Robinson v. State
678 P.2d 374
Wyo.
1984
Check Treatment

*1 nоndisclosure, including the of a use immaterial forged prescription. was defrauded or druggist druggists,

deceived. intent is not the or doctors Instead, legisla- it was the illegal sale of intention to control

ture’s the crime

drugs. In order that committed, be no victim there need

may be necessity no there is therefore a victim specific intent to defraud

proving It therefore large.

other than the of reliance is not

follows that the element about aspect of the “fraud”

an essential the court’s instruc-

which the statute and speak. ROBINSON, Appellant

Betty Dee

(Defendant), Appellee Wyoming,

The STATE (Plaintiff).

No. 83-207.

Supreme Court Munker, Defend-

Leonard D. State Public Hackl, Counsel, er, Sylvia Appellate Lee McClain, Appellate and Martin J. Counsel, Wyoming Pro- Public Defender gram, Cheyenne, appellant. *2 McClintock, Gen., Atty. Gerald A. dispensed A.G. was not poliсe until arrived. Gen., Stack, Deputy Atty. pharmacist John W. Ren- When the appellant asked neisen, Gen., name, Atty. she Roger Cox,” Sr. Asst. Fran- stated that she was “Janet sen, Gen., Atty. police and when Cheyenne, stopped for officers her after she had received the opium lee. tincture of she told them her name was Cox” ‍‌​​‌​​​‌‌​‌‌‌‌​‌​‌​​​‌​‌​‌‌​‌‌‌​‌‌​‌‌‌‌‌​‌‌‌​​​‌‍“Betty and ROONEY, C.J., THOMAS, Before and that “Janet Cox” was her aunt. ROSE, CARDINE, BROWN and JJ. Appellant accompanied police officers Cronin to tion that her sentence was The fraudulent appeal is that charged appeal and the first issue in the case at bar 1033(a)(iii), W.S.1977, ingly ROSE, Justice. Except “(a) of sentation, fraud, forgery, deception or “(iii) only It is unlawful for [*] сontrolled substance the defendant was Cronin in To in law and Cronin difference between the intentionally: means, acquire [*] appellant “aiding the violation of [*] 678 P.2d or obtain fact, Robinson’s conten- any person [*] almost identical provides: excessivе, abetting,” by by misrepre- possession [*] § (1984). know- 35-7- ;|: this for a short misrepresentations to the association with Ms. Cronin and the circum- told stances under which she had the prescrip- tion filled. was follows: one to The defendant trolled its discretion in presented here.” “2. Whether ment of the crime of “1. Whether “Betty police police substanсe officers the full story of her Cox.” When station, reliance is a the district court abused identifies the issues as years upon in maintaining became apparent, whеre she fraud. necessary futility Appellant the facts persisted that she a con- of her ele- she subterfuge;” Issue No. where here defendant Robinson is Reliancе —An Element of Fraud? with the direct violation of the statute Cro question was decided through fraud. State, supra. nin There we held that not reliance is necessary elemеnt of the FACTS crime of a controlled substance Appellant Robinson rode to Gillette with § fraud, 7—1033(a)(iii), in violation of 35— friend, Cronin, Judy morning on the That will be our on this 14, 1983. When the two of them appeal. this We review our rea Gillette, they stopped cup arrived briefly. sons coffee, gave at which Ms. Cronin question The was intended to appеllant prescription written for “Janet protect drug abuse and its opium money Cox” for tincture of doctors, purpose protect was drug not to pay They for it. then drove to the Oseo gists from fraud. State v. drug store and Ms. Robinson went inside to Osborn, 573, 773, Ariz.App. 494 P.2d prescription. fill the Livingston, State v. prescription presented, When the Statе v. 469 P.2d pharmacist suspicious. became She called Blea, 20 Utah 2d Schmunk, Douglas physician Dr. Lee, A.L.R.3d 1113 signature whose form and over whose Wash.2d written, prescription was who denied hav- ing treated or writing pre- necessary “Janet Cox” While reliance is a ele fraud, Soulis, scription. Dr. Johnson v. phar- Schmunk advised the ment of civil fill macist to and to call the this is not police investigate. proof officers to prescrip- so where of the violation of the stat- Issue No. 2 describing the crime involved

ute is concerned. at bar case Sentencing Abuse of Discretion In the John, Mo., 544 citing Process Where the violation presently This court is the throes of chargеd, the result is a criminal statute attempting to delineate stan- same, person sought to be dards, judges Wyoming and the district misrepresenta- dialogue engaged are also which will aid defrauded acted *3 bringing uniformity sentencing. more to This is so defendant or not. tions of the meantime, In we turn to what said the proscription of focus is on the thе because State, Wyo., v. Wright illegal drugs (1983): 1093 “' * * * through any untruthfulness or “ * * * generally recognized that a [I]t nondisclosure, not the means whether or imposed sentence is for one or more of .. employed constitutes “fraud” (1) rehabilitation, (2) ‍‌​​‌​​​‌‌​‌‌‌‌​‌​‌​​​‌​‌​‌‌​‌‌‌​‌‌​‌‌‌‌‌​‌‌‌​​​‌‍pun- purposes: four ” John, sense.’ the technical State (specific ishment deterrence and retribu- 8, quоting from v. 544 P.2d at State tion), (3) (general example to others de- 2 Livingston, (4) terrence), society removal (incapacitation pub- or of the lic.)” Holden, Mo.Apр., v. See also State McFall, “pur- In where we set out these (1977); Wright, v. 5 Ariz. poses” sentencing, we reannounced (1967). Where the

App. 428 P.2d 1013 rule that we do not follow the common-law nar defendant was which holds that deceit, the court in through fraud or cotics ... subject a sentence is not to McFall, supra, it was held that by if it is limits set late review had immateriаl whether a technical fraud legislature.” the 670 P.2d at 1091. committed, and said: been We then went on to reiterate the oft-stated druggist was “Whether the defrauded rule of this court whеn we said: deceived, we hold to be immaterial to long ago “As as we indicated that long made here. So as nar- charges the modify legal sentence if the wе would by person knowing- are obtained cotics impos trial abused its discretion in court using forged prescription ly —that Sorrentino, Wyo. it. State v. purportedly made in the out then, 253 P. Since we have person by name of a authorized law to repeatedly set forth the fact that a sen § 36-1006, prescriptions, A.R.S. but tence will be reviewеd for abuse of dis person in fact written another without State, Wyo., 505 Cavanagh cretion. v. authority any to so act—we hold the (1973); State, Wyo., P.2d 311 Peterson v. (Em- particular сomplete.” crime to State, be (1978); Sanchez v. added.) (1979); phasis 428 P.2d at 1020. P.2d 1130 v. Wyo., 592 Jones State, (1979); Wyo., 602 P.2d 378 Buck bar, In the case defendant State, (1979); Wyo., v. 603 P.2d 878 Sor attempted drugs illegally through to obtain State, Wyo., 604 P.2d 1031 enson v. fraudulent and deceitful means as are such State, (1979); Wyo., P.2d Kenney v. is, therefore, ‍‌​​‌​​​‌‌​‌‌‌‌​‌​‌​​​‌​‌​‌‌​‌‌‌​‌‌​‌‌‌‌‌​‌‌‌​​​‌‍prohibited It (1980); State, Wyo., Scheikofsky v. necessary that not the fraudulent effort be Stаte, 636 P.2d 1107 v. Daniel since it is the rather than relied Wyo., Taylor 644 P.2d 172 v. pharmacist that seeks to State, Wyo., 658 P.2d 1297 protect. For further rationale and State, citation Wyo., Eaton v. (1983).” authority, State, supra. see v. 670 P.2d at 1092. conсern's, State, Wright understanding In v. of Justice Thomas’ Justice Thomas took position adopted opinion agreed that this court has in fact here that the rule author exрressing the common-law rule. While is, therefore, and, given court the sentence that in authority judge imposed, that we retain the court the facts surrounding the quire judge whethеr a district has abused crime and habits of Ms. Robinson that led discretion, sentencing commission, we will his or her but her to its we are say unable to to have been abused judge nоt find discretion district court abused his to conclude in the when we are able discretion.

sentencing process, judge has con purposes enumer sidered State, supra, and has

ated THOMAS, Justice, specially concurring. applied them to the facts of the case disposition I concur in the of both issues way. reasonаble agree in this case and that the ‍‌​​‌​​​‌‌​‌‌‌‌​‌​‌​​​‌​‌​‌‌​‌‌‌​‌‌​‌‌‌‌‌​‌‌‌​​​‌‍brings are us to this case. We and sentence must be affirmed. Since the judge asked here to find that the trial opinion Wyo., court’s hе abused his discretion when sentenced 670 P.2d 1090 was filed the court years Ms. Robinson to one Ventling has decided *4 Wyoming violating Women’s case, Center and this in both of question. The rеcord shows that adjusted which the court has not sentences drug problem has a Ms. Robinson that statutory were within the limits. Fur- marijuana ampheta the use of thermore, includes January this court mines, strongly and the record indicates granting rehearing entered order cope she has not been able to with or Under these cir- problem. solve her The record reveals cumstances I at this cannot recede dependence order to sustain espoused from the which I drugs, upon she committed a fraud my concur- people state such deceitful respect rence with to the sentence in this means and devices as are considered to bе premised upon case is the fact that it was in violation of the laws of statutory limits.

judge was to observe Ms. able Robinson

during presentence read the the trial—he

investigation report, heard the recommen prosecuting attorney

dations attorney,

defense and he heard Ms. Robin testify sentencing hearing.

son All

of this information was available to the suggested ‍‌​​‌​​​‌‌​‌‌‌‌​‌​‌​​​‌​‌​‌‌​‌‌‌​‌‌​‌‌‌‌‌​‌‌‌​​​‌‍by majority disagree- application Wright.

is as with its to the facts in