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NUZZO v. COMMONWEALTH




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NUZZO

v.

COMMONWEALTH


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

v.

COMMONWEALTH OF VIRGINIA

 

MEMORANDUM OPINION[1]
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
appellant.

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

(1987).

"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.

Affirmed.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.


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