(dissenting).
I respectfully dissent.
I believe the defendant can be tried solely on the charge of conspiracy to traffic, under the Controlled Substances Act §§ 30-31-1 to 30-31-40, N.M.S.A.1978 (Repl.Pam.1980). Because the writing of prescriptions which do not have a legitimate medical purpose is not prohibited in the Act, the application of §§ 30-31-20, 30-31-22, and 30-31-25 to Dr. Carr is unconstitutional. A new trial is required on the conspiracy charge because the verdict is ambiguous and because highly prejudicial evidence was erroneously admitted at trial.
Consti t u tionali ty.
Much convoluted and intricate reasoning is required to arrive at the conclusion that a physician may be prosecuted for trafficking and distributing under §§ 30-31-20, and 30-31-22(A) N.M.S.A.1978 (Repl.Pam.1980), although I agree that that is what the Legislature did intend. Yet it is not enough for the Legislature to intend to make an activity criminal; it must clearly define that activity. Hines v. Baker, 422 F.2d 1002 (10th Cir. 1970); State v. Prince, 52 N.M. 15, 189 P.2d 993 (1948). Absent a clear definition of the criminal activity, the statute is unconstitutional. Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926); Bokum Resources Corp. v. New Mexico Water Quality Control Commission, 93 N.M. 546, 603 P.2d 285 (1979).
Both § 30-31-20 and § 30-31-22(A) prohibit unauthorized distributing of certain drugs, but neither of them mentions that dispensing might in some circumstances also be unauthorized. The writing of prescriptions is clearly dispensing. § 30-31-2(H), N.M.S.A.1978 (Repl.Pam.1980). On the face of §§ 30-31-20 and 30-31-22(A), “dispensing” is not a criminal activity. The federal law, in contrast, specifically includes “dispense” in the list of activities proscribed in the trafficking statute. 21 U.S.C. § 841(a)(1) (1976).
The majority reaches its conclusion that some types of dispensing are criminal by reading the regulations of the board of pharmacy. New Mexico Drug Laws and Board of Pharmacy Regulations, Reg.No. 20 § 913(AX180), in effect defines “prescription” as an order “issued only for a legitimate medical purpose”. This limitation on the meaning of “prescription” is not found in the Controlled Substances Act itself. See, § 30-31-2(T) (Repl.Pam.1980). I regard the absence of this limitation as fatal. A penal statute cannot be so vague that men of common intelligence must guess at its meaning. Connally; Bokum Resources Corp. Absent any other definition in the Act, a man of common intelligence would think that “prescription” was used in its ordinarily accepted meaning. That is set out in Webster’s as “a written direction for the preparation, compounding, and administration of a medicine.” Webster’s Third New International Dictionary 1792, def. 5a(l), (1961). Under accepted usage, the word “prescription” does not include the idea that it is “issued only for a legitimate medical purpose.”
The Legislature cannot delegate authority to an agency to make substantive law. See, Montoya v. O’Toole, 94 N.M. 303, 610 P.2d 190 (1980); State v. Heffernan, 41 N.M. 219, 67 P.2d 240 (1937). By narrowing the definition of “prescription” to only those prescriptions written for a legitimate medical purpose, the Board of Pharmacy has, in effect, enacted substantive law. At least this is true if the new definition is used to make physicians issuing prescriptions not for a legitimate medical purpose criminally liable for trafficking and distributing under §§ 30-31-20 and 30-31-22(A). Since “distributing” is criminal, while “dispensing” is not, the activities delineated by these two terms must be set out explicitly and clearly in the Controlled Substances Act.
Because the Controlled Substances Act does not give adequate notice to physicians that they are distributing illegally when they issue prescriptions which are not for a legitimate medical purpose, the Act cannot constitutionally be applied to them. Similarly, the Act fails to give adequate notice that a physician who hands out drugs to his patients for other than legitimate medical purposes is distributing rather than dispensing.
Dr. Carr was also convicted under § 30-31-25(AX3), N.M.S.A.1978 (Repl.Pam.1980) of intentionally obtaining certain drugs by misrepresentation. The conviction was based on the theory that, in writing a prescription to Niki Jones, he misrepresented to the pharmacy that the prescription was for a medical purpose. This statute specifically, and the Act as a whole, fails to give adequate notice that the writing of a prescription by a physician could be misrepresentation.
With respect to the conspiracy conviction, I agree with the majority that a physician could be charged under the Act with conspiracy to traffic, if he is knowingly providing drugs to someone who is trafficking. However, I do not believe he could be charged with conspiracy to commit the felony of acquiring possession of a controlled substance by misrepresentation. The Act cannot be construed, constitutionally, as making the writing of a prescription a misrepresentation. When there is, as here, technical compliance with §§ 30-31-24 and 25, N.M.S.A.1978 (Repl.Pam.1980), a physician who writes prescriptions cannot be charged with conspiracy to acquire possession by misrepresentation.
Since I believe that Dr. Carr could be charged with conspiracy to traffic, but could not be charged with conspiracy to acquire possession of a controlled substance by misrepresentation, I find that the conspiracy conviction must also be reversed. A conviction cannot stand when it is impossible to tell on what basis the defendant was convicted by the jury, and one of the possible bases was unconstitutional. Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). I cannot tell from the wording of the general verdict, the jury instructions, or the indictment, whether the jury found that Dr. Carr conspired to traffic or that he conspired to acquire possession by misrepresentation.
I would remand the case for trial on the charge of conspiracy to traffic. Because the other statutes under which Dr. Carr was charged cannot be applied to him without violating the United States and New Mexico Constitutions, I would reverse his convictions on all other counts.
Evidence.
Over objection, the State offered evidence through Kirk Dennis (Kurt Denay) that Niki Jones, the state’s principal witness, had told him that she had had oral sex with Dr. Carr in his office in return for drugs. After this witness testified, the state declined to call Niki Jones to ask her about the statement, so she was called by the defense. She testified that she had given a sworn statement to the Assistant Attorney General in which she denied having sex with the doctor. The statement that Niki told Denay she had oral sex with Dr. Carr was admitted as a prior consistent statement, since the defendant had, on cross-examination, challenged Niki’s story that she sold drugs for the doctor as a recent fabrication. However, the hearsay statement did not corroborate her testimony about selling drugs. Rather, it added the entirely new element of sex. Further, Niki was not cross-examined about the statement as is required by N.M.R.Evid. 801(d)(1), N.M.S.A.1978, presumably because the State knew she would deny it. The statement was hearsay, was not properly admitted as a prior consistent statement, and was very prejudicial and inflammatory, N.M.R.Evid. §§ 403, 801(d)(1), and 802, N.M.S.A.1978.
The trial court also erred in admitting evidence concerning the sexual activities, drug habits, and deaths of two of Dr. Carr’s former patients. This evidence on collateral issues was intended to show prior bad acts of Dr. Carr. Being both highly prejudicial, inflammatory and irrelevant, its admission deprived Dr. Carr of his constitutional right to due process of law and a fair trial. The objectionable evidence concerned Mary Genarri and Martha Hamilton. Several witnesses testified concerning Mary Genarri, her use of drugs and her relationship to the defendant. Roy Profitt testified concerning an incident where he was with Mary Genarri and a couple of others one night when she called Dr. Carr and he came over to the house. She had said she needed some pain killer. She told Roy to stay in the livingroom and she and the defendant went into the den. They closed the door and were in the room for over one and a half hours. After a while Roy Profitt went outside and through a window he saw Dr. Carr lead an apparently dazed Mary Genarri over to the bed where he got on top of her to have intercourse. Afterwards, she appeared stoned. Profitt slapped her and, she told him she and the doctor had had sex. The next day, she tried to commit suicide by slashing her wrists.
George Boyce said that Mary Genarri was his girl friend on and off until right before she died. He testified about Mary’s use of drugs. He said that one night the defendant came over to her home and the two of them went in the bedroom for a few minutes. Before the doctor came, she was sick and nervous; afterwards, she was stoned. George discussed her addiction and how her physical condition had deteriorated. She was beautiful when he met her; later she was sick, thin, and had bruised arms with needle marks; and her bones showed while they made love.
Mary Wilson, Martha Hamilton’s sister, testified that she knew Martha Hamilton got her prescriptions, such as Darvon, from Dr. Carr, and talked about Martha’s illnesses and behavior before she died, including a suicide attempt. She said that Martha had been in love with the defendant and had had a sexual relationship with him.
Mary Hamilton, Martha Hamilton’s aunt, testified about times the defendant had visited Martha at her house. One time in particular, he came with his medicine bag and they went in the bedroom and closed the door. She thought she heard them arguing so she opened the door with her fingernail file. She discovered Martha Hamilton and the defendant making love.
The evidence concerning defendant’s patients, Mary Genarri and Martha Hamilton was held admissible under N.M.R.Evid. 404(b) and 403, N.M.S.A.1978, on the issue of intent. Evidence Rule 404(b) reads:
Other crimes, wrongs or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
See, State v. Lopez, 85 N.M. 742, 516 P.2d 1125 (Ct.App.1973). After finding evidence to be relevant under rule 404(b), the trial court must balance the prejudice and probative value under Rule 403.
I would conclude that evidence showing that the defendant acted outside the course of medical practice in prescribing narcotics to addicts was relevant. However, the evidence presented was not limited to the area of past prescription of drugs to narcotic addicts. There was abundant evidence of sexual relations that the defendant had with Mary Genarri and Martha Hamilton. The evidence of sexual relations had no relevance to the showing that Dr. Carr dispensed narcotics outside the course of medical practice to others than Niki Jones. The State also introduced evidence that the two women died, that Genarri’s physical condition deteriorated, that her bones showed when making love, and that both women tried to commit suicide. The implication was that defendant was responsible for all of this, although the State could not show that he was. In addition, the evidence was overwhelmingly prejudicial and inflammatory, so that any possible relevance was far outweighed by the prejudicial value under Rule 403.
The purpose of the testimony appears to have been to show the jury that the defendant was a sex maniac and drug dealer who caused the addiction and death of his patients. The purpose of the Rules of Evidence is to insure that the jury bases its verdict on relevant and material facts and not on collateral information which leads the jury to believe the defendant is of bad character and therefore more likely than not to be guilty of the charge at issue. State v. Ross, 88 N.M. 1, 536 P.2d 265 (Ct.App.1975) (evidence that defendant was a prostitute held overly prejudicial). Even where evidence is admissible under Rule 404(b), the prejudice under Rule 403 is affected by the amount of such evidence. Where most of trial time is spent on collateral matters rather than on the matters covered by the indictment, the emphasis at trial becomes distorted, resulting in unfair prejudice and misleading the jury. See, United States v. Jones, 570 F.2d 765 (8th Cir. 1978); United States v. O’Connor, 580 F.2d 38 (2nd Cir. 1978). The evidence on the charges in the indictment was overshadowed by the evidence on the collateral issues.
Admission of the graphic evidence regarding the defendant’s sexual relationships with Mary Genarri and Martha Hamilton, the suicidal tendencies and deaths of these women, and the explicit descriptions of the deteriorating physical condition of Mary Genarri was improper. The constitutional issue aside, the admission of this highly inflammatory, prejudicial and irrelevant evidence was reversible error. At the new trial I would order on conspiracy to traffic, this evidence would not be admitted.