State v. Gonzales

2000 UT App 136, 2 P.3d 954, 395 Utah Adv. Rep. 6, 2000 Utah App. LEXIS 45, 2000 WL 572695

• Court: Court of Appeals of Utah
• Decided: May 11, 2000
• Docket: 990147-CA
• Status: Published

Opinions

OPINION

BILLINGS, Judge:

11 Joseph Gonzales (defendant) appeals his conviction for tampering with evidence in violation of Utah Code Ann. § 76-8-510 (1999). We reverse.

FACTS

¥%2 "On appeal, we recite the facts in the light most favorable to the jury's verdict." State v. Burk, 839 P.2d 880, 882 (Utah Ct.App.1992).

T3 In the early morning hours of August 17, 1997, defendant was riding in a car with three others in Orem, Utah. Defendant was in the back seat of the two-door car with Tug Todd. Christopher Hicks was driving, and Brad Norton was in the front passenger seat. Hicks followed another car through Orem, and, using a semi-automatic pistol, shot several rounds out of the driver's side window at the other car. The other car's occupants called the police to report the shooting.

{4 The shots woke Todd, asleep in the back. Todd saw Hicks pull his arm in the window after firing the shots. After the shooting, Hicks headed toward the freeway. While stopped at a stop light, Hicks saw a police officer at the intersection. He then reached over and tossed the gun in the glove compartment of the car, making some comment about hoping not to be pulled over. He then continued onto the freeway.

15 Once on the freeway, the car was followed by police cars from Orem and Pleasant Grove. Eventually the police pulled the car over, based on the report of the drive-by shooting. Several police cars were present, and the officers had their weapons drawn. The occupants were ordered to exit the car and came out one at a time with their hands clasped on their heads. They were put in police cars and taken to be booked.

T6 The police searched the car at the scene. An officer looked in the glove compartment, but did not find a gun. After a subsequent search, the gun was found behind the glove box. Other officers looked in the back seat and, after noticing the seat cushion was detached, found marijuana under the seat. At the police station, defendant admitted that the marijuana found under the seat was his. Police also found an ammunition clip, identical to the one eventually found in the gun, in defendant's pocket.

1 7 Defendant was charged with possession of marijuana with intent to distribute, and with tampering with evidence. At trial, Todd testified as the State's witness that Hicks "stashed the gun in the glove box." He also testified that he did not know about any marijuana in the car; that defendant did nothing to hide the gun; and that he did not see any movements by defendant to hide marijuana under the seat. In fact, he stated he would have had to get up or move for defendant to put anything under the seat because it was a bench seat in the back. He also stated he was the last to leave the car.

18 Two officers testified they found the marijuana underneath the bench seat, though they had different recollections of which side it was on. The officers maintained that defendant was the last one out of the car. In addition, one of the officers stated that the marijuana could have been put there without a person getting up off the seat.

T9 In closing argument, the prosecutor argued that the evidence showed that defendant hid the marijuana during the police pursuit, and therefore tampered with the evidence. The prosecutor also argued that defendant encouraged or aided Hicks in hiding the gun because defendant had an ammunition clip in his pocket. The jury convicted defendant of tampering with evidence and possession of a controlled substance. Defendant requested an arrest of judgment, which was denied. Defendant now appeals from his conviction of tampering with evidence.

ISSUE AND STANDARD OF REVIEW

110 Defendant argues that there is insufficient evidence to justify a conviction of tampering with evidence. "We reverse the jury's verdict in a criminal case when we conclude as a matter of law that the evidence was insufficient to warrant conviction." State v. Smith, 927 P.2d 649, 651 (Utah Ct.App.1996) (quoting State v. Harman, 767 P.2d 567, 568 (Utah Ct.App.1989)). The defendant must overcome a heavy burden in challenging the sufficiency of evidence for a jury verdict. See id.; State v. Vessey, 967 P.2d 960, 966 (Utah Ct.App.1998). "We view the evidence in a light most favorable to the jury verdict," State v. Bradley, 752 P.2d 874, 876 (Utah 1985), and "will reverse only if the evidence is so "inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime."" Smith, 927 P.2d at 651 (quoting Harman, 767 P.2d at 568 (quoting State v. Petree, 659 P.2d 443, 444 (Utah 1983))). However, though the burden is high, it is not impossible. See id. "We will not make speculative leaps across gaps in the evidence." Id. (internal quotations and alterations omitted). "Every element of the erime charged must be proven beyond a reasonable doubt." Harman, 767 P.2d at 568. "To affirm the jury's verdict, we must be sure the State has introduced evidence sufficient to support all elements of the charged crime." Smith, 927 P.2d at 651.

ANALYSIS

I. Elements of Evidence Tampering

§11 Defendant was convicted of tampering with evidence in violation of Utah Code section 76-8-510, which provides: "A person commits a felony of the second degree if, believing that an official proceeding or investigation is pending or about to be instituted, he: (1) Alters, destroys, conceals, or removes anything with a purpose to impair its verity or availability in the proceeding or investigation." Utah Code Ann. § 76-8-510 (1999). Thus, the State must prove three elements, each beyond a reasonable doubt: timing, action, and intent. The timing element requires that the act be done only after the defendant forms a belief that an investigation or proceeding is pending or imminent. See, e.g., Smith, 927 P.2d at 652. The action element requires alteration, destruction, concealment, or removal of evidence, and the intent element requires that the defendant intend to hinder an investigation or proceeding by making evidence unavailable or of lesser value. See Utah Code Ann. § 76-8-510 (1999).

112 As a threshold matter, defendant argues that the police stop of the car was not an "official proceeding or investigation" within the meaning of the statute, and thus he did not tamper with evidence. Defendant focuses on the term "official proceeding" as a formal action before a tribunal, but ignores the statutory term "investigation." We have previously held that the initiation of a police investigation is within the seope of the statute. See, e.g., Smith, 927 P.2d at 652 (noting that call to police to report dead body would result in investigation within seope of statute). Clearly, the chase and stop of the car pursuant to a report of a drive-by shooting was an investigation. Thus, we conclude the stop of the car was within the scope of the statute, and defendant could properly be charged with tampering with evidence.

$13 Defendant also argues that the evidence-tampering statute must be read narrowly to cover only concealed evidence that is related to the purpose of the original investigation. He argues that we should look only to the initial purpose of the investigation-in this case, the drive-by shooting- and exclude from the reach of the evidence-tampering statute any evidence or contraband that is concealed but which is unconnected to the purpose of that original investigation. Thus, defendant argues that since the original police investigation concerned a drive-by shooting, the marijuana he allegedly concealed cannot subject him to an evidence-tampering charge. This argument is the basis of our able colleague's concurring opinion. We are not persuaded.

{14 "When faced with a question of statutory construction, we look first to the plain language of the statute." State v. Rudolph, 970 P.2d 1221, 1229 (Utah 1998) (quoting Stephens v. Bonneville Travel, Inc., 935 P.2d 518, 520 (Utah 1997)). We will not "infer substantive terms into the text that are not already there. Rather, the interpretation must be based on the language used, and the court has no power to rewrite the statute to conform to an intention not expressed." Id. (quoting Berrett v. Purser & Edwards, 876 P.2d 367, 370 (Utah 1994).

115 The plain language of section 76-8-510 requires that the defendant believe "that an official proceeding or investigation is pending or about to be instituted" when the act of altering, destroying, concealing, or removing the evidence occurs. Utah Code Ann. § 76-8-510 (1999) (emphasis added)¹ The statute does not limit the purpose of the investigation to the original one or even to one investigation, nor does it require that the evidence be connected to the police purpose for the original investigation. In other words, if the defendant believes a police investigation is pending or imminent, for whatever purpose, and secretes evidence to impair its availability in that investigation, tampering has occurred. The purpose of the original investigation is not relevant. It is the defendant's subjective belief that an investigation is "pending or about to be instituted" that matters. The limiting element of the statute is the intent to hinder an investigation.² If defendant merely had marijuana in his pocket when stopped and searched to investigate a drive-by shooting, he could not be convicted under the statute, as he did not conceal the marijuana to impede an investigation. It was already in his pocket when he formed a belief that an investigation was imminent.

{16 We therefore conclude that the evidence-tampering statute was properly applied to defendant's alleged concealment of the marijuana as the chase ensued, as well as to his alleged participation in hiding the gun.³

II. Sufficiency of the Evidence

A. The Gun

Y17 At trial, the State argued that defendant tampered with evidence, claiming he helped hide the gun used in the shooting based solely on the fact that an extra armmu-nition clip was found in defendant's pocket. It is undisputed that defendant, in the back seat, could not have physically assisted Hicks in hiding the gun in the glove box. The State first suggested that defendant may have had the gun himself, and had given it to Hicks to use in the shooting. The State argued that because he may be tied to the gun, after the shooting defendant must have encouraged Hicks to hide it. However, the State presented no evidence to support this inference.

1 18 The State alternatively suggested that defendant took the extra clip to disperse evidence and thus assisted in misdirecting the police. However, no evidence was introduced regarding when defendant first had the clip in his possession. To constitute tampering, he must have taken the clip after the shooting, believing that an investigation was imminent. See Utah Code Ann. § 76-8-510 (1999). However, it is just as possible, absent any evidence presented by the State, that he had the clip in his pocket all evening. Thus, by merely establishing defendant's possession of the extra clip, the State did not present sufficient evidence from which the jury could infer timing, concealment, and intent to conceal the gun beyond a reasonable doubt.

B. The Marijuana

119 The State argues that, because defendant admitted the marijuana was his, and because it was found under the back seat, defendant concealed it after he saw the police as he believed he and the car were about to be searched. The State had to prove beyond a reasonable doubt that defendant hid the marijuana after he believed the car might be pulled over, and that he hid it for the purpose of obstructing the discovery of the marijuana. '

120 We simply cannot say the evidence was sufficient to establish beyond a reasonable doubt each element of the crime. Defendant admitted the marijuana was his. However, there was no testimony by anyone that defendant made a furtive move or reached under the back seat during the police pursuit or stop. Testimony conflicted as to whether defendant was seated behind the driver or passenger. The State's witness, Tug Todd, testified that defendant was seated next to him, on the side of the back seat under which the marijuana was found. Todd testified repeatedly that he did not see defendant hide or place anything under, behind, or between the seats at any time. Todd also testified that he, not defendant, was the last person to leave the car. The officers who searched the car did testify that the back seat cushion was ajar and that the location where the marijuana was found could have been accessed by someone sitting on the seat. However, there was no testimony from anyone that defendant placed the marijuana under the seat after the police chase began. Defendant argued that the marijuana was stashed prior to the shooting. We cannot say that the evidence or reasonable inferences from the evidence were sufficient for the jury to find beyond a reasonable doubt that defendant hid the marijuana believing an investigation was going to occur and in order to impede the investigation. "We will not make speculative leaps across gaps in the evidence." - Smith, 927 P.2d at 651 (internal quotations and alterations omitted). We simply cannot conclude that the State introduced sufficient evidence to support all the elements of evidence tampering beyond a reasonable doubt. We therefore reverse defendant's conviction.

CONCLUSION

T21 The evidence-tampering statute was properly applied to defendant's alleged concealment of the gun and the marijuana. However, insufficient evidence was presented to support all the elements of the crime of evidence-tampering. - Accordingly, we reverse. '

122 I CONCUR: GREGORY K. ORME, Judge.

1 . We and the concurrence read this plain language and come to very different conclusions. Thus, it might be well for the legislature to clarify the scope of the evidence-tampering offense.

2 . Contrary to the view expressed by the concurrence, we do acknowledge the singular nature of the article "the" in subsection (1) of the statute. However, we read "the" as referring to the first clause of the statute. See Utah Code Ann. § 76-8-510 (1999)(requiring belief "that an official proceeding or investigation is pending or about to be instituted"). Unlike the concurrence, we do not read into the statute a requirement that the evidence concealed be related to the original crime under investigation. The defendant need only cause "anything" to be unavailable in the investigation that the defendant believes is pending or about to be instituted. Thus, it is the subjective mental state of the defendant, not that of the officer, that is critical,. The officer's purpose in commencing the original investigation is not relevant; rather, it is defendant's belief that an investigation will occur that is significant.

3 . The concurring opinion cites several cases to support its position that the evidence must be related to the original police purpose of the investigation. However, none of these cases contains any analysis of the plain language of the evidence-tampering statute. All simply contain factual settings in which the evidence concealed related to the original investigation. None requires that the evidence be so related. See, eg., State v. Eaton, 701 P.2d 496 (Utah 1985) (per curiam); State v. Helm, 563 P.2d 794 (Utah 1977); State v. Harley, 1999 UT App. 197, 982 P.2d 1145; State v. Smith, 927 P.2d 649 (Utah Ct.App.1996).

In addition, the concurrence concludes that our interpretation shifts the burden of persuasion to the defense, thereby forcing the defendant to take the stand. This is not the case. The State must prove every element of the offense. However, as in any crime that turns on intent, the requisite intent may be proven in several ways, including defendant's own testimony or circumstantial evidence. The crime of evidence tampering is usually proven by circumstantial evidence. See, eg., Helm, 563 P.2d at 796 (noting that "it is necessary to piece the truth together from the facts shown and any [] justifiable inferences"). As is true throughout criminal law, to rebut circumstantial evidence, the defendant may choose to testify. The position taken by the concurrence would destroy, or at least greatly undermine, the ability to prove intent through circumstantial evidence.