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Hembree v. Commonwealth4/1/2005
AFFIRMING
James M. Hembree appeals from a judgment of the Bell Circuit Court wherein he was convicted of possession of a controlled substance and was sentenced to one year in prison. The issue is whether the evidence was sufficient to support the jury's verdict. We believe it was, and thus affirm.
During the afternoon hours of Sunday, February 24, 2002, Hembree was driving his vehicle in Bell County and was pulled over by police officers who had received a report about a blue sport utility vehicle. The officer who was following directly behind Hembree testified that Hembree was weaving and almost hit the right side of a bridge that he crossed. The officer testified that Hembree's eyes were red and glassy and that his speech was slurred. The officer gave several field sobriety tests, and he testified that Hembree passed only one. Therefore, he arrested Hembree for the offense of DUI.
Because Hembree had apparently not been drinking, he was taken to a local hospital and asked to give a blood and urine sample. Hembree voluntarily gave a blood sample, but he indicated that he was unable to urinate. Because Hembree did not give a urine sample, the officer marked "refused" on the citation. Hembree was then transported to the Bell County Jail.
During the intake procedure at the jail, Hembree was asked by a deputy jailer if he had any drugs on him. He responded that he did not. The deputy jailer then took Hembree to the detoxification cell and searched him. No other prisoners were in the cell at that time. When Hembree removed his shoes and socks, a cellophane bag containing three Oxycontin pills fell to the floor while the deputy jailer was examining one of the socks. The pills proved to contain oxycodone, a Schedule II narcotic.
Hembree was indicted by a Bell County grand jury on four charges: DUI, driving from side-to-side on highway, first-degree possession of a controlled substance, and possession of controlled substance not in original container. Prior to trial, the charges of driving from side-to-side on highway and possession of controlled substance not in original container were dismissed by the Commonwealth.
A jury trial was held on the charges of DUI and first-degree possession of a controlled substance. The evidence at trial indicated that an analysis of Hembree's blood revealed no alcohol or drugs. The jury acquitted him of the DUI charge but found him guilty of the possession charge. It recommended a sentence of one year, and on April 7, 2003, the court sentenced Hembree to one year in prison pursuant to the jury's verdict. This appeal followed.
Hembree argues on appeal that he never possessed the pills found in the detoxification cell and that the court should have granted his motion for a directed verdict at the close of the evidence. He testified at the trial that the pills did not belong to him, and he suggested that the pills may have fallen out of one of the cigarette packs that was in the cell and that he was examining while the deputy jailer was searching his socks. Hembree asserts that it makes no sense that he would have brought the pills into the jail with him because he had ample time to dispose of them when he was left alone by the officer at the hospital. Both Hembree and his daughter testified that he was outside of the officer's presence at the hospital for significant periods of time. In short, he argues that he never had actual physical possession of the pills and did not have immediate and knowing control over them.
In support of his argument, Hembree cites Paul v. Commonwealth, 765 S.W.2d 24 (Ky.App. 1988). Our review of that case, however, shows that the facts therein are cl
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