Thornton, Gregory ( 2014 )


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  •            IN THE COURT OF CRIMINAL APPEALS
    OF TEXAS
    NO. PD-0669-13
    GREGORY THORNTON, Appellant
    v.
    THE STATE OF TEXAS
    ON STATE’S PETITION FOR DISCRETIONARY REVIEW
    FROM THE SEVENTH COURT OF APPEALS
    LUBBOCK COUNTY
    C OCHRAN, J., filed a dissenting opinion in which M EYERS and J OHNSON, JJ.,
    joined.
    DISSENTING O P I N I O N
    I respectfully dissent. Appellant was undeniably guilty of the Class C misdemeanor
    of possession of drug paraphernalia. Little did he know that, by clumsily trying to abandon
    his crack pipe, he was setting himself up for a third-degree felony conviction for tampering
    with evidence, and, because of his priors, a sentence of 45 years’ imprisonment. The Seventh
    Court of Appeals found the evidence insufficient to support the element of “concealment,”
    but this Court reforms the judgment to reflect the separate offense of “attempted” tampering
    Thornton     Dissenting Opinion Page 2
    with evidence and remands for a new punishment hearing. I think that this was a Class C
    offense from beginning to end. I disagree that evidence of a person throwing down
    contraband during a police pursuit or detention is sufficient, by itself, to constitute either
    concealment or attempted concealment for purposes of our tampering-with-evidence statute.
    That act of abandoning contraband demonstrates prior possession of it, not its concealment.1
    Our tampering-with-evidence statute, Section 37.09 of the Penal Code, is based on the
    corresponding Model Penal Code provision, Section 241.7.2 According to the Tennessee
    Supreme Court, some twenty-nine jurisdictions have enacted statutes based on Section
    241.7.3 “Most, if not all, jurisdictions that utilize a version of Section 241.7 of the Model
    1
    For example, in State v. Lasu, 
    768 N.W.2d 447
    (Neb. 2009), the defendant walked through
    a service station, followed by a police officer. When he rounded a corner, the defendant dropped his
    baggie of marijuana into a large bin full of snack foods. The defendant made no effort to cover the
    drugs. When the officer walked by, he saw the drugs sitting in the bin and retrieved them. 
    Id. at 449-50.
    The Nebraska Supreme Court found that this act was mere abandonment because the
    defendant did not discard the evidence in a place “where it was unlikely to be discovered.” Instead,
    he “placed the evidence where it was quite likely to be discovered, even if he hoped that it might be
    less associated with him. . . . All [the defendant] attempted to conceal was the fact of his possession
    of the evidence—not the evidence itself.” 
    Id. at 452.
           2
    Section 241.7 of the Model Penal Code provides,
    A person commits a misdemeanor if, believing that an official proceeding or
    investigation is pending or about to be instituted, he:
    (1)     alters, destroys, conceals or removes any record, document or thing with
    purpose to impair its verity or availability in such proceeding or
    investigation; or
    (2)     makes, presents or uses any record, document or thing knowing it to be false and
    with purpose to mislead a public servant who is or may be engaged in such
    proceeding or investigation.
    MODEL PENAL CODE § 241.7 (1962).
    3
    State v. Hawkins, 
    406 S.W.3d 121
    , 133 (Tenn. 2013).
    Thornton     Dissenting Opinion Page 3
    Penal Code have recognized that a defendant does not violate the statute when he or she
    merely ‘abandons’ physical evidence of a street crime while running from police or fleeing
    the scene of the crime.” 4
    This case comes at a time when tampering or obstruction-of-justice laws are being
    “used increasingly against drug offenders who, in some fashion, attempt to destroy or conceal
    their drugs when being pursued by police.”5 But most states that have considered the matter
    have concluded that when
    a defendant merely drops, throws down, or abandons drugs in the vicinity of
    the defendant and in the presence and view of the police, this conduct does not
    constitute concealment that will support an evidence-tampering or obstruction
    charge, or a conviction that is additional to and separate from the ongoing
    possessory offense.6
    4
    
    Id. 5 John
    F. Decker, The Varying Parameters of Obstruction of Justice in American Criminal
    Law, 65 LA . L.REV . 49, 51–52 (2004).
    6
    In re M.F., 
    734 N.E.2d 171
    , 178 (Ill. 2000); see also 
    Hawkins, 406 S.W.3d at 134
    (“In the
    wake of Boice [v. State, 
    560 So. 2d 1383
    (Fla. Dist. Ct. App. 1990)], [State v.] Patton [
    898 S.W.2d 732
    , 736 (Tenn. Crim. App. 1994)], and similar decisions, the jurisdictions that have enacted statutes
    based on Section 241.7 of the Model Penal Code have developed a ‘unanimous’ consensus that when
    a person who is committing a possessory offense drops evidence in the presence of police officers,
    and the officers are able to recover the evidence with minimal effort, discarding the evidence
    amounts to ‘mere abandonment,’ not tampering.”); People v. Comage, 
    946 N.E.2d 313
    , 317 (Ill.
    2011) (quoting and relying upon In re M.F. in concluding that defendant did not “conceal” crack
    pipe and push rod within the meaning of the obstructing justice statute when he threw the pipe over
    a privacy fence while being chased by police; although items were briefly out of officers’ sight, the
    officers saw defendant throw them, they landed about ten feet away, and officers were easily able
    to walk around the fence and recover them, so defendant did not materially impede the officers’
    investigation); Harris v. State, 
    991 A.2d 1135
    , 1140 (Del. 2010) (“Whether the defendant briefly
    hides evidence on a rooftop or in his mouth, if the police perceive the act of concealment and could
    immediately retrieve the evidence, the defendant has failed to ‘suppress’ the evidence”); Vigue v.
    State, 
    987 P.2d 204
    , 206 (Alaska Ct. App. 1999) (noting that courts addressing issue of whether
    Thornton    Dissenting Opinion Page 4
    As the New Hampshire Supreme Court explained in holding that a juvenile did not
    “conceal” a cigarette pack for purposes of the tampering-with-evidence statute when he made
    eye contact with the police officer coming toward him,
    The juvenile may have intended to make it less likely that the cigarette pack
    would be associated with him or come to Officer Covie’s attention by ridding
    his hands of it and abandoning it in the crowded hallway. It is important,
    however, not to confuse the juvenile’s intent with his physical actions. [The
    tampering statute] uses the term “conceals” to define the actus reus of the
    offense. In addition to the actus reus, the statute also requires proof of a
    culpable mental state—here, the juvenile's intent to “impair [the] verity or
    availability” of the evidence. That the juvenile may have intended to make it
    more difficult for Officer Covie to detect the contraband does not mean that
    the juvenile concealed the contraband when he abandoned it.7
    Courts have also held that the same act of discarding contraband in the presence of police
    officers does not suffice to establish the offense of attempted tampering with evidence.8
    defendant who drops or tosses contraband away when detained by police “unanimously agree that
    a defendant’s act of dropping or tossing away evidence in the sight of the police does not constitute
    the actus reus of tampering with physical evidence.”); In re Juvenile 2003-187, 
    846 A.2d 1207
    ,
    1209-10 (N.H. 2004) (juvenile did not “conceal” cigarette pack when he threw it to floor and ran
    away through crowded school hallway); Boice v. State, 
    560 So. 2d 1383
    (Fla. Dist. Ct. App. 1990);
    State v. Patton, 
    898 S.W.2d 732
    , 736 (Tenn. Crim. App. 1994).
    7
    In re Juvenile 
    2003-187, 846 A.2d at 1210
    .
    8
    
    Vigue, 987 P.2d at 210-11
    (“One could argue that, even if Vigue did not succeed in
    suppressing or concealing the cocaine, he nevertheless tried to do so, and so his conviction should
    be reduced to attempted evidence-tampering. Again, this would make sense if we interpreted the
    terms ‘suppress’ and ‘conceal’ broadly. But, like the courts of our sibling states, we are persuaded
    to give a narrow interpretation to the terms ‘suppress’ and ‘conceal.’ We are convinced that a broad
    reading of these terms would lead to results that are inexplicably harsh and probably not within the
    legislature’s intent”; noting that, under state law, persons under 21 who smoke a cigarette (a
    violation punishable by fine only) would be subject to felony convictions and penalties if they “hid
    cigarettes in a pocket or purse when police officers approached” and “minor possessory offenses
    would often be converted to felonies with little reason.”); Stepovich v. State, 
    299 P.3d 734
    , 741-42
    (Alaska Ct. App. 2013) (State could not convict defendant of attempted tampering with evidence
    Thornton      Dissenting Opinion Page 5
    These courts have expressed three rationales for their holding: (1) the defendant’s act of
    discarding contraband in the presence of, and in view of, police is an act of abandonment,
    not concealment for purposes of the tampering statute;9 (2) the defendant’s unsuccessful
    attempt to rid himself of contraband did not, in fact, impair its availability as evidence;10 and
    when his conduct neither impaired the recovery nor the availability of the evidence); 
    Harris, 991 A.2d at 1138
    (defendant’s attempt to conceal baggie containing marijuana by putting it in his mouth
    did not support conviction for tampering or attempted tampering with evidence; offense of tampering
    with evidence “criminalizes neither inchoate tampering nor tampering with items, but, rather,
    successful suppression of evidence. . . . It does not apply to an attempted ‘act of concealment,
    alteration or destruction.’ Rather, it applies when the defendant ‘suppresses’ the evidence by actual
    completed concealment, alteration, or destruction.”); E.I. v. State, 
    25 So. 3d 625
    , 627-28 (Fla. Dist.
    Ct. App. 2009) (juvenile could not be adjudicated for offense of “attempted tampering with
    evidence” when he tossed driver’s package of methamphetamine out window in clear sight of
    officer; “While E.I. was clearly trying to disassociate himself from the package, there is nothing
    about this act under the circumstances presented here that shows that E.I. was trying to alter, destroy,
    or conceal the package. Further, while E.I. did remove the package from his hand, he did not remove
    it from the scene of the traffic stop. Thus, this act was factually and legally nothing more than
    abandonment, and the trial court should have granted E.I.’s motion for judgment of dismissal.”).
    9
    Commonwealth v. Delgado, 
    679 A.2d 223
    , 224-25 (Pa. 1996) (defendant’s act of
    “discarding contraband in plain view of the pursuing officer” did not constitute tampering with
    evidence because he had not destroyed, altered, nor concealed evidence within the meaning of the
    statute; defendant’s conduct amounted to “nothing more than an abandonment of the evidence.”);
    State v. Sharpless, 
    715 A.2d 333
    , 342 (N.J. Super. Ct. App. Div. 1998) (addressing whether
    defendant’s “act of discarding criminal contraband upon the approach of a police officer
    constitute[d] evidence tampering within the intent of [the New Jersey statute]”; holding that it did
    not; it was mere abandonment of the contraband); McKinney v. State, 
    640 So. 2d 1183
    , 1185 (Fla.
    Dist. Ct. App. 1994) (“[A] brief interruption of a police officer’s visual contact with physical
    evidence that is on or near one’s body is not sufficient to constitute concealment”).
    10
    
    Comage, 946 N.E.2d at 319
    (noting that those courts that have upheld convictions for
    evidence when the defendant swallowed contraband in the hope that it will go unrecovered is not
    merely that it was temporarily out of the police officer’s sight, but that the defendant “had, in fact,
    materially impeded the officer’s investigation”); Anderson v. State, 
    123 P.3d 1110
    , 1119 (Alaska Ct.
    App. 2005) (“This is not to say that the act of tossing away evidence can never constitute evidence
    tampering. The test appears to be whether the defendant disposed of the evidence in a manner that
    destroyed it or that made its recovery substantially more difficult or impossible.” ); 
    Harris, 991 A.2d at 1138
    (no “concealment” when contraband was “immediately retrievable”); compare State v.
    Thornton      Dissenting Opinion Page 6
    (3) the legislature surely did not intend that the defendant’s act of discarding drugs–a felony
    offense if tampering with evidence–should be punished more severely than his offense of
    possessing those same drugs.11 As a Florida court explained, its legislature did not intend
    to impose additional felony charges on a person who discards a misdemeanor amount of
    contraband while being observed by pursuing police officers:
    If the defendants’ [conduct] in this case constituted tampering [with evidence],
    then a nineteen-year-old who threw a can of beer from his car when stopped
    by a police officer would commit not only the second-degree misdemeanor of
    possession of alcoholic beverages, but also the third-degree felony of
    tampering with the evidence. We do not believe that the legislature intended
    an additional felony under such circumstances.12
    Mendez, 
    814 A.2d 1043
    , 1050 (N.J. 2002) (upholding tampering conviction of defendant who held
    a bag of powder cocaine outside the window of his car and allowed the wind to disperse the powder;
    even though he performed this action in the sight of the pursuing police, his conduct essentially
    precluded all efforts to recover the evidence; holding that one who possesses and then destroys
    cocaine has completed a possessory offense and then taken a new step in completing a separate
    offense involving destruction of physical evidence; the act of preventing “an intact retrieval” of the
    cocaine completes the evidence-tampering offense); see generally, 67 C.J.S. Obstructing Justice §
    1, at 67 (2002) (“The phrase ‘obstructing justice’ as used in connection with offenses arising out of
    such conduct means impeding or obstructing those who seek justice in a court[.]”); U.S. Sentencing
    Guidelines Manual § 3C1.1 (2010) (under federal sentencing guidelines, a defendant’s attempt to
    swallow or throw away a controlled substance is not, by itself, sufficient to warrant an adjustment
    for obstruction unless it results in a “material hindrance” to the official investigation).
    11
    
    Delgado, 679 A.2d at 225
    (noting that Pennsylvania law classifies tampering with physical
    evidence as a higher degree of crime than possession of cocaine; “Under these circumstances, we
    do not believe that the General Assembly intended the simple act of abandoning [contraband] in
    plain view of the police to constitute the commission of an additional crime of a greater degree.”).
    12
    Boice v. State, 
    560 So. 2d 1383
    , 1385 (Fla. Dist. Ct. App. 1990); see also State v. Patton,
    
    898 S.W.2d 732
    , 736 (Tenn. Crim. App. 1994) (citing Boice and stating “we do not believe that the
    legislature intended to inflict greater punishment upon an individual for attempting to discard
    evidence [of a crime] than he would receive for commission of the crime. Statutes must not be
    construed in a manner which may lead to absurd results. . . . If ‘mere abandonment’ of contraband
    falls within the class of [conduct] made criminal by [the evidence-tampering statute], there is a
    substantial likelihood of an unreasonable result. Thus, . . . [e]ven if the factual allegations within the
    Thornton     Dissenting Opinion Page 7
    Many of these cases hold that the evidence is insufficient to support a tampering
    conviction because there is no evidence that the defendant specifically intended to conceal
    evidence with the intent to impair its usefulness at a future trial. Instead, the evidence shows
    that the defendant merely intended to distance himself from the evidence. As in “What?
    Who me? That’s not my crack pipe.”13 As Justice Yeakel explained in Hollingsworth v.
    State,14 the evidence was insufficient in that case to prove that the defendant was carrying
    cocaine in his mouth with the specific intent to impair its availability as evidence. Rather,
    he was carrying it in mouth “because that is how crack cocaine is commonly carried,
    undoubtedly to keep it from public view.”15 When the defendant saw police officers, he spit
    it out–an act that exposed the cocaine to the officer’s view.16 In most of these abandonment
    indictment are accurate, the defendant, in our view, has not violated the [evidence-tampering]
    statute.”).
    13
    See In re Juvenile 2003-187, 
    846 A.2d 1207
    , 1209-10 (N.H. 2004); State v. Lasu, 
    768 N.W.2d 447
    , 452 (Neb. 2009).
    14
    
    15 S.W.3d 586
    , 595 (Tex. App.–Austin 2000, no pet.).
    15
    
    Id. 16 Id.
    According to the New Jersey Superior Court, in posing the hypothetical of a defendant
    who carried his cocaine in his sock, the State’s theory would require a person to “have the cocaine
    in plain view” to avoid committing the separate felony crime of tampering with evidence by
    concealment as well as the underlying crime of drug possession. 
    Sharpless, 715 A.2d at 343
    (quoting Fuqua v. State, 
    696 A.2d 44
    , 46 (N.J. Super. Ct. App. Div. 1997) (concluding that “If the
    State is correct, all illegal substances, weapons, and even illicit reading material, would be required
    to be carried in plain view or else the possessor could be convicted of a third- or fourth-degree crime
    or of a disorderly persons offense, in addition to any other substantive offense.”)). Like the Austin
    Court of Appeals in Holloway, out-of-state courts have uniformly rejected this position. And what
    about the girl who keeps a marijuana joint in the car console? Or the teenager with an unprescribed
    pill in her pocket or two beer cans in the cooler? Or the elderly woman who shoplifts a $1.00 candy
    bar (a Class C theft) and then tosses it away when a police officer yells, “Stop, thief!”
    Thornton    Dissenting Opinion Page 8
    cases, the defendant’s act of abandonment exposes, rather than conceals, the contraband.
    Prosecutions for attempted tampering with the evidence are even more untenable. I
    agree with the court of appeals in this case that the claim that appellant’s act of “‘palming’
    . . . the pipe to remove it from his pocket constituted attempted concealment” requires total
    speculation about whether appellant acted with the specific intent to conceal the pipe or just
    abandon it.17 “Without evidence of a specific intent to conceal, Appellant’s merely reaching
    into his pocket and removing the pipe is no more attempted concealment than having a drink
    is attempted public intoxication.”18 Appellant’s act exposed the crack pipe, so how can a jury
    determine, beyond a reasonable doubt, that he specifically intended to conceal the crack pipe
    by that act of exposure? This logic escapes me.
    The Tennessee Supreme Court recently explained that a tampering-with-evidence
    conviction may not be upheld if the evidence was not permanently altered or destroyed and
    its concealment delayed minimally, if at all, the officers’ discovery of it:
    In drug cases, for example, convictions for tampering by concealment have
    been upheld when a defendant swallows drugs and when a defendant flushes
    drugs down a toilet as police approach and the drugs are recovered. One
    defendant’s conviction was upheld when he tossed the drugs out of his moving
    vehicle, kept driving for a half mile, and the drugs were never found. Another
    defendant’s conviction was upheld when he tried to hide his drugs in one
    pocket of a billiards table.
    Conversely, in other drug cases involving alleged concealment, courts
    have found mere abandonment when a defendant hides drugs in his socks or
    in his pocket, tosses drugs onto the roof of a garage while being pursued, drops
    17
    Thornton v. State, 
    401 S.W.3d 395
    , 402 (Tex. App.–Amarillo 2013).
    18
    
    Id. (emphasis added).
                                                              Thornton    Dissenting Opinion Page 9
    drugs off a roof in view of police, or throws drug evidence over a wooden
    privacy fence while officers are in pursuit. Dropping a marijuana cigarette into
    a sewer is mere abandonment, but dropping soluble drugs down a sewer drain
    could make them irretrievable and could support a tampering conviction.
    Hiding drugs in one’s mouth without successfully swallowing them also may
    not constitute tampering.19
    For these reasons, I agree with those courts holding that, with regard to possessory
    offenses, the tampering-with-evidence statute applies only to
    (A)        completed crimes in which the evidence is permanently destroyed, altered, or
    concealed.20 For example, if a defendant swallows the purported contraband,
    he has destroyed its usefulness as evidence; because the evidence is gone, the
    defendant cannot be convicted of the drug offense, but he can be convicted of
    tampering with evidence;21 OR
    19
    State v. Hawkins, 
    406 S.W.3d 121
    , 135 (Tenn. 2013) (citations omitted).
    20
    See Vigue v. State, 
    987 P.2d 204
    , 210-11 (Alaka Ct. App. 1999). As that court explained,
    If the terms “suppress” and “conceal” are construed broadly, then it is
    possible to speak of Vigue’s conduct as an act of suppression or concealment. By
    ridding his pockets and hands of the cocaine, Vigue probably intended to make it less
    likely that the cocaine would come to Officer Kantor’s attention.
    But it is important not to confuse Vigue’s intent with his physical actions. The
    evidence-tampering statute uses the terms “suppress” and “conceal” to define the
    actus reus of the crime. In addition to this actus reus, the statute also requires proof
    of a culpable mental state—here, Vigue’s intent to “impair [the] availability” of the
    evidence. The fact that Vigue intended to make it harder for Officer Kantor to detect
    the cocaine does not mean that Vigue actually succeeded in “suppressing” or
    “concealing” the cocaine when he tossed or dropped it to the ground. Indeed, under
    the facts of this case, no suppression or concealment occurred: Officer Kantor
    observed Vigue’s action and was alerted to the possibility that something might be
    on the ground at the spot where Vigue had been standing. We agree with the courts
    of Pennsylvania, Florida, Tennessee, and New Jersey that conduct such as Vigue’s
    amounts to nothing more than abandonment of the evidence, not suppression or
    concealment of evidence.
    
    Id. 21 See,
    e.g., Barrow v. State, 
    241 S.W.3d 919
    , 923 (Tex. App.–Eastland 2007, pet. ref’d)
    (evidence sufficient to support tampering conviction when defendant swallowed what officer had
    seen as a white rock-like object that appeared to be crack cocaine during traffic stop); Vaughn v.
    Thornton     Dissenting Opinion Page 10
    (B)     The attempted destruction, alteration, or concealment has materially impeded
    the officer’s investigation. For example, if the defendant tosses bags of
    cocaine down the toilet and flushes it, but the police are able to disconnect the
    plumbing and retrieve the soggy, but identifiable baggies, the defendant’s act
    of concealment was unsuccessful, but it materially impeded the officers.
    I respectfully dissent to turning this Class C misdemeanor into a state-jail felony merely
    because appellant tried to abandon his crack pipe by exposing it to the officers’ view, not
    concealing from their view.
    Filed: April 2, 2014
    Publish
    State, 
    33 S.W.3d 901
    , 903-04 (Tex. App.–Houston [14th Dist.] 2000, no pet.) (evidence sufficient
    to support tampering conviction when defendant flushed substance that officer believed was cocaine
    down the toilet); Stimson v. State, 05-07-01622-CR, 
    2008 WL 2841512
    , *2-3 (Tex. App.–Dallas,
    July 24, 2008) (not designated for publication) (evidence sufficient to support conviction for
    tampering with evidence when defendant swallowed what was thought to be a rock of crack cocaine
    at police station); Harris v. State, No. 12-07-00279-CR, 
    2008 WL 2814879
    , *2-3 (Tex. App.–Tyler,
    July 23, 2008, pet. ref’d) (not designated for publication) (evidence sufficient to support tampering
    conviction when defendant, stopped for traffic offense, admitted that he had a “marijuana roach” and
    then ate it).