Court of Appeals No. 12CA0579 Douglas County District Court No. 10CR274 Honorable Paul A. King, Judge
Cynthia H. Coffman, Attorney General, Victoria M. Cisneros, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Kielly Dunn, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Felicia Michelle Moon, appeals the judgment of conviction entered after a jury found her guilty of criminal attempt to obtain a controlled substance by fraud or deceit. In this case, we are asked to determine an issue of first impression in Colorado, that is, whether a physician's prescription order, prior to its alleged alteration, falls within section 18-18-415(1)(b), C.R. S. 2014, the statutory exception to privileged communications. We conclude that it does.
¶2 A doctor wrote Moon a prescription order for six Vicodin pills. Moon later gave a pharmacy a prescription order for sixty Vicodin pills. A pharmacist called the doctor, who said that he had prescribed six pills to her, not sixty. Moon was subsequently charged, under section 18-18-415(1)(a), with criminal attempt to obtain a controlled substance by fraud or deceit, by the forgery or alteration of an order.  At trial, she testified that she received a prescription order from the doctor and gave it to the pharmacy, but she denied altering it. She was convicted as charged and sentenced to two years of probation.
¶3 On appeal, Moon contends that the trial court erred by (1) allowing her doctor to testify about, and admitting into evidence, privileged information; and (2) denying her request to remove a juror who revealed during trial that she knew a prosecution witness. We perceive no error.
II. Physician-Patient Privilege
¶4 Moon contends that the trial court erroneously allowed her doctor to reveal information at trial that was protected by Colorado's physician-patient privilege. We disagree.
A. Trial Court Ruling and Challenged Evidence
¶5 Before jury selection, Moon invoked the physician- patient privilege. In response, the prosecutor told the court that she intended to elicit testimony from the doctor about the prescription order itself, but not Moon's statements that caused the doctor to write it. The court ruled that the anticipated evidence was not privileged in light of section 18-18-415(1)(b)'s statutory exception to privileged communications for persons who alter an order in an attempt to obtain a controlled substance by fraud or deceit. See §18-18-415(1)(a).
¶6 The doctor testified that he wrote two prescription orders for Moon, one for antibiotic eyedrops and the other for six extra-strength Vicodin pills. The court admitted copies of the two original prescription orders contained in Moon's medical records, and it admitted the altered Vicodin prescription order that Moon ...