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State v. Hamilton

Court of Appeals of Utah

January 9, 2020

State of Utah, Appellee,
Mikel Pratt Hamilton, Appellant.

          Third District Court, Salt Lake Department The Honorable Linda M. Jones No. 171907724

          Phillip W. Dyer and Benjamin R. Dyer, Attorneys for Appellant

          Simarjit S. Gill and Tegan M. Troutner, Attorneys for Appellee

          Judge Kate Appleby authored this Opinion, in which Judges Jill M. Pohlman and Diana Hagen concurred.

          APPLEBY, Judge.

         ¶1 Mikel Pratt Hamilton appeals his conviction for obstruction of justice, arguing he cannot be convicted of that crime without also being convicted of at least one of the other charges against him: theft or possession or use of a controlled substance. We affirm.


         ¶2 Hamilton was the managing pharmacist for a pharmacy (Pharmacy) in Salt Lake City, Utah. Hamilton worked with another pharmacist (Pharmacist), and they alternated shifts so one pharmacist was always on duty. Several pharmacy technicians also worked at Pharmacy and helped the pharmacist on duty process prescriptions.

         ¶3 Between January and April 2017, two pharmacy technicians noticed shortages of phentermine.[1] A technician (Technician One) testified at trial that phentermine is a controlled substance and that Pharmacy does not distribute it often. Technician One testified that in addition to noticing shortages of phentermine, she noticed loose pills of the drug on a shelf and reported the loose and missing pills to Pharmacist. In response, Pharmacist checked the on-hand amount of phentermine with the computer inventory and realized the numbers were drastically different.

         ¶4 Another technician (Technician Two) testified that he worked for Pharmacy from April 2016 to December 2017. Around April 2017, Technician Two also noticed shortages of phentermine. One day, Technician Two had to process a prescription of phentermine and realized there were not enough pills to fill the prescription. He told Pharmacist, who thought it was strange because Pharmacy had only one patient with a prescription for that specific dose of phentermine. Employees began monitoring the phentermine, and one day, Technician Two wrote down the amount of phentermine Pharmacy had on hand as his shift was ending. Technician Two returned the following morning and discovered there were fewer phentermine pills on hand than the number he wrote down the previous night. Hamilton was the only employee working between the time Technician Two left and when he returned the following day. Technician Two also noticed loose phentermine pills on the shelves and notified Pharmacist. Pharmacist reported these losses to Pharmacy's asset protection district manager (Asset Manager). By the end of the year, Technician Two and Pharmacist stopped working for Pharmacy.

         ¶5 After receiving the report of missing phentermine from Pharmacist, Asset Manager began an investigation. Asset Manager installed hidden video cameras in a vent above the area where phentermine was stored. The surveillance videos revealed Hamilton accessing phentermine after business hours on multiple occasions when "there was no legitimate reason for those medications to be accessed" because Hamilton was not filling prescriptions. One video showed Hamilton "removing medication from the bottle" and "putting it into his left hand as he walk[ed] off camera." In another video, Hamilton "le[ft] with multiple bottles of phentermine from the shelf" and "one of [the bottles] was not" returned to the shelf. On a different occasion, video footage showed Hamilton "doing something with bottles" and "ducking down." Asset Manager testified that "no prescriptions were filled" at the time this footage was recorded because Hamilton did not print out a label to mark a vial for a patient. As a result of the investigation, Asset Manager determined that Hamilton was accessing phentermine without a legitimate purpose, that he was editing the inventory of the pills on the computer system to account for the missing pills, and that no prescriptions were being filled during the times Hamilton accessed the phentermine.

         ¶6 Asset Manager scheduled an interview with Hamilton. As the two began speaking, Hamilton "stood up and asked [Asset Manager] if [Asset Manager] was accusing [Hamilton] of anything." Asset Manager explained he was not accusing Hamilton of anything but was just asking him questions. Hamilton demanded to review the video footage. Asset Manager explained he would not show Hamilton the footage. Hamilton responded that he was resigning, and walked out.

         ¶7 In addition to his own investigation, Asset Manager contacted Pharmacy's district manager (District Manager), who oversees all of Pharmacy's Utah stores, to inform her about the missing phentermine. District Manager reported the losses to the state pharmacy board and the federal Drug Enforcement Administration (DEA) while Asset Manager was conducting the internal investigation. Hamilton was ultimately charged with theft, obstructing justice, and possession or use of a controlled substance.

         ¶8 District Manager testified at trial that pharmacists inventory controlled substances annually. She explained that "everything is tracked on a controlled substance" from the time it leaves the warehouse to the time it is dispensed to patients. If there is a discrepancy between the on-hand count and the computer count, pharmacists have the ability to reconcile it but, under Pharmacy policy, must report the discrepancy to Asset Manager and District Manager. District Manager also explained that, by law, the discrepancy must be reported to the DEA and the state ...

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