OPINION
Errоl Melvin Thomason, appellant, was tried by jury and convicted of Attempting to Obtain a Controlled Dangerous Substanсe by Altered Prescription (
On March 11, 1986, appellant saw a physician for lower back рain and received three prescriptions, one for ten (10) tablets of Tylenol # 3, a controlled dangerоus substance containing one-half grain of codeine per tablet. Later that afternoon, just before сlosing, appellant presented a prescription to a pharmacist for forty (40) tablets of Tylenol # 3. Thе pharmacist called the doctor to confirm the quantity, at which time the doctor informed the pharmaсist that he had written the prescription for ten (10) tablets, not for forty (40) tablets. The pharmacist refused to fill the prescription. Appellant demanded return of the prescription if the pharmacist were not going to fill it, and upon receipt of the document, hurriedly left the store.
At trial appellant’s wife testified she destroyed the original of the prescription. Appellant defended on the theory of mistake: that the prescription had gotten wet in the rain as he entered the store and the ink ran, blurring the quantity. The State entered into evidence without objection a copy of the prescription. Both the pharmacist and the store owner testified the prescription was not wet when presented to them and the figure “40” clearly appeared on its face.
For his first assignment of error, appellant asserts the prosecutor committed reversible error by twice defining the term “beyond a reasonable doubt” for the jury during voir dire. The prosecutor said:
Now I am not permitted by the rules of our system to define [beyond a reasonable doubt] for you. I’m not sure if I could[.] [Ajnyway all I want to say to you is thаt a reasonable doubt is not all doubt and that I am not required by law to prove this man guilty beyond all doubt, and I will do this with evidence. (Tr. at 31).
Later, while examining a prospective juror, the prosecutor asked, “Do you understand that is not all doubt sir, do you see the difference between reasonable doubt and all doubt?” (Tr. at 59).
We note initially that аppellant failed to object to the prosecutor’s comments. Moreover, appellant’s counsel exploited the prosecutor’s comments several times during voir dire. Appellant has, thereforе, waived all but fundamental error.
While it is error for a prosecutor to attempt to define the term “beyond a reasonable doubt”,
Diaz v. State,
*1184 For his second assignment of error, appellant asserts the prosecutor committed reversible error by inquiring into the factual basis of appellant’s prior convictions, other crimes and deferred sеntences.
During the second stage proceeding, appellant testified extensively on direct examination about his previous convictions for burglary of a vending machine and for three counts of unlawful delivery of a controlled dangerous substance. Appellant further testified about his other convictions for which he reсeived deferred sentences.
Appellant testified he worked his way through pharmacy school, recеived a license to practice pharmacology, and lost that license in 1979 because of his felоny convictions. Appellant testified about his inability to hold a job as a pharmacist because of his alсohol and drug problems, how he became indebted to a drug dealer and permitted him to steal demerol from hospital stock where appellant worked as chief pharmacist, and how he had fallen into a “bаd crowd” but had since tried to straighten out his life after losing his license. In short, appellant put his character into issue on direct examination.
Under
For his final assignment of error, appellant argues the prosecutor raised societal alarm during closing argument in the punishment phase of trial. We again note that appellant failed to object to any of the comments he now claims were error. Appellant has, therefore, waived all but fundamental error.
Smith v. State,
In light of the above, appellant’s judgment and sentence should be, and hereby is, AFFIRMED.