
    STATE of Louisiana v. Walden SCOTT.
    No. 83-KA-637.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 1984.
    Writ Granted June 15, 1984.
    
      George E. Escher, Katner & Escher, New Orleans, for appellant.
    John M. Mamoulides, Cornelius Regan, William C. Credo, III, Gretna, for appellee.
    Before KLIEBERT, CURRAULT and GAUDIN, JJ.
   GAUDIN, Judge.

Appellant is Walden A. Scott, who was convicted of obtaining a controlled dangerous substance by misrepresentation, fraud, forgery, deception or subterfuge, as prohibited by LSA-R.S. 40:971B(1).

On appeal, he assigns three errors:

(1) His motion for judgment by acquittal should have been granted,

(2) The evidence was insufficient to support a conviction, and

(3) The sentence imposed, two years in parish prison, suspended, and two years of active probation, was excessive.

Assignment (3) was neither briefed nor argued, and was therefore abandoned. See State v. Dewey, 408 So.2d 1255 (La.1982), and State v. Dirden, 430 So.2d 798 (La. App. 5th Cir.1983).

We find no merit in assignments (1) and (2), and we affirm Scott’s conviction and sentence.

Appellant was charged with violating R.S. 40:971B(1), which, in pertinent part, reads:

“It shall be unlawful for any person knowingly or intentionally:
“To acquire or obtain possession of a controlled dangerous substance by misrepresentation, fraud, forgery, deception or subterfuge ...”

This was a bench trial, and the State’s case consisted of the testimony of an arresting police officer and several significant stipulations. From this evidence, the prosecution proved that Scott entered a K-Mart pharmacy and presented a prescription for 20 percodan pills. The prescription, supposedly prepared by Dr. S.D. Bul-lard for a James Wilson, was forged. This was discovered by the druggist when he telephoned Dr. Bullard’s office for verification of the prescription and was told that the doctor had no James Wilson as a patient.

Two policemen went to the drug store and stopped Scott after he had paid for the pills and was leaving. The officer who testified said that Scott "... stated that he was picking it up for a friend.” Scott offered no further information or explanation, and he was placed under arrest.

After the officer testified, the defense moved for judgment of, acquittal, which was denied, and then rested without calling any witnesses or offering any evidence. The trial judge then found Scott guilty.

Assignments of error (1) and (2) were briefed and argued jointly. Scott’s major contention is that the State failed to prove, by direct or circumstantial evidence, that he had guilty knowledge or criminal intent.

Scott points out that he did not attempt to run away, and that this suggests a lack of guilty knowledge or criminal intent. However, Scott was stopped by two police officers, and he had no plausible opportunity to flee.

As the statute in question does not mention or require specific criminal intent, only general criminal intent must be shown. See State v. Simmons, 443 So.2d 512 (La.1983), particularly sections (10) and (11) at page 521.

General criminal intent exists when the circumstances indicate that the prohibited result may reasonably be expected to follow the offender’s voluntary acts, irrespective of any subjective thoughts or ideas he may have. See State v. Elzie, 343 So.2d 712 (La.1977); and also LSA-R.S. 14:10(2), which says:

“General criminal intent is present ... when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from the act or failure to act.”

In the instant ease, the State proved (1) that the prescription was a forgery, not written by Dr. Bullard, (2) that James Wilson was not one of the physician’s patients and (3) that Scott did pay for and obtain the controlled dangerous substance with the forged prescription.

In State v. Goiner, 410 So.2d 1085 (La. 1982), the Supreme Court of Louisiana said:

“The question of sufficiency of the evidence is a matter not for this Court, but for the jury or trial judge. However, the proof must be sufficient to convince the trier of fact of the existence of every element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 [, 99 S.Ct. 2781, 61 L.Ed.2d 560] (1979); State v. Landry, 381 So.2d 462 (La.1980); State v. Byrd, 385 So.2d 248 (La.1980).”

Here, the trial judge obviously felt that the adduced proof, which included some direct evidence along with the circumstantial evidence establishing Scott’s general criminal intent, was sufficient to prove beyond a reasonable doubt the necessary elements of the crime Scott was charged with.

On appeal, we apply the standard of review proclaimed in Jackson v. Virginia, supra, in State v. Jessie, 429 So.2d 859 (La.1983), and in numerous other Louisiana decisions. These cases hold that there was sufficient evidence for a conviction if, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

We are of the opinion that the trial judge did not err in finding the essential elements of R.S. 40:971B(1) proven beyond a reasonable doubt.

Scott would have us apply the more stringent standard of review discussed in State v. Williams, 423 So.2d 1048 (La. 1983), wherein the Supreme Court of Louisiana, citing LSA-R.S. 15:438, stated that convictions based on circumstantial evidence must exclude every reasonable hypothesis of innocence. However, the Court noted that “... the state’s case is built solely on circumstantial evidence,” unlike the case against Scott.

Also, the defendant in State v. Williams was convicted of second degree murder, a specific intent crime.

For these reasons, we affirm appellant's conviction and sentence.

AFFIRMED.

CURRAULT, J., dissenting with written reasons.

CURRAULT, Judge,

dissenting.

After a careful review of the law and evidence in this case, I disagree with the majority opinion.

The facts herein are clear that Walden Scott presented a forged prescription for and received a controlled, dangerous substance. The facts also show that neither Walden Scott nor James Wilson were patients of the physician whose signature was forged. The majority herein finds these facts sufficient to infer that defendant knew the prescription he presented to the pharmacist was forged [considering the failure of defendant to produce evidence on his own behalf of the existence of James Wilson]. I disagree.

In State v. Mitchell, 421 So.2d 851 (La. 1982), a closely analogous case, the court noted in a footnote that violation of LSA-R.S. 40:971B(1) is a general intent crime, but did not relieve the prosecution of its burden of proving every element of the offense including scienter. The court stated:

“Defendant’s explanation to arresting officers that he was ‘picking the prescription up for a friend’ suggested that he did not do so ‘knowingly’, and the state bears the burden of proving every element of the offense.
“In prior cases in which this court has reversed convictions for obtaining controlled substances with forged prescriptions, the evidence, although sufficient to prove that forged prescriptions were used, was insufficient to prove the essential scienter element. Although the instant appeal also presents a case in which the forged prescription was presented to the pharmacist by a person other than the person purportedly named in the prescription to receive the drug, defendant’s statement concerning his codeine addiction formed the basis from which a rational juror could draw the inference of guilty knowledge and could conclude beyond a reasonable doubt that defendant knowingly used a forged prescription to obtain the drug to which he was addicted.” (Emphasis added)

In Mitchell, supra, as well as State v. Custard, 384 So.2d 428 (La.1980), the inference of scienter was necessarily drawn from circumstantial evidence, as must be done in this case. In that regard, LSA-R.S. 15:438 states that if a case is to be proved by circumstantial evidence, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

The court is constrained as well by the constitutional standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) which held

that there was sufficient evidence for a conviction if after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

In determining the sufficiency of the evidence, the Louisiana Supreme Court recently set forth in State v. Wright (La.1984) 445 So.2d 1198 the methodology to be used in reconciling Jackson and LSA-R.S. 15:438. The court stated there that:

“Exclusion of every reasonable hypothesis of innocence is therefore a component of the more comprehensive reasonable doubt standard, where circumstantial evidence is used to convict. As we stated in State v. Chism, [436] So.2d [464] (La.1983), La.R.S. 15:438 ‘may not establish a stricter standard of review than the more general reasonable juror’s reasonable doubt formula, [but] it emphasizes the need for careful observance of the usual standard, and provides a helpful methodology for its implementation in cases which hinge on the evaluation of circumstantial evidence.’ ”

Applying the Wright test to the facts herein, I am of the opinion that the State did not prove the element of knowledge or intent beyond a reasonable doubt, even after viewing the evidence in the light most favorable to the prosecution. This view is supported by cases similar to the one before us previously acted upon by the Louisiana Supreme Court where the scienter was based on at least one other factor beyond the mere possession of the prescription and drugs. Furthermore, it should be pointed out that this statute is unlike LSA-R.S. 40:966 C where a showing of mere possession may be sufficient to impose a burden upon defendant to come forward with evidence of the statutory exemption in LSA-R.S. 40:966 C of the validity of the prescription. In this State under LSA-R.S. 40:971 B(l) and the jurisprudence, the defendant is under no burden to present evidence in his own behalf under these circumstances.

Therefore, for the foregoing reasons, I respectfully dissent and would reverse the conviction. 
      
      . As authorized by LSA-C.Cr.P. art. 778.
     
      
      . A controlled dangerous substance, according to stipulation and LSA-R.S. 40:964, Schedule II.
     
      
      . Mitchell, supra
      
      
        State v. Custard, supra
      
      
        State v. Raymo, 419 So.2d 858 (La.1982).
     
      
      . In pertinent part, LSA-R.S. 40:966 C states:
      "C. Possession. It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance classified in Schedule I unless such substance was obtained directly, or pursuant to a valid prescription or order from a practitioner or as provided in R.S. 49:978 while acting in the course of his professional practice, or except as otherwise authorized by this part. Any person who violates this subsection with respect to: .... ”
     
      
      .Vol. 1, Charles E. Torcía, Wharton’s Criminal Evidence § 1-264 pages 16-25 § 12 — § 16, 13th Edition (1972).
     