                            FIRST DIVISION
                             PHIPPS, C. J.,
                    ELLINGTON, P. J., and MCMILLIAN, J.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules/


                                                                     August 6, 2014




In the Court of Appeals of Georgia
 A14A0908. HOPKINS v. THE STATE.

      ELLINGTON, Presiding Judge.

      A Dawson County jury found Skylar Hopkins guilty beyond a reasonable doubt

of five counts of obtaining a controlled substance by fraud, OCGA § 16-13-43 (a) (3).

Following the denial of his motion for a new trial, Hopkins appeals, contending that

the only evidence that he had the requisite criminal intent is the uncorroborated

testimony of his alleged accomplice and, therefore, that the evidence is insufficient

to sustain his convictions. In addition, he contends that the alleged offenses

comprised a single act of fraud and, therefore, that the five counts merged. For the

reasons explained below, we affirm his convictions, vacate the judgment, and remand

for resentencing.
      1. Hopkins contends that the testimony of his alleged accomplice that he

knowingly participated in her scheme to fraudulently obtain prescription medications

was not corroborated by any other evidence and, therefore, that the evidence is

insufficient to sustain his convictions.

      On appeal from a criminal conviction, the appellate court

      view[s] the evidence in the light most favorable to the verdict[,] and an
      appellant no longer enjoys the presumption of innocence. [The appellate
      court] determines whether the evidence is sufficient under the standard
      of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560)
      (1979), and does not weigh the evidence or determine witness
      credibility. Any conflicts or inconsistencies in the evidence are for the
      jury to resolve. As long as there is some competent evidence, even
      though contradicted, to support each fact necessary to make out the
      State’s case, [the appellate court] must uphold the jury’s verdict.


(Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

      OCGA § 24-14-8 (2013) (formerly OCGA § 24-4-8)1 provides that



      1
        We note that Hopkins’ trial took place in April 2013, after the effective date
of Georgia’s new Evidence Code, which applies to any motion, hearing or trial
commenced on or after January 1, 2013. Ga. L. 2011, p. 99, §§ 2, 101. “[T]he
provisions of former OCGA § 24-4-8 were carried forward into the new Evidence
Code and now can be found at OCGA § 24-14-8.” McKibbins v. State, 293 Ga. 843,
847, n. 9 (750 SE2d 314) (2013).

                                           2
      [t]he testimony of a single witness is generally sufficient to establish a
      fact. However, in certain cases, including . . . felony cases where the
      only witness is an accomplice, the testimony of a single witness shall not
      be sufficient. Nevertheless, corroborating circumstances may dispense
      with the necessity for the testimony of a second witness[.]


The corroboration required by this Code section,

      must be independent of the accomplice’s testimony and it must connect
      the defendant to the crime or lead to the inference that he is guilty.
      However, the corroborating evidence need not of itself be sufficient to
      warrant a conviction of the crime charged. Slight evidence from an
      extraneous source identifying the accused as a participant in the criminal
      act is sufficient corroboration of the accomplice to support a verdict.
      The corroborating evidence may be circumstantial. The sufficiency of
      corroborating evidence should be peculiarly a matter for the [finder of
      fact] to determine.


(Footnote omitted.) Jackson v. State, 246 Ga. App. 731 (1) (541 SE2d 701) (2000).

See also Martinez v. State, 303 Ga. App. 71, 74 (1) (692 SE2d 737) (2010) (Slight

circumstances may be sufficient to support an inference of collusion between family

members); Palmer v. State, 243 Ga. App. 656, 657 (1) (533 SE2d 802) (2000)

(Criminal intent may be inferred by the jury “upon consideration of the words,




                                          3
conduct, demeanor, motive and all other circumstances connected with the act for

which the accused is being prosecuted.”) (footnote omitted).

      Construed in favor of the verdict, the record shows that the jury received the

following evidence. In 2011, Hopkins’ long-time girlfriend and the mother of his

children, Cindy Morgado, began working for a doctor as a medical assistant. Part of

her duties included calling in prescriptions to pharmacies at the doctor’s direction. In

November 2011, after several weeks of working there, Morgado called in

prescriptions for several medications to a pharmacy in Dawson County for herself and

for Hopkins. Neither Hopkins nor Morgado was a patient of Morgado’s employer,

and the doctor did not write or authorize these prescriptions for them. In addition,

Morgado did not have authority to call in prescriptions on her own initiative. When

Morgado called in the prescriptions, she used her middle name, Michelle, when

identifying herself as her employer’s assistant, to avoid attracting attention to the fact

that she was calling in prescriptions for herself.

       On November 28, 2011, Morgado called in prescriptions for herself , each with

two refills, for the controlled substances Lortab (40 pills), Ambien (30 pills), and




                                            4
Xanax (60 pills) ;2 she also called in a prescription for Lortab (40 pills) for Hopkins.

At Morgado’s request, Hopkins went to the pharmacy and picked up those

prescriptions. On December 8, Morgado ordered a refill for her Lortab prescription,

and Hopkins picked it up.

      On December 12, Morgado again called in a prescription for one of the

medications. The pharmacy called the doctor’s office to verify the prescription and

learned that it was not authorized. When Morgado and Hopkins went together to the

pharmacy’s drive through window to pick up the medication, the pharmacy technician

asked Morgado to come into the store. Morgado panicked and told Hopkins to just

drive away, and he did so even though the technician still had Morgado’s

identification.

      At trial, Morgado testified that, before she began working for the doctor, she

and Hopkins had both been prescribed painkillers and other medications and that, by

November 2011, they needed more than their treating physicians were willing to

authorize. Morgado testified that she and Hopkins together decided to obtain the



      2
        In addition, she called in prescriptions for herself for Cipro and Phenergan ,
but the evidence showed that these are not controlled substances, and the trial court
entered a directed verdict of acquittal on the corresponding charges.

                                           5
controlled substances by having her call in prescriptions that were not authorized by

her employer.

       The relevant counts of the indictment are as follows: Count 1, the Lortab

dispensed for Morgado on November 28, 2011; Count 2, the Lortab dispensed for

Hopkins on that date; Count 3, the Ambien dispensed for Morgado on that date;

Count 5, the Xanax dispensed for Morgado on that date; and Count 8, the Lortab

dispensed for Morgado on December 8.

      Under OCGA § 16-13-43 (a) (3), “[i]t is unlawful for any person . . . [t]o

acquire or obtain possession of a controlled substance by misrepresentation, fraud,

forgery, deception, subterfuge, or theft[.]” In this case, only a single witness –

Hopkins’ alleged accomplice, Morgado – testified that Hopkins possessed the

requisite criminal intent to obtain possession of the controlled substances by fraud

and deception. We conclude, however, that the State presented evidence of

corroborating circumstances that prove Hopkins’ intent, specifically, that, on

November 28, 2011, Hopkins went to the pharmacy to pick up, in addition to

medications dispensed for Morgado, Lortab that was clearly labeled as having been

dispensed for him, purportedly on the authority of a doctor who had never provided

care for him. Further, on December 12, Hopkins fled from the pharmacy when the

                                         6
technician did not release Morgado’s identification or the medication they were trying

to pick up. Because there was evidence from a source other than Hopkins’ accomplice

that he knew that he was picking up prescription medications for which she had

submitted fraudulent orders, a rational trier of fact could find Hopkins guilty beyond

a reasonable doubt of committing the offenses as alleged in the indictment. Sosebee

v. State, 282 Ga. App. 905, 906 (1) (640 SE2d 379) (2006). See also Callaway v.

State, 247 Ga. App. 310, 318-319 (4) (542 SE2d 596) (2000) (The testimony of the

defendant chiropractor’s accomplice regarding the defendant’s participation in an

insurance fraud scheme was corroborated by his falsification of medical bills and his

attempt to have another accomplice sign a bill falsely showing extra office visits.);

Hannah v. State, 129 Ga. App. 794, 795 (201 SE2d 339) (1973) (A defendant’s flight

may be circumstantial evidence of his guilty knowledge.); Prather v. State, 116 Ga.

App. 696 (1) (158 SE2d 291) (1967) (accord).

      2. Hopkins contends that the offenses charged in the five counts all involved

just a single act of fraud, that is, Morgado’s November 28, 2011 telephone call to the

pharmacy posing as someone with authority, that the offenses therefore merged, and

that the trial court erred in imposing a separate sentence as to each count.



                                          7
      OCGA § 16-1-7 prohibits multiple convictions if “[o]ne crime is included in

the other.” “Under the express terms of that statute, however, the rule prohibiting

more than one conviction if one crime is included in the other does not apply unless

the same conduct of the accused establishes the commission of multiple crimes.”

(Citation and punctuation omitted.) Ledford v. State, 289 Ga. 70, 71 (1) (709 SE2d

239) (2011).

      If the same conduct established the commission of both offenses, it is
      generally necessary to take the next step in the analysis by applying the
      “required evidence” test . . . for determining when one offense is
      included in another: [a] single act may constitute an offense which
      violates more than one statute, and if each statute requires proof of an
      additional fact which the other does not, an acquittal or conviction under
      either statute does not exempt the defendant from prosecution and
      punishment under the other.


(Citations and punctuation omitted.) Id. at 72 (1).3 Whether two offenses are merged

for sentencing is a question of law to which we apply a “plain legal error” standard

of review. Culbreath v. State, _ Ga. App. _ (Case No. A14A0349, decided July 10,

2014).




      3
          See also Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530) (2006).

                                          8
      As noted in Division 1, supra, OCGA § 16-13-43 (a) (3) makes it unlawful “for

any person . . . [t]o acquire or obtain possession of a controlled substance by

misrepresentation, fraud, forgery, deception, subterfuge, or theft[.]” The evidence

showed that, on November 28, 2011, Hopkins acquired possession of three different

controlled substances: Lortab (some dispensed for Morgado and some for himself),

Ambien, and Xanax and that, on December 8, 2011, he again acquired possession of

Lortab.

      (a) Different controlled substances. Although Morgado’s conduct in

fraudulently representing to the pharmacist that she had a doctor’s authority to call

in the prescriptions occurred in a single telephone call on November 28, we conclude

that Hopkins’ conduct of acquiring possession of the several different controlled

substances was not the same conduct for the purpose of deciding whether the offenses

merged. That is, acquiring possession of Lortab is not the same conduct as acquiring

possession of Ambien, and neither are the same as acquiring possession of Xanax.

See Ahmad v. State, 312 Ga. App. 703, 708-709 (3) (719 SE2d 563) (2011) (Offenses

of violating OCGA § 16-13-31 (e) by trafficking in methamphetamine, a Schedule II

drug under OCGA § 16-13-26, and violating OCGA § 16-13-31.1 (a) by trafficking

in 3, 4 methylenedioxymethamphetamine, a/k/a MDMA or Ecstasy, a Schedule I drug

                                         9
under OCGA § 16-13-25, did not merge, even though the drugs were mixed together

and the trafficking crimes were accomplished by the same conduct of the defendant.

“Each crime required proof of a fact which the other did not, as there was no evidence

that chemical compounds or elements were shared between the drugs.”) (footnote

omitted). Accordingly, Count 3 (Ambien) did not merge with Counts 1, 2, or 8

(Lortab) or with Count 5 (Xanax). Likewise, Count 5 (Xanax) did not merge with

Counts 1, 2, or 8 (Lortab) or with Count 3 (Ambien).

      (b) Same controlled substance, different dates and acts of acquisition.

Although Morgado’s conduct in fraudulently representing to the pharmacist that she

had a doctor’s authority to call in the prescriptions for Lortab occurred in a single

telephone call on November 28, we conclude that Hopkins’ conduct of acquiring

possession of Lortab by going to the pharmacy to pick up the prescriptions on that

date and on a separate occasion ten days later was not the same conduct for the

purpose of deciding whether the offenses merged. Accordingly, Count 8 (Lortab

acquired on December 8) did not merge with Counts 1 or 2 (Lortab acquired on

November 28). See Robertson v. State, 306 Ga. App. 721, 725-726 (4) (703 SE2d

343) (2010) (Where the defendant sold a quantity of cocaine to a confidential

informant, while retaining possession of another discrete portion of cocaine as he

                                         10
drove away from the location of the sale, the offenses of selling one portion of

cocaine and possessing the other portion of cocaine did not merge.); Kinchen v. State,

265 Ga. App. 474, 475 (594 SE2d 686) (2004) (Where the defendant took several

pounds of marijuana from a larger quantity he had in his home and drove to another

county, where he attempted to sell it to an undercover officer, the offense of

possessing the marijuana that he tried to sell did not merge with the offense of

possessing the separate quantity of marijuana that was seized from his home; the

defendant “engaged in two separate courses of conduct at different times and

locations with distinct quantities of contraband, even though he may have at some

earlier time possessed all the marijuana in his home.”); Stancil v. State, 155 Ga. App.

731 (2) (272 SE2d 511) (1980) (Where the defendant sold an obscene magazine to

the same buyer on the same date at two different times and at two different locations,

the offenses did not merge.).

      (c) Same controlled substance, same date and act of acquisition, different

putative patients. Finally, although the prescriptions for Lortab that Hopkins picked

up on November 28 were purportedly for two different patients, we conclude that

Hopkins’ single act of going to the pharmacy to pick up Lortab on that date was the

same conduct for the purpose of deciding whether the offenses merged. Accordingly,

                                          11
Counts 1 and 2 merged, and the trial court erred in imposing separate sentences as to

those counts. Cf. Robertson v. State, 306 Ga. App. at 725-726 (4); Kinchen v. State,

265 Ga. App. at 475; Morgan v. State, 220 Ga. App. 198, 199-200 (469 SE2d 340)

(1996). Accordingly, the judgment as entered must be vacated and the case remanded

for resentencing.

      Convictions affirmed, judgment vacated, and case remanded for resentencing.

Phipps, C. J., concurs. McMillian, J., concurs in judgment only in Division 2 (c).




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