152 So. 3d 737
Fla. Dist. Ct. App.2014Background
- Appellant, a Broward Sheriff’s Office detective, recorded a suspect’s statements on his work cell phone about an unrelated investigation involving two officer-defendants who were his friends.
- He texted the video to one friend (Koepke), showed it to his supervisor, and emailed it from his work account to the Police Benevolent Association’s general counsel.
- Ten days later the State Attorney’s Office seized appellant’s phone; the January 20 video was not found on the device and an expert concluded it had been deleted.
- The video was later recovered from Koepke’s Sprint/Nextel account and from the Sheriff’s Office e-mail servers and both were played at trial.
- A jury convicted appellant of evidence tampering under section 918.13, Florida Statutes; the Fourth District reversed, finding insufficient evidence of intent to impair availability or of destruction within the statute’s meaning.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant violated § 918.13 by deleting the video | Deletion of the video from his phone shows intent to impair availability for the investigation | Sending and showing the video to others and existence of copies elsewhere negate intent to impair or destroy | Reversed: insufficient evidence of intent to impair or actual destruction |
| Whether deleting an electronic file from a device constitutes "destroy[ing]" under § 918.13 | Deletion from the device is an act to remove evidence and thus can be ‘‘destroying’’ | Deletion from one device is not destruction when copies exist elsewhere; electronic deletion alone insufficient | Reversed: statute does not criminalize deletion from a single device when copies remain accessible |
| Sufficiency of the evidence to survive judgment of acquittal on tampering count | Evidence of deletion and expert testimony that file was deleted supports conviction | Equivocal conduct (mere removal) without action to prevent retrieval is insufficient | Reversed: equivocal conduct here (texting/emailing/sharing) insufficient to show requisite intent |
| Applicability of prior tampering case law distinguishing discarding vs. destroying | State relies on cases where evidence was concealed or removed to avoid prosecution | Defense distinguishes cases where evidence was irretrievably destroyed (e.g., swallowed) from those where it was merely removed or left retrievable | Court applied precedent distinguishing mere removal from acts that actually destroy evidence and sided with defendant |
Key Cases Cited
- State v. Major, 30 So. 3d 608 (Fla. 4th DCA 2010) (State must prove knowledge of impending investigation and destruction to impair availability)
- C.K. v. State, 753 So. 2d 617 (Fla. 4th DCA 2000) (same intent requirement for tampering)
- E.I. v. State, 25 So. 3d 625 (Fla. 2d DCA 2009) (equivocal conduct toward evidence insufficient to show tampering)
- Obas v. State, 935 So. 2d 38 (Fla. 4th DCA 2006) (dropping drugs where items remained easily retrievable insufficient for tampering)
- Evans v. State, 997 So. 2d 1281 (Fla. 4th DCA 2009) (loss of evidence due to substrate did not show specific intent to tamper)
- State v. Jennings, 666 So. 2d 131 (Fla. 1995) (acts like swallowing evidence demonstrate intent to destroy)