State v. Lasu

State of NebraSka , appellaNt, v.
JameS a. laSu, appellee .
768 N.W.2d 447
Filed July 24, 2009. 	No. S-08-841.
1. Statutes: Judgments: Appeal and Error. The meaning of a statute is a question
of law, on which an appellate court has an obligation to reach an independent
conclusion irrespective of the decision made by the court below.
2. Plea in Abatement. A plea in abatement can be made when there is a defect in
the record which can be established only by extrinsic evidence.
3. Preliminary Hearings: Plea in Abatement. A plea in abatement is used to chal-
lenge the sufficiency of the evidence at a preliminary hearing.
4. Plea in Abatement: Probable Cause: Evidence: Verdicts. To resist a challenge
by a plea in abatement, the evidence received by the committing magistrate need
show only that a crime was committed and that there is probable cause to believe
that the accused committed it. The evidence need not be sufficient to sustain a
verdict of guilty beyond a reasonable doubt.
5. Criminal Law: Evidence: Police Officers and Sheriffs. The crime of tampering
with physical evidence, as defined by Neb. Rev. Stat. § 28-922(1)(a) (Reissue
2008), does not include mere abandonment of physical evidence in the presence
of law enforcement.
6. Criminal Law: Statutes. A fundamental principle of statutory construction
requires that penal statutes be strictly construed.
7. Statutes: Legislature: Appeal and Error. In reading a statute, a court must
determine and give effect to the purpose and intent of the Legislature as ascer-
tained from the entire language of the statute considered in its plain, ordinary, and
popular sense.
8. Criminal Law: Evidence. To “conceal” or “remove” physical evidence, within
the meaning of Neb. Rev. Stat. § 28-922(1)(a) (Reissue 2008), is to act in a way
that will prevent it from being disclosed or recognized.
Appeal from the District Court for Hall County: William t.
Wright, Judge. Exception overruled.
Gail A. VerMaas and Lynelle D. Homolka, Deputy Hall
County Attorneys, for appellant.
constitutional rights and would not entitle him to postconvic-
tion relief. We therefore affirm the court’s denial of postcon-
viction relief without an evidentiary hearing.
affirmed.
180 	278 NEbRASkA REpoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Gerard 	A. 	piccolo, 	Hall 	County 	public 	Defender, 	for
appellee.
heavicaN, 	c.J., 	Wright, 	coNNolly, 	gerrard, 	StephaN,
mccormack, and miller-lermaN, JJ.
gerrard, J.
James A. Lasu was charged with tampering with physical
evidence1 after he attempted to discard a bag of marijuana, in
an apparent attempt to prevent a police officer from finding it
on his person. The question presented in this case is whether
an individual commits the offense of tampering with physical
evidence if he discards contraband without making an active
attempt to conceal or destroy it.
bACkGRouND
Eric olsen, a patrol officer with the Grand Island police
Department, testified that on November 24, 2007, he and
another officer responded to a report of an assault in the park-
ing lot of a gas station. After olsen had been there for about
10 minutes, Lasu and another person arrived. Lasu had a lac-
eration on his face and said he had been assaulted. The other
officer asked Lasu about a plastic bag that was sticking out
of Lasu’s pocket. Lasu removed the bag from his pocket, and
it contained a small amount of marijuana. Lasu gave olsen
the small bag of marijuana, then said he wanted to go to the
bathroom and also buy a pack of cigarettes. Lasu went into the
store, with olsen following.
olsen testified that as Lasu rounded the corner toward
the cigarettes, Lasu reached into his right cargo pocket and
removed another, larger bag of marijuana, which had not been
visible before. Lasu threw the bag into a large cardboard bin
of snack foods, and it landed on top. Lasu did not attempt to
conceal the bag in the bin. olsen immediately retrieved the bag
and arrested Lasu.
Lasu was charged by information with one count of posses-
sion of more than an ounce but less than a pound of marijuana
1 See Neb. Rev. Stat. § 28-922(1)(a) (Reissue 2008).
STATE v. LASu 	181
Cite as 278 Neb. 180

and one count of tampering with physical evidence. Section
28-922(1)(a) provides that a person commits the offense of
tampering with physical evidence if, believing that an official
proceeding is pending or about to be instituted, he “[d]estroys,
mutilates, conceals, removes, or alters physical evidence with
the intent to impair its verity or availability in the pending or
prospective official proceeding.”
Lasu filed a plea in abatement, which was submitted to the
district court on the record that had been made at a preliminary
hearing. The court found that Lasu did not “conceal” the mari-
juana, because he made no attempt to hide it in the bin into
which it had been thrown. The court also found that while Lasu
arguably “removed” the marijuana, the removal did not impair
its verity or availability. And the court reasoned that while Lasu
might have believed that an official proceeding was pending or
about to be instituted with respect to the assault or the small
bag of marijuana, he had no knowledge of any potential pro-
ceeding relating to the large bag of marijuana, because it had
not yet been discovered.
Finding the evidence insufficient to show that an offense had
been committed, the court sustained Lasu’s plea in abatement
and discharged him on the count of tampering with physical
evidence. The State filed notice of its intent to appeal, and
this error proceeding was docketed in the Nebraska Court of
Appeals.2 We moved the error proceeding to our docket pur-
suant to our authority to regulate the dockets of this court and
the Court of Appeals.3
ASSIGNMENTS oF ERRoR
The State assigns that the district court erred in sustaining
Lasu’s plea in abatement and discharging him on the charge of
tampering with physical evidence.
STANDARD oF REVIEW
[1] This case turns on the meaning of § 28-922(1)(a). The
meaning of a statute is a question of law, on which an appellate
2 See Neb. Rev. Stat. § 29-2315.01 (Reissue 2008).
3 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
182 	278 NEbRASkA REpoRTS

court has an obligation to reach an independent conclusion
irrespective of the decision made by the court below.4
ANALySIS
[2-4] This error proceeding arises from a plea in abatement.
A plea in abatement can be made when there is a defect in the
record which can be established only by extrinsic evidence.5
A plea in abatement is used to challenge the sufficiency of the
evidence at a preliminary hearing.6 To resist a challenge by a
plea in abatement, the evidence received by the committing
magistrate need show only that a crime was committed and that
there is probable cause to believe that the accused committed
it.7 The evidence need not be sufficient to sustain a verdict of
guilty beyond a reasonable doubt.8
In this case, there is no question that Lasu was the individual
who committed the allegedly criminal act. Therefore, the issue
is simply whether the evidence was sufficient to show that
Lasu committed the crime of tampering with physical evidence.
Section 28-922(1) provides:
A person commits the offense of tampering with physical
evidence if, believing that an official proceeding is pend-
ing or about to be instituted and acting without legal right
or authority, he:
(a) Destroys, mutilates, conceals, removes, or alters
physical evidence with the intent to impair its verity
or availability in the pending or prospective official
proceeding . . . .
It is not disputed that Lasu was without legal right or author-
ity to dispose of physical evidence and that the marijuana
4 See State v. Arterburn, 276 Neb. 47, 751 N.W.2d 157 (2008).
5 See, Neb. Rev. Stat. § 29-1809 (Reissue 2008); State v. Loyd, 269 Neb.
762, 696 N.W.2d 860 (2005).
6 See, State v. Hill, 255 Neb. 173, 583 N.W.2d 20 (1998); State v. Lehman,
203 Neb. 341, 278 N.W.2d 610 (1979); State v. Franklin, 194 Neb. 630,
234 N.W.2d 610 (1975).
7 See State v. Bottolfson, 259 Neb. 470, 610 N.W.2d 378 (2000).
8 Id.
STATE v. LASu 	183
Cite as 278 Neb. 180

was “physical evidence” within the meaning of the statute.9
And we do not agree with the district court’s conclusion that
the evidence was insufficient to show that Lasu believed an
official proceeding was about to be instituted. It is reasonable
to infer that Lasu threw away his marijuana because he was
afraid of being arrested and searched—in fact, it is hard to
imagine another reasonable explanation for his actions.10 It is
also apparent that Lasu did not destroy, mutilate, or alter the
evidence when he discarded it, or do anything that would affect
its verity.
The remaining question is whether, when Lasu discarded the
evidence, he concealed or removed it with the intent to impair
its availability. In that regard, courts considering effectively
identical statutory language have uniformly concluded that
when a defendant merely drops, throws down, or abandons
evidence in the presence of law enforcement, such conduct will
not sustain a conviction for tampering with physical evidence.11
Those courts have drawn a distinction between concealing evi-
dence and merely abandoning it.12 It has also been noted that
if the felony offense of tampering with evidence is extended
to circumstances such as these, it would apply to practically
any person in possession of contraband who took steps to pre-
vent it from being discovered.13 This would have the effect of
9 See § 28-922(2).
10 See, e.g., Timberlake v. U.S., 758 A.2d 978 (D.C. 2000); Lumpkin v. State,
129 S.W.3d 659 (Tex. App. 2004).
11 See, In re Juvenile 2003-187, 151 N.H. 14, 846 A.2d 1207 (2004); Com.
v. Delgado, 544 pa. 591, 679 A.2d 223 (1996); Evans v. State, 997 So. 2d
1281 (Fla. App. 2009); In re M.F., 315 Ill. App. 3d 641, 734 N.E.2d 171,
248 Ill. Dec. 463 (2000); Hollingsworth v. State, 15 S.W.3d 586 (Tex. App.
2000); Vigue v. State, 987 p.2d 204 (Alaska App. 1999); State v. Sharpless,
314 N.J. Super. 440, 715 A.2d 333 (1998); State v. Patton, 898 S.W.2d
732 (Tenn. Crim. App. 1994). See, also, State v. Jones, 983 So. 2d 95 (La.
2008) (collecting cases).
12 See, Delgado, supra note 11; Evans, supra note 11; Patton, supra note
11.
13 See, e.g., Delgado, supra note 11; Vigue, supra note 11; Sharpless, supra
note 11; Patton, supra note 11.
184 	278 NEbRASkA REpoRTS

converting misdemeanor possession crimes into felonies, with-
out a clear legislative directive to do so.14
[5-8] We find those courts’ reasoning to be persuasive,
and likewise hold that the crime of tampering with physi-
cal evidence, as defined by § 28-922(1)(a), does not include
mere abandonment of physical evidence in the presence of
law enforcement. In reaching that conclusion, we are mindful
of the “fundamental principle” of statutory construction that
requires penal statutes to be strictly construed.15 And in reading
a statute, a court must determine and give effect to the purpose
and intent of the Legislature as ascertained from the entire
language of the statute considered in its plain, ordinary, and
popular sense.16 To “conceal” or “remove” physical evidence,
in this context, is to act in a way that will prevent it from being
disclosed or recognized.17 We decline to extend that statutory
language to cover circumstances in which the evidence at issue
was made more apparent, not less.
In that respect, this situation is easily distinguishable from
cases in which a defendant’s method of disposing of evidence
would also have the effect of making its recovery impossible—
for instance, swallowing drugs,18 throwing them into a drain,19
or scattering powder cocaine out the window of a speeding
car.20 Nor is this a case in which the defendant placed evidence
where it was unlikely to be discovered.21
Instead, Lasu placed the evidence where it was quite likely
to be discovered, even if he hoped that it might be less asso-
ciated with him. It is important not to confuse his intentions
with his physical actions.22 Even if Lasu meant to make it more
14 See id.
15 State v. Hamik, 262 Neb. 761, 769, 635 N.W.2d 123, 130 (2001).
16 State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006).
17 See In re Juvenile 2003-187, supra note 11.
18 See, Timberlake, supra note 10; Lumpkin, supra note 10.
19 See Hayes v. State, 634 So. 2d 1153 (Fla. App. 1994).
20 See State v. Mendez, 175 N.J. 201, 814 A.2d 1043 (2002).
21 See State v. Daoud, 158 N.H. 334, 965 A.2d 1136 (2009).
22 See, In re Juvenile 2003-187, supra note 11; In re M.F., supra note 11.
STATE v. LASu 	185
Cite as 278 Neb. 180

difficult to find the contraband and connect it to him, he did
not remove it from the scene of the possessory offense, nor
did he actually conceal it when he abandoned it.23 He made the
evidence easier to find, even if it was not found on him. All
Lasu attempted to conceal was the fact of his possession of the
evidence—not the evidence itself.
And we note that the possessory offense with which Lasu
was charged, possession of more than an ounce but less than a
pound of marijuana, was at the time of the offense a Class IIIA
misdemeanor, punishable by a maximum of 7 days’ imprison-
ment, a $500 fine, or both.24 Tampering with physical evidence,
however, is a Class IV felony, punishable by a maximum of
5 years’ imprisonment, a $10,000 fine, or both.25 It would be
contrary to our basic principles of statutory construction, and
to common sense, to conclude that a misdemeanor possession
of marijuana would become a Class IV felony because the
defendant drops the contraband in plain view.
In the absence of a clear legislative directive that the crime
of tampering with evidence extends to circumstances such as
these, we conclude that it does not. Lasu may have abandoned
physical evidence, intending to prevent it from being found on
his person—but he neither concealed nor removed it from the
scene of the crime, nor did he do anything that would prevent
its recovery. Therefore, the district court correctly concluded
that Lasu did not violate § 28-922(1)(a).
CoNCLuSIoN
The evidence was not sufficient to establish that Lasu com-
mitted the crime of tampering with physical evidence, and
the district court correctly granted his plea in abatement. The
State’s exception to that ruling is overruled.
exceptioN overruled.
23 See id.
24 See Neb. Rev. Stat. §§ 28-416(11) (Cum. Supp. 2006) and 28-106 (Reissue
2008).
25 See § 28-922(3) and Neb. Rev. Stat. § 28-105 (Cum. Supp. 2002).
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