State v. Henthorn - 218 Wis. 2d 526, 581 N.W.2d 544 (Ct. App. 1998)

Rule:

To convict a defendant of the crime of attempted fraudulent acquisition of a controlled substance, the jurors would have to find that the defendant's actions up to and on the day in question demonstrated unequivocally - that is, that no other inference or conclusion can reasonably and fairly be drawn from the defendant's acts - that the defendant intended to fraudulently acquire the illegal drug. Stated another way, the State has to present evidence sufficient to establish beyond a reasonable doubt that under all the circumstances it was too late for the defendant to have repented and withdrawn from the ultimate criminal act.

Facts:

Defendant Linda M. Henthorn, a registered nurse, had legitimately received the prescription for thirty Tylenol 3 pills from her doctor. Defendant presented the form to the pharmacy where she regularly did business. The pharmacist noticed that the number “11” appeared in the space provided for the number of refills. Aware that a prescription for drugs containing codeine can legally be refilled only five times in a six-month period, the pharmacist contacted defendant’s doctor, learned that the prescription had been written to provide for only "1" refill, filled the order, and telephoned the police. When confronted with the incorrect form, defendant denied having altered it and stated she would never have done something that would cause her to lose her license. Defendant was convicted of attempted fraudulent acquisition of a controlled substance, under Wis. Stat. § 961.43(1)(a). Defendant appealed, arguing that the evidence was insufficient to sustain her conviction. 

Issue:

Under the circumstances, was the evidence sufficient to sustain defendant’s conviction for an attempted fraudulent acquisition of a controlled substance under Wis. Stat. § 961.43(1)(a)? 

Answer:

No.

Conclusion:

On appeal, the court held that, as a matter of law, defendant's conduct was insufficient to show that she would probably not have desisted from the criminal course. The court noted that defendant was entitled to have the prescription filled up to two times. She was arrested after she had only had it filled, legally, the first time. The court found that she would have had to return to the pharmacy a third time in order to acquire or obtain possession of the controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge, within the meaning of Wis. Stat. § 961.43(1)(a). The court noted that she could have decided, after the first legitimate refill, not to return to commit the crime. Accordingly, the court reversed the circuit court's judgment in favor of the State, which had convicted defendant of attempted fraudulent acquisition of a controlled substance.