VICKIE SUE KING v. COMMONWEALTH OF KENTUCKY
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RENDERED:
September 7, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001302-MR
VICKIE SUE KING
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LEWIS G. PAISLEY, JUDGE
ACTION NO. 98-CR-01109
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
KNOPF, SCHRODER, AND TACKETT, JUDGES.
TACKETT, JUDGE:
Vickie Sue King appeals from the judgment of the
Fayette Circuit Court, finding her guilty of obtaining a
controlled substance by fraud, a class D felony, for which she
was sentenced to fourteen months in prison, probated by the
court.
On appeal, King raises several issues, ranging from the
court’s failure to grant a directed verdict to alleged errors in
several evidentiary rulings.
We affirm.
On September 1, 1998, Officer Thomas Johnston of the
Lexington Urban County Police Department was dispatched to Saint
Joseph Hospital to respond to a report of someone attempting to
obtain medication by giving false information.
King had given
the hospital a social security number that was different from the
number on her driver’s license.
When the officer performed a
records check, the number on her driver’s license, 406-35-6893,
returned the name “Vickie Hubbard”.
The number she gave the
hospital, 402-96-4227, however, returned no record.
King told
Officer Johnston that the other names and numbers the hospital
had for her were incorrect; that she had married Ricky King on
July 31, 1998; and that she had not changed her records.
Officer
Johnston furher testified that he checked a number she had
previously given the hospital on July 27, 1998, when she checked
in under the name “Vickie Hodge”.
ex-husband, Donald Hubbard.
That number belonged to her
Officer Johnston arrested King, and
on search incident to lawful arrest he found a receipt from
August 17, 1998, from Central Baptist Hospital listing her as
Vickie King and showing a different address than the one given to
Saint Joseph Hospital on the day of her arrest.
She also had a
Medicaid identification card bearing the number 402-96-4227 and
the name “Vickie Hubbard.”
At trial, Valerie Adkins, an emergency room nurse at
Saint Joseph, testified in reference to King’s records from the
day of her arrest.
Adkins noted a discrepancy in “patient
statistics,” wherein she was given a chart from August 26, 1998,
when King, giving her name as “Vickie Hubbard”, was seen in the
emergency room for pain in her shoulder caused by a fall for
which she was prescribed Lortab and Soma, both controlled
substances.
Also, another record showed that she had been seen
under the name Vickie Hodge on July 27, 1998, and was prescribed
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Vicodin for right rib pain.
The physician on duty, Dr. Geren,
requested that Adkins contact the police after Adkins brought it
to his attention.
Cheryl Mansfield, an emergency room nurse at Central
Baptist Hospital in Lexington, testified that King had been
treated for flank pain and given morphine intravenously on August
12, 1998.
She had been treated there earlier with the same
symptoms on August 9 and 10, 1998, when she was prescribed Tylox
and Dilaudid.
She was seen again on August 17, 1998, and
received another prescription for Tylox.
Mansfield stated that
she was seen again on November 8, 1998, with the same symptoms,
after her indictment, and given morphine.
Dr. Darryl Pauley, who
treated King at Central Baptist, testified that when she was seen
on August 9, she was diagnosed with a probable kidney stone and
also had blood in her urine.
Dr. Joseph Richardson, an emergency room physician at
Saint Joseph, testified that when he treated King on July 27,
1998, for a gall bladder complaint, she exhibited “marked drugseeking behavior.”
Richardson explained that King displayed a
very dramatic behavior change when she found out about the number
of drugs being prescribed for her husband, who was also being
treated in the emergency room that day.
She believed that an
insufficient quantity had been prescribed and suggested that
Richardson give her husband 50 to 500 Cortab tablets.
She also
objected (Richardson characterized it as a “tongue lashing”) when
she realized she was being prescribed Vicodin, which is a mild
narcotic.
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Detective Lynn Thompson testified regarding the value
of the substances when sold illegally, and the methods drug
dealers in general employ to obtain controlled substances.
However, there were no allegations that King had in fact sold the
substances she obtained.
A defense objection to Thompson’s
testimony was overruled.
In her defense King denied misrepresenting her name,
address, or social security number to obtain prescriptions.
She
claimed that Ricky King signed her into Saint Joseph as Vickie
Hodge and that she signed in at Central Baptist as Vickie King in
order to use his insurance.
She denied that she told Dr.
Richardson to give her husband 500 narcotic pills; she also
claimed to have no knowledge of how the hospitals obtained social
security numbers that were not hers.
The jury found King guilty and sentenced her to
fourteen months in prison.
trial court for five years.
The sentence was probated by the
This appeal followed.
King makes several assignments of error on appeal.
She
claims that the trial court should have granted her motion for
directed verdict; that the court should have excluded the
testimony of Officer Johnston as investigative hearsay; that the
court should have excluded the hospital records as hearsay under
Rabovsky v. Commonwealth, Ky., 973 S.W.2d 6 (1998); that the
court should have sustained her objection to Dr. Richardson’s
testimony regarding her “drug-seeking behavior;” and lastly that
the court should have prevented Detective Thompson from
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testifying in general terms about the drug trade.
On these
issues we find no reversible error.
Turning first to King’s motion for directed verdict, we
hold that the trial court properly denied her motion.
When
presented with a motion for a directed verdict, the trial court
must draw all fair and reasonable inferences from the evidence in
favor of the Commonwealth.
S.W.2d 186, 187 (1991).
Commonwealth v. Benham, Ky., 816
If the evidence is sufficient to induce
a reasonable juror to believe beyond a reasonable doubt that the
defendant is guilty of the charged offense, the motion must be
denied.
The trial judge may grant the motion only if the
prosecution produces no more than a “mere scintilla” of evidence.
Id. at 187-88.
In this case, the evidence was clearly sufficient
for a reasonable jury to infer that King acted with intent to
obtain a controlled substance by fraud.
The motion for a
directed verdict was properly denied.
In reference to the testimony of Officer Johnston, the
arresting officer, the issue of hearsay was not properly
preserved for appeal by a timely objection.
Under the
constraints of Kentucky Rules of Criminal Procedure (Rcr) 10.26,
we may consider an unpreserved error only when palpable error
exists, an error affecting the substantial rights of a party.
Berg v. Commonwealth, Ky. App., 20 S.W.3d 475, 478 (2000).
Here,
King argues that the officer’s statement that he “felt like she
was there to obtain pain medication with false information”
constitutes no more than a statement of the reason he placed her
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under arrest.
Its admission does not rise to the level of
palpable error, and accordingly we decline to review the issue.
Turning to the question of whether the hospital records
were admissible, we hold that the records were properly admitted.
King relies on Rabovsky v. Commonwealth, supra, for the
proposition that the hospital records should not have been
admitted because no one knew how the information contained within
them had been obtained.
We disagree with King’s interpretation
of the holding in Rabovsky.
In Rabovsky, a murder conviction was
reversed by the Kentucky Supreme Court due to the total failure
of the Commonwealth to establish a chain of custody of blood
samples taken from the victim.
The Rabovsky case has everything
to do with admission of records to show the chain of custody of
physical evidence, but nothing to do with the admission of
hospital records in general.
The chain of custody issue present
in Rabovsky is simply not present in this case.
The general rule
approving the admission of such records, found in Buckler v.
Commonwealth, Ky., 541 S.W.2d 935 (1976), is applicable here.
Rabovsky does not create an exception to the general rule, and so
we apply the general rule here and hold that the trial court was
correct in admitting the records.
Turning next to the question of Dr. Richardson’s
testimony regarding King’s alleged “drug seeking” behavior, we
hold that it was error to admit the statement over King’s
objections; however, the error was harmless in light of the
evidence against her.
Dr. Richardson made several statements
which King claims constitutes reversible error: his notation that
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she displayed “marked drug seeking behavior” on her chart; her
“very dramatic” behavior change in the emergency room in
discussing the potency and quantity of the drugs prescribed;
including that she seemed to have specific, stronger drugs in
mind; his testimony that he sees 5 to 10 people each day in the
emergency room that he suspects of drug seeking; and that drug
seeking is a problem nationally and that the majority of drug
seekers sell the drugs they obtain.
Of these, it was error only
to admit the latter; however, in light of the evidence against
her, the error was harmless.
King was not prejudiced in the way
that she claims by Dr. Richardson’s testimony.
King claims that
the Commonwealth used this testimony to label her as a “drug
seeker” or even as a drug trafficker, and then proceeded to try a
“drug seeker” for the offense.
We disagree.
The evidence was
sufficient, even without that statement, to convict her of the
offense.
Further, the light sentence imposed by the jury
indicates that their verdict was not the product of passion and
prejudice.
Finally, King claims that Detective Thompson’s
testimony with regard to prescription drug fraud in general was
inadmissible.
We agree that the relevance of the testimony was
questionable.
Detective Thomspon testified to several matters
that were not at issue in the trial, including the street value
of the substances King obtained.
The trial court should have
limited Detective Thompson’s testimony to the facts at issue in
the case; however, any error in admitting the testimony of the
detective was harmless.
No prejudice to the defendant resulted
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from the admission of the irrelevant portions of Detective
Thompson’s testimony, and the trial court did not abuse its
discretion in failing to exclude the relevant portions of the
detective’s testimony under KRE 403.
Brock v. Commonwealth, Ky.,
947 S.W.2d 24, 29 (1997).
For the foregoing reasons, the judgment of the Fayette
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
V. Gene Lewter
Lexington, Kentucky
Albert B. Chandler, III
Attorney General of Kentucky
James G. Noll
Reynolds & Noll, PLLC
Lancaster, Kentucky
Samuel J. Floyd, Jr.
Assistant Attorney General
Frankfort, Kentucky
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