Opinion
14-P-137
05-26-2015
COMMONWEALTH v. JONATHAN CARRILLO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a bench trial, the defendant was convicted of uttering a false prescription and obtaining a controlled substance by fraud. On appeal, he argues that the surveillance video admitted at trial was not properly authenticated and that the convictions are duplicative. We affirm.
The defendant was acquitted of the charge of making a false health care claim when his motion for required finding of not guilty was allowed at the close of the Commonwealth's case.
Video authentication. At trial, the Commonwealth offered a copy of a surveillance video from a recording system in a Walgreens store. State Trooper Donna Heinz authenticated the video recording, testifying that she had copied it from the store system on January 30, 2012. Over the defendant's objection, the copy was admitted in evidence. The defendant argues that Heinz was not qualified to authenticate the recording because she was not at the store when the recording was made (January 15, 2012), nor was she the person who maintained the system on Walgreens' behalf. He contends that proper authentication could be made only by the store pharmacist who was depicted in the video, or by the person designated by Walgreens to maintain the surveillance system. We disagree.
Trooper Heinz testified that, on January 30, 2012, she obtained from the Walgreens pharmacist a prescription that she suspected was fraudulent. From the back of the prescription, she took the patient identification number, in this case a Massachusetts identification card number. She then searched records from the Registry of Motor Vehicles (RMV) and determined that the identification number recorded belonged to the defendant, Jonathan Carrillo. Heinz also obtained a photo of the defendant from the RMV records.
Pursuant to G. L. c. 94C, § 24A(c), pharmacists are required to record "a customer identification number and other information associated with the customer identification number, as specified by the [D]epartment [of Public Health]" when filling a prescription for certain controlled substances. The identification of the person seeking to obtain the prescribed drugs is then entered into a database maintained by the Department of Public Health Prescription Monitoring Program, to which Trooper Heinz had access.
Trooper Heinz entered into the Walgreens recording system the date and time that the suspicious prescription had been filled. She "then just went through and matched up the person [the defendant] that was there to pick up the prescription at the time it was dispensed." She also reviewed the recording from the time the defendant entered and exited the store. She then copied the recording onto a "DVD, CD-ROM."
The time that the "prescription was actually dispensed" was recorded on the back of the prescription form.
"The requirement of authentication as a condition precedent to admissibility of real evidence is satisfied by a foundation sufficient to support a finding that the item in question is what its proponent claims it to be." Commonwealth v. Siny Van Tran, 460 Mass. 535, 546 (2011). Mass. G. Evid. § 901(a) (2015). "A judge making a determination concerning the authenticity of a communication sought to be introduced in evidence may look to 'confirming circumstances' that would allow a reasonable [factfinder] to conclude that this evidence is what its proponent claims it to be." Commonwealth v. Purdy, 459 Mass. 442, 448-449 (2011). "Evidence may be authenticated by direct or circumstantial evidence, including its '[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics." Id. at 447-448. Mass. G. Evid., supra at § 901(b)(1), (4). On the facts of this case, there was no error in the judge's ruling that the surveillance video was properly authenticated and therefore admissible. See Commonwealth v. Siny Van Tran, supra.
Duplicative charges. The defendant was convicted of uttering a false prescription and obtaining a controlled substance by fraud, both in violation of G. L. c. 94C, § 33(b). He argues that his convictions were duplicative because the uttering charge was a lesser included offense of obtaining oxycodone by uttering a false prescription for oxycodone.
"'[A] defendant may properly be punished for two crimes arising out of the same course of conduct.' Commonwealth v. Valliere, 437 Mass. 366, 371 (2002), quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871). 'As long as each offense requires proof of an additional element that the other does not, "neither crime is a lesser-included offense of the other, and convictions [of] both are deemed to have been authorized by the Legislature and hence not [duplicative]."' Commonwealth v. Vick, 454 Mass. 418, 431 (2009), quoting Commonwealth v. Jones, 382 Mass. 387, 393 (1981). 'This elements-based approach remains the standard for determining whether multiple convictions stemming from one criminal transaction are duplicative.' Commonwealth v. Vick, supra. '[T]he elements of the crimes charged are considered objectively, abstracted from the facts [of any particular case].' Id., quoting Commonwealth v. Jones, 441 Mass. 73, 76 (2004)." Commonwealth v. Torres, 468 Mass. 286, 288-289 (2014). See Commonwealth v. The Ngoc Tran, 471 Mass. 179, 187-189 (2015).
In this case, the statute prohibits both "utter[ing] a false prescription for a controlled substance" and "knowingly or intentionally acquir[ing] or obtain[ing] possession of a controlled substance by means of forgery, fraud, deception or subterfuge, including but not limited to the forgery or falsification of a prescription or the nondisclosure of a material fact in order to obtain a controlled substance from a practitioner."
The elements of the crime of uttering a false prescription for a controlled substance are (1) offering as genuine; (2) a prescription for a controlled substance; (3) known to be false. Cf. Commonwealth v. O'Connell, 438 Mass. 658, 663 (2003). The crime is complete whether or not the controlled substance actually is obtained from the pharmacist or other dispensing authority, but there must be a prescription for a controlled substance, offered as genuine, but known to be false. For the crime of "knowingly or intentionally acquir[ing] or obtain[ing] possession of a controlled substance by means of forgery, fraud, deception or subterfuge," the controlled substance must, in fact be obtained by "forgery, fraud, deception, or subterfuge," but there need not be a prescription, nor any proof that one was offered as genuine. Each crime, therefore, requires an element that the other does not. Compare Commonwealth v. Vick, 454 Mass. at 432-433. We are satisfied that the defendant's multiple convictions and sentences were appropriate and not duplicative.
Judgments affirmed.
By the Court (Rapoza, C.J., Milkey & Hanlon, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 26, 2015.