The Akron Legal News

Woman who tried to refill dead mother-in-law's prescriptions loses appeal

ANNIE YAMSON
Special to the Legal News
Published: January 15, 2014

A split 9th District Court of Appeals panel recently affirmed the judgment of the Summit County Court of Common Pleas, which found Sherry Carson guilty of attempting to obtain a dangerous drug by deception when she tried to refill her deceased mother-in-law’s prescriptions.

According to case summary, Sherry and Scott Carson were the primary caregivers for Scott’s elderly mother, Shirley, who died May 12, 2012.

Within a couple weeks of her death, the Carsons testified they received several automated calls from the Giant Eagle pharmacy telling them that Shirley had a prescription ready to be picked up.

The calls upset Scott, so Carson promised that she would take care of it.

On June 1, 2012, Carson went to Giant Eagle to shop for groceries.

According to her, she stopped at the pharmacy counter and requested that the automated calls stop because Shirley was deceased.

The pharmacy technician, Page Bedlion, testified that Carson did not request to be removed from the system but, instead, requested that Shirley’s prescriptions be refilled.

Carson left the pharmacy to do her grocery shopping and Bedlion discovered that she could not process the prescriptions because of Shirley’s death.

She notified the pharmacist on duty, Beth Toalston, who contacted the police.

When the police arrived at Giant Eagle they located Carson in a check-out line paying for her groceries.

The officers stood near the exit and watched Carson check out and then exit the store.

She made no attempt to go back to the pharmacy to pick up any prescriptions.

The officers then followed Carson to her car and approached her.

She denied attempting to refill any prescriptions and informed the police that she requested to be removed from the automated system.

A jury found Carson guilty of attempting to obtain a dangerous drug by deception and the trial court sentenced her to six months in jail and one year of probation.

Upon appeal, Carson argued that she received ineffective assistance of counsel because her attorney failed to obtain valid phone records demonstrating that the Carsons had received automated phone calls from Giant Eagle.

The pharmacists testified that they did not have Shirley’s phone number on file and that, if she was enrolled in an automatic reminder program, it was impossible to call her.

However, Toalston testified that automated calls could have come from the Giant Eagle corporate office, which reminds patients to pick up their prescriptions if they have not claimed them after nine days.

Because there was no evidence to support that Giant Eagle had Shirley’s phone number on record, the district’s three-judge appellate panel ruled that Carson’s counsel was not ineffective.

Carson also argued that her conviction was against the manifest weight and sufficiency of the evidence, but the appellate panel disagreed.

“Viewing the evidence in a light most favorable to the prosecution, a rational juror could have concluded that Sherry requested Bedlion to refill the Vicodin prescription of her deceased mother-in-law and that request was a substantial step in procuring a dangerous drug by deception,” wrote Judge Beth Whitmore on behalf of the appellate panel’s majority.

After hearing the conflicting testimonies of Carson and Bedlion, Judge Whitmore stated that the jury chose to believe Bedlion’s version of events.

“Credibility determinations are primarily within the province of the trier of fact,” wrote Judge Whitmore. “The jury was in the best position to evaluate the credibility of the witnesses, and this court will not overturn the court’s verdict on a manifest weight of the evidence challenge simply because the jury chose to believe certain witness’ testimony over the testimony of others.”

Judge Jennifer Hensal joined Judge Whitmore to form the majority, thereby affirming the judgment of the Summit County court.

However, Presiding Judge Carla Moore wrote a dissent, where she wrote that she found it “troubling” that the jury chose to believe Bedlion’s testimony over Carson’s.

She stated that Bedlion, a pharmacy tech, had been in her position for only a couple months.

Bedlion was convinced that that she heard Carson ask to refill, not cancel, the prescriptions.

“What troubles me is that the conviction does not rise or fall on the credibility of witnesses in the strictest sense of the term,” wrote Judge Moore. “Defense counsel made clear that no one challenges that the pharmacy tech genuinely believed that she was asked to refill a prescription.”

Judge Moore wrote that, given the circumstances, it was possible and even likely that the pharmacy tech was genuinely mistaken.

“After having read every page of the trial transcript and viewed every exhibit offered or admitted into evidence, I walk away from this case deeply troubled that the life and liberty and reputation and livelihood of a person can hinge on bits and pieces of a 60-second conversation over the counter of a crowded, noisy pharmacy desk,” wrote Judge Moore.

Though there was no record of Shirley’s phone number in the local pharmacy’s system, Judge Moore stated that the evidence revealed that the local and corporate Giant Eagle offices engaged in programs to remind patients to pick up prescriptions.

Additionally, she noted that Carson left the store without making any attempt to return to the pharmacy to pick up the prescription and that the story she told the officers, who believed her, was consistent with her trial testimony and the testimony of her husband.

Finally, she pointed out that Carson had no motive to procure the drugs.

At the time, she was being treated by her own doctor for back pain and was prescribed a potent painkiller that was much stronger than anything that Shirley was prescribed.

“On the whole, I am not convinced beyond a reasonable doubt that she is guilty,” wrote Judge Moore. “In fact, I believe that the jury lost its way, and by convicting her created a manifest miscarriage of justice such that the conviction should be reversed and a new trial ordered.”

The case is cited State v. Carson, 2013-Ohio-5785.

[Back]