COURT OF APPEALS OF VIRGINIA 

Present: Judges Koontz, Elder and Fitzpatrick 

Argued at Salem, Virginia 

WILLIAM J. HILL, SR. 

 MEMORANDUM OPINION* BY 

v. Record No. 2345-93-3 JUDGE LARRY G. ELDER 

 JULY 5, 1995 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE 

James F. Ingram, Judge 

 Charles C. Cosby, Jr. (Andrea C. Long; Boone, Beale, 

 Carpenter & Cosby, on brief), for appellant. 

 Thomas C. Daniel, Assistant Attorney General 

 (James S. Gilmore, III, Attorney General, on brief), 

for appellee. 

 William J. Hill, Sr. (appellant) appeals his two convictions 

for obtaining the controlled substances Cephalexin and Lomotil by 

fraud, deceit, misrepresentation, or subterfuge, in violation of 

Code § 18.2-258.1. Appellant contends that the evidence was 

insufficient to support the convictions. Specifically, appellant 

asserts that the Commonwealth (1) failed to prove the nature of 

the substances where no chemical analyses were performed; (2) 

failed to prove the requisite intent necessary to support the 

convictions; and (3) improperly charged him under Code 

§ 18.2-258.1. Because the trial court committed no error, we 

affirm the convictions. 

 Appellant's November 22, 1993 convictions stem from two 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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separate incidents when he obtained the prescription drugs 

Cephalexin and Lomotil from the Super-X pharmacy in Danville, 

where he worked as a pharmacist. 

 Cephalexin, a schedule VI controlled substance, was 

validly prescribed to appellant on May 6, 1991, to treat his 

continuing nose infection. On November 14, 1992, appellant 

dispensed an additional prescription with a notation that one 

further refill was authorized. Appellant admitted at trial that 

he refilled the Cephalexin prescription himself, that this refill 

"was not authorized" by the prescribing doctor, but that he 

honestly thought it would be "alright with the doctor if [he] 

updated this prescription." 

 Lomotil, a schedule V controlled substance, was validly 

prescribed to treat appellant's wife's intestinal problems on 

March 21, 1991. On December 28, 1992, appellant dispensed an 

additional prescription, without permission, using the name of 

the original prescribing doctor's nurse. Although he admitted 

updating the Lomotil prescription, appellant maintained that he 

had no intent to commit fraud and that the drug was dispensed for 

valid therapeutic purposes. 

 After learning that the pharmacy may have discovered his 

actions, appellant obtained additional prescriptions on January 

6, 1993, from another physician for Lomotil and Keflex (a brand 

name of the generic drug Cephalexin) to attach to the original 

prescriptions. Appellant admitted that he secured the 
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prescriptions from this physician to "pacify the pharmacy." 

 As a preliminary matter, we disagree with the Commonwealth 

that this appeal is barred by the doctrine of judicial estoppel. 

 We recognize that "a defendant in a criminal proceeding cannot 

assume inconsistent positions in the trial and appellate courts." 

Commonwealth v. Beavers, 150 Va. 33, 38, 142 S.E. 402, 403 

(1926). However, the record reveals that appellant never 

conceded during or after trial that he was guilty of the crimes 

charged; appellant conceded only that he "was guilty of 

something" and that he "broke the law." 

 First, we hold that it was unnecessary for the Commonwealth 

to produce drug analysis reports to prove that the substances 

appellant obtained were actually Cephalexin and Lomotil. 

Circumstantial evidence is sufficient to allow the fact finder to 

infer the nature of the substance in question. See Hinton v. 

Commonwealth, 15 Va. App. 64, 66, 421 S.E.2d 35, 37 (1992); Hill 

v. Commonwealth, 8 Va. App. 60, 64, 379 S.E.2d 134, 136 (1989)(en 

banc). In this case, proof of the substances was provided by 

appellant, a pharmacist himself, who, during testimony, 

identified the Cephalexin and Lomotil by name and admitted to 

obtaining the drugs to treat certain illnesses. See Hill, 8 Va. 

App. at 63, 379 S.E.2d at 136. 

 Second, we hold that the Commonwealth proved the requisite 

intent, namely that appellant obtained the drugs "by fraud, 

deceit, misrepresentation, . . . or subterfuge." Code 
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§ 18.2-258.1. Under familiar standards of appellate review, we 

view the evidence and any reasonable inferences fairly deducible 

therefrom in the light most favorable to the Commonwealth. 

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 

537 (1975). Furthermore, this Court will not set aside the 

jury's verdict unless it is plainly wrong or without evidence to 

support it. Maynard v. Commonwealth, 11 Va. App. 437, 439, 399 

S.E.2d 635, 637 (1990)(en banc). 

 As we have stated, intent may be, and frequently is, shown 

by circumstantial evidence. These circumstances include a 

person's statements and his conduct. Campbell v. Commonwealth, 

12 Va. App. 476, 484, 405 S.E.2d 1, 4 (1991). "The finder of 

fact may infer that a person intends the natural and probable 

consequences of his acts." Id. (citing Kelly v. Commonwealth, 8 

Va. App. 359, 373, 382 S.E.2d 270, 278 (1989)). 

 Appellant admitted that he dispensed Cephalexin and Lomotil 

without permission from authorized medical personnel; that he 

increased the dosage of the Cephalexin and used a nurse's name 

without her consent to obtain a refill; that he increased the 

amount of refills allowed; that he never contacted the original 

prescribing doctors to notify them of his actions; and that he 

used another physician to "cover" the prescriptions that he 

filled. Despite the fact that appellant testified that none of 

his actions was committed with the intent to defraud, 

misrepresent, deceive, or use subterfuge, it was within the 
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jury's province to draw reasonable inferences from the proven 

facts. Johnson v. Commonwealth, 209 Va. 291, 295, 163 S.E.2d 

570, 574 (1968). We cannot say that it was unreasonable for the 

jury to conclude that appellant possessed the requisite intent to 

commit the crimes with which he was charged. 

 Finally, assuming that the Commonwealth could have 

prosecuted appellant under Code § 54.1-3303, we hold that 

appellant's prosecution under Code § 18.2-258.1 was also proper 

and that the Commonwealth proved every element necessary to 

convict him. Code § 18.2-258.1 states that "any person" who 

illegally obtains a controlled substance is guilty of violating 

this statute. This language does not exempt pharmacists from the 

class of persons covered, and we see no reason to read this 

limitation into the statute's plain language. See Crews v. 

Commonwealth, 3 Va. App. 531, 536, 352 S.E.2d 1, 3, appeal 

denied, 360 S.E.2d 715 (1987). While appellant exercised some 

form of legal control over the Super-X pharmacy's stock of drugs 

by nature of his employment, this control did not extend to 

appropriating specific drugs for his own personal use in 

violation of state law. See Hilb, Rogal & Hamilton Co. of 

Richmond v. DePew, 247 Va. 240, 246, 440 S.E.2d 918, 921 

(1994)(stating that an employee's fiduciary duty to his employer 

prohibits the employee from acting in a manner adverse to the 

employer's interest). Appellant "obtained" the Cephalexin and 

Lomotil when they came under his personal dominion and control, 
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and his obtaining the drugs was predicated on providing false 

information in an attempt to comply with state law. 

 Accordingly, we affirm appellant's convictions. 

Affirmed.