         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMSC-032

Filing Date: June 23, 2010

Docket No. 31,745

STATE OF NEW MEXICO,

       Plaintiff-Petitioner,

v.

CLARENCE JACKSON,

       Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
William A. Sanchez, District Judge

Gary K. King, Attorney General
Martha Anne Kelly, Assistant Attorney General
Santa Fe, NM

for Petitioner

Robert E. Tangora, L.L.C.
Robert E. Tangora
Santa Fe, NM

for Respondent
                                        OPINION

BOSSON, Justice.

{1}     Interpreting New Mexico’s tampering with evidence statute, NMSA 1978, § 30-22-5
(2003), our Court of Appeals held that Defendant Clarence Jackson must have tampered with
evidence of a separate, underlying crime, as opposed to evidence of a mere probation
violation, and overturned his conviction. We analyze the wording, purpose, and history of
our tampering statute, and reach a different conclusion. We hold that the crime of tampering
with evidence is complete when the accused commits an act of tampering with the requisite
specific intent to prevent the apprehension, prosecution or conviction of any person,
regardless of whether the accused’s objective is a separate crime or whether a separate

                                             1
criminal investigation ever exists or could exist. Accordingly, we reverse the Court of
Appeals and uphold the tampering conviction.

BACKGROUND

{2}     Defendant was charged with a single count of tampering with evidence, in violation
of Section 30-22-5(B)(4). For purposes of his motion to dismiss the indictment, Defendant
stipulated to the following facts.

{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 presumably clean urine hidden in his pants. Noting that the urine specimen was
not warm, the probation officer became suspicious and questioned Defendant who denied
he was hiding anything. As Defendant was leaving the restroom, however, the bottle of
urine fell from Defendant’s pants and rolled on the floor. Defendant then admitted to the
probation officer his attempt to provide a false urine sample.

{4}     The grand jury returned an indictment for tampering with evidence, charging that
Defendant “did change, hide, place or fabricate a piece of physical evidence; to wit: a bottle
of urine . . .; and did so to prevent the apprehension, prosecution or conviction of [himself],
contrary to . . . Section 30-22-5(B)(4).” Defendant filed a Foulenfont motion1 to dismiss the
indictment, arguing as a matter of statutory interpretation that the tampering statute only
applies when the accused tampers with evidence of a separate, underlying crime. See State
v. Foulenfont, 119 N.M. 788, 895 P.2d 1329 (Ct. App. 1995). Providing a false urine sample
to his probation officer may be a probation violation, Defendant asserted, but not an
independent crime.

{5}    The district court denied Defendant’s motion to dismiss the indictment, stating:

       This Court does agree with the [S]tate that [Defendant] did provide a sample;
       in doing so, he tampered. He interfered with the administration of justice.
       He was trying to avoid his own prosecution. And I think that . . . falls within
       the meaning of tampering with evidence as it is set forth in our statute.

Defendant entered a conditional guilty plea, reserving the right to challenge his indictment
in this appeal. Accepting the plea for violation of Section 30-22-5(B)(4), the court sentenced
Defendant to 18 months of supervised probation.

{6}    On appeal, the Court of Appeals reversed, agreeing with Defendant that the


       1
          Foulenfont permits the accused to file a pretrial motion to challenge whether the
facts alleged in the information or indictment, if proven, would constitute a crime as set forth
in the applicable criminal statute. 119 N.M. at 790, 895 P.2d at 1331.

                                               2
tampering statute “reaches only conduct which interferes with the investigation or
prosecution of a crime.” State v. Jackson, 2009-NMCA-068, ¶ 11, 146 N.M. 563, 212 P.3d
1117. The Court of Appeals concluded that the indictment should have been dismissed
because the State had failed to prove or allege that Defendant had interfered with the
investigation of a separate, underlying crime, and thus had failed to satisfy an essential
element of the offense. Id. ¶ 12. We granted the State’s petition for certiorari to determine
whether Defendant’s stipulated conduct, admitted for purposes of his plea, falls within the
parameters of the tampering statute. We review this question of statutory interpretation de
novo. Cooper v. Chevron U.S.A., Inc., 2002-NMSC-020, ¶ 16, 132 N.M. 382, 49 P.3d 61.

DISCUSSION

The Tampering Statute Does Not Require Proof of a Separate Underlying Crime

{7}      When called upon to interpret a statute, we look to the language and purpose of the
statute to ascertain legislative intent. See State ex rel. Helman v. Gallegos, 117 N.M. 346,
352, 871 P.2d 1352, 1358 (1994). Section 30-22-5 (hereinafter “tampering statute”),
provides, in full:

               A.      Tampering with evidence consists of 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.
               B.      Whoever commits tampering with evidence shall be punished
       as follows:
                       (1)     if the highest crime for which tampering with evidence
       is committed is a capital or first degree felony or a second degree felony, the
       person committing tampering with evidence is guilty of a third degree felony;
                       (2)     if the highest crime for which tampering with evidence
       is committed is a third degree felony or a fourth degree felony, the person
       committing tampering with evidence is guilty of a fourth degree felony;
                       (3)     if the highest crime for which tampering with evidence
       is committed is a misdemeanor or a petty misdemeanor, the person
       committing tampering with evidence is guilty of a petty misdemeanor; and
                       (4)     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.

Defendant was specifically charged under Section 30-22-5(B)(4) of the tampering statute.

{8}    The first part of the tampering statute, Section (A), sets forth the elements of the
offense. The actus reus is defined as “destroying, changing, hiding, placing or fabricating
any physical evidence.” Section (A) also provides for two alternative mental states that
could support a tampering charge: intent to prevent apprehension, prosecution, or

                                             3
conviction; or, intent to throw suspicion of the commission of a crime upon another.

{9}     There is no question that Defendant’s stipulated conduct—falsifying his urine
sample—satisfies the actus reus portion of the statute. The sole issue before us is whether,
as an essential element of the tampering statute, the State had to allege that Defendant
tampered with evidence of an identifiable, underlying crime. As explained in this Opinion,
we conclude that the clear language of the statute makes tampering a specific intent crime,
independent of any result or attendant circumstance. The crime of tampering with evidence
is complete the moment the accused commits the prohibited act with the requisite mental
state, regardless of whether any subsequent police investigation does or even could
materialize.

{10} The purpose of the tampering statute is to protect the integrity of the criminal justice
system. Tampering with evidence is uniquely offensive under the criminal code because
when one acts intentionally to destroy, change, hide, place or fabricate physical evidence,
that person seeks to deprive the criminal justice system of information. Lack of information
can, in turn, deprive the justice system of an opportunity to establish guilt or innocence, or
even to learn about the criminal or benign nature of someone’s conduct. Similarly, when one
acts intentionally to throw suspicion of the commission of a crime upon another, that person
seeks through deception to direct the forces of the criminal justice system against a false
target. If successful, these actions can have grave consequences on the administration of
justice far beyond the contours of any specific crime.

{11} The tampering statute does not require proof of any result beyond the actus reus—the
act of tampering. The State need not prove, for instance, that the accused actually avoided
apprehension, prosecution or conviction, or that suspicion was actually cast upon another.
Rather, the tampering statute only requires proof that such was the accused’s subjective
intent when he acted to destroy, change, hide, place or fabricate physical evidence. We
caution, however, that the state must come forward with sufficient evidence from which the
jury can infer both an overt act and the accused’s subjective, specific intent. See State v.
Silva, 2008-NMSC-051, ¶ 18, 144 N.M. 815, 192 P.3d 1192 (“[A]bsent both direct evidence
of a defendant's specific intent to tamper and evidence of an overt act from which the jury
may infer such intent, the evidence cannot support a tampering conviction.”).

{12} Defendant cites several cases in support of his interpretation that tampering requires
proof of an underlying crime. We find these cases unpersuasive. In State v. Duran, the
police were investigating a murder, and the accused was charged with tampering because the
police were unable to locate the murder weapon. 2006-NMSC-035, ¶ 13, 140 N.M. 94, 140
P.3d 515. We stated that to uphold the conviction for tampering “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.’” Id. ¶ 14. The Court of Appeals construed our holding in Duran as a general
pronouncement on the required elements of tampering—that there be an underlying police
investigation with which the accused interferes. See Jackson, 2009-NMCA-068, ¶ 7. But

                                              4
we intended no such categorical conclusion.

{13} Duran was simply an application of the tampering statute to the specific facts in that
case, 2006-NMSC-035, ¶ 14, which included an active police investigation into a possible
murder and the absence of the murder weapon. As a practical matter, in most circumstances
the act of tampering will involve a police investigation into an identifiable underlying crime.
This might explain the Court of Appeals’ reliance on Duran, and its observation that “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.” Jackson,
2009-NMCA-068, ¶ 11.

{14} The Court’s observation is likely true; it is also irrelevant. Nothing in Section (A)
limits tampering to circumstances where there is a separate, identifiable crime. The mens rea
portion of the statute does cover intentional conduct which, by its nature, aims to prevent
identification of an underlying offense or to obstruct an investigation. But nothing in the
statute makes that a prerequisite. In State v. Arellano, the Court of Appeals correctly
observed that the intent requirements of the tampering statute “can be met regardless of
whether a crime has in fact been committed and regardless of any belief or knowledge by
the police concerning crimes or suspected crimes, or cause by the police to apprehend an
individual.” 91 N.M. 195, 196, 572 P.2d 223, 224 (Ct. App. 1977).

{15} In Arellano, the police were investigating what was either homicide or suicide; the
gun had been wiped clear of fingerprints leaving the police unable to determine who held
the gun when the victim was shot or whether a crime had been committed at all. The Court
of Appeals made clear that the crime of tampering “does not depend upon whether
[homicide] in fact occurred, or upon the knowledge or belief of the police.” Id. at 197, 572
P.2d at 225. The crime of tampering occurred before the police had any knowledge at all;
it occurred when the accused committed the necessary act with the necessary intent.

{16} We agree. As the statute intends, the proper focus should be on the accused’s
subjective, specific intent to blind or mislead law enforcement, regardless of whether his
objective is ill-conceived, ultimately unsuccessful, or pertains to a separate criminal
investigation. See State v. Mendez, 785 A.2d 945, 954 (N.J. Super. Ct. App. Div. 2001)
(upholding tampering conviction where the defendant held a bag of white, powdery
substance out the window of a moving car while being chased by police, thereby destroying
the only evidence of a possible underlying crime); see also Anderson v. State, 996 So. 2d
256, 257 (Fla. Dist. Ct. App. 2008) (per curiam) (upholding conviction where the accused
threw something into a urinal upon being confronted by police in a bathroom, establishing
prima facie case of tampering with evidence, even though the substance turned out not to be
contraband).

{17} Several other states have specific intent statutes similar to ours, and their courts have
interpreted those statutes in a manner consistent with our interpretation today. See Jamie S.
Gorelick et al., Destruction of Evidence § 5.8, at 192 (1989) (“Georgia, Illinois, Iowa,

                                              5
Louisiana, Maine, New Jersey, New Mexico, and Pennsylvania . . . require only a specific
intent to hinder the apprehension or punishment of a criminal.”). For example, the Illinois
statute provides: “A person obstructs justice when, with intent to prevent the apprehension
or obstruct the prosecution or defense of any person, he knowingly commits any of the
following acts: . . . Destroys, alters, conceals or disguises physical evidence, plants false
evidence, furnishes false information . . . .” 720 Ill. Comp. Stat. 5/31-4 (1998). In People
v. Smith, the defendant swallowed what police thought to be contraband. 786 N.E.2d 1121
(Ill. App. Ct. 2003). Applying the obstruction statute, the Illinois appellate court held that
“the fact that an obstruction of justice is successful, the fact that it prevents the prosecution
of the underlying offense, does not prevent the prosecution of the obstruction charge.” Id.
at 1125-26; see also Phillips v. State, 530 S.E.2d 1, 2 (Ga. Ct. App. 2000) (allowing jury
inference of intent to prevent apprehension or obstruct prosecution, despite acquittal on
possession charge). As these cases illustrate, when the language of the statute focuses on
the specific intent of the accused, the state need not allege any underlying crime to seek a
conviction for tampering with evidence.

{18} Finally, the fact that Defendant could have been apprehended for his conduct is
further persuasive evidence that he possessed the requisite mental state under the tampering
statute. Certainly one can be apprehended, prosecuted, or convicted for committing a crime.
But while one can only be prosecuted or convicted for some underlying crime, a person can
be apprehended even when no crime is charged. See Black’s Law Dictionary (rev. 4th ed.
1968) (defining “apprehend” as “[t]o take hold of . . . to take a person on a criminal process;
to seize; to arrest”); see also Black’s Law Dictionary (rev. 8th ed. 2004) (defining
“apprehension” as “[s]eizure in the name of the law”). The Legislature’s use of the word
“apprehension” evinces its intent to reach obstructive conduct beyond that which the accused
believes might result in prosecution or conviction.

{19} We also observe that Defendant’s actions to conceal the true content of his urine
could have resulted in criminal sanctions, including the initial apprehension by law
enforcement. See NMSA 1978, § 31-21-15(A)(1) (1989) (“At any time during probation .
. . the court may issue a warrant for the arrest of a probationer for violation of any of the
conditions of release. The warrant shall authorize the return of the probationer to the
custody of the court or to any suitable detention facility designated by the court.”). A
probation violation may not be a crime in itself, see State v. Foster, 1998-NMCA-147, ¶ 10,
125 N.M. 830, 965 P.2d 949, but it commonly results in the court enforcing a criminal
sentence: the sentence originally imposed but suspended in lieu of probation. In this case,
Defendant could have been apprehended and incarcerated for all or a part of his remaining
sentence for violating probation,2 and it was reasonable for the jury to infer his intent to


        2
         Defendant was on probation following a 2006 conviction for the felony of issuing
or transferring. It appears that his sentence in that case was running concurrently with his
conviction in another case for nine separate traffic offenses and one count of tampering with
evidence.

                                               6
avoid this consequence. While Defendant’s subjective fear of apprehension does not depend
on whether such fear is justified by the law, the fact that it was in this case is simply further
and persuasive evidence that Defendant’s subjective intent satisfied the mens rea portion of
the tampering statute.

The History of Recent Changes to the Tampering Statute Supports the State

{20} Defendant looks to the “indeterminate crime” provision, Section 30-22-5(B)(4) of
the statute, which the Court of Appeals also found persuasive. As quoted earlier, Section (B)
establishes levels of punishment depending on the degree of crime “for which tampering
with evidence is committed.” Section (B)(4) then makes it a fourth degree felony “if the
highest crime for which tampering with evidence is committed is indeterminate.”

{21} This language expresses a legislative intent to equate the gravity of the tampering
with the level of the underlying crime, if any. However, from that same language Defendant
would have us infer a legislative intent to require an underlying crime for tampering—if not
in Section (A), which defines tampering, then in Section (B), which prescribes the different
levels of punishment. While we acknowledge Defendant’s observation that each of Section
(B)’s provisions contain the word “crime,” the inference he draws from Section (B)(4) goes
too far. Drawing on the history of the tampering statute for guidance, we conclude that the
Legislature included the “indeterminate crime” provision, Section 30-22-5(B)(4), to punish
acts of tampering with evidence where no underlying crime could be identified.

{22} Prior to a 2003 amendment which codified Section (B) in its current form, the first
part of the tampering statute read exactly as the current Section (A), setting forth the actus
reus and mens rea of the offense of tampering with evidence.3 The second part of the statute
stated simply that “[w]hoever commits tampering with evidence is guilty of a fourth degree
felony.” See § 30-22-5 (2002). Under that version of the statute, one who destroyed a
murder weapon, for example, was subject to the same punishment as one who destroyed a
small quantity of marijuana. It was all a fourth degree felony, regardless of the
consequences to the criminal justice system.

{23} At Defendant’s hearing on his motion to dismiss, defense counsel posited that the
Legislature might have attempted to fix this “draconian” measure with the 2003 amendment.
Indeed, the 2003 amendment did correct this perceived inequity by establishing a graded
scale that imposes a more severe punishment on one who tampers with evidence of a first
degree felony, than on one who tampers with evidence of a mere misdemeanor. See § 30-22-
5(B)(1)-(4).



        3
       The previous version of the tampering statute was enacted in 1963 and remained
unchanged until the 2003 amendment. See NMSA 1953, § 40A-22-5 (Vol. 6, Repl.); 1963
N.M. Laws, ch. 303, § 22-5.

                                               7
{24} Important to our analysis, Defendant’s conduct in this very case—concealing
evidence of a potential probation violation—would have constituted tampering with
evidence during the years prior to 2003. As we have explained, the language of Section (A),
which remains unchanged, has never required an underlying crime. Prior to 2003, tampering
was a fourth degree felony without any reference to the effect of tampering on an underlying
crime; it was that way for 40 years (1963-2003). See § 40A-22-5; 1963 N.M. Laws, ch. 303,
§ 22-5.

{25} The Legislature was not writing on a blank slate in 2003. Assuming, therefore, that
Defendant’s conduct—tampering with evidence of a probation violation—would always
have been a crime during those four decades, we must inquire whether there is any evidence
that the 2003 Legislature intended, in effect, to de-criminalize prior penal conduct. What
evidence is there that the Legislature intended to narrow the scope of the tampering statute
by requiring, for the first time in 40 years, a nexus with a separate, underlying crime? We
find no such evidence, and none has been directed to us. Clearly, the Legislature intended
a punishment more proportional to the gravity of what is being concealed—murder versus
a mere misdemeanor—which makes for a tougher statute overall. There is no indication the
Legislature intended any change beyond that.

{26} In Section (B)(4), the 2003 Legislature also created an entirely new object of criminal
tampering: an “indeterminate” crime. Defendant argues that the term “indeterminate” is
ambiguous, reasoning that, since every crime is either a felony or a misdemeanor, no crime
is “indeterminate.” Defendant suggests that the term thus has no meaning, and urges us to
read it out of the tampering statute completely. In contrast, we understand the indeterminate
crime provision to describe the very conduct at issue in this case.

{27}      Under the current tampering statute, one who tampers with evidence of an
“indeterminate crime” is guilty of the intermediate punishment available under Section (B),
that of a fourth degree felony. Under the previous version of the statute, all violators were
subject to the same punishment—also a fourth degree felony. Only with the advent of the
graded scale came the necessity to devise a separate punishment for one who tampers with
evidence of an indeterminate crime, and the Legislature chose to punish such conduct at the
intermediate level.

{28} It is our duty, wherever possible, to give meaning to a statute’s provisions.
Construing a statute in a way that renders one of its provisions entirely superfluous should
be our last resort. See State v. Nick R., 2009-NMSC-050, ¶ 28, 147 N.M. 182, 218 P.3d 868
(“This Court has long held that we must avoid constructions of statutory amendments that
would render the change unnecessary and meaningless.” (internal quotation marks and
citation omitted)); Cromer v. J. W. Jones Constr. Co., 79 N.M. 179, 184, 441 P.2d 219, 224
(Ct. App. 1968) (“It is fundamental that a statute should be so construed that no word,
clause, sentence provision or part thereof shall be rendered surplusage or superfluous.”),
overruled on other grounds by Schiller v. Sw. Air Rangers, Inc., 87 N.M. 476, 476, 535 P.2d
1327, 1327 (1975). If one examines Section (B)(4) already assuming that an underlying

                                             8
crime is required, Defendant’s interpretation is inevitable. In contrast, our interpretation is
that the “indeterminate crime” provision reflects the reality that where evidence has been
tampered with, it may not always be possible to determine if there was an underlying crime,
or what that crime was. It is reasonable to assume, therefore, that the Legislature intended
Section (B)(4) as a kind of catch-all category, for acts of tampering which cannot necessarily
be tied to an identifiable crime.

{29} To illustrate, consider the crime of conspiracy, which requires combining with
another “for the purpose of committing a felony.” NMSA 1978, § 30-28-2(A) (1979). Proof
of an underlying target offense is an express element of the crime of conspiracy. Like the
tampering statute, the conspiracy statute includes gradations of punishment, depending on
the severity of the underlying target felony. Section 30-28-2(B). However, the conspiracy
statute does not include a grade of punishment corresponding to an “indeterminate crime.”
Id. This follows from the very nature of conspiracy, because if the State has not established
what crime Defendant has conspired to commit, it has not satisfied an express element of the
offense, and there is no need to determine the appropriate punishment. By contrast, the 2003
Legislature created a new category of punishment for indeterminate crimes, which is not
present in the conspiracy statute. It is only reasonable to assume that the Legislature
intended a different result from the conspiracy paradigm.

{30} Defendant’s interpretation can only be reconciled by reading out an express
provision of the statute—the indeterminate crime provision—while reading in a substantive
requirement: an underlying crime. The more prudent approach is to presume the Legislature
left out what it intended to leave out, and included what it intended to include. See Doe v.
State ex rel. Governor's Organized Crime Prevention Comm'n, 114 N.M. 78, 80, 835 P.2d
76, 78 (1992).

{31} Operating from this premise, the only consistent interpretation of the tampering
statute is that the Legislature included the “indeterminate crime” category to punish the
offense of tampering when it is “indeterminate” what crime, if any, was involved. We find
especially persuasive the fact that a separate punishment provision for “indeterminate”
crimes appears just once in the entire criminal code: at Section (B)(4) of the tampering
statute. This suggests that the Legislature included the “indeterminate crime” provision in
the tampering statute to address the unique nature of the crime of tampering with evidence.
We would be ill-advised to ignore the Legislature’s will. Faced with a choice between an
entirely reasonable interpretation of the tampering statute’s written words, and one that
deprives those words of any meaning whatsoever, we are obliged to elect the former.

CONCLUSION

{32} The district court correctly denied Defendant’s motion to dismiss the indictment. We
reverse the Court of Appeals and reinstate Defendant’s conviction and sentence for
tampering with evidence.


                                              9
{33}    IT IS SO ORDERED.

                                           ____________________________________
                                           RICHARD C. BOSSON, Justice

WE CONCUR:

____________________________________
CHARLES W. DANIELS, Chief Justice

____________________________________
PATRICIO M. SERNA, Justice

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

Topic Index for State v. Clarence Jackson, No. 31,745

AE                   APPEAL AND ERROR
AE-PA                Preservation of Issues for Appeal

CL                   CRIMINAL LAW
CL-CS                Conspiracy
CL-CG                Criminal Law, General
CL-OJ                Obstructing Justice
CL-SI                Specific Intent
CL-TM                Tampering
CL-TE                Tampering with Evidence

CA                   CRIMINAL PROCEDURE
CA-AT                Arrest
CA-EO                Elements of Offense
CA-GP                Guilty Plea
CA-PP                Plea and Plea Bargaining
CA-PM                Post Conviction Proceedings
CA-PD                Pre-prosecution Diversion Act
CA-PR                Pre-sentence Evaluation
CA-SO                Separate Offense
CA-SF                Stipulations

EV                   EVIDENCE

                                          10
EV-DN   Destruction of Evidence
        See Also: EVIDENCE, Tampering with Evidence
EV-EG   Evidence, General
EV-TM   Tampering with Evidence
        See Also: EVIDENCE, Destruction of Evidence, CRIMINAL LAW,
        Tampering

ST      STATUTES
ST-AP   Applicability
ST-IP   Interpretation
ST-LI   Legislative Intent
ST-RC   Rules of Construction
ST-VA   Vagueness




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