Ralston v. State, 1-580A107

Decision Date29 October 1980
Docket NumberNo. 1-580A107,1-580A107
Citation412 N.E.2d 239
PartiesRichard RALSTON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
CourtIndiana Appellate Court

Don R. Darnell, Newport, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

RATLIFF, Judge.

STATEMENT OF THE CASE

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.

STATEMENT OF THE FACTS

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.

                "STATE OF INDIANA
                       vs
                Richard Ralston    )
                Mark Slaughter     )        Paragraph I
                Terre Haute, IN    )        Forgery
                                     Cause  No. CR 79-16
                

"Michael Guinn, Clinton City Police being duly sworn upon his oath, says that: Richard Ralston, and Mark Slaughter late of the said County, on or about the 27 day of March A.D., 1979 at the County and State aforesaid, did with intent to defraud Powell's Pharmacy Jim Michaels owner, utter a written instrument, to-wit:

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.

                "STATE OF INDIANA
                       vs
                Richard Ralston    )       Paragraph II
                Mark Slaughter     )  Attempted Possession
                                           of a Controlled
                                           Substance
                                      Cause No. CR 79 16
                

"Mike Guinn Clinton City Police being duly sworn upon his oath, says that: Richard Ralston and Mark Slaughter late of the said County, on or about the 27 day of March A.D., 1979 at the County and State aforesaid, did attempt to commit the crime of possession of a controlled substance by knowingly presenting a forged prescription to be filled for Preludin at Powell's Pharmacy which conduct constituted a substantial step toward the commission of said crime of possession of a controlled substance.

"All of which is contrary to the form of statute in such cases made and provided, to-wit: Ind. Code 35-41-5-1, and against the peace and dignity of the State of Indiana."

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:

"1. Whether the defendant may be sentenced to two (2) consecutive terms of imprisonment when found guilty of committing two (2) criminal offenses neither of which require proof of different or additional facts, which the other does not.

"2. Whether the trial court may overrule the defendant's motion to correct errors notwithstanding the State of Indiana's failure to respond or object to the defendant's motion to correct errors.

"3. Whether the court erred in sustaining the State of Indiana's motion in limine; ordering that the defendant and/or his attorney shall not mention before the jury at any stage of the trial the possible penalties of the crime which the defendant was alleged to have committed.

"4. Whether the court erred in allowing the State of Indiana's witness, Mike Guinn, to give his account or opinion as to whether a previous witness of the State of Indiana's testimony during the trial was consistent with previous out-of-court statements of the witness.

"5. Whether the court erred in reading to the jury the court's preliminary instruction defining the offense of Possession of a Controlled Substance, Schedule I, II, III, IV, or V except Marijuana or Hashish; notwithstanding that the defendant was not charged with the commission of said offense.

"6. Whether the court erred in overruling the defendant's motion to dismiss Paragraph II, the crime of Attempted Possession of a Controlled Substance; because of the failure of the State of Indiana to properly allege the essential element of 'controlled substance' classified in Schedule I, II, III, IV or V, except Marijuana or Hashish; and failure to cite the statutory provisions alleged to have been violated by the defendant.

"7. Whether the court erred in overruling the defendant's objection to the State of Indiana's witness, Jim Michaels' testimony as to whether Preludin contains any ingredients which are a controlled substance.

"8. Whether the court erred in overruling the defendant's motion in limine; requesting the court to order the State of Indiana to refrain from attempts to introduce into evidence criminal conduct of the defendant with respect to any crimes other than the ones which he was currently on trial for.

"9. Whether the court erred in overruling the defendant's motion for directed verdict at the close of the State of Indiana's case with respect to Paragraph I, Forgery, and the defendant's motion for a directed verdict at the close of all the evidence, because the State of Indiana failed to produce any evidence that the defendant did in fact utter a written prescription and/or intended to defraud anyone.

"10. Whether the court erred in overruling the defendant's motion for directed verdict of Paragraph II, Attempted Possession of a Controlled Substance, and a directed verdict at the close of all the evidence, because the State of Indiana failed to present any evidence that the defendant did knowingly present a forged prescription to Powell's Pharmacy.

"11. Whether the court erred in allowing the State of Indiana's witnesses, Cathy Burns, Mark Slaughter and Annette Pine to provide testimony of the defendant's involvement in other crimes other than those with which he was charged.

"12. Whether the court erred in reading the State of Indiana's instructions numbered 1, 2, 3, 5 and 6, which erroneously instructed the jury as to the law with respect to the issues involved in this crime.

"13. Whether the court erred in failure to give the defendant's instructions numbered 1 and 4."

DECISION
Issue One

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:

"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Gavieres v. United States, 220 U.S. 338, 342 (31 S.Ct. 421, 422, 55 L.Ed. 489) and authorities cited."

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:

"35-43-5-2 FORGERY

"Sec. 2. A person who, with intent to defraud, makes or utters a written instrument in such a manner that it purports to have been made:

(1) by another person;

(2) at another time;

(3) with different...

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