COURT OF APPEALS OF VIRGINIA 

Present: Judges Felton, Kelsey and Senior Judge Willis 

Argued at Richmond, Virginia 

ZACHARIE PIERRE COMEAU 

 MEMORANDUM OPINION* BY 

v. Record No. 1290-02-2 JUDGE D. ARTHUR KELSEY 

 JUNE 17, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

Gary A. Hicks, Judge 

 Robert P. Geary for appellant. 

 Amy Hay Schwab, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General, on 

brief), for appellee. 

 The trial court found the appellant, Zacharie Pierre Comeau, 

guilty of aiding and abetting prescription fraud under Code 

§ 18.2-258.1. On appeal, Comeau contends that the evidence proved 

neither that any prescription fraud took place nor that he aided 

and abetted any such fraud. Comeau also contends that the trial 

court erred by permitting a pharmacist to testify about a sign-out 

log used in the pharamacy. Finding no error, we affirm the trial 

court. 

 

 *Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 
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I. 

On appeal, we review the evidence "in the light most 

favorable to the Commonwealth." Kingsbur v. Commonwealth, 40 

Va. App. 307, 308, 579 S.E.2d 357, 358 (2003). That principle 

requires us to "discard the evidence of the accused in conflict 

with that of the Commonwealth, and regard as true all the 

credible evidence favorable to the Commonwealth and all fair 

inferences that may be drawn therefrom." Holsapple v. 

Commonwealth, 39 Va. App. 522, 528, 574 S.E.2d 756, 758-59 

(2003) (en banc) (citation omitted). 

On December 19, 2001, Comeau accompanied his live-in 

girlfriend, Betty Ann Nuzzo, to the Westbury Pharmacy to have 

her prescriptions refilled. Charles Williams, a pharmacy clerk, 

worked the front counter that day. Nuzzo identified herself and 

asked Williams for her prescriptions. Williams looked under the 

"N" section of an alphabetical prescription bin and found a bag 

for Nuzzo containing three medications: Augmentin, an 

antibiotic, and Ibuprofen and Feuregon, both pain medications. 

Feuregon contains codeine, a Schedule II controlled substance as 

defined in Code § 54.1-3448. Nuzzo signed on a log sheet 

verifying her receipt of the prescriptions. Nuzzo and Comeau 

then returned to their home and, as Nuzzo testified, shared the 

"entire batch of the pills" to get high. 

The next day Nuzzo and Comeau returned to the pharmacy and 

again approached Williams. Nuzzo told Williams she needed to 
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pick up some prescriptions. Williams checked the "N" section of 

the prescription bin and found no medications under her name. 

Williams remembered that Nuzzo and Comeau had picked up 

prescriptions the day before and asked Nuzzo whether she had 

already picked up her medications. In Comeau's presence, Nuzzo 

replied: "Well, no I didn't."1 Comeau said nothing. Williams 

called for a pharmacist to come forward and talk with Nuzzo. 

Teresa Harris, a pharmacist at Westbury Pharmacy, came to 

the counter. Nuzzo said she was "looking for seven" 

prescriptions. Harris, who had not worked the day before, tried 

to find the pharmacy log sheet. Unable to find it, Harris 

double-checked the prescription bin to ensure that the 

prescriptions were not incorrectly filed under the wrong name. 

Finding no prescriptions for Nuzzo, Harris checked the computer 

to see if the prescriptions had been filled. The computer 

records noted that seven prescriptions had been ordered for 

1

 At another point in his testimony, Williams also said he 

remembered Nuzzo stating, "them ain't the ones I was looking 

for." Comeau argues that this refutes Williams's later 

statement that Nuzzo unequivocally denied receiving any 

prescriptions the day before. We disagree. At most, Williams's 

testimony involves some internal inconsistency. The trial 

court, however, "heard the witnesses testify and was in closer 

touch with the situation than the appellate court, which is 

limited to a review of the written record." Ferguson v. Grubb, 

39 Va. App. 549, 557, 574 S.E.2d 769, 772 (2003). As fact 

finder, the trial court was "free to believe and disbelieve in 

part or in whole the testimony of any witness." Yellardy v. 

Commonwealth, 38 Va. App. 19, 22, 561 S.E.2d 739, 741 (2002); 

see also Montague v. Commonwealth, 40 Va. App. 430, 436, 579 

S.E.2d 667, ___ (2003). 
 

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Nuzzo and that three prescription labels had been printed the 

day before. The computer records, however, did not show whether 

Nuzzo had received these three medications. 

Harris attempted to make sense of the situation with Nuzzo. 

During this encounter, Comeau injected himself into the 

conversation and became "very mouthy." He attempted to hurry 

things along by complaining that he was "tired of waiting" and 

that the whole episode was "ludicrous" and "just ridiculous." 

Purporting to speak on behalf of Nuzzo as well as himself, 

Comeau railed, "we shouldn't have to be put through this." "Is 

this the way business is normally taken care?," Comeau 

complained. All the while, Harris was attempting —— 

unsuccessfully —— to find out if Nuzzo had received the 

Augmentin, Ibuprofen, and Feuregon the day before. At no point 

did Nuzzo or Comeau truthfully answer this question. 

While Harris was looking on the computer, another 

pharmacist remembered that she had filled the prescriptions for 

Augmentin, Ibuprofen, and Feuregon the day before. Under 

pharmacy policy, however, "if a patient says they didn't get 

it," the pharmacist refills the prescription. Relying on 

Nuzzo's denial that she received any medications, Harris 

refilled the prescriptions for Augmentin, Ibuprofen, and 

Feuregon, along with two of the four other prescriptions in 

Nuzzo's profile. After reviewing the prescriptions, Nuzzo 
 

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refused two of the seven when she learned that that she would 

have to pay for those two out of pocket. 

Comeau and Nuzzo returned home and took all of the 

codeine-laced pain pills. In the meantime, Harris found the 

prescription sign-out log for December 19, proving that Nuzzo 

had received Augmentin, Ibuprofen, and Feuregon on that day. 

Harris called Nuzzo and asked her to return those three 

medications. Nuzzo and Comeau returned to the store, bringing 

only the Augmentin. Comeau was "very belligerent" and "was 

cussing." When asked where the Ibuprofen and Feuregon were, 

Comeau stated, "You know, we took them. I took them. I took 

the Feuregon." The pharmacy manager called the police while 

Comeau and Nuzzo "stormed out" of the store. 

Officer H.A. Gordon of the Henrico Police responded to the 

pharmacy's call and went to Nuzzo's house where he interviewed 

Nuzzo and Comeau. Comeau admitted that the pharmacy "gave us 

the same medicine as they did the first day." He took the 

position, however, that "it was their fault, not ours." Nuzzo 

admitted that she and Comeau immediately "went home" and "took 

the medicine." Comeau also admitted that he got "high from it" 

and that he was "wasted right now." Nuzzo and Comeau were 

arrested, charged, and convicted of prescription fraud under 

Code § 18.2-258.1. 
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II. 

 When faced with a challenge to the sufficiency of the 

evidence, we "presume the judgment of the trial court to be 

correct" and reverse only if the trial court's decision is 

"plainly wrong or without evidence to support it." Wright v. 

Commonwealth, 39 Va. App. 698, 703, 576 S.E.2d 242, 244 (2003) 

(citations omitted); see also McGee v. Commonwealth, 25 Va. App. 

193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc). 

When a jury decides the case, Code § 8.01-680 requires that 

"we review the jury's decision to see if reasonable jurors could 

have made the choices that the jury did make. We let the 

decision stand unless we conclude no rational juror could have 

reached that decision." Pease v. Commonwealth, 39 Va. App. 342, 

355, 573 S.E.2d 272, 278 (2002) (en banc). The same standard 

applies when a trial judge sits as the fact finder because the 

"judgment of a trial court sitting without a jury is entitled to 

the same weight as a jury verdict." Cairns v. Commonwealth, 40 

Va. App. 271, 293, 579 S.E.2d 340, 351 (2003) (citation 

omitted); see also Shackleford v. Commonwealth, 262 Va. 196, 

209, 547 S.E.2d 899, 907 (2001).2 

 2

 Unless the fact finder acted unreasonably, we consider it 

our duty not to "substitute our judgment for that of the trier 

of fact, even were our opinion to differ." Wactor v. 

Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002) 

(citation omitted); see also Mohajer v. Commonwealth, 40 

Va. App. 312, 321, 579 S.E.2d 359, 364 (2003) (en banc) ("On 

review of a claim asserting the sufficiency of the evidence, 

this Court does not substitute its judgment for that of the 
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In other words, a reviewing court does not "ask itself 

whether it believes that the evidence at the trial established 

guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 

307, 318-19 (1979) (emphasis in original and citation omitted). 

Instead, the relevant question is whether "any rational trier of 

fact could have found the essential elements of the crime beyond 

a reasonable doubt." Id. at 319 (emphasis in original). This 

deference applies not only to the historical facts themselves, 

but the inferences from those facts as well. "The inferences to 

be drawn from proven facts, so long as they are reasonable, are 

within the province of the trier of fact." Hancock v. 

Commonwealth, 12 Va. App. 774, 783, 407 S.E.2d 301, 306 (1991). 

Governed by this standard of review, we find the evidence 

sufficient to support Comeau's conviction for aiding and 

abetting prescription fraud. When asked on December 20 whether 

she had received prescriptions on the 19th, Nuzzo said she had 

not. In fact, she had. The pharmacist relied on this 

misrepresentation when she refilled these same prescriptions on 

the 20th. Nuzzo thereby obtained prescription medications "by 

fraud, deceit, misrepresentation" or "subterfuge" or by 

"concealment of a material fact" in violation of Code 

 

trier of fact."); Pease, 39 Va. App. at 355, 573 S.E.2d at 278. 

Thus, on appeal from a bench trial, if "reasonable jurists could 

disagree about the probative force of the facts, we have no 

authority to substitute our views for those of the trial judge." 

Campbell v. Commonwealth, 39 Va. App. 180, 186, 571 S.E.2d 906, 

909 (2002). 
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§ 18.2-258.1(A)(i), (iii). Nuzzo's criminal culpability, 

therefore, establishes the first predicate for Comeau's 

liability as a principal in the second degree. See Taylor v. 

Commonwealth, 260 Va. 683, 688, 537 S.E.2d 592, 594 (2000) 

(recognizing that "before the accessory to a crime can be 

convicted as such, it must be shown that the crime has been 

committed by the principal"). 

It must also be shown, however, that Comeau was "present at 

the commission of a crime, inciting, encouraging, advising or 

assisting in the act" for him to be treated as an aider and 

abettor. Id. The evidence supports the trial court's finding 

on this issue as well. Comeau was with Nuzzo, his girlfriend, 

on the 19th and 20th. Comeau had used the prescriptions 

obtained on the 19th to get "high," and he also accompanied 

Nuzzo on the 20th. He stood silently beside Nuzzo when she lied 

about having not received any prescriptions on the 19th and then 

injected himself into the conversation, in a belligerent and 

distracting manner, when the pharmacist attempted to find out 

the truth. Comeau also said nothing when the pharmacist, based 

upon Nuzzo's misrepresentation, gave them a second set of pain 

medications. Comeau and Nuzzo then used the medications to "get 

high" as soon as they got home. 

On appeal, Comeau claims the entire episode was simply a 

misunderstanding. The trial court, however, construed Comeau's 

behavior —— particularly his effort to distract and intimidate 
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the pharmacist as she attempted to discover the truth —— as 

evidence that Comeau "encouraged, countenanced, or approved 

commission of the crime." Smith v. Commonwealth, 33 Va. App. 

65, 70-71, 531 S.E.2d 608, 610 (2000) (quoting Rollston v. 

Commonwealth, 11 Va. App. 535, 539, 399 S.E.2d 823, 825 (1991)). 

Because this finding is not irrational, nor the facts underlying 

it insufficient, we affirm. 

B. 

 Comeau also contends that the trial court erred by permitting 

Harris, the pharmacist on duty on December 20, to testify about 

the pharmacy's sign-out log. Doing so, Comeau contends, violates 

the "shopbook rule" governing admission of business records. We 

disagree. 

 The Commonwealth offered the logs as exhibits during 

Williams's testimony. Comeau initially objected "subject to cross 

examination." After cross and redirect examination, the trial 

court asked, "Any further objection to the documents from Mr. 

Williams?" "No, Your Honor," Comeau's counsel replied, "I don't 

have any objection." The trial court then admitted the logs into 

evidence as exhibits. 

 Later, during Harris's testimony, the Commonwealth gave 

Harris the logs and asked her to read the entries made for 

December 19. Comeau objected, claiming the shopbook exception to 

the hearsay rule did not apply to Harris because she was not a 
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"custodian" of the logs. The trial court properly overruled this 

objection. The logs had already been admitted, without objection, 

into evidence. The requirements of the shopbook exception govern 

the question whether a business record should be admitted,3

not whether a knowledgeable witness may testify about the record 

once it has been admitted. It matters not, therefore, whether 

Harris could satisfy the custodian test for establishing the 

admissibility of the sign-out logs. They had already been 

admitted before Harris was asked any questions about them. 

Harris's personal knowledge of the logs, based upon her daily use 

of them, provided the requisite foundation for her testimony. 

III. 

 Finding that sufficient evidence supports Comeau's conviction 

and that the trial court properly overruled Comeau's evidentiary 

objections, we affirm. 

 Affirmed.

 

3

 The "modern 'shopbook' rule or business records exception 

to the hearsay rule . . . allows introduction 'into evidence of 

verified regular [business] entries without requiring proof from 

the original observers or record keepers.'" Sparks v. 

Commonwealth, 24 Va. App. 279, 282, 482 S.E.2d 69, 70 (1997) 

(bracketed material in original); see also Kent Sinclair, Joseph 

C. Kearfott, Paul F. Sheridan & Edward J. Imwinkelried, Virginia 

Evidentiary Foundations § 9.4, at 303 (1998).