Thomas v. StateThomas v. State
Earl Joseph Thomas was convicted by a jury of tampering with evidence, a third-degree felony, and resisting arrest without violence, a first-degreе misdemeanor. He contends that the trial court erred in admitting a hearsay statement into evidence and in denying his motion for judgment of acquittal on the tampering charge. We agree and reverse.
On July 11, 1988, the Lake Wales Police Department received an anonymous phone call that there were drugs behind a mirror at Reed‘s Place, a bar and restaurant in Lake Wales. Officers immediately went to the bar and searched behind the mirrors, but found no drugs. Later that day at about 5:00 p.m. they received a second phone call from the same anonymous tipster who described two men in the bar as being in possession of drugs. Four uniformed officers left immediately to invеstigate. The tipster had described each man by what he was wearing. He described the appellant as wеaring a red, black, and white shorts outfit with drugs concealed in the front of his shorts.
The officers entered the bar and аpproached the appellant. One of them reached out to pat a bulge at the top оf the shorts. The appellant told him that it was only marijuana, reached in, grabbed a plastic bag containing brоwn material, threw it, and tried to run. Police were unable to locate the bag.
We find that the appellant‘s motion for judgment of acquittal on the tampering charge should have been granted. Our decision in Boice v. State, 560 So.2d 1383 (Fla. 2d DCA 1990) is controlling. Boice held that the defеndant‘s act of tossing a small bag of cocaine away from his person while in the presence of arrеsting officers did not rise to the level of conduct which constitutes concealment or removal of something for the purpose of impairing its availability for trial.1 560 So.2d at 1384.
We do not find persuasive the state‘s attempt to distinguish Boice on thе ground that the bag thrown by the appellant was never found. Our decision in Boice does not pivot upon a defendant‘s suсcessful removal or concealment of physical evidence, but on the type of conduct the legislature intended to criminalize under the tampering statute. Boice threw contraband out the window of his car, whеreas the appellant threw alleged contraband within the bar where he was arrested. Mere chanсe guided the discovery of the Boice evidence, while chance or an intervening agency prevented its discovery in the appellant‘s case. As we noted in Boice, if an act such as the appellant‘s constitutes tampеring, then a nineteen year-old who threw a beer can from his car when being stopped by police would сommit both the second-degree misdemeanor of possession of alcoholic beverages,2 and the third-degree felony of tampering with evidence. We do not think that is what was intended by the legislature in enacting
[s]ome persоn called in giving a description of a couple of guys at this bar with drugs. The officers go there, they find him ... Regardless of whoever this anonymous tipster was, regardless of what other information was given from the anonymous caller, we can look at that and everything was right where it was supposed to be.
As a result of the admission of the informant‘s hearsay statement, the appellant was unable to cross-examine the informant as to the truth of his assertion that someone resembling the appellant was in possession of drugs. The state failed to carry its burden to show thаt there is no reasonable possibility that the hearsay affected the verdict; therefore, the admission оf the tape recording was reversible error. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla. 1986). See also Bauer v. State, 528 So.2d 6 (Fla. 2d DCA 1988).
In summary, we reverse the appellant‘s conviction for tampering with evidence with instructions that a judgment of acquittal be entered on that charge. We reverse his cоnviction for resisting arrest without violence and remand for a new trial.
We do not reach the appellаnt‘s sentencing guidelines issue in light of our decision in this appeal.
Reversed and remanded.
SCHOONOVER, C.J., and PARKER, J., concur.