State v. Evilsizer
Case #: A149334
Hadlock, J. for the Court; Ortega, P.J.;and Sercombe, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A149334.pdf
Appellate Procedure: In review of a judgment of acquittal, when the court is asked to determine whether evidence was presented to the jury from which the jury could find the defendant guilty, the Court must read the jury instructions as the jury might reasonably have understood them.
Defendant appealed a conviction for tampering with drug records. The State advanced evidence that Defendant had written on a nursing home patient's "medication administration record" that she had given the resident three Oxycodone tablets, when in fact, she had only given the resident one tablet and kept the others for herself. Defendant was charged with tampering with drug records. The indictment alleged that Defendant made and uttered a false or forged prescription, ORS 167.212. A jury found Defendant guilty of tampering with drug records. Defendant appealed. The Court first looked at the definition of 'prescription' advanced in the jury instructions. Even though the definition may be flawed because neither party objected to the definition, it is now the law of the case. The Court found that the definition of prescription hinges on what is to be done in the future with respect to giving medication to a patient. The record included no evidence from which a jury could have found that the information, falsified by Defendant, was the type of 'forward-looking' 'direction' that is a necessary component of a prescription. The Court held that the evidence presented was not sufficient to support conviction. Reversed.