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Commonwealth v. James

Supreme Court of Kentucky

October 31, 2019

COMMONWEALTH OF KENTUCKY APPELLANT/ CROSS-APPELLEE
v.
MICHAEL JOSEPH JAMES APPELLEE/CROSS-APPELLANT

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

          COUNSEL FOR APPELLANT/CROSS-APPELLEE: Andy Beshear Attorney General Thomas Allen Van De Rostyne Assistant Attorney General

          COUNSEL FOR APPELLEE/CROSS-APPELLANT: Erin Hoffman Yang Assistant Public Advocate

          OPINION

          MINTON, CHIEF JUSTICE

         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 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.

         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 u. 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 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(1)(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(1) 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 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 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. Garcia[13] fled an apartment complex when officers arrived to investigate reported gunfire. While in pursuit, an officer saw objects fall from the 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 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 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 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 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 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 oP 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 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, these courts agree that "when a person who is committing a possessory offense drops evidence in the presence of police officers, and the officers are able to recover the evidence with minimal effort, discarding the evidence amounts to 'mere abandonment,' not tampering."[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]

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, 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]

         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 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 misdemeanor[65] could readily be converted into a Class D felony for 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 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 ...


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