IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

February 6, 2013 Session Heard at Nashville

STATE OF TENNESSEE v. LEDARREN S. HAWKINS

Appeal by Permission from the Court of Criminal Appeals

Circuit Court for Madison County

No. 09-253 Roy B. Morgan, Jr., Judge

No. W2010-01687-SC-R11-CD - Filed June 20, 2013

The defendant was convicted in the Circuit Court for Madison County of first degree murder

and tampering with physical evidence. On this appeal, the defendant seeks reversal of his

first degree murder conviction on the ground that the trial court declined his request for a jury

instruction on defense of a third person. He also seeks reversal of his evidence-tampering

conviction on the ground that his abandonment of the murder weapon did not amount to

tampering with physical evidence. The Court of Criminal Appeals upheld his convictions

and sentences. State v. Hawkins, No. W2010-01687-CCA-R3-CD, 2012 WL 543048 (Tenn.

Crim. App. Feb. 16, 2012). Based on this record, we have determined that the trial court

properly denied the defendant’s request for an instruction on defense of a third person.

However, we have also determined that the defendant did not tamper with physical evidence

in violation of Tenn. Code Ann. § 39-16-503(a)(1) (2010) by tossing the murder weapon over

a short fence where it could be easily observed and recovered. Accordingly, we affirm the

defendant’s conviction and sentence for first degree murder and reverse his conviction and

sentence for tampering with physical evidence.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal

Appeals Affirmed in Part and Reversed in Part

WILLIAM C. KOCH,JR.,J., delivered the opinion of the Court, in which GARY R. WADE, C.J.,

JANICE M. HOLDER, CORNELIA A. CLARK, and SHARON G. LEE, JJ., joined.

Joseph A. McClusky, Memphis, Tennessee, for the appellant, Ledarren Hawkins.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;

Sophia S. Lee, Senior Counsel; James G. Woodall, District Attorney General; Jody S.

Pickens, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION

I.

Ledarren Hawkins lived in Memphis and was a member of the Bloods gang. Because

several of his friends were enrolled at Lane College in Jackson, Tennessee, he decided to

visit the campus on January 27, 2009. In preparing for his trip, Mr. Hawkins packed a

number of items of red clothing. He also brought along “for protection” a 12-gauge, single1

shot Springfield Model 107 shotgun with silver duct tape on the grip and the barrel sawed

off.

On the evening of January 28, 2009, Mr. Hawkins and his friends drove to the Jackson

Family Fun Center, a sprawling facility housing a myriad of modern amusements, including

a bowling alley, a miniature golf course, and a karaoke lounge. Without his friends’

knowledge, Mr. Hawkins brought along his shotgun and hid it in his friend’s truck while the

remainder of the group entered the bowling alley.

While Mr. Hawkins and his friends were bowling, their use of gang signs associated

with the Bloods caught the attention of another group of bowlers who were members of a

rival gang called the Crips. The two groups exchanged some hostile epithets, and the dispute

spilled out into the Fun Center’s parking lot. When Mr. Hawkins came outside, he walked

to his friend’s truck to drive it closer to the crowd gathered in the parking lot. When he

emerged from the truck, he was carrying his shotgun. As Mr. Hawkins walked toward the

crowd, he leveled his shotgun at one of the fighters, nineteen-year-old Jerome Ellington, and

pulled the trigger. Mr. Hawkins did not know Mr. Ellington, who was unarmed.

Mr. Ellington staggered through the side door of the karaoke lounge with blood

gurgling from the gunshot wound in his chest. He collapsed behind the wet bar and was

never revived. Meanwhile, Mr. Hawkins sprinted across the parking lot toward the miniature

golf course. Mr. Hawkins tossed his shotgun over a short metal fence, where it landed near

the tenth hole of the miniature golf course, surrounded by a light dusting of snow.

The police arrived minutes after the shooting, which occurred around 10:20 p.m.

They began interviewing witnesses and even stopped and questioned Mr. Hawkins.

However, the police permitted Mr. Hawkins to leave with his friends. The police reviewed

the Fun Center’s security recordings and began a thorough search of the area.

When the Jackson Police Department’s crime scene technician arrived at the scene,

he found an officer standing guard over something near the northeast corner of the miniature

Members of the Bloods gang typically adorn themselves in red to advertise their affiliation.

1

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golf course. The fence around the miniature golf course was four feet tall with wide spaces

between the thin metal rails. When the technician approached the other officer, he saw Mr.

Hawkins’s shotgun lying on the snow in plain view, as can be seen in the following two

photographs taken on the night of the murder.

2

The record does not reveal precisely how much time elapsed before the authorities discovered the 2

shotgun. However, the technician photographed the shotgun and then collected and tagged it at 12:42 a.m.

on January 29, 2009.

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Information obtained at the scene led the police to Mr. Hawkins. Less than three

hours after the fatal shooting, the police found Mr. Hawkins hiding in a closet at a friend’s

apartment. They arrested him and charged him with the murder of Mr. Ellington. On May

4, 2009, a Madison County grand jury indicted Mr. Hawkins for first degree premeditated

murder in violation of Tenn. Code Ann. § 39-13-202 (2010) and tampering with evidence in

violation of Tenn. Code Ann. § 39-16-503 (2010).

Mr. Hawkins’s trial took place in the Circuit Court for Madison County from March

29 to March 31, 2010. The State presented twenty-four witnesses. The only witness for the

defense was Mr. Hawkins himself. Prior to trial, Mr. Hawkins’s counsel requested the trial

court to instruct the jury on both self-defense and defense of a third person. The trial court

postponed its decision on these requests until after Mr. Hawkins testified.

Mr. Hawkins testified that he was in his friend’s truck when the fight broke out and

that he was preparing to pick up his friends and leave. He also testified that, from inside the

truck, he saw a young man in a dark shirt retrieve something from a nearby car. He stated

that he feared for his friends because he thought the young man in the dark shirt had armed

himself with a gun. Accordingly, Mr. Hawkins parked the truck under the bowling alley’s

canopy and emerged holding his shotgun.

Mr. Hawkins testified that he intended to approach the melée and to fire a warning

shot to stop the fighting. However, he stated that he was suddenly gripped by fear when a

tall, muscular young man in a dark shirt – Mr. Ellington – approached him while appearing

to be reaching toward his waistband. Mr. Hawkins stated that, acting in self-defense, he

aimed his shotgun at Mr. Ellington and pulled the trigger. Mr. Hawkins also testified that

he “just took off running” after shooting Mr. Ellington because he did not know whether

someone else in the crowd might have a gun and a desire to retaliate. He explained that “I

was so shook up I couldn’t even think straight. All I was doing was running.” Mr. Hawkins

soon found himself on the other end of the miniature golf course, where he tossed his

shotgun over the fence.

The defense rested after Mr. Hawkins testified. At that point, the trial court granted

Mr. Hawkins’s motion for an instruction on self-defense but found no factual basis for

instructing the jury on defense of a third person. Thereafter, the jury convicted Mr. Hawkins

of first degree premeditated murder and evidence tampering. Mr. Hawkins received a life

sentence for the murder conviction and a concurrent three-year sentence for the tampering

conviction.

On appeal, Mr. Hawkins challenged the sufficiency of the evidence to support the

tampering conviction and the trial court’s denial of the jury instruction on defense of a third

person. He argued that he merely abandoned the shotgun without actually concealing it and

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that his use of the weapon was actually motivated by his concern for his friends. The Court

of Criminal Appeals found no error in the jury instructions and found that the evidence

supported Mr. Hawkins’stampering conviction. State v. Hawkins, No. W2010-01687-CCAR3-CD, 2012 WL 543048, at *14-16 (Tenn. Crim. App. Feb. 16, 2012). We granted Mr.

Hawkins permission to appeal. We agree with the Court of Criminal Appeals that the

evidence did not warrant a jury instruction on defense of a third person. However, based on

our interpretation of Tenn. Code Ann. § 39-16-503, we reverse the Court of Criminal

Appeals and vacate Mr. Hawkins’s conviction for tampering with physical evidence.

II.

We turn first to the trial court’s refusal to charge the jury on defense of a third person.

Mr. Hawkins asserts that the trial court erred by declining to give this charge because his

testimony reflects that he retrieved his shotgun from the truck and shot Mr. Ellington in an

effort to protect his friends, who were embroiled in a gang fight. We find little merit in this

argument.

A.

The question of whether the facts in a criminal case require the jury to be instructed

regarding a particular defense is a mixed question of law and fact. We review these

questions de novo, with no presumption of correctness. See State v. Rogers, 188 S.W.3d 593,

628-29 (Tenn. 2006); State v. Thacker, No. E2011-02401-CCA-R3-CD, 2012 WL 4078440,

at *8 (Tenn. Crim. App. Sept. 18, 2012) (No Tenn. R. App. P. 11 application filed). Errors

in jury instructions are generally subject to a “harmless error” analysis. State v. Williams,

977 S.W.2d 101, 104-05 (Tenn. 1998). However, when the jury instructions mislead the jury

as to the applicable law or fail to “fairly submit” the relevant legal issues, such as available

defenses, we hold such deficiencies to be prejudicial error. State v. Vann, 976 S.W.2d 93,

101 (Tenn. 1998).

B.

Self-defense is a complete defense against a murder charge. See 11 David L. Raybin,

Tennessee Practice: Criminal Practice and Procedure § 28:36, at 54 (rev. ed. 2008)

(hereinafter Criminal Practice and Procedure). To prevail on the theory of self-defense, a

defendant must show that he or she was “not engaged in unlawful activity” and was “in a

place where the person has a right to be.” Tenn. Code Ann. § 39-11-611(b)(1) (2010). In

addition, the use of deadly force in self-defense must be predicated on “a reasonable belief

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that there is imminent danger of death or serious bodily injury.” The danger must be “real,

3

or honestly believed to be real[,]” and “[t]he belief of danger [must be] founded on

4

reasonable grounds.” The defense of self-defense is generally not available if the defendant

5

provoked or consented to the danger.

6

In a manner similar to Tenn. Code Ann. § 39-11-611, Tenn. Code Ann. § 39-11-612

(2010) recognizes “defense of another.” The statute permits a person to use deadly force “to

protect a third person” when he or she “reasonably believes” that the third person would be

justified in using deadly force under Tenn. Code Ann. § 39-11-611 and that “the intervention

7

is immediately necessary to protect the third person.” The application of the right to defend

8

another should be “determined in the same fashion as the right of self-defense” under Tenn.

Code Ann. § 39-11-611. See Tenn. Code Ann. § 39-11-612 Sentencing Comm’n Cmts.; see

also 11 Criminal Practice and Procedure § 28:39, at 60. A person’s right to defend a third

party is no greater than the third party’s right to defend himself or herself. State v. Barnes,

675 S.W.2d 195, 196 (Tenn. Crim. App. 1984).

In criminal cases, trial courts have the duty, without request, to give proper jury

instructions as to the law governing the issues raised by the nature of the proceeding and the

evidence introduced at trial. State v. Dorantes, 331 S.W.3d 370, 390 (Tenn. 2011) (quoting

State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990)). This obligation extends to general

defenses, such as self-defense, defense of another, or defense of a habitation. See, e.g.,

9

Tenn. Code Ann. § 39-11-611(b)(2)(A). 3

Tenn. Code Ann. § 39-11-611(b)(2)(B). 4

Tenn. Code Ann. § 39-11-611(b)(2)(C). 5

Tenn. Code Ann. § 39-11-611(e)(1)-(2).

6

Tenn. Code Ann. § 39-11-612(1). 7

Tenn. Code Ann. § 39-11-612(2). 

8

Tennessee makes a technical distinction between general defenses and affirmative defenses. The 9

distinction is important because “affirmative defenses,” which are specifically labeled as such, (1) require

pre-trial notice, and (2) once “fairly raised” and submitted to the jury, must be proven by the defendant by

a preponderance of the evidence (rather than disproved by the State beyond a reasonable doubt). See Tenn.

Code Ann. §§ 39-11-203 (general defenses), -204 (affirmative defenses). Self-defense, defense of another,

duress, necessity, and mistake of fact are examples of general defenses. See State v. Bledsoe, 226 S.W.3d

349, 355-56 (Tenn. 2007) (duress); State v. Green, 995 S.W.2d 591, 604-06 (Tenn. 1998) (duress and

necessity); State v. Parker, No. M2009-02448-CCA-R3-CD, 2011 WL 51734, at *20 (Tenn. Crim. App. Jan.

6, 2011) (mistake of fact), perm. app. denied (Tenn. May 26, 2011); State v. Blackwood, No. W1999-01221-

(continued...)

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Morrison v. State, 212 Tenn. 633, 638, 371 S.W.2d 441, 443 (1963) (observing that the jury

could have misconstrued the rights of the defendant when the trial court failed to provide an

instruction on the general defense of defense of a habitation, even though the defendant had

not requested such a charge). A trial court’s refusal to grant a special instruction is error only

when the general charge does not fully and fairly state the applicable law. State v. Hanson,

279 S.W.3d 265, 280 (Tenn. 2009); Douglass v. State, 213 Tenn. 643, 646, 378 S.W.2d 749,

750 (1964).

A general defense,such as defense of another, need not be submitted to the jury unless

it is “fairly raised by the proof.” Tenn. Code Ann. § 39-11-203(c) (2010). The quantum of

proof necessary to fairly raise a general defense is less than that required to establish a

proposition by a preponderance of the evidence. To determine whether a general defense has

been fairly raised by the proof, a court must consider the evidence in the light most favorable

to the defendant and draw all reasonable inferences in the defendant’s favor. Whenever

admissible evidence fairly raises a general defense, the trial court is required to submit the

general defense to the jury. From that point, the burden shifts to the prosecution to prove

beyond a reasonable doubt that the defense does not apply. State v. Bledsoe, 226 S.W.3d at

355.

C.

In this case, the evidence fairly raised the possibility that Mr. Hawkins acted in selfdefense when he fired his shotgun at Mr. Ellington. The evidence did not, however, fairly

raise the possibility that, at the moment he fired the weapon, Mr. Hawkins believed that

pulling the trigger was “immediately necessary to protect [a] third person.” Tenn. Code Ann.

§ 39-11-612(2).

At trial, Mr. Hawkins consistently described his mental state – at the moment of

pulling the trigger – as one of self-defense. Mr. Hawkins testified he originally retrieved the

gun from the truck after the fight broke out because he was concerned for the safety of his

best friend, who was involved in the fight. Mr. Hawkins said he saw someone who

resembled Mr. Ellington take something out of a car, and he feared it was a weapon. He said

he planned to fire the gun into the air to scatter the crowd. However, as Mr. Hawkins

approached the melée, his attention shifted: “A big guy that was wearing black approached

me. I didn’t even see him coming. He just popped right in front of me. . . . He was reaching

like in his waist . . . like he was trying to get something.” Mr. Hawkins testified that he felt

(...continued) 9

CCA-R3-CD, 2000 WL 1672343, at *9-10 (Tenn. Crim. App. Nov. 2, 2000) (self-defense, necessity, mistake

of fact, and defense of another), perm. app. denied (Tenn. May 21, 2001). We encourage attorneys and

judges to refrain from blurring the distinction between general defenses and “affirmative” defenses.

-7-
threatened and afraid. He feared that Mr. Ellington was reaching for a gun, and that he was

about to become “a victim of a crime.” In response to his lawyer’s question, “Did you intend

to kill him,” Mr. Hawkins replied, “No, sir, just to protect myself.”

On cross examination, Mr. Hawkins again testified that hisintention in getting the gun

was to help his best friend. But he then testified that pulling the trigger

was just an honest mistake that was based on protecting myself.

. . . [P]rotection is self-defense. Protecting myself is . . . selfdefense. . . . And if you saying me protecting myself by pulling

this trigger is self-defense, yes, sir, I say I’m going for selfdefense. . . . Like I said, I was scared. I felt threatened, and he

was approaching me, and I have a gun in my hand, so my first

thought is – I mean, I’m protecting myself, protecting myself. .

. . All I thought was to protect myself. By the gun being in my

hand, the trigger was pulled. . . . I was scared.

Mr. Hawkins was the sole witness for the defense. After the defense rested, the trial

court held a colloquy concerning potential jury instructions and denied Mr. Hawkins’s

motion for an instruction on defense of a third person. In doing so, the court made a

distinction between the moment Mr. Hawkins retrieved the gun initially and the moment he

actually used the weapon. Concerning Mr. Hawkins’s motivations when he fired the gun,

the court noted:

[T]he defendant clearly testified that he was defending himself.

It was just to protect himself. . . . He used the words “concerned

about my friends” when he got out of the car, but that testimony

alone, being concerned about his friends, would not justify a

third-party defense claim. . . . There’s no ambiguity from his

own testimony or I would [rule] otherwise.

Having read the trial transcript, we agree with the trial court. The alpha and omega

of Mr. Hawkins’s defense was his own testimony that he shot Mr. Ellington in a moment of

fear to protect himself. The State presented evidence that Mr. Hawkins killed for more

vindictive reasons. No evidence presented at trial “fairly raised” the possibility that Mr.

Hawkins shot Mr. Ellington because he believed doing so was “immediately necessary” to

protect a third person. Mr. Hawkins was not entitled to a jury instruction on defense of

another.

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III.

Mr. Hawkins was also convicted of tampering with physical evidence in violation of

Tenn. Code Ann. § 39-16-503. He asserts on this appeal that the evidence regarding his

disposal of his shotgun does not support this conviction. We agree.

A.

Our role in reviewing a challenge to the sufficiency of the evidence is to “determine

whether ‘any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” State v. Cross, 362 S.W.3d 512, 523 (Tenn. 2012) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see also Tenn. R. App. P. 13(e). In

conducting this analysis, “we must afford the State the strongest legitimate view of the

evidence and any reasonable inferences that may be drawn from it.” State v. James, 315

S.W.3d 440, 455 (Tenn. 2010). A verdict of guilty replaces the defendant’s presumption of

innocence with a presumption of guilt. The defendant thus bears the burden of

demonstrating insufficiency of the evidence. State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011).

We apply the same standard of review to both circumstantial evidence and direct

evidence. Circumstantial evidence alone is sufficient to support a conviction, and the

circumstantial evidence need not exclude every reasonable hypothesis except that of guilt.

State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012); State v. Dorantes, 331 S.W.3d 370,

379-81 (Tenn. 2011).

This case also presents an issue of first impression for this Court – whether “mere

abandonment” of a piece of evidence satisfies the elements of evidence tampering – and this

question requires us to interpret a criminal statute. Our role in construing a statute is to

ascertain and give effect to the legislature’s intent without unduly restricting or expanding

a statute’s coverage beyond its intended scope. We begin by focusing on the statute’s words,

presuming that each word has its own meaning and purpose. If the language is clear and

unambiguous, we need look no further. Keen v. State, __ S.W.3d __, __, No. W2011-00789-

SC-R11-PD, 2012 WL 6631245, at *12 (Tenn. Dec. 20, 2012). When faced with ambiguous

language, however, we may refer to the broader statutory scheme, the legislative history, and

other sources, including the established canons of statutory construction. State v. Marshall,

319 S.W.3d 558, 561 (Tenn. 2010); Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 836

(Tenn. 2008). When we encounter an issue of first impression, we often review the decisions

of other states, as well as other authorities, to assist our analysis. Parrish v. Marquis, 172

S.W.3d 526, 530 (Tenn. 2005), overruled on other grounds by Himmelfarb v. Allain, 380

S.W.3d 35, 41 (Tenn. 2012).

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B.

A criminal conviction cannot stand unless the State proves every statutory element of

the charged offense beyond a reasonable doubt. Accordingly, when a defendant challenges

the sufficiency of the State’s evidence, the reviewing courts must consider the sufficiency

of the State’s evidence with regard to each element of the offense for which the defendant

was convicted. Fiore v. White, 531 U.S. 225, 228-29 (2001); State v. Parker, 350 S.W.3d

883, 909 (Tenn. 2011).

Tenn. Code Ann. § 39-16-503, like many of Tennessee’s criminal statutes, traces its

lineage to the Model Penal Code. Tenn. Code Ann. § 39-16-503(a)(1) defines the offense

of tampering with physical evidence as follows:

(a) It is unlawful for any person, knowing that an investigation

or official proceeding is pending or in progress, to:

(1) Alter, destroy, or conceal any record,

document or thing with intent to impair its verity,

legibility, or availability as evidence in the

investigation or official proceeding . . . .

10

This statute, like other statutes based on Model Penal Code § 241.7, requires the State

to prove three elements beyond a reasonable doubt – “timing, action, and intent.” State v.

Gonzales, 2000 UT 136, ¶ 11, 2 P.3d 954, 957. The “timing” element requires that the act

be done only after the defendant forms a belief that an investigation or proceeding “is

pending or in progress.” The “action” element requires alteration, destruction, or

concealment. The “intent” element requires that the defendant intended to hinder the

investigation or official proceeding by impairing the record’s, document’s or thing’s “verity,

legibility, or availability as evidence.” The “timing” element describes a necessary attendant

circumstance to the crime – the State must prove beyond a reasonable doubt that the

defendant committed the act while “knowing that an investigation or official proceeding is

pending or in progress.” Mr. Hawkins has not challenged the verdict with regard to this first

element.

The version of the tampering statute in the Model Penal Code § 241.7 (1962) states: 10

A person commits a misdemeanor if, believing that an official proceeding or investigation

is pending or about to be instituted, he:

(1) alters, destroys, conceals or removes any record, document or thing with

purpose to impair its verity or availability in such proceeding or

investigation . . . .

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The “action” element involves the actus reus of the offense. The State must prove

beyond a reasonable doubt that the defendant altered, destroyed, or concealed a piece of

evidence in the form of a “record, document or thing.” In State v. Majors, we defined the

verb “alter” as “to make different without changing into something else.” State v. Majors,

318 S.W.3d at 859. To “destroy” a thing, we said, means to ruin its “evidentiary value.”

State v. Majors, 318 S.W.3d at 859. Finally, we defined “conceal” as “to prevent disclosure

or recognition of” a thing or “to place [a thing] out of sight.” State v. Majors, 318 S.W.3d

at 859. The State’s case against Mr. Hawkins is premised on his “concealment” of his

shotgun.

This Court has applied a “broad, generic construction” to the word “thing” as it is used

in Tenn. Code Ann. § 39-16-503(a)(1). State v. Majors, 318 S.W.3d at 859. We have held

that the word refers to “an object or entity not precisely designated and perhaps not even

capable of being designated.” State v. Majors, 318 S.W.3d at 860. Accordingly, the State

is not required “to identify exactly what ‘thing’ was tampered with.” State v. Majors, 318

S.W.3d at 859. In this case, however, there is no dispute regarding the “thing” Mr. Hawkins

is alleged to have tampered with. To convict Mr. Hawkins of tampering with physical

evidence, the State was required to prove beyond a reasonable doubt that Mr. Hawkins

concealed the shotgun when he tossed it over the fence.

The “intent” element defines the defendant’s necessary mental state. The State must

prove that the defendant altered, destroyed, or concealed the record, document, or thing “with

intent to impair its verity, legibility, or availability as evidence.” Tampering with physical

evidence is thus a “specific intent” crime. See State v. Jackson, 237 P.3d 754, 758 (N.M.

2010); 3 American Law Institute. Model Penal Code and Commentaries § 241.7, at 180

(1962) (“The limiting factor in Paragraph (a) is the requirement of specific intent. The

statute punishes any kind of tampering with any document or thing, but only if the defendant

acts ‘with purpose to impair its verity or availability’ in an official proceeding or

investigation.”). Thus, in this case, the State was required to prove beyond a reasonable

doubt that when Mr. Hawkins tossed his shotgun over the fence, he intended to impair its

verity or availability as evidence in either the police investigation or his eventual trial.

Without this specific intent, Mr. Hawkins’s conviction cannot stand.

C.

Twenty-nine jurisdictions have enacted criminal statutes based on Section 241.7 of

the Model Penal Code. However, the language of these statutes varies from jurisdiction to

11

The jurisdictions are Alabama, Ala. Code § 13A-10-129 (LexisNexis 2010); Alaska, Alaska Stat. 11

§ 11.56.610 (2010); Arizona, Ariz. Rev. Stat. Ann. § 13-2809 (2010); Arkansas, Ark. Code Ann. § 5-53-111

(continued...)

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jurisdiction. For example, while Tennessee’s version of the statute does not include the word

“removes,” other states have retained that word and even added other terms, such as

“mutilates,” “suppresses,” or “disguises.” In comparing Tennessee’s statute to that of other

12

Model Penal Code jurisdictions, we must take care not to rely on cases that hinge on words

that our statute does not contain.

13

Most, if not all, jurisdictions that utilize a version of Section 241.7 of the Model Penal

Code have recognized that a defendant does not violate the statute when he or she merely

(...continued) 11

(2005); Colorado, Colo. Rev. Stat. § 18-8-610 (2012); Connecticut, Conn. Gen. Stat. Ann. § 53a-155 (West

2007); Delaware, Del. Code Ann. tit. 11, § 1269 (2007); District of Columbia, D.C. Code § 22-723

(LexisNexis 2010); Florida, Fla. Stat. Ann. § 918.13 (West 2006); Georgia, Ga. Code Ann. § 16-10-94

(2011); Hawaii, Haw. Rev. Stat. Ann. § 710-1076 (LexisNexis 2007); Illinois, 720 Ill. Comp. Stat. 5/31-4

(West 2010); Kentucky, Ky. Rev. Stat. Ann. § 524.100 (LexisNexis 2008); Mississippi, Miss. Code Ann. §

97-9-125 (2006); Missouri, Mo. Ann. Stat. § 575.100 (West 2011); Montana, Mont. Code Ann. § 45-7-207

(2011); Nebraska, Neb. Rev. Stat. § 28-922 (2008); New Hampshire, N.H. Rev. Stat. Ann. § 641:6

(LexisNexis 2007); New Jersey, N.J. Stat. Ann. § 2C:28-6 (West 2005); New Mexico, N.M. Stat. Ann. § 30-

22-5 (LexisNexis 2004); New York, N.Y. Penal Law § 215.40 (McKinney 2010); North Dakota, N.D. Cent.

Code Ann. § 12.1-09-03 (2012); Ohio, Ohio Rev. Code Ann. § 2921.12 (West 2006); Oregon, Or. Rev. Stat.

§ 162.295 (2011); Pennsylvania, 18 Pa. Cons. Stat. Ann. § 4910 (West 1983); Tennessee; Texas, Tex. Penal

Code Ann. § 37.09 (West 2011 & Supp. 2012); Utah, Utah Code Ann. § 76-8-510.5 (LexisNexis 2008); and

Washington, Wash. Rev. Code Ann. § 9A.72.150 (West 2009 & Supp. 2012). 

In the federalsystem, tampering with physical evidence istreated as a sentencing enhancement factor

in the sentencing guidelines. Section 3C1.1 of the Federal Sentencing Guidelines provides for a two-level

sentence enhancement for offenders who “willfully obstructed or impeded, or attempted to obstruct or

impede, the administration of justice” related to the offense of conviction or a closely related offense. Under

application note 4(D), this includes “destroying or concealing” material physical evidence. The note

specifies, however, that

if such conduct occurred contemporaneously with arrest (e.g., attempting to swallow or

throw away a controlled substance), it shall not, standing alone, be sufficient to warrant an

adjustment for obstruction unless it results in a material hindrance to the official

investigation or prosecution of the instant offense or the sentencing of the offender[.] 

U.S. Sentencing Guidelines Manual § 3C1.1 cmt. n.4(D) (2012). 

See, e.g., Alaska Stat. § 11.56.610 (“destroys, mutilates, alters, suppresses, conceals, or removes”);

12

Ga. Code Ann. § 16-10-94 (“disguises”).

In Louisiana, for example, the crime is much broader. See State v. Jones, 2007-1052 (La. 6/3/08), 13

983 So. 2d 95 (upholding a tampering conviction for dropping marijuana in the presence of an officer

because Louisiana’s statute criminalizes the mere “movement” of evidence). Likewise, a case such as State

v. Daoud, 965 A.2d 1136 (N.H. 2009), is not instructive because it hinges on the meaning of “removes” in

New Hampshire’s tampering statute.

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“abandons” physical evidence of a street crime while running from police or fleeing the

scene of the crime.

Courts in Florida were among the first to recognize the distinction between tampering

and abandonment. The defendant in Boice v. State, 560 So. 2d 1383 (Fla. Dist. Ct. App.

1990), bought cocaine from an undercover police officer. After the police surrounded him,

he dropped the drugs out of his car window. The appellate court reversed his conviction for

tampering with the evidence:

The defendant’s act of tossing the small bag of cocaine

away from his person while in the presence of the arresting

officers at the scene of the purchase does not rise to the level of

conduct which constitutes a concealment . . . of something for

the purpose of impairing its availability for the criminal trial. . . .

Mr. Boice merely abandoned the evidence.

The statute must be construed most favorably to the

accused. . . . [W]e do not believe that the legislature intended

the simple act of abandoning a bag of crack cocaine at the scene

of an arrest, in the clear sight of a law enforcement officer, to

constitute the commission of this additional third-degree felony.

If the defendant’s act in this case constituted tampering, then a

nineteen-year-old who threw a can of beer from his car when

stopped by a police officer would commit not only the seconddegree misdemeanor of possession of alcoholic beverages, but

also the third-degree felony of tampering with evidence. We do

not believe that the legislature intended an additional felony

under such circumstances.

Boice v. State, 560 So. 2d at 1384-85; but see State v. Jennings, 666 So. 2d 131, 133 (Fla.

1995) (cautioning against an “overly broad reading of Boice”).

Our Court of Criminal Appeals later relied on Boice when it vacated the tampering

conviction of a defendant who tossed aside a bag of marijuana while being pursued by police.

State v. Patton, 898 S.W.2d 732, 736 (Tenn. Crim. App. 1994). The court found that

construing Tennessee’s tampering statute in a way that allows piggybacking a felony

tampering conviction on top of a misdemeanor possessory offense could lead to “absurd” or

“unreasonable” results. State v. Patton, 898 S.W.2d at 736; see also Anderson v. State, 123

P.3d 1110, 1118 (Alaska Ct. App. 2005) (noting that a broad reading of the statute would

mean that a person who shoplifts a candy bar would commit three separate acts of felony

evidence tampering); State v. Fuqua, 696 A.2d 44, 47 (N.J. Super. Ct. App. Div. 1997)

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(rejecting a broad reading of the tampering statute because it would absurdly require all

illegal substances and weapons to be carried in plain view).

In the wake of Boice, Patton, and similar decisions, the jurisdictions that have enacted

statutes based on Section 241.7 of the Model Penal Code have developed a “unanimous”

consensus that when a person who is committing a possessory offense drops evidence in the

presence of police officers, and the officers are able to recover the evidence with minimal

effort, discarding the evidence amounts to “mere abandonment,” not tampering. See Vigue

v. State, 987 P.2d 204, 206-09 (Alaska 1999) (collecting cases).

Outside of this core definition of abandonment, however, lies a gray area where courts

have experienced difficulty drawing a line between abandonment and tampering. Does the

abandonment exception apply to non-possessory offenses? Can it apply when the police do

not see the defendant in the act of discarding the evidence? Can it apply if the police never

find the evidence or if they find it with difficulty? The answer depends on the wording of

the applicable statute and the precise facts of each case.

We have found several such cases in which courts have upheld convictions for

tampering by concealment. In drug cases, for example, convictions for tampering by

concealment have been upheld when a defendant swallows drugs and when a defendant

14

flushes drugs down a toilet as police approach and the drugs are recovered. One

15

defendant’s conviction was upheld when he tossed the drugs out of his moving vehicle, kept

driving for a half mile, and the drugs were never found. Chapman v. State, 36 So. 3d 822,

824-26 (Fla. Dist. Ct. App. 2010). Another defendant’s conviction was upheld when he tried

to hide his drugs in one pocket of a billiards table. Taylor v. State, 581 S.E.2d 386, 388 (Ga.

Ct. App. 2003).

Conversely, in other drug cases involving alleged concealment, courts have found

mere abandonment when a defendant hides drugs in his socks or in his pocket, tosses

16 17

State v. Clay, 724 A.2d 1134, 1136 (Conn. App. Ct. 1999); People v. Brake, 783 N.E.2d 1084,

14

1086-87 (Ill. App. Ct. 2003).

McCray v. State, No. 469, 2010, 2011 WL 497197, at *4-5 (Del. 2011); cf. Williams v. State, 576 15

S.E.2d 647, 648-49 (Ga. Ct. App. 2003) (defendant unsuccessfully flushed his incriminating underpants

down a toilet in the police station). 

State v. Fuqua, 696 A.2d at 47-48. 16

Cornelius v. Commonwealth, 362 S.W.3d 382, 385 (Ky. Ct. App. 2012). 17

-14-
drugs onto the roof of a garage while being pursued, drops drugs off a roof in view of

18

police, or throws drug evidence over a wooden privacy fence while officers are in pursuit.

19 20

Dropping a marijuana cigarette into a sewer is mere abandonment, but dropping soluble

21

drugs down a sewer drain could make them irretrievable and could support a tampering

conviction. Hiding drugs in one’s mouth without successfully swallowing them also may

22

not constitute tampering.

23

In State v. Lasu, 768 N.W.2d 447 (Neb. 2009), the defendant walked through a service

station, followed by an officer. While the defendant rounded a corner, he dropped his bag

of marijuana into a large bin full of packaged snack foods. The defendant made no effort to

cover the drugs. When the officer walked by, he saw the drugs sitting in the bin and

retrieved them. State v. Lasu, 768 N.W.2d at 449-50. The Nebraska Supreme Court found

that this act was mere abandonment because the defendant did not discard the evidence in

a place “where it was unlikely to be discovered.” Instead, he “placed the evidence where it

was quite likely to be discovered, even if he hoped that it might be less associated with

him. . . . All [the defendant] attempted to conceal was the fact of his possession of the

evidence – not the evidence itself.” State v. Lasu, 768 N.W.2d at 452.

In weapons cases, one court has held it to be mere abandonment when the defendant

tossed a gun out of a moving car while officers were in pursuit. Anderson v. State, 123 P.3d

at 1118-19 (noting that driving away from the scene with the gun in the car is not tampering

by concealment, but throwing the gun from the car could constitute tampering by

concealment if it made the gun substantially more difficult to recover). Another court has

24

found that when a defendant fled on foot from the crime scene and took the gun, which was

never found, this failed to support a conviction for tampering by removal:

Commonwealth v. Delgado, 679 A.2d 223, 225 (Pa. 1996).

18

In re M.F., 734 N.E.2d 171, 178-79 (Ill. App. Ct. 2000).

19

People v. Comage, 946 N.E.2d 313, 319-20 (Ill. 2011). 20

People v. Vargas, 684 N.Y.S.2d 848, 851 (N.Y. Crim. Ct. 1998). 21

State v. Logan, 973 S.W.2d 279, 281-82 (Tenn. Crim. App. 1998). 22

Harris v. State, 991 A.2d 1135, 1143 (Del. 2010); Morris v. State, 989 So. 2d 753, 754 (Fla. Dist. 23

Ct. App. 2008); Hollingsworth v. State, 15 S.W.3d 586, 595 (Tex. App. 2000).

In State v. Foreshaw, 572 A.2d 1006, 1012 (Conn. 1990), and State v. Harley, 1999 UT App 197, 24

¶12, 982 P.2d 1145, 1146-48, the appellate courts upheld the tampering convictions of defendants who threw

weapons out of a moving vehicle while fleeing the crime scene. Both jurisdictions, however, include the

word “removes” in the actus reus portion of their tampering statutes. See Conn. Gen. Stat. Ann. § 53a-155;

Utah Code Ann. § 76-8-510.5. 

-15-
[W]alking away from the scene with the gun is not enough to

support a tampering charge without evidence of some additional

act demonstrating an intent to conceal.

* * *

When a crime takes place, it will almost always be the case that

the perpetrator leaves the scene with evidence. If this amounted

to a charge of tampering, the result would be an impermissible

“piling on.”

Mullins v. Commonwealth, 350 S.W.3d 434, 442-43 (Ky. 2011). In another weapons case,

the court suggested that the juvenile defendant’s act of tossing a gun over a privacy fence

during a police chase did not constitute tampering but found that subsequently hiding the

gun’s holster under a bed did support a tampering conviction because there had been “a break

in the action.” Y.J. v. State, 130 P.3d 954, 958 (Alaska Ct. App. 2006).

In other weapons cases, courts have upheld tampering convictions when the defendant

threw a knife over a building while fleeing the scene of a stabbing; when the defendant hid

25

his gun in the crawl space under a house; when the defendant threw his gun near a car while

26

fleeing the scene of a shooting; when the defendant hid the gun behind a dresser in his

27

bedroom; when the defendant hid the gun under a mattress behind a barn; when the

28 29

defendant hid the gun in some bushes and told police it was somewhere else; when the

30

defendant had an accomplice throw the gun away in a wooded area; when the defendant

31

jettisoned the gun next to a road where it was found, partially rusted, ten days later by

Adams v. State, No. A-9612, 2008 WL 1914340, at *5-6 (Alaska Ct. App. Apr. 30, 2008).

25

Williams v. State, 582 S.E.2d 556, 557-58 (Ga. Ct. App. 2003). 26

McGoffney v. Commonwealth, No. 2001-SC-0353-MR, 2003 WL 22430268, at *10-11 (Ky. Oct.

27

23, 2003).

Reyes v. Commonwealth, No. 2002-SC-0600-MR, 2003WL 22415616, at *2-3 (Ky. Oct. 23, 2003). 28

Towe v. Commonwealth, No. 2006-SC-000644, 2007 WL 2404506, at *2 (Ky. Aug. 23, 2007) (per

29

curiam).

Pinkston v. Commonwealth, No. 2010-CA-001963-MR, 2012WL 411714, at *2 (Ky. Ct. App. Feb. 30

10, 2012).

Hampton v. State, 713 S.E.2d 851, 854 (Ga. 2011).

31

-16-
highway workers; and when the defendant threw bullet casings down a storm drain. In

32 33

one recent case, a divided court upheld the defendant’s convictions for tampering when the

defendant dropped a stolen handgun near a fence outside his residence. Gaitan v. State, 393

S.W.3d 400, 402 (Tex. Ct. App. 2012), perm. app. denied (Tex. Mar. 27, 2013).

D.

The facts of this case are unique. In the heat of the moment, shortly after firing the

fatal shot, Mr. Hawkins tossed his shotgun over a fence. He did not immediately leave the

crime scene. The fence was short and easy to see through. Nothing actually covered the

weapon. Had the area been well-lit, the gun would have been easily seen, especially against

the snow that lightly covered the ground. The police appear to have found the shotgun rather

quickly, and the shotgun itself as well as the DNA evidence found on the shotgun were

successfully produced as evidence against Mr. Hawkins at his trial.

The State argues that Mr. Hawkins succeeded in concealing evidence because, by

tossing the gun into a somewhat out-of-the-way place, Mr. Hawkins was able to tell the

police that he had no weapon and, therefore, was allowed to leave the scene of the crime.

We are not convinced that this satisfies the elements of the crime as it is defined in Tenn.

Code Ann. § 39-16-503(a)(1). On one hand, if Mr. Hawkins had simply dropped the shotgun

at the place where he fired it and then ran around the Fun Center like he did, he still could

have left the scene in the same manner and would much more clearly have simply abandoned

the evidence. On the other hand, Mr. Hawkins could also have hidden the shotgun in his

pants and left the scene with the murder weapon. Thereafter, he would have been free to

34

hide, alter, or destroy the weapon. By leaving the shotgun out in the open near the crime

scene, Mr. Hawkins did not materially impede the investigation or cause the gun to lose any

of its evidentiary value.

More precisely, Mr. Hawkins did not “place [the shotgun] out of sight.” If he

“prevent[ed] disclosure or recognition of” the gun, he did so only for a brief period of time.

State v. Majors, 318 S.W.3d at 859. Like the defendant in State v. Lasu, Mr. Hawkins

“placed the evidence where it was quite likely to be discovered, even if he hoped that it might

State v. McKimmie, 756 P.2d 1135, 1139 (Mont. 1988), overruled on other grounds by State v. 32

Rothacher, 901 P.2d 82, 86 (Mont. 1995).

Commonwealth v. Nourse, 177 S.W.3d 691, 698-99 (Ky. 2005).

33

At trial,Everett Conley, one of Mr. Hawkins’s friends, testified that Mr. Hawkins had demonstrated

34

to him how he was able to conceal the shotgun inside his blue jeans and walk around with the gun completely

hidden.

-17-
be less associated with him. . . . All [Mr. Hawkins] attempted to conceal was the fact of his

possession of the evidence – not the evidence itself.” See State v. Lasu, 768 N.W.2d at 452.

Mr. Hawkins’s act of jettisoning his shotgun does not clearly fall within the definition

of the statute. Because Mr. Hawkins’s actions arguably did not “conceal” the shotgun within

the meaning of Tenn. Code Ann. § 39-16-503(a)(1), the rule of lenity weighs in favor of

interpreting the statute narrowly in the defendant’s favor. See State v. Blouvett, 904 S.W.2d

111, 113 (Tenn. 1995); State v. Washington, 866 S.W.2d 950, 951 (Tenn. 1993); Key v. State,

563 S.W.2d 184, 188 (Tenn. 1978); cf. United States v. Santos, 553 U.S. 507, 514 (2008);

United States v. Galaviz, 645 F.3d 347, 361-62 (6th Cir. 2011). The rule of lenity is

rooted in fundamental principles of due process which mandate

that no individual be forced to speculate, at peril of indictment,

whether his or her conduct is prohibited. To ensure that a

legislature speaks with special clarity when marking the

boundaries of criminal conduct, courts must decline to impose

punishments for actions that are not plainly and unmistakably

proscribed.

State v. Marshall, 319 S.W.3d 558, 563 (Tenn. 2010) (internal citations, alterations, and

quotation marks omitted).

We hold that when Mr. Hawkins tossed the murder weapon into a location adjacent

to the crime scene, where it lay in plain view and was easily found, Mr. Hawkins did not

conceal the weapon within the meaning of Tenn. Code Ann. § 39-16-503(a)(1). The

evidence was not altered or destroyed, and its discovery was delayed minimally, if at all. The

shotgun retained its full evidentiary value. Under our definition of concealment, the State’s

evidence fails to prove beyond a reasonable doubt that Mr. Hawkins “prevent[ed] disclosure

or recognition of” the shotgun or placed it “out of sight.” State v. Majors, 318 S.W.3d at

859. Under our plain reading of the statute, no reasonable jury could have found Mr.

Hawkins guilty of tampering with physical evidence.

35

Our holding, based on the text of Tenn. Code Ann. § 39-16-503(a)(1), is consistent

with the results reached in other jurisdictions that have adopted the previously-discussed

“abandonment” defense to evidence tampering. See, e.g., Anderson v. State, 123 P.3d at

1119 (holding that tossing away evidence constitutes evidence tampering only when the

evidence is destroyed or its recovery is made “substantially more difficult or impossible”);

Although the jury was instructed on both tampering and attempted tampering, the parties have not 35

addressed the potential issue of whether Mr. Hawkins could have been found guilty of the lesser-included

offense of attempted tampering with evidence under Tenn. Code Ann. § 39-12-101 (2010). 

-18-
Harris v. State, 991 A.2d at 1138 (defining “abandonment” as a failed attempt at

concealment that leaves the evidence “visible and immediately retrievable” (quoting

Pennewell v. State, 977 A.2d 800, 803 (Del. 2009))); In re M.F., 734 N.E.2d at 178-79

(holding that tampering by concealment occurs only when the act was likely either to destroy

the evidence or make its recovery less likely); People v. Comage, 946 N.E.2d at 319 (holding

that tampering by concealment requires that the defendant “materially impede the

investigation”); Mullins v. Commonwealth, 350 S.W.3d at 443-44 (overturning a tampering

conviction because pocketing the gun and leaving the scene was “merely tangential to the

continuation of” the underlying crime); State v. Jones, 983 So. 2d at 100 (“[In jurisdictions

using a version of the Model Penal Code’s tampering statute, i]t has only been in cases where

the defendant did something to impair the evidence’sintegrity, veracity, or availability at trial

that courts have found the defendant guilty of [tampering].”). We see no need to adopt a

standalone abandonment doctrine. If the evidence is not actually altered, concealed, or

destroyed under the definitions we have provided, then the application of a separate

abandonment doctrine would be redundant.

IV.

We reverse Mr. Hawkins’s conviction for tampering with physical evidence. The

State’s evidence does not establish beyond a reasonable doubt that Mr. Hawkins “concealed”

the murder weapon within the meaning of the statute. Regarding Mr. Hawkins’s conviction

for first degree murder, we find no error in the trial court’s refusal to provide the jury with

an instruction on defense of a third person. The decision of the Court of Criminal Appeals

is reversed in part and affirmed in part. Because Mr. Hawkins appears indigent, we assess

the costs of this appeal to the State of Tennessee.

______________________________

WILLIAM C. KOCH, JR., JUSTICE

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