected by the trier of fact in its determination of defendant’s guilt.
The majority’s reversal of defendant’s conviction in the instant cause selectively emphasizes isolated facts of record that are favorable to the defendant and ignores additional, compelling evidence of defendant’s guilt. The majority fails to apply the proper standard of appellate review and impermissibly substitutes its judgment and factual determinations for those properly made by the trier of fact. The majority exceeds the proper bounds of appellate review and usurps the most fundamental function of the trier of fact. Based upon a proper review of the evidence, the record clearly supports defendant’s conviction.
The criminalization of a physician’s prescription of controlled substances that are not medically necessary to the patient plays an integral role in the concerted, ongoing effort to curb the illicit use and traffic of drugs in this State. Without legislative or case law support, the majority imposes upon the State a higher, more stringent burden of proving that a physician prescribed controlled substances outside the course of acceptable medical treatment. In so doing, the majority undermines the effective prosecution and punishment of physicians who manipulate their medical practice in order to shield their unlawful prescription of controlled substances to those who have no legitimate medical need for the drug.
Because it is not considered by the majority, I do not address the defendant’s argument regarding the constitutionality of the statute under which he was convicted. Ill. Rev. Stat. 1985, ch. 56%, par. 1312(h).
For these reasons, I respectfully dissent.