Sexton v. State Of Ind.
| Decision Date | 11 February 2011 |
| Docket Number | No. 71A05-1005-CR-352,71A05-1005-CR-352 |
| Parties | WILLIAM T. SEXTON, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
ERNEST P. GALOS
GREGORY F. ZOELLER
Attorney General of Indiana
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Roland W. Chamblee, Judge
In this consolidated appeal, William Sexton appeals his convictions for Class B misdemeanor false informing and Class D felony attempting to acquire a legend drug by fraud, deceit, misrepresentation, or subterfuge. He contends that the evidence is insufficient to support his convictions and that the trial court abused its discretion in refusing to give his tendered instruction on abandonment. Sexton also contends that the trial court erred in revoking his probation in an unrelated cause number. We conclude that the evidence is sufficient to support Sexton's convictions and that the trial court did not abuse its discretion in refusing to give Sexton's tendered instruction on abandonment. We also conclude that the trial court properly revoked Sexton's probation in the unrelated cause number for committing the offenses in this case. We therefore affirm the trial court.
On July 28, 2008, Kelly Keefe was working as a pharmacy technician at the CVS on Main Street in Mishawaka, Indiana. Between 9:50 and 10:00 p.m., two white males approached the pharmacy counter, and one of them handed Keefe a prescription for Vicodin in the name of "John Colts." See State's Ex. 2. Because the store closed at 10:00 p.m., these two males were the "[l]ast [pharmacy] customer[s] of the night." Tr. p. 128. In fact, the front doors of the store were already locked so that no additional customers could enter. Id.
Vicodin, a controlled substance, requires a person to present a driver's license or identification card before the prescription can be dispensed. Keefe therefore asked themale who handed her the Vicodin prescription for his driver's license or identification card, but he did not have one. So, the other male handed his card to Keefe. Keefe then wrote the number from his card on the address line of the prescription. Upon reviewing the prescription, Keefe immediately suspected that the quantity of pills to be dispensed had been altered. That is, the prescription said "25" but the Roman Numeral "XV" (15) was written after the 25. Keefe surmised that the 1 had been changed to a 2, thereby making the prescription for 25 Vicodin pills instead of the originally prescribed 15. Keefe gave the prescription to the pharmacist, Bernard Edet, who also thought that the quantity of pills to be dispensed had been altered. Not only was XV written after 25, but there was a check next to the box indicating the quantity of pills as "1-24" (and not "2549"). See State's Ex. 2. Edet decided to call the emergency room doctor who wrote the prescription. During this delay, Edet informed the males that he had to call "to verify something on the prescription." Tr. p. 143. When Edet found out that the emergency room doctor did not change the prescription, he called the Mishawaka Police Department. Edet described the suspects to the police and told them what was going on. Id. at 139, 147. The prescription was never filled.
Officer Chad Smith, who was merely across the street at the police station, arrived at CVS "just past" 10:00 p.m. Id. at 114. CVS employees informed Officer Smith that "there were only two people inside the store [who] were not employees and they were the two listed suspects in the attempted passing of the fraudulent prescription." Id. at 114-15. Officer Smith and several other officers waited for the two males by the exit door. When the two males approached the exit door, Officer Smith asked one of the employees if theywere the ones who possessed the prescription. Id. at 115. The employee said yes. Officer Smith then asked one of the males for his name, and he responded "John Smith." Id. Another officer, however, immediately recognized the male from previous dealings as Sexton, not John Smith. Id. at 123-24. The officer, who knew that Sexton had a certain tattoo across his chest, asked the male to lift his shirt. The officer immediately recognized the male's tattoo as the one on Sexton. The other man was identified as Larry Sexton ("Larry"). Id. at 115. It was later determined that the number Keefe wrote on the prescription was Larry's driver's license number. Id. at 158; State's Exs. 2 & 3. This meant that Sexton was the one who presented the prescription while Larry was the one who provided identification.
Thereafter, the State charged Sexton with Class B misdemeanor false informing and Class D felony attempting to acquire a legend drug by fraud, deceit, misrepresentation, or subterfuge under Cause No. 71D08-0907-FD-769. Several months later, the State filed a petition to revoke Sexton's probation in an unrelated case, Cause No. 71D03-0403-FD-281, because of the charges in this case. Appellant's App. p. 137. The two cases were heard at the same time before the trial court.
Following a jury trial, Sexton was found guilty as charged. The trial court also found that he violated his probation in Cause No. 281 for committing the offenses in this case. Tr. p. 182; Apr. 19, 2010, Tr. p. 3. The trial court sentenced Sexton to sixty days for false informing and two years for attempting to acquire a legend drug by fraud, deception, misrepresentation, or subterfuge. The court ordered the sentences in this case to be served concurrent to one another but consecutive to Sexton's three-year sentencefor violating his probation in Cause No. 281. The cause numbers have been consolidated for purposes of Sexton's appeal.
Sexton raises several issues on appeal. First, he contends that the evidence is insufficient to support his convictions. Second, he contends that the trial court abused its discretion in refusing to give his tendered instruction on abandonment. Finally, he contends that the evidence is insufficient to support the revocation of his probation in Cause No. 281.
Sexton contends that the evidence is insufficient to support his convictions for Class B misdemeanor false informing and Class D felony attempting to acquire a legend drug by fraud, deceit, misrepresentation, or subterfuge. When reviewing the sufficiency of the evidence, appellate courts must only consider the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient. Id. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it "most favorably to the trial court's ruling." Id. Appellate courts affirm the conviction unless "no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt." Id. at 146-47 (quotation omitted). It is therefore not necessary that the evidence "overcome every reasonable hypothesis of innocence." Id. at 147 (quotation omitted). "[T]he evidence is sufficient if an inference may reasonably be drawn from it to support the verdict." Id. (quotation omitted).
Sexton first argues that the evidence is insufficient to support his convictions because "the persons directly dealing with the alleged offense, Mr. Edet and Ms. Keefe, could not identify William Sexton in court as the person in the pharmacy on July 28, 2008." Appellant's Br. p. 15. It is true that neither Edet nor Keefe identified Sexton in court. See Tr. p. 1 47 ( ), 127 ( ). Nevertheless, circumstantial evidence supports Sexton's identity as the person who presented the altered prescription and gave a false name on July 28, 2008. See Malone v. State, 547 N.E.2d 1101, 1104 (Ind. Ct. App. 1989) (), trans. denied. That is, the two males were the last pharmacy customers of the night. Indeed, the doors to CVS were locked so that no additional customers could enter the store. Edet called the police as soon as he realized that the emergency room doctor did not change the prescription. Officer Smith arrived at CVS "[a] minute and a half at the most" after he received the call. Tr. p. 119. CVS employees informed Officer Smith that "there were only two people inside the store [who] were not employees and they were the two listed suspects in the attempted passing of the fraudulent prescription." Id. at 114-15. Officer Smith and the other officers waited for the two males by the exit door. When the two males approached the exit door, Officer Smith confirmed with an employee that they were the ones who possessed the prescription. Officer Smith then asked one of the males his name, and he gave a false name....
To continue reading
Request your trial