Sunday, March 11, 2012

KY COA March 7th - Cornelius - Bootstrapping tampering charge

Cornelius v. Commonwealth  2009-CA-1624  To be published

Cornelius was convicted of possession of marijuana and tampering with physical evidence after an officer found a bag of marijuana in his front pocket during a pat down search.  The Court of Appeals relied on Mullins v. Commonwealth, 350 S.W.3d 434 (Ky. 2011), to reverse his tampering conviction.  In Mullins, the Supreme Court stressed that the Commonwealth cannot bootstrap a tampering charge onto another charge when there is no evidence of an active intent by the defendant to impair the availability of evidence.

The Court of Appeals found that Cornelius did not take an additional step or active attempt to impair the availability of evidence.  Placing the marijuana in his pocket was tangential to the continuation of the possession offense.  The Court found that placing marijuana in an outer clothing pocket is analogous to a shoplifter who hides property on his person to avoid detection.  The concealment must be to prevent the evidence from being used in an official proceeding, a fact that is lacking in the typical shoplifting situation.  Concealing illegal drugs in a conventional location such as a pocket is directly incident to a possessory offense.  Were it not, a defendant would be required to have had the illegal drugs in plain view to avoid a tampering charge.

Contributed by Steven Buck