Criminal – jury instructions, trafficking: Farmer v. Com. (COA 9/4/2009)

Farmer v. Commonwealth
2008-CA-001339 9/4/09 2009 WL 2856270 DR pending

Opinion by Judge Lambert; Judge Taylor and Senior Judge Henry concurred.

The Court affirmed appellant’s conviction by a jury of second-degree trafficking in a controlled substance (hydrocodone).

The Court first held that the trial court did not err in failing to give a jury instruction on second-degree possession of a controlled substance when neither the Commonwealth nor appellant’s theory of the case supported such an instruction. Because appellant admitted to both possession and transfer of the controlled substance a jury could not have believed that he merely possessed the controlled substance without trafficking in it in violation of KRS 218A.1413(1)(a). The Court rejected appellant’s claim that his actions did not constitute a “transfer” under the statute. The Court next held that the trial court did not submit an erroneous second-degree trafficking instruction to the jury. The instruction exactly followed the model instruction and the direct transfer of controlled substances was included in the meaning of “traffic” as set forth in KRS 218A.010(40). The Court then held that the trial court did not err in failing to submit a “missing evidence” instruction regarding a discrepancy on the crime lab report as to the number of pills delivered to the lab. The evidence suggested that a pill was not misplaced or lost but rather the discrepancy was caused by a recording error. The Court then held that in light of the fairly well understood meaning of the term “knowingly,” any error in failing to instruct on its definition as set forth in KRS Chapter 501 was harmless. The Court then held that the trial court did not err in sustaining the Commonwealth’s objection to the questioning of the police informant regarding previous criminal charges presumed dismissed upon the successful completion of a pretrial diversion program. Even if it were true that the trial court only assumed the charges were dismissed because no action to revoke the diversion status or to enter a judgment was ever taken, upon consideration of the totality of the evidence, any error was harmless. The Court then held that the trial court did not abuse its discretion in limiting appellant’s testimony on a portion of his defense. Although the admission of the testimony would have helped to explain why appellant took money from the informant and to impeach the informant, any elaboration on the testimony was not necessary and possibly prejudicial to the Commonwealth and further, did not affect appellant’s substantial rights. The Court finally held that the trial court did not err in overruling appellant’s motions for a directed verdict.

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