Criminal Law Blog

“It’s not evidence tampering. . . . I was hiding evidence of a crime that police didn’t know about yet!”


Offutt v. United States, No. 15-CF-538 (decided April 6, 2017)

Players: Associate Judges Thompson and McLeese, Senior Judge Ferren. Opinion by Judge McLeese. Thomas D. Engle and Sharon L. Burka for appellant. Trial Judge Todd E. Edelman.

Facts: Mr. Offutt was shot by a neighbor outside of his apartment following an altercation on August 12, 2013. Evidence showed that during the altercation, Offutt retrieved the gun from his apartment but was disarmed and shot with it. A witness flagged down two officers and reported the incident. When police arrived, Offutt reported that he had been shot. The officers called an ambulance that took Offutt to the hospital (but not before he punched his neighbor in the face, saying “that’s the [expletive] who shot me”).

At the hospital, a detective told Offutt that police were getting a warrant to search his apartment. Later, Offutt went to the police station and complained about being barred from his apartment. A detective told him he would not be allowed in until a search warrant could be executed.

Police executed their warrant on the afternoon of August 13. They discovered that a large glass door leading to the balcony had been shattered and a screwdriver lay next to an access panel on a wall in the back bedroom. There were also signs (debris and marks) that something had been dragged across the floor.  Offutt’s upstairs neighbor (not involved in the shooting) testified that late on the night of August 12, he heard glass shatter, went out on his balcony, looked down, and saw Offutt. He saw Offutt again later that morning.

Offutt testified that his neighbor pulled the gun during their altercation. Offutt also testified that he weighed over 300 pounds and had injured his neck and back just before August 12, and that he had a plate in his arm that prevented him from doing a pull-up or scaling his balcony. Offutt did not tell the physicians treating his gunshot wound about this injury. A jury found Offutt guilty of simple assault and tampering with evidence but acquitted him of numerous weapon offenses.

Issue 1: Whether the evidence was sufficient to support Mr. Offutt’s conviction for tampering with evidence, given the lack of evidence as to what he tampered with.

Holding 1: Yes. A person is guilty of tampering if, knowing or having reason to believe an official proceeding has begun or knowing that one will likely be instituted, that person conceals or removes an object with the intent to impair its availability for use in the proceeding. The jury could have reasonably found that Offutt broke into his apartment and removed something. It could have also inferred that Offutt acted with intent to prevent police from finding something that could be used in the investigation and prosecution of the shooting. Offutt was shot outside of his apartment and knew he was not allowed in until after police searched; still, he broke in to remove something in the middle of the night. Although Offutt could have wanted to take something unrelated to the incident, there is no indication that he did, given the risk required to get in. Evidence need not rule out every possible inference of innocence to be sufficient.

Issue 2: Whether the trial court reversibly erred by allowing the prosecution to cross-examine Mr. Offutt about his attorney’s failure to introduce medical records related to his physical therapy.

Holding 2: No. Assuming error, it was harmless under Kotteakos. The government permissibly cross-examined Offutt on his failure to inform the physicians who treated him for his gunshot wound of his alleged accident, injury, or physical therapy. The government was allowed to draw attention to the absence of records corroborating the injury.

Of Note: 
The rule announced here—that in order to prove tampering, the government need not “necessarily” prove what evidence was concealed or removed—is best understood in light of the unusual facts of this case. Offutt was arguing that the government had failed to rule out the possibility that he broke into his apartment to conceal or remove something illegal but unrelated to this case. In making its ruling, the Court relied on the absence of any suggestion that Offutt possessed an unrelated object that was incriminating enough to prompt the “extraordinary” steps taken.


Read the full opinion here.