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State v. Henry9/29/2004
efinition of evidence tampering. The Appellant was still at the scene of the alleged criminal conduct. If the Appellant had wanted to destroy evidence, he could have simply dropped or thrown the necklace when pursued by the officer. However, the Appellant still had the necklace on his person, thereby avoiding the necessity of a search for same."
In State v. Katrina A. Callahan, No. E2002-00926-CCA-R3-CD, 2003 WL 1960267 (Tenn. Crim. App. at Knoxville, April 28, 2003), our Court analyzed Tennessee Code Annotated section 39-16-503. In that analysis, we stated that "an investigation was pending or in progress when the police officers arrived in their official capacity and began investigating . . . ." Katrina A. Callahan, No. E2002-00926-CCA-R3-CD, at * 9-10. The presence of the defendant at the scene of the criminal conduct does not negate the charges of tampering with evidence. In this case, the defendant was hiding the necklace in his mouth while the police were searching for evidence and investigating the charges made by the victim.
When analyzing the facts against the elements of the tampering with evidence statute, and the facts are taken in a light most-favorable to the State, there is sufficient evidence to convict the defendant for tampering with evidence. The defendant clearly knew that an investigation was pending because he had been chased by the police and placed in a police cruiser while handcuffed, so the officers could continue to search for evidence. The defendant clearly concealed evidence when he hid the victim's necklace underneath his tongue.
The defendant also argues that the victim, Tammy Henry was totally lacking in credibility, and points out several flaws in her testimony. As we noted above, the conviction of the defendant accredits the testimony of the State's witnesses and resolves all conflicts in the testimony in favor of the State. The credibility of witnesses and weight to be given the evidence rest with the jury. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). We, as the appellate court, cannot second-guess the jury's decision on the credibility of witnesses. In addition, we point out that the defendant was originally charged with especially aggravated robbery. The jury was presented with robbery and the applicable lesser-included offenses. The jury convicted the defendant of the lesser-included offense of theft of property worth less than $500. It is very apparent that the jury carefully weighed the evidence with regard to the taking of the purse and the necklace and made a decision after careful deliberation.
The defendant also argues that the same fact was used to support more than one conviction. The defendant appears to argue that the taking and concealing of the necklace was the basis of both his conviction for tampering with evidence and his conviction for theft of property valued at less than $500. However, at the beginning of his argument in his brief, the defendant states that he was convicted for theft of property valued at less than $500 based upon his taking his wife' purse and personal belongings and that he was convicted on tampering with evidence based upon his concealing the necklace. Theft of property, found under Tennessee Code Annotated section 39-14-103, requires an individual to "knowingly obtain[ ] or exercise control over the property without the owner's effective consent," with the intent to deprive the owner of the property. When the facts are viewed in a light most favorable to the State, it is obvious that the evidence supports the defendant's conviction. The defendant clearly grabbed the victim's purse and ran away with it. These actions clearly meet the elements set out for theft of property.
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