HORACE WILLIAM PAGE V. COMMONWEALTH OF KENTUCKY
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RENDERED: NOVEMBER 16, 2004
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2003-SC-0067-MR
HORACE WILLIAM PAGE
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APPELLANT
APPEAL FROM ALLEN CIRCUIT COURT
HONORABLE WILLIAM R. HARRIS, JUDGE
01-CR-00093 & 02-CR-00052
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT
AFFIRMING IN PART AND VACATING IN PART
Appellant, Horace William Page, appeals as a matter of right' from the
final judgment of the Allen Circuit Court sentencing him to fifty-two (52) years
imprisonment on two (2) counts of second-degree manslaughter, two (2) counts of first
degree wanton endangerment, tampering with physical evidence, failing to render aid
and assistance, and being a persistent felony offender in the second degree. The
issues are whether the trial court erred when it admitted photographs of a deceased
person and a telephone pole with brain matter on it, whether the trial court erred in
denying Appellant's motion for directed verdict as to the charge of tampering with
physical evidence, and whether the consecutive sentencing was contrary to KRS
532.110(1)(c) .
1 Ky. Const. § 110(2)(b).
On the evening of September 23, 2001, Appellant was visiting Shawta
Lynn Birge, his sister, at her home . Appellant's brother, two nieces, and roommate
were also at the residence . At approximately 10 :00 p .m ., Appellant, his brother, Shawn
Page, Shawta, and her two daughters left in Appellant's car to go to his home . Roger
Martin, Appellant's roommate, drove separately .
Appellant had been drinking earlier in the evening . During the drive
Appellant lost control of the car, skidded off the road, and struck a telephone pole .
After the impact, Appellant pulled the unconscious Shawta out of the vehicle, and left
the scene of the accident to seek help:
Appellant's roommate, Roger Martin, had been following Appellant .
Martin saw Appellant's lights disappear, but thought that Appellant had turned around to
get Shawta's daughter's medicine . Martin continued on his way home . When
Appellant and his passengers did not show up, Martin became worried and returned to
look for them . Martin found Appellant walking back toward the wreck after attempting to
get help at a nearby residence . Martin left to find David Page, another of Appellant's
brothers, and brought him to the scene of the accident .
Martin and David Page attempted to remove Shawn Page and Shawta's
children from the rear seat of Appellant's car. Martin said that Bethany Birge, Shawta's
daughter, had a skull that felt like an "egg shell," and that after touching it there was
blood on his hands. David Page removed the children from the car, but was unable to
remove his brother, Shawn Page.
Appellant was on probation from a previous felony conviction when the
accident occurred . Martin told David Page that Appellant could "get five years" for
being in trouble while on probation . David Page told Martin and Appellant to leave, and
promised to tell the police that he had been driving Appellant's car when the accident
occurred . After Martin and Appellant returned to their home, David Page remained at
the scene and told the police that he had been the driver .
After arriving at home, Martin made two telephone calls to 911 . In his first
phone conversation, Martin told the 911 operator that a third party had reported the
accident to him. Martin stated later that he had lied to the 911 operator because he
was afraid Appellant would get into trouble for driving under the influence . In his
second call, after Appellant had cleaned off the dirt and blood from the accident from
his body, Martin told the 911 operator that David Page had been driving Appellant's car
when the wreck occurred .
Shawta and Bethany Birge were taken to Bowling Green Medical Center
where they died in the early hours of Saturday, September 24, 2001 .
During the accident investigation conducted by Allen County Deputy
Sheriff Terry Beach and Kentucky State Police Trooper Dathan Tarrance, David Page
recanted the statement that he had been driving the car at the time of the wreck. David
Page told the officers that Appellant had been driving the car when the accident
occurred . When police located Appellant on the evening of September 24, the alcohol
that had been in his system at the time of the accident and any physical signs of
intoxication had dissipated . Tarrance believed the physical evidence at the scene
indicated that the driver of the vehicle was impaired at the time of the accident, but that
it was not possible to get an analysis of Appellant's blood content at the time of the
wreck.
On appeal, Appellant first argues that the trial court erred by introducing
into evidence two photographs of the accident scene : one of the deceased Bethany
Birge, lying in a field, marked as Commonwealth's Exhibit 7; and one of brain tissue on
a telephone pole, marked as Commonwealth's Exhibit 8 . Appellant suggests that the
defense's willingness to stipulate that the impact with the telephone pole was the cause
of Bethany Birge's death should have prevented the photographs from being admitted .
Appellant contends that these photographs should have been excluded because their
probative value was substantially outweighed by the danger of undue prejudice as
prohibited by KRE 403.2
At trial, the Commonwealth moved to introduce three photographs: two of
Bethany Birge's body, and one of the telephone pole with brain matter on it. Appellant
initially objected to the introduction of two pictures of the body, an objection which the
trial court sustained . The Commonwealth was allowed to introduce one of the
photographs of Bethany's body, Commonwealth's Exhibit 7. Appellant did not voice
further objections to the admission of the single photograph of Bethany's body, and as
such, failed to preserve the issue for review . Appellant reiterated his objection to the
photograph of the telephone pole .
Appellant argues that his willingness to stipulate that the vehicle's impact
with the pole was the cause of death for Shawta and Bethany Birge should have led to
the photograph's exclusion . Appellant believes that because he offered to stipulate that
the telephone pole was the cause of death, no material fact as to the cause of death
existed. Therefore a photograph depicting the scene of Bethany's death would not be
2
KRE 403 provides :
Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of undue prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay, or
needless presentation of cumulative evidence .
probative to prove a material fact in issue . Appellant posits that due to its prejudicial
effect and lack of relevance to a disputed fact, the photograph should have been
excluded pursuant to KRE 403.
In determining whether to exclude evidence a trial court should consider
three factors : the probative worth of the evidence, the probability that the evidence will
cause undue prejudice, and whether the harmful effects substantially outweigh the
probative worth . Broad discretion is given to the trial court in determining the
admissibility of evidence, such that an appellate court should only reverse a ruling
under KRE 403 where there has been clear abuse of discretion . Although the
photograph did show brain matter on the telephone pole, as a general rule a
photograph is not inadmissible because it is gruesome and the crime is heinous .5
It is
well decided that the prosecution is permitted to prove its case by competent evidence
of its own choosing, and that the defendant may not stipulate away parts of the case
that he does not want the jury to sees
Moreover, this Court has held that in order for
a jury to be able to size up a case fairly and wisely it must be allowed to gain a
reasonable perspective, and that can best be done by permitting it to see an
unadulterated picture .'
The trial court determined that the photograph of the telephone pole was
relevant because it showed a point of trauma for one of the victims . The gruesome
condition of the victim's body was not due to any extraneous causes, but was created
3 Partin v. Commonwealth, Ky., 918 S .W.2d 219, 222 (1996) (quoting Lawson, The
Kentucky Evidence Law Handbook , § 2.10 (3d ed. 1993)) .
4 Id . at 222 .
5 Barnett v. Commonwealth , Ky., 979 S.W.2d 98, 102 (1998) .
6 _Id . at 103 .
7 Id .
solely through the collision with the telephone pole. The trial court also decided that the
photograph was probative of the car's velocity at the time of impact, which was a
relevant issue because Appellant had chosen to contest that he had been speeding
prior to the accident . The trial court acted within its broad discretion in allowing
Commonwealth's Exhibit 8 into evidence .
Appellant's second argument is that the trial court erred in finding
Appellant guilty of tampering with evidence pursuant to KRS 524.100. When Appellant
left the scene of the accident, his blood-alcohol content (BAC) diminished alongside
other physical characteristics of intoxication . Appellant was charged with tampering
with evidence because his BAC may have provided an evidentiary basis for a conviction
for driving under the influence . Appellant contends that the blood that flowed within his
veins did not constitute physical evidence for the purpose of KRS 524.100 .
No Kentucky case law addresses this question . While the taking of blood
,,,8
samples has been held to be a search for "real or physical evidence the blood
samples themselves have only been "evidence" when outside the human body. When
separated from the ongoing chemical processes of the human body, a blood sample is
easily analyzed . In Sosa v. State 9 the Supreme Court of Alaska held that a defendant
could not be convicted of tampering with physical evidence because he refused to
submit to a blood alcohol test .' ° In State v. Peolow ," the Montana Supreme Court
differentiated between intravenous blood and extraneous blood samples for evidentiary
purposes, holding:
8 Farmer v. Commonwealth ,
9 4 P .3d 951 (Alaska 2000).
'° Id. At 955.
11
36 P .3d 922
(Mont. 2001) .
Ky. App., 6 S .W .3d 144, 145-46 (1999).
Stated otherwise, one's BAC is not evidence until it exists in
a state capable of analysis . While one's blood is in his body,
it is in a constant state of biochemical flux . This Court has
repeatedly recognized the evanescent nature of alcohol
levels in a person's blood stream .
Section 61-8-404, MCA, 12 clearly does not contemplate that
potentially measurable amounts of alcohol, still within the
human body, constitute evidence . Until one's breath or
blood has been obtained or collected for analysis, it simply
cannot be considered `physical evidence,' as set forth in §
45-7-207, MCA, 13 or a `thing presented to the senses,' as
explained in § 26-1-101(2), MCA . Because a person's blood
alcohol level cannot be determined until he or she expels
either a sample of blood, air, or urine, such fluids simply
cannot be considered physical evidence prior to being
removed from the body . We therefore conclude that
physical evidence of one's alcohol content is limited to that
which is collected for analysis of the person's blood or
breath, under § 61-8-404, MCA. 14
Kentucky and Montana have comparable tampering statutes . KRS
524.1 00(l) 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 .
Montana's statutory language refers to the alteration, destruction, concealment, or
removal of "any record, document, or thing," rather than the term "physical evidence ."
In addition to the language of the statute itself, § 45-7-207, MCA defines "evidence" as
being "the means of ascertaining in a judicial proceeding the truth respecting a question
of fact, including but limited to witness testimony, writings, physical objects, or other
12 Montana's Driving Under the Influence Statute .
13
Montana's Tampering Statute .
14
Id . at 928-929 .
things presented to the senses ." This definition encompasses Kentucky's
understanding of physical evidence as being "any article, object, document, record, or
other thing of physical substance ."'S
We find the reasoning behind Pe low to be sound. By statute, the
evidence of a foreign substance in the blood of a defendant that is admissible for a
conviction of driving under the influence takes the form of a "scientifically reliable test'
result .
16
What makes a blood sample evidence is the ability to glean probative data
from it. Appellant's blood, however, while still within his body was continuously
subjected to chemical processes. This state of "biochemical flux" left Appellant's blood
incapable of an analysis that would yield evidence . If we were to affirm the judgment of
the lower court as to the tampering charge, then as the Peplow court stated
"conceivably, any driver who eats, sleeps, or even receives medical treatment (i .e .,
intravenous fluids) after an accident could also be accused of tampering with their blood
alcohol level."" Because Appellant's intravenous blood was not evidence for the
purpose of KRS 542.100, we vacate Appellant's conviction for tampering with the
evidence .
Finally, Appellant argues that the trial court incorrectly applied the law in
sentencing Appellant to serve his sentences consecutively for a total of 52 years.
Appellant contends that the maximum consecutive sentence he can receive for the
conviction of Class C and Class D felonies is 20 years. KRS 532.110(1)(c) provides:
The aggregate of consecutive indeterminate terms shall not
exceed in maximum length the longest extended term which
would be authorized by KRS 532 .080 before the highest
class of crime for which any of the sentences is imposed . In
15
KRS 524 .010(6).
KRS 189A .010(1)(a) .
"Peplow, 36 P.3d at 929.
'6
no event shall the aggregate of consecutive indeterminate
terms exceed seventy (70) years .
Appellant concedes this issue was not preserved for appellate review, but argues it is
an issue affecting Appellant's substantial rights and must be reviewed under RCr 10.26 .
In order for an unpreserved issue to be reviewed, it must be a palpable
error affecting the substantial rights of a party, resulting in manifest injustice .' $
"Manifest injustice" has been held to mean that upon consideration of the whole case, a
substantial possibility exists that the result would have been different had the error not
occurred .' 9 An error must seriously affect the "fairness, integrity, or public reputation" of
a judicial proceeding in order to be considered palpable under RCr 10.26 .2°
In the case sub judice, the requirements for palpable error have not been
met because the application of law by the trial court was not erroneous at all . KRS
532 .110(1)(c) does limit the amount of time that can be served in consecutive
sentences, but that statute is not the only one that is relevant to Appellant's situation .
Because the felonies in question occurred while Appellant was on probation, KRS
533 .060(2) becomes applicable as well. KRS 533.060(2) states as following:
When a person is convicted of a felony and is committed to
a correctional detention facility and is released on parole or
has been released by the court on probation, shock
probation, or conditional discharge, and is convicted or
enters a plea of guilty to a felony committed while on parole,
probation, shock probation or conditional discharge, the
person shall not be eligible for probation, shock probation, or
conditional discharge and the period of confinement for that
felony shall not run concurrently with any other sentence .
'a RCr 10.26 .
'9
Graves v. Commonwealth , Ky ., 17 S.W.3d 858, 864 (2000) .
2°
United States v . Olano, 507 U .S . 725, 736, 113 S.Ct.1770, 123 L.Ed .2d 508 (1993).
9
In Devore v. Commonwealth, 21 we held that by passing KRS 533.060(2)
the General Assembly has shown an interest in singling out repeat offenders who
violate the terms of their probation, parole, or conditional discharge
.22
Where an
individual who is on parole, probation, shock probation, or conditional discharge is
convicted or enters a plea of guilty to a felony, their sentences shall not run
concurrently .23 In this situation, KRS 532.110(1)(c) does not act as a sentencing cap . 24
As such, there was no manifest injustice present at trial .
Appellant's conviction of tampering with evidence is vacated. Excluding
that conviction, the judgment of the Allen Circuit Court is affirmed .
Cooper, Graves, Johnstone, and Stumbo, JJ ., concur . Keller, J ., dissents
by separate opinion in which Wintersheimer, J ., joins. Wintersheimer, J ., dissents by
separate opinion .
2'
22
23
24
Ky., 662 S .W.2d 829 (1984) .
Id. at 831 .
Id.
Id.
10
COUNSEL FOR APPELLANT :
Shelly R. Fears
Assistant Public Advocate
Department of Public Advocacy
Suite 302, 100 Fair Oaks Lane'
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Gregory D. Stumbo
Attorney General of Kentucky
John R. Tarter
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
RENDERED : NOVEMBER 18, 2004
TO BE PUBLISHED
'~Uyrrmr 6T
%;.~Xlurf of'
irufurhv
2003-SC-0067-MR
HORACE WILLIAM PAGE
APPELLANT
APPEAL FROM ALLEN CIRCUIT COURT
HONORABLE WILLIAM R. HARRIS, JUDGE
01-CR-00093 & 02-CR-00052
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE KELLER
Because the majority declares that for purposes of KRS 524 .100 blood cannot be
physical evidence until it is withdrawn from a person's body, I dissent. Just as seizure
of a murder weapon or illegal drugs does not change those items into evidence, the
seizure of blood by withdrawing it from a defendant's body similarly does not change its
status . It is the object's involvement in or its relation to the commission of a crime, not
the police's seizure of it that alters its status and thus makes it "evidence ." The fact that
the police take custody of blood does not metaphysically transform it into physical
evidence . This, however, is the clear alchemical implication of the majority opinion,
which uses police seizure as a philosopher's stone to transmute blood into evidence .
Physical evidence is defined for the purposes of KRS 524.100 as "any article,
object, document, record, or other thing of physical substance."' Blood, even though
not yet drawn or analyzed, is undisputedly a "thing of physical substance ." The
KRS 524 .010 .
definition does not support the majority opinion's conclusion that it must be drawn from
the body in order to constitute evidence . And the fact that it does not have to be drawn
from the body to be altered solidifies my view . I would note that search warrants often
issue for the purpose of seizing and testing a person's blood and determining its alcohol
concentration . The blood is seized as evidence that might be used in the prosecution
of a crime and "[t]he taking of a blood sample from a criminal suspect for testing
.,,3
.
Where the alcohol
constitutes a search for real or physical evidence
concentration of a criminal suspect's blood is relevant, the suspect's blood is evidence
both before and after it is drawn for testing .
A person tampers with physical evidence "when believing that an official
proceeding is pending" or may be pending, he or she "conceals, removes or alters
physical evidence he [or she] believes is about to be produced or used in the . . .
proceeding with the intent to impair its veracity or availability in the . . . proceeding ."4
The commentary to the statute states 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 ." 5 And I believe the evidence
supports the jury's finding that this happened in Appellant's case.
2 E Love v. Commonwealth , 55 S .W .3d 816, 820 (Ky. 2001) ("Pursuant to the
.,
.g
search warrant, the police drew a sample of blood and collected a urine specimen to
determine if Appellant was intoxicated at the time of the accident .") .
3 Farmer v . Commonwealth , 6 S .W .3d 144, 145-146 (Ky. App . 1999) (citing
Schmerber v. California , 384 U .S. 757, 86 S .Ct. 1826, 16 L.Ed .2d 908 (1966)) .
4 KRS 524 .100 (emphasis added).
5 KRS 524 .100 Kentucky Crime Commission/LRC Commentary (1974).
-2-
The majority's sole basis for holding otherwise is State v. Peplow.6 However,
since Peplow is devoid of any evidence of the specific intent to conceal or alter blood
alcohol concentration, I do not find it instructive or applicable . In Peplow, the defendant
had several drinks and then proceeded to drive his truck through several fences at the
expense of his truck's radiator. Since this rendered the vehicle inoperable and his
house was close by, Peplow staggered home and continued his drinking . After three
shots of whiskey he walked to a local bar for a beer where he was eventually
apprehended by the police, who charged him with driving under the influence and
tampering because he had consumed additional alcohol after the collision . Since any
intent Peplow could have had with respect to altering his blood alcohol concentration
would not have been in his favor, the Montana Supreme Court's decision that the
tampering charge did not apply was reasonable. What was not reasonable was its
insistence that blood and its alcohol concentration cannot be evidence until drawn,
despite the state's definition of evidence as a "`record, document or thing ."'' In
interpreting the definition, the trial court stated, "'I can't imagine a more broad term than
"thing ." That's not defined in the code so I think we have to apply its ordinary meaning
and that would cover just about anything . -8 The trial court was correct .
As in Kentucky, Montana's tampering with physical evidence statute requires that
the evidence be concealed or altered with the purpose to impair its veracity or
availability . There is no evidence that Peplow consumed three shots of whiskey and
half a beer in order to skew the results of any blood alcohol test, especially since his
actions would not have skewed the test results in his favor.
6 36 P.3d 922 (Mont. 2001) .
s
36 P.3d at 927.
In Appellant's case, he was on probation and recognized that he faced probation
revocation and possibly additional prison time if he was discovered intoxicated at the
scene of the collision . In an effort to avoid the consequences, Appellant fled and
covered his tracks by having his brother accept responsibility for driving the car.
Appellant knew a proceeding would be instituted against him and he hid to avoid
prosecution for driving while intoxicated and violating his probation . The jury's finding
that he did so to alter the alcohol concentration of his blood is a reasonable inference
based on the evidence . 9 If Appellant had truly wrecked due only to the road conditions
he would not have left his fatally injured sister and niece and would not have continued
to insist that his brother was the driver when he was questioned by police.
The Court in Peplow was concerned that if blood alcohol concentration could be
considered evidence before blood was drawn, then "any driver who eats, sleeps or even
receives medical treatment . . . after an accident could also be accused of tampering
with their blood alcohol level ."'° But if a driver does those things in an effort to alter his
or her blood alcohol level , then he or she has most certainly tampered with physical
evidence . Returning to the commentary discussed earlier, "[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 ."" I believe
the elements were satisfied in Appellant's case.
9 See Schmerber v. California , 384 U .S . 757, 770, 86 S .Ct. 1826, 1835-1836, 16
L.Ed .2d 908 (1966) ("The officer in the present case, however, might reasonably have
believed that he was confronted with an emergency, in which the delay necessary to
obtain a warrant, under the circumstances, threatened `the destruction of evidence ."').
'° Id . at 929 .
11
added) .
KRS 524.100 Kentucky Crime Commission/LRC Commentary (emphasis
For the foregoing reasons I dissent and would affirm Appellant's conviction under
KRS 524.100.
Wintersheimer, J., joins this dissenting opinion .
RENDERED : NOVEMBER 18, 2004
NOT TO BE PUBLISHED
,supractt (gourf of 'rufurkV
2003-SC-0067-MR
HORACE WILLIAM PAGE
V.
APPELLANT
APPEAL FROM ALLEN CIRCUIT COURT
HONORABLE WILLIAM R. HARRIS, JUDGE
01-CR-00093 & 02-CR-00052
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE WINTERSHEIMER
I must respectfully dissent from the majority opinion because the charge of
tampering with physical evidence was properly submitted to the jury. KRS
524 .100(1)(a) . The defendant was not entitled to a directed verdict .
Page was convicted of second-degree manslaughter and first-degree wanton
endangerment as well as tampering with physical evidence . In this case, there was
evidence that Page concealed himself after his crime and thereby prevented police
from obtaining a blood sample . There is no question that blood is physical evidence
and concealment of such physical evidence would justify submitting the tampering
charge to a jury. The trial judge admitted that the determination was a "close call" but
determined that the definition "seems to apply." The trial judge promised he would take
another look at the issue upon receipt of a post-judgment motion for relief. Defense
counsel did not present any further motions regarding the issue and declined to do so
when the trial judge solicited his motions at the end of the trial .
It is uncontroverted that Page wrecked his automobile which resulted in the
deaths of his sister and a six-year old niece. He then fled, cleaned his own injuries and
encouraged a false, or at least misleading, statement to police by his brother.
This Court as well as the United States Supreme Court has properly recognized
the evidentiary importance of the blood of a criminal defendant . See Schmerberg v.
California , 384 U .S . 757, 86 S.Ct. 1826, 16 L.Ed .2d 908 (1966); Speers v.
Commonwealth , Ky., 828 S .W.2d 638 (1992) . It is in the nature of blood to have a
tendency to change quickly as a result of normal body function and this produces an
elimination of drugs and alcohol . Consequently, there is a compelling state interest in
the expedient collection of blood evidence after a drug or alcohol-related offense .
There is no sacred attachment to the blood contained in the body because the sample
must be obtained from blood in the body. The reliance by the majority opinion on the
integrity of body blood is unconvincing .
Page concealed himself after the crime because he did not want the police to
observe him . He was afraid that he would be arrested and that he would have to go
back to prison. The blood evidence was not readily available when the police finally
apprehended Page because of the acts of concealment.
Reliance by the majority on State v. Peplow, 36 P.3d 922 (Mont . 2001), is
unpersuasive. Peplow, supra , is very different . The Montana Supreme Court said that
standing alone, the consumption of alcohol after the accident was not sufficient
evidence of tampering. The comparison to the innocent eating, sleeping or medicine
ingestion is misplaced . Here, the defendant fled, cleaned his appearance and
encouraged misleading information . In this case, the conviction of Page is not based
on some kind of isolated or facially innocent conduct.
The Montana statute does not define "physical evidence." Kentucky does in
Chapter 524, and the definition is comprehensive enough to include a sample of the
defendant's blood . The blood sample must come from blood in the body. It logically
follows that if the source of the sample is concealed by the defendant, the blood
evidence is certainly tampered with . The charge was correct and the jury was entitled
to decide.
The judgment of conviction of the tampering with evidence charge should be
affirmed .
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