JAMES BRANDON HILL v. COMMONWEALTH OF KENTUCKY
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RENDERED:
February 4, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001496-MR
JAMES BRANDON HILL
APPELLANT
APPEAL FROM CARROLL CIRCUIT COURT
HONORABLE STEPHEN BATES, JUDGE
ACTION NO. 03-CR-00036
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING
** ** ** ** **
BEFORE:
JOHNSON, KNOPF, AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
James Brandon Hill has appealed from a final
judgment entered by the Carroll Circuit Court on July 1, 2003,
following a jury verdict finding him guilty of the offense of
tampering with physical evidence.1
Having concluded that Hill
was entitled to a directed verdict of acquittal on the charge of
tampering with physical evidence and that the jury should have
been instructed on attempted tampering with physical evidence,
we reverse his conviction and one-year prison sentence.
1
Kentucky Revised Statutes (KRS) 524.100.
We
further conclude that the imposition of a $1,000.00 fine on Hill
was not authorized by law.
On March 10, 2003, Hill was indicted by a Carroll
County grand jury for tampering with physical evidence and the
status offense of being a persistent felony offender in the
second degree (PFO II).2
At a jury trial held on June 6, 2003,3
the undisputed facts revealed that in February 2003, Hill was
out of jail on bond on a pending charge of possession of a
firearm by a convicted felon.
As a requirement of his bond,
Hill was to submit to drug screening through periodic urine
tests to be given at the Carroll County Detention Center.
Hill
underwent a urine test on February 3, 2003, which indicated that
he had traces of marijuana in his system.
Carroll County Jailer
Mike Humphrey notified the Commonwealth’s Attorney of the
positive result and a bond revocation hearing was scheduled for
February 24, 2003, in the Carroll Circuit Court.
At that hearing, a special judge continued the bond
revocation hearing until the regularly sitting circuit judge
returned to the bench and ordered Hill to submit to another
urine test that day.
Jailer Humphrey informed Lieutenant Tony
Meadows of his staff at approximately 10:00 a.m. that Hill would
soon be arriving for the purpose of providing a urine sample.
2
KRS 532.080(2).
3
On the morning of trial, the PFO count was dismissed on motion by the
Commonwealth.
-2-
The distance between the courthouse and the detention
center is about a five-minute walk.
However, Hill did not
arrive for the drug test until around 1:30 p.m., approximately
three and one-half hours after leaving the courtroom, prompting
Lt. Meadows to perform a pat-down search of Hill.
The search
revealed a brown prescription bottle tucked inside the waistband
of Hill’s pants, which appeared to contain urine.
The liquid
from the prescription bottle was poured into a container,
sealed, and sent to the lab for testing.
The test results
indicated that the substance was urine and it contained no trace
of drugs.
After discovering the bottle in Hill’s pants, Lt.
Meadows conducted a strip search of Hill, placed him in a
holding cell, and advised him to provide another urine sample.
In accordance with the policy and procedure of the detention
center, Lt. Meadows accompanied Hill while he produced another
urine sample.
The urine was collected in a container and the
sample was sent to the lab.
This sample collected from Hill
tested positive for marijuana.
While Hill was being confined on February 24, 2003,
following the discovery of the prescription bottle, he was
informed of his rights and agreed to talk.
During the
interrogation, Hill admitted that the bottle found in his
waistband contained urine he had obtained from an eight-year-old
-3-
boy and that he intended to use the boy’s urine, not his own,
for the urine test.
Following the Commonwealth’s presentation of evidence,
Hill moved the trial court for a directed verdict of acquittal.
He asserted that since the boy’s urine in the prescription
bottle had not been transferred from the prescription bottle to
the container used for shipment to the lab, that he had only
attempted to fabricate the evidence and that he could not be
convicted of tampering with physical evidence.
The Commonwealth responded that the evidence showed
that Hill had come to the detention center with the intention of
submitting urine for a urine test that was not his own.
The
Commonwealth stated that since the fabricated urine sample was
intended to be used in an official proceeding, all of the
elements of the offense of tampering with physical evidence were
proven.
The trial court denied Hill’s motion.4
Hill then requested a jury instruction for attempted
tampering with physical evidence on the ground that he was
apprehended prior to pouring the boy’s urine from the
prescription bottle into the testing container.
Hill noted that
under the testing procedures a urine sample must be in the
authorized testing container to be sent to the lab.
4
The trial
Hill did not present any evidence, and he renewed his motion for a directed
verdict of acquittal, which was denied again.
-4-
court denied Hill’s request for an instruction on attempt,
stating that the evidence only supported a conviction for
tampering with physical evidence.
The jury returned a verdict of guilty of tampering
with physical evidence and recommended a prison sentence of oneyear, the statutory minimum.
The jury did not recommend that
Hill, who was indigent, be fined.
However, when the final
judgment was entered on July 1, 2003, Hill’s sentence included a
$1,000.00 fine in addition to imprisonment.
This appeal
followed.
Hill’s first contention is that the trial court erred
when it denied his motion for a directed verdict of acquittal.
Our Supreme Court in Commonwealth v. Benham,5 set forth the
standard for review of a motion for a directed verdict of
acquittal:
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.
5
816 S.W.2d 186 (Ky. 1991).
-5-
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.6
Tampering with physical evidence is found in KRS
524.100 and states:
(1)
A person is guilty of tampering with
physical evidence when, believing that an
official proceeding is pending or may be
instituted, he:
(a)
(b)
(2)
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; or
Fabricates any physical evidence with
intent that it be introduced in the
official proceeding or offers any
physical evidence, knowing it to be
fabricated or altered.
Tampering with physical evidence is a Class
D felony.
Under subsection (b) of this statute, a person is guilty of
tampering with physical evidence (1) if he fabricates any
physical evidence with the intention that the evidence be
introduced in an official proceeding; or (2) if he offers any
physical evidence for introduction in an official proceeding
which he knows was fabricated or altered.
6
Id. at 187.
-6-
The Commonwealth
argues that the offense of tampering with physical evidence had
been completed, because the boy’s urine was fabricated physical
evidence and Hill intended the boy’s urine to be used in the
testing for the bond revocation hearing.
After drawing all fair and reasonable inferences from
the evidence in favor of the Commonwealth, we must conclude that
the evidence was not sufficient to induce a reasonable juror to
believe beyond a reasonable doubt that Hill was guilty of
tampering with physical evidence.
Lt. Meadows testified that he
discovered the bottle of urine in the waistband of Hill’s pants.
Jailer Humphrey testified that Hill admitted that he had a boy
provide him with a urine sample, which he then took to the
detention center for the purpose of substituting it for his own
urine for the drug screening test.
Thus, while Hill clearly
attempted to fabricate a urine sample with the intention that
the fabricated urine sample be tested for the purpose of his
bond revocation hearing, he did not succeed in doing so because
he was caught by Lt. Meadows before the boy’s urine was placed
in the test container.
While Hill’s urine was already physical
evidence, for the boy’s urine sample to become physical evidence
it had to be placed in the test container for purposes of the
revocation proceeding.
To argue otherwise would result in the
crime of tampering with physical evidence being completed upon
Hill having the boy urinate in a bottle.
-7-
Clearly, at that stage
of the event and at the time Hill entered the detention center
with the bottle of the boy’s urine, Hill was only attempting to
fabricate the physical evidence to be tested for his revocation
proceeding.7
KRS 524.100(1)(b) punishes the fabrication of
physical evidence with the intent that it be introduced in an
official proceeding, not the intent to fabricate.
Accordingly,
the trial court erred by denying Hill’s motion for a directed
verdict of acquittal.
We also agree with Hill that the trial court erred by
refusing to instruct the jury on the offense of attempted
tampering with physical evidence.
Hill asserts that at the time
the prescription bottle containing the boy’s urine was
discovered, he had not completed the offense of tampering with
physical evidence, even though he concedes he had performed a
substantial step toward committing the offense.8
7
Of course, as
When the boy’s urine was taken from Hill it became physical evidence, but
only in support of the crime of attempting to fabricate physical evidence not
for purposes the revocation proceeding.
8
KRS 506.010 provides as follows:
(1)
A person is guilty of criminal
attempt to commit a crime when,
acting with the kind of culpability
otherwise required for commission
of the crime, he:
(a)
Intentionally engages in
conduct which would
constitute the crime if the
attendant circumstances were
as he believes them to be; or
(b)
Intentionally does or omits
to do anything which, under
-8-
we previously discussed the Commonwealth contends the offense
was completed upon Hill bringing the boy’s urine with him to the
detention center.
the circumstances as he
believes them to be, is a
substantial step in a course
of conduct planned to
culminate in his commission
of the crime.
(2)
Conduct shall not be held to
constitute a substantial step under
subsection (1)(b) unless it is an
act or omission which leaves no
reasonable doubt as to the
defendant’s intention to commit the
crime which he is charged with
attempting.
(3)
A person is guilty of criminal
attempt to commit a crime when he
engages in conduct intended to aid
another person to commit that
crime, although the crime is not
committed or attempted by the other
person, provided that his conduct
would establish complicity under
KRS 502.020 if the crime were
committed by the other person.
(4)
A criminal attempt is a:
(a)
Class C felony when the crime
attempted is a violation of
KRS 521.020 or 521.050;
(b)
Class B felony when the crime
attempted is a Class A felony
or capital offense;
(c)
Class C felony when the crime
attempted is a Class B
felony;
(d)
Class A misdemeanor when the
crime attempted is a Class C
or D felony;
(e)
Class B misdemeanor when the
crime attempted is a
misdemeanor.
-9-
The cases of Kirkland v. Commonwealth,9 and Cope v.
Commonwealth,10 are distinguishable from this case.
In Kirkland,
our Supreme Court held that a jury instruction on attempted
robbery was not proper since the defendant admitted that he and
another person had entered a store while armed with a gun and
intending to steal money from the owner.
The robbery was
committed when the defendant entered the store with a gun in
order to steal money from the victim even though no money was
taken.
In Cope, the Court held that a defendant, who escaped
from the locked portion of a detention facility but not from the
entire building, was not entitled to receive a jury instruction
on attempted escape.
Regardless of the fact that he had not
escaped to the outside of the detention facility, the mere fact
that he had entered an area without locked doors supported a
conviction for escape, and not an instruction for attempted
escape.
In this case, Hill possessed a urine sample from the
boy with the intent of having it tested for a court proceeding
instead of his own, but the boy’s urine sample never became
physical evidence because Hill was caught before he could put
the boy’s urine in the test container.
The statute in question
requires that the defendant fabricate evidence with the
9
10
53 S.W.3d 71, 76 (Ky. 2001).
645 S.W.2d 703, 704 (Ky. 1983).
-10-
intention of the evidence being introduced in an official
proceeding.
Hill attempted to fabricate physical evidence, but
he was prevented from doing so.
Thus, the evidence did not
support a finding that Hill had completed the offense of
tampering with physical evidence, but it did support a finding
that he took a substantial step in a course of conduct intending
to fabricate evidence.
Thus, he was entitled to an instruction
on attempt.
Hill’s final argument is that the trial court
erroneously imposed a $1,000.00 fine upon him in addition to his
sentence of imprisonment.
The Commonwealth concedes that this
was error and agrees that this portion of the sentence should be
reversed.11
Based on the foregoing, the final judgment and
sentence of the Carroll Circuit Court is reversed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Richard Hoffman
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General
Carlton S. Shier, IV
Assistant Attorney General
Frankfort, Kentucky
11
See KRS 534.030(4) and Simpson v. Commonwealth, 889 S.W.2d 781, 784 (Ky.
1994)(holding that imposition of a fine upon an indigent defendant was not
authorized).
-11-
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