People v. Persinger, 76--23

• Decision Date: 25 May 1977
• Docket Number: No. 76--23,76--23
• Citation: People v. Persinger, 49 Ill.App.3d 116, 363 N.E.2d 897, 6 Ill.Dec. 950 (Ill. App. 1977)
• Parties: , 6 Ill.Dec. 950 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Harold D. PERSINGER, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 897

363 N.E.2d 897

49 Ill.App.3d 116, 6 Ill.Dec. 950

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Harold D. PERSINGER, Defendant-Appellant.

No. 76--23.

Appellate Court of Illinois, Fifth District.

May 25, 1977.

James Geis, Deputy State Appellate Defender, Victoria J. Meyers, Asst. State Appellate Defender, First Judicial District, Chicago, for defendant-appellant.

Robert F. A. Stocke, State's Atty., Louisville, Bruce D. Irish, James Sullivan, Senior Law Student, Ill. State's Attys. Assn., Statewide Appellate Assistance Service, Mount Vernon, of counsel, for plaintiff-appellee.

CARTER, Presiding Justice.

The defendant, Harold D. Persinger, was charged by an indictment with the crime of conspiracy as follows:

Harold Persinger on the 18th day of June, 1975 . . . committed the offense of conspiracy, in that he did with the intent to commit the offense of unlawful delivery of controlled substance in violation of Illinois Revised Statutes, 1975, Paragraph 1401(d) Chapter 56 1/2, he agreed with Ida Frances Persinger to the commission of that offense and performed an act in furtherance of that agreement in that he obtained a prescription for less than 200 grams of a substance containing a derivative of barbituric acid, to-wit: Nembutal, and procured said controlled substance with his Public Aid Medical Card in violation of Illinois Revised Statutes, 1975, Paragraph 8--2(a), Chapter 38.

The defendant was tried by the court, without a jury, found guilty, and sentenced to a term of one year to fifteen months. From this adverse judgment the defendant argues on appeal that: 1) the State failed to prove beyond a reasonable doubt that the defendant entered into an agreement with Ida Persinger with the intent to commit the offense of unlawful delivery; and 2) it was an abuse of discretion for the trial court to deny the defense counsel's offer of proof that a key witness (Mary Scammahorn) had been treated for an overdose of drugs. For the reasons detailed below, we find neither of these arguments persuasive and affirm the judgment of the lower court.

The State's evidence consisted primarily of the testimony of witnesses who observed four controlled purchases of pills from Mrs. Ida Persinger at the Persinger residence; testimony from a pharmacist identifying bottles and pills which were sold by Mrs. Persinger as coming from his pharmacy; and the testimony of Mrs. Mary Scammahorn, the mother-in-law of the defendant's son.

There were four planned purchases of pills from Ida Persinger on the 12th and 15th day of May and on the 17th and 23rd of June, 1975. The first three 'buys' were arranged and made by Mary Scammahorn. On the 12th and 15th of May, Scammahorn was accompanied by an agent with the Illinois Bureau of Investigation (IBI) who stayed in a car, parked in the driveway, and observed Scammahorn while she purchased pills from Mrs. Persinger. There was no testimony as to the contents of the pills purchased. The defendant was seen by the IBI agent, at the time of the first buy, outside the house, in the back, and the agent never saw the defendant enter the house.

On June 17, 1975, Scammahorn was accompanied by another IBI agent (Rennacker) who entered the Persinger home with Scammahorn to purchase two bottles of pills which were later determined not to contain controlled substances. Rennacker did not see the defendant, although Agent Bowman of the surveillance team stationed outside of the Persinger home (150 to 300 feet away) observed an unknown white male enter the house.

At the time of the last transaction, June the Persinger residence, while Deputy the Peringer residence, while Deputy Thompson and IBI agent Sandusky surveyed the house. Upon arriving at the Persinger home, Agent Rennacker met Ida Persinger and both sat down together on the porch swing. There was a man standing on the porch identified by Agent Rennacker and Deputy Thompson as the defendant. Agent Rennacker testified that while she and Mrs. Persinger were on the porch swing, Mrs. Persinger took two pill containers out of her purse. Then, without addressing him by name, Mrs. Persinger asked the man Agent Rennacker identified as the defendant: 'Can I borrow your pocket knife because I want to scratch the prescription off the container.' The man gave Mrs. Persinger a pocket knife and immediately entered the house. Agent Rennacker testified that she did not enter the house but observed the man she identified as the defendant for three minutes before he entered the house.

After removing the prescription label, Mrs. Persinger sold the pills to Agent Rennacker. The pills were analyzed and one bottle contained Nembutal, which contains Phenobarbital (a derivative of barbituric acid), while the other bottle contained no controlled substance.

Testimony was taken from Ray Cammon, a pharmacist, who described the process in which drugs were ordered and paid for by the Persingers. Mr. Cammon testified that on June 18, 1975, he filled three prescriptions on the Harold Persinger account: two bottles of Nembutal for Mrs. Persinger and one bottle of Librium for the defendant. Examining the two bottles of pills purchased by Agent Rennacker from Mrs. Persinger on June 23, 1975, Mr. Cammon identified them as Nembutal and Librium. Although the labels were partially scratched off, Mr. Cammon identified the bottle of Librium as coming from his pharmacy, whereas the bottle containing Nembutal only appeared to come from his pharmacy. Regarding the identification of the three bottles sold on May 12th by Mrs. Persinger to Mrs. Scammahorn, Mr. Cammon identified the bottles as 'similar to the kind' used in his pharmacy, and stated the prescriptions were issued to the Persinger account January 27th, March 25th, and May 12th, 1975. Mr. Cammon also identified the bottle of Librium pills Mrs. Persinger sold to Rennacker and Scammahorn on June 17 1975 as having come from his pharmacy and that the prescription was made out to the defendant on March 25, 1975.

One of the principal witnesses for the State was Mary Scammahorn who testified that she bought sleeping, nerve, and pain pills from Mrs. Persinger at least once a week during 1974. She testified that Mrs. Persinger always sold the drugs to her and that the defendant was present 'quite a few times.' No drugs or pills were ever bought directly from the defendant by Mrs. Scammahorn.

In December 1974, Mrs. Scammahorn stopped buying pills from Mrs. Persinger, but still owed $60.00 for drugs brought 'on credit.' Seeing the Persingers at a bank on May 1, 1975, Mrs. Scammahorn told the Persingers she was not going to pay the $60.00. The defendant and his wife said that if she did not pay they would 'get' her. It was then arranged that if Mrs. Scammahorn paid $10.00 the debt would be settled. Mrs. Scammahorn testified that upon demanding a receipt for the $10.00, the defendant replied, 'You didn't give us a receipt for the pills.' She paid the $10.00 and was given a receipt written by the defendant and signed by his wife.

The defendant testified in his own behalf stating that prior to his wife's plea of guilty to the offense of sale of a controlled substance, he had no knowledge of such sales. The prescription drugs were kept by his wife in the bedroom and were under her charge. The defendant stated that he never observed that the labels were scraped off the bottles. Furthermore, he did not know the number of pills being used by himself and his wife 'because . . . she takes them more often than I do.'

Concerning the bank incident on May 1, 1975, the defendant said he asked Scammahorn for $10.00 which she owed to him and she requested a receipt. The receipt was signed by Mrs. Persinger because, according to the defendant, 'she let her (Scammahorn) have the money.'

Regarding the porch scene on June 23, 1975, the defendant stated he was with his wife on the porch and after drinking a soft drink, he went through the house and to the backyard to work on his truck. While walking through the house, the defendant heard a car and saw a woman drive into the driveway. Not knowing who the driver was, the defendant went to work on the truck, never knowing whether the driver got out of her car. Moreover, the defendant testified he did not hand his wife a pocket knife in the presence of Agent Rennacker.

The defendant argues that the evidence presented by the prosecution shows, at best, only his mere presence at the sale on June 23, 1975 and has established only his knowledge of the illegal conduct of his wife. Therefore, the evidence is insufficient to prove that the defendant entered into a conspiracy with his wife to commit the offense of unlawful delivery of a controlled substance in violation of Ill.Rev.Stat.1975, ch. 56 1/2, § 1401(d).

Conspiracy, because of its indefiniteness and comprehensiveness has often been the target for criticism. In Krulewitch v. United States, 336 U.S. 440, 445--46, 69 S.Ct. 716, 719--20, 93 L.Ed. 790, 795--96, (1949), Justice Jackson's concurring opinion referred to conspiracy as an 'elastic, sprawling and pervasive offense, * * * so vague that it almost defies definition.' (See, E.g., Johnson, 'The Unnecessary Crime of Conspiracy,' 61 Calif.L.Rev. 1137 (1937).)

Defining the mental state required for violation of the Illinois conspiracy statute (Ill.Rev.Stat.1975, ch. 38, § 8--2 ¹) the Committee Comments note:

Since an agreement (by words, acts or understanding) is required, there must be (1) an intent to agree. And, the agreement must be accomplished with (2) an intent that the offense which is the object of the agreement be committed. (S.H.A., ch. 38, § 8--2, at 459 (1972)).

Thus the requisite Mens rea elements are satisfied upon a showing of an agreement to commit an offense with the intent that the offense be committed. People v. Graham, 1 Ill.App.3d 749, 752, 274 N.E.2d 370. Furthermore, to satisfy the Actus reus requirement, the prosecutor must show an act in furtherance...