Derek Early v. Commonwealth of Kentucky, 470 S.W.3d 729

Background

Derek Early obtained five pre-signed Lortab prescriptions filled by dental assistant Leah Herring using fictitious patient names; Herring admitted forging them and pled guilty.
Early sold four of the prescriptions to acquaintances; the fifth (Barbara Miller) was recovered in prescription records and investigated, leading to Early's indictment.
Early was convicted by a jury on five counts of trafficking in prescription blanks (KRS 218A.286(3)) and found to be a first-degree persistent felony offender; sentenced to 20 years.
On appeal Early argued (1) the trial court erred by denying a directed verdict for insufficient evidence (forgery and intent-to-sell elements) and (2) multiple convictions violated double jeopardy because multiple prescriptions obtained in a single transaction amounted to a single offense.
The Supreme Court of Kentucky reviewed preservation and palpable-error principles but reached the merits, holding the evidence was sufficient and multiple convictions did not violate double jeopardy.

Issues

Issue	Early's Argument	Commonwealth's Argument	Held
Whether trial court erred by denying directed verdict for insufficient evidence of "forgery"	The prescriptions were not "forged" because Early did not alter them and Herring merely exceeded her authority in using pre-signed blanks	Herring's acts altered pre-signed blanks without authorization and constitute forgery; Early’s lack of participation in the forgery is immaterial to possession/sale offense	Denied. A reasonable jury could find the prescriptions were forged and convict Early for possessing forged prescriptions with intent to sell.
Whether directed verdict should have been granted for lack of proof Early intended to sell the Barbara Miller prescription	No direct witness showed Early sold that particular prescription; it could have been for personal use	Circumstantial evidence (five forged prescriptions in different names, sale of four others, Early’s denial of drug use) supports inference of intent to sell	Denied. Circumstantial evidence sufficed for a jury to infer intent to sell.
Whether multiple convictions for trafficking in each forged prescription violate double jeopardy when several were obtained in one transaction	Three prescriptions obtained at once from Herring constituted a single transaction and therefore a single offense	Statute criminalizes trafficking in "a forged prescription" (singular); each forged prescription is a separate unit of prosecution	Denied. Each forged prescription is a separate offense; multiple convictions do not violate double jeopardy.
Preservation and review standard for alleged errors	Early contended his directed-verdict motion was properly preserved (or alternatively raised palpable error)	Motion lacked the specificity required and was not renewed at close of all evidence; Court may nevertheless review palpable error for double jeopardy	Motion was not preserved properly; Court nonetheless reviewed under palpable-error standard and found no reversible error.

Key Cases Cited

Commonwealth v. Jones, 283 S.W.3d 665 (Ky. 2009) (preservation and specificity requirements for directed-verdict motions)
Potts v. Commonwealth, 172 S.W.3d 345 (Ky. 2005) (generalized motions insufficient to preserve insufficiency claims)
Schoenbachler v. Commonwealth, 95 S.W.3d 830 (Ky. 2003) (must renew directed-verdict motion at close of all evidence)
Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991) (standard of review for directed verdict — draw all reasonable inferences for Commonwealth)
Williams v. Commonwealth, 178 S.W.3d 491 (Ky. 2005) (unit of prosecution determined by statutory language; separate photographs = separate offenses)
Williams v. Commonwealth, 213 S.W.3d 671 (Ky. 2006) (each prescription/dispensation may be a separate offense based on statutory text)
Commonwealth v. Burge, 947 S.W.2d 805 (Ky. 1996) (same-elements/Blockburger framework and guidance on prior tests)
Commonwealth v. Grubb, 862 S.W.2d 883 (Ky. 1993) (single sales transaction principle; limited in scope and not controlling here)
Beaty v. Commonwealth, 125 S.W.3d 196 (Ky. 2003) (double-jeopardy claims may be reviewed even if not raised at trial)