RENDERED: JUNE 4, 2021; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1260-MR
PERRY BELL APPELLANT
APPEAL FROM MARION CIRCUIT COURT
v. HONORABLE SAMUEL TODD SPALDING, JUDGE
ACTION NO. 18-CR-00241
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
REVERSING AND
REMANDING
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BEFORE: COMBS, LAMBERT, AND K. THOMPSON, JUDGES.
COMBS, JUDGE: Perry Bell appeals his conviction for tampering with physical
evidence (KRS1 524.100) and persistent felony offender (PFO) in the second
degree (KRS 532.080(2)), for which he received a sentence of five-years’
imprisonment on the underlying conviction, enhanced to eight-years’
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Kentucky Revised Statutes.
imprisonment for the status offense. Bell does not challenge his convictions for
the possession of controlled substances and drug paraphernalia. Furthermore, he
does not challenge the PFO conviction other than as it enhances his conviction for
tampering with physical evidence. After our review, we reverse and remand.
Bell was arrested on October 28, 2018, in Marion County, Kentucky.
His arrest citation sets forth in detail the chronology of events leading to the
charges:
Bell was the passenger in a vehicle that was parked
in the middle of the road at the dead end of Hamilton
Heights. Upon approaching the vehicle, this officer
observed Bell take his right hand and appear to conceal
something under his right leg. When he was removed
from the vehicle, Cpl. Cook saw in plain view a small
plastic baggie containing what appeared to be synthetic
marijuana, or “Spice.” Search of the rest of the vehicle
found in between the front passenger seat and the center
console, a small round container that held what appeared
to be crystal methamphetamine that was inside of a piece
of paper. Also inside this container were several pieces
of what appear to be Suboxon[e], a Schedule III
Controlled Substance. The owner of the vehicle claimed
no knowledge of these substances, so due to Bell being
within[] arm[’]s reach of them, he was charged. Upon
getting Bell to MCDC [Marion County Detention
Center], staff found a large white pill inside his pants
pocket that was identified by Poison Control as a 800 mg
Gabapentin, a Sch[e]dule 5 Controlled Substance.
Bell was indicted on December 3, 2018. He was arraigned three days
later. His jury trial on March 25 of the following year resulted in guilty verdicts on
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all charges (except for an agreed order of dismissal on possession of
methamphetamine). He was sentenced on April 12, 2019.
Bell’s sole argument on appeal is that the trial court erred in denying
his motions for a directed verdict on the charge of tampering with physical
evidence. In support of this argument, he cites Commonwealth v. James, 586
S.W.3d 717 (Ky. 2019), where the Kentucky Supreme Court held that:
dropping or throwing the evidence to the ground in the
presence and view of [the arresting officer] in a manner
that left the evidence easily retrievable was not an act of
concealment or removal sufficient to sustain an
additional charge for tampering with physical evidence.
Id. at 730. Bell contends that James is dispositive of the issue and that it requires
reversal of his conviction under similar circumstances. We agree.
We begin our analysis by stating the standard of reviewing a denial of
a motion for a directed verdict:
On a 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 purposes 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. 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.
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Hunter v. Commonwealth, 587 S.W.3d 298, 310 (Ky. 2019) (citation omitted).
With this stringent standard in mind, we next examine the applicable
statute. KRS 524.100 provides as follows:
(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[.]
....
(2) Tampering with physical evidence is a Class D
felony.
The James Court discussed KRS 524.100, stating:
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.” 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.”
In this case, the issue is whether James committed
the requisite criminal act. James did not destroy,
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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.
James, 586 S.W.3d at 724-25 (footnotes omitted).
In the case before us, Bell surely “did not destroy, mutilate, or alter”
the contents of the plastic bag that he placed under his right leg; thus, the issue is
whether he “concealed” or “removed” the items when he performed that action in
the presence of the arresting officer. Id. Bell claims that he did nothing that
prevented the officers on the scene from discovering the items. Moreover,
testimony from the Commonwealth’s witnesses indicated that the plastic bag was
in plain view when they inspected the vehicle. Therefore, Bell concludes, he
merely abandoned the items rather than concealed them. He argues that James
should apply.
The Commonwealth argues otherwise. The James Court cautioned
that:
the rule here reflects the narrow set of facts in front of us:
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, and the officer can
quickly and readily retrieve the evidence, the criminal act
of concealment or removal has not taken place.
586 S.W.3d at 731. In this case, the Commonwealth presented evidence that Bell
deliberately and calculatedly attempted to conceal the plastic bag by first hiding it
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under his thigh and then placing it between the door and the passenger seat. The
Commonwealth urges that those additional acts distinguish Bell’s case from James.
The Commonwealth relies on Hunter v. Commonwealth, 587 S.W.3d
298 (Ky. 2019), in which the defendant was found guilty of tampering with
physical evidence. In Hunter, the defendant discarded a gun in an overgrown area
of a fence line, and a K-9 unit was needed to find and retrieve it. However, we
cannot agree that the “concealment” in this case is remotely congruent with the
factual scenario in Hunter. Bell did not “discard the evidence” beyond the
confines of the vehicle, nor did he attempt to ingest it or otherwise alter or destroy
it. His conduct consisted of the furtive but futile acts of hiding it under his thigh
and then in the space between the door and the passenger seat. As soon as he was
removed from the car, the officer readily found the evidence “in plain view.” No
search was required. No K-9 unit was needed. In the language of James, the
evidence was “easily retrievable.” 586 S.W.3d at 725.
We are persuaded that Bell’s situation fits squarely within the
parameters of James. We note that Bell was sentenced on April 12, 2019, and that
the James case was rendered several months later on October 31, 2019. The trial
court did not have the benefit of the expanded standard announced in James, and
its reasoning in denying a directed verdict prior to James was no doubt sound at the
time of trial. However, in light of the subsequent precedent of James, we are
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compelled to reverse Bell’s conviction of tampering with physical evidence and
PFO in the second degree as it pertains to that conviction.
Accordingly, we REVERSE the order of the Marion Circuit Court
denying Bell’s motion for a directed verdict and REMAND for entry of a judgment
consistent with this opinion.
THOMPSON, K., JUDGE, CONCURS.
LAMBERT, JUDGE, DISSENTS AND DOES NOT FILE SEPARATE
OPINION.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Erin Hoffman Yang Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Leilani K. M. Martin
Assistant Attorney General
Frankfort, Kentucky
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