Opinion
No. 25078.
Dated: September 15, 2010.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 09 03 0787.
Mark H. Ludwig, Attorney at Law, for Appellant.
Sherri Bevan Walsh, Prosecuting Attorney, and Heaven Dimartino, Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
{¶ 1} Defendant-Appellant Cecilia A. Hartney appeals from her convictions in the Summit County Court of Common Pleas. For the reasons set forth below, we affirm.
BACKGROUND
{¶ 2} Hartney began to see Dr. Richard Pitt in August 2007 for chronic pain associated with arthritis. As part of Dr. Pitt's standard procedure, during Hartney's first visit on August 7, 2007, Dr. Pitt had Hartney sign a controlled substance contract, whereby, inter alia, Hartney agreed that "[a]ny controlled medication(s) [she was] taking [could] only be prescribed by Richard L. Pitt D.O." Dr. Pitt also explained the contract to Hartney. Dr. Pitt then wrote Hartney a prescription for two-hundred forty, five milligram tablets of Roxicodone, a trade name for oxycodone. Unbeknownst to Dr. Pitt, Hartney was also receiving medical treatment from Dr. Todd Lisy, who was prescribing hydrocodone, also known as Vicodin. Hartney did not disclose to Dr. Pitt her ongoing association with Dr. Lisy and her receipt of prescriptions.
For ease of analysis, any time that testimony refers to either oxycodone or Roxicodone, we will refer to that substance only as oxycodone.
For ease of analysis, any time that testimony refers to either hydrocodone or Vicodin, we refer to that substance only as Vicodin.
{¶ 3} On three subsequent visits, Dr. Pitt wrote additional prescriptions for oxycodone. On the fifth visit, on December 18, 2007, Dr. Pitt ordered a random drug test on Hartney. During that same visit, and prior to receiving the results of the drug test, Dr. Pitt wrote Hartney an additional prescription for oxycodone.
{¶ 4} The drug test results indicated that not only did Hartney have oxycodone in her system, she also had Vicodin, which Dr. Pitt had not prescribed to Hartney. On Hartney's next visit, Dr. Pitt discussed the issue with Hartney. Hartney explained that she had Vicodin left over from a prior prescription. Dr. Pitt then reviewed the controlled substance contract with Hartney and told her to destroy the medication. Notwithstanding this discussion, Hartney did not reveal her continued association with Dr. Lisy nor her receipt of prescriptions for Vicodin.
{¶ 5} Dr. Pitt drug tested Hartney again on April 17, 2008. The results showed that Hartney had Vicodin in her system, but not oxycodone. Based upon those results, Dr. Pitt sent Hartney a letter terminating her as a patient. Additionally, Dr. Pitt contacted the authorities concerning Hartney and her drug test results.
{¶ 6} Hartney was indicted on five counts of deception to obtain a dangerous drug in violation of R.C. 2925.22, felonies of the third degree. The case proceeded to a jury trial, and the jury found Hartney guilty on all counts. Hartney was sentenced to an aggregate term of three years in prison.
{¶ 7} Hartney has appealed to this Court, raising four assignments of error for our review.
SUFFICIENCY
{¶ 8} In her first assignment of error, Hartney argues that her convictions are not supported by sufficient evidence, as the State did not prove the element of deception. We disagree.
{¶ 9} Whether a conviction is supported by sufficient evidence is a question of law that we review de novo. State v. Williams, 9th Dist. No. 24731, 2009-Ohio-6955, at ¶ 18, citing State v. Thompkins (1997), 78 Ohio St.3d 380, 386. The relevant inquiry is whether the prosecution has met its burden of production by presenting sufficient evidence to sustain a conviction. Thompkins, 78 Ohio St.3d at 390 (Cook, J., concurring). In reviewing the evidence, we do not evaluate credibility and make all reasonable inferences in favor of the State. State v. Jenks (1991), 61 Ohio St.3d 259, 273. The State's evidence is sufficient if, when viewing the evidence in a light most favorable to the prosecution, it allows the jury to reasonably conclude that the essential elements of the charged crime were proven beyond a reasonable doubt. Id.
{¶ 10} At the time Hartney committed the offenses, R.C. 2925.22(A) provided that "[n]o person, by deception, as defined in section 2913.01 of the Revised Code, shall procure the administration of, a prescription for, or the dispensing of, a dangerous drug or shall possess an uncompleted preprinted prescription blank used for writing a prescription for a dangerous drug."
"'Deception' means knowingly deceiving another or causing another to be deceived by any false or misleading representation, by withholding information, by preventing another from acquiring information, or by any other conduct, act, or omission that creates, confirms, or perpetuates a false impression in another, including a false impression as to law, value, state of mind, or other objective or subjective fact." R.C. 2913.01(A).
"A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist." R.C. 2901.22(B).
{¶ 11} Hartney claims that the State failed to produce sufficient evidence of the element of deception because Dr. Pitt did not affirmatively state that he was deceived by Hartney when asked. As Hartney disputes only the element of deception, we will focus our analysis on this point.
{¶ 12} Dr. Pitt testified that he began seeing Hartney on August 7, 2007. On that date, he had Hartney sign a controlled substance contract, which he asks every patient to do so that he could "know where [the patients are] obtaining medicines from." The contract provided that only Dr. Pitt could prescribe controlled medications, that unannounced drug tests could be performed, that Hartney was to use only one pharmacy to fill controlled medication prescriptions, and that suspected abuse would be reported. Dr. Pitt went over the contract with Hartney and asked her if she understood it.
{¶ 13} Dr. Pitt also asked Hartney to complete a medication log listing all the medications she was taking. The log did not list Vicodin. However, on cross examination, Dr. Pitt noted that his progress note from the first visit listed Vicodin as a medication Hartney was taking. Dr. Pitt further testified that Hartney never told him Dr. Lisy was prescribing her Vicodin. In addition, when Hartney signed a release of medical records form, Hartney did not fill in a physician from whom the records should be released, and thus Dr. Pitt did not obtain any of Hartney's medical records.
{¶ 14} During that first visit, Dr. Pitt wrote Hartney a prescription for two-hundred forty, five milligram tablets of oxycodone. Although Dr. Pitt discussed the controlled substance contract with Hartney she did not disclose her relationship with Dr. Lisy and did not reveal the fact that Dr. Lisy had prescribed Vicodin approximately eleven days before her initial visit with Dr. Pitt. In addition, twenty days following her initial visit with Dr. Pitt, Hartney saw Dr. Lisy. During that visit, Dr. Lisy continued to prescribe Vicodin. Dr. Pitt testified that he would not have prescribed the medication to Hartney if he had known that she was receiving Vicodin from Dr. Lisy. Over time, and during subsequent visits, Dr. Pitt wrote four additional prescriptions for Hartney for similar amounts of oxycodone, each of which he testified he would not have prescribed had he known she was receiving Vicodin from Dr. Lisy. During the fifth visit, on December 18, 2007, Dr. Pitt drug tested Hartney. He did not receive the results that day and so continued to prescribe Hartney oxycodone.
{¶ 15} The results indicated that Hartney had oxycodone and Vicodin in her system, despite the fact that Dr. Pitt had not prescribed Vicodin. On the next visit, Dr. Pitt questioned Hartney about the Vicodin, which she explained by saying it was from a prior prescription. Dr. Pitt again went over the controlled substance contract with Hartney, told her to destroy the medication, and explained that if she were to go to another doctor and that doctor wanted to prescribe her a controlled medication that doctor should contact Dr. Pitt. Hartney did not mention Dr. Lisy.
{¶ 16} Dr. Pitt again had Hartney drug tested on April 17, 2008. Those results revealed that there was no oxycodone in Hartney's system but there was Vicodin present. Due to this discrepancy between what Dr. Pitt had prescribed and what was in Hartney's system, Dr. Pitt sent Hartney a letter terminating her as a patient and reported the information to the authorities.
{¶ 17} In addition to the testimony of Dr. Pitt, the State presented the testimony of five pharmacists who testified concerning prescriptions made out to Hartney that were filled at the pharmacists' respective pharmacies. From the testimony, a clear pattern emerges with respect to Hartney's behavior; Hartney would obtain a prescription from Dr. Lisy for Vicodin which would be filled at an Acme Pharmacy and paid for using insurance. Within several days to a couple weeks from that time, Hartney would obtain a prescription for oxycodone from Dr. Pitt which would be filled at a Wal-mart or Klein's pharmacy and generally paid for with cash. One of the pharmacists testified that if someone paid with cash for controlled substances at a different pharmacy chain, the pharmacist would have no knowledge of it; however, if that person used insurance to fill prescriptions for controlled substances at both chains, the computer would alert the pharmacist to that fact.
{¶ 18} Finally, Detective Mike Anderson, a detective with the City of Cuyahoga Falls testified for the State. Detective Anderson explained that he became involved in the case after Dr. Pitt contacted him and asked him to run an OARRS report. He explained that when individuals fill prescriptions for controlled substances, pharmacies are required to report that information to the State and that doctors, pharmacists, and law enforcement officers can run a report which contains a list of that information. Detective Anderson ran an OARRS report and proceeded to discuss some of the various prescriptions listed on the report. He noted that Hartney's behavior of paying cash for prescriptions from one doctor at one pharmacy and using insurance for prescriptions from another doctor at a different pharmacy was typical of people who were "trying to hide the fact that they're getting more narcotics than they're supposed to."
"OARRS" is an acronym for Ohio automated prescription reporting system.
{¶ 19} Viewing the evidence in a light most favorable to the prosecution, we conclude that the State presented sufficient evidence, if believed, to establish beyond a reasonable doubt the element of deception. The testimony evidences that during the period from August through December 2007, prescriptions made out to Hartney were filled for oxycodone from Dr. Pitt and for Vicodin from Dr. Lisy. Hartney signed a contract stating that "[a]ny controlled medication(s) [she was] taking [could] only be prescribed by Richard L. Pitt D.O." While Dr. Pitt's notes indicate that Hartney initially disclosed the use of Vicodin, based on the contract and Dr. Pitt's testimony, it would be reasonable to conclude that Hartney knew that she should not continue to take Vicodin or receive Vicodin prescriptions from another physician. Hartney never told Dr. Pitt that she was seeing Dr. Lisy or continuing to get prescriptions from him. Both of Hartney's drug tests indicated the presence of Vicodin, which Dr. Pitt did not prescribe. Dr. Pitt stated that he would not have prescribed the oxycodone if he had known that Hartney was receiving Vicodin from Dr. Lisy. Finally, Detective Anderson testified that Hartney's behavior of paying for the Vicodin with insurance at one set of pharmacies and paying for the oxycodone with cash at a different set of pharmacies was characteristic of someone "trying to hide the fact that [he or she is] getting more narcotics than [he or she is] supposed to." Despite the evidence, Hartney argues that the State failed to present sufficient evidence of deception because Dr. Pitt did not affirmatively state that he was deceived in response to a specific question as to whether he was deceived. However, Hartney's argument is more properly directed to the weight of the evidence rather than its sufficiency. We conclude that the State presented sufficient evidence to demonstrate that Hartney knowingly withheld information from Dr. Pitt, thereby deceiving him, in order to obtain prescriptions for oxycodone. See, also, State v. Newland, 5th Dist. No. 08-CA-17, 2009-Ohio-1340, at ¶¶ 17-23; State v. Mouser, 12th Dist. No. CA2003-05-013, 2004-Ohio-2295 at ¶¶ 21-33. We therefore overrule Hartney's first assignment of error.
MANIFEST WEIGHT OF THE EVIDENCE
{¶ 20} Hartney also argues that her convictions were against the manifest weight of the evidence. We disagree.
{¶ 21} When determining whether a conviction is supported by the manifest weight of the evidence,
"an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Cepec, 9th Dist. No. 04CA0075-M, 2005-Ohio-2395, at ¶ 6, quoting State v. Otten (1986), 33 Ohio App.3d 339, 340.
We must only invoke the discretionary power to grant a new trial in "extraordinary circumstances when the evidence presented weighs heavily in favor of the defendant." State v. Flynn, 9th Dist. No. 06CA0096-M, 2007-Ohio-6210, at ¶ 9, citing Otten, 33 Ohio App.3d at 340. When reviewing a conviction pursuant to the manifest weight standard, we must determine whether the State met its burden of persuasion. Cepec at ¶ 6.
{¶ 22} To the extent that Hartney reiterates arguments made in support of her sufficiency argument, after independently reviewing and weighing the evidence, which is detailed above, we conclude that the jury's conclusion that Hartney obtained five prescriptions for oxycodone via deception was not against the manifest weight of the evidence.
{¶ 23} Hartney also argues that the drug test reports should be given no weight because they contain a disclaimer that reads:
"DISCLAIMER: If either the patient or the physician has failed to provide a dosage and/or frequency for any medication listed above, those columns will appear blank. IN SUCH CIRCUMSTANCES, AMERITOX, LTD. MAKES NO REPRESENTATION AS TO THE ACCURACY OF THE EXPECTED RANGE OR FPIA INTERPRETATION FOR THAT PARTICULAR MONITORED MEDICATION."
Thus, Hartney essentially argues that if the drug test reports were absent from the record, and therefore not available for consideration by the jury, Hartney's convictions would be against the manifest weight of the evidence. This argument does not persuade us.
{¶ 24} Even if Hartney is correct that the reports should be given no weight, we cannot say that her convictions are against the manifest weight of the evidence. The State presented the jury with the testimony of five pharmacists as well as copies of prescriptions from both Dr. Lisy and Dr. Pitt for both Vicodin and oxycodone which were issued during the same time periods; time periods during which Hartney was only supposed to be receiving prescriptions for controlled substances from Dr. Pitt. Based upon all the remaining evidence presented to the jury, and giving no weight to the drug test reports themselves, we cannot say that the jury lost its way in convicting Hartney of five counts of deception to obtain dangerous drugs. We therefore overrule Hartney's second assignment of error.
OHIO AUTOMATED PRESCRIPTION REPORTING SYSTEM
{¶ 25} Hartney argues in her third assignment of error that the trial court erred in admitting the OARRS report as there was no proper foundation for it and its admission violated the Confrontation Clause. Hartney objected to the admission of the report as evidence, but did not object to Detective Anderson's testimony connected to the reports and does not appear to argue on appeal that his testimony was improper.
{¶ 26} Assuming, without deciding, that it was improper to admit the OARRS report, we conclude that any error in doing so was harmless. Pursuant to Crim. R. 52(A), harmless error is "[a]ny error, defect, irregularity, or variance which does not affect substantial rights[.]" The Supreme Court of Ohio has held that "[b]efore constitutional error can be considered harmless, we must be able to declare a belief that it was harmless beyond a reasonable doubt." (Internal quotation and citation omitted.) State v. Brown (1992), 65 Ohio St.3d 483, 485.
{¶ 27} In the instant matter, Detective Anderson testified concerning the relevant portions of the report; thus, the actual admission of the report essentially provided the jury with cumulative evidence. In addition, five different pharmacists testified concerning the relevant prescriptions in the report which were made out to Hartney from Dr. Pitt and Dr. Lisy for oxycodone and Vicodin and in most instances, the pharmacists also testified as the method of payment. Each of the five pharmacists was subject to cross-examination and the prescriptions and the prescription signature logs were admitted into evidence. Hartney has not challenged on appeal their testimony or the admission of the prescriptions or the signature logs. Thus, even without the admission of the OARRS report, the jury had before it much of the same information contained within that report from the testimony of Detective Anderson, Dr. Pitt, and the five pharmacists. Thus, we conclude any error in admitting the OARRS report was harmless and overrule Hartney's third assignment of error.
INEFFECTIVE ASSISTANCE OF COUNSEL
{¶ 28} In Hartney's fourth assignment of error, she asserts that her trial counsel was ineffective in failing to file a motion to suppress where the arrest warrant was void as it was facially invalid. We disagree.
{¶ 29} "To obtain a reversal of a conviction on the basis of ineffective assistance of counsel, the defendant must prove (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding." State v. Madrigal (2000), 87 Ohio St.3d 378, 388-89, citing Strickland v. Washington (1984), 466 U.S. 668, 687-88.
"'To establish ineffective assistance of counsel for failure to file a motion to suppress, a defendant must prove that there was a basis to suppress the evidence in question.' Even if there is a reasonable probability that the motion would have been granted, the failure to pursue it cannot be prejudicial unless there is also a reasonable probability that, without the excluded evidence, the defendant would have been acquitted." (Internal citation omitted.) State v. Rucker, 9th Dist. No. 25081, 2010-Ohio-3005, at ¶ 46, quoting State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, at ¶ 65.
{¶ 30} Here assuming, without deciding, that the warrant for Hartney's arrest was facially invalid and thereby void, Hartney has not pointed to any evidence which should have been suppressed. Instead, Hartney asserts that because the arrest warrant was void, she should not have been indicted. That argument, however, sounds as if Hartney is arguing that the case against her should have been dismissed, not that evidence should have been suppressed. Thus, as Hartney has not pointed to evidence that should have been suppressed, we cannot say that trial counsel was ineffective in failing to file a motion to suppress evidence. Therefore, we overrule Hartney's fourth assignment of error.
CONCLUSION
{¶ 31} In light of the foregoing, we affirm the judgment of the Summit County Court of Common Pleas.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App. R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App. R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App. R. 30.
Costs taxed to Appellant.
DICKINSON, P. J. MOORE, J. CONCUR.