                                              RENDERED: SEPTEMBER 24, 2015
                                                          TO BE PUBLISHED

               ,ittprrittr (Court of i rtifurkv    r
                                                   t


                              2014-SC-000311-MR


DEREK EARLY                                                            APPELLANT


               ON APPEAL FROM MCCRACKEN CIRCUIT COURT
V.                HONORABLE CRAIG Z. CLYMER, JUDGE
                          NO. 13-CR-00150-002


COMMONWEALTH OF KENTUCKY                                                APPELLEE



                  OPINION OF THE COURT BY JUSTICE NOBLE

                                   AFFIRMING

      Appellant, Derek Early, secured and later sold five forged prescriptions

for a controlled substance. He was convicted of five counts of trafficking in

prescription blanks and being a first-degree persistent felony offender.

Following the jury's recommendation, the trial court sentenced him to twenty

years' imprisonment. In this matter-of-right appeal, Early claims the trial court

erred by (1) denying his motion for a directed verdict, and (2) violating the bar

on double jeopardy.

      Finding no reversible error, his convictions are affirmed


                                I. BACKGROUND
      Leah Renee Herring was a dental assistant at Ciampa Oral Surgery and,

due to her work in post-surgery recovery, she had access to prescription blanks

that were pre-signed by her employer, Dr. Ciampa. Herring testified that she
and her fellow dental assistants used the pre-signed prescription blanks on a

daily basis for prescribing pain medication to authorized patients recovering

from oral and maxillofacial surgery.

      On January 4, 2013, Derek Early called Herring, a long-time friend.

Aware of her profession, Early complained that he was "hurting" and asked her

to write him a prescription. Although Herring initially declined, she eventually

agreed and met Early at a predetermined location near Dr. Ciampa's office.

Upon their meeting, Early pulled his vehicle next to Herring's and instructed

her to write the prescription for Barbara Miller. When Herring questioned his

request, Early explained that he wanted the prescription in a different name to

avoid trouble.

      Herring complied and filled out one of Dr. Ciampa's pre-signed

prescription blanks for Lortab under the name of a fictitious patient, Barbara

Miller. Herring testified that she did not know anyone named Barbara Miller

and that she was aware that Barbara Miller was not one of Dr. Ciampa's

patients. She also admitted at trial that the prescription was a forgery.

      On January 7, 2013, Early called Jarrod Pierce, a former co-worker and

known narcotics addict. Early informed Pierce that he had certain connections

at a doctor's office and could get Pierce a prescription for pain pills. Pierce said

he was interested and asked Early to put the prescription in the name of his

ex-girlfriend, Kari Leigh, believing Leigh's insurance might cover the cost of the

prescription.

      On that same day, Early reached out to Gary McDonald, his friend since

childhood. Early asked McDonald if he, or anyone he knew, was interested in
                                          2
buying Lortab prescriptions. McDonald was in a car with his girlfriend's

brother, Tommy Amis, who had a history of prescription-drug abuse. McDonald

asked Amis if he wanted a prescription, Amis said yes, and McDonald relayed

Amis' full name and date of birth to Early.

      Early contacted Herring again and asked for three additional Lortab

prescriptions. They met at the same location near the surgeon's office, and

Early instructed Herring to write specific names on each of the three

prescriptions. Herring then filled out three pre-signed prescriptions, each

bearing a different name: Kari Leigh, Tommy Amis, and Brittany Harris.

      Later that day, Early met Pierce and, in exchange for $60, gave him the

prescription for Kari Leigh. McDonald and Amis also drove to meet Early. Upon

their arrival, McDonald got into Early's vehicle and purchased the Tommy Amis

and Brittany Harris prescriptions for $200. McDonald returned to his car

where Amis was still waiting. Amis noticed that McDonald had two

prescriptions. Amis took the prescription bearing his own name but declined

the prescription for Brittany Harris.

      On January 18, 2013, McDonald called Early and requested another

prescription, this time in his own name. Early confirmed the order, contacted

Herring, and asked her for another prescription. Herring met Early and filled

out a prescription with Gary McDonald's name, but before giving it to Early,

she told him that she would not write him any more prescriptions. Later,

McDonald gave Early $100 for the prescription bearing his name and took it to

a pharmacy.



                                        3
      A few days later, Kari Leigh was on her pharmacy's website, ordering a

refill for her son's medication, when she noticed an unfamiliar prescription for

Lortab in her prescription history. Her subsequent conversations with the

pharmacy and Detective John Toliver led to a full investigation of the forged

prescription. The investigation led Toliver and the police to Dr. Ciampa's office . ,

which, in turn, led them to Herring and, ultimately, to Early.

      A grand jury indicted Early, Herring, Pierce, McDonald, and Amis. The

latter four pleaded guilty to various criminal counts, and all four testified at

Early's trial. The jury convicted Early of five counts of trafficking in prescription

blanks, KRS 218A.286(3), recommending five years on each count to run

concurrently. The jury also found that he was a persistent felony offender in

the first degree, KRS 532.080, and recommended the maximum punishment.

His ultimate sentence was a PFO-enhanced twenty years.

      Early now appeals to this Court as a matter of right. Ky. Const.

§ 110(2)(b). Additional facts will be developed as needed below.


                                   II. ANALYSIS

   A. The trial court did not err in denying Early's motion for a directed
       verdict.

      Early argues the trial court violated his right to due process of law when

it denied his motion for a directed verdict at the close of the Commonwealth's

case. He offers two reasons in support of this claim: (1) that the

Commonwealth failed to produce sufficient evidence proving the prescriptions

were "forged," and (2) that there was no evidence Early possessed the Barbara

Miller prescription with the intent to sell it to another person.

                                          4
      Before turning to the merits of these claims, however, there is a question

whether this issue was properly preserved for appellate review. The

Commonwealth argues that Early's motion for a directed verdict failed to meet

the specificity requirement, Civil Rule 50.01, and that at the close of all

evidence, he failed to renew his motion for a directed verdict. See

Commonwealth v. Jones, 283 S.W.3d 665, 669 (Ky. 2009) ("to preserve an error

based upon the insufficiency of the evidence the defendant ... must renew his

motion at the close of all evidence").

       Early maintains that his initial motion for a directed verdict was more

than a "generalized motion" and, although the video record contains no

indication of renewal, he asserts that the Court should assume he renewed

such motion during an unrecorded discussion regarding jury instructions.

Believing the denial resulted in manifest injustice, Early alternatively requests

that we review this issue under the palpable error standard set forth in

Criminal Rule 10.26.

      For sufficient preservation on appeal, a motion "must state specific

grounds for relief and should identify which elements of the alleged offense the

Commonwealth has failed to prove." Jones, 283 S.W.3d at 669. Insufficiently

specific motions, such as moving summarily for a directed verdict or making a

general assertion of insufficient evidence, are not enough to satisfy the

specificity requirement. Potts v. Commonwealth, 172 S.W.3d 345, 348 (Ky.

2005). Moreover, even the most specific motion for a directed verdict that is

made at the close of the Commonwealth's case "but not renewed at the close of



                                         5
all evidence ... is insufficient to preserve an error based on insufficiency of the

evidence." Schoenbachler v. Commonwealth, 95 S.W.3d 830, 836 (Ky. 2003).

      Early's motion for a directed verdict contained only vague assertions that

the evidence was insufficient. In making his motion, Early stated:

      For the record, I want to make a motion for directed verdict. I think
      that although there's been some testimony about my client being
      involved, none of the documentary evidence in any way points
      directly to him. There was no indication that he changed or wrote
      on or did anything other than we've got some testimony from
      people who were trying to get themselves arguably out of trouble.
      So for the record, I would like to ask for a directed verdict.

This motion excludes any reference to a specific count or challenge to a specific

element of the alleged crime. Moreover, it is more a challenge to the credibility

of the Commonwealth's proof than its existence, since it alleges that the

Commonwealth's proof consists only of the testimony of self-interested

witnesses, which is not a proper ground for a directed verdict. Therefore, the

motion lacked the particularity necessary to allow the trial court "the

opportunity to pass on the issue in light of all the evidence." Baker v.

Commonwealth, 973 S.W.2d 54, 55 (Ky. 1998).

      Furthermore, Early failed to renew his motion for a directed verdict. At

the close of all evidence, the trial court asked if there was any more proof. Early

responded, "No, your honor," and the jury was released for the day. The parties

discussed amending the jury instructions, agreed to examine the instructions

later that evening, and the trial court turned off the video recording equipment.

No renewal of the motion was made on the record.

      Early argues that this Court should assume he renewed his motion for a

directed verdict when the parties reconvened to discuss jury instructions "given
                                         6
that this would have been the first time he would have been given to do so."

Such an assumption is hard to justify given that the most opportune moment

to renew a motion for a directed verdict is immediately at the close of all proof,

rather than some later time when instructions are discussed. And Early failed

to take advantage of that opportunity here.

          More importantly, it is an appellant's burden to present a complete

record and to establish that an error is preserved for our review.    Bingham v.

Davis, 444 S.W.2d 123, 124 (Ky. 1969). We acknowledge that litigants have

little control over recording equipment during trial and that various

inconsistencies may occur. However, when issues arise concerning the

completeness and accuracy of the record, parties are not without recourse.

They are specifically allowed to submit narrative supplements where there are

gaps in the record. CR 75.13. Early made no attempt to cure the record in this

manner. In fact, he has not even alleged that the motion in question was

actually made, only that there is a time during the trial when it was most likely

made. That is insufficient to preserve this claim for ordinary appellate review.

This Court will not assume a motion was made where there is no evidence that

it was.

      Although the issue was insufficiently raised and improperly preserved for

our review, Early requests that the Court undertake a palpable error analysis.

Under Criminal Rule 10.26, an unpreserved error is palpable if it "affected the

defendant's substantial rights and resulted in manifest injustice." Barker v.

Commonwealth, 341 S.W.3d 112, 114 (Ky. 2011) (citing Commonwealth v. Pace,

82 S.W.3d 894 (Ky. 2002)). The Court will grant relief only if the error so
                                           7
seriously affected the fairness and integrity of the proceeding as to be

"shocking or jurisprudentially intolerable." Martin v. Commonwealth, 207

S.W.3d 1, 4 (Ky. 2006).

      As for the merits of Early's claim, when evaluating a motion for a directed

verdict on appeal, "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." Commonwealth

v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citing Commonwealth v. Sawhill,

660 S.W.2d 3 (Ky. 1983)). In that review, the Court draws all fair and

reasonable inferences in favor of the Commonwealth and assumes that the

Commonwealth's evidence is true. Id.

      Ultimately, even if we disregard preservation and review the issue under

the palpable error standard, it is evident that the trial court did not err in

denying Early's motion for a directed verdict. Early's arguments are each

discussed in turn.

      1. The Commonwealth presented sufficient evidence for a
          reasonable jury to find that the prescriptions constituted
         forgeries.

      Early contends that he was entitled to a directed verdict acquitting him

on all counts because there is a lack of evidence showing the Lortab

prescriptions were "forged." First, he claims that since he never wrote on the

prescriptions or personally altered them in any way, they were not forgeries.

Second, he claims that Herring's actions did not amount to forgery because she

simply abused her authority when completing prescriptions for non-patients.

      Early's first claim is grounded in a misunderstanding of the relevant

statute. A person is guilty of trafficking in prescription blanks when he
                                         8
"knowingly and unlawfully traffics in a prescription blank or a forged

prescription for a controlled substance." KRS 218A.286(3). The jury

instructions aptly defined traffic as "to sell or transfer or possess with intent to

sell," which is consistent with the relevant language in the KRS Chapter 218A

definition. See KRS 218A.010(49). Thus, Early's convictions under KRS

218A.286(3) simply required him to knowingly possess the forged prescriptions

with the intent to sell them. His nonparticipation in the act of forgery is

immaterial.

       Early next contends that Herring did not forge the Lortab prescriptions

but, rather, that she merely exceeded the scope of her authority. He points to

the absence of a definition for forged in the jury instructions and argues that,

had the jury been given the Black's Law Dictionary definition, they would have

found the prescriptions were not false or altered documents.' Early supplies

the following forgery definition:

       1. The act of fraudulently making a false document or altering a
          real one to be used as if genuine.
       2. A false or altered document made to look genuine by someone
          with the intent to deceive.
       3. Under the Model Penal Code, the act of fraudulently altering,
          authenticating, issuing, or transferring a writing without
          appropriate authorization.

Black's Law Dictionary (7th ed. 2010).

       Even if this definition presents a proper definition of forged as used in

the statute, Early was properly convicted under it. While it may be true that



       1   Early does not claim an error in the jury instructions (though he implies one).
Instead, he offers the forgery definition to •show that a reasonable, properly instructed
jury would not have convicted him under the statute.
                                              9
Dr. Ciampa pre-signed prescription blanks for his dental assistants' use—a

practice this Court in no way condones—it is utterly incorrect to assert that

Herring's actions constituted anything less than forgery. Herring testified that

she forged the prescriptions. She pleaded guilty to forging prescriptions.

Herring also testified that Early supplied her with names of individuals that he

knew were not patients of Dr. Ciampa. Herring's writing altered the

prescription blanks so as to appear genuine, deceived pharmacists into

believing the prescriptions' authenticity, and did so without any form of actual

authorization.

      Early argues that by Dr. Ciampa providing Herring with access to pre-

signed prescription blanks, Herring had authority to prescribe medication.

However, his argument improperly conflates the notion of "apparent authority"

with that of actual authority. But "apparent authority is different from actual

or implied authority." Mark D. Dean, P.S.C. v. Commonwealth Bank & Trust Co.,

434 S.W.3d 489, 499 (Ky. 2014). "Apparent authority ... is not actual authority

but is the authority the agent is held out by the principal as possessing." Id.

(quoting Mill St. Church of Christ v. Hogan, 785 S.W.2d 263, 267 (Ky. App.

1990)) (ellipsis in original). Therefore, while Herring's apparent authority to

prescribe controlled substances might, for example, shield a pharmacist from

liability for filling a forged prescription, it will not defend Early from knowingly

possessing forged prescriptions with the intent to sell them, just as it would

not have shielded Herring from liability for dealing in forgeries (and, indeed, it

did not, as she was convicted).



                                          10
      Even assuming the jury instructions had included Early's proffered

definition, Herring's behavior reasonably constituted forgery under any of the

three interpretations from Black's Law Dictionary. Nevertheless, we agree with

the Commonwealth that a generic meaning of the term forgery          "a document

that is not what it purports to be"—was not beyond the comprehension of an

average juror and would adequately enable a jury in this case to decide

whether the prescriptions were legitimate or fabricated. A reasonable jury

could have found that the prescriptions in this case were forged.

      2. There was sufficient evidence for a reasonable jury to infer that
         Early possessed the Barbara Miller prescription with the intent
         to sell it to another.

      Early next argues that he was entitled to a directed verdict for his

conviction associated with the Barbara Miller prescription because the

Commonwealth failed to prove that he possessed the prescription with the

intent to sell it. He asserts that, because the Commonwealth did not present a

witness to testify that they obtained the Barbara Miller prescription from Early,

it is not unreasonable to conclude that he filled it for his personal use.

      To reiterate, this is not a preserved issue because Early's only motion for

a directed verdict did not present this claim to the trial court and he failed to

renew any motion at the close of all proof. Regardless, even under palpable-

error analysis, the record reveals that Early was not entitled to a directed

verdict. There was sufficient circumstantial evidence for a reasonable jury to

infer that, even if Early did not sell the Barbara Miller prescription, he still

possessed it with the intent to do so.



                                          11
       We have consistently held that circumstantial evidence is enough to

prove any element of a crime, including intent, and to sustain a conviction for

an offense involving a controlled substance. See Jones v. Commonwealth, 331

S.W.3d 249, 253 (Ky. 2011). Although circumstantial evidence "must do more

than point the finger of suspicion," the Commonwealth is not required to

render all other inferences unreasonable. Rogers v. Commonwealth, 315 S.W.3d

303, 311 (Ky. 2010) (citing Davis v. Commonwealth, 795 S.W.2d 942, 945 (Ky.

1990)).

       In this case, the Commonwealth presented evidence that Early acquired

five prescriptions for the same Schedule II controlled substance, Lortab, with

each written for a different unauthorized individual. Testimony also showed

that Early sold four of those prescriptions to various people. During his

testimony, Early explicitly denied using drugs. Even assuming the

Commonwealth failed to cast sufficient doubt on the inference that Early

procured the Barbara Miller prescription for himself, Early's subsequent

repudiation of drug use cured any such deficiency in the Commonwealth's

case. See Lyon v. Prater, 351 S.W.2d 173 (Ky. 1961) ("[D]efendant by his

subsequent testimony has supplied the omission in the plaintiffs case.").

       Collectively, the circumstances in this case show that Early was not

entitled to a directed verdict because a jury could reasonably infer Early's

intent to sell the Barbara Miller prescription from his sale of the four additional

Lortab prescriptions. That proved he possessed the prescription with the intent

to sell it, which is sufficient for a trafficking conviction.



                                            12
   B.    The separate trafficking convictions for each forged prescription
         did not violate Early's double jeopardy rights.

        Early's second claim concerns whether his multiple convictions for

trafficking in prescription blanks violated double jeopardy when multiple forged

Lortab prescriptions passed to one individual during a single transaction. Early

argues that his second transaction with Herring, during which she gave him

three forged prescriptions at once, constituted a single offense under KRS

218A.286(3) and could support only one conviction. The Commonwealth

accurately dismantled Early's argument by clarifying that the necessary

elements of his crime are "possession with knowledge" and "intent to sell." The

manner in which he acquired the forged prescriptions is irrelevant, and simply

does not control the number of offenses committed. The focus is on Early's

actions, not those of Herring.

        Nevertheless, the Commonwealth acknowledged—before ultimately

negating—a potential double jeopardy issue separate from, but related to,

Early's claim. Although Herring's transfer to Early is extraneous, Early's

simultaneous sale of two forged prescriptions to McDonald merits further

analysis given his separate convictions for each prescription. In reviewing the

issue, the Court's decision relies predominantly on the precise language of KRS

218A.286(3) and our consistent approach to statutory interpretation in

comparable cases.

        Initially, we note that this issue is unpreserved. However, we will review

for palpable error, as we have held that an appellant's failure to present a

double-jeopardy argument to the trial court should not result in allowing a


                                         13
conviction that violates double jeopardy to stand. See Beaty v. Commonwealth,

125 S.W.3d 196, 210 (Ky. 2003). Ordinarily, double-jeopardy claims are

resolved by applying the Blockburger test. See Commonwealth v. Burge, 947

S.W.2d 805, 811 (Ky. 1996) (adopting the "same elements" test from

Blockburger v. United States, 284 U.S. 299 (1932)).

      But KRS 505.020 also bars conviction for multiple offenses arising from

a single course of conduct when the offense is designed to prohibit a

continuing course of conduct, as opposed to prohibiting separate and distinct

offenses. See KRS 505.020(1)(c) ("[A defendant] may not ... be convicted of more

than one (1) offense when ... [t]he offense is designed to prohibit a continuing

course of conduct and the defendant's course of conduct was uninterrupted by

legal process, unless the law expressly provides that specific periods of such

conduct constitute separate offenses."). Under this provision, whether separate

and distinct offenses arise from a particular course of conduct "depends on

how a legislature has defined the allowable unit of prosecution." Williams v.

Commonwealth, 178 S.W.3d 491, 495 (Ky. 2005).

      When interpreting the elements of an offense, a court must "accord to

words of a statute their literal meaning unless to do so would lead to an absurd

or wholly unreasonable conclusion." Bailey v. Reeves, 662 S.W.2d 832, 834

(Ky. 1984) (citing Dep't of Revenue v. Greyhound Corp., 321 S.W.2d 60 (Ky.

1959)). This Court has consistently interpreted other statutes and situations to

mean that a series of readily distinguishable acts is not a course of conduct for

double-jeopardy purposes. See Welborn v. Commonwealth,       157 S.W.3d 608,

612 (Ky. 2005) (upholding multiple convictions for repeated shots fired into one
                                        14
police officer because each shot was a separate and distinct offense); see also

Commonwealth v. Bass, 777 S.W.2d 916, 918 (Ky. 1989) (holding statute

permitted charging each fraudulent claim over $100 as a separate felony).

      In Williams v. Commonwealth, 178 S.W.3d at 493, a stepfather's

conviction of multiple instances of the offense of use of a minor in a sexual

performance pertained to each of multiple digital images that depicted his

naked eight-year-old stepdaughter, which he captured in quick succession

while the girl was showering. The relevant statutes define "sexual performance"

as "any performance or part thereof which includes sexual conduct by a minor"

and specified that a "[p]erformance" included "any play, motion picture,

photograph or dance." Id. at 495 (quoting KRS 531.300(5)-(6)). Affirming

separate counts, this Court held that "[t]he singular form of 'photograph' read

in conjunction with the term 'any' clearly indicates that the Legislature

intended prosecution for each differing photograph." Id.

      The following year, in an identically named case, a doctor appealed his

conviction of four counts of unlawfully prescribing a controlled substance.

Williams v. Commonwealth, 213 S.W.3d 671, 673 (Ky. 2006). He argued that

the four counts, each based on a separate unlawful prescription, should have

merged into only two counts because he only engaged in two transactions.

Specifically, on one occasion he gave a patient two prescriptions; and on

another occasion, he gave a different patient two other prescriptions. Id. at

684-85. Rejecting the doctor's argument, this Court relied on the plain

language of the statute, KRS 218A.1404(3), which defines "prescription" as "a

written, electronic, or oral order for a drug or medicine." Id. The Court
                                        15
interpreted the statute to mean that "each dispensation, prescription,

distribution, or administration of any controlled substance in violation of the

law is a specific period of conduct constituting a separate offense." Id.

      Here, KRS 218A.286(3) prohibits trafficking in "a prescription blank" or

"a forged prescription for a controlled substance." The legislature's use of the

singular "a forged prescription" demonstrates its intention to punish the

trafficking of each forged prescription as a separate and distinct trafficking

offense. Moreover, when it intends to bar a continuing course of conduct, the

legislature has consistently drafted criminal statutes to specify certain acts or

quantities that may be included in a singular crime. See, e.g., KRS

218A.1412(2) (specifying that amounts may be reached over a series of

transactions); KRS 218A.1412; KRS 218A.1413; KRS 218A.1414 (stipulating

specific quantities "or more," and "any quantity"). No such inclusive language

appears in KRS 218A.286(3).

      Early contends that Commonwealth v. Grubb, 862 S.W.2d 883 (Ky. 1993),

forbids punishing a single criminal episode as multiple offenses. Admittedly, in

Grubb this Court held that "[a] single sales transaction between the same

principals at the same time and place which violates a single statutory

provision does not justify conviction or a sentence for separate crimes." Id. at

884. However, Early's reliance on Grubb is misplaced. Grubb was convicted of

trafficking in two controlled substances, not forged prescriptions, and the

decision primarily relied on the "single impulse" test established in Ingram v.

Commonwealth, which was later overruled in Commonwealth v. Burge, 947

S.W.2d at 811, in favor of the Blockburger test and KRS 505.020 analysis.
                                         16
Nevertheless, even Grubb recognized that "[a] single act, under circumstances

not found herein, could, however, threaten compound consequences." Grubb,

862 S.W.2d at 885.

      Finally, contrary to Early's insistence, it would be inappropriate for the

Court to apply the rule of lenity in this case because to do so would "undercut

[the] unambiguous legislative design" of KRS 218A.286(3). See Saxton v.

Commonwealth, 315 S.W.3d 293, 296 (Ky. 2010) (citing United States v.

Holland, 810 F.2d 1215, 1222-23 (D.C. Cir. 1987)). The statute clearly defines

a trafficking offense as relating to a prescription. Early's multiple convictions

therefore did not violate the bar on double jeopardy.


                                 III. CONCLUSION

      For the aforementioned reasons, Early's convictions are affirmed.

      All sitting. All concur.


COUNSEL FOR APPELLANT:

Roy Alyette Durham II
Assistant Public Advocate
Department of Public Advocacy
200 Fair Oaks Lane, Suite 500
Frankfort, Kentucky 40601


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General

Nathan Todd Kolb
Office of the Attorney General
Assistant Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204

                                         17
