Ralston v. State, 1-580A107
Decision Date | 29 October 1980 |
Docket Number | No. 1-580A107,1-580A107 |
Citation | 412 N.E.2d 239 |
Parties | Richard RALSTON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
Court | Indiana Appellate Court |
Don R. Darnell, Newport, for defendant-appellant.
Theodore L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
Defendant-appellant brings this appeal from his convictions by jury trial and sentencing by the Vermillion Circuit Court for forgery and attempted possession of a controlled substance.
We affirm.
The evidence most favorable to the State and reasonable inferences drawn from that evidence indicate that on March 27, 1979, Richard Ralston had an appointment with Dr. Richard S. Mayrose, a Terre Haute physician. Cathy Burns, Annette Pine, and Mark Slaughter accompanied Ralston to the doctor's office and waited for Ralston to return. When Ralston left the doctor's office he had two prescriptions and a blank piece of paper. The group drove away in Burns' car and then made a stop to let Pine inquire about employment. While the other three were waiting in the car, Burns observed Ralston write out a prescription and sign Richard Mayrose's name on a prescription form. Then they drove to Gillis' Pharmacy in Clinton. Ralston gave Burns a $100 bill and directed her to give the prescription he had written to the pharmacist. The plan was for Ralston to keep 40 of the Preludin tablets and to give 20 to Burns. The pharmacist refused to fill the prescription, so the four drove to Powell's Pharmacy in Clinton, where Burns once again presented the prescription. James Michael, the pharmacist and proprietor, noticed certain irregularities in the prescription, including the appearance of Dr. Mayrose's signature. Michael called Dr. Mayrose to verify the prescription and called the Clinton City Police to report the incident. Burns was arrested then and Ralston and Slaughter were arrested several days later.
Ralston was charged by information on April 2, 1979, with forgery and attempted possession of a controlled substance. Paragraph I of the information stated, in pertinent part.
in such a manner that it proports (sic) to have been made by another person to-wit: Dr. Richard Mayrose.
"All of which is contrary to the form of the statute in such cases made and provided, to-wit: Ind. Code 35-43-5-2, and against the peace and dignity of the State of Indiana."
(Copy of prescription form omitted.)
Paragraph II of the information provided, in substance, as follows.
The jury found Ralston guilty of both charges, and the Vermillion Circuit Court sentenced him to the Indiana Department of Corrections for five years on the forgery conviction and two years for attempted possession of a controlled substance. The terms are to be served consecutively.
STATEMENT OF THE ISSUES
Ralston presents the following issues for our review:
Ralston maintains that the same act gave rise to both crimes alleged. He asserts that the proof required for each element of both offenses is the same. Consequently, he says, the two offenses are really one offense and under the double jeopardy clause of the fifth amendment to the United States Constitution he may not be sentenced for both offenses. Ralston further claims that the allegations in both paragraphs of the information are, in essence, that he attempted to present a forged prescription for Preludin to be filled at Powell's Pharmacy. In this regard, he contends that attempted possession of a controlled substance is a lesser included offense of forgery.
The double jeopardy clause of the fifth amendment was made applicable to the states through the due process clause of the fourteenth amendment in Benton v. Maryland, (1969) 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. Years ago the United States Supreme Court established the test for determining whether two offenses are the same for double jeopardy purposes in Blockburger v. United States, (1932) 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306:
Accord, Brown v. Ohio, (1977) 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187; Elmore v. State, (1978) Ind., 382 N.E.2d 893.
Here it appears that the same act or transaction is the basis for both charges. Consequently, we must go to the next step to determine whether the offenses charged are the same. Elmore, supra.
Forgery is defined in Ind. Code 35-43-5-2 (Supp. 1980) as follows:
(1) by another person;
(2) at another time;
(3) with different...
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