SASSER (DENISE) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: SEPTEMBER 5, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001269-MR
DENISE SASSER
v.
APPELLANT
APPEAL FROM KNOX CIRCUIT COURT
HONORABLE REBECCA OVERSTREET, SPECIAL JUDGE
ACTION NO. 06-CR-00072
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON AND STUMBO, JUDGES; BUCKINGHAM,1 SENIOR
JUDGE.
CAPERTON, JUDGE: Denise Sasser (Sasser) appeals her conviction of criminal
possession of a forged prescription and first-degree persistent felony offender, in
the Knox Circuit Court. Sasser argues that it was error for the court to deny her
Senior Judge David C. Buckingham, sitting as Special Judge by Assignment of the Chief
Justice pursuant to Section 110 (5) (b) of the Kentucky Revised Statutes (KRS) 21.580.
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motion for a directed verdict. Sasser also argues that the prosecutor’s repeated
misconduct throughout the trial resulted in a denial of due process of law. After a
careful review of the record and counsel’s arguments, we find no error entitling
Sasser to relief and, thus, affirm the Knox Circuit Court.
Testimony at trial established that Sasser went to the Knox County
emergency room to be treated for low back pain on May 5, 2006. The treating
physician testified that he prescribed the narcotic, Lortab, and recorded in his notes
that the prescription was for ten tablets.2 The treating physician testified that he
did not hand the prescription directly to Sasser but instead, handed the prescription
to a nurse with further discharge instructions.
Sasser then took the prescription to the Rite Aid pharmacy to be filled.
The pharmacy technician noticed that the writing on the prescription was odd
because the ink on the quantity was darker than the ink used on the rest of the
prescription. The quantity on the prescription at that time was twenty (20). She
was also suspicious as she believed that the treating physician did not usually write
the quantity of pills on the prescription. The pharmacy called the police.
Officer Robert Brown testified that he arrived at the pharmacy and
found Sasser with her boyfriend. When questioned about the prescription, Sasser
maintained that the prescription was unaltered by either her boyfriend or herself.
On cross examination, Officer Brown was asked about his conversation with the
The treating physician testified that the prescription was written out in his handwriting but the
numeral “2” in the quantity of twenty (20) was not his handwriting.
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treating physician and the discharge nurse. Officer Brown stated that he spoke
with a nurse but was unsure if this was the same nurse who discharged Sasser.
Sasser testified that she had no knowledge of the alteration of the
prescription. She further testified that she did not need the prescription because
she already received both ample amounts and a higher dosage of Lortab tablets per
month.
Sasser argues that the trial court erred in denying her motion for a
directed verdict. She claims that the Commonwealth failed to present a crucial link
in the evidence, the testimony of the discharge nurse, and thus was entitled to a
directed verdict.
On motion for directed verdict, the trial court must draw
all fair and reasonable inferences from the evidence in
favor of the Commonwealth. If the evidence is sufficient
to induce a reasonable juror to believe beyond a
reasonable doubt that the defendant is guilty, a directed
verdict should not be given. For the purpose of ruling on
the motion, the trial court must assume that the evidence
for the Commonwealth is true, but reserving to the jury
questions as to the credibility and weight to be given to
such testimony.
On appellate review, the test of a directed verdict
is, if under the evidence as a whole, it would be clearly
unreasonable for a jury to find guilt, only then the
defendant is entitled to a directed verdict of acquittal.
Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky.1983).
Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991).
At trial, defense counsel moved for a directed verdict based on the
insufficiency of the evidence. On appeal Sasser argues that a “missing link in the
chain of custody” occurred after the doctor wrote the prescription and handed it to
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a nurse because there was no evidence presented that the nurse did not alter the
prescription. Defense counsel did not object to the admission of the evidence at
trial. Under KRE 103 a timely objection must be made before error can be
predicated thereon absent palpable error. By not objecting to the admission of the
evidence nor there being any grounds for palpable error, the admission of such
evidence cannot be grounds for reversal. KRE 103. We do not agree with Sasser
that moving for a directed verdict based on insufficiency of the evidence salvages
the alleged error.3 We therefore will treat the argument as that of a defense to the
forgery.
Assuming arguendo, that Sasser’s motion for a directed verdict was
sufficient to preserve for review her claim of error, the Commonwealth was not
required to prove that an intervening actor did not change the prescription prior to
giving it to Sasser. Any gap between the doctor writing the prescription and Sasser
receiving the prescription would go to the weight of the evidence. See Benham.
Further, the Commonwealth is not required to produce duplicitous witnesses to
prove each particular element of a crime.
The Commonwealth at trial established that the prescription presented
to the jury was the one which Sasser presented to the pharmacy and the treating
physician testified that the numeral “2” was not in his handwriting. Given the
evidence presented at trial, it was not unreasonable for a jury to find guilt. As
such, the denial of Sasser’s directed verdict motion was not error.
A general motion for a directed verdict is not sufficient to preserve an issue for appellate
review. See Gibbs v. Commonwealth, 208 S.W. 3d 848 (Ky. 2006).
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Sasser argues that the repeated misconduct of the Commonwealth’s
Attorney throughout the trial denied her due process of law. The alleged
misconduct occurred when the Commonwealth’s witness, Officer Brown, testified
as to why he took certain action, namely arresting Sasser after speaking with other
witnesses. Sasser argues that the introduction of the testimony amounts to
investigative hearsay.4 Alternatively, Sasser argues that the testimony amounted to
the officer’s opinion of the evidence, i.e., Sasser was arrested based on the
statements given to the officer, which he believed to be true, and thus she must be
guilty.
This error was unpreserved for appeal and thus must be considered
under a palpable error analysis of RCr 10.26. RCr 10.26 states that
A palpable error which affects the substantial rights of a
party may be considered by the court on motion for a
new trial or by an appellate court on appeal, even though
insufficiently raised or preserved for review, and
appropriate relief may be granted upon a determination
that manifest injustice has resulted from the error.
Id. ‘Manifest injustice’ requires that substantial rights of the defendant were
prejudiced by the error, i.e., there is a substantial possibility that the result of the
trial would have been different. Schaefer v. Commonwealth, 622 S.W.2d 218 (Ky.
1981) and Jackson v. Commonwealth, 717 S.W.2d 511 (Ky.App. 1986).
Within the investigative hearsay argument Sasser presents a separate argument that Officer
Brown’s testimony impermissibly bolstered the Commonwealth’s witnesses. Based on our
review of the record, Officer Brown’s testimony does not bolster the Commonwealth’s witnesses
given our jurisprudence under prior consistent statements. See Smith v. Commonwealth,
920 S.W.2d 514 (Ky. 1995)
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Our review of the record indicates that Officer Brown was asked by
Commonwealth if he spoke with the witnesses, and so then charges were brought
against Sasser based on the conversations. As stated in Nugent v. Commonwealth,
639 S.W.2d 761(Ky. 1982), “[t]he issue of guilt or innocence is one for the jury to
determine, and an opinion of a witness which intrudes on this function is not
admissible.” Id. at 764. In Nugent the witness’s statement that he believed that the
defendant had committed murder was introduced. In the case sub judice, Officer
Brown did not testify as to his belief in Sasser’s guilt or innocence. Further, any
error in the admission of the testimony did not amount to palpable error, as
required for an unpreserved error. No manifest injustice resulted from the error as
there is not a substantial probability that the outcome of the proceeding would have
been any different after exclusion of the officer’s testimony.
Sasser similarly argues that Officer Brown’s testimony amounted to
impermissible investigative hearsay. The Kentucky Supreme Court has held that:
The rule is that a police officer may testify about
information furnished to him only where it tends to
explain the action that was taken by the police officer as
a result of this information and taking of that action is an
issue in the case. Such information is then admissible, not
to prove the facts told to the police officer, but only to
prove why the police officer then acted as he did. It is
admissible only if there is an issue about the police
officer's action
Bussey v. Commonwealth, 797 S.W.2d 483(Ky. 1990), citing Sanborn v.
Commonwealth, 754 S.W.2d 534, 541 (Ky. 1988)(overruled on other grounds by
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Hudson v. Commonwealth, 202 S.W.3d 17 (Ky. 2006)). Assuming that the
testimony of Officer Brown amounted to investigative hearsay, any perceived error
in the admission of Officer Brown’s testimony does not amount to palpable error.
In light of the other evidence presented at trial, we fail to see how the requirements
of RCr 10.26 are met, i.e., manifest injustice. Therefore, we disagree with Sasser
that the claimed errors mandate a reversal of the conviction.
After a thorough review, we hereby affirm.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gene Lewter
Lexington, Kentucky
Jack Conway
Attorney General
Heather M. Fryman
Assistant Attorney General
Frankfort, Kentucky
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