State v. Henthorn
218 Wis. 2d 526, 1998 Wisc. App. LEXIS 431, 581 N.W.2d 544 (1998)
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Rule of Law:
To be convicted of an attempt to commit a crime, the defendant's acts must move beyond mere preparation and unequivocally demonstrate a criminal intent, such that it is improbable the defendant would voluntarily desist from completing the crime.
Facts:
- Linda Henthorn's physician wrote her a prescription for thirty Tylenol 3 pills, which contain the controlled substance codeine.
- The prescription authorized one refill.
- The prescription form was altered to show '11' refills instead of the '1' authorized by the doctor.
- Henthorn presented this altered prescription to a pharmacy where she had been a customer for several years.
- The pharmacist noticed the alteration, as the legal limit for refills for that substance is five.
- Henthorn received the initial thirty pills, which was a valid and legal fill under the original prescription.
- Henthorn, a registered nurse, denied altering the prescription, stating she would not risk her nursing license.
Procedural Posture:
- Linda Henthorn was charged in a Wisconsin trial court with attempted fraudulent acquisition of a controlled substance.
- A jury found Henthorn guilty of the charge.
- The trial court entered a judgment of conviction against Henthorn.
- Henthorn (appellant) appealed the judgment to the Court of Appeals of Wisconsin (an intermediate appellate court), arguing the evidence was insufficient to sustain the conviction. The State of Wisconsin was the appellee.
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Issue:
Does a defendant's act of presenting an altered prescription to a pharmacist to obtain an initial, legally prescribed dose of a controlled substance constitute an attempt to fraudulently acquire a controlled substance?
Opinions:
Majority - Eich, C.J.
No. Presenting an altered prescription to obtain a currently legal dose does not, as a matter of law, constitute an attempt to fraudulently acquire a controlled substance. The crime of attempt requires that the defendant's acts move beyond mere preparation to a point where their criminal intent is unequivocal and it is improbable they would voluntarily stop. Here, Henthorn's act of presenting the prescription was equivocal because she was obtaining medicine she was legally entitled to receive at that moment. The potential crime—acquiring the fraudulent refills—would only occur if she returned to the pharmacy at a later date. It is reasonably possible that she might have decided not to commit the future offense, meaning her actions had not yet crossed the threshold from preparation to an unequivocal attempt.
Dissenting - Dykman, P.J.
Yes. Henthorn's actions were sufficient to constitute an attempt to fraudulently acquire a controlled substance. The dissent argues that Henthorn 'crossed the Rubicon' when she presented the forged prescription to the pharmacist, as this was the most difficult and critical step in the commission of the crime. Once this act was completed, a reasonable jury could conclude it was probable she would follow through and obtain the illegal refills. The dissent emphasizes that the legal standard is whether voluntary desistance is 'likely' or 'probable,' not whether it is certain, and Henthorn's actions made it probable she would complete the offense.
Analysis:
This decision refines the legal standard for attempt in Wisconsin by emphasizing the 'unequivocality' of the defendant's actions. It establishes that for a crime involving a series of acts, an attempt does not occur during an early, legal step, even if that step is part of a larger criminal scheme. The ruling sets a high bar for prosecutors, requiring them to show the defendant has progressed so far that there is no other reasonable inference but criminal intent and that voluntary withdrawal is improbable. This precedent makes it more difficult to secure convictions for attempt where the defendant is apprehended before taking the final, illegal step.
