       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT
                              July Term 2014

                         ANTHONY COSTANZO,
                             Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D13-3344

                           [December 3, 2014]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael A. Robinson, Judge; L.T. Case No. 12-
007314CF10A.

  Rhea P. Grossman of Rhea P. Grossman, P.A., Fort Lauderdale, for
appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Angela E. Noble,
Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

   Appellant was a detective at the Broward Sheriff’s Office. Following a
jury trial, he was acquitted of two charges and convicted of evidence
tampering. We reverse the tampering conviction because the State failed
to establish a violation of section 918.13, Florida Statutes (2013).

   The evidence tampering charge arose from appellant’s deletion of a
video from his work cellular phone. On January 20, 2012, a suspect in a
case made statements about an unrelated criminal case where the
defendants were two other officers, Koepke and Dodge, friends of
appellant. Appellant made a video of these statements with his phone. He
then texted the video to Koepke, showed the video to his supervisor, and
used his work e-mail account to send the video to the general counsel for
the Police Benevolent Association. Ten days later, appellant’s cell phone
was seized by an investigator with the State Attorney’s Office. The January
20 video could not be located on appellant’s phone and an expert
concluded that the video had been deleted.
  The January 20 video was ultimately recovered from two locations—
Koepke’s Sprint/Nextel account and the e-mail servers at the Broward
Sheriff’s Office. Both versions of the video were played for the jury.

   Both at the conclusion of the State’s case and after the defense rested,
appellant moved for a judgment of acquittal on the evidence tampering
count. After the jury verdict, he filed post-trial motions directed at the
evidence tampering conviction.

   Section 918.13, Florida Statutes (2013), provides in pertinent part:

      (1) No person, knowing that a criminal trial or proceeding or
      an investigation by a duly constituted prosecuting authority,
      law enforcement agency, grand jury or legislative committee
      of this state is pending or is about to be instituted, shall:

         (a) Alter, destroy, conceal, or remove any record,
         document, or thing with the purpose to impair its verity
         or availability in such proceeding or investigation . . . .

To establish a violation of the statute, “the State must prove a defendant
‘had knowledge of an impending investigation and destroyed evidence in
order to impair its availability for the investigation.’” State v. Major, 30 So.
3d 608, 609 (Fla. 4th DCA 2010) (quoting C.K. v. State, 753 So. 2d 617,
618 (Fla. 4th DCA 2000)). Appellant admitted he was “buddies” with
Koepke, so he knew that there was a pending investigation into the matter;
that was why he recorded the conversation in the first place. There is thus
no issue with the “knowledge” element of the crime. Appellant takes issue
with the second element—that he intentionally deleted the video from his
phone with the purpose to impair its availability for the investigation.

    We have held that a defendant’s equivocal conduct toward evidence is
insufficient to demonstrate the intent necessary for a section 918.13
violation; merely discarding evidence from one’s person, without more,
does not amount to a violation of the statute. “[T]he offense of tampering
is committed only when the defendant takes some action that is designed
to actually alter or destroy the evidence rather than just removing it from
his or her person.” E.I. v. State, 25 So. 3d 625, 627 (Fla. 2d DCA 2009).

   In Obas v. State, 935 So. 2d 38, 38 (Fla. 4th DCA 2006), for example,
the defendant emptied a pill container of crack cocaine rocks as police
approached. He tossed the container five feet away after police ordered
him to stop. Id. This Court reversed the defendant’s conviction for
tampering with evidence, stating:

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      We are unable, on these facts, to accept the state’s argument
      that defendant violated the statute. If defendant had dropped
      or thrown the items so that they could not have been retrieved,
      it would be another matter, like swallowing. In this case,
      however, where he merely dropped the cocaine rocks and
      tossed the container on the ground, and both were easily
      found, the evidence was insufficient. Otherwise a tampering
      conviction could be obtained whenever a suspect merely drops
      drugs on the ground.

Id. at 39.

    Similarly, in Evans v. State, 997 So. 2d 1281 (Fla. 4th DCA 2009), we
held that the trial court erred in denying a motion for judgment of acquittal
on a charge of tampering with evidence where the defendant threw a crack
cocaine rock onto sandy ground as officers approached for a stop. We held
that the fact the officers were unable to find the drugs due to the nature
of the surface of the ground did not demonstrate the necessary specific
intent to tamper with or conceal the evidence. Id. at 1284.

   Such equivocal conduct differs from that conduct that completely
destroys potential evidence, such as swallowing an object. See State v.
Jennings, 666 So. 2d 131, 133 (Fla. 1995); McKenzie v. State, 632 So. 2d
276, 277 (Fla. 4th DCA 1994) (holding that “swallowing a substance”
demonstrates the necessary intent to amount to a violation of section
918.13, just like “flushing it down a toilet”).

    In this case, after appellant recorded the video on his cell phone, he
showed it to his supervisor, texted it to Koepke, and e-mailed it to an
attorney for the Police Benevolent Association. As we know from videos
that have gone viral, texting or e-mailing a video is the antithesis of trying
to destroy it. In fact, with the assistance of technology, the video was
recovered from two separate locations. There was insufficient evidence of
appellant’s intent to violate the tampering statute. In addition, there was
insufficient evidence that the video was “destroy[ed]” within the meaning
of the statute; the statute does not criminalize deleting evidence existing
in the memory of a particular electronic device, particularly where such
evidence resides elsewhere in the electronic ether. The trial court’s denial
of appellant’s motion for judgment of acquittal was therefore erroneous.

   We reverse the conviction and remand to the circuit court with direction
to grant the motion for judgment of acquittal.

DAMOORGIAN, C.J., and MAY, J., concur.

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Not final until disposition of timely filed motion for rehearing.




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