Multiple issues regarding search and jury insructions still results in affirmance of conviction: NASH V. COM. (COA 2/22/2008)

NASH V. COM.
CRIMINAL:  Search warrants; Jury instructions

2005-CA-002179
PUBLISHED: AFFIRMING
PANEL: HENRY PRESIDING; KELLER, TAYLOR CONCUR
COUNTY GRAYSON
DATE RENDERED: 2/22/2008

CA affirmed Defendant’s convictions for possession of anhydrous ammonia in an unapproved container with the intent to manufacture methamphetamine and possession of drug paraphernalia. Relying on Maryland v. Garrison, 480 U.S. 79, 88, 107 S.Ct. 1013, 1018-1019, 94 L.Ed.2d 72 (1987), CA held suppression of the modified air tank was not required and the trial court did not err by declining to suppress that evidence. Although the search exceeded the scope of the search warrant, there is substantial evidence in the record that the officers’ mistake was reasonable given the circumstances. There was no KRE 404(b) error by the admission of the statement that Nash used the modified air tank containing anhydrous ammonia in order to manufacture methamphetamine. TC did err by failing to provide a definition of "approved container" in the jury instructions; however, the error was harmless.

Scott Byrd
www.olginandbyrd.com

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