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Hembree v. Commonwealth4/1/2005
early distinguishable from those in this case. In Paul, the defendant was not in actual possession of the marijuana. In this case the officer testified that the pills were recovered from Hembree's socks that had been on his feet.
The standard for a directed verdict is as follows:
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. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). "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." Id. See also Pate v. Commonwealth, 134 S.W.3d 593, 596-97 (Ky. 2004).
In this case the deputy jailer stated that he was positive that the pills fell from Hembree's socks. "Possession" for purposes of KRS Chapter 218A includes both actual and constructive possession. Pate, 134 S.W.3d at 598. This is a case of actual possession and not constructive possession. The deputy jailer testified that Hembree actually had the pills in his possession. The testimony was sufficient to overcome the directed verdict motion, and the credibility of the testimony was within the province of the jury. See Benham, supra. In short, the trial court correctly denied Hembree's directed verdict motion, and the evidence was sufficient to support the verdict.
The judgment of the Bell Circuit Court is affirmed.
ALL CONCUR.
Page 1 2 Kentucky DUI Attorneys
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