Don't Miss

WEIS v. COMMONWEALTH




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.


WEIS

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bumgardner and Senior Judge Overton

Argued at Richmond, Virginia

Record No. 1481-02-2

HOWARD C. WEIS

v.

COMMONWEALTH OF VIRGINIA

 

MEMORANDUM OPINION[1]
BY JUDGE NELSON T. OVERTON

OCTOBER 14, 2003

FROM THE CIRCUIT COURT OF HANOVER COUNTY

John Richard Alderman, Judge

Bruce P. Ganey for appellant.

Eugene Murphy, Assistant Attorney General (Jerry W. Kilgore,

Attorney General, on brief), for appellee.

Tried by the court sitting without a jury, Howard C. Weis
(appellant) was convicted of

attempting to obtain a prescription by fraud, forging a
prescription, and uttering a forged

prescription. See Code ? 18.2-258.1. On appeal, appellant
challenges the sufficiency of the

evidence to support his convictions. We affirm the judgment of
the trial court.

"On appeal, ‘we review the evidence in the light most
favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible
therefrom.’" Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation
omitted).

So viewed, the evidence proved that appellant used the
prescription drug oxycontin on a

regular basis for chronic back pain. Normally, Dr. Patrick
Woodward, or one of the other

doctors in his practice, would prescribe appellant sixty
oxycontin pills, a one-month supply.

Appellant was required to obtain a written prescription each
month from Woodward’s office and

deliver it to Rite Aid pharmacy, where appellant normally filled
his prescriptions.

On May 16, 2001, appellant presented a prescription for
oxycontin at Rite Aid. The

prescription, dated May 17, 2001, and signed by Woodward, was
for a supply of 160 pills.

Wendy Moody, the Rite Aid pharmacy technician who received the
prescription, recorded on the

top of the prescription the date of birth and telephone number
of the individual who presented the

prescription.[2]Moody
later noticed that the prescription was post-dated, circled the date in red,

and gave the prescription to Cindy Lam, a Rite Aid pharmacist.
Moody also indicated to Lam

that the quantity on the prescription looked unusual.

After checking appellant’s prescription profile in the computer
and verifying that

appellant usually received only sixty oxycontin pills per month,
Lam called Woodward to verify

his order. Woodward could not recall the exact circumstances
surrounding appellant’s request

for an oxycontin refill. However, Woodward verified that he
wrote the prescription for appellant

for sixty pills of oxycontin. At trial, Woodward produced a
photocopy of the original

prescription he wrote, demonstrating that the quantity was
sixty, not 160. Although unfamiliar

with the delivery of the prescription in question to appellant,
Woodward testified that as a

general rule in his practice, a prescription is placed in a
sealed envelope and kept at the front

desk for the patient to retrieve.

Following her discussion with Woodward, Lam wrote "do not
fill" and "patient changed

quantity" on the prescription. Appellant appeared at Rite
Aid on May 18, 2001 and requested his

prescription. Patricia Grubbs, the pharmacist on duty, advised
appellant that the store could not

fill the prescription and that he should call Woodward with any
questions. Appellant stood and

stared at Grubbs for several minutes, making her uncomfortable.
A Hanover County deputy who

had been alerted to the situation appeared at the store. Grubbs
saw appellant turn in the direction

of the officer, then leave the store at a "brisk
walk."

Appellant testified the oxycontin prescription was in a sealed
envelope when he received

it at Woodward’s office. According to appellant, he went from
the doctor’s office directly to the

drive-in window of Rite Aid, opened the envelope, and gave the
prescription to the attendant at

the window. Appellant claimed he did not look at the
prescription, nor did he alter it in any way.

The only issue on appeal is whether the Commonwealth proved
beyond a reasonable

doubt that it was appellant who changed the prescription
quantity from sixty to 160. The trial

judge accepted the Commonwealth’s evidence, and rejected as
incredible appellant’s testimony

that he did not alter the oxycontin prescription. "The
credibility of the witnesses and the weight

accorded the evidence are matters solely for the fact finder who
has the opportunity to see and

hear that evidence as it is presented." Sandoval v.
Commonwealth, 20 Va. App. 133, 138, 455

S.E.2d 730, 732 (1995).

Appellant contends that the evidence did not exclude the
possibility that the prescription

was altered by someone either at Woodward’s office or at Rite
Aid pharmacy. However,

Woodward wrote, and produced a photocopy of, the prescription
for sixty tablets. Appellant

admitted that the prescription was in a sealed envelope when he
received it. Moreover, Moody

testified that the prescription contained the number
"160" when it was presented to her.

"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).

"Circumstantial evidence is not viewed in isolation. ‘While
no single piece of evidence may be

sufficient, the "combined force of many concurrent and
related circumstances, each insufficient

in itself, may lead a reasonable mind irresistibly to a
conclusion."’" Commonwealth v. Hudson,

265 Va. 505, 514, 578 S.E.2d 781, 786 (2003) (citations
omitted).

The evidence demonstrated that the oxycontin prescription was
altered after Woodward

wrote it and before the pharmacy technician received it. By
appellant’s own testimony, the

prescription was in a sealed envelope when he received it at the
doctor’s office. Only appellant

possessed a reason to change the prescription to increase the
quantity of drugs, which was

accomplished simply by placing a "1" before the
"60" Woodward had written.

Furthermore, when confronted with the news that the prescription
would not be filled,

appellant stared at the pharmacist in a way that made her
uncomfortable. Appellant left the store

quickly when the police arrived rather than questioning the
pharmacist about the situation.

Considering all the facts and surrounding circumstances, the
evidence was sufficient to

prove beyond a reasonable doubt that appellant altered the
oxycontin prescription and that he

was guilty of the charged offenses. Appellant’s convictions are
affirmed.

Affirmed.

 

FOOTNOTES:

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

 

[2]The date of
birth and telephone number present on the prescription match indications of

appellant’s date of birth and telephone number in the trial
court’s records.


Scroll To Top