Page 44 - TPA Journal July August 2017

The court of appeals appears to acknowledge we agree with the State and the court of
that the indictment must at least allege whether appeals that 1) the State alleged every element
the “evidence” altered, concealed, or of the offense of tampering with evidence
destroyed was “a record, document, or a when it amended its indictment and 2) the
thing.” However, the court of appeals deter- specific identity of the tampered-with evi-
mined that the specific identity of the evidence dence was not an element of the offense.
at issue was not an element of the offense. Id.

The court reasoned that the identity of the tam- The specific identity of the tampered-with evi-
pered-with evidence will be relevant at trial to dence is not an element of the offense.
show Zuniga’s intent, but it is not a separate However, the court of appeals did not address
element of the offense The court of appeals whether the trial court could have properly
correctly held that the specific identity of the determined that more specificity was required
evidence is, as one might expect, an eviden- in the indictment in order to provide the
tiary issue. The plain text of the statute uses the defendant with adequate notice of the charged
word “thing” to differentiate the tampered-with conduct. We remand this case for the court of
evidence from either a “record” or a “docu- appeals to fully address that issue.

ment.” The only time the statute specifies a
particular type of “thing” is in subsection (c) State v. Zuniga, No. PD-1317-15, Court of
where the offense becomes a second degree Criminal Appeals, Mar. 08, 2017.
felony if “the thing altered, destroyed, or con-
cealed is a human corpse.” The term “thing”
remains otherwise undefined.

Additionally, as the court of appeals properly
noted, intermediate courts have upheld con-
victions for tampering with evidence without
requiring the State to definitively prove exactly
what evidence was altered, concealed, or
destroyed.

The only “element” the State must allege in the
indictment is whether the evidence at issue
was “a record, a document, or a thing.” By
alleging that Zuniga tampered with “an
unknown substance,” the State seeks to prose-
cute Zuniga for tampering with a “thing,”
rather than a “record” or a “document.” Thus,

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