Zacharie Pierre Comeau v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Felton, Kelsey and Senior Judge Willis
Argued at Richmond, Virginia
ZACHARIE PIERRE COMEAU
MEMORANDUM OPINION * BY
v. Record No. 1290-02-2 JUDGE D. ARTHUR KELSEY
JUNE 17, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Gary A. Hicks, Judge
Robert P. Geary for appellant.
Amy Hay Schwab, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
The trial court found the appellant, Zacharie Pierre Comeau,
guilty of aiding and abetting prescription fraud under Code
§ 18.2-258.1. On appeal, Comeau contends that the evidence proved
neither that any prescription fraud took place nor that he aided
and abetted any such fraud. Comeau also contends that the trial
court erred by permitting a pharmacist to testify about a sign-out
log used in the pharamacy. Finding no error, we affirm the trial
court.
*Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
On appeal, we review the evidence "in the light most
favorable to the Commonwealth." Kingsbur v. Commonwealth, 40
Va. App. 307, 308, 579 S.E.2d 357, 358 (2003). That principle
requires us to "discard the evidence of the accused in conflict
with that of the Commonwealth, and regard as true all the
credible evidence favorable to the Commonwealth and all fair
inferences that may be drawn therefrom." Holsapple v.
Commonwealth, 39 Va. App. 522, 528, 574 S.E.2d 756, 758-59
(2003) (en banc) (citation omitted).
On December 19, 2001, Comeau accompanied his live-in
girlfriend, Betty Ann Nuzzo, to the Westbury Pharmacy to have
her prescriptions refilled. Charles Williams, a pharmacy clerk,
worked the front counter that day. Nuzzo identified herself and
asked Williams for her prescriptions. Williams looked under the
"N" section of an alphabetical prescription bin and found a bag
for Nuzzo containing three medications: Augmentin, an
antibiotic, and Ibuprofen and Feuregon, both pain medications.
Feuregon contains codeine, a Schedule II controlled substance as
defined in Code § 54.1-3448. Nuzzo signed on a log sheet
verifying her receipt of the prescriptions. Nuzzo and Comeau
then returned to their home and, as Nuzzo testified, shared the
"entire batch of the pills" to get high.
The next day Nuzzo and Comeau returned to the pharmacy and
again approached Williams. Nuzzo told Williams she needed to
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pick up some prescriptions. Williams checked the "N" section of
the prescription bin and found no medications under her name.
Williams remembered that Nuzzo and Comeau had picked up
prescriptions the day before and asked Nuzzo whether she had
already picked up her medications. In Comeau's presence, Nuzzo
replied: "Well, no I didn't." 1 Comeau said nothing. Williams
called for a pharmacist to come forward and talk with Nuzzo.
Teresa Harris, a pharmacist at Westbury Pharmacy, came to
the counter. Nuzzo said she was "looking for seven"
prescriptions. Harris, who had not worked the day before, tried
to find the pharmacy log sheet. Unable to find it, Harris
double-checked the prescription bin to ensure that the
prescriptions were not incorrectly filed under the wrong name.
Finding no prescriptions for Nuzzo, Harris checked the computer
to see if the prescriptions had been filled. The computer
records noted that seven prescriptions had been ordered for
1
At another point in his testimony, Williams also said he
remembered Nuzzo stating, "them ain't the ones I was looking
for." Comeau argues that this refutes Williams's later
statement that Nuzzo unequivocally denied receiving any
prescriptions the day before. We disagree. At most, Williams's
testimony involves some internal inconsistency. The trial
court, however, "heard the witnesses testify and was in closer
touch with the situation than the appellate court, which is
limited to a review of the written record." Ferguson v. Grubb,
39 Va. App. 549, 557, 574 S.E.2d 769, 772 (2003). As fact
finder, the trial court was "free to believe and disbelieve in
part or in whole the testimony of any witness." Yellardy v.
Commonwealth, 38 Va. App. 19, 22, 561 S.E.2d 739, 741 (2002);
see also Montague v. Commonwealth, 40 Va. App. 430, 436, 579
S.E.2d 667, ___ (2003).
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Nuzzo and that three prescription labels had been printed the
day before. The computer records, however, did not show whether
Nuzzo had received these three medications.
Harris attempted to make sense of the situation with Nuzzo.
During this encounter, Comeau injected himself into the
conversation and became "very mouthy." He attempted to hurry
things along by complaining that he was "tired of waiting" and
that the whole episode was "ludicrous" and "just ridiculous."
Purporting to speak on behalf of Nuzzo as well as himself,
Comeau railed, "we shouldn't have to be put through this." "Is
this the way business is normally taken care?," Comeau
complained. All the while, Harris was attempting ——
unsuccessfully —— to find out if Nuzzo had received the
Augmentin, Ibuprofen, and Feuregon the day before. At no point
did Nuzzo or Comeau truthfully answer this question.
While Harris was looking on the computer, another
pharmacist remembered that she had filled the prescriptions for
Augmentin, Ibuprofen, and Feuregon the day before. Under
pharmacy policy, however, "if a patient says they didn't get
it," the pharmacist refills the prescription. Relying on
Nuzzo's denial that she received any medications, Harris
refilled the prescriptions for Augmentin, Ibuprofen, and
Feuregon, along with two of the four other prescriptions in
Nuzzo's profile. After reviewing the prescriptions, Nuzzo
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refused two of the seven when she learned that that she would
have to pay for those two out of pocket.
Comeau and Nuzzo returned home and took all of the
codeine-laced pain pills. In the meantime, Harris found the
prescription sign-out log for December 19, proving that Nuzzo
had received Augmentin, Ibuprofen, and Feuregon on that day.
Harris called Nuzzo and asked her to return those three
medications. Nuzzo and Comeau returned to the store, bringing
only the Augmentin. Comeau was "very belligerent" and "was
cussing." When asked where the Ibuprofen and Feuregon were,
Comeau stated, "You know, we took them. I took them. I took
the Feuregon." The pharmacy manager called the police while
Comeau and Nuzzo "stormed out" of the store.
Officer H.A. Gordon of the Henrico Police responded to the
pharmacy's call and went to Nuzzo's house where he interviewed
Nuzzo and Comeau. Comeau admitted that the pharmacy "gave us
the same medicine as they did the first day." He took the
position, however, that "it was their fault, not ours." Nuzzo
admitted that she and Comeau immediately "went home" and "took
the medicine." Comeau also admitted that he got "high from it"
and that he was "wasted right now." Nuzzo and Comeau were
arrested, charged, and convicted of prescription fraud under
Code § 18.2-258.1.
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II.
When faced with a challenge to the sufficiency of the
evidence, we "presume the judgment of the trial court to be
correct" and reverse only if the trial court's decision is
"plainly wrong or without evidence to support it." Wright v.
Commonwealth, 39 Va. App. 698, 703, 576 S.E.2d 242, 244 (2003)
(citations omitted); see also McGee v. Commonwealth, 25 Va. App.
193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc).
When a jury decides the case, Code § 8.01-680 requires that
"we review the jury's decision to see if reasonable jurors could
have made the choices that the jury did make. We let the
decision stand unless we conclude no rational juror could have
reached that decision." Pease v. Commonwealth, 39 Va. App. 342,
355, 573 S.E.2d 272, 278 (2002) (en banc). The same standard
applies when a trial judge sits as the fact finder because the
"judgment of a trial court sitting without a jury is entitled to
the same weight as a jury verdict." Cairns v. Commonwealth, 40
Va. App. 271, 293, 579 S.E.2d 340, 351 (2003) (citation
omitted); see also Shackleford v. Commonwealth, 262 Va. 196,
209, 547 S.E.2d 899, 907 (2001). 2
2
Unless the fact finder acted unreasonably, we consider it
our duty not to "substitute our judgment for that of the trier
of fact, even were our opinion to differ." Wactor v.
Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002)
(citation omitted); see also Mohajer v. Commonwealth, 40
Va. App. 312, 321, 579 S.E.2d 359, 364 (2003) (en banc) ("On
review of a claim asserting the sufficiency of the evidence,
this Court does not substitute its judgment for that of the
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In other words, a reviewing court does not "ask itself
whether it believes that the evidence at the trial established
guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S.
307, 318-19 (1979) (emphasis in original and citation omitted).
Instead, the relevant question is whether "any rational trier of
fact could have found the essential elements of the crime beyond
a reasonable doubt." Id. at 319 (emphasis in original). This
deference applies not only to the historical facts themselves,
but the inferences from those facts as well. "The inferences to
be drawn from proven facts, so long as they are reasonable, are
within the province of the trier of fact." Hancock v.
Commonwealth, 12 Va. App. 774, 783, 407 S.E.2d 301, 306 (1991).
Governed by this standard of review, we find the evidence
sufficient to support Comeau's conviction for aiding and
abetting prescription fraud. When asked on December 20 whether
she had received prescriptions on the 19th, Nuzzo said she had
not. In fact, she had. The pharmacist relied on this
misrepresentation when she refilled these same prescriptions on
the 20th. Nuzzo thereby obtained prescription medications "by
fraud, deceit, misrepresentation" or "subterfuge" or by
"concealment of a material fact" in violation of Code
trier of fact."); Pease, 39 Va. App. at 355, 573 S.E.2d at 278.
Thus, on appeal from a bench trial, if "reasonable jurists could
disagree about the probative force of the facts, we have no
authority to substitute our views for those of the trial judge."
Campbell v. Commonwealth, 39 Va. App. 180, 186, 571 S.E.2d 906,
909 (2002).
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§ 18.2-258.1(A)(i), (iii). Nuzzo's criminal culpability,
therefore, establishes the first predicate for Comeau's
liability as a principal in the second degree. See Taylor v.
Commonwealth, 260 Va. 683, 688, 537 S.E.2d 592, 594 (2000)
(recognizing that "before the accessory to a crime can be
convicted as such, it must be shown that the crime has been
committed by the principal").
It must also be shown, however, that Comeau was "present at
the commission of a crime, inciting, encouraging, advising or
assisting in the act" for him to be treated as an aider and
abettor. Id. The evidence supports the trial court's finding
on this issue as well. Comeau was with Nuzzo, his girlfriend,
on the 19th and 20th. Comeau had used the prescriptions
obtained on the 19th to get "high," and he also accompanied
Nuzzo on the 20th. He stood silently beside Nuzzo when she lied
about having not received any prescriptions on the 19th and then
injected himself into the conversation, in a belligerent and
distracting manner, when the pharmacist attempted to find out
the truth. Comeau also said nothing when the pharmacist, based
upon Nuzzo's misrepresentation, gave them a second set of pain
medications. Comeau and Nuzzo then used the medications to "get
high" as soon as they got home.
On appeal, Comeau claims the entire episode was simply a
misunderstanding. The trial court, however, construed Comeau's
behavior —— particularly his effort to distract and intimidate
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the pharmacist as she attempted to discover the truth —— as
evidence that Comeau "encouraged, countenanced, or approved
commission of the crime." Smith v. Commonwealth, 33 Va. App.
65, 70-71, 531 S.E.2d 608, 610 (2000) (quoting Rollston v.
Commonwealth, 11 Va. App. 535, 539, 399 S.E.2d 823, 825 (1991)).
Because this finding is not irrational, nor the facts underlying
it insufficient, we affirm.
B.
Comeau also contends that the trial court erred by permitting
Harris, the pharmacist on duty on December 20, to testify about
the pharmacy's sign-out log. Doing so, Comeau contends, violates
the "shopbook rule" governing admission of business records. We
disagree.
The Commonwealth offered the logs as exhibits during
Williams's testimony. Comeau initially objected "subject to cross
examination." After cross and redirect examination, the trial
court asked, "Any further objection to the documents from Mr.
Williams?" "No, Your Honor," Comeau's counsel replied, "I don't
have any objection." The trial court then admitted the logs into
evidence as exhibits.
Later, during Harris's testimony, the Commonwealth gave
Harris the logs and asked her to read the entries made for
December 19. Comeau objected, claiming the shopbook exception to
the hearsay rule did not apply to Harris because she was not a
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"custodian" of the logs. The trial court properly overruled this
objection. The logs had already been admitted, without objection,
into evidence. The requirements of the shopbook exception govern
the question whether a business record should be admitted, 3
not whether a knowledgeable witness may testify about the record
once it has been admitted. It matters not, therefore, whether
Harris could satisfy the custodian test for establishing the
admissibility of the sign-out logs. They had already been
admitted before Harris was asked any questions about them.
Harris's personal knowledge of the logs, based upon her daily use
of them, provided the requisite foundation for her testimony.
III.
Finding that sufficient evidence supports Comeau's conviction
and that the trial court properly overruled Comeau's evidentiary
objections, we affirm.
Affirmed.
3
The "modern 'shopbook' rule or business records exception
to the hearsay rule . . . allows introduction 'into evidence of
verified regular [business] entries without requiring proof from
the original observers or record keepers.'" Sparks v.
Commonwealth, 24 Va. App. 279, 282, 482 S.E.2d 69, 70 (1997)
(bracketed material in original); see also Kent Sinclair, Joseph
C. Kearfott, Paul F. Sheridan & Edward J. Imwinkelried, Virginia
Evidentiary Foundations § 9.4, at 303 (1998).
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