JAMES ROBINSON v. COMMONWEALTH OF KENTUCKY
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RENDERED:
AUGUST 30, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-002226-MR
JAMES ROBINSON
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JOHN R. ADAMS, JUDGE
ACTION NO. 01-CR-00608
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, GUIDUGLI, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
James Robinson appeals his conviction of
possession of cocaine and tampering with physical evidence.
Having reviewed the record and the applicable law, we affirm.
On April 11, 2001, the Lexington Police Department
executed a search warrant at the apartment of Lorene Burdette and
David Spears, where appellant was also residing at the time.
The
items recovered in the search included 1.25 grams of crack
cocaine in baggies found in the toilet, $2050 found in
appellant’s shoe, and $135 found in appellant’s pocket.
On
June 12, 2001, appellant was indicted on charges of first-degree
trafficking in a controlled substance, tampering with physical
evidence, and possession of drug paraphernalia.
The drug
paraphernalia charge was dismissed prior to trial, which
commenced on August 20, 2001.
At trial, Lorene Burdette testified that she was a
crack cocaine user, and that she had been allowing people to sell
drugs out of her house.
She testified that appellant had been
staying with her for a few weeks before April 11, and that she
believed he sold crack cocaine, although she never actually
witnessed him doing so.
Burdette testified that on the night at
issue, when the police first came in, she was in the bathroom and
appellant was either in the kitchen or the bedroom.
She
testified that appellant came suddenly running into the bathroom,
with the police right behind him, and knocked her down as she was
getting up from the toilet.
Burdette testified that she did not
see appellant put cocaine in the toilet, but that everything
happened very fast.
Sargent Lawrence Weathers testified that he was the
third or fourth officer to enter the residence.
Upon entering,
he saw appellant going into the bathroom with Detective Hart
following.
Weathers immediately went in the bathroom to assist,
where he saw appellant with his hand in the commode.
Weathers
testified that Detective Hart was yelling at appellant to get his
hand out of the commode, and that Detective Hart had his hand in
the commode as well.
Weathers testified that he told appellant
to get his hand out of the commode but that he wouldn’t.
Weathers then saw appellant reach up with his left hand and try
to flush the commode, but that it wouldn’t flush.
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Weathers then
grabbed appellant’s left hand and pulled him away from the
commode.
Weathers testified that Detective Hart held on to
appellant’s right hand, and then Officer Brotherton came in and
handcuffed him.
Weathers testified that Officer Brotherton
retrieved the cocaine from the commode.
Weathers testified that
he did not see appellant put the cocaine in the commode.
Officers Hart and Brotherton did not testify.
Appellant testified that he was not selling cocaine
out of Burdette’s apartment, that he didn’t know anything about
cocaine being sold out of the apartment, and that he did not
possess the cocaine at issue.
Appellant testified that on the
night the police came in he was lying on the couch and heard a
loud noise and got scared because he didn’t know what was going
on and ran into the bathroom, where Burdette was on the toilet.
Appellant further testified that his hand was never in the
toilet, but that his hand only went on the toilet in order to
break his fall as three or four officers got on him to force him
to the floor.
The jury found appellant guilty of first-degree
possession of a controlled substance and tampering with physical
evidence.
The trial court entered final judgment on
September 17, 2001, sentencing appellant to a total of two years
imprisonment, probated for three years.
This appeal followed.
On appeal, appellant argues that the trial court erred
in failing to grant a directed verdict on both the possession and
tampering charges.
With regard to the possession charge,
appellant contends that no evidence was presented that he
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possessed the cocaine.
Appellant contends that no one saw him
with the cocaine, that the cocaine was not found on him, that no
one saw him put the cocaine in the toilet, and that there were
other people in the drug business that resided in the apartment.
“On appellate review, the test of a directed verdict is, if under
the evidence as a whole, it would be clearly unreasonable for a
jury to find guilt, only then the defendant is entitled to a
directed verdict of acquittal.”
S.W.2d 186, 187 (1991).
Commonwealth v. Benham, Ky., 816
In light of the aforementioned testimony
that appellant resided in the apartment and was found with his
hand in the toilet where the cocaine was found, we conclude that
sufficient evidence was presented for the jury to reasonably find
him guilty of the possession charge.
With regard to the tampering charge, appellant
reasserts the same arguments as for the possession charge, in
particular the fact that no evidence was presented that anyone
saw him throw the cocaine into the toilet.
KRS 524.100 provides:
(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[.]
Appellant contends that no evidence was presented that the
cocaine was destroyed, mutilated, concealed or altered, as
required by the statute, in that the police immediately saw the
cocaine in the toilet, that it was in baggies, and that there was
no evidence that it had been affected in any way by being dropped
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in the water.
Appellant contends that, with regard to the
evidence presented, the only remotely applicable word contained
in the statute is “removed,” but that the jury did not have the
option of considering this word as the jury instruction did not
include it.1
“The tampering statute clearly provides for all degrees
of destruction of evidence, including mutilation, alteration and
attempted tampering.”
Smith v. Commonwealth, Ky. App., 712
S.W.2d 360, 361 (1986) (Holding as without merit the appellant’s
argument that his failure to completely destroy the evidence
entitled him to an instruction on “attempted tampering” rather
than “tampering”.)
See also, Taylor v. Commonwealth, Ky., 987
S.W.2d 302, 305 (1998) (Appellant argued that because he placed
the cocaine under the seat of the car while in the plain view of
the police officers, that he did not actually “conceal” the
cocaine within the meaning of KRS 524.100 because the officers
knew where it was.
Court held that trial court’s denial of
motion for directed verdict on tampering charge was not error.)
In the present case, in light of the testimony that appellant was
found with his hand in the toilet where the cocaine was found, we
conclude that sufficient evidence was presented for the jury to
reasonably find appellant guilty of tampering with physical
evidence.
Benham, 816 S.W.2d at 187.
1
With regard to appellant’s contention, we believe that the
absence of the word “removed” from the jury instruction would
work in appellant’s favor, as it made the instruction less
inclusive.
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Appellant finally argues that the trial court erred in
refusing to instruct on attempted tampering.
Appellant contends
that because the cocaine remained in the toilet, was not flushed,
and thus was not destroyed, mutilated, concealed, or altered,
that the Commonwealth only proved that he attempted to tamper
with physical evidence.
In light of the aforementioned holding
in Smith, 712 S.W.2d at 361, that the tampering statute
encompasses attempted tampering as well, we reject appellant’s
argument.
For the aforementioned reasons, the judgment of the
Fayette Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gene Lewter
Lexington, Kentucky
Albert B. Chandler, III
Attorney General
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
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