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Roussel v. State (06/24/2005) ap-1989
Roussel v. State (06/24/2005) ap-1989
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
NOEL LEO ROUSSEL, )
) Court of Appeals No.A-8742
Appellant, ) Trial Court No. 3AN-03-912 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1989 June 24, 2005]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: Sharon Barr, Assistant Public
Defender, and Barbara K. Brink, Public
Defender, Anchorage, for the Appellant.
Kenneth J. Diemer, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Gregg D. Renkes,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
Noel Leo Roussel was convicted by a jury of several
counts of fourth-degree misconduct involving a controlled
substance.1 Roussel claims that the superior court should have
granted a mistrial sua sponte, but we reject that claim because
Roussel has not shown plain error. Roussel next claims that the
superior court should have granted his motion for a mistrial, but
we reject that claim because we conclude that the superior court
did not abuse its discretion when it denied the motion. We
reject Roussels cumulative error claim because he has not shown
any error by the court. Finally, Roussel claims that there is
insufficient evidence in the record to support his convictions.
But viewing the evidence in the light most favorable to the
State, we conclude that there is adequate evidence in the record.
Because we reject Roussels claims, we affirm the judgment of the
superior court.
Background Facts and Proceedings
On January 15, 2003, Roussel visited the office of Dr.
Sean Taylor, ostensibly seeking treatment for back pain. Roussel
completed a lengthy questionnaire and returned to Dr. Taylors
office on January 21, 2003. Roussel asked Dr. Taylor to
prescribe Oxycontin and Methadone for his back condition, but
Dr. Taylor gave Roussel a prescription for Ultracet and Bextra
because he was concerned about prescribing Oxycontin, a narcotic.
That same day, Roussel presented a prescription for
Oxycontin and Xanax (ostensibly signed by Dr. Taylor) at the Wal-
Mart pharmacy on A Street in Anchorage. (Oxycontin was
misspelled Oxycotton on the prescription.) The pharmacist filled
the prescription.
Two days later, January 23, 2003, Roussel presented
another prescription for Oxycontin and Xanax (again ostensibly
signed by Dr. Taylor) at the Wal-Mart pharmacy on Dimond
Boulevard in Anchorage. Yunga Vercelline, a pharmacist working
at the Dimond Wal-Mart pharmacy, attempted to contact Dr. Taylors
office to verify the prescription, but the office was closed.
The next day that Dr. Taylors office was open,
Vercelline spoke with a nurse in the office and was told that Dr.
Taylor had not prescribed any Oxycontin for Roussel. Dr. Taylor
contacted the Anchorage Police Department and reported the
discrepancy.
Anchorage Police Officer Arazeli Jones contacted
Roussel at his residence. After Officer Jones had advised
Roussel of his Miranda rights,2 Roussel waived his rights and
admitted that he had taken blank prescription forms from Dr.
Taylors office and had written false prescriptions for Oxycontin
and Xanax. Roussel also admitted he had taken the forged
prescriptions to the Wal-Mart pharmacies and had presented the
false prescriptions to obtain drugs. Officer Jones arrested
Roussel.
The grand jury indicted Roussel on four counts of
fourth-degree misconduct involving a controlled substance. Count
I charged Roussel with obtaining possession of Oxycontin by fraud
when he filled the false prescription at the A Street Wal-Mart.3
Count II charged Roussel with obtaining possession of Xanax by
fraud at the same time.4 Count III charged Roussel with
possessing 25 or more tablets of Xanax.5 Count IV charged
Roussel with possessing Oxycontin.6
The State also filed an information charging Roussel
with four misdemeanor counts of attempted fourth-degree
misconduct involving a controlled substance arising out of
Roussels presentation of the false prescriptions at the Dimond
Wal-Mart. Two of those counts were based on attempted possession
of any amount of Oxycontin7 and 25 or more tablets of Xanax.8
Two were based on attempted possession of Oxycontin and Xanax by
misrepresentation, fraud, forgery, deception or subterfuge.9
Superior Court Judge Larry D. Card dismissed Counts III
and IV of the indictment when an evidentiary problem developed
during trial. The jury convicted Roussel on the remaining six
counts.
Did the superior court plainly err by not granting a
mistrial?
As we noted above, Counts III and IV of the indictment
charged Roussel with knowingly possessing Xanax and Oxycontin,
respectively, on January 21, 2003. During opening statement, the
prosecutor claimed that Roussel had illegally filled
prescriptions for these two drugs at the A Street Wal-Mart.
While questioning Anchorage Police Officer Roger Nelson, the
prosecutor asked the officer to identify two pill containers that
Officer Nelson had found in Roussels bedroom after he had been
arrested. In one container, the police found Xanax; in the
other, Oxycontin.
The prosecutor moved to admit both containers. Roussel
objected. Outside the presence of the jury, he pointed out that
the containers were not dispensed by Wal-Mart but were filled at
a Carrs pharmacy on January 26, 2003. (Thus, the location of the
pharmacy and the date the prescriptions were filled differed from
the evidence supporting Counts III and IV of the indictment.)
Roussel argued that there was a variance problem and
Judge Card provided the prosecutor with a copy of Michael v.
State.10 In Michael, the Alaska Supreme Court reversed Michaels
conviction because there was a prejudicial variance between the
crime charged in the indictment and the crime for which the trial
jury convicted Michael.11
But the case never proceeded to verdict on Counts III
and IV. Instead, the prosecutor conceded that the State had a
problem presenting evidence on Counts III and IV. He admitted
that he could not go forward on Counts III and IV. Judge Card
asked the prosecutor if those two counts would have to be
dismissed. The prosecutor agreed they would.
Judge Card told counsel that he would tell the jury
that he had sustained Roussels objections and that the counts
were dismissed. Roussel was apparently satisfied with the
result, because he did not request any additional relief before
Judge Card informed the jury that he had sustained Roussels
objection and had dismissed Counts III and IV. Judge Card
instructed the jury that those counts were not to be considered
as part of this case.
Roussel now argues that Judge Card should have granted
a mistrial on all the remaining counts. He claims that the
admission of the irrelevant and prejudicial evidence of [the]
prescription bottles negated his defense. He also argues that
the jury was prejudiced by hearing evidence of other invalid
prescriptions.
But Roussel did not ask for any additional relief after
Judge Card sustained his objections and dismissed the two counts
after the State conceded that it could not proceed on those two
counts. Indeed, with apparent relish, Roussels attorney
announced that he would contend that the police investigation was
incompetence with a capital I. Roussel acknowledges that
he has to show plain error. That is, he must show that no
competent judge would have believed that the problem that
developed when the State tried to admit the prescription
containers from Carrs could have been addressed by any solution
other than granting a mistrial.
But we have warned trial judges, repeatedly, to be very
cautious before ordering a mistrial that the defendant has not
requested. Under the double jeopardy clauses, if a trial judge
declares a mistrial sua sponte when there is no manifest
necessity for the mistrial, the charges against the defendant
must be dismissed.12
Here, Roussel prevented the State from admitting the
prescription containers that the prosecutor apparently believed
had been obtained from Wal-Mart. Roussel recognized the tactical
advantage this mistake gave him in addition to the dismissal of
Counts III and IV. The State did not have prescription
containers with pills to admit into evidence that were directly
connected to the charges in the indictment. Roussel was also in
a position to argue that the police investigation was flawed.
After Judge Card had sustained Roussels objection and
dismissed Counts III and IV, Roussel never asked for any
additional relief. He did not then seek a mistrial on the
remaining counts. He did not ask Judge Card to give any
additional instruction to the jury. We conclude that Roussel has
not shown plain error.
Did the superior court abuse its discretion when it
failed to grant Roussels mistrial motion?
During the States case, Yunga Vercelline, the
pharmacist at the Dimond Wal-Mart, testified that she had been
working on January 23rd when Roussel presented prescriptions at
the Wal-Mart pharmacy on Dimond Boulevard. Vercelline stated
that she was standing next to a co-worker when Roussel gave the
co-worker his name and contact information. Vercelline testified
that she recognized Roussels name from when she had worked at
another Wal-Mart store. Vercelline testified that hearing
Roussels name:
[k]ind of raised a red flag, and I sort of
paid attention to what was going on next to
me. When Mr. Roussel was walking away I had
I looked over and I discussed the
prescriptions with the with the other
pharmacist. I said we have known to have had
problems in the past with this patient.
Roussel immediately objected and Judge Card sustained
the objection. Roussel asked the court to strike the testimony.
Judge Card struck the testimony and immediately instructed the
jury: Ladies and gentlemen, you should use that information for
no purpose at all. Do you understand? It has no bearing on this
case.
The State rested its case shortly after this testimony.
Roussels attorney informed the court that Roussel would not be
presenting a case. Roussel moved for a mistrial because of
Vercellines testimony that the pharmacy had had problems with
Roussel in the past.
Judge Card denied Roussels motion for a mistrial
because he felt that Vercellines testimony did not necessarily
communicate to the jury that Roussel had presented false
prescriptions in the past. Judge Card explained:
[Vercelline] said weve had some problems in
the past with Mr. Roussel. She didnt
indicate what kind of problems shes had, and
I know shes a pharmac[ist] but it doesnt mean
that shes had bad prescriptions. She didnt
say that. She just said weve had some
problems. She did not specify ... [T]here
may be some other problems. I dont know
whether its problems with billing, I dont
know whether its problems with personalities,
I really dont know. But it was very vague,
and Im willing to give an instruction. Im
not willing to grant a mistrial on the basis
of that information.
Judge Card also found that there was no need for a
mistrial because Roussel had elicited testimony from a previous
witness that Roussel had presented valid prescriptions in the
past. Judge Card offered to give a cautionary instruction to the
jury, but Roussel asked that one not be given.
On appeal, Roussel argues that the trial court erred by
refusing to grant a mistrial. Roussel claims that the only
plausible conclusion to draw from the testimony was that Roussel
had presented invalid prescriptions in the past.
We review a trial judges decision on a motion for a
mistrial for abuse of discretion.13 We will reverse the trial
judges decision only when, after reviewing the whole record, we
are left with a definite and firm conviction that the trial court
erred in its ruling.14
Here, the witness offered a comment that she knew of
past problems with Roussel without specifying the nature of the
problems. Judge Card sustained Roussels objection, ordered the
evidence stricken, and gave the jury an immediate cautionary
instruction. While it is possible that the jury might infer that
Roussels past problems involved prescriptions, Judge Card acted
immediately and told the jury to disregard the testimony.
Roussel did not ask for any additional instruction from Judge
Card, who was in the best position to analyze the potential
impact of the testimony that he had stricken. After our review
of the record, we are not able to say that Judge Card abused his
discretion when he denied a mistrial.
Roussel has not shown cumulative error
In addition to his other arguments, Roussel claims that
we should reverse his convictions because of the cumulative
impact of Judge Cards errors. Cumulative error requires reversal
only when the impact of errors at trial is so prejudicial that
the defendant was deprived of a fair trial, even if each
individual error was harmless.15 But we have rejected each claim
of error presented by Roussel. Therefore, his claim of
cumulative error fails.
Sufficient evidence supports the convictions
At the close of evidence, Roussel moved for a judgment
of acquittal on Counts I and II on the ground that the State had
not presented any physical evidence to prove that Roussel had
obtained possession of Oxycontin or Xanax, as charged in the
indictment. Roussel also moved that the State be forced to
choose two of Counts V through VIII on the ground that those
counts were duplicate. Roussel argued that Counts V and VIII
were duplicate because those counts alleged knowing possession of
Xanax and obtaining possession of Xanax through fraud, etc.,
respectively. Roussel argued that Counts VI and VII were
duplicate because those counts alleged knowing possession of
Oxycontin and obtaining possession of Oxycontin through fraud.
Judge Card denied Roussels motion.
When we review the denial of a motion for a judgment of
acquittal, we view the evidence presented at trial and the
reasonable inferences from the evidence in the light most
favorable to the State. Viewing the evidence in this manner, we
must determine whether a fair-minded juror exercising reasonable
judgment could conclude that the State met its burden of proving
guilt beyond a reasonable doubt.16
Roussel argues that there was insufficient evidence to
support his conviction because the State did not present any
pills into evidence, because the State did not present evidence
as to how Roussel could have obtained blank prescription pads
from Dr. Taylors office, and because the State did not present
video evidence that he was the person that presented the false
prescriptions. But Roussels arguments imply that the State must
prove each element of its charge by direct evidence. This
implication is wrong. We apply the same standard of review
whether the conviction is based on circumstantial evidence or
direct evidence.17
The State presented sufficient evidence that Roussel
committed the crimes with which he was charged. Dr. Taylor
testified that he did not prescribe Oxycontin or Xanax to Roussel
and that he did not give Roussel blank prescription pads. In
addition, Tamara Spek, a pharmacist at the A Street Wal-Mart,
testified that she filled a prescription purportedly endorsed by
Dr. Taylor that was presented by Roussel for Oxycontin and Xanax
on January 21, 2003. Spek identified Roussel in the courtroom as
the man who had presented those prescriptions. Spek stated that
she was familiar with Dr. Taylors signature, and that, although
she did not look closely at the signature on the day she filled
the prescriptions in question, the signature was not that of Dr.
Taylor.
The State also presented Yunga Vercellines testimony.
Vercelline testified that she phoned Dr. Taylors office to verify
that Dr. Taylor prescribed Oxycontin for Roussel. Vercelline
testified that she had spoken to a nurse at Dr. Taylors office
and that the nurse had told her that no one from that office had
prescribed Oxycontin for Roussel. Vercelline identified Roussel
as the person who had presented the false prescriptions to her
pharmacy.
The State also called Anchorage Police Officers Arazeli
Jones and David Koch, who testified that Roussel admitted that he
had taken a prescription pad from Dr. Taylors office, forged Dr.
Taylors signature, and presented the prescriptions to pharmacies
to obtain drugs. Although the police did not tape record
Roussels statement admitting that he had committed the crimes,
both police officers present at Roussels residence testified that
Roussel had admitted to the crimes.
Viewing the evidence in the light most favorable to the
State, we conclude that fair-minded jurors using reasonable
judgment could find that the State had established Roussels guilt
beyond a reasonable doubt.18 Therefore, we reject Roussels
insufficient evidence claim.
Conclusion
The judgment of the superior court is AFFIRMED.
_______________________________
1 AS 11.71.040(a).
2 See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966).
3 AS 11.71.040(a)(9).
4 Id.
5 AS 11.71.040(a)(3)(B).
6 AS 11.71.040(a)(3)(A).
7 AS 11.71.040(a)(3)(A); AS 11.31.100(d)(5); AS
11.71.040(d).
8 AS 11.71.040(a)(3)(B); AS 11.31.100(d)(5); AS
11.71.040(d).
9 AS 11.71.140(a)(9); AS 11.31.100(d)(5); AS 11.71.040(d).
10 805 P.2d 371 (Alaska 1991).
11 Id. at 373-74.
12 See Cook v. State, 36 P.3d 710, 729 (Alaska App. 2001);
Riney v. State, 935 P.2d 828, 838-39 (Alaska App. 1997); Nelson
v. State, 874 P.2d 298, 308 (Alaska App. 1994); March v. State,
859 P.2d 714, 717 (Alaska App. 1993).
13 See Walker v. State, 652 P.2d 88, 92 (Alaska 1982); Roth
v. State, 626 P.2d 583, 585 (Alaska App. 1981).
14 See Hamilton v. State, 59 P.3d 760, 769 (Alaska App.
2002).
15 See Drumbarger v. State, 716 P.2d 6, 16 (Alaska App.
1986).
16 See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Deal
v. State, 657 P.2d 404, 405 (Alaska App. 1983).
17 Ashley v. State, 6 P.3d at 738, 743 (Alaska App. 2000).
18 See Dorman, 622 P.2d at 453; Deal, 657 P.2d at 405.
