712 S.W.2d 360 | Ky. Ct. App. | 1986
Fred G. Smith appeals from his conviction in the Clay Circuit Court of the offenses of tampering with physical evidence and of possession of alcoholic beverages for sale for which he was sentenced to concurrent sentences of one year and of sixty days respectively and fined $40.00.
He raises four issues. The first is that the court erred in failing to direct a verdict of acquittal due to the lack of sufficient evidence to justify a conviction. For this proposition, he cites Howard v. Commonwealth, Ky.App., 558 S.W.2d 643 (1977), which held that the possession of
The second issue raised deals with a comment by the prosecutor in his closing argument as to the appellant’s failure to state at any time that the alcoholic beverages seized were for his own personal use. The appellant argues that this denied him his constitutional privilege against self-incrimination. In determining whether such error was prejudicial or harmless, we must examine the entire situation. Blake v. Commonwealth, Ky., 646 S.W.2d 718 (1983). First, the appellant produced no defense. Second, by virtue of the statute involved, KRS 242.230, appellant had the burden of proving that the alcoholic beverages in his possession were lawfully acquired and intended for lawful use in dry territory. In the present case, considering the failure of the defendant to meet this burden, together with the substantial amount of evidence against him, and the context under which the comment was made, we hold that the error resulting, if any, was harmless.
Next, appellant argues that the two offenses of which the appellant was charged, tampering with physical evidence and possession of alcoholic beverages, constitute double jeopardy or unfair or oppressive prosecution under KRS 505.020. We hold that these are clearly separate criminal statutes, and they do not constitute double jeopardy.
Finally, appellant’s argument that, since he failed to completely destroy the alcoholic beverage evidence, the instruction should have been confined to “attempted” tampering rather than “tampering” is without merit. The tampering statute clearly provides for all degrees of destruction of evidence, including mutilation, alteration and attempted tampering.
The judgment of the Clay Circuit Court is AFFIRMED.
All concur.