Dissenting.
Respectfully, I must dissent from the opinion of the majority. As noted by the Court of Appeals in its opinion, there was no evidence that the money’s concealment in any way impaired “its verity or availability in the official proceeding,” as required by KRS 524.100(1)(a). The cases upon which the majority relies involved cases in which there was an active attempt on the part of the accused to disrupt the investigatory process by separating him or herself from the incriminating evidence. The money was concealed upon Appellee’s person and was in his actual possession when he was taken into custody. The situation was little different from what it would have been had he simply placed the money in his pocket.
Thus, I would set aside the conviction for tampering with physical evidence, which would require the vacation of his conviction for PFO I as well, since KRS 532.080(3) requires conviction of a third felony after having previously experienced two prior felony convictions. The failure of the underlying felony conviction would render improper Appellee’s conviction for being a PFO I.
For the reasons set forth herein, I would reverse and remand for entry of a new sentence in accordance with this opinion.