Michael Joseph James v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: October 31, 2019
• Docket: 2018-SC-0066
• Status: Unpublished

Opinion

RENDERED: OCTOBER 31, 2019 TO BE PUBLISHED

2017- SC-000576-DG AND 2018- SC-000066-DG

COMMONWEALTH OF KENTUCKY APPELLANT/CROSS-APPELLEE

ON REVIEW FROM COURT OF APPEALS V. CASE NO. 2015-CA-001672 HENDERSON CIRCUIT COURT NO. 15-CR-00241

MICHAEL JOSEPH JAMES APPELLEE / CROSS-APPELLANT

OPINION OF THE COURT BY CHIEF JUSTICE MINTON

AFFIRMING, IN PART, REVERSING, IN PART, AND REMANDING

Under KRS 524.100, a person is guilty of tampering with physical

evidence if, among other things, that person conceals or removes physical

evidence which that person believes is about to be produced or used in an

official proceeding with the intent to impair its verity or availability in the

official proceeding. We granted discretionary review to determine whether

sufficient evidence of concealment or removal exists where a defendant, in the

presence of an officer, drops or tosses physical evidence of a possessory crime.

We hold that there was insufficient evidence to convict Michael Joseph

James of tampering with physical evidence, and we affirm the opinion of the

Court of Appeals insofar as it vacated the trial court’s judgment convicting

James of that charge. But we reverse the opinion of the Court of Appeals insofar as it reversed James’s convictions for first-degree possession of a

controlled substance and possession of drug paraphernalia and reinstate the

trial court’s judgment with respect to those convictions. The case is remanded

to the trial court for entry of a new judgment consistent with this opinion.

I. BACKGROUND.

Detective Jenkin of the Kentucky State Police Narcotics Unit was

investigating reports of possible drug activity at a residence. Detective Jenkin,

accompanied by another detective and a Kentucky State Trooper, arrived at

that residence in a marked cruiser. Detective Jenkin was dressed in plain

clothes but wore a vest marked “State Police.” Upon the officers’ arrival,

Detective Jenkin saw Michael Joseph James heading toward the residence, but

James appeared to change direction and go down an alley when he spotted the

officers. Detective Jenkin got out of his car, identified himself as State Police,

and yelled for James to stop. James looked over his shoulder and continued to

walk away from Detective Jenkin while keeping his hands near his waistline.

As James walked away from the officers and ignored orders to stop and

show his hands, Detective Jenkin observed several items falling from James’s

waistline area to the ground. Detective Jenkin could not specifically identify the

items being dropped but stated that “the last and final item that I saw fall from

waistline area was a black cylindrical item.” Although James was walking away

from Detective Jenkin at the time the items were dropped, Detective Jenkin

testified that all of this occurred at about four o’clock in the afternoon daylight

and that nothing impaired his vision.

Detective Jenkin drew his weapon and continued to order James to show

his hands. After James finally stopped and showed his hands, he was 2 handcuffed and placed under arrest. Detective Jenkin returned to the area

where he observed the items falling from James’s waistline and discovered lying

on the ground an empty diabetic test-strip canister, black in color.

Approximately six to eight inches away from the canister, Detective Jenkin

found a glass pipe containing residue of a burnt substance. KSP Laboratory

testing confirmed the substance was methamphetamine. Detective Jenkin

testified that he could not “say with one-hundred percent certainty [he] saw

that particular glass pipe fall” and did not testify that he saw any items as large

as the glass pipe being dropped. Detective Jenkin stated that there was a lot of

trash in the area but claimed there was no trash in the area around James’s

feet where the evidence was recovered.

James is a diabetic, and he acknowledged that the black canister was

his. James maintains, however, that the glass pipe containing

methamphetamine was not his. James was charged with one count of first-

degree possession of a controlled substance, once count of possession of drug

paraphernalia, and once count of tampering with physical evidence; and the

case proceeded to a jury trial in circuit court.

At the close of the Commonwealth’s case, James’s counsel moved for a

directed verdict on all three charges, but the trial court denied the motion.

James’s counsel renewed the motion at the close of all the evidence, but the

trial court again denied the motion. The jury convicted James of all three

charges and sentenced him to two years each for the possession of a controlled

substance and tampering charges and twelve months for the possession of

drug paraphernalia charge, set to run concurrently for a total of two years.

3 James appealed to the Court of Appeals, which reversed the trial court’s

judgment and remanded the case to the trial court to enter a new judgment

granting James’s motion for a directed verdict on all three charges. Specifically,

the Court of Appeals found there was insufficient evidence for a jury to

conclude “that the glass pipe was in the dominion or control of James, even for

constructive possession.” Because the majority of the appellate panel found

there was insufficient evidence to convict James of the possession crimes, it

also found insufficient evidence to find James guilty of tampering with physical

evidence.

We granted the Commonwealth’s motion for discretionary review and

James’s cross-motion for discretionary review.

II. ANALYSIS.

The Commonwealth argues that the trial court correctly denied James’s

motion for a directed verdict on the charges of first-degree possession of a

controlled substance and possession of drug paraphernalia and that the Court

of Appeals panel erred by reversing the trial court—an argument that James

disputes. And James argues that the Court of Appeals correctly held that the

trial court erred when it denied his motion for a directed verdict on the charge

of tampering with physical evidence—an argument that the Commonwealth

disputes. All these issues are properly preserved for our review.

When reviewing a trial court’s ruling on a motion for a directed verdict,

we turn to the standard outlined in Commonwealth v. Benham:

On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of 4 ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.1

On appellate review, we must determine whether, given the evidence as a

whole, “it would be clearly unreasonable for a jury to find guilt).]”2 Only then is

a defendant entitled to a directed verdict of acquittal.3 Further, the

Commonwealth need only produce more than a “mere scintilla” of evidence to

defeat a defendant’s motion for a directed verdict.4

1. The trial court did not err in denying James’s motion for a directed verdict on the possession charges.

James argues that the Commonwealth failed to produce sufficient

evidence that he possessed the glass pipe containing methamphetamine to

overcome a motion for a directed verdict on the charges of first-degree

possession of a controlled substance and possession of drug paraphernalia. We

disagree.

KRS 218A.1415(l)(c) provides that “a person is guilty of possession of a

controlled substance in the first degree when he or she knowingly or unlawfully

possesses . . . [m]ethamphetamine[.]” Similarly, KRS 218A.500(l) and (2) make

it unlawful for any person to possess with intent to use drug paraphernalia,

which is defined in part to mean “all equipment, products and materials of any

kind which are used, intended for use, or designed for use in . . . inhaling, or

1 816 S.W.2d 186, 187 (Ky. 1991). 2 Id. (citing Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983)). 3 Id. (citing Sawhill, 660 S.W.2d at 5). 4 Sawhill, 660 S.W.2d at 5. 5 otherwise introducing into the human body a controlled substance in violation

of this chapter[.]”

A defendant’s conviction under these statutes may be premised on either

actual or constructive possession.5 As always, the Commonwealth may prove

its case by direct or circumstantial evidence.6 A jury may make reasonable

inferences from circumstantial evidence.7 And, while circumstantial evidence

must “do more than point the finger of suspicion,”8 a conviction can be

premised on such evidence if, taking the evidence as a whole, it would not be

clearly unreasonable for a jury to find guilt beyond a reasonable doubt.9

The circumstantial evidence presented at trial would allow a reasonable

jury to conclude that James was in actual possession of the glass pipe, which

he then discarded upon seeing officers approach him. Detective Jenkin testified

that, after following James into the alley and ordering him to stop, James

instead looked over his right shoulder, continued walking, and kept his hands

by his waistline. As Detective Jenkin ordered James to show his hands,

Detective Jenkin observed multiple items falling from James’s waistline, the

last of which Detective Jenkin identified as a black cylindrical item. When

5 Hargrave v. Commonwealth, 724 S.W.2d 202, 203-04 (Ky. 1986). 6 See Haney v. Commonwealth, 500 S.W.3d 833, 835 (Ky. App. 2016) (citing United States v. Bailey, 553 F.3d 940, 944 (6th Cir. 2009)) (“Constructive possession, much like actual possession, may be proven by circumstantial evidence.”); Commonwealth v. Goss, 428 S.W.3d 619, 625 (Ky. 2014) (citing Commonwealth v. O’Conner, 372 S.W.3d 855, 857 (Ky. 2012) (“It has long been the law that the Commonwealth can prove all the elements of a crime by circumstantial evidence.”). 7 Dillingham v. Commonwealth, 995 S.W.2d 377, 380 (Ky. 1999) (citing Blades v. Commonwealth, 957 S.W.2d 246, 250 (Ky. 1997)). 8 Davis v. Commonwealth, 795 S.W.2d 942, 945 (Ky. 1990). 9 Graves v. Commonwealth, 17 S.W.3d 858, 862 (Ky. 2000). 6 Detective Jenkin returned to that area to see what had fallen, he discovered the

black cylindrical item, which turned out to be an empty tube for diabetic test-

strips and the glass pipe containing methamphetamine about six to eight

inches apart from each other.

James argues that these facts show only a mere possibility of wrongdoing

and are therefore insufficient to survive a motion for a directed verdict because

Detective Jenkin could not identify as the glass pipe any one item falling from

James’s waistline. But that argument “conflates sufficiency with necessity.”10

The relevant question is whether the circumstantial evidence taken as a whole

would make it clearly unreasonable for a juror to find guilt.11 While this Court

has never explicitly so stated, to survive a motion for directed verdict it is not

necessary that the Commonwealth present evidence specifically identifying a

particular item being dropped by the defendant as the illegal contraband if

there is adequate circumstantial evidence linking the defendant to that

contraband.

The Sixth Circuit Court of Appeals has sustained possession charges

based on similar circumstantial evidence.12 The defendant in United States v.

Garcia13 fled an apartment complex when officers arrived to investigate

reported gunfire. While in pursuit, an officer saw objects fall from the

10 United States v. Garcia, 758 F.3d 714, 719 (6th Cir. 2014). 11 Benham, 816 S.W.2d at 187. 12 The Sixth Circuit reviews claims of insufficient evidence under the same standard as our courts. See United States v. Talley, 164 F.3d 989, 996 (6th Cir. 1999) (“In deciding whether the evidence is sufficient to withstand a motion for an acquittal, and support a conviction, the court views all evidence in the light most favorable to the prosecution and determines whether there is any evidence from which a reasonable jury could find guilt beyond a reasonable doubt.”). 13 758 F.3d 714, 720 (6th Cir. 2014). 7 defendant’s person as he scrambled over a fence.14 After the officers subdued

the defendant, they returned to the fence and discovered on the ground a

baseball cap and a silver revolver. 15 The Government acknowledged that no

officer had seen the defendant holding the gun, and the officer who observed

the items falling from the defendant could not identify any one of them as the

gun.16 The court nevertheless concluded there was sufficient evidence to

establish beyond a reasonable doubt that the defendant had actual possession

of the revolver even though the circumstantial evidence required the jury to

infer that one of the objects being dropped was the revolver.17

In rejecting an identical argument as James advances here—that there

was insufficient evidence because no witness saw the defendant “possess an

object that specifically resembled the silver revolver”—the court emphasized

that there was “no single hallmark of sufficiency in cases charging actual

possession.”18 Rather, the court “must view all of the evidence, both direct and

circumstantial in the light most favorable to the prosecution.”19 Accordingly,

the court explained the applicable rule as follows:

[T]o sustain a conviction for actual possession of contraband that the defendant allegedly discarded before his or her arrest, the witness linking the defendant to the contraband need not be able to describe with specificity the object thrown by the defendant if adequate circumstantial evidence links the defendant to the contraband. The relevant question in these cases is whether the

14 Id. at 716.

15 Id.

16 Id. at 718-19.

17 Id. at 721-22.

18 Id. at 719-20.

19 Id. at 719.

8 Government’s theory is supported by sufficient circumstantial evidence.20

The same rule applies in this case. The fact that James dropped the

items immediately after Detective Jenkin revealed himself as state police and

the fact that the glass pipe was found only six to eight inches from the black

cylinder, taken together with the fact that Detective Jenkin observed multiple

items being dropped, was more than enough for a juror reasonably to infer that

James was in actual possession of the glass pipe.21

James argues that the circumstantial evidence linking the defendant to

the contraband in Garcia is far stronger than the evidence linking James to the

glass pipe in this case. Specifically, James notes that the revolver and baseball

cap in Garcia were found lying on top of a layer of newly fallen snow and there

were no other items, while the contraband in this case was found in a busy

alley frequented by drug users. While the inference in Garcia may be stronger,

we cannot say the required inference in this case—that one of the items

Detective Jenkin saw falling from James’s waistline was the glass pipe—is one

that would be clearly unreasonable for a jury to draw. Similarly, the

20 id. at 720. 21 The Commonwealth cites to several cases for the proposition that James had constructive possession of the glass pipe. Because we uphold the trial court judgment on a theory of actual possession, we decline to address those cases. Similarly, James also points us to Franklin v. Commonwealth, 490 S.W.2d 148, 150 (Ky. 1972), a constructive-possession case, to argue that the Commonwealth has not put forth sufficient evidence to establish that James had knowledge of the glass pipe—a requirement of constructive possession. We decline to address the applicability of this case because we conclude that the Commonwealth has put forth sufficient evidence for a jury to conclude that James was in actual possession of the glass pipe and methamphetamine. 9 Commonwealth in the present case put forth more than a mere scintilla of

proof showing that James was in actual possession of the glass pipe.22

We note that this analysis differs from that of the Court of Appeals and

find it important to explain why. The Court of Appeals concluded that the

evidence was “insufficient to survive a directed verdict that the glass pipe was

in the dominion or control of James, even for constructive possession.”

(emphasis added). This statement from the appellate panel appears to us to

miss the point. A case may present facts sufficient for a jury reasonably to

conclude that a defendant did not have constructive possession of an item but

did have actual possession. While the Court of Appeals may have been correct

in concluding that the facts of this case were insufficient to sustain a

conviction premised on a theory of constructive possession, it still needed to

determine whether the conviction could be upheld under a theory of actual

possession because the jury instructions for the possession charge would have

allowed either.23

In this case, we conclude that the facts are sufficient for a reasonable

jury to conclude that actual possession occurred, and we therefore reverse the

22 James points us to Johnson v, Commonwealth, 885 S.W.2d 951 (Ky. 1994), to support his argument that the Commonwealth put forth only a scintilla of proof in that the evidence shows only a mere possibility of wrongdoing. But in Johnson the Commonwealth had failed to put forth any evidence that the defendant had acted with extreme indifference to human life when his coal truck struck and killed the victim other than evidence showing that the defendant might have run a red light. Id. at 953. By contrast, the Commonwealth in this case presented evidence that the glass pipe was found in the area where the defendant was observed dropping items, the glass pipe was found directly adjacent to an item that James admitted to dropping, and that the items were seen falling from James’s waistline as he walked away from officers and ignored their commands to show his hands. The Commonwealth put forth more than a mere scintilla of evidence in this case. 23 The jury instructions defined “possession” as “to have actual possession or otherwise to exercise actual dominion or control over a tangible object.” 10 Court of Appeals and reinstate the circuit court’s judgment with respect to the

possession charge.

2. The trial court erred in denying James’s motion for a directed verdict with respect to the tampering with physical evidence charge.

James also argues that the Commonwealth failed to produce sufficient

evidence to support a conviction for tampering with physical evidence.

Specifically, James argues that the mere dropping of the glass pipe on the

ground did not constitute either a concealment or removal of evidence within

the tampering statute. We agree.

KRS 524.100 makes it unlawful for a person to tamper with physical

evidence. In relevant part, that statute provides the following:

(1) A person is guilty of tampering with physical evidence when, believing that an official proceeding is pending or may be instituted, he:

(a) Destroys, mutilates, conceals, removes or alters physical evidence which he believes is about to be produced or used in the official proceeding with intent to impair its verity or availability in the official proceeding; . . . ,24

As with every criminal statute, KRS 524.100 requires the Commonwealth

to prove both that the defendant acted with the requisite criminal intent and

that he completed the requisite criminal act. Under this statute, the

Commonwealth satisfies the intent element by showing beyond a reasonable

doubt that the defendant acted with “intent to impair [the evidence’s] verity or

availability in the official proceeding.”25 And, separately, the Commonwealth

satisfies the criminal-act element by showing beyond a reasonable doubt that

24 KRS 524.100. 25 Id. (emphasis added). 11 the defendant completed one of the following proscribed acts: “destroys,

mutilates, conceals, removes or alters physical evidence.”26

In this case, the issue is whether James committed the requisite criminal

act. James did not destroy, mutilate, or alter the glass pipe, so the specific

question is whether he “concealed” or “removed” the glass pipe when he

dropped it in the presence of Officer Jenkin.

While this Court has applied the tampering statute in numerous

contexts, until now, it has not addressed whether the criminal-act element is

met in the unique set of facts this case presents: a person, in plain view of an

officer, drops or tosses away evidence of a possessory crime in a manner that

makes the evidence easily retrievable by law enforcement.

Our goal in construing statutes is to give effect to the intent of the

General Assembly.27 We derive that intent first and foremost “from the

language the General Assembly chose, either as defined by the General

Assembly or as generally understood in the context of the matter under

consideration.”28 In examining the language, we presume the General Assembly

intended for the statute to “be read as a whole and in context with other parts

of the law.”29 We further presume that the General Assembly did not intend for

a statute to yield an absurd result.30 “Only if the statute is ambiguous or

otherwise frustrates a plain reading, do we resort to extrinsic aids such as the

26 Id.

27 Shawnee Telecom Resources, Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011) 28 Id. (citing Osborne v. Commonwealth, 185 S.W.3d 645 (Ky. 2006). 29 Lewis v. Jackson Energy Co-op. Corp., 189 S.W.3d 87, 93 (Ky. 2005). 30 Layne v. Newberg, 841 S.W.2d 181 (Ky. 1992). 12 statute’s legislative history; the canons of construction; or especially in the case

of model or uniform statutes, interpretations by other courts”31

The General Assembly sought to enumerate in KRS 524.100 the specific

criminal acts that amount to tampering, but it did not define those terms. The

meanings of the two words at issue in this case—conceal and remove—appear

plain on their face but become less clear when applied to the facts of this case.

Meriam- Webster defines “conceal” as “to prevent disclosure or recognition of’ or

“to place out of sight.”32 That dictionary also defines “remove” as “to change the

location, position, station, or residence of.”33 Construed in a manner so as not

to render the word “conceal” redundant, “remove” must refer to the act of

changing the location or position of a piece of an object in a way that moves it

from the scene of a crime.34

While the application of these terms is straightforward in some

scenarios—for example, where a defendant removes bullet casings from the

scene of a murder or where a person hides drugs inside the insole of a shoe—it

is more difficult in this case. James’s dropping of the glass pipe, even with his

back turned to the officer, did not prevent the disclosure of the glass pipe or

31 Shawnee Telecom Resources, Inc., 354 S.W.3d at 551 (citing Financial Group, Inc. v. Morton, 289 S.W.3d 193 (Ky. 2009); Knotts v. Zurich, 197 S.W.3d 512 (Ky. 2006); Stephenson v. Woodward, 182 S.W.3d 162 (Ky. 2005)) (emphasis added). 32 “Conceal.” Meriam-Webster Online Dictionary. 2019. https://www.merriam- webster.com/dictionary/conceal. 33 “Remove.” Meriam-Webster Online Dictionary. 2019. https://www.merriam- webster. com/ dictionary/ remove. 34 As one court noted while interpreting a nearly identical tampering statute, “if the term ‘remove’ is not to be redundant of the other terms used in the statute (especially ‘suppress’ and ‘conceal’), then ‘remove’ must refer to the act of moving an object from the scene of the crime, or from any location where its evidentiary value can be deduced, to some other place where its evidentiary significance may not be detected.” Vigue v. State, 987 P.2d 204, 210 (Alaska 1999). 13 place it out of the officer’s sight. Nor did it move the glass pipe from the scene

of the crime.

Faced with, at best, a less-than-clear application of the statute to the

facts before us, we look to cases from other jurisdictions that have applied

these terms to similar facts. Notably, KRS 524.100 is based on Section 241.7 of

the Model Penal Code,35 and twenty-eight other jurisdictions have enacted

tampering statutes based on that section.36 While the language of those

statutes varies slightly, almost all of them include as part of the actus reus the

word “conceal,” and a majority include the word “remove.”37

Of those twenty-eight other jurisdictions, “most, if not all” that have

addressed this specific issue “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.”38 Instead,

35 Section 241.7 of the Model Penal Code provides the following: 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 (Am. Law Inst. 1985). 36 See State v. Hawkins, 406 S.W.3d 121, 133 n.ll (Tenn. 2013) (collecting cases). 37 The following states do not include the word “removal”: New York, N.Y. Penal Law § 215.40 (McKinney 2010); Texas, Tex. Penal Code Ann. § 37.09 (West 2011 & Supp. 2012); Delaware, Del. Code Ann. tit. 11, § 1269 (2007); Tennessee, Tenn. Code Ann. § 39-16-503 (2010); Illinois, 720 Ill. Comp. Stat. 5/31-4 (West 2010); Missouri, Mo. Ann. Stat. § 575.100 (West 2011); and New Mexico, N.M. Stat. Ann. § 30-22-5 (LexisNexis 2004). New Mexico’s statute also uses the word “hiding” instead of “conceal.” Id. at (A). 38 Hawkins, 406 S.W.3d at 133. See also Vigue v. State, 987 P.2d at 206 (“This issue has been addressed by several states that have evidence-tampering statutes similar to 14 these courts agree that “when a person who is committing a possessory offense

drops evidence in the presence ofpolice officers, and the officers are able to

recover the evidence with minimal effort, discarding the evidence amounts to

‘mere abandonment,’ not tampering”39 In other words, according to our sister

states, a person in this specific scenario has not completed the act of

“concealing” or “removing” the evidence.

In Vigue v. State, for example, the Alaska Court of Appeals was faced

with almost identical facts and concluded that the defendant, Vigue, had

merely abandoned the evidence.40 In that case, an officer had attempted to stop

Vigue on a street corner and ordered him to show his hands.41 As Vigue walked

toward the officer, he kept his hands behind his back, and the officer saw

Vigue make “a little shaking motion” with his hands, as if Vigue had tried to

drop something.42 “Because Vigue’s body blocked his view, [the officer] could

not see what, if anything, had fallen to the ground.”43 After Vigue walked to the

officer’s car, the officer walked over to where Vigue made the shaking motion

and retrieved from the ground “five little white rocks that appeared to be crack

cocaine.”44

Alaska’s. Although these courts rely on different rationales for their decisions, they 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.”). 39 Hawkins, 406 S.W.3d at 134 (emphasis added). 40987 P.2dat211. Id. at 205. 41 42Id. 43 Id. 44 id. 15 The Court held that Vigue had neither “concealed” nor “removed” the

cocaine within the meaning of the statute.45 The Court construed the word

“remove” as “moving an object from the scene of the crime, or from any location

where its evidentiary value can be deduced, to some other place where its

evidentiary significance may not be detected.”46 Thus, the Court determined

that Vigue’s conduct did not constitute the removal of evidence.47

In determining whether Vigue had “concealed” the evidence, the Court

found it necessary to distinguish between the criminal act and criminal intent

elements of the statute:

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 the 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 on 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,

45 Id. at 210. Alaska’s tampering statute, Alaska Stat. § 11.56.610 (2018), is almost identical to KRS 524.100 except that it also includes the term “suppress” in defining the actus reus: “A person commits the crime of tampering with physical evidence if the person . . . 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 . . . .” Alaska Stat. § 11.56.610 (2018). 46 Vigue, 987 P.2d at 210. 47 Id. 16 Tennessee, and New Jersey that conduct such as Vigue’s amounts to nothing more than abandonment of the evidence.48

In State v. Lasu, the Nebraska Supreme Court also considered almost

identical facts and concluded that the defendant had merely abandoned the

evidence.49 In that case, Lasu was walking through a service station while

being followed by an officer when he pulled a bag of marijuana out of his

pocket and dropped it into a cardboard bin of snack foods.50 The bag landed on

top, and the officer immediately retrieved it and arrested Lasu.51

The Court interpreted another MPC-based tampering statute and

concluded that Lasu had neither “concealed” nor “removed” the evidence.52

Like the Court in Vigue, the Lasu Court found “it important not to confuse

[Lasu’s] intentions with his physical actions.”53 The Court explained that

“(e]ven if Lasu meant to make it more difficult to find the contraband and

connect it to him, he did not remove it from the scene of the possessory

offense, nor did he actually conceal it when he abandoned it. He made the

evidence easier to find, even if it was not found on him.”54

48 Id. 49 768 N.W.2d 447, 452 (Neb. 2009). 50 Id. at 449. 51 Id. at 449-50. 52 Id. at 451. Nebraska’s tampering statute provides that “[a] person commits the offense of tampering with physical evidence if, believing that an official proceeding is pending or about to be instituted and acting without legal authority, he . . . [djestroys, mutilates, conceals, removes, or alters physical evidence with the intent to impair its verity or availability in the pending or prospective official proceeding . . . .” Neb. Rev. Stat. § 28-922 (2019). 53 State v. Lasu, 768 N.W.2d 447, 452 (Neb. 2009) (citation omitted). 54 Id. The Court acknowledged that it was not alone in finding conduct like Lasu’s to fall short of concealment or removal: “[C]ourts considering effectively identical statutory language have uniformly concluded that when a defendant merely drops, throws down, or abandons evidence in the presence of law enforcement, such conduct 17 In Commonwealth v. Delgado,55 the defendant was being pursued

by law enforcement after fleeing the scene of a crime.56 With an officer

right behind him, the defendant tossed what the officer observed to be a

bag of cocaine onto a garage roof.57 Interpreting a similar tampering

statute,58 the Supreme Court of Pennsylvania explained that the

defendant’s “act of discarding contraband in plain view of the police does

not rise to a level of conduct that constitutes the destruction or

concealment of evidence as contemplated by the statute.”59 Noting that

the statutory penalty for tampering with physical evidence was greater

than the penalty for possessing cocaine, the Court surmised that the

General Assembly could not have “intended the simple act of abandoning

evidence in plain view of the police to constitute the commission of an

additional crime of a greater degree.”60

It appears that, “under the scenarios presented, the clear weight of

authority from other states concludes that where 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

will not sustain a conviction for tampering with physical evidence.” Id. at 451 (citations omitted). 55 679 A.2d 223 (Pa. 1996). 56 Id. at 225. 57 id. 58 Pennsylvania’s tampering statute imposes criminal liability where a defendant “alters, destroys, conceals, or removes any record, document or thing with intent to impair its verity or availability in [an official] proceeding or investigation.” 18 Pa.C.S. § 4910. 59 679 A.2d at 225. 60 Id. 18 constitute”61 tampering by either concealment or removal that will

support an evidence-tampering charge.

Faced with a unique set of facts and statutory text that is not

immediately clear, we find this interpretation instructive. And we further

note that it is consistent with other parts of the law and with the

presumption that our legislature does not write statutes that produce

absurd results. While it could be argued that the terms remove and

conceal are so broad on their face as to include a person’s act in

dropping or tossing evidence with their back turned to an officer, such a

reading would “lead to results that are inexplicably harsh.”62 The General

Assembly chose to make the tampering with physical evidence a Class D

felony.63 And if the words conceal or remove are interpreted so broadly,

“then minor possessory offenses would often be converted to felonies with

little reason.”64 While James’s initial possessory charges could hardly be

considered minor, it is not difficult to imagine a case where a person

under 21 who is in possession of alcohol drops the alcohol when he is

approached by an officer. In such a case, that person’s Class B

misdemeanor65 could readily be converted into a Class D felony for

61 In re M.F., 734 N.E.2d 171, 178 (Ill. App. Ct. 2000). 62 Vigue v. State, 987 P.2d 204, 211 (Alaska 1999). 63 KRS 514.100(2). 64 Vigue, 987 P.2d at 211. See also State v. Lasu, 768 N.W.2d 447, 452 (Neb. 2009) (“It would be contrary to our basic principles of statutory construction, and to common sense, to conclude that a misdemeanor possession of marijuana would become a Class IV felony because the defendant drops the contraband in plain view.”). 65 See KRS 244.990(1); KRS 244.085(2) (together providing that a person between the age of 18 and 21 in possession of an alcoholic beverage is subject to a Class B misdemeanor). 19 tampering with physical evidence. Considering our long-held rule that

“[d]oubts in the construction of a penal statute will be resolved in favor of

lenity and against a construction that would produce extremely harsh or

incongruous results or impose punishments totally disproportionate to

the gravity of the offense,”66 we cannot conclude that the General

Assembly intended the tampering statute to be read as broadly as the

Commonwealth contends.

And, like the Court in Vigue, we acknowledge that James, by

“ridding his pockets and hands” of the glass pipe, almost certainly

“intended to make it less likely that the [evidence] would come to Officer

[Jenkin’s] attention.”67 But that fact has no bearing on whether the

proscribed acts of concealment or removal occurred. “In addition to the

actus reus, the statute also requires proof of a culpable mental state”68—

defined as the “intent to impair [the evidence’s] verity or availability [in

the official proceedings against him].”69 To find that tampering occurred

merely because James sought to distance himself from the evidence or

prevent the officer from discovering it would be to confuse James’s intent

with his physical actions.

Applying this interpretation to the facts before us, we hold that

James neither concealed nor removed the glass pipe within the meaning

of KRS 524.100. James, knowing he was in the presence of a police

66 Commonwealth, v. Colonial Stores, Inc., 350 S.W.2d 465, 467 (Ky. 1961) 67 Vigue, 987 P.2d at 210. 68 Id. 69 KRS 524.100. 20 officer but with his back turned, dropped multiple items to the ground—

one of which, the jury reasonably inferred, was a glass pipe containing

methamphetamine. After handcuffing James, Detective Jenkin walked

over to the area where he saw the items fall and collected the glass pipe

from the ground. Even though James may have intended to prevent the

discovery of the glass pipe, dropping or throwing the evidence to the

ground in the presence and view of Officer Jenkin in a manner that left

the evidence easily retrievable was not an act of concealment or removal

sufficient to sustain an additional charge for tampering with physical

We caution, however, that the dropping or tossing away of evidence

in the presence of a law enforcement officer, even when the drugs are

eventually recovered, is not always outside the reach of the tampering

statute. In some scenarios, the affirmative act of dropping or throwing

away the evidence even in the presence of law enforcement officers may

constitute a violation of the statute, depending on the specific facts of the

case. For example, where the tossing away of evidence makes the

evidence “substantially more difficult or impossible” for law enforcement

to recover and use in a later proceeding against the defendant, the act

may result in concealment, even if the officers ultimately succeed in

retrieving the evidence.70 Thus, “when a defendant disposes of

70 Other courts have held just that. See, e.g., Anderson v. State, 123 P.3d 1110, 1119 (Alaska 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.”); Hayes v. State, 634 So.2d 1153, 1154 (FI. Dist. Ct. App 1994) (affirming tampering conviction where defendant, while being pursued by a 21 contraband in a manner intended to destroy the evidence or make

recovery impossible, such conduct may constitute evidence tampering.”71

By contrast, the interpretation adopted here today applies only “where

the defendant merely drops, throws down, or abandons [potential

evidence] in the vicinity of the defendant and in the presence and view of

the police,”72 and in a manner that renders the evidence quickly and

readily retrievable by law enforcement.

The Commonwealth points us to several Kentucky cases to support

its argument that Kentucky has already rejected the interpretation of

KRS 524.100 we adopt here. But we disagree because those cases are

consistent with our interpretation of the statute and further help to

illustrate the outer limits of concealment and removal. Specifically, the

conduct at issue in many of those cases occurred outside the presence of

police officers, and the effect of the defendant’s act was to make it

substantially more difficult for the officers to recover the evidence.

In O’Bannon v. Commonwealth, we upheld a tampering-with-

physical-evidence conviction where the defendant, outside the presence

of an officer, tossed a knife out of a moving car window while driving

away from the scene of an assault.73 Unlike the act of merely dropping or

police officer, pulled a “baggie” containing crack cocaine out of his pants and dropped it into a drainage outlet, despite the wet “baggie” later being retrieved by law enforcement); State v. Jennings, 666 So.2d 131 (Fla. 1995) (defendant’s swallowing of cocaine rocks in response to an officer’s shouting “police” could amount to concealment or tampering). 71 In re M.F., 734 N.E.2d at 178. 72 Id. 72 No. 2016-SC-000133-MR, 2017 WL 6380241, at *1, 4 (Ky. Dec. 14, 2017). 22 tossing evidence in front of an officer, throwing evidence out of a moving

car with no officer present is an act that makes recovery of the evidence

much more difficult. In Crayton v. Commonwealth, we upheld a

tampering conviction where the defendant was running from police

officers and, while outside the presence of officers, threw a gun into

another part of the backyard in which he was found hiding.74 No officer

had observed the defendant toss the gun, and it was only after officers

thought to search the area that the gun was recovered.75 Like the

defendant’s act in O’Bannon, the tossing of the gun into a backyard

outside the presence of officers made the gun more difficult to recover.

In other cases that the Commonwealth cites, the defendant did not

simply drop or toss the evidence, but instead affirmatively placed the

evidence in a location that would otherwise hide it from plain view. In

Commonwealth v. Henderson, we upheld a tampering conviction where,

during a police hot pursuit but outside the presence of any officers, the

defendant had placed stolen money under the insole of his shoe.76 We

noted that the simple carrying away of evidence of a possessory offense

does not normally amount to tampering, but that the placement of

74 No. 2013-SC-000266-MR, 2014 WL 2811316, at *1, 4-5 (Ky. June 19, 2014). 75 Id. at *1. We emphasize that Crayton tossed the gun into another part of the backyard while outside the presence and observation of police officers, a crucial fact in the analysis of the drop-and-toss cases of other jurisdictions we cite in this opinion. 76 85 S.W.3d 618, 619-20 (Ky. 2002). We note that the actual act of concealment occurred outside the direct presence and observation of officers. Id. at 619. (“At some point during the chase, the purse, emptied of its money, was thrown out the window of the car. Appellee admitted that during the chase he put the money from the purse in the insole of his shoe.”). In any case, the act of hiding evidence inside the insole of a shoe falls squarely within the definition of “concealment.” 23 evidence in such an unconventional location—in this case, the insole of a

shoe—was an affirmative act of concealment that evidenced an intent to

make the evidence unavailable to law enforcement.77 In Taylor v.

Commonwealth, we similarly upheld a tampering conviction where the

defendant, while being observed by a police officer, took a clear plastic

bag containing drugs and placed it under the seat of a car in which he

was sitting.78 Even though the officers observed the defendant’s act and

knew where the drugs were, the act of hiding the drugs under the

defendant’s seat constituted “concealment.”79 More recently, in

Weatherly v. Commonwealth, we upheld a tampering conviction where

the defendant placed a bag of marijuana under the passenger side of a

truck while the officer was performing a vehicle search.80 The officer

discovered the evidence only after smelling unsmoked marijuana and

deciding to look under the truck.81

By contrast, the rule here reflects the narrow set of facts in front of

us: where a defendant merely drops, throws down, or abandons drugs in

the vicinity of the defendant and in the presence and view of the police,

and the officer can quickly and readily retrieve the evidence, the criminal

act of concealment or removal has not taken place. Both the text and the

77 id. at 619-20. 78 987 S.W.2d 302, 303-05 (Ky. 1998). 79 Id. at 305. 80 No. 2017-SC-000522-MR, 2018 WL 4628570, at *1-3 (Ky. Sept. 27, 2018). 81 Id. at *1. 24 intent of the legislature suggest that these terms cannot be read more

broadly.

We address finally the rationale of the dissenting opinion, as we find its

interpretation of KRS 524.100 misconstrues the Commentary to that statute.

Specifically, the dissent points to a portion of the Commentary to re-write the

elements of the statute into the following: “[i]f the defendant believed [the

evidence] was to be produced or used in a proceeding and his actions were

designed to prevent that from occurring, the elements of proof are satisfied.”

The full text of the paragraph from which the dissent pulls this quote reads as

follows:

There is no requirement that the evidence actually be admissible. If the defendant believed it was to be produced or used in a proceeding and his actions were designed to prevent that from occurring, the elements of proof are satisfied.

Based on the full context, it is clear this paragraph was meant to convey

only that it does not matter whether the evidence would ultimately be

admissible at trial—the defendant simply needs to believe the evidence would

be used against him to be subject to criminal liability under the statute.

Instead, the dissent uses this portion of Commentary to expand the criminal

act element from those specific acts chosen by the General Assembly—

“destroys, mutilates, conceals, removes, or alters”—to “any action designed to

prevent the evidence to be produced in a proceeding.” Here, the dissent argues,

James committed the crime of tampering with physical evidence because his

act was “designed to conceal or remove evidence.”

But the General Assembly did not choose to include the phrase

“designed to” in the text of KRS 524.100. Instead, they sought specifically to

25 enumerate in plain, clear terms the proscribed criminal acts that the General

Assembly found so egregious as to require subjecting their perpetrators to

Class D felony criminal liability. Accepting the dissent’s interpretation would

not only undermine the text of the statute and render meaningless the words

carefully placed therein, but it would also vastly increase the conduct coming

within the scope of this statute. Bound by the principles of statutory

construction explained above, we cannot agree with the dissent’s

interpretation.

James’s dropping of the evidence here was observed by Detective

Jenkin, and the evidence he left lying on the ground of an alleyway was

retrieved only moments after he was arrested. Like the majority of other

jurisdictions, we hold now that this evidence of concealment or removal

was insufficient for a reasonable juror to find James guilty of tampering

with physical evidence, a Class D felony. Accordingly, James was entitled

to a directed verdict on the tampering-with-physical-evidence charge.

III. CONCLUSION.

For the foregoing reasons, we reverse the Court of Appeals’ opinion

and reinstate the trial court judgment with respect to the possession

charge, but we affirm the Court of Appeals’ opinion reversing the

conviction for tampering with physical evidence. This case is remanded

to the trial court for entry of a new judgment consistent with this

opinion.

All sitting. Minton, C.J., Buckingham, Hughes, and Keller, JJ., concur.

Wright, J., concurs in part and dissents in part by separate opinion, in which

Lambert, and VanMeter, JJ., join. 26 WRIGHT, J., CONCURRING IN PART AND DISSENTING IN PART: While I

concur with the majority as to the other issues, I respectfully dissent from the

section of the majority’s opinion which eviscerates prosecutorial authority to

charge defendants with tampering with physical evidence under the duly

enacted KRS 524.100. This section of the opinion takes the evaluation of the

facts away from the jury.

James argues on cross-appeal that even if a court found that he

possessed the glass pipe, the dropping of it on the ground did not constitute

tampering with physical evidence. Thus, he insists he should be entitled to a

directed verdict of acquittal on that charge. The majority agrees with James

and I dissent from that holding for the reasons that follow.

KRS 524.100 provides:

A person is guilty of tampering with physical evidence when,

believing that an official proceeding is pending or may be

instituted, he:

(a) Destroys, mutilates, conceals, removes or alters physical evidence which he believes is about to be produced or used in the official proceeding with intent to impair its verity or availability in the official proceeding; . . .

(Emphasis added.)

The majority’s framing of the issue—“the issue is whether James

committed the requisite criminal act. . . . when he dropped it in the presence of

Officer Jenkin”—clearly and unambiguously describes an action “designed to

prevent” the evidence from being “used in a proceeding.” Id., 1974 Kentucky

27 Crime Commission/LRC Commentary.82 However, once the majority sets up

the issue, it adopts a new judicially-created exception to the statutory offense:

“where a defendant merely drops or tosses evidence in the presence of a police

officer, and the officer can quickly and readily retrieve the evidence, the

criminal act of concealment or removal has not taken place.” This narrow rule

ignores the plain language of the statute, replacing it with a judicially-

constructed definition based upon other states’ court decisions and wholly

lacking in any reference to the actual language of KRS 524.100.

In the case currently before the court, Jenkin identified himself as a

police officer and ordered James to stop and show his hands. James continued

to walk away from the officer with his hands in front of him near his waist.

The police officer drew his gun and ordered James to stop and show his hands.

Jenkin could see that James continued to walk away, keeping his hands in

front of (and shielded by) his body, and dropping items from his waist as he

went without looking down or examining the items. As a result, he dropped the

only item Jenkin saw and could identify—a black cylindrical container of

diabetic testing strips. The black cylinder with diabetic testing strips was legal.

The question arises: when a police officer had identified himself, drawn his

gun, and ordered James to stop and show his hands, why would James take

82 As we have held: “[t]he plain meaning of the statutory language is presumed to be what the legislature intended, and if the meaning is plain, then the court cannot base its interpretation on any other method or source. We ascertain the intention of the legislature from words used in enacting statutes . . . .” Revenue Cabinet v. O’Daniel, 153 S.W.3d 815, 819 (Ky. 2005) (internal citations and quotations omitted). Therefore, if the statute were plain, we would not look to the Commentary for clarification. The majority’s position is contrary to the plain language of the statute. If we accept this interpretation, then there would be an ambiguity in the language. Therefore, I turn to the Commentary for a resolution of this ambiguity. 28 the risk of continuing to walk away dropping items—the last of which was a

perfectly legal black cylinder with diabetic testing strips?

It was not clearly unreasonable for the jury to find that James attempted

to impair availability or verity of the glass pipe containing methamphetamine

by dropping it on the ground. Commonwealth v. Benham, 816 S.W.2d 186, 187

(Ky. 1991). This is a question of fact and of evaluation of the evidence properly

left to the jury; today, the majority disturbs the jury’s findings of fact. Under

these circumstances, there was sufficient evidence to leave the matter in the

hands of the jury. James had intent and acted to conceal his possession of

incriminating evidence and conceal his attempt to remove the evidence from his

possession so as to impair its verity or availability in an official proceeding.

The majority’s new rule is not the appropriate analysis for tampering

with physical evidence. The perpetrator’s act does not have to result in the

actual deprivation of evidence for the defendant to have the requisite actus reus

required. It was not clearly unreasonable for the jury to find that James

attempted to impair availability or verity of the methamphetamine pipe by

dropping it in a discrete manner (shielding his action with his body) while

walking away from an officer who directed him to stop. The jury considered the

fact that even when the officer drew his gun and again commanded James to

stop, James continued to walk away and drop items. The jury properly found

that James “removed” the evidence “to impair its verity or availability in the

official proceeding.” KRS 524.100(a). Therefore, the record demonstrates that

the Commonwealth presented sufficient evidence that would allow a jury to

convict James of tampering with physical evidence.

29 For further elucidation of the issues created by the majority’s holding

today, imagine two scenarios. In the first, the suspect sees law enforcement

and freezes. He is properly patted down, and the officer feels what he believes

to be contraband. When the contraband is pulled out, it is illegal. The suspect

is charged with the crime of possession. The evidentiary inference—the proof—

at trial is straightforward: the defendant possessed illegal contraband. The

defendant can argue that the contraband was not his or something similar, but

that argument is a clear stretch.

In the second scenario, same as above, when he sees law enforcement,

the suspect removes the contraband from his person, and either drops it or

throws it. The suspect is charged with possession. The proof and the

inferences are different. A defendant was spotted by an officer. As the officer

approached, the defendant dropped/threw an unknown item and after

defendant was secured, an officer found the item. This item was illegal, and

the officer concludes that the defendant possessed illegal contraband. As

opposed to the first scenario, the defendant’s actions are to rid himself of

(remove) the illegal contraband hoping that the officer did not notice. No doubt

exists that his “intent [is] to impair the truth or availability of evidence.” KRS

524.100, 1974 Kentucky Crime Commission/LRC Commentary. Even if the

officer witnessed the defendant’s actions and discovered the contraband

outside of his person the defendant at least has created more defenses to argue

at trial in the second scenario: (a) That item was not mine; (b) I dropped/threw

a different item than the one picked up by the officer; (c) it was a high-crime

area, and the item was not mine; and (d) the officer was mistaken in what he

saw. 30 A defendant separates himself from the item in order to “not possess” it,

i.e., he “removes” it from his possession. No viable argument exists that this

action was made for any reason other than “the intent to impair its verity or

availability in the official proceeding.” Id. The commentary states “[r]ather, it

is sufficient if the defendant believes an official proceeding may be instituted

and if he engages in the proscribed conduct with the specified intent to impair

the truth. . . .” Id. (emphasis added). The truth is, the defendant possessed

the contraband. By removing (and either dropping or throwing it), is not the

defendant engaging in the prohibited conduct? Has he not formed the

“specified intent to impair the truth?” If his intent was otherwise, why did the

suspect remove and drop the evidence? What other possible reason could

there be for the drop? I understand that the majority may consider this statute

to be anachronistic and overlooked. They may even consider it to be bad

policy. However, the legislature is the proper branch of government to fix this

perceived issue.83

The statute’s commentary sets forth that “(i]f the defendant believed [the

evidence] was to be produced or used in a proceeding and his actions were

designed to prevent that from occurring, the elements of proof are satisfied.”

Id., 1974 Kentucky Crime Commission/LRC Commentary. In James’s case,

these elements are met: (1) a police stop implies that any evidence discovered

during the stop or post-stop investigation will be used in a future official

83 In fact, the 1974 Kentucky Crime Commission Commentary points out that this offense used to be treated as an obstruction of justice, a misdemeanor. Whether we agree with the 1974 decision to enact this statute, the legislature undoubtedly examined the policy surrounding tampering with physical evidence and elected to increase its punishment status, not narrow its use. 31 proceeding, and (2) dropping a pipe containing methamphetamine away from

one’s body is a strategy without a doubt “designed to prevent” that evidence

from being used in a future proceeding.

Additionally, nowhere in the statute, its commentary, or relevant

Kentucky case law is the presence or absence of law enforcement during a

defendant’s actions considered the key determinant as to whether the precise

elements of the crime were met. Yet, the majority reads the aforementioned

language into the statute, thus crippling KRS 524.100 by halting law

enforcement’s ability to charge defendants with tampering when “in the

presence of a police officer.” This non-statutorily-based rule will ultimately give

little guidance to trial courts within this Commonwealth as to the application of

tampering with physical evidence charges. A better approach would be to

follow the plain language of the statute and its commentary, and allow such

charge when the defendant “engages in the proscribed conduct with the

specified intent to impair the truth or availability of evidence he believes will be

used” in an official proceeding. KRS 524.100, 1974 Kentucky Crime

Commission/LRC Commentary.

In bending the statutory language to its breaking point, the majority

distinguishes a long line of cases which conflict with its judge-made rule and

overrules yet another that it cannot adequately distinguish.

For example, in Mullins v. Commonwealth, this Court held “pursuit by

the police may be required for a conventional placement of the evidence to

become tampering.” 350 S.W.3d 434, 443 (Ky. 2011). The majority insists that

unconventional location is but one relevant factor in determining whether the

defendant acted with the necessary intent. I do not believe the distinction 32 between conventional and unconventional location is entirely dispositive of

whether the act of tampering occurred. Rather, the conventional-

unconventional analysis is included as a factor, because “[t]he jury could

reasonably infer intent to impair the availability of the evidence because it was

removed to an unconventional place during a pursuit.”

In Crayton, police officers conducted an on-foot pursuit following a

robbery. 2014 WL 2811316 at *1. During this pursuit, Crayton utilized a gun

to fire shots at the officers. Id. The officers found a gun in the yard where

Crayton was apprehended. Id. Crayton was convicted of the lesser-included

offense of attempted first-degree assault, first-degree robbery, first-degree

fleeing or evading the police, tampering with physical evidence, and resisting

arrest. Id. at 2. On appeal, Crayton argued that the trial court erred in

denying his motion for a directed verdict of acquittal for the offense of

tampering with physical evidence. Id. at 3. Specifically, he argued:

the evidence did not support a finding that he threw the gun away

with the intention of altering or concealing it from the police. In

support, Crayton asserts that “[his] intent was not to impair the

revolver’s . . . availability in an official proceeding. [His] intent was

to distance himself from the weapon to keep from getting shot and

killed by the police.

Id.

The Crayton court held:

First, the evidence established that the revolver was found within

close enough proximity to Crayton’s path of flight that he could

have reasonably thrown it. Crayton’s argument that he tossed the 33 weapon into an open area in “plain sight” does not render the

jury’s determination clearly unreasonable. The wisdom of a

defendant’s chosen hiding spot is not dispositive. See Taylor v.

Commonwealth, 987 S.W.2d 302, 305 (Ky. 1998).

Id. at 4. As in Crayton, here, the jury’s determination is not clearly

unreasonable.

Further, Taylor v. Commonwealth is similar to this case. 987 S.W.2d 302

(Ky. 1998). There, Taylor argued on appeal that the trial court erred in denying

his directed verdict on the charge of tampering with physical evidence. Id. at

305. He supported this argument by stating that by placing cocaine under the

seat in plain view of the officers, he did not actually conceal the cocaine

because the officers knew where the drugs were. Id. This Court held that the

denial of the directed verdict was not error. Id. Further, Taylor v.

Commonwealth is similar to this case. 987 S.W.2d 302 (Ky. 1998). There,

Taylor argued on appeal that the trial court erred in denying his directed

verdict on the charge of tampering with physical evidence. Id. at 305. He

supported this argument by stating that by placing cocaine under the seat in

plain view of the officers, he did not actually conceal the cocaine because the

officers knew where the drugs were. Id. This Court held that the denial of the

directed verdict was not error. Id. The majority even acknowledges that, in

Taylor, “we . . . upheld a tampering conviction where the defendant, while being

observed by a police officer, placed drugs under the seat of a car in which he

was sitting.” This precedent clearly flies in the face of the majority’s new rule—

without properly distinguishing its facts or explaining how such a case fits

within the framework of the new rule. In short, if the events in Taylor could 34 support a tampering conviction under the majority’s new rule, so can the facts

in the present case.

The majority cites to Henderson84 and Crayton as being “not

inconsistent” with its new rule. But, neither of those case place any

significance on the whereabouts of law enforcement during the action in

question. Therefore, the majority’s statement that each case is “not

inconsistent” with the majority’s newly-constructed rule is, at best,

disingenuous.

While any member of this Court may believe that tampering with

physical evidence charges may sometimes be an exercise in piling on additional

charges against a defendant disproportionate to his actions—or bad criminal

justice policy—this Court has “long recognized that ‘[t]he plain meaning of the

statutory language is presumed to be what the legislature intended, and if the

meaning is plain, then the court cannot base its interpretation on any other

method or source.’” Commonwealth v. Grise, 558 S.W.3d 923, 929 n.28 (Ky.

2018) (quoting Revenue Cabinet v. O’Daniel, 153 S.W.3d 815, 819 (Ky. 2005)

(citation omitted)).

“In cases involving statutory interpretations, the duty of the court is to

ascertain and give effect to the intent of the General Assembly. We are not at

liberty to add or subtract from the legislative enactment or discover meanings

84 In Henderson, the Court found sufficient evidence for a tampering conviction when Henderson placed money from a crime into his shoe during a police chase. 85 S.W.3d at 619. The majority in the present case determined, that this act was done “outside the presence of officers.” In contrast, the Henderson opinion simply mentions that it occurred during a car chase but does not describe the exact testimony of what pursuing officers could see. Id. at 620. Even so, the actual act of concealment is what the Court relies upon in upholding the conviction, not the lack of an official law enforcement sightline on the defendant. Id. 35 not reasonably ascertainable from the language used.” Commonwealth v.

Harrelson, 14 S.W.3d 541, 546 (Ky. 2000). The meaning of KRS 524.100 is

explicit: if a defendant believes evidence may be used in a future proceeding

and he “conceals” or “removes” said evidence, “with an intent to impair its

verity or reliability” he may be charged and convicted of tampering with

physical evidence. Id. James’s actions in this case demonstrate a

straightforward example of this crime. James knew he was being pursued by

law enforcement, and his actions were designed to conceal or remove evidence

by dropping the methamphetamine pipe from his person and into the fray.

It was not clearly unreasonable for the jury to find that James attempted

to impair availability of the methamphetamine pipe by dropping it in the alley

while being pursued by police. Because I do not endorse the insertion of

additional, unrelated language into KRS 524.100 which narrows the breadth

and scope of the statute, I respectfully dissent from the majority’s opinion

regarding KRS 524.100. I would affirm James’s tampering conviction.

Lambert and VanMeter, JJ., join.

COUNSEL FOR APPELLANT/CROSS-APPELLEE:

Andy Be shear Attorney General

Thomas Allen Van De Rostyne Assistant Attorney General

COUNSEL FOR APPELLEE/CROSS-APPELLANT:

Erin Hoffman Yang Assistant Public Advocate