        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                            JAMES HATAWAY,
                               Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                              No. 4D13-4622

                              [July 22, 2015]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; William L. Roby, Judge; L.T. Case No. 12000970CFBXMX.

   Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public
Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.

GERBER, J.

   The defendant appeals his conviction for tampering with evidence. He
primarily argues that the trial court erred in denying his motion for
judgment of acquittal on that charge. We agree with the defendant’s
argument and reverse his conviction on that charge.

    Our standard of review is set forth in Pagan v. State, 830 So. 2d 792
(Fla. 2002): “In reviewing a motion for judgment of acquittal, a de novo
standard of review applies. . . . If, after viewing the evidence in the light
most favorable to the State, a rational trier of fact could find the existence
of the elements of the crime beyond a reasonable doubt, sufficient evidence
exists to sustain a conviction.” Id. at 803 (citations omitted).

   According to the defendant, after viewing the evidence in the light most
favorable to the State, a rational trier of fact could not find beyond a
reasonable doubt the existence of the elements of tampering with evidence
as provided in section 918.13(1)(a), Florida Statutes (2012). That section
states, in pertinent part:
      (1) No person, knowing that . . . an investigation by a duly
   constituted . . . law enforcement agency . . . is about to be
   instituted, shall:

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

   We agree with the defendant’s argument. Even if the defendant knew
that a law enforcement investigation was about to be instituted when he
tossed away the evidence at issue, the record does not show that he
altered, destroyed, concealed or removed the evidence with the purpose to
impair its verity or availability in such investigation.

   Initially, we recognize that “tossing evidence away in the presence of a
law enforcement officer does not, as a matter of law, constitute a violation
of the statute. Depending upon the circumstances, such an act could
amount to tampering or concealing evidence.” State v. Jennings, 666 So.
2d 131, 133 (Fla. 1995). “Each [tampering] case, accordingly, must be
decided on its facts.” Obas v. State, 935 So. 2d 38, 39 (Fla. 4th DCA 2006).

   On this case’s facts, however, the record does not indicate any intent
on the defendant’s part to alter or destroy the evidence rather than just
removing it from his person. Instead, the evidence which the defendant
tossed onto the side of a private road, during daylight hours, in view of law
enforcement, was found easily. Thus, the record was insufficient to result
in the defendant’s tampering conviction. See Costanzo v. State, 152 So.
3d 737, 738 (Fla. 4th DCA 2014) (“[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.”) (citation omitted); Obas, 935 So. 2d at 39 (“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.”).

    The defendant also appeals from the trial court’s denial of his motion
to correct sentencing error as to other charges for which he was sentenced.
We affirm without further discussion the trial court’s denial of the motion.




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  Affirmed in part, reversed in part.

DAMOORGIAN, J., and HAIMES, DAVID A., Associate Judge, concur.

                           *            *   *

  Not final until disposition of timely filed motion for rehearing.




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