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Attempted Fraudulent Acquistion of Controlled Substance, § 961.43(1) — Sufficiency of Evidence

State v. Linda M. Henthorn, 218 Wis. 2d 526, 581 N.W.2d 544 (Ct. App. 1998)
For Henthorn: Michael Yovovich, SPD, Madison Appellate

Issue/Holding1:

In Hamiel v. State, 92 Wis.2d 656, 666, 285 N.W.2d 639, 646 (1979), the supreme court outlined the two requirements for proof of an attempted crime:

[I]t must … be shown that: (1) the defendant’s actions in furtherance of the crime clearly demonstrate, under the circumstances that he [or she] had the requisite intent to commit the crime … ; and (2) that having formed such intent the defendant had taken sufficient steps in furtherance of the crime so that it was improbable that he [or she] would have voluntarily terminated his [or her] participation in the commission of the crime.

Issue/Holding2:

Viewing the facts most favorable to the prosecution requires us to assume that, despite her denial, Henthorn in fact altered the prescription, changing the refill number from “1” to “11.” She then presented the prescription to the pharmacist but took no further action. ……

As a matter of law, Henthorn’s conduct in this case was insufficient to show that she would “probably not desist from the criminal course.” Id. at 41, 420 N.W.2d at 49. When she presented the prescription to the pharmacist she was, as we have noted, obtaining medicine that she was legally entitled to receive; Henthorn was seeking only the first of the two vials of Tylenol 3 her physician had prescribed. She would have to return to the pharmacy, and one more time after that, in order to “acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge” in violation of § 961.43(1)(a), Stats.

Under the instructions given to them, the jurors would have to find that Henthorn’s actions up to and on the day in question demonstrated unequivocally-that is, that “no other inference or conclusion can reasonably and fairly be drawn from … [her] acts”-that she intended to fraudulently acquire codeine. …

We conclude that, as a matter of law, no reasonable jury could find on this record that the State had proved the essential elements of the offense of attempted fraudulent acquisition of a controlled substance. We therefore reverse Henthorn’s conviction.

 

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