Hebert v. State

• Court: Court of Appeals of Alaska
• Decided: June 24, 2026
• Docket: A-14402
• Status: Unpublished

Opinion

2026 WL 1819090

Only the Westlaw citation is currently available.

NOTICE: UNPUBLISHED OPINION

NOTICE

Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law, although it may be cited for whatever persuasive value it may have. See McCoy v. State, 80 P.3d 757, 764 (Alaska App. 2002).

Court of Appeals of Alaska.

Joshua Andre HEBERT, Appellant,

v.

STATE of Alaska, Appellee.

Court of Appeals No. A-14402

June 24, 2026

Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Patricia L. Haines, Judge. Trial Court No. 4FA-23-00042 CR

Attorneys and Law Firms

Olena Kalytiak Davis, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.

Olena Kalytiak Davis, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Robert Bacaj, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Stephen J. Cox, Acting Attorney General, Juneau, for the Appellee.

Before: Allard, Chief Judge, and Terrell and Beach, Judges.

MEMORANDUM OPINION

Judge BEACH, writing for the Court.

*1 Joshua Andre Hebert was required by the conditions of his probation to provide urine samples to his probation officer for drug testing. In January 2023, Hebert reported to the probation office to provide a urine sample. The sample that Hebert provided was “cold to the touch” and officers later located a plastic bottle on the floor where Hebert had been sitting. Hebert's probation officer filed a petition to revoke Hebert's probation in his underlying criminal case. Hebert was later indicted on one count of tampering with physical evidence.¹

Following a two-day jury trial, Hebert was convicted as charged. He was sentenced to 2 years of incarceration.

Hebert now appeals his conviction, claiming that the evidence presented at trial was insufficient to support his conviction for evidence tampering. We conclude that sufficient evidence supported Hebert's conviction.

Factual and procedural background

Prior to the current case, Hebert pleaded guilty to third-degree escape.² Hebert's probation conditions restricted him from “consum[ing] or possess[ing] controlled substances or illegal drugs” and required him to “submit to a chemical test of breath, blood, urine, or saliva by or at the direction of a probation officer.”

On January 5, 2023, Hebert reported to the Fairbanks Probation Office to provide a urine sample. Probation Officer Workman escorted Hebert to the urinalysis room, where Hebert told Workman that he was unable to provide a urine sample. Workman stepped out of the room and within one minute, Hebert provided Workman a sample for urinalysis. Workman noted that “even through the glove [he] could feel that [the sample] was cold to the touch.” Workman confronted Hebert about the urine sample that he provided; Hebert denied having provided a false sample.

Workman sent Hebert back to the office lobby. Hebert was told to drink water and that he would be given two hours to provide a valid sample. After two hours, Workman took Hebert back to the urinalysis room. Hebert said that he “couldn't go” and did not ultimately provide a new sample. Workman then placed Hebert under arrest and searched his person and jacket. Workman's search did not produce any evidence.

Workman then noticed that there was a bottle on the floor near where Hebert had been sitting. A subsequent review of security footage of Hebert's arrest showed him “shaking his leg underneath the table, at which time a bottle pops out of his pant leg.” When Workman asked Hebert about the bottle, he responded that he “had no recollection of it, [and] did[ ] [not] know what it was, [or] where it came from.” Workman later testified that Hebert then “became pretty frantic, pleading, stating that he didn't know it was a crime; that he had used methamphetamine on New Year's and was worried that he was going to get in trouble and that he was sorry.”

Workman filed a petition to revoke Hebert's probation in his underlying criminal case based on his refusal to provide a urine sample and evidence tampering. The next day, Hebert provided a urine sample that tested positive for illicit substances and Workman filed a supplemental petition to revoke probation.

*2 Hebert was indicted under AS 11.56.610(a)(1) for tampering with physical evidence, and he was convicted after a jury trial.

Why we affirm Hebert's evidence tampering conviction

On appeal, Hebert claims that insufficient evidence supports his conviction. First, Hebert argues that he did not complete the act of “suppressing” or “concealing” evidence sufficient to constitute the actus reus of the offense. Second, Hebert argues that the evidence failed to show that he had urine in his body to suppress or conceal or that he took action to obscure it. Finally, Hebert argues that probation fails to qualify as an “official proceeding” or “criminal investigation” for the purposes of the evidence tampering statute.

Whether the evidence presented at trial is “legally sufficient to support a defendant's conviction is a question of law that we review de novo.”³ When reviewing the sufficiency of the evidence to support a conviction, this Court views the evidence (and the inferences that could reasonably be drawn from that evidence) in the light most favorable to supporting the verdict.⁴

Hebert was convicted of evidence tampering in violation of AS 11.56.610(a)(1), which provides that a person commits the crime of tampering with physical evidence if the person destroys, alters, suppresses, or conceals physical evidence with the “intent to impair its verity or availability in an official proceeding or a criminal investigation.” “In this context, the ‘verity’ of evidence means its ‘conformity to truth or fact.’ ”⁵

Sufficient evidence supports that Hebert “suppressed” or “concealed” evidence

Hebert argues that he did not “suppress” or “conceal” evidence when he provided the false urine sample at the probation office because Workman immediately recognized and rejected the sample as false. But under Alaska law, an act of suppression or concealment does not need to be successful for prosecution under the evidence tampering statute.⁶ The statute criminalizes the conduct itself when performed with the requisite intent, regardless of whether the tampering ultimately achieves its intended effect.⁷

The terms “suppress” and “conceal,” as they appear in the evidence tampering statute, are not specifically defined. When interpreting a statute, this Court “construe[s] its language ‘in accordance with [its] common usage,’ unless the word or phrase in question has ‘acquired a peculiar meaning, by virtue of statutory definition or judicial construction.’ ”⁸ Providing a false urine sample falls under the common understanding of the words “suppress” or “conceal.” Black's Law Dictionary defines “suppression of evidence” as “[t]he destruction of evidence or the refusal to give evidence at a criminal proceeding.”⁹ “Concealment” is defined as “[t]he act of preventing disclosure or refraining from disclosing; esp., the injurious or intentional suppression or nondisclosure of facts that one is obliged to reveal.”¹⁰

*3 Here, Hebert provided a false urine sample with the intent of preventing disclosure of his methamphetamine use — or at the very least to make the fact of his drug use substantially more difficult to discover.¹¹ The evidence presented at trial supports the conclusion that Hebert provided the false urine sample to suppress or conceal an accurate urine sample because he believed test results from a true sample would show that he had consumed illegal narcotics in violation of his probation. While it is true that Hebert was ultimately unsuccessful in his attempt to misrepresent the false urine sample as his own for the required urinalysis test, this does not change the analysis of his conduct.

Based on the evidence presented at trial, a reasonable jury could conclude that Hebert suppressed or concealed evidence.

Sufficient evidence supports that “physical evidence” was suppressed or concealed

Next, Hebert argues that the evidence at trial did not establish that he actually had urine in his body to suppress or conceal or that he actively suppressed or concealed urine. In other words, Hebert claims the evidence at trial was insufficient to establish that he suppressed or concealed “physical evidence.”

But Hebert fails to address our decision in Wood v. State.¹² There, the defendant was on felony probation with probation conditions that prohibited her from using illegal drugs and required her to submit to random urinalysis testing.¹³ When the defendant arrived at the probation office for a required test, she provided a sample of urine that was discovered to be false after the probation officer found a rubber band floating in the sample.¹⁴ The defendant later admitted that she “faked” her urine sample because she was “hot for methadone.”¹⁵ On appeal, the defendant challenged the sufficiency of the evidence presented at trial.¹⁶ This Court affirmed her conviction, explaining that the evidence at trial supported a conclusion that the defendant “concealed physical evidence (a current sample of her urine) intending to prevent the institution of an ‘official proceeding,’ a revocation of her probation.”¹⁷

Here, the evidence at trial showed that Hebert formulated a plan to falsify the results of his urinalysis test evidence by presenting a false sample of urine as his own. Hebert admitted to his probation officer after his deception was revealed that he attempted falsifying the results because he believed a valid sample would reveal his drug use in violation of his probation conditions.

For these reasons, a reasonable jury could conclude that Hebert concealed or altered “physical evidence.”

Sufficient evidence supports that Hebert altered evidence in order to impair its availability in an “official proceeding” or “criminal investigation”

Finally, Hebert argues that probation fails to qualify as an “official proceeding” or “criminal investigation” for the purposes of the evidence tampering statute. But the State did not need to establish that Hebert's probation was an official proceeding or criminal investigation — it needed to establish that he tampered with the urinalysis test evidence with the intent to impair its availability in a criminal investigation or an official proceeding (a probation revocation hearing).

*4 Alaska Statute 11.81.900(b)(44) provides that an “ ‘official proceeding’ means a proceeding heard before a legislative, judicial, administrative, or other governmental body or official authorized to hear evidence under oath.” A probation revocation proceeding is an “official proceeding.”¹⁸

Here, upon agreement of the parties, the superior court took judicial notice that the filing of the petition to revoke probation was an “official proceeding.” The court also provided a jury instruction that stated: “When a Petition to Revoke Probation is filed, the proceedings that take place in court as a result are ‘official proceedings.’ ”

Under the terms of his probation, Hebert was prohibited from using illegal drugs and required to provide urine samples for urinalysis as requested by his probation officer. Failure to comply with this probation condition could result in Hebert's arrest and revocation of his probation. Despite having notice of this condition, Hebert snuck a false urine sample into the probation office, manipulated the probation officer into leaving the room, and then filled the container with the false urine sample. After the deception was discovered, Hebert explained that he had recently used methamphetamine in violation of his probation conditions.

Based on this evidence, when viewed in the light most favorable to upholding the verdict, a reasonable jury could determine that Hebert tampered with the urine sample with the intent to impair its availability “in an official proceeding or a criminal investigation.”

Conclusion

For the reasons explained above, we conclude that sufficient evidence supports Hebert's conviction for evidence tampering and we therefore AFFIRM his conviction.

Judge ALLARD, concurring.

Judge ALLARD, concurring.

I agree with the majority that the evidence was sufficient to support Hebert's conviction for tampering with physical evidence. I write separately only to provide guidance for future prosecutions under the statute.

Alaska's evidence tampering statute, AS 11.56.610 provides, in relevant part,

(a) A person commits the crime of tampering with physical evidence if the person

(1) destroys, mutilates, alters, suppresses, conceals, or removes physical evidence with intent to impair its verity or availability in an official proceeding or a criminal investigation;

(2) makes, presents, or uses physical evidence, knowing it to be false, with intent to mislead a juror who is engaged in an official proceeding or a public servant who is engaged in an official proceeding or a criminal investigation;

(3) prevents the production of physical evidence in an official proceeding or a criminal investigation by the use of force, threat, or deception against anyone; or

(4) does any act described by (1), (2), or (3) of this subsection with intent to prevent the institution of an official proceeding.

As the majority notes, the current case is very similar to an unpublished case, Wood v. State, which also involved a probationer who provided a two-day-old urine sample in order to conceal what would otherwise have been a urine sample that would have tested positive for drugs.¹ As the majority also notes, however, the defendant in Wood was prosecuted under AS 11.56.610(a)(1) and (a)(4) in recognition of the fact that the “official proceeding” at stake (the proceedings related to the petition to revoke probation) did not exist until the probation officer filed the petition to revoke probation in response to the probationer providing a fake urine sample.² To avoid any confusion in the future, prosecutors should be careful to charge both subsections.

*5 I also note that (a)(2) — which prohibits the use of “false” physical evidence with the intent to mislead a public servant — is a more natural fit for the conduct at issue in this case. On appeal, Hebert cites to cases from Ohio that have held that mere refusal to provide a urine sample, standing alone, does not qualify as tampering with physical evidence.³ In my view, these cases are inapposite because this case, like Wood's case, did not involve a mere refusal to provide the incriminating urine; instead, it involved the affirmative act of substituting the false urine to “suppress” or “conceal” the otherwise incriminating urine.⁴ But prosecuting this crime under (a)(2) rather than (a)(1) could help avoid the potentially tricky issues related to treating urine inside the body as “physical evidence” that can be tampered with.

Footnotes

1

AS 11.56.610(a)(1).

2

AS 11.56.320(a)(4)(A).

3

Phornsavanh v. State, 481 P.3d 1145, 1156 (Alaska App. 2021).

4

Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012); Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009).

5

Kangas v. State, 2018 WL 2999802, at *3 (Alaska App. June 13, 2018) (unpublished) (quoting “Verity,” Webster's New World College Dictionary, at 1588 (4th ed. 2004).

6

See Wood v. State, 2012 WL 414229, at *2 (Alaska App. Feb. 8, 2012) (unpublished); Chilton v. State, 2001 WL 811045, at *2 (Alaska App. July 18, 2001) (unpublished).

7

Chilton, 2001 WL 811045, at *2.

8

City of Valdez v. State, 372 P.3d 240, 251 (Alaska 2016) (second alteration in original) (quoting Municipality of Anchorage v. Suzuki, 41 P.3d 147, 150 (Alaska 2002)); see also Roller v. State, 539 P.3d 518, 521 (Alaska App. 2023).

9

“Suppression of Evidence,” Black's Law Dictionary (12th ed. 2024).

10

“Concealment,” Black's Law Dictionary (12th ed. 2024).

11

See Benedict v. State, 2022 WL 2967224, at *6 (Alaska App. July 27, 2022) (unpublished).

12

Wood v. State, 2012 WL 414229 (Alaska App. Feb. 8, 2012) (unpublished). We note that in Wood, the case was prosecuted under AS 11.56.610(a)(1) and (4) whereas here the State elected to proceed only under subsection (a)(1). Id. at *1. While prosecution under both subsections may be the better approach, we do not find the omission of subsection (a)(4) to be fatal in this case.

13

Id. at *1.

14

Id. at *2.

15

Id.

16

Id. at *1.

17

Id. at *3.

18

See McRae v. State, 909 P.2d 1079, 1083 (Alaska App. 1996) (“[A] probation revocation hearing is a ‘continuation of the original [criminal] proceedings.’ ”) (second alteration in original) (quoting Kvasnikoff v. State, 535 P.2d 464, 466 (Alaska 1975)); Wood, 2012 WL 414229, at *3.

1

Wood v. State, 2012 WL 414229, at *3 (Alaska App. Feb. 8, 2012) (unpublished).

2

Id. at *1.

3

See State v. Freeman, 2005 WL 2931938, at *4 (Ohio App. Nov. 7, 2005) (unpublished); State v. Conley, 2005 WL 3031107, at *10 (Ohio App. Nov. 14, 2005) (unpublished).

4

See Wood, 2012 WL 414229, at *3 (“The evidence at trial supported the conclusion that Wood engaged in a premeditated scheme to avoid providing a current urine sample that would disclose that she had consumed methadone.”).

End of Document