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People v. Persinger

OPINION FILED MAY 25, 1977.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

HAROLD D. PERSINGER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Clay County; the Hon. WILLIAM A. GINOS, JR., Judge, presiding.

MR. PRESIDING JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:

The defendant, Harold D. Persinger, was charged by an indictment with the crime of conspiracy as follows:

"Harold Persinger on the 18th day of June, 1975 * * * committed the offense of conspiracy, in that he did with the intent to commit the offense of unlawful delivery of controlled substance in violation of Illinois Revised Statutes, 1975, Paragraph 1401(d) Chapter 56 1/2, he agreed with Ida Frances Persinger to the commission of that offense and performed an act in furtherance of that agreement in that he obtained a prescription for less than 200 grams of a substance containing a derivative of barbituric acid, to-wit: Nembutal, and procured said controlled substance with his Public Aid Medical Card in violation of Illinois Revised Statutes, 1975, Paragraph 8-2(a), Chapter 38."

The defendant was tried by the court, without a jury, found guilty, and sentenced to a term of one year to 15 months. From this adverse judgment the defendant argues on appeal that: (1) the State failed to prove beyond a reasonable doubt that the defendant entered into an agreement with Ida Persinger with the intent to commit the offense of unlawful delivery; and (2) it was an abuse of discretion for the trial court to deny the defense counsel's offer of proof that a key witness (Mary Scammahorn) had been treated for an overdose of drugs. For the reasons detailed below, we find neither of these arguments persuasive and affirm the judgment of the lower court.

The State's evidence consisted primarily of the testimony of witnesses who observed four controlled purchases of pills from Mrs. Ida Persinger at the Persinger residence; testimony from a pharmacist identifying bottles and pills which were sold by Mrs. Persinger as coming from his pharmacy; and the testimony of Mrs. Mary Scammahorn, the mother-in-law of the defendant's son.

There were four planned purchases of pills from Ida Persinger on the 12th and 15th day of May and on the 17th and 23d of June, 1975. The first three "buys" were arranged and made by Mary Scammahorn. On the 12th and 15th of May, Scammahorn was accompanied by an agent with the Illinois Bureau of Investigation (IBI) who stayed in a car, parked in the driveway, and observed Scammahorn while she purchased pills from Mrs. Persinger. There was no testimony as to the contents of the pills purchased. The defendant was seen by the IBI agent, at the time of the first buy, outside the house, in the back, and the agent never saw the defendant enter the house.

On June 17, 1975, Scammahorn was accompanied by another IBI agent (Rennacker) who entered the Persinger home with Scammahorn to purchase two bottles of pills which were later determined not to contain controlled substances. Rennacker did not see the defendant, although Agent Bowman of the surveillance team stationed outside of the Persinger home (150 to 300 feet away) observed an unknown white male enter the house.

At the time of the last transaction, June 23, 1975, Agent Rennacker went alone to the Persinger residence, while Deputy Thompson and IBI agent Sandusky surveyed the house. Upon arriving at the Persinger home, Agent Rennacker met Ida Persinger and both sat down together on the porch swing. There was a man standing on the porch identified by Agent Rennacker and Deputy Thompson as the defendant. Agent Rennacker testified that while she and Mrs. Persinger were on the porch swing, Mrs. Persinger took two pill containers out of her purse. Then, without addressing him by name, Mrs. Persinger asked the man Agent Rennacker identified as the defendant: "Can I borrow your pocket knife because I want to scratch the prescription off the container." The man gave Mrs. Persinger a pocket knife and immediately entered the house. Agent Rennacker testified that she did not enter the house but observed the man she identified as the defendant for three minutes before he entered the house.

After removing the prescription label, Mrs. Persinger sold the pills to Agent Rennacker. The pills were analyzed and one bottle contained Nembutal, which contains Phenobarbital (a derivative of barbituric acid), while the other bottle contained no controlled substance.

Testimony was taken from Ray Cammon, a pharmacist, who described the process in which drugs were ordered and paid for by the Persingers. Mr. Cammon testified that on June 18, 1975, he filled three prescriptions on the Harold Persinger account: two bottles of Nembutal for Mrs. Persinger and one bottle of Librium for the defendant. Examining the two bottles of pills purchased by Agent Rennacker from Mrs. Persinger on June 23, 1975, Mr. Cammon identified them as Nembutal and Librium. Although the labels were partially scratched off, Mr. Cammon identified the bottle of Librium as coming from his pharmacy, whereas the bottle containing Nembutal only appeared to come from his pharmacy. Regarding the identification of the three bottles sold on May 12 by Mrs. Persinger to Mrs. Scammahorn, Mr. Cammon identified the bottles as "similar to the kind" used in his pharmacy, and stated the prescriptions were issued to the Persinger account January 27, March 25, and May 12, 1975. Mr. Cammon also identified the bottle of Librium pills Mrs. Persinger sold to Rennacker and Scammahorn on June 17, 1975 as having come from his pharmacy and that the prescription was made out to the defendant on March 25, 1975.

One of the principal witnesses for the State was Mary Scammahorn who testified that she bought sleeping, nerve, and pain pills from Mrs. Persinger at least once a week during 1974. She testified that Mrs. Persinger always sold the drugs to her and that the defendant was present "quite a few times." No drugs or pills were ever bought directly from the defendant by Mrs. Scammahorn.

In December 1974, Mrs. Scammahorn stopped buying pills from Mrs. Persinger, but still owed $60 for drugs bought "on credit." Seeing the Persingers at a bank on May 1, 1975, Mrs. Scammahorn told the Persingers she was not going to pay the $60. The defendant and his wife said that if she did not pay they would "get" her. It was then arranged that if Mrs. Scammahorn paid $10 the debt would be settled. Mrs. Scammahorn testified that upon demanding a receipt for the $10, the defendant replied, "You didn't give us a receipt for the pills." She paid the $10 and was given a receipt written by the defendant and signed by his wife.

The defendant testified in his own behalf stating that prior to his wife's plea of guilty to the offense of sale of a controlled substance, he had no knowledge of such sales. The prescription drugs were kept by his wife in the bedroom and were under her charge. The defendant stated that he never observed that the labels were scraped off the bottles. Furthermore, he did not know the number of pills being used by himself and his wife "because * * * she takes them more often than I do."

Concerning the bank incident on May 1, 1975, the defendant said he asked Scammahorn for $10 which she owed to him and she requested a receipt. The receipt was signed by Mrs. Persinger because, according to the ...


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