COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60246 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION ELVERRETT WILLIAMS, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 9, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-241,200 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor 1200 Ontario Street Justice Center Cleveland, Ohio 44113 For defendant-appellant: James R. Willis Bond Court Building 1300 East Ninth Street Suite 610 Cleveland, Ohio 44114 -2- NAHRA, J.: Elverrett Williams appeals from his convictions of grand theft, drug theft, and drug possession. For the reasons set forth below, we affirm. Elverrett Williams was employed by Kaiser Permanente as a pharmacist at Kaiser's Fairhill facility from 1979 - 1986. Williams was the senior pharmacist in charge of the pharmacy from 1979 - 1986. In the fall of 1986, Kaiser's director of hospitals and health centers, Barbara Robertson, was notified by Marian Fisk, a Fairhill pharmacist, that some Schedule II drugs were missing from the Fairhill pharmacy. Fisk testified at Williams' trial that she went to Robertson because the whole staff was concerned about the loss of the Schedule II drugs. Trial testimony indicated that for several years prior to 1986, pharmacy employees had observed large discrepancies between the amounts of Schedule II drugs ordered and those dispensed. Williams had occasionally observed losses and discussed possible remedies. No investigation had been conducted. Ms. Robertson first conducted a cash audit over a three- week period, including one week that Williams was out of town. She compared the receipts taken in by the pharmacy to the receipts sent by the pharmacy to the business office with the pharmacy's daily cash report. Williams almost always cashed out the cash register and prepared the daily report. He refused to teach most of the other employees how to cash out the register, -3- coming in on weekends, vacations and holidays to do it himself whenever possible. The daily report consisted of manual addition of cash and receipts. The total was not compared to a cash register total. Robertson's cash audit revealed that every day Williams cashed out the pharmacy, approximately $200.00 was missing. On the days that he was out of town and someone else cashed out, the receipts were accurate to within $1.00 - $3.00. In September, 1986, the Ohio Board of Pharmacy and the Cleveland Police Department began a drug accountability investigation at Kaiser's Fairhill pharmacy. The Board's investigator, Robert Cole, interviewed the pharmacy employees, including Williams. Williams admitted that he was responsible for ordering the Schedule II drugs, and that in practice he was the only one who ordered those drugs. He also indicated that he ordered the Schedule II drugs according to what the pharmacy was dispensing, by seeing how much was left on the shelf. Williams stated that he worked shoulder to shoulder with the other pharmacists, and that he had accurate knowledge of what drugs were being dispensed. Cole's audit compared the Fairhill inventory and orders with the drugs actually dispensed. If revealed that significant quantities of Schedule II drugs were missing. It also revealed that Williams routinely ordered quantities of Schedule II drugs far in excess of demand at the pharmacy. A financial audit of the Fairhill pharmacy was conducted by an independent auditor, Mark Dolejs. It revealed that the -4- Fairhill pharmacy was missing 10% more receipts than all of the other Kaiser pharmacies on a regular basis, and that this went on over a period of years. Dollars collected per prescription were also dramatically less at Fairhill than at any of the other Kaiser pharmacies. Also, dollars collected when Williams was cashing out were significantly lower than the dollars collected when Williams did not cash out and after Williams was no longer working at the Fairhill pharmacy. An IRS private investigator, Robert Milliken, conducted an audit comparing William's sources of funds with his expenditures for 1984 - 1986. Milliken concluded that Williams spent approximately $120,000 more than his known sources of funds over that time period. The Ohio Board of Pharmacy revoked Williams' license to practice pharmacy because of the drugs and money missing from the Fairhill pharmacy. Williams was indicted on four counts of grand theft, three counts of drug theft, and three counts of drug possession. He was tried and the jury returned guilty verdicts on all ten counts. The court merged the grand theft counts pursuant to R.C. 2913.61(C) and sentenced Williams on the remaining seven counts. Williams brought this timely appeal. I. Appellant's first assignment of error reads as follows: THE COURT ERRED AND THE APPELLANT WAS DEPRIVED OF DUE PROCESS, INCLUDING HIS RIGHT OF CONFRONTATION, IN THE -5- WAKE OF THE COURT'S SUBSTANTIAL ADMISSION OF CERTAIN RECORDED TESTIMONY THAT HAD BEEN RENDERED AT A CIVIL PROCEEDING. The United States Supreme Court has held that limitations on the right to confront witnesses are not unconstitutional, so long as the accused has an opportunity to effectively cross-examine the witness. See, e.g., Ohio v. Roberts (1980), 448 U.S. 56 and Delaware v. Fensterer (1985), 474 U.S. 15. See also Bauer v. Pullman Co. (1968), 15 Ohio App. 2d 69. In Ohio v. Roberts, see supra, the admission of preliminary hearing testimony at a subsequent criminal trial was at issue. The Supreme Court looked at the circumstances of the cross- examination for "indicia of reliability" which would indicate that the testimony was trustworthy, id. at 66. The court stated at p. 66 that "[r]eliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." The court also focused on whether the circumstances of the prior testimony approximated those surrounding the typical trial, i.e. whether the witness was under oath; whether the accused was represented by counsel; whether the accused had every opportunity to cross-examine the witness; and whether the proceedings were before an adjudicatory body equipped to provide a record of the proceedings. Id. at 69. In Ohio v. Roberts, supra, the court also looked at the substance of the questions on cross-examination to see whether the significant issues were tested and the questions were leading. The Supreme Court concluded that the right of -6- confrontation was not violated by admission of the prior testimony in that case, because "defense counsel in this case tested [the witnesses'] testimony with the equivalent of significant cross-examination". Id. at 70. Compare Davis v. Alaska (1974), 415 U.S. 308, where the court held that limitation of the accused's questioning of a witnesses' bias violated the right of confrontation. In this case, Charles Shiffman, a pharmacist who had worked with Williams at the Fairhill pharmacy, testified under oath at an Ohio Board of Pharmacy hearing. The question before the Board was whether appellant's pharmacy license should be revoked because of the losses of drugs and money at the Fairhill pharmacy. Appellant was represented by counsel at the hearing. The proceedings were recorded. Appellant's counsel cross- examined Shiffman. Appellant's counsel asked leading questions and tested the issues that Shiffman's testimony raised, i.e. appellant's responsiveness to Shiffman's concern over missing drugs, and the numbers of Schedule II drugs actually being dispensed in relation to the amounts ordered. Appellant's counsel's cross-examination was not limited by objection. Charles Shiffman died before appellant's criminal trial. The trial court allowed Shiffman's prior testimony before the Ohio Board of Pharmacy to be presented to the jury at his criminal trial subject to certain deletions pursuant to objections. -7- Appellant claims that admission of Shiffman's testimony violated his right to confront the witness. However, the prior testimony was elicited under circumstances approximating a criminal trial. Furthermore, a well-rooted exception to the hearsay rule for unavailable declarants, Evid. R. 804, applies. Also, the record reflects that defense counsel tested the witness with the equivalent of significant cross-examination without limitation, by asking leading questions and testing the relevant areas of inquiry. Appellant's counsel claimed at the prior hearing that his cross-examination was limited by the presence in the audience of assistant prosecutors who were preparing the criminal case against appellant. Appellant has not shown how the presence of those assistant prosecutors limited his cross-examination of the witness. Appellant's first assignment of error is overruled. II. Appellant's second assignment of error reads as follows: THE EVIDENCE IN THIS CASE IS INSUFFICIENT TO SUPPORT ANY OF THE GUILTY VERDICTS RETURNED; HENCE THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR JUDGMENT ON ACQUITTAL MADE AT THE CLOSE OF ALL THE EVIDENCE. In State v. Jenks (1991), 61 Ohio St. 3d 259, the court held as follows in paragraphs one and two of the syllabus. 1. Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. When the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no -8- need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction. Therefore, where the jury is properly and adequately instructed as to the standards for reasonable doubt a special instruction as to circumstantial evidence is not required. (Holland v. United States [1954], 348 U.S. 121, 75 S. Ct. 127, 99 L.Ed. 150, followed; State v. Kulig [1974], 37 Ohio St. 2d 157, 66 O.O.2d 351, 309 N.E.2d 897, overruled.) 2. An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Appellant was convicted of grand theft pursuant to R.C. 2913.02, i.e. knowingly exerting control of property valued over $5,000, either without the owner's consent, or beyond the scope of consent, or by deception. Each indictment set forth a time period, including 11/1/83 - 12/31/83, 1/1/84 - 2/28/84, 6/1/85 - 7/31/85, and 7/1/86 - 8/31/86. The counts were subsequently consolidated pursuant to R.C. 2913.61(C). Appellant was also convicted of obtaining dangerous drugs by theft in violation of R.C. 2925.21. He was convicted of three different counts, representing the theft of three different Schedule II drugs, demerol, dilaudid and percodan, from May 1, 1983 to September 25, 1986 in violation of R.C. Chapters 3719 and -9- 4729. Chapter 3719 regulates controlled substances; Chapter 4729 regulates the handling of dangerous drugs by pharmacists. Appellant was also convicted of drug possession in violation of R.C. 2925.03, and in violation of R.C. Chapters 3719 and 4729. The three counts represented the three different drugs, demerol, dilaudid and percodan, in amounts equal to or exceeding three times the bulk amount. A rational trier of fact could have found the elements of these three crimes proven beyond a reasonable doubt in this case. There was substantial credible evidence from a number of sources, including the appellant, a large number of witnesses, and extensive audits, that appellant took the Schedule II drugs and money that disappeared. Appellant in practice ordered all the Schedule II drugs. He claimed that he based his orders on what was left on the shelf. However, he also stated that he knew how many Schedule II drugs were being dispensed. Five of the pharmacists and one clerk who worked with appellant indicated that it was obvious over a long period of time that substantially more Schedule II drugs were ordered than dispensed. The drug salesman even told appellant that he ordered a lot of narcotics. Appellant was also in control of the pharmacy funds. He alone controlled the cash register, with rare exceptions. He totalled the cash received manually and turned over the cash and prescriptions to the business office. -10- Extensive audits conducted with different methods revealed that large amounts of cash and drugs disappeared from the Fairhill pharmacy during appellant's tenure. The drug audit compared drugs ordered with drugs actually dispensed. During certain times, 50 -70% of the Schedule II drugs ordered disappeared. Drugs ordered by appellant just prior to his departure lasted the pharmacy more than two years after he left. The cash audits looked at prescriptions and cash receipts. They also compared the Fairhill pharmacy with other Kaiser pharmacies. They revealed that large amounts of cash and pharmacy receipts were missing when appellant cashed out the pharmacy. They also revealed that the Fairhill pharmacy took in substantially less dollars per prescription and lost substantially more receipts than the other Kaiser pharmacies. An IRS audit of appellant's funds versus expenditures indicated that appellant spent approximately $120,000 more than he had known funds for over the years 1984 - 1986. Appellant's response to the employee's concerns was also revealing. Often, he said he would take care of disappearances and did nothing. Occasionally he made efforts to address isolated incidents, especially regarding forged prescriptions and other irregularities outside of the pharmacy itself. Appellant failed to do an audit himself, failed to get an investigation done by anyone else, and failed to inplement tighter controls over the drugs or money. -11- While the evidence in this case is all circumstantial, it is also overwhelming. Appellant's second assignment of error is overruled. III. Appellant's third assignment of error reads as follows: THE DEFENDANT WAS DENIED DUE PROCESS WHEN THE TRIAL COURT FAILED TO INSTRUCT THE JURY THAT TO CONVICT THE DEFENDANT OF POSSESSION OF THREE (3) TIMES THE BULK AMOUNT OF ANY OF THE DRUGS HERE INVOLVED THE JURY WAS REQUIRED TO FIND THAT THE DEFENDANT ACTUALLY HAD SUCH A QUANTITY AT ONE TIME. Appellant acknowledges that he did not request an instruction as to possession of the quantity of drugs at one time, but claims that the court's failure to so instruct the jury constitutes plain error. The indictments in this case specifically indicated that appellant was charged with possession of the three different Schedule II drugs from May 1, 1983 to September 25, 1986. The drug theft charges were based on the same time period; the grand theft charges were based on isolated two-month periods during that longer time span. Because the indictments charged appellant with possession of a certain quantity of drugs over a period of time, it was obligated to prove that appellant possessed that quantity of drugs over that time period, not at one specific time. Appellant cites no authority, nor do we find any, that would compel proof of possession of the entire quantity of drugs at one time. Appellant's third assignment of error is overruled. -12- Affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, P.J., and PATTON, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .