(Code 1933, § 26-2510, enacted by Ga. L. 1974, p. 423, § 1; Ga. L. 2001, p. 982, § 1.)
Law reviews.- For article, "Truth and Uncertainty: Legal Control of the Destruction of Evidence," see 36 Emory L.J. 1085 (1987). For annual survey on criminal law, see 64 Mercer L. Rev. 83 (2012).
JUDICIAL DECISIONS
State need not negate all possibility of tampering with evidence, but need only show that it is reasonably certain there was no alteration. Barfield v. State, 160 Ga. App. 228, 286 S.E.2d 516 (1981).
When there is only bare speculation of tampering, it is proper to admit evidence and let remaining doubt go to its weight. Barfield v. State, 160 Ga. App. 228, 286 S.E.2d 516 (1981).
Evidentiary issues.
- Question of whether the defendant legally possessed a gun or used the gun to shoot the victim was independent of whether the gun was evidence that the defendant attempted to conceal to obstruct the defendant's prosecution. Williams v. State, 261 Ga. App. 410, 582 S.E.2d 556 (2003).
Swallowing of drugs as tampering with evidence.
- Evidence supported the defendant's conviction for tampering with evidence as the defendant swallowed the contents of baggies, later identified as cocaine, as officers approached. Defendant told an emergency room doctor that the defendant had eaten cocaine. Dulcio v. State, 297 Ga. App. 600, 677 S.E.2d 758 (2009).
Parent's tampering with evidence for benefit of child.
- Evidence was sufficient to convict the defendant of evidence tampering because, based on the circumstantial evidence, the defendant retrieved a firearm that the defendant's child had hidden and that the defendant's child had used to shoot and kill the victim; a friend drove the defendant to a fishing pond and heard a splash; law enforcement recovered a firearm matching the description of the murder weapon in the exact place where the friend heard the splash; and there was no evidence presented at trial to support a reasonable inference that the defendant disposed of a different gun than the one used by the defendant's child to commit murder. Elkins v. State, 350 Ga. App. 816, 830 S.E.2d 345 (2019).
No evidence tampering by officer.- Detective's action of removing unfired rounds from the detective's duty weapon and placing them into the magazine of the defendant's 9-millimeter pistol until it was full to determine the cartridge capacity of the pistol did not amount to evidence tampering because the defendant cited no legal authority or record evidence to support the defendant's claim; and the appellate court did not find any such authority to support that proposition. Clay v. State, Ga. , S.E.2d (Aug. 24, 2020).
Evidence sufficient to sustain conviction.
- There was sufficient evidence to support defendant's conviction for tampering with evidence after a ballistics expert testified that the revolver found hidden under a mattress fired the bullet that killed the victim, and the jury could reasonably infer that defendant hid the weapon shortly after the shooting. Chastain v. State, 255 Ga. 723, 342 S.E.2d 678 (1986).
Defendant's defense to a tampering with evidence charge was that no one saw defendant pull up and destroy marijuana plants, but police officers saw defendant on the property with the plants, advised defendant not to remove them, returned in two hours to find them missing, and saw no one else around the premises at either time, thus, the jury could reasonably infer that defendant at the very least participated in the destruction and that in itself would justify conviction. Parrish v. State, 182 Ga. App. 247, 355 S.E.2d 682 (1987).
Evidence that defendant supplied photographs conveying a false impression of the scene of a crime was sufficient to sustain defendant's conviction for tampering with evidence. Gurr v. State, 238 Ga. App. 1, 516 S.E.2d 553 (1999).
Evidence that defendant attempted to destroy cocaine in defendant's home by placing the plastic bag in which it was contained in the disposal was sufficient for conviction. Phillips v. State, 242 Ga. App. 404, 530 S.E.2d 1 (2000).
There was sufficient evidence to convict defendant of tampering with evidence in violation of O.C.G.A. § 16-10-94(a) after defendant attempted to flush defendant's boxer shorts, which had been seen in the videotape of an armed robbery, down the toilet in the police station and the boxer shorts were later discovered after a problem with the bathroom plumbing developed. Williams v. State, 259 Ga. App. 265, 576 S.E.2d 647 (2003).
Evidence that defendant tried to slide a bag of marijuana into a pool table pocket in order to conceal it was sufficient, and defendant's reasonable ability to conceal the marijuana was irrelevant; the test was whether defendant performed an act which constituted a substantial step toward concealing the evidence, not whether defendant was likely to succeed. Taylor v. State, 260 Ga. App. 890, 581 S.E.2d 386 (2003).
Evidence supported defendant's conviction of tampering with evidence because defendant pointed a loaded revolver at the victim and pulled its trigger twice, the revolver had a hammer block, preventing it from firing unless pressure was applied to the trigger and, when police recovered the revolver, the hammer was resting on an empty chamber next to the chamber containing a spent brass shell, indicating that the cylinder was advanced after the fatal shot. Reed v. State, 279 Ga. 81, 610 S.E.2d 35 (2005).
Sufficient evidence supported convictions of aggravated assault, tampering with evidence, and felony misuse of a firearm while hunting, and negated the defense of accident when the victim who was shot by defendant while hunting waved to signal defendant before the gun was fired and since the defendant was hunting while on medication that could have caused mental and physical impairment; the jury also could have considered defendant's actions after the shooting in removing the victim's orange vest, hiding two guns, failing to aid the victim, and failing to alert paramedics of the victim's location. Wilson v. State, 279 Ga. App. 136, 630 S.E.2d 640 (2006).
Evidence was sufficient to support a defendant's conviction for tampering with evidence after the defendant admitted to cleaning up the crime scene, and after there was evidence that the defendant concealed bloody bed sheets and a mattress by making the bed after removing the victim's body from the scene and concealed scraps of bloody cardboard in the backseat of a patrol car. White v. State, 287 Ga. 713, 699 S.E.2d 291 (2010).
Georgia Lottery for Education Act, O.C.G.A. § 50-27-27(b), applied to the defendant's conduct because the defendant's actions were for the purpose of influencing the winning of a prize offered by the Georgia Lottery Corporation; the defendant took lottery tickets in order to win lottery prizes personally, even though such conduct deprived other customers of the opportunity to lawfully purchase those tickets, and the defendant's action of leaning over the counter that stored the tickets, rolling the tickets off the plastic wheels on which the tickets were housed, ripping the tickets off the rolls, and taking the tickets for the defendant's own use constituted tampering with lottery materials in violation of O.C.G.A. § 16-10-94(a). Doe v. State, 306 Ga. App. 348, 702 S.E.2d 669 (2010), aff'd, 290 Ga. 667, 725 S.E.2d 234 (2012).
Evidence that baggies containing what appeared to be marijuana residue were found in the dishwasher supported the defendant's conviction for tampering with evidence. Kirchner v. State, 322 Ga. App. 275, 744 S.E.2d 802 (2013).
Convictions for malice murder, felony murder, aggravated assault with a deadly weapon, tampering with evidence, and two counts of cruelty to children in the third degree were supported by evidence that, while two of the victim's children were in a closet, the defendant shot the victim and told the children the victim shot herself; the testimony of the medical examiner that it was not possible for the victim to have self-inflicted the type of wound the victim sustained, which appeared to have been inflicted from two feet away; the defendant's statement to police that the defendant threw the gun in the woods; and testimony that the defendant made the children help the defendant put the victim in the car to go to the hospital. Durden v. State, 293 Ga. 89, 744 S.E.2d 9 (2013), overruled on other grounds, Jeffrey v. State, 296 Ga. 713, 770 S.E.2d 585 (2015).
Defendant's admission that the defendant helped the defendant's son hold down the victim as the son penetrated the victim, that the defendant rubbed the defendant's own penis against the victim and ejaculated on the victim, that the defendant put the defendant's hands over the son's as the son choked the victim, that the defendant helped dump the victim's body, and the testimony of the defendant's wife that the defendant helped undress the victim, the defendant put the defendant's mouth on the victim's penis, and the defendant attempted to put the defendant's penis in the victim's anus was sufficient to support defendant's convictions for murder, false imprisonment, two counts of aggravated child molestation, child molestation, cruelty to children in the first degree, concealing the death of another, and tampering with evidence. Edenfield v. State, 293 Ga. 370, 744 S.E.2d 738 (2013), overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018).
Evidence that the defendant found a bullet shell casing in the bedroom where the victim was shot and that, during a trash pull, a spent casing was found inside a soft drink can that had been cut in half belied the defendant's claim that the defendant did not realize the importance of the casing and supported a conviction for tampering with evidence. Thornton v. State, 331 Ga. App. 191, 770 S.E.2d 279 (2015), aff'd, 298 Ga. 709, 784 S.E.2d 417 (2016).
Evidence that a search of the defendant's home revealed drug paraphernalia and suspected methamphetamine, and that drug-related objects and suspected methamphetamine had been covered in bleach, which would have destroyed any evidence, was sufficient to support the defendant's conviction for tampering with evidence. Lee v. State, 347 Ga. App. 508, 820 S.E.2d 147 (2018).
Evidence was sufficient to convict the defendant of tampering with evidence as the jury could infer that the defendant concealed the camera to obstruct the defendant's prosecution because, at some point after the defendant took pictures of the victim, the defendant hid the defendant's camera in a dishwasher, and then enlisted a friend to remove the camera from the defendant's home. Nguyen v. State, 351 Ga. App. 509, 831 S.E.2d 213 (2019), cert. dismissed, No. S20C0488, 2020 Ga. LEXIS 402 (Ga. 2020).
Evidence insufficient to sustain conviction.
- There was insufficient evidence to support defendant's conviction for tampering with evidence by placing a knife in a murder victim's hand, where no fingerprints were submitted into evidence, the knife was never introduced, and any inferences as to how the knife reached the victim's hand were mere speculation. Chastain v. State, 255 Ga. 723, 342 S.E.2d 678 (1986).
Evidence was insufficient to convict defendant of tampering with evidence under O.C.G.A. § 16-10-94(a) because the fact that defendant moved the victim's body and a pillow, that was behind the victim's head, did not show an intent to frustrate the defendant's apprehension or to obstruct the prosecution. Merritt v. State, 285 Ga. 778, 683 S.E.2d 855 (2009).
Evidence was insufficient to convict defendant of tampering with evidence in regard to the gun when although the indictment alleged that defendant, with the intent to obstruct the prosecution of another, did knowingly conceal physical evidence, to wit, a gun, and at trial there was evidence that defendant had a gun on the defendant's person at the victim's home, the state did not present any evidence as to what, if anything, defendant did with the gun. In the absence of any evidence that defendant intentionally and knowingly destroyed, altered, concealed, or disguised physical evidence, O.C.G.A. § 16-10-94(a), defendant could not be convicted for tampering with evidence, and the state's reliance on the mere fact that the police did not recover the gun was insufficient to prove defendant tampered with evidence in order to obstruct the prosecution of another as alleged in the indictment; accordingly, defendant's conviction for tampering with evidence regarding the gun was reversed. Cooper v. State, 287 Ga. 861, 700 S.E.2d 593 (2010), overruled on other grounds, Smith v. State, 290 Ga. 768, 723 S.E.2d 915 (2012).
Evidence was not sufficient to support the defendant's conviction for tampering with evidence with intent to prevent the apprehension and obstruct the prosecution of another person in violation of O.C.G.A. § 16-10-94 because the evidence did not prove beyond a reasonable doubt that the defendant created and posted a video with the specific intent to prevent the apprehension or obstruct the prosecution of some other person. Haley v. State, 289 Ga. 515, 712 S.E.2d 838 (2011), cert. denied, U.S. , 133 S. Ct. 60, 183 L. Ed. 2d 711 (2012).
There was not sufficient evidence to support the tampering with evidence conviction as there was no evidence to show the substance in the defendant's mouth, that was destroyed, was marijuana. King v. State, 317 Ga. App. 834, 733 S.E.2d 21 (2012).
Void sentence.
- Construing O.C.G.A. § 16-10-94(c), and in order to avoid rendering the terms "and involving another person" meaningless, the court had to interpret that language as imposing felony punishment when the person committed the tampering offense involving the prosecution or defense of a third person; hence, because the state did not present any allegations or evidence indicating that the defendant committed the tampering offense to prevent the apprehension or prosecution of anyone other than himself, the felony sentence imposed was void, and had to be vacated. English v. State, 282 Ga. App. 552, 639 S.E.2d 551 (2006).
While sufficient evidence was presented to support the defendant's conviction of tampering with evidence, as the statute, by its own terms, contemplated that a person could commit the offense by tampering with evidence in their own case or that of another person, the three-year sentence imposed for the same had to be reversed, as the defendant did not tamper with the evidence in another person's case; the defendant committed a misdemeanor for tampering with evidence in his own case. Perry v. State, 283 Ga. App. 520, 642 S.E.2d 141 (2007).
Felony sentence vacated.
- Defendant's felony sentence for tampering with evidence in violation of O.C.G.A. § 16-10 -94 was vacated and the case was remanded for misdemeanor sentencing because the verdict form simply contained a finding of guilty on the tampering count, making it impossible to determine if the jury found the defendant guilty of misdemeanor or felony tampering; the defendant had to be given the benefit of the doubt in construing the ambiguous verdict. Hampton v. State, 289 Ga. 621, 713 S.E.2d 851 (2011), overruled on other grounds, Nalls v. State, 815 S.E.2d 38, 2018 Ga. LEXIS 396 (Ga. 2018).
Indictment accused the defendant and an alleged accomplice of tampering with evidence with the intent to prevent the apprehension of each of the accused; however, because "each said accused" could mean either of the accused, and the verdict form and the jury charge did not require any further specificity, the jury could have found the defendant guilty of tampering to prevent the defendant's own apprehension (a misdemeanor) or the apprehension of the alleged accomplice (a felony); thus, the defendant had to be given the benefit of the doubt in construing the ambiguous verdict, and the defendant's felony tampering sentence was vacated. Haynes v. State, 331 Ga. App. 104, 769 S.E.2d 801 (2015).
Crime was misdemeanor because tampering involved defendant's own case.
- Imposition of a three-year sentence for tampering with evidence was erroneous because the defendant tampered with evidence in the defendant's own case and not to prevent the apprehension or prosecution of anyone other than the defendant, and, therefore, the crime was a misdemeanor. White v. State, 287 Ga. 713, 699 S.E.2d 291 (2010).
Because the defendant tampered with evidence in the defendant's own case by throwing the murder weapon away, the defendant could only be convicted of a misdemeanor; therefore, the trial court erred in finding the defendant guilty of a felony. DeLeon v. State, 289 Ga. 782, 716 S.E.2d 173 (2011).
Cited in Gurr v. State, 238 Ga. App. 1, 516 S.E.2d 553 (1999); Draper v. Reynolds, 278 Ga. App. 401, 629 S.E.2d 476 (2006).
OPINIONS OF THE ATTORNEY GENERAL
Fingerprinting.
- Georgia Crime Information Center is authorized to collect and file fingerprints of persons charged with a violation of O.C.G.A. § 16-10-94(b). 2001 Op. Att'y Gen. No. 2001-11.
RESEARCH REFERENCES
C.J.S.
- 67 C.J.S., Obstructing Justice or Governmental Administration, § 35 et seq.