Thomas v. State, 89-00776
| Decision Date | 28 June 1991 |
| Docket Number | No. 89-00776,89-00776 |
| Citation | 581 So.2d 993 |
| Parties | Earl Joseph THOMAS, Appellant, v. STATE of Florida, Appellee. 581 So.2d 993, 16 Fla. L. Week. D1714 |
| Court | Florida District Court of Appeals |
Geoffrey A. Foster, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Patricia Ann Ash, Asst. Atty. Gen., Miami, for appellee.
Earl Joseph Thomas was convicted by a jury of tampering with evidence, a third-degree felony, and resisting arrest without violence, a first-degree 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 investigate. The tipster had described each man by what he was wearing. He described the appellant as wearing a red, black, and white shorts outfit with drugs concealed in the front of his shorts.
The officers entered the bar and approached the appellant. One of them reached out to pat a bulge at the top of the shorts. The appellant told him that it was only marijuana, reached in, grabbed a plastic bag containing brown 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 defendant's act of tossing a small bag of cocaine away from his person while in the presence of arresting 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 the ground that the bag thrown by the appellant was never found. Our decision in Boice does not pivot upon a defendant's successful 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, whereas the appellant threw alleged contraband within the bar where he was arrested. Mere chance 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 tampering, then a nineteen year-old who threw a beer can from his car when being stopped by police would commit 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 section 918.13. We therefore reverse the appellant's conviction for tampering with evidence.
Furthermore, we find that the trial court erred in admitting a tape recording of the anonymous tip into evidence at trial. The trial court found that the recording was admissible under the business records exception to the hearsay rule pursuant to section 90.803(6)(a), Florida Statutes (1987). Although a report of the Lake Wales Police Department may constitute a business record if it...
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...Munroe v. State, 629 So.2d 263, 264 (Fla. 2d DCA 1993), Jones v. State, 590 So.2d 982, 983 (Fla. 1st DCA 1991), and Thomas v. State, 581 So.2d 993, 994 (Fla. 2d DCA 1991), the courts relied on Boice for the proposition that tossing evidence away in the presence of a law enforcement officer ......
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McKinney v. State
...out the window of his stopped car, while surrounded by police, did not commit tampering when the bag was recovered. In Thomas v. State, 581 So.2d 993 (Fla. 2d DCA 1991), we extended Boice to an investigatory stop in a bar when the defendant threw a plastic bag on the floor and tried to run.......
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...facts alleged in the information did not establish a prima facie case of guilt. To support his motion, Harper cited to Thomas v. State, 581 So.2d 993 (Fla. 2d DCA 1991), Jones v. State, 590 So.2d 982 (Fla. 1st DCA 1991), and Munroe v. State, 629 So.2d 263 (Fla. 2d DCA 1993), all of which ci......