Early v. Commonwealth

• Decision Date: 24 September 2015
• Docket Number: 2014–SC–000311–MR
• Parties: Derek Early, Appellant, v. Commonwealth of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

470 S.W.3d 729

Derek Early, Appellant

v.Commonwealth of Kentucky, Appellee.

2014–SC–000311–MR

Supreme Court of Kentucky.

RENDERED: SEPTEMBER 24, 2015

Counsel for Appellant: Roy Alyette Durham II, Assistant Public Advocate, Department of Public Advocacy, 200 Fair Oaks Lane, Suite 500, Frankfort, Kentucky 40601.

Counsel for Appellee: Jack Conway, Attorney General, Nathan Todd Kolb, Office of the Attorney General, Assistant Attorney General, 1024 Capital Center Drive, Frankfort, Kentucky 40601–8204.

Opinion

OPINION OF THE COURT BY JUSTICE NOBLE

Appellant, Derek Early, secured and later sold five forged prescriptions for a controlled substance. He was convicted of five counts of trafficking in prescription blanks and being a first-degree persistent felony offender. Following the jury's recommendation, the trial court sentenced him to twenty years' imprisonment. In this matter-of-right appeal, Early claims the trial court erred by (1) denying his motion for a directed verdict, and (2) violating the bar on double jeopardy.

Finding no reversible error, his convictions are affirmed.

I. BACKGROUND

Leah Renee Herring was a dental assistant at Ciampa Oral Surgery and, due to her work in post-surgery recovery, she had access to prescription blanks that were pre-signed by her employer, Dr. Ciampa. Herring testified that she and her fellow dental assistants used the pre-signed prescription blanks on a daily basis for prescribing pain medication to authorized patients recovering from oral and maxillofacial surgery.

On January 4, 2013, Derek Early called Herring, a long-time friend. Aware of her profession, Early complained that he was “hurting” and asked her to write him a prescription. Although Herring initially declined, she eventually agreed and met Early at a predetermined location near Dr. Ciampa's office. Upon their meeting, Early pulled his vehicle next to Herring's and instructed her to write the prescription for Barbara Miller. When Herring questioned his request, Early explained that he wanted the prescription in a different name to avoid trouble.

Herring complied and filled out one of Dr. Ciampa's pre-signed prescription blanks for Lortab

under the name of a fictitious patient, Barbara Miller. Herring testified that she did not know anyone named Barbara Miller and that she was aware that Barbara Miller was not one of Dr. Ciampa's patients. She also admitted at trial that the prescription was a forgery.

On January 7, 2013, Early called Jarrod Pierce, a former co-worker and known narcotics addict. Early informed Pierce that he had certain connections at a doctor's office and could get Pierce a prescription for pain pills. Pierce said he was interested and asked Early to put the prescription in the name of his ex-girlfriend, Kari Leigh, believing Leigh's insurance might cover the cost of the prescription.

On that same day, Early reached out to Gary McDonald, his friend since childhood. Early asked McDonald if he, or anyone he knew, was interested in buying Lortab

prescriptions. McDonald was in a car with his girlfriend's brother, Tommy Amis, who had a history of prescription-drug abuse. McDonald asked Amis if he wanted a prescription, Amis said yes, and McDonald relayed Amis' full name and date of birth to Early.

Early contacted Herring again and asked for three additional Lortab

prescriptions. They met at the same location near the surgeon's office, and Early instructed Herring to write specific names on each of the three prescriptions. Herring then filled out three pre-signed prescriptions, each bearing a different name: Kari Leigh, Tommy Amis, and Brittany Harris.

Later that day, Early met Pierce and, in exchange for $60, gave him the prescription for Kari Leigh. McDonald and Amis also drove to meet Early. Upon their arrival, McDonald got into Early's vehicle and purchased the Tommy Amis and Brittany Harris prescriptions for $200. McDonald returned to his car where Amis was still waiting. Amis noticed that McDonald had two prescriptions. Amis took the prescription bearing his own name but declined the prescription for Brittany Harris.

On January 18, 2013, McDonald called Early and requested another prescription, this time in his own name. Early confirmed the order, contacted Herring, and asked her for another prescription. Herring met Early and filled out a prescription with Gary McDonald's name, but before giving it to Early, she told him that she would not write him any more prescriptions. Later, McDonald gave Early $100 for the prescription bearing his name and took it to a pharmacy.

A few days later, Kari Leigh was on her pharmacy's website, ordering a refill for her son's medication, when she noticed an unfamiliar prescription for Lortab

in her prescription history. Her subsequent conversations with the pharmacy and Detective John Toliver led to a full investigation of the forged prescription. The investigation led Toliver and the police to Dr. Ciampa's office, which, in turn, led them to Herring and, ultimately, to Early.

A grand jury indicted Early, Herring, Pierce, McDonald, and Amis. The latter four pleaded guilty to various criminal counts, and all four testified at Early's trial. The jury convicted Early of five counts of trafficking in prescription blanks, KRS 218A.286(3), recommending five years on each count to run concurrently. The jury also found that he was a persistent felony offender in the first degree, KRS 532.080, and recommended the maximum punishment. His ultimate sentence was a PFO-enhanced twenty years.

Early now appeals to this Court as a matter of right. Ky. Const. § 110 (2)(b). Additional facts will be developed as needed below.

II. ANALYSIS

A. The trial court did not err in denying Early's motion for a directed verdict.

Early argues the trial court violated his right to due process of law when it denied his motion for a directed verdict at the close of the Commonwealth's case. He offers two reasons in support of this claim: (1) that the Commonwealth failed to produce sufficient evidence proving the prescriptions were “forged,” and (2) that there was no evidence Early possessed the Barbara Miller prescription with the intent to sell it to another person.

Before turning to the merits of these claims, however, there is a question whether this issue was properly preserved for appellate review. The Commonwealth argues that Early's motion for a directed verdict failed to meet the specificity requirement, Civil Rule 50.01, and that at the close of all evidence, he failed to renew his motion for a directed verdict. See Commonwealth v. Jones, 283 S.W.3d 665, 669 (Ky. 2009) (“to preserve an error based upon the insufficiency of the evidence the defendant ... must renew his motion at the close of all evidence”).

Early maintains that his initial motion for a directed verdict was more than a “generalized motion” and, although the video record contains no indication of renewal, he asserts that the Court should assume he renewed such motion during an unrecorded discussion regarding jury instructions. Believing the denial resulted in manifest injustice, Early alternatively requests that we review this issue under the palpable error standard set forth in Criminal Rule 10.26.

For sufficient preservation on appeal, a motion “must state specific grounds for relief and should identify which elements of the alleged offense the Commonwealth has failed to prove.” Jones, 283 S.W.3d at 669. Insufficiently specific motions, such as moving summarily for a directed verdict or making a general assertion of insufficient evidence, are not enough to satisfy the specificity requirement. Potts v. Commonwealth, 172 S.W.3d 345, 348 (Ky. 2005). Moreover, even the most specific motion for a directed verdict that is made at the close of the Commonwealth's case “but not renewed at the close of all evidence ... is insufficient to preserve an error based on insufficiency of the evidence.” Schoenbachler v. Commonwealth, 95 S.W.3d 830, 836 (Ky. 2003).

Early's motion for a directed verdict contained only vague assertions that the evidence was insufficient. In making his motion, Early stated:

For the record, I want to make a motion for directed verdict. I think that although there's been some testimony about my client being involved, none of the documentary evidence in any way points directly to him. There was no indication that he changed or wrote on or did anything other than we've got some testimony from people who were trying to get themselves arguably out of trouble. So for the record, I would like to ask for a directed verdict.

This motion excludes any reference to a specific count or challenge to a specific element of the alleged crime. Moreover, it is more a challenge to the credibility of the Commonwealth's proof than its existence, since it alleges that the Commonwealth's proof consists only of the testimony of self-interested witnesses, which is not a proper ground for a directed verdict. Therefore, the motion lacked the particularity necessary to allow the trial court “the opportunity to pass on the issue in light of all the evidence.” Baker v. Commonwealth, 973 S.W.2d 54, 55 (Ky. 1998).

Furthermore, Early failed to renew his motion for a directed verdict. At the close of all evidence, the trial court asked if there was any more proof. Early responded, “No, your honor,” and the jury was released for the day. The parties discussed amending the jury instructions, agreed to examine the instructions later that evening, and the trial court turned off the video recording equipment. No renewal of the motion was made on the record.

Early argues that this Court should assume he renewed his motion for a directed verdict when the parties reconvened to discuss jury instructions “given that this would have been the first time he would have been given to do so.” Such an assumption is hard to justify given that the most opportune moment to renew a motion for a directed verdict is immediately at the close of all proof, rather than some later time when...