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State v. Evilsizer

Court of Appeals of Oregon

October 9, 2013

STATE OF OREGON, Plaintiff-Respondent,
v.
MICHELLE BETH EVILSIZER, Defendant-Appellant.

Argued and submitted on July 29, 2013.

Washington County Circuit Court C092367CR Thomas W. Kohl, Judge.

Erik Blumenthal, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Karla H. Ferrall, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.

HADLOCK, J.

Defendant, who worked as a nurse at a nursing home, was charged with tampering with drug records, ORS 167.212. The indictment alleged that she "ma[d]e and utter[ed] a false or forged prescription * * * for a controlled substance." At trial, the state presented evidence that defendant had written on a nursing-home resident's "medication administration record" (MAR) that she had given the resident three Oxycodone tablets when, in fact, she had given the resident only one tablet and kept the other two for her own use. Defendant moved for a judgment of acquittal, arguing that the MAR is not a written order or prescription within the meaning of ORS 167.212 and that, even if it were, she did not forge the prescribing portion of that document. The trial court denied the motion, and defendant was convicted. We reverse.

In reviewing the denial of a motion for judgment of acquittal, we view the evidence in the light most favorable to the state to determine whether a rational fact finder could have found the elements of the crime beyond a reasonable doubt. State v. Cunningham, 320 Or 47, 63, 880 P.2d 431 (1994), cert den, 514 U.S. 1005 (1995). At the nursing home where defendant worked, Camelot Care Center, all medications given to a resident of the facility were prescribed by the resident's doctor and sent to the facility, where a nurse listed them on the resident's MAR. Several pages from the April 2009 MAR for G, the resident from whom defendant took the Oxycodone, were submitted into evidence. Each page has preprinted tables on it. On the first page, the left-hand column of the main table is marked "Order." In the spaces in that column, a nurse wrote the name of each medication that a doctor had prescribed for G, along with the dosage and the frequency at which the medication was to be given. The handwritten order in one space states that G was to receive one to three 5-milligram tablets of Oxycodone every four hours "prn pain"--meaning "as needed for pain." The table also includes 31 columns, one for each day of the month, that are divided into four spaces for each medication, in which a nurse wrote his or her initials each time the medication was given.

Subsequent pages of the MAR include a table labeled "nurse's medication notes." The nurse dispensing any "as needed" medications filled in information including the date and time that the medication was given, the nurse's initials, and the name of the medication. If a nurse attempted to dispense a prescribed narcotic medication and the resident refused it, Camelot's policy was for the nurse to note the refusal on the MAR and to destroy the medication in another nurse's presence.

During one eight-hour night shift on April 27 and 28, 2009, defendant recorded on the "nurse's medication notes" that she had, three times, given G the maximum prescribed three-tablet dose of Oxycodone--at 10:45 p.m., 2:30 a.m., and 6:20 a.m. On the first page, in the spaces provided for nurses to initial each time an ordered medication had been given, defendant initialed one space each for April 27 and 28, even though she had given G two doses on the 28th. Other nurses on the staff became concerned because defendant had administered the medication at somewhat less than four-hour intervals and because the three-tablet dosage was higher than normal for G.

Approximately two weeks later, Adult Protective Services received a complaint about prescription medications being stolen from Camelot residents. An investigator contacted the police, and a police officer interviewed defendant. During the interview, defendant admitted that, on the night in question, she had taken two of G's prescribed Oxycodone tablets for her own personal use. Defendant later told the investigator from Adult Protective Services that G had not wanted all three tablets one of the times that defendant had administered them, so defendant gave her one tablet and kept the other two.

Defendant was charged with tampering with drug records in violation of ORS 167.212, which provides, in part:

"(1) A person commits the crime of tampering with drug records if the ...

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