State of Minnesota, Appellant, vs. Tara Marie Swenson, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-6

 

 

State of Minnesota,

Appellant,

vs.

Tara Marie Swenson,

Respondent.

Filed September 2, 2003

Affirmed

Lansing, Judge

Kandiyohi County District Court

File No. K6021840

 

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Boyd Beccue, Kandiyohi County Attorney, Dain Olson, Assistant County Attorney, 415 Southwest Sixth Street, Willmar, MN  56201 (for appellant)

 

Mark D. Nyvold, 46 East Fourth Street, 1030 Minnesota Building, St. Paul, MN  55102 (for respondent)

 

 

            Considered and decided by Wright, Presiding Judge, Lansing, Judge, and Parker, Judge.*

 

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

The state appeals from a pretrial order dismissing, for lack of probable cause, a complaint charging Tara Swenson with fifth-degree controlled substance crime under Minn. Stat, § 152.025, subd. 2(2)(i) (2002).  Because we agree with the district court that Swenson's conduct did not constitute a substantial step toward procuring a controlled substance by fraud or misrepresentation within the purview of Minn. Stat. § 152.025, subd. 2(2)(i) (2002), we affirm.

F A C T S

 

The district court dismissed, for lack of probable cause, a complaint charging Tara Swenson with fifth-degree controlled-substance crime and aiding and abetting another in committing fifth-degree controlled-substance crime.  These charges arose from the alteration and presentation of an altered prescription for Lortab to the Cash Wise Pharmacy in Willmar.  Swenson appeared at the pharmacy with a friend who had a prescription for Lortab and a prescription for penicillin written by a dentist's office.  In the space to enter the number of refills on each prescription, zeros had been turned into eights.  The pharmacy manager called the dentist, who confirmed that he had ordered zero refills, rather than eight, on each prescription.  While Swenson and her friend were in the waiting area, the pharmacy contacted the police.

The responding officer spoke with both Swenson and her friend.  Swenson's friend said she was unaware of any problems with the prescriptions.  Swenson first told police that she had received her friend's prescriptions at the dentist's office and altered the number when her friend was not looking because she believed her friend needed more medication than prescribed.  The next day, Swenson again voluntarily spoke with the officer and explained that she had only advised her friend to alter the zero to an eight rather than a ten on each prescription, gave her a pen to make the change, and then told her that the altered prescriptions "looked fine."

Lortab is a controlled substance classified as a Schedule III narcotic, and Swenson was charged, by amended complaint, with Fifth Degree Controlled Substance Crime and Fifth Degree Controlled Substance CrimeLiability for Crimes of Another in violation of Minn. Stats. § 152.025, subd, 2(2) (i) and § 609.05, subd. 1 (2002).  The district court dismissed the complaint for lack of probable cause, concluding that the refill alteration was mere preparation for the crime and that neither Swenson nor her friend attempted to obtain more than the initially authorized prescription amount.  This appeal followed.

D E C I S I O N

 

            The state may appeal an order dismissing a complaint for lack of probable cause when the order is based on a legal determination.  State v. Edwards. 589 N.W.2d 807, 810 (Minn. App. 1999), review denied (Minn. May 18, 1999).  The review of the legal determination is de novo.  State v. Marshall, 541 N.W.2d 330, 332 (Minn. App. 1995), review denied (Minn. Feb. 27, 1996).  A probable cause dismissal is a pretrial order that will be reversed on appeal only if the state demonstrates that the district court clearly and unequivocally erred in its judgment, and that the error will have a critical impact on the outcome of the trial unless reversed.  Minn. R. Crim. P. 28.04; State v. Trei, 624 N.W.2d 595, 597 (Minn. App. 2001), review dismissed (Minn. June 22, 2001).  Because the dismissal of a complaint prevents a charge from going forward, it satisfies the critical impact requirement.  Id.

            "A person is guilty of controlled substance crime in the fifth degree if . . . the person procures, attempts to procure, possesses, or has control over a controlled substance by . . . fraud, deceit, misrepresentation, or subterfuge."  Minn. Stat. § 152.025, subd. 2 (2)(i) (2002).  In Minnesota, criminal attempt requires both an "intent to commit a crime" and a "substantial step toward, and more than preparation for, the commission of the crime."  Minn. Stat. § 609.17, subd. 1 (2002).  Therefore, we review the district court's order dismissing for lack of probable cause by determining whether, by participating in the alteration of the number of refills on the prescription and presenting the prescription to be filled, Swenson intended to commit controlled substance crime and whether her acts constituted a substantial step toward committing the crime. 

            Minnesota appellate courts have not applied the current statute governing controlled substance crime in the fifth degree, Minn. Stat. § 152.025, to alteration and presentation of an altered prescription.  The previous provision in Minn. Stat. § 618.18 prohibited "attempt[s] to obtain a narcotic drug . . . by the forgery or alteration of a prescription . . . ."  Minn. Stat. § 618.18 (1967).  In 1971 the Minnesota legislature repealed Minn. Stat. § 618.18 and replaced it with Minn. Stat. § 152.09, subd. 2, which was enacted as part of the Uniform Controlled Substances Act of 1971.  See 1971 Minn. Laws ch. 937, § 22.  In this process the legislature omitted specific references to forgery or alteration of a prescription and substituted the more general language that "it shall be unlawful . . . to procure, attempt to procure . . . a controlled substance by . . . fraud, deceit, misrepresentation or subterfuge."  Minn. Stat. § 152.09, subd. 2(1) (1971).  This provision is materially similar to the current statute.  See Minn. Stat. § 152.025, subd. 2(2)(i) (2002).

            Three cases decided under the predecessor statutes are instructive on claims of insufficient evidence.  In State v. Seifert, 354 N.W.2d 432 (Minn. 1984), the Minnesota Supreme Court, applying Minn. Stat. § 152.09, held that the evidence was sufficient to convict the defendant of procuring a controlled substance by fraud when the evidence showed "that [the] defendant went from Minneapolis to Duluth and, through intentional material misstatements and omissions of fact, obtained four prescriptions for [a controlled substance], from four different doctors in a 2-day period."  Id. at  432.  In the second case, State v. LaClair, 264 N.W.2d 808 (Minn. 1978), the supreme court rejected a sufficiency-of-the evidence challenge under Minn. Stat. § 152.09 and the comparable attempt statute when the evidence showed that the prescription the defendant attempted to fill was forged, and the name and address of the patient written on the prescription were false.  LaClair, 264 N.W.2d at 809. In the third case, State v. DeGidio, 277 Minn. 218, 152 N.W.2d 179 (1967), the supreme court upheld the conviction of a defendant under Minn. Stat. § 618.18 for presenting a forged prescription for a high number of narcotic tablets.  The court concluded that the evidence showed the defendant had knowledge that the prescription was forged when he presented the prescription, he was not a patient of the doctor whose forged signature appeared on the prescription, and he tried to escape from apprehension by police.  DeGidio, 277 Minn. at 222, 152 N.W.2d at 182.

The common thread in Seifert, LaClair, and DeGidio, is that the defendants had no authority to obtain any controlled substance under the prescriptionin other words, the prescription was forged at the inception, rather than altered in an attempt to obtain more than a legally-authorized amount of a legally-prescribed drug.  Swenson, on the other hand, participated in presenting a prescription that, although altered, had validly authorized what they sought to obtain at the presentationthe prescribed dose.  By altering the number of refills, Swenson's friend, aided by Swenson, attempted to create a future opportunity to get more of a drug than was legally prescribed, not to procure a drug that was completely unauthorized.

            Under Minnesota law, an attempt requires both intent and a substantial step, beyond mere preparation, toward the commission of the crime.  Minn. Stat. § 609.17, subd. 1 (2002); Trei, 624 N.W.2d at 598.  Intent may be proved by circumstantial evidence, including the conduct of the defendant.  Davis v. State, 595 N.W.2d 520, 525-26 (Minn. 1999).  "An attempt requires that the actor have an intent to perform acts and attain a result which if accomplished would constitute the crime."  State v. Zupetz, 322 N.W.2d 730, 735 (Minn. 1982) (quotation omitted).  We conclude that by intentionally assisting in altering the prescription to provide for more refills than authorized, Swenson had the requisite intent to procure Lortab in an illegal quantity. 

But we agree with the district court that her conduct did not yet amount to a substantial step toward illegally procuring the controlled substance.  In defining attempt under Minn. Stat. § 609.17, it has been noted that "[t]he [required] overt acts . . . must . . . be something more than mere preparation, remote from the time and place of the intended crime . . . ."  Minn. Stat. Ann. § 609.17, advisory comm. cmt. (2003), citing State v. Dumas, 118 Minn. 77, 136 N.W. 311 (1912).  In this case, the first presentation of the prescription, if successful, would have resulted in Swenson's friend obtaining only the legally authorized dose of Lortab that was prescribed by the dentist.  It would not have been until the second appearance at the pharmacy when an attempt was made to obtain a refill that an illegal quantity of the drug could have been obtained.  This would of necessity occur at a time subsequent to the original attempt to fill the prescription.  See, e.g., State v. Henthorn, 581 N.W.2d 544 (Wis. App. 1998) (holding that conduct of defendant in forging a prescription but seeking only the first, legally authorized amount of medication was insufficient to constitute an attempt under Wisconsin attempt statute), review denied (Wis. June 12, 1998).

Because an attempt to procure a controlled substance by fraud under the prescription would necessarily occur in the future, we must also consider the possibility of abandonment.  It is a defense to a charge of an attempted crime that the defendant abandoned the intent to commit it.  Minn. Stat. § 609.17, subd. 3 (2002).  "This defense is made a part of the Minnesota Criminal Code because ‘[i]t is believed . . . to be desirable to encourage the voluntary good faith withdrawal from the commission of the crime.'"  State v. Cox, 278 N.W.2d 62, 66 (Minn. 1979) (citation omitted).  In this case, the prescription was not written in Swenson's name.  Before any second visit to the pharmacy, Swenson would have had ample time to rethink her actions and might not have been present or even had knowledge of an attempt by her friend to procure the illegal refill of Lortab at a later date.  To conclude that the evidence is sufficient to demonstrate that Swenson took a substantial step toward procuring a controlled substance by fraud requires a stronger link between her current conduct and her future conduct than the evidence in this record can support.

We conclude that Swenson's acts of advising her friend on how to alter the prescription and accompanying the friend to present the prescription to the pharmacy do not, for Swenson, form a substantial step beyond mere preparation toward unlawfully procuring a controlled substance.  Therefore, we affirm the district court's dismissal of the controlled-substance-crime charges against Swenson for lack of probable cause.

Affirmed.

 

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.