NOTICE: The opinions posted here are subject to formal
revision. If you find a typographical error or other formal error, please notify
the Virginia Court of Appeals.
COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Senior Judge Overton
Argued at Richmond, Virginia
Record No. 1394-02-2
BETTY ANN NUZZO
COMMONWEALTH OF VIRGINIA
BY JUDGE LARRY G. ELDER
OCTOBER 14, 2003
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Gary A. Hicks, Judge
John H. Goots (Chenault & Goots, PLC, on brief), for
Stephen R. McCullough, Assistant Attorney General (Jerry W.
Kilgore, Attorney General, on brief), for appellee.
Betty Ann Nuzzo (appellant) appeals from her bench trial
conviction for obtaining a drug
or controlled substance by fraud in violation of Code ?
18.2-258.1. On appeal, she contends the
court erroneously admitted pharmacy records without sufficient
proof that the witness through
whom they were offered was the custodian of the records. She
also contends the evidence was
insufficient to prove she acted with the requisite intent to
commit fraud when she obtained
duplicates of prescriptions she had received only a day earlier.
The Commonwealth contends
appellant failed to preserve the admissibility issue for appeal.
We assume without deciding that appellant preserved the
admissibility issue for appeal
and hold the evidence was properly admitted under the business
records exception to the hearsay
rule. Further, we hold the evidence was sufficient to support
the conviction. Thus, we affirm.
Appellant was tried jointly with Zacharie Comeau, who was
alleged to have aided and
abetted her prescription fraud. Comeau was convicted for that
offense and noted his appeal. In
that separate appeal, Comeau contended that the Commonwealth
failed to lay an adequate
foundation for the admission of the pharmacy records and that
the evidence was insufficient to
prove any prescription fraud occurred. By memorandum opinion
issued June 17, 2003, a panel
of this Court disagreed and affirmed Comeau’s conviction. Comeau
v. Commonwealth, No.
1290-02-2 (Va. Ct. App. June 17, 2003). We rely on the reasoning
of this Court in Comeau’s
case to hold that the admission of the challenged business
records was not error.
We also rely in part on this Court’s reasoning in Comeau’s case
to hold the evidence was
sufficient to prove appellant acted with the requisite intent.
Intent, like any element of a crime,
may be proved by circumstantial evidence, Servis v.
Commonwealth, 6 Va. App. 507, 524, 371
S.E.2d 156, 165 (1988), such as a person’s conduct and
statements, Long v. Commonwealth, 8
Va. App. 194, 198, 379 S.E.2d 473, 476 (1989). Proof of
deceitful conduct, for example, may
establish the requisite fraudulent intent. See Smith v.
Commonwealth, 222 Va. 646, 652, 283
S.E.2d 209, 212 (1981); Waymack v. Commonwealth, 4 Va. App. 547,
550, 358 S.E.2d 765, 766
"Circumstantial evidence is as competent and is entitled to
as much weight as direct
evidence, provided it is 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). "[T]he
Commonwealth need only exclude reasonable hypotheses of
innocence that flow from the
evidence, not those that spring from the imagination of the
defendant." Hamilton v.
Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
In the course of affirming Comeau’s conviction for aiding and
abetting prescription fraud,
this Court stated expressly that the evidence proved "Nuzzo
. . . obtained prescription
medications ‘by fraud, deceit, misrepresentation’ or
‘subterfuge’ or by ‘concealment of a material
fact’ in violation of Code ? 18.2-258.1(A)(i)[ and] (iii)"
and, thus, established "Nuzzo’s criminal
culpability" for that offense. Comeau, slip op. at 7-8. It
reached this conclusion based on a
finding that Nuzzo represented to the pharmacy clerk that she
had not obtained any prescriptions
on the previous day.
We rely on this finding in Comeau’s case to prove appellant
acted with the requisite
intent. We hold further the evidence establishes that, whatever
appellant’s intent when she first
entered the pharmacy on December 20, 2001, and spoke to the
store’s clerk, by the time she
spoke with pharmacist Teresa Harris, she had the intent to
deceive and, in fact, obtained the refill
of the fiorigen with codeine "by fraud, deceit,
misrepresentation, embezzlement or subterfuge."
Although appellant claimed initially to have asked Pharmacy
Clerk Charles Williams for only
four or five prescriptions on December 20, she asked Pharmacist
Harris for seven prescriptions.
Appellant had only nine prescriptions on file, and she did not
request refills of her claritin or
albuteral. This evidence supports the inference that she
requested refills of the other seven
prescriptions, including the augmentin, ibuprofen and fiorigen
with codeine, even though she had
obtained refills of those same prescriptions one day earlier.
Subsequently on December 20,
during the same encounter, either appellant told Harris or
Comeau told Harris, while Comeau
was in appellant’s presence and standing beside her, that
appellant in fact had not received the
augmentin, ibuprofen and fiorigen with codeine refills on
December 19. Harris’s testimony
coupled with the pharmacy’s sign log confirmed that appellant
picked up those prescriptions on
December 19. Appellant did not claim otherwise at trial. In
fact, she admitted that she used
prescription medication to "get high" and that she had
taken "just about all" of the fiorigen with
codeine after she picked it up on December 19.
Thus, appellant’s admission to the investigating officer that
she had been "using drugs to
get high . . . about a month or two," coupled with her acts
of requesting seven prescriptions other
than claritin and albuteral; representing or allowing her
companion to represent that she had
never received the augmentin, ibuprofen and fiorigen with
codeine prescriptions filled on
December 19; endorsing the sign log to indicate receipt of
refills of those same prescriptions on
December 20; and immediately ingesting herself and allowing her
boyfriend to ingest all the
fiorigen to "get high" establish that appellant acted
with the requisite intent to "obtain" the refills
"by fraud, deceit, misrepresentation, . . . or
subterfuge." Code ? 18.2-258.1. The only
reasonable hypothesis flowing from the evidence, viewed in the
light most favorable to the
Commonwealth, is that appellant violated Code ? 18.2-258.1.
For these reasons, we hold the admission of the sign log sheets
was not reversible error
and that the evidence was sufficient to prove appellant acted
with the requisite intent to deceive.
Thus, we affirm appellant’s conviction.
Code ? 17.1-413, this opinion is not designated for publication.