                               COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Kelsey and Haley
Argued at Chesapeake, Virginia


KAREN LYNN DASEY
                                                              MEMORANDUM OPINION* BY
v.     Record No. 2222-04-1                                    JUDGE JAMES W. HALEY, JR.
                                                                  NOVEMBER 15, 2005
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                               Thomas S. Shadrick, Judge

                 J. Barry McCracken for appellant.

                 Virginia B. Theisen, Assistant Attorney General (Judith Williams
                 Jadgmann, Attorney General, on brief), for appellee.


       Karen Lynn Dasey challenges the sufficiency of the evidence from her conviction of

prescription fraud under Code § 18.2-258.1(A). She also asserts that the trial court improperly

intimidated defense witnesses and discouraged their testimony in violation of her Sixth Amendment

right to call witnesses. Finding each contention lacks merit, we affirm.

                                                  I.

       “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible therefrom.’” Peake v. Commonwealth,

46 Va. App. 35, 37, 614 S.E.2d 672, 674 (2005) (quoting Archer v. Commonwealth, 26

Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted)).




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                                 II.

       On June 6, 2003, Walgreens’ pharmacist Stephen Michael Borza received a prescription

order from the office of Dr. Greg Warth for a patient named Marilyn Anderson. The next

evening, an individual visited the Walgreens and attempted to pick up the prescription through

the store’s drive-thru. Borza, doubting the validity of the prescription, spoke with the driver of

the vehicle through the drive-thru intercom system. As the vehicle began to pull away, Borza

recorded the license plate number, which he later relayed to Detective McAndrews of the

Virginia Beach Police Department. At trial, Borza identified the driver of the vehicle as the

defendant, Mrs. Dasey, stating that he was eighty-five percent sure it was her.

       Detective McAndrews was assigned to the diversion investigational pharmaceutical fraud

division of special investigations at the time of the incident. After receiving a telephone call and

the license plate number from Mr. Borza, Detective McAndrews traced the license number to

Mark and Karen Dasey. Detective McAndrews thereafter went to the Dasey house to speak with

Mrs. Dasey. Upon arrival, Detective McAndrews identified a Jeep Cherokee Laredo with license

plates matching the number given by Borza.

       Detective McAndrews testified that Mrs. Dasey gave several different explanations for

her whereabouts the evening of June 7th before claiming that a lady named Theresa Smiley had

called in the prescription and told Mrs. Dasey to use the name Marilyn Anderson when picking

up the prescription. McAndrews testified:

               And I asked [Mrs. Dasey] if she was pretty much was aware that
               . . . she knew that Theresa Smiley committed prescription fraud.
               And she indicated, yes. I said, You were pretty sure the
               prescription wasn’t authorized? And she said, Yes. She knew it
               wasn’t authorized - - a valid prescription.

Detective McAndrews also testified that the prescription was picked up using an incorrect birth

date, a date which was off by one digit in the month and year of appellant’s own birth date.

                                                -2-
McAndrews testified, “Dates of birth are always off by one number here and there in cases we

work. It’s very common.”

       At the close of the Commonwealth’s evidence, Mrs. Dasey called two designated alibi

witnesses. The first alibi witness was Mark Dasey, the defendant’s husband. Before his

testimony, the trial judge stated,

                 Now sir, before you start to testify I want to advise you of
                 something. And that is this, that your testimony I’ve been advised
                 is an alibi testimony, which would be crucial to this case. So it
                 goes to the heart of the matter, which means you are subject to the
                 laws of perjury. You’ve already had a police officer testify as to
                 what your wife told the police officer. You’ve already had the
                 pharmacist positively identify your wife as being the one that was
                 there. Now, should it be proven that you testify falsely today,
                 that’s punishable by a lengthy sentence in the penitentiary. So I
                 want to put you on notice of that right off the bat. It’s one thing
                 for her to - - I know that a conviction for her has serious
                 ramifications for her job or whatever. It’s another thing to go to
                 the penitentiary for perjury. So having been advised, go ahead.

After being asked by counsel if he still wanted to testify, Mr. Dasey responded “No” and was

dismissed.

       Anne Dasey, sister-in-law and best friend of the defendant, testified next. The trial judge

repeated his perjury warning, after which Anne Dasey responded that she still wanted to testify.

Anne Dasey testified that the defendant accompanied her to North Carolina the evening of June

6th and returned to Virginia around 9:00 p.m. on June 7th. After her testimony, the judge stated:

                 I’ve been a judge fifteen years, and I’m a pretty good judge of
                 who’s telling the truth and who’s not telling the truth. And I
                 perceive you’re not telling the truth. Now, do you want to stick to
                 that story? Because you’re going - - you’re subject to being
                 prosecuted. . . . Do you want to stick to your story?

Anne Dasey responded, “Never mind. . . . I don’t want to [stick to my story]. . . . I don’t know

[the truth]. I wasn’t there.” Anne Dasey responded that she never went to North Carolina with

the defendant.

                                                -3-
       Mrs. Dasey’s counsel did not object at any time during the judge’s exchange with Mark

or Anne Dasey. After Anne Dasey was dismissed, the judge asked counsel, “Now does your

client want to dig a deeper hole here because I’m the judge that’s going to sentence her.” The

defense thereafter rested on its prior motion to strike.

                                                 III.

       Appellant challenges the sufficiency of the evidence. We note, “‘[t]he judgment of a trial

court sitting without a jury is entitled to the same weight as a jury verdict, and will not be

disturbed on appeal unless plainly wrong or without evidence to support it.’” McCary v.

Commonwealth, 42 Va. App. 119, 125, 590 S.E.2d 110, 113 (2003) (quoting Beck v.

Commonwealth, 2 Va. App. 170, 172, 342 S.E.2d 642, 643 (1986)). Also, “the credibility of the

witnesses and the weight accorded the evidence are matters solely for the fact finder who has the

opportunity to see and hear that evidence as it is presented.” Sandoval v. Commonwealth, 20

Va. App. 133, 138, 455 S.E.2d 730, 732 (1995).

       Code § 18.2-258.1(A) outlines the elements of a conviction for prescription fraud. That

section reads,

                 It shall be unlawful for any person to obtain or attempt to obtain
                 any drug or procure or attempt to procure the administration of any
                 controlled substance or marijuana: (i) by fraud, deceit,
                 misrepresentation, embezzlement, or subterfuge; or (ii) by the
                 forgery or alteration of a prescription or of any written order; or
                 (iii) by the concealment of a material fact; or (iv) by the use of a
                 false name or the giving of a false address.

       The pharmacist, Mr. Borza, identified Mrs. Dasey, with eighty-five percent certainty, in

her attempt to pick up a prescription using a false name. Detective McAndrews testified that

Mrs. Dasey admitted to attempting to pick up a prescription Dasey knew was not valid, and thus,

sought by “fraud . . . [or] misrepresentation” under the relevant statute. The evidence shows that

the prescription was called in giving a date of birth off by one digit as to month and year from

                                                 -4-
that of appellant’s own, but in the name of Marilyn Anderson. The statute further prohibits

prescription fraud by use of “a false name.” Additionally, the two defense witnesses either

refused to testify or recanted their testimony after being given a warning by the judge about the

consequences of false testimony.

       Additionally, the trial court held: “And let me say first on the record that there is

absolutely no doubt whatsoever in my mind that this defendant attempted to obtain a fraudulent

prescription.” The evidence is sufficient for the court to reach the quoted conclusion.

                                                 IV.

       Appellant asserts that the trial court improperly intimidated her witnesses, thereby

denying her the Sixth Amendment right to present witnesses on one’s behalf. Appellant

concedes that she did not present this objection to the trial court. “The Court of Appeals will not

consider an argument on appeal which was not presented to the trial court.” Ohree v.

Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998); Rule 5A:18.

       Despite the lack of an objection to the trial court, appellant asserts that the ends of justice

exception contained in Rule 5A:18 allows this Court to consider this issue on appeal. We

disagree.

       This Court has recently reiterated the requirements and reasoning of the ends of justice

exception to Rule 5A:18. In West v. Commonwealth, 43 Va. App. 327, 597 S.E.2d 274 (2004),

this Court held:

               Application of the ends of justice exception requires proof of an
               error that was “clear, substantial and material.” The record “must
               affirmatively show that a miscarriage of justice has occurred, not
               that a miscarriage might have occurred.” Ordinarily, in the
               criminal context, application of the ends of justice exception is
               appropriate where “[the accused] was convicted for conduct that
               was not a criminal offense” or “the record . . . affirmatively proves
               that an element of the offense did not occur.” . . . Invocation of any
               exception to Rule 5A:18 is rare.

                                                -5-
Id. at 338-39, 597 S.E.2d at 279 (citations omitted). Additionally, the Virginia Supreme Court

has held, “Invoking the ends of justice exception . . . requires a determination not only that there

was error in the judgment of the trial court but also that application of the exception is necessary

to avoid a grave injustice.” Charles v. Commonwealth, 270 Va. 14, 20, 613 S.E.2d 432, 434

(2005).

          Even if the judge erred in warning the defense witnesses and appellant of the

consequences of false testimony, that error does not rise to the level necessary to invoke the ends

of justice exception. “Error alone, even a violation of constitutional principles, is not sufficient

to warrant application of the ends of justice exception to Rule 5A:18.” West, 43 Va. App. at

339, 597 S.E.2d at 280. We find no proof of a “clear, substantial and material” error in the

record which created a grave injustice.

          The evidence overwhelmingly proved appellant’s guilt. In her statement to police, she

placed herself at the pharmacy, as did other witnesses. Thus, any alibi testimony would be

rejected by the fact finder, as was clearly stated by the court.

          Thus, while we do not condone the remarks of the trial judge which certainly chilled

appellant’s right to produce evidence on her behalf, this Court cannot consider this issue on

appeal, as it was not preserved in the trial court and is not subject to the ends of justice

exception.

                                                  V.

          For the foregoing reasons, we affirm.

                                                                                               Affirmed.




                                                  -6-
