Sharp v. State, 34A028905CR00230

Citation569 N.E.2d 962
Decision Date26 March 1991
Docket NumberNo. 34A028905CR00230,34A028905CR00230
PartiesSteven SHARP, Barbara Sharp, Appellants (Defendants Below), v. STATE of Indiana, Appellee.
CourtCourt of Appeals of Indiana

This court upon its own motion deems Issues I, IV, VI, X, and XII(B) of the unpublished Memorandum Decision bearing the above caption, to satisfy the criteria for publication pursuant to Appellate Rule 15(A). Now therefore the redacted version of the Memorandum Decision as attached hereto and made a part hereof is ordered published.



Steven Sharp (Steven) and Barbara Sharp (Barbara) present a consolidated appeal challenging their respective convictions. Steven and Barbara were tried jointly by a jury. Steven was convicted of two counts of conspiracy to deal cocaine or a narcotic drug, class A felonies, one count of conspiracy to deal a Schedule I, II, or III drug, a class B felony, and one count of conspiracy to maintain a common nuisance, a class D felony. Barbara was convicted of two counts of conspiracy to deal cocaine or a narcotic drug, class A felonies, one count of conspiracy to deal a Schedule I, II, or III drug, a class B felony, one count of conspiracy to maintain a common nuisance, a class D felony, and one count of conspiracy to commit theft, a class D felony.

We affirm in part and reverse in part.

Steven and Barbara present the following issues for our review, which we restate:

I. Whether the court erred in permitting defendants' physicians to testify and in admitting into evidence prescriptions issued by the physicians;

II. Whether the court violated defendants' due process rights by issuing ex parte subpoenas for defendants' medical records;

III. Whether the court erred in denying defendants' motion for change of venue;

IV. Whether the charges against Steven were barred by double jeopardy considerations and by Ind.Code 35-41-4-4;

V. Whether the court erred in overruling an objection to the prosecutor's reference in opening argument to Barbara's use of drugs;

VI. Whether the court erred in refusing to grant Steven's motion for mistrial after Barbara's daughter testified that Steven raped her;

VII. Whether the court erred in admitting the hearsay statements of the deceased informants without a showing that the statements were reliable;

VIII. Whether the prosecutor impermissibly commented upon Barbara's right to remain silent;

IX. Whether the court erred in admitting defendants' divorce decree;

X. Whether there was sufficient evidence to support Barbara's conviction of conspiracy to commit theft;

XI. Whether the prosecutor's statement concerning the "war on drugs" in final argument was erroneous;

XII. Whether the evidence was sufficient to convict the defendants of one conspiracy to maintain a common nuisance, and three conspiracies to sell drugs;

XIII. Whether the court erred in giving certain final instructions and in refusing two of defendants' tendered instructions;

XIV. Whether the court erred in imposing consecutive sentences upon defendants.


Steven and Barbara argue that the court erred in allowing their physicians to testify and in admitting written prescriptions. During trial, the State called as witnesses several doctors who had previously treated the defendants. The defendants objected upon grounds that the testimony was privileged and inadmissible.

Indiana Code 34-1-14-5 (Burns Code Ed.Repl.1984) provides, in part:

"The following persons shall not be competent witnesses: ...

Fourth. Physicians, as to matter communicated to them, as such, by patients, in the course of their professional business, or advice given in such cases."

The defendants contend that under this statute, the physicians were incompetent and should not have been permitted to testify. We disagree.

Evidentiary privileges are disfavored and are strictly construed. See Hulett v. State (1990) 2d Dist.Ind.App., 552 N.E.2d 47, trans. denied. The statute creates a limited physician-patient privilege and protects only communications necessary for treatment or diagnosis looking toward treatment. Lomax v. State (1987) 1st Dist.Ind.App., 510 N.E.2d 215.

In the present case, two of the physicians who were called as witnesses testified that they treated Barbara and submitted insurance claims to Blue Cross Blue Shield under Steven's insurance policy. Neither doctor revealed any communications by Barbara necessary for diagnosis or treatment. Because the doctors' testimony was limited to insurance claims and did not reveal any communications concerning treatment or diagnosis, there was nothing privileged in the testimony.

Four other physicians testified that they treated Steven and wrote prescriptions for various controlled substances during a period of time. The State also introduced several prescriptions which the doctors individually identified as prescriptions written by them on behalf of Steven. None of the physicians stated the reasons for treatment or divulged any statements made by Steven during the course of treatment. Because the testimony was confined to the drugs prescribed and the actual prescriptions, it is our opinion that neither the doctors' testimony nor the prescriptions were privileged. In this case, the testimony about the prescriptions and the actual prescriptions are outside the scope of the privilege set forth in Ind.Code 34-1-14-5.

Our holding is based in part upon an analysis of the nature of prescriptions. Essentially, a prescription is a communication by a doctor to a pharmacist written for the benefit of a patient. Prescriptions are privileged under Ind.Code 25-26-13-15 (Burns Code Ed.Repl.1982). However, that statute contains the following important exception:

"(b) A person who has knowledge by virtue of his office of any prescription drug order, record, or patient information may not divulge such information except in connection with a criminal prosecution or proceeding or a proceeding before the board, to which the person to whom the information relates is a party." (Emphasis supplied.)

We hold that when, as here, the patient on whose behalf the prescription is written is a defendant in a criminal prosecution involving the prescription, the prescription is not privileged. A reading of this statute in conjunction with Ind.Code 34-1-14-5 leads us to conclude that a physician's testimony, limited solely to drugs prescribed or prescriptions, is not privileged. 1 This holding is consistent with our Supreme Court's opinion in Green v. State (1971) 257 Ind. 244, 274 N.E.2d 267, 273:

"Where ... the privilege is used to conceal the commission of a crime, it has no social value and serves no public purpose but in fact is turned into a shield to the criminal and the commission of the crime.... It has been stated as a general proposition that professional communications are not privileged when made for an unlawful purpose having for their objective the commission of a crime."

See also Lomax, supra, 510 N.E.2d at 218.

* * *


Steven argues that the court committed fundamental error in allowing him to be charged with the drug conspiracy charges and erred in denying his motion to dismiss the conspiracy to maintain a common nuisance charge. He maintains that the charges violate the double jeopardy provisions of the United States Constitution and the Indiana Constitution. He also contends that under Ind.Code 35-41-4-4 (Burns Code Ed.Repl.1985), the conspiracy charges against him should have been dismissed.

Steven was previously convicted of several counts of dealing a Schedule I, II or III controlled substance and one count of maintaining a common nuisance. He appealed these convictions to our Supreme Court. Sharp v. State (1989) Ind., 534 N.E.2d 708. In his brief in this appeal, Steven asserts:

"The present case is nothing more than the conspiracy charges resulting from the underlying offenses as charged in the former case.... Those charges should have been brought in the former prosecution." Brief of Appellant at 27.

Steven argues that his convictions violate both the Indiana and United States constitutional provisions against double jeopardy. Although he concedes that conspiracy is not a necessarily included offense of the substantive crime, he argues that the conspiracy charges in this case were lesser included offenses as charged of the substantive crimes of which he was previously convicted.

However, Steven has neglected to provide us with a record from which we can review the allegations about his former appeal. The State correctly notes that it is the appellant's duty to provide a record which reflects the error alleged. Stallings v. State (1987) Ind., 508 N.E.2d 550. In his Reply Brief, Steven asks that we take judicial notice of the offenses charged in the prior proceeding. Although, generally, a trial court may not take judicial notice of prior proceedings, 2 the rule for judicial notice at the appellate level is not quite as straight forward. In Indiana Revenue Board v. Hansbrough (1981) 275 Ind. 426, 417 N.E.2d 311, our Supreme Court held that the Court of Appeals may search its own records to determine if the issues raised in an appeal were fully decided in a former appeal. The breadth of the holding in Hansbrough is not apparent from the opinion. Although Hansbrough would seem to hold that it is appropriate for us to review the record of Steven's first appeal, we decline to give an expansive interpretation to that case. We are cognizant that a reviewing court serves a different function than a trial court. In limited situations, this court has previously examined the record filed in a former appeal to ascertain facts necessary to interpret the holding of the case. Hudson v. Hudson (1985) 2d Dist.Ind.App., 484 N.E.2d...

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