[Cite as State v. Petromilli, 2017-Ohio-1511.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                          LAKE COUNTY, OHIO


STATE OF OHIO,                                     :      OPINION

                 Plaintiff-Appellee,               :
                                                          CASE NO. 2016-L-045
        - vs -                                     :

DECIO R. PETROMILLI,                               :

                 Defendant-Appellant.              :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2015 CR
000510.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

Matthew C. Bangerter, P.O. Box 148, Mentor, OH 44061 (For Defendant-Appellant).



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}     Appellant, Decio R. Petromilli, appeals from the judgment, entered by the

Lake County Court of Common Pleas, after a trial by jury, convicting him of one count of

deception to obtain a dangerous drug. We affirm the trial court’s judgment.

        {¶2}     In July 2014, appellant was under the care of three doctors: Dr. Paul

Hanahan, a family practitioner who was managing appellant’s pain medications relating

to chronic pain in his back and knees; Dr. James Walker, an orthopedic surgeon; and
Dr. Daniel Modarelli, a family practitioner who was aware of Dr. Walker, but unaware

appellant was seeing Dr. Hanahan.

       {¶3}    In May 2013, appellant enlisted the services of Dr. Hanahan. Appellant

entered a “drug contract narcotic agreement” with Dr. Hanahan that essentially stated

Dr. Hanahan would be the only physician prescribing appellant medications while under

his care. On June 2, 2014, Dr. Hanahan prescribed appellant 90 Oxycodone tablets,

which appellant filled two days later. Dr. Hanahan also wrote appellant a post-dated

prescription for the same amount to be filled on July 2, 2014. Appellant filled that

prescription on that date.

       {¶4}   Due to his various medical problems, Dr. Hanahan referred appellant to

Dr. Walker in April 2014. Dr. Walker was aware appellant was seeing Dr. Hanahan for

pain management, but, during a visit in early July 2014, appellant indicated he was

unable to see Dr. Hanahan for an unspecified period of time. In light of this, Dr. Walker

wrote appellant a one-week prescription for Percocet on July 2, 2014. Dr. Walker stated

he prescribed the Percocet to “cover” appellant’s pain until he could see Dr. Hanahan;

Dr.Walker also advised appellant to “follow-up” with Dr. Hanahan vis-à-vis the July 2,

2014 prescription during his next visit.

       {¶5}   Prior to receiving Dr. Walker’s July prescription, appellant had received a

prescription from a physician’s assistant for 10 oxycodone pills, which he filled on June

30, 2014. Moreover, appellant had a pre-written prescription from Dr. Hanahan for 90

Oxycodone pills that was scheduled to be filled on July 2, 2014, the same date Dr.

Walker provided appellant with his script. Appellant did not inform Dr. Walker of these

pre-existing prescriptions.




                                            2
       {¶6}   On July 8, 2014, Dr. Hanahan saw appellant and wrote him a prescription

for 90 oxycodone, which appellant filled.          Dr. Hanahan was unaware of both the

prescription written by Dr. Walker as well as the script written by the physician’s

assistant. Dr. Hanahan testified he would not have written the July prescription had he

known of the others because of the risk of overmedication and because appellant

breached the narcotics agreement by accepting and filling the other prescriptions.

Similarly, Dr. Walker testified he would not have written the July 2, 2014 prescription

had he known of the June prescription as well as the July 8, 2014 script that Dr.

Hanahan would soon be issuing.

       {¶7}   On July 10, 2014, Dr. Daniel Modarelli saw appellant for multiple

complaints, including a blood clot in his leg and chronic pain. Dr. Modarelli prescribed

appellant 40 percocet pills on that date and referred him to a pain specialist.        Dr.

Modarelli was aware appellant was seeing Dr. Walker, but was unaware appellant was

seeing Dr. Hanahan. Dr. Modarelli’s notes demonstrate that appellant disclosed he had

been on oxycodone; they also reflect he had reviewed and “reconciled” medications

with him.     According, to Dr. Modarelli, this meant he had discussed appellant’s

medications and appellant had previously taken oxycodone.           As a result of these

discussions, Dr. Modarelli testified he did not believe appellant was using the narcotic at

the time he wrote the July 10, 2014 prescription. Dr. Modarelli testified that had he

known appellant filled the prescription on July 8, 2014 for 90 oxycodone, he would not

have written the July 10, 2014 prescription.

       {¶8}   Appellant was ultimately indicted on two counts of deception to obtain a

dangerous drug, fourth-degree felonies, in violation of R.C. 2925.22(A) (one count




                                               3
relating to Dr. Walker’s July 2, 2014 prescription and one count relating to Dr.

Modarelli’s July 10, 2014 prescription). Appellant was also indicted on one count of

deception to obtain a dangerous drug exceeding the bulk amount, a third-degree felony,

in violation of R.C. 2925.22(A) (relating to Dr. Hanahan’s July 8, 2014 prescription).

Appellant entered pleas of not guilty and the matter proceeded to trial. After trial by jury,

appellant was found not guilty on the counts relating to the prescriptions written by Drs.

Hanahan and Walker, but was found guilty on the count pertaining to the prescription

written by Dr. Modarelli.        The trial court sentenced appellant to 18-months

imprisonment, to be served consecutively with sentences in two separate cases.

Appellant appeals and assigns the following as error:

       {¶9}   “[1.] The trial court erred to the prejudice of the defendant-appellant when

it returned a verdict of guilty against the manifest weight of the evidence.

       {¶10} “[2.] The trial court erred to the prejudice of the defendant-appellant in

denying his motion for acquittal made pursuant to Crim.R. 29(A).”

       {¶11} When a defendant moves a court pursuant to Crim.R. 29, he or she is

challenging the sufficiency of the state’s evidence. A “sufficiency” argument raises a

question of law as to whether the prosecution offered some evidence concerning each

element of the charged offense. State v. Windle, 11th Dist. Lake No. 2010-L-0033,

2011-Ohio-4171, ¶25. “[T]he proper inquiry is, after viewing the evidence most favorably

to the prosecution, whether the jury could have found the essential elements of the

crime proven beyond a reasonable doubt.” State v. Troisi, 179 Ohio App.3d 326, 2008-

Ohio-6062, ¶9 (11th Dist.).




                                             4
      {¶12} In contrast, a court reviewing the manifest weight observes the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of

the witnesses and determines whether, in resolving conflicts in the evidence, the jury

clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered. State v. Schlee, 11th Dist. Lake No. 93-L-

082, 1994 WL 738452, *4 -*5 (Dec. 23, 1994).

      {¶13} Appellant was convicted of deception to obtain a dangerous drug, in

violation of R.C. 2925.22(A), which provides:

      {¶14} “(A) No person, by deception, shall procure the administration of, a
            prescription for, or the dispensing of, a dangerous drug or shall
            possess an uncompleted preprinted prescription blank used for
            writing a prescription for a dangerous drug.”

      {¶15} R.C. 2913.01(A) defines “deception” as:

      {¶16} “knowingly deceiving another or causing another to be deceived by
            any false or misleading representation, by withholding information,
            by preventing another from acquiring information, or by any other
            conduct, act, or omission that creates, confirms, or perpetuates a
            false impression in another, including a false impression as to law,
            value, state of mind, or other objective or subjective fact.”

      {¶17} The evidence adduced at trial demonstrated that Dr. Hanahan referred

appellant to Dr. Walker and each knew of the other’s involvement in appellant’s

treatment.   Moreover, although Dr. Modarelli was aware appellant was seeing Dr.

Walker for orthopedic issues, he was not aware appellant was seeing Dr. Hanahan for

pain management.       Dr. Modarelli testified that appellant had disclosed he had

previously been prescribed oxycodone, but did not disclose that he had filled a

prescription for the drug, via Dr. Hanahan, on both July 2 and July 8, 2014, just days

prior to Dr. Modarelli issuing a prescription for the same medication. Dr. Modarelli




                                            5
testified that, had appellant disclosed this information, he would not have written the

July 10, 2014 prescription.

       {¶18} Moreover, the jury heard testimony of Damian Blakeley, a special agent

from the Lake County Narcotics Agency. He testified he initiated an investigation into

appellant’s procurement of prescriptions on July 18, 2014, after Dr. Modarelli’s office

notified him of a potential issue with appellant filling multiple prescriptions. Mr. Blakeley

ran a report through the Ohio Automated Rx Reporting System (“OARRS”) to review

appellant’s history of filling prescriptions for drugs that are commonly abused. The

report provided information regarding when a prescription was written, sets forth the

name of the doctor who issued it, the amount of the drug, and the pharmacy at which it

was filled.   After reviewing the report, Mr. Blakely visited the pharmacies at which

appellant filled the prescriptions and obtained copied images of the scripts. He then

spoke with Drs. Hanahan and Modarelli and through his discussions with the

physicians, determined that appellant did not communicate with either doctor that he

was seeing the other; hence, Mr. Blakeley concluded appellant had been seeing

multiple doctors in order to obtain the same or similar controlled substances; namely,

oxycodone or hydrocodone.         According to Mr. Blakeley, the information provided

probable cause for an arrest warrant.

       {¶19} The foregoing demonstrates that appellant, by withholding information

about his association with Dr. Hanahan as well as the July 2 and July 8, 2014

prescriptions, gave Dr. Modarelli the false impression he was not on oxycodone or that

he had not recently filled a prescription for the drug, when he procured the July 10, 2014

prescription for oxycodone, a dangerous drug, from Dr. Modarelli. There was therefore




                                             6
sufficient, credible evidence to support the jury’s guilty verdict beyond a reasonable

doubt.

         {¶20} Appellant’s two assigned errors lack merit.

         {¶21} For the reasons discussed in this opinion, the judgment of the Lake

County Court of Common Pleas is affirmed.



THOMAS R. WRIGHT, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




                                             7
