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
Kate Appleby authored this Opinion, in which Judges Jill M.
Pohlman and Diana Hagen concurred.
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.
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.
Between January and April 2017, two pharmacy technicians
noticed shortages of phentermine. 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.
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.
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.
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.
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.
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 ...