March 23, 2009 – State of New Mexico v. Clarence Jackson, No. 28,107

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _March 23, 2009

NO. 28,107
STATE OF NEW MEXICO,
Plaintiff-A ppellee,
V.
CLARENCE JACKSON,
Defendant: A ppellant.
APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
William A. Sanchez, District Judge
Gary K. King, Attomey General

Santa Fe, NM
M. Anne Kelly, Assistant Attomey General

Albuquerque, NM

for Appellee

Robert E. Tangora, L.L.C.
Robert E. Tangora

Santa Fe, NM

for Appellant

OPINION
VANZI, Judge.
{1} 	The issue presented in this case is whether a person on probation who provides
a false urine sample may be convicted of tampering with evidence in violation of
NMSA 1978, Section 30-22-5(B)(4) (2003). Defendant moved to dismiss on grounds
that such conduct does not, by itself, constitute tampering with evidence. The district
court denied Defendant’s motion, and Defendant appeals. We reverse.
I. 	BACKGROUND
{2} 	Defendant was charged with tampering with evidence in violation of Section
30-22-5(B), and Defendant filed a motion to dismiss, arguing that his conduct did not
constitute tampering with evidence as a matter of law. The parties stipulated that the
following facts would be presented if the case went to trial.
{3} 	While on probation, Defendant was required to submit to random urinalyses.
Defendant reported to the probation office to provide a urine sample and brought with
him a bottle of clean urine hidden in his pants. 	Upon receiving the sample, the
probation officer became suspicious because the urine specimen was not warm. The
probation officer questioned Defendant, who denied he was hiding anything.
However, as Defendant was leaving the restroom, a bottle of urine fell from his pocket
and rolled on the floor. Defendant then admitted to the probation officer his attempt
to provide a false urine sample.

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{4} 	Defendant’s motion to dismiss asserted that the tampering with evidence statute
only reaches conduct which interferes with the investigation or prosecution of a crime,
and providing a false urine sample to his probation officer, without more, is only a
probation violation. The district court ruled that Defendant’s conduct falls within the
statute and denied Defendant’s motion to dismiss. 	Defendant then entered into a
conditional plea to tampering with evidence, reserving his right to appeal the denial
of his motion to dismiss.
II. 	DISCUSSION
{5} 	The parties dispute whether an essential element of Section 30-22-5(B) is that
the conduct interfere with the prosecution or investigation of a crime. The parties also
dispute whether the 2003 amendments to the statute evidence a legislative intent that
such an underlying crime is an essential element of the crime. 	These arguments
require us to construe the statute, and our review is de novo. 	See State v. Duhon,
2005-NMCA-120, ¶ 10, 138 N.M. 466, 122 P.3d 50.
A. 	Requirement of an Underlying Crime
{6} 	The State asserts, “Defendant acted intentionally to prevent apprehension or
prosecution of himself on a probation violation by passing off clean urine instead of
his own. On its face, the statute requires nothing more.” We reject this argument for
the following reasons.

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{7} 	The tampering statute was enacted to punish those who deprive the state of
evidence needed to investigate possible crimes. Section 30-22-5(A) defines tampering
with evidence as “destroying, changing, hiding, placing or fabricating any physical
evidence with intent to prevent the apprehension, prosecution or conviction of any
person or to throw suspicion of the commission of a crime upon another.” Initially,
we point out that the tampering with evidence statute is included in Article 22, entitled
“Interference with Law Enforcement.” Sections 30-22-1 to -27 (1963, as amended
through 2006). The plain language of the statute dictates that the Legislature intended
to criminalize actions that impede the efforts of law enforcement. In State v. Roybal,
115 N.M. 27, 34, 846 P.2d 333, 340 (Ct. App. 1992), we concluded that a conviction
for tampering requires active disruption by the defendant of the investigatory process.
Thus, in order to convict a defendant for tampering with evidence, we stated “there
must be sufficient evidence from which the jury can infer: (1) the specific intent of
the [d]efendant to disrupt the police investigation; and (2) that [the d]efendant actively
‘destroyed or hid physical evidence.’” State v. Duran, 2006-NMSC-035, ¶ 14, 140
N.M. 94, 140 P.3d 515. Intent can be inferred from an overt act or the conduct of a
defendant. 	Id.; see also State v. Silva, 2008-NMSC-051, ¶ 18, 144 N.M. 815, 192
P.3d 1192 (same).
{8} 	The State’s argument wholly ignores the requirement of an intent to disrupt a

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police investigation into an underlying criminal act. The two cases relied upon by the
State, State v. Arellano, 91 N.M. 195, 572 P.2d 223 (Ct. App. 1977), and People v.
Frayer, 661 P.2d 1189 (Colo. Ct. App. 1982), aff’d, 684 P.2d 927 (Colo. 1984), do not
support its position that Defendant in this case could be convicted on the basis of
“passing off clean urine instead of his own.”
{9} 	In Arellano, the defendant told police that the decedent had shot himself. The
police had no reason to arrest anyone at the time for any crime believing it was a
suicide. 91 N.M. at 196, 572 P.2d at 224. Police later learned that (1) the medical
examiner could not determine whether the death was a homicide or suicide, (2) the
defendant was alone in the car with the decedent when he was shot, or (3) the
defendant gave the gun to his brother who wiped it clean of fingerprints. Id. Thus,
the police were unable to determine who shot the gun. 	Id. at 197, 572 P.2d at 225.
In holding that there was sufficient evidence of an overt act from which the jury could
infer the defendant’s intent to tamper with evidence, we found that the applicability
of the statute does not depend on whether a crime in fact occurred or upon the
knowledge or belief of the police because the circumstances were consistent with the
statutory emphasis on the defendant’s conduct and intent. In other words, there was
substantial evidence that the defendant hid the pistol in order to prevent an official
proceeding or investigation into whether he murdered the decedent. Id.

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{10} 	The State’s reliance on Frayer also fails. The State argues that the Frayer court
upheld a conviction for tampering even though the defendant “was not hiding or
destroying [evidence] to cover up some other crime.” The State misreads the facts and
holding in that case. In Frayer, a pharmacist suspected a phoned-in prescription was
phony and alerted police that the defendant was on her way to the store to pick up the
narcotic. 	661 P.2d at 1190. 	When the defendant walked out of the store, a police
officer was waiting and ordered her to stop. 	Id. 	The defendant tried to get into a
waiting car, but the officer grabbed her and told her she was under arrest. 	Id. 	The
defendant threw the bag containing the prescription toward the car. Id. The officer
retrieved the bottle, but the defendant grabbed it from him again and broke it. Id. As
we noted in Roybal, 115 N.M. at 33, 846 P.2d at 339, the circumstances in Frayer are
a typical example of the type of behavior that underlies a charge of tampering with
evidence because in that case it was “relatively easy to infer [the defendant’s] intent
to thwart the officer’s investigation” by destroying incriminating evidence of a crime.
Roybal, 115 N.M. at 33, 846 P.2d at 339.
{11} 	The State has not cited to any case—and we have found none—in which a
defendant was convicted of tampering with evidence which did not relate to an
underlying crime. Consequently, we hold that Section 30-22-5 reaches only conduct
which interferes with the investigation or prosecution of a crime.

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{12} 	We therefore address whether the State proved that Defendant’s conduct
interfered with the investigation or prosecution of a crime. 	In our analysis, we
assume, without deciding, that a probation officer is a police officer as this issue was
not raised by the parties. But see Vigil v. Martinez, 113 N.M. 714, 720, 832 P.2d 405,
411 (Ct. App. 1992) (holding that parole and probation officers are not law
enforcement officers under the New Mexico Tort Claims Act). 	The State argues,
“[t]here is no dispute that the urine was a mandatory condition of his probation,
intended to determine whether or not Defendant was using controlled substances.”
We agree that while not constituting sufficient evidence by itself, a positive drug test
is relevant, circumstantial evidence in a prosecution for possession of a controlled
substance. State v. McCoy, 116 N.M. 491, 497, 864 P.2d 307, 313 (Ct. App. 1993),
reversed on other grounds by State v. Hodge, 118 N.M. 410, 882 P.2d 1 (1994).
However, this record does not disclose Defendant’s conditions of probation. There
are fourteen standard conditions of probation that are typically imposed. N.M. Corr.
Dep’t 	Prob. 	& 	Parole 	Div., 	Standard 	Probation 	Supervision 	available 	at,
http://corrections.state.nm.us/parole/std_supv.html. One standard condition is that the
probationer “will not buy, sell, consume, possess or distribute any controlled
substances.” Id. Another condition is that the probationer “shall not possess, use or
consume any alcoholic beverages.” Id. 	A third standard condition is that the

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probationer will “provide urine or breath test specimens for laboratory analysis.” Id.
The record before us does not disclose whether one or both of the first two conditions
applied to Defendant’s probation. While possession of a controlled substance with the
requisite intent may constitute a crime, possessing, using or consuming an alcoholic
beverage by an adult is clearly not a crime. 	Thus, the record before us does not
establish that Defendant’s acts interfered with the investigation or prosecution of a
crime, and there is no proof that Defendant acted with the intent to disrupt police from
investigating whether he possessed illegal drugs.
{13} 	It can be readily seen that while some violations of probation may also
constitute violations of the criminal laws, not all probation violations fall into this
category. 	Examples of other standard conditions of probation which be may be
imposed, the violation of which do not constitute crimes, include reporting to the
probation officer as required; submitting reports to the probation officer as required;
promptly replying to any correspondence or communications received from the
probation office; getting permission from the probation officer before changing a job
or residence; and making an effort to obtain and hold employment. There are many
others. In the case before us the record only establishes that Defendant committed a
probation violation by providing a false urine sample to the probation officer. 	By
itself, providing a false urine sample is not a crime and there was no other evidence

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presented that Defendant committed the crime of possession of a controlled substance.
Without evidence that a violation of the criminal laws was being investigated or
prosecuted by the probation officer, there is no tampering with evidence.
I. 	Indeterminate Crime
{14} 	Prior to its 2003 amendment, the tampering statute provided that “[w]hoever
commits tampering with evidence is guilty of a fourth degree felony.” NMSA 1978,
§ 30-22-5 (1963, prior to 2003 amendment). As our Supreme Court has noted, that
version of the statute “made no distinction based on the severity of the underlying
crime, suggesting that the Legislature was not focused on the severity of the harm
caused by tampering.” State v. DeGraff, 2006-NMSC-011, ¶ 34, 139 N.M. 211, 131
P.3d 61.
{15} 	With the 2003 amendment, the Legislature changed the penalties for tampering
with evidence based on the severity of the underlying crime. For example, if one acts
to tamper with evidence in a capital, first degree, or second degree felony, the penalty
is increased from a fourth degree felony to a third. Section 30-22-5(B)(1). And, if the
crime is a third or fourth degree felony, the tampering penalty remains a fourth degree
felony. Section 30-22-5(B)(2). Further, the 2003 amendment prescribes that if the
crime is a misdemeanor or a petty misdemeanor, the tampering penalty is decreased
to a petty misdemeanor. Section 30-22-5(B)(3). In this case, the charge was under

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Section 30-22-5(B)(4), which provides that “if the highest crime for which tampering
with evidence is committed is indeterminate, the person committing tampering with
evidence is guilty of a fourth degree felony.”
{16} 	We note first that possession of a controlled substance is clearly not one of the
known 	indeterminate 	crimes. 	Nevertheless, 	the 	State 	argues 	that 	the 	term
“indeterminate” in Section 30-22-5(B)(4) compels a conclusion that the Legislature
intended to allow tampering with evidence without a corresponding underlying crime.
The statute does not define indeterminate, and there is no legislative history for us to
consider. Further, we are unable to conceive any circumstance where a crime can be
considered indeterminate given that all crimes in New Mexico are classified as either
misdemeanors or felonies of varying degrees. See NMSA 1978, § 31-18-13 (1993);
§ 31-18-15. The rule of lenity advises us that criminal statutes should be interpreted
in a defendant’s favor when insurmountable ambiguity persists regarding the intended
scope of a criminal statute. 	State v. Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853
(1994). In the absence of a clear indication that the Legislature intended to punish
conduct which interferes with the investigation or prosecution of something which is
not a crime, we apply the rule of lenity and do not presume that the Legislature
intended to criminalize such conduct.
B. 	No Crime Was Committed

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{17} 	In this case, the State provided no factual basis or argument to persuade us how
changing a urine sample, without more, constitutes a misdemeanor or felony offense.
The order of probation is not part of the record and there is no evidence of the facts
surrounding the terms of Defendant’s probation. As we have discussed, Defendant
could have been convicted of tampering with evidence if he destroyed, changed, hid,
placed, or fabricated a urine sample with the intent to prevent the apprehension,
prosecution, or conviction for the crime of possession of drugs. However, the State
did not make this argument to the district court nor did it do so in its brief on appeal.
Thus, we do not consider it further. See In re Aaron L., 2000-NMCA-024, ¶ 10, 128
N.M. 641, 996 P.2d 431 (explaining that a reviewing court will not consider issues not
raised in the district court). 	Accordingly, we hold that there was no evidence to
support Defendant’s conviction for tampering with evidence.
III. 	CONCLUSION
{18} 	We conclude that there was insufficient evidence to support the tampering with
evidence charge. Defendant’s conviction is reversed.
{19} 	IT IS SO ORDERED.
________________________________
LINDA M. VANZI, Judge
WE CONCUR:

MICHAEL E. VIGIL, Judge

TIMOTHY L. GARCIA, Judge

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