2023 New Mexico Statutes › Chapter 30 - Criminal Offenses › Article 22 - Interference with Law Enforcement › Section 30-22-5 - Tampering with evidence.

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.
History:
1953 Comp., § 40A-22-5, enacted by Laws 1963, ch. 303, § 22-5; 2003, ch. 296, § 1.
ANNOTATIONS
The 2003 amendment,
effective July 1, 2003, redesignated the text of the former section as Subsection A and the preliminary language of Subsection B and added Paragraphs B(1) to (4).
Standard for sufficiency of evidence to support a tampering conviction.
— Absent either direct evidence of a defendant's specific intent to tamper or evidence from which the factfinder may infer such intent, the evidence cannot support a tampering conviction.
State v. Guerra
, 2012-NMSC-027, 284 P.3d 1076.
Where the state alleged that defendant tampered with evidence based on the fact that defendant had a weapon at the scene of the crime, defendant used the weapon to kill someone, the weapon was removed from the scene of the crime, and the weapon was never recovered, the evidence was insufficient as a matter of law to support defendant's conviction of tampering with evidence because the state cannot convict a defendant of tampering with evidence simply because evidence that must have once existed cannot be found.
State v. Guerra
, 2012-NMSC-027, 284 P.3d 1076.
Sentencing under the "indeterminate crime" provision.
— When the state seeks a conviction under Section 30-22-5 NMSA 1978, tampering with evidence of a capital, first or second degree felony, a determination that defendant tampered with evidence related to a capital, first or second degree felony must be made by the jury. Absent this determination, the court is limited to sentencing defendant under the "indeterminate crime" provision.
State v. Alvarado
, 2012-NMCA-089,
overruled by
State v. Radosevich
, 2018-NMSC-028.
Where defendant was charged with first degree murder and tampering with evidence; and the jury acquitted defendant of murder and convicted defendant of tampering with evidence, defendant was properly sentenced under the indeterminate crime provision of Section 30-22-5 NMSA 1978.
State v. Alvarado
, 2012-NMCA-089,
overruled by
State v. Radosevich
, 2018-NMSC-028.
Factors that determine punishment are elements of tampering with evidence.
— The factors listed in Subsection B of Section 30-22-5 NMSA 1978 are elements of the offense of tampering with evidence, rather than mere sentencing factors.
State v. Herrera
, 2014-NMCA-007, cert. denied, 2013-NMCERT-012.
Where after defendant shot and killed the victim, defendant put the gun in a crawl space under the house; defendant was charged with second-degree murder and tampering with evidence of a capital crime or a first or second degree felony; and the jury instruction on tampering with evidence required the jury to find that defendant hid the gun in an effort to avoid being apprehended, prosecuted or convicted, but did not require the jury to find that the evidence that was tampered with related to a first or second degree felony, the jury instruction omitted an essential element of the crime that the gun was evidence of a capital crime or a first or second degree felony and violated defendant's right under the sixth and fourteenth amendments to have a jury find all elements of the offense beyond a reasonable doubt.
State v. Herrera
, 2014-NMCA-007, cert. denied, 2013-NMCERT-012.
Unconstitutional application of tampering with evidence statute.
— Section 30-22-5(B)(4) NMSA 1978 cannot be constitutionally applied to impose greater punishment for commission of tampering where the underlying crime is indeterminate than the punishment prescribed under 30-22-5(B)(3) NMSA 1978 where the underlying crime is a misdemeanor or petty misdemeanor.
State v. Radosevich
, 2018-NMSC-028,
rev'g
2016-NMCA-060, 376 P.3d 871, and
overruling
State v. Jackson
, 2010-NMSC-032, 237 P.3d 754 and
State v. Alvarado
, 2012-NMCA-089.
Where defendant was convicted of fourth-degree tampering with evidence pursuant to 30-22-5(B)(4) NMSA 1978, although the tampering jury instruction did not identify an underlying offense, defendant's conviction for fourth-degree felony tampering with evidence was a denial due process of law, because to impose a greater penalty for commission of tampering pursuant to Subsection (B)(4), where the evidence does not establish the underlying offense, than for commission of tampering pursuant to 30-22-5(B)(3) NMSA 1978, where the evidence establishes an underlying misdemeanor offense, is both a denial of due process of law and a violation of the accused's right to have a jury determine guilt beyond a reasonable doubt on every element that may establish the range of permissible penalties.
State v. Radosevich
, 2018-NMSC-028,
rev'g
2016-NMCA-060, 376 P.3d 871, and
overruling
State v. Jackson
, 2010-NMSC-032, 237 P.3d 754 and
State v. Alvarado
, 2012-NMCA-089.
Elements of tampering with evidence.
— The degree and identification of the underlying crime to which the tampering offense relates, if any, are elements of tampering that should be decided by the jury. As such, the underlying crime to which tampering relates, if any, should be identified in the tampering instruction and found by the jury. Tampering with evidence can also be a stand-alone crime that is not tied to a separate offense. Where there is no separate identified crime, the tampering offense is linked to an indeterminate crime.
State v. Radosevich
, 2016-NMCA-060, 376 P.3d 871,
rev'd,
2018-NMSC-028.
Where defendant was initially charged with assault with intent to commit murder and tampering with evidence, and where the district court directed a verdict on the charged offense of assault with intent to commit murder and then sua sponte instructed the jury on a new and different charge of aggravated assault with a deadly weapon after the close of evidence, the offense to which defendant's tampering was related failed for insufficient evidence, and defendant's conviction for aggravated assault with a deadly weapon was reversed, rendering the underlying offense for which defendant might have tampered to be an unidentified, indeterminate crime. The district court, therefore, wrongfully convicted defendant of having tampered with evidence of a third- or fourth-degree felony in the absence of such a finding by the jury.
State v. Radosevich
, 2016-NMCA-060, 376 P.3d 871,
rev'd,
2018-NMSC-028.
Elements of tampering with evidence.
— 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 criminal investigation ever exists or could exist.
State v. Jackson
, 2010-NMSC-032, 148 N.M. 452, 237 P.3d 754,
rev'g
2009-NMCA-068, 146 N.M. 563, 212 P.3d 1117,
overruled by
State v. Radosevich
, 2018-NMSC-028.
Where defendant, who was required as a condition of probation to submit to random urinalyses, reported to the probation office to provide a urine sample with a bottle of clean urine hidden in defendant's pants; the probation officer discovered the bottle of urine when it fell from defendant's pants; and defendant admitted to the probation officer that defendant attempted to provide a false urine sample, defendant was guilty of tampering with evidence.
State v. Jackson
, 2010-NMSC-032, 148 N.M. 452, 237 P.3d 754,
rev'g
2009-NMCA-068, 146 N.M. 563, 212 P.3d 1117,
overruled by
State v. Radosevich
, 2018-NMSC-028.
This section applies only to conduct which interferes with the investigation or prosecution of a crime.
State v. Jackson
, 2009-NMCA-068, 146 N.M. 563, 212 P.3d 1117;
rev'd
, 2010-NMSC-032, 148 N.M. 452, 237 P.3d 754,
overruled by
State v. Radosevich
, 2018-NMSC-028.
Partial destruction of evidence.
— Where the defendant swiped a portion of white powder on a laminated card that was found in the defendant's wallet with his thumb and ate the powder, the defendant was guilty of tampering with evidence and an instruction on the lesser included offense of attempted tampering with evidence was not warranted, even though the defendant had not destroyed all of the white powder on the card.
State v. McClennen
, 2008-NMCA-130, 144 N.M. 878, 192 P.3d 1255.
The fact that the defendant once held a weapon at a murder scene
that was not recovered is no basis from which to infer that the defendant acted to destroy or hide physical evidence of a crime.
State v. Silva
, 2007-NMCA-117, 142 N.M. 686, 168 P.3d 1110,
aff'd in part, rev'd in part
, 2008-NMSC-051, 144 N.M. 815, 192 P.3d 1192.
Double jeopardy.
— Convictions for both possession of a controlled substance (cocaine) and tampering with evidence (cocaine) did not violate defendant's double jeopardy rights.
State v. Franco
, 2005-NMSC-013, 137 N.M. 447, 112 P.3d 1104.
Separate convictions of tampering with evidence did not violate double jeopardy.
— Where defendant shot the victim in the chest in defendant's vehicle, drove the unconscious victim in the vehicle to an isolated area, shot the victim twice in the head while the victim was still alive, poured gasoline on the victim, and lit the victim on fire; defendant gave the vehicle to a friend; and when the friend returned the vehicle, defendant set fire to the vehicle, defendant's three convictions of tampering with evidence were not based on unitary conduct and did not violate defendant's right to be free from double jeopardy.
State v. Urioste
, 2011-NMCA-121, 267 P.3d 820, cert. granted, 2011-NMCERT-012.
Possession and tampering distinguished.
— Possession of a controlled substance can be committed without tampering with evidence. Conversely, tampering with evidence, even if the evidence is illegal drugs, can be committed without possessing the drugs.
State v. Franco
, 2005-NMSC-013, 137 N.M. 447, 112 P.3d 1104.
Possession of a controlled substance requires proof defendant knew or believed it was cocaine or some other substance that is regulated, which is not required to prove tampering, while tampering with evidence requires proof defendant intended to prevent the apprehension, prosecution, or conviction of herself or others, which is not required to prove possession. State v. Franco, 2005-NMSC-013, 137 N.M. 447, 112 P.3d 1104.
Removing documents from their proper files
amounts to "hiding" evidence prohibited by this section.
State v. Casteneda
, 1982-NMCA-046, 97 N.M. 670, 642 P.2d 1129.
Hiding evidence.
— There was ample evidence of intent to tamper with evidence where directories crucial to the proof of the prosecution's case were removed from the defendant's offices to the office of someone not affiliated with defendant's association. In short, evidence relevant to a criminal prosecution for securities fraud was hidden for the purpose of avoiding the prosecution.
State v. Shade
, 1986-NMCA-072, 104 N.M. 710, 726 P.2d 864, cert. quashed, 104 N.M. 702, 726 P.2d 856,
overruled on other grounds by
State v. Olguin
, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92,
aff'd in part
, 1995-NMSC-077, 120 N.M. 740, 906 P.2d 731.
Accomplice liability.
— One may be found guilty of tampering on a theory of accomplice liability in aiding the destruction of evidence.
State v. Casteneda
, 1982-NMCA-046, 97 N.M. 670, 642 P.2d 1129.
Intent requirements
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.
State v. Arellano
, 1977-NMCA-126, 91 N.M. 195, 572 P.2d 223.
Series of acts.
— The state presented sufficient evidence to support defendant's three separate convictions of tampering with evidence, given that defendant sent a note to three co-defendants in an attempt to cover up the crimes.
State v. Reyes
, 2002-NMSC-024, 132 N.M. 576, 52 P.3d 948.
Where defendant disposed of evidence at three distinct times in different locations, defendant's acts supported three convictions for tampering with evidence.
State v. DeGraff
, 2006-NMSC-011, 139 N.M. 211, 131 P.3d 61.
Sufficient evidence of tampering with evidence.
— At defendant's trial for murder, kidnapping and tampering with evidence, where the state provided evidence establishing that defendant beat the victim with a baseball bat, mopped up the victim's blood and hid the bat behind a washing machine, there was sufficient evidence to prove, beyond a reasonable doubt, that defendant intended to hide evidence from the police in order to avoid apprehension or prosecution.
State v. Telles
, 2019-NMCA-039, cert. denied.
Sufficient evidence of attempted tampering with evidence.
— At defendant's trial for murder, kidnapping and tampering with evidence, where the state provided evidence establishing that defendant beat the victim with a baseball bat, moved the victim's body to a back room and then rolled the body in a carpet, there was sufficient evidence to prove, beyond a reasonable doubt, that defendant hid the body in an unsuccessful attempt to prevent the police from discovering the victim.
State v. Telles
, 2019-NMCA-039, cert. denied.
Sufficient evidence.
— Where defendant lived with the victim for approximately one and a half months before the victim disappeared; a few weeks later, the victim's decomposed body was discovered wrapped in a blue air mattress and sheets, and covered with a mattress in an alley approximately 500 feet from defendant's apartment; defendant's parent testified that the parent sent a blue air mattress and a set of sheets to defendant; grid marks on the air mattress resembled the grid marks of a shopping cart; there was a shopping cart at the scene; shopping carts were found in defendant's apartment; DNA found on a pair of jeans near the body provided a possible link between the body and defendant; and the victims' blood was found on the carpet in defendant's apartment, the evidence was sufficient to permit the jury to find defendant guilty of tampering with evidence.
State v. Schwartz
, 2014-NMCA-066, cert. denied, 2014-NMCERT-006.
Where defendant drove a pickup toward a group of children who were trick-or-treating on Halloween; the chaperone pushed the children out of the way but was struck and killed; and after the accident, defendant removed decals on the truck and cleaned the front of the truck, the evidence was sufficient to support defendant's conviction of tampering with evidence.
State v. Melendrez
, 2014-NMCA-062, cert. denied, 2014-NMCERT-006.
Where defendant testified that after defendant shot and killed the victim and then put the gun in a crawl space under the house; an officer testified that the gun was found in a crawl space under the house that was concealed behind a dog house where the dog was chained; and after defendant was arrested, defendant telephoned a person and asked the person to go under the house where the dog was because there was a water leak, the evidence was sufficient to support defendant's conviction for tampering with evidence of a capital crime or a first or second degree felony.
State v. Herrera
, 2014-NMCA-007, cert. denied, 2013-NMCERT-012.
Where defendant directed an accomplice to remove stolen property from defendant's car; defendant saw the accomplice take the property from the car to another location; and defendant drove the car to defendant's parents' home for the purpose of disposing of the property, the evidence was sufficient to support defendant's conviction for tampering with evidence under a theory of accomplice liability.
State v. Johnson
, 2004-NMSC-029, 136 N.M. 348, 98 P.3d 998, cert. denied, 543 U.S. 1177, 125 S. Ct. 1334, 161 L. Ed. 2d 162 (2005).
Where, in a vehicular homicide case, the victim was carrying a twelve pack of a common brand of beer; defendant's vehicle hit the victim; defendant's friend discovered part of a twelve pack of the same brand of beer lodged in the damaged grille of defendant's car; and the police found beer cans near the victim's body, a partial twelve pack of the same brand of beer and damaged vehicle parts in a bag in defendant's home, and the friend's fingerprints on one of the cans of beer and on the grille of defendant's car, the evidence was sufficient to support defendant's conviction for tampering with evidence.
State v. Guzman
, 2004-NMCA-097, 136 N.M. 253, 96 P.3d 1173, cert. denied, 2004-NMCERT-008, 136 N.M. 491, 100 P.3d 197.
Where, as defendant was approaching defendant's truck, police officers were converging on defendant to arrest defendant on a warrant; when defendant saw the police, defendant dropped bags of drugs behind the seat of the truck; and the officers discovered the drugs behind the seat of the truck, the evidence was sufficient to support defendant's conviction for tampering with evidence.
State v. Graham
, 2003-NMCA-127, 134 N.M. 613, 81 P.3d 556,
rev'd on other grounds
, 2005-NMSC-004, 137 N.M. 197, 109 P.3d 285.
Where the non-conflicting testimony of witnesses established that while defendant was attending a party, defendant went to the victim's apartment to purchase marijuana and shot and killed the victim; defendant returned to the party with the gun in defendant's hand; defendant was showing off the gun at the party and stated that defendant had taken the gun from the victim and "blasted" the victim; defendant twice asked a person at the party to hide the gun; defendant tried unsuccessfully to sell the gun to two persons at the party; and the police were unable to find the gun, there was sufficient evidence to support defendant's conviction of tampering with evidence.
State v. Garcia
, 2011-NMSC-003, 149 N.M. 185, 246 P.3d 1057.
Where the defendant fled the scene of a shooting with the weapons used in the crime; attempted to flee New Mexico; falsely identified himself to police officers; and concealed the weapons in his car, the evidence was sufficient to support the defendant's conviction of tampering with evidence.
State v. Rudolfo
, 2008-NMSC-036, 144 N.M. 305, 187 P.3d 170.
Where defendant's primary co-conspirator beat, drugged, and tied the victim to a bed in defendant's residence; defendant did not object to the treatment of the victim; while the primary co-conspirator was absent from the residence for a lengthy period of time, defendant watched the victim and did not assist the victim or call the police; defendant did not object when the primary co-conspirator expressed an intention to kill the victim and burn the victim's car; defendant purchased charcoal lighter fluid at the direction of the primary co-conspirator; defendant did not object when defendant's co-conspirators put the victim in the trunk of the victim's car; while defendant remained at the residence, defendant's co-conspirators used the lighter fluid to burn the car and kill the victim; and the following day, defendant washed the victim's blood splatter from the living room blinds, there was sufficient evidence to convict defendant of tampering with evidence.
State v. Bahney
, 2012-NMCA-039, 274 P.3d 134, cert. denied, 2012-NMCERT-003.
Sufficient evidence of tampering with evidence.
— Where defendant was charged with first-degree murder in the shooting death of two victims, tampering with evidence and breaking and entering, there was sufficient evidence to support his conviction for tampering with evidence where the state presented testimony from a witness who saw defendant in the possession of a firearm just hours after the time when the murders were believed to have occurred, but did not have a gun when police stopped him soon thereafter. The jury could logically infer that defendant had a gun, which he disposed of between the time of the murders and when he was arrested, and then lied about it to police, and that defendant hid the gun to prevent apprehension, prosecution, or conviction of that crime.
State v. Carrillo
, 2017-NMSC-023.
Sufficient evidence to support tampering with evidence conviction.
— Where defendant was charged with first-degree murder and tampering with evidence, and where several witnesses observed defendant shoot the victim while he was sitting in his vehicle, and where the police found the gun that fired the bullets that killed the victim and discharged the bullet casings found at the crime scene, the jury was free to infer that defendant discarded the gun after killing the victim and fleeing the scene. There was sufficient evidence presented to prove beyond a reasonable doubt that defendant disposed of the gun to prevent apprehension, prosecution, or conviction.
State v. Ramirez
, 2018-NMSC-003.
Sufficient evidence to support a tampering conviction.
— Where defendant's accomplices testified that the knife used to kill the victim belonged to defendant, and that after defendant learned that the victim had been killed, defendant let her accomplices into her house and allowed them to shower and change out of their bloody clothes, and that one of the accomplices cleaned the blood off of defendant's knife in defendant's restroom and in defendant's presence, and where there was evidence that the accomplice used bleach from defendant's home to clean the knife, the evidence was sufficient for a rational jury to conclude beyond a reasonable doubt that defendant intended the destruction of evidence, including the removal of the victim's blood from her knife, in order to avoid being prosecuted for murder, and that defendant helped the accomplice clean the knife by providing the accomplice with space and chemicals to do so.
State v. Montoya
, 2016-NMCA-098, cert. denied.
Substantial evidence of tampering with evidence.
— Where the defendant was bent down behind a fence; when police officers approached, the defendant stood up and walked toward a shed; the defendant did not stop when the officers called out to the defendant; the defendant's body movements appeared as if the defendant had disposed of something; the defendant then walked back to the officers; the officers found a bag of cocaine in front of the shed; and when the cocaine was found, the defendant placed the defendant's hands behind the defendant's back and turned around without any request by the officers, there was sufficient evidence to support a tampering with evidence conviction.
State v. Delgado
, 2009-NMCA-061, 146 N.M. 402, 210 P.3d 828, cert. denied, 2010-NMCERT-007, 148 N.M. 610, 241 P.3d 611.
Evidence sufficient.
— Where defendant shot multiple times into a house with two different weapons, killing one victim and wounding one victim; and defendant testified that immediately after the shooting, defendant took the guns and put them behind defendant's refrigerator, there was sufficient evidence to support defendant's conviction of tampering with evidence.
State v. Torrez
, 2013-NMSC-034.
Evidence sufficient to convict.
— Testimony by a witness whom the factfinder has believed may be rejected by an appellate court only if there is a physical impossibility that the statements are true or the falsity of the statement is apparent without resort to inferences or deductions. Where testimony is not inherently improbable under this standard, it must be given weight, and have attached to it the credibility, apparently assigned it by the jury.
State v. Sanders
, 1994-NMSC-043, 117 N.M. 452, 872 P.2d 870.
Evidence that defendant stated that he had killed someone and thrown the body in the trash along with evidence that the victim's nude body was found without identification, covered with plastic bags and duct tape, inside a dumpster was sufficient for conviction.
State v. Rojo
, 1999-NMSC-001, 126 N.M. 438, 971 P.2d 829.
Where defendant admitted that he assisted accomplice in throwing victim into a well and that he threw the stolen firearms into the woods, the jury could infer that he committed these acts to avoid apprehension, and this is sufficient evidence for the conviction of tampering with evidence.
State v. Lopez
, 2005-NMSC-036, 138 N.M. 521, 123 P.3d 754,
overruled on other grounds by
State v. Frawley
, 2007-NMSC-057, 143 N.M. 7, 172 P.3d 144.
Sufficient evidence of intent.
— Where defendant, charged with second-degree murder and tampering with evidence, testified that after he stabbed the victim, he threw the knife out the car window as he drove away from the crime scene, defendant's specific intent to prevent his apprehension or prosecution can be inferred from his overt act of disposing of the murder weapon; the evidence was sufficient to support defendant's conviction for tampering with evidence.
State v. Sanchez
, 2015-NMCA-077, cert. denied, 2015-NMCERT-006.
No fundamental error where state failed to prove an essential element of tampering with evidence when the evidence at trial clearly established the missing element.
— Where defendant was charged with third-degree tampering with evidence of a second-degree felony, but where the jury instruction did not require the jury to find that defendant's act of tampering related to a second-degree felony, the failure to instruct the jury on one of the elements of the offense of third-degree tampering was error, offending defendant's sixth amendment right to a jury determination of guilt beyond a reasonable doubt as to every element of the crime charged; the error, however, did not amount to fundamental error as it was clear from the record that the evidence presented at trial established the missing element.
State v. Sanchez
, 2015-NMCA-077, cert. denied, 2015-NMCERT-006.
Sufficient evidence of tampering with evidence.
— Where defendant was convicted of second-degree murder and tampering with evidence, there was sufficient evidence to support defendant's conviction for tampering with evidence where the State sought to prove that defendant hid a vehicle connected to the shooting and that he intended to prevent the apprehension, prosecution or conviction of himself, and where the evidence at trial established that defendant drove the vehicle away from the shooting, left it parked in an alley and contacted an unidentified person who helped defendant obtain and pour gasoline on the vehicle and then start it on fire. Based on this evidence, the jury rationally could have inferred that defendant parked the car in the alley and returned to set it aflame and that his intent in doing so was to prevent his apprehension, prosecution, or conviction for the killing of the victim.
State v. Chavez
, 2022-NMCA-007, cert. granted.
Tampering with evidence conviction reversed where crime for which tampering with evidence was based was reversed.
— Where defendant was convicted of second-degree murder and tampering with evidence in the third degree based on a finding that the highest degree for which tampering with evidence was committed was a second degree felony, and where the district court erred in denying defendant's proposed voluntary manslaughter instruction, thus requiring the reversal of defendant's second-degree murder conviction, defendant's tampering with evidence conviction also required reversal, because if the district court had correctly instructed the jury on voluntary manslaughter, the jury could have returned a guilty verdict on that charge, which is a third degree felony, and the jury's verdict would have amounted to a determination that defendant tampered with evidence of a third degree felony, and any conviction for tampering would have been a fourth degree felony.
State v. Chavez
, 2022-NMCA-007, cert. granted.
Evidence insufficient to convict.
— Where the state alleged that the defendant had a gun at the scene of the crime, a gun was used to murder the victim, the murder weapon was removed from the scene of the murder, and the murder weapon was never recovered, the state failed to meet its burden of proof because the state failed to offer direct evidence of the defendant's specific intent to tamper with evidence or evidence of an overt act from which the jury may infer such intent.
State v. Silva
, 2008-NMSC-051, 144 N.M. 815, 192 P.3d 1192.
Where defendant was convicted of tampering with a gun that defendant had used to shoot into an occupied house; the state provided evidence that defendant took the gun when defendant left the crime scene; the State offered no evidence that defendant actively hid or disposed of the gun; the police recovered the gun from another person during a traffic stop a few weeks after the shooting; the state did not offer any evidence regarding how the other person acquired possession of the gun; and the only evidence that defendant tampered with the gun was that the police could not find the gun when they searched defendant's house, the evidence was insufficient to support defendant's conviction.
State v. Arrendondo
, 2012-NMSC-013, 278 P.3d 517.
Since defendant merely dropped some items from his hand to the ground upon the officers' announcement of police presence, there was insufficient evidence to support a finding of either element of intent or action under this section.
State v. Roybal
, 1992-NMCA-114, 115 N.M. 27, 846 P.2d 333, cert. denied, 114 N.M. 550, 844 P.2d 130.
Where there is no evidence suggesting that defendant encouraged his accomplice to dispose of the gun or was present when the accomplice threw it away, there was insufficient evidence to support defendant's convictions for tampering with evidence and conspiracy to tamper with evidence.
State v. Armijo
, 2005-NMCA-010, 136 N.M. 723, 104 P.3d 1114.
Insufficient evidence to support tampering with evidence conviction.
— Where defendant was charged with trafficking a controlled substance, tampering with evidence, resisting, evading, or obstructing an officer, and possession of drug paraphernalia, and where defendant claimed there was insufficient evidence to support his conviction for tampering with evidence based on the state's evidence that defendant threw baggies of crack cocaine into a vehicle in plain view of multiple officers following a traffic stop, defendant's conviction for tampering with evidence was not supported by sufficient evidence because the evidence was never concealed from officers, and New Mexico courts have drawn a distinction between acts occurring in the presence of an officer and those that attempted to conceal evidence outside the view of an officer.
State v. Jackson
, 2021-NMCA-059, cert. denied.
Insufficient evidence.
— Where the defendant, who was on probation, was required to submit to random urinalysis; the defendant provided a false urine sample; and there was no evidence that a violation of the criminal laws was being investigated or prosecuted by the probation officer, there was no evidence to support the defendant's conviction for tampering with evidence.
State v. Jackson
, 2009-NMCA-068, 146 N.M. 563, 212 P.3d 1117,
rev'd
, 2010-NMSC-032, 148 N.M. 452, 237 P.3d 754,
overruled by
State v. Radosevich
, 2018-NMSC-028.
Where, in a case in which the victim died from multiple stab wounds, the only evidence presented by the state was that a knife or sharp object existed, that defendant's clothing might have been blood stained and that ten days passed between the murder and defendant's arrest, but there was no evidence of an overt act to destroy or hide any knife or blood stained clothing, the evidence was insufficient to support a finding beyond a reasonable doubt of intent by defendant to disrupt the police investigation or that defendant actively destroyed or hid evidence.
State v. Duran
, 2006-NMSC-035, 140 N.M. 94, 140 P.3d 515.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— Intentional spoliation of evidence, interfering with prospective civil action, as actionable, 70 A.L.R.4th 984.
Criminal liability of attorney for tampering with evidence, 49 A.L.R. 5th 619.
Negligent spoliation of evidence, interfering with prospective civil action, as actionable, 101 A.L.R.5th 61.