State v. Woods, 275 N.C. App. 364 (Dec. 15, 2020)

aff’d per curiam, 2022-NCSC-56, ___ N.C. ___ (May. 6, 2022)

In this Mecklenburg County case, a jury found the defendant guilty of embezzlement of a controlled substance by an employee of a registrant or practitioner under G.S. 90-108(a)(14). While employed as a pharmacy technician at CVS, the defendant accepted $100 in exchange for processing a fraudulent prescription for Oxycodone. (1) The defendant argued on appeal that the evidence did not show embezzlement because she never lawfully possessed the prescriptions, which were obtained by fraud. The Court of Appeals disagreed, concluding that under the statute under which the defendant was convicted, G.S. 90-108(a)(14), the defendant had the requisite “access to controlled substances by virtue of [her] employment” in that she was allowed to take prescriptions filled by the pharmacist from the pharmacy’s waiting bins to the customers. (2) The court also rejected the defendant’s argument that the trial court erred in denying her motion to dismiss based on the State’s failure to establish that CVS was a “registrant” within the meaning of G.S. 90-87(25). Though the trial testimony did not clearly and specifically identify CVS as a registrant of the Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services, it did indicate that CVS was “a registrant that is authorized by law to dispense medications,” and therefore permitted a reasonable inference that the defendant committed the crime. (3) Finally, the Court of Appeals concluded that the trial court did not commit plain error by not instructing the jury on the statutory definition of “registrant.” The defendant did not request the instruction at trial, the trial court’s instruction mirrored the language of G.S. 90-108(a)(14), and the defendant failed to demonstrate any prejudice stemming from the alleged error. A dissenting judge would have concluded that the defendant did not embezzle the controlled substance as charged because she obtained it through fraudulent means, and therefore did not possess it lawfully as required by our courts’ traditional understanding of embezzlement.