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Stepovich v. State (4/26/2013) ap-2391

Stepovich v. State (4/26/2013) ap-2391


        The text of this opinion can be corrected before the opinion is published in the 

        Pacific Reporter.    Readers are encouraged to bring typographical or other formal 

        errors to the attention of the Clerk of the Appellate Courts: 

                               303 K Street, Anchorage, Alaska  99501

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                                                            Court of Appeals No. A-10668 

                                Appellant,                 Trial Court No. 4FA-08-3726 Cr 


                                                                    O    P  I  N  I  O  N 


                                Appellee.                     No. 2391    —   April 26, 2013 

                Appeal     from   the  Superior    Court,   Fourth   Judicial  District, 

                Fairbanks, Mark I. Wood, Judge. 

                Appearances:      Marcia E. Holland, Missoula, Montana, under 

                contract with the Stepovich and Vacura Law Office, Fairbanks, 

                for   the   Appellant.  Diane   L.   Wendlandt,   Assistant   Attorney 

                General,     Office    of   Special    Prosecutions     and    Appeals, 

                Anchorage, and John J. Burns, Attorney General, Juneau, for the 


                Before:    Coats,    Chief   Judge,  and   Mannheimer      and  Bolger, 


                MANNHEIMER, Judge. 

----------------------- Page 2-----------------------

                Nicholas Stepovich appeals his convictions for fourth-degree controlled 

substance misconduct (possession of cocaine) and attempted evidence tampering. 1                     He 

contends that the evidence against him was the unlawful fruit of an investigative stop that 

was not supported by reasonable suspicion of identifiable criminal activity.  Stepovich 

also   argues   that   his   trial   was   flawed   by   two   mistaken   evidentiary   rulings. Finally, 

Stepovich argues that the evidence presented at his trial is insufficient to support his 

conviction for attempted evidence tampering. 

                For the reasons explained in this opinion, we conclude that the investigative 

stop was proper.      With respect to the two challenged evidentiary rulings, we conclude 

that one ruling was proper and the other was harmless.  Finally, we agree with Stepovich 

that the State’s case was insufficient to support his conviction for attempted evidence 


        Underlying facts 

                Fairbanks   Police   Officer   Kurt   Lockwood   was   on   patrol   in   downtown 

Fairbanks in the early morning hours of November 8, 2008.                  He decided to check the 

parking lot located behind the Big I Bar because there had been problems with homeless 

people and transients sleeping near the residences in that area. 

                As Lockwood was driving past the back entrance to the Big I, he saw two 

men standing near a Dumpster.   The men were facing each other and standing very close 

together — perhaps 18 inches apart.  Their heads were bent forward, toward each other. 

The men’s hands were cupped, at approximately chest level, and their hands were either 

    1   AS 11.71.040(a)(3)(A) and AS 11.56.610(a)(1), respectively. 

                                                  – 2 –                                              2391 

----------------------- Page 3-----------------------

touching or nearly touching.        The men were staring intently downward, toward their 


               As soon as Lockwood spotted the men, he hit the brakes of his patrol car. 

Both men looked up, and Lockwood observed that they had expressions of “sheer panic”, 

as if they had been “caught in a cookie jar”.   The men immediately separated from each 

other, and they put their hands in their pockets. 

                One   of   these   men   (the   man   who  was   initially   facing  in   Lockwood’s 

direction) was Nicholas Stepovich. 

               As the men separated, Lockwood got out of his patrol car and directed both 

men to stop.    When they continued walking, he repeated this directive several times, 

using words to the effect of, “Fairbanks police:   Stop; hold it right there.  ...   Don’t go in 

the bar.  Stop right there; hold on.” 

                Stepovich’s companion eventually stopped walking, but Stepovich did not. 

Stepovich kept walking away from Lockwood, toward the Dumpster, and then he circled 

around the Dumpster to the other side (i.e., out of Lockwood’s sight).   He had his hands 

in the front pockets of his jacket. 

               As Stepovich rounded the Dumpster, Lockwood saw him pull his hands out 

of his jacket and extended them in front of him.   A few moments later, when Stepovich 

emerged from behind the Dumpster (and into Lockwood’s sight again), he was holding 

his hands in plain view. 

                Stepovich   now   appeared   relaxed,   and   he   spoke   to   Lockwood,   saying, 

“What’s the big deal?      I was just urinating,” or “I was just taking a leak.” 

               Lockwood   summoned   a   backup   officer,   and   after   this   officer   arrived, 

Lockwood went around to the other side of the Dumpster, where Stepovich had been. 

There, Lockwood found a paper slip of cocaine lying on top of the fresh snow.                Based 

on this discovery, Stepovich was arrested. 

                                               – 3 –                                           2391

----------------------- Page 4-----------------------

               Incident   to  this  arrest,   Lockwood  searched  Stepovich’s   pockets.   He 

discovered and seized $865 in cash and a small plastic jar full of gold nuggets.   The gold 

nuggets weighed slightly more than 307 grams (i.e., a little less than 11 ounces); this 

amount of gold was worth between $8,000 and $9,000. 

               After Stepovich was transported to the Fairbanks police station, Lockwood 

had a drug-detection dog sniff the cash and the gold nuggets that had been seized from 

Stepovich.    This dog, who was named Argo, was trained to detect the   odor of four 

controlled substances: cocaine, marijuana, methamphetamine, and heroin.  Argo alerted 

when he smelled the cash and the nuggets; that is, he apparently detected the odor of at 

least one of these four controlled substances. 

               Stepovich was ultimately charged with possession of cocaine and attempted 

tampering with evidence (for dropping the slip   of cocaine to the ground behind the 


        The State’s rationale for the investigative stop, and the superior court’s 


               After Stepovich was indicted, he filed a motion asking the superior court 

to suppress all evidence stemming from his encounter with Officer Lockwood after the 

officer directed him to stop. 

                The superior court ruled that when Officer Lockwood directed Stepovich 

not to walk away, but to stay so that the officer could make contact with him, Lockwood 

subjected Stepovich to an investigative stop.    The State does not challenge this portion 

of the superior court’s ruling.  Instead, the State argues that this investigative stop was 

justified by a reasonable suspicion of criminal activity, under the test formulated by this 

Court in State v. G.B., 769 P.2d 452, 456 (Alaska App. 1989). 

                                            – 4 –                                        2391

----------------------- Page 5-----------------------

                 At the evidentiary hearing in the superior court, Officer Lockwood offered 

this explanation of why he made the investigative stop: 

                          Lockwood :        Based   on   my   training   and   experience, 

                 when I pulled up [and] saw these [two] individuals standing 

                  as close as they were together, ... both [of them with] their 

                 hands      ...  cupped[,     and]   very    intently    looking     down     at 

                  something[,   and]   given   ...   the   hour   of   the   day,   [and]   the 

                 location, ... it was [immediately apparent] to me that these 

                 men [were] involved in either a narcotics use [or a narcotics] 

                 transaction of some sort. 

                          .   .  . 

                          I’ve    spent    the   majority     of  my    ten   years    [in  law 

                  enforcement] working [the] midnight shift.  The bar scene is 

                 not something new to me.              I contact people quite often out 

                 behind their cars, [because the] restrooms are full, [or] for 

                 whatever reason, urinating, whatever. ... Buddies don’t stand 

                  face-to-face urinating.        They don’t stand face-to-face with 

                 their hands in that position smoking a cigarette. 

                          And I’ve seen all of the above hundreds of times, you 

                 know, two guys out sharing a cigarette in the fresh air, two 

                 guys urinating next to each other behind a car, or out of sight 

                  somewhere like that ... .   [But this case was different because 

                 of] where [the two men] were at, [and because] they looked 

                 up [in] sheer panic — guilty [conscience], if you will. 

                          Because ... guys that are urinating behind their cars [at] 

                 the bars, oftentimes, you know, they see [an officer] and ... 

                 they’ll wave, ... or they kind of scurry behind their car — but 

                 their   hands   are   different,   their   actions   are   different.    You 

                 know, they’re not really trying to hide anything; they’re not 

                 — they don’t have that look of, “Gee, I’m busted.”  It’s more 

                  [a look of] slight[] embarrassment at the time. 

                                                      – 5 –                                                2391

----------------------- Page 6-----------------------

                         Guys smoking a cigarette will wave at you; guys just 

                 out talking to their buddy will wave at you.            ...  It was ... the 

                 combination of events, of where they were placed, how they 

                were placed, where their hands were, and [their] immediate 

                 first reaction of ... sheer panic:      “Oh my gosh, there’s ... the 

                 cops, and now we have to scurry.” 

                 Superior Court Judge Mark I. Wood adopted this reasoning when he ruled 

that, given the circumstances, Officer Lockwood acted properly: 

                         The Court:  [It was] about one o’clock in the morning 

                 [on a Saturday], ... behind the Big I Bar.            This ... officer ... 

                 [was]   driving    behind    the   Big   I   Bar,   [and]   he   [saw]   two 

                 individuals who [were] located ... behind the Dumpster that’s 

                behind the Big I Bar.        Now, they [were] visible [from] the 

                 alley, but they [were] ... not really visible [from] the Big I. 

                         And when [the officer saw] them, ... they [were] not ... 

                 standing by a car.   Instead, they [were] behind a Dumpster at 

                 this hour.   And ... their heads [were] bowed, looking down, 

                 looking at their hands.  [Their hands were] up by their chest, 

                 their   hands   [were]   touching,   and   ...   [in]   almost   a   cupped 


                         Now, ... our law enforcement officers [can properly 

                 take   steps   to]   find   out   what’s   going   on   in   that   type   of   a 

                 situation.    And   ...   Officer   Lockwood   testified   that   he   ... 

                wanted to ask them questions.           [But] when he stopped [his 

                patrol car] and started to get out of the car, and they looked 

                up [and] saw a police car ... — well, there was a panic[ked] 

                 expression, there was sudden activity, there was movement, 

                 there was undirected movement of their feet; I think the word 

                was “scurrying”.       ...  [From the testimony], it sounded like 

                 they were going back and forth, not knowing which way to 

                 go, and then they place[d] their hands in [their] pockets and 

                walk[ed] quickly back to the Big I. 

                                                   – 6 –                                              2391

----------------------- Page 7-----------------------

                           [The      two    men]     weren’t      smoking       anything;      they 

                  weren’t       urinating;     [it]  didn’t    look     like   there    was    any 

                  conversation going on.   Whatever they were doing involved 

                  this    examination        of   whatever      was     in  their    hands.      A 

                  reasonable officer with Officer Lockwood’s training could 

                  assume that there was illegal activity afoot, [and] particularly, 

                  ... drug activity — given the location, the time, and the nature 

                  of the conduct, and [the men’s] reaction when they realized 

                  that a police officer was watching them do it.  That fits all of 

                  the grounds that Newsom talks about. 

                           .   .  . 

                           [The     officer’s     suspicion     was]    more     than    a  hunch 

                  because      of   the   [men’s]     reaction,     [and]    because     of   their 

                  location, and the time of night.   ... [And] this was a minimally 

                  intrusive stop.      He asked them to stop, [but] he didn’t chase 

                  them.    He went ... in the direction where Mr. Stepovich was 

                  heading, and ... Mr. Stepovich went [behind] the Dumpster, 

                  and     then    he    went    around      the   Dumpster        and[,   within] 

                  moments[,   he]   came   back   out   with   a   completely   different 


                           .   .  . 

                           So I’m not going to suppress the evidence from the 

                  stop[.]    I’m going to deny the motion to suppress.                  ...  [The 

                  officer] had a right to ask them to stop. 

         Why we conclude that the investigative stop was proper 

                  The encounter between Stepovich and Officer Lockwood essentially has 

two parts.      The first part consisted of Lockwood’s observation of Stepovich and the 

second man standing close together, face-to-face, beside the dumpster, with their hands 

cupped in front of them. 

                                                       – 7 –                                                   2391

----------------------- Page 8-----------------------

               Given the location (the parking lot behind a bar) and the time of day (one 

o’clock in the morning), we agree with Judge Wood that the circumstances were unusual, 

and that it was reasonable for Officer Lockwood to “[take steps to] find out what [was] 

going on” by stopping his patrol car and asking questions. 

               The issue in this case arises from the fact that Lockwood did not merely ask 

questions; rather, he exerted his authority as a law enforcement officer, commanding 

Stepovich and his companion to remain where they were while he investigated what was 

going on.    Thus, the encounter became a “seizure” for Fourth Amendment purposes. 2 

               Lockwood’s investigative stop of Stepovich would be justified only if the 

officer had a “reasonable suspicion” that “imminent public danger exist[ed] or [that] 

serious harm to persons or property [had] recently occurred.”             Coleman v. State, 553 

P.2d 40, 46 (Alaska 1976).  See also State v. G.B., 769 P.2d 452, 455-56 (Alaska App. 

1989) (interpreting the Coleman test). 

               This Court has held that the illicit sale of drugs qualifies as an “imminent 

public danger” for purposes of the  Coleman test, 3 so the question here is whether the 

facts known to Lockwood supported a reasonable inference that he had just interrupted 

a drug transaction. 

               We have already quoted Lockwood’s description of what he saw — the 

location (an empty alley behind a bar), the time of day (one o’clock in the morning on 

a Saturday), and Lockwood’s explanation of why he concluded that he was probably 

    2   See Majaev v. State , 223 P.3d 629, 632 (Alaska 2010): “A seizure [occurs] when [an] 

officer, by means of physical force or show of authority, has in some way restrained the 

liberty of a citizen.” 

    3   Skjervem v. State, 215 P.3d 1101, 1106 (Alaska App. 2009); LeMense v. State , 754 

P.2d 268, 272-73 (Alaska App. 1988). 

                                               – 8 –                                            2391 

----------------------- Page 9-----------------------

witnessing a drug transaction rather than witnessing two men sharing a cigarette, or two 

men who had gone outside to urinate. 

                 Lockwood’s suspicion was heightened by the reaction of the two men when 

he stopped his patrol car in their vicinity.          As Lockwood described in his testimony, 

Stepovich       and   his  companion       reacted   with    “sheer   panic”;    both   men    had    facial 

expressions as if they had been “caught in a cookie jar”.  Stepovich and his companion 

immediately broke away from each other, and they put their hands in their pockets. 

                 We   conclude   that   these   circumstances,   taken   together,   gave   rise   to   the 

articulable suspicion required by Coleman — a reasonable suspicion that Lockwood had 

just   interrupted   a   drug   sale. Accordingly,   we   affirm   the   superior   court’s   denial   of 

Stepovich’s motion to suppress the cocaine. 

         The admissibility of the evidence that the drug-detection dog alerted to the 

         cash and the jar of gold nuggets found in Stepovich’s pockets 

                 The major evidentiary problem facing the State was to prove that Stepovich 

was the person who dropped the slip of cocaine that Officer Lockwood found on the 

ground      behind    the   bar.   As    Stepovich’s     attorney    emphasized       during    his  cross- 

examination of Lockwood, Lockwood did not see Stepovich throw or drop the slip to the 

ground.   Moreover, Lockwood never saw cocaine (or any other controlled substance) in 

Stepovich’s       hands,   nor   did   Lockwood       find   any   cocaine-related     paraphernalia      in 

Stepovich’s possession following his arrest. 

                 To   bolster   its   circumstantial   case   that   the   slip   of   cocaine   belonged   to 

Stepovich, the State introduced evidence (over Stepovich’s objection) that Argo, the 

drug-detection       dog,   alerted   to  the  cash   and   the   jar  of  gold   nuggets    seized   from 

Stepovich’s pockets following his arrest. 

                                                   – 9 –                                              2391

----------------------- Page 10-----------------------

                This     information     was    introduced     through    the   testimony     of  Officer 

Lockwood and the testimony of Argo’s handler, Trooper Brian Zeisel. 

                Lockwood        testified   that,   following    Stepovich’s      arrest,  he   searched 

Stepovich’s pockets and found the cash and the jar full of gold.                Lockwood explained 

that the jar of gold was discovered in one of the jacket pockets where Stepovich had 

thrust his hands when the officer approached. 

                Lockwood theorized that the jar of gold or the cash, or both, might have the 

odor of cocaine if they had been in the vicinity of cocaine long enough, so Lockwood 

decided to summon a drug-detection dog to smell these items.  Lockwood hid the items 

out   of   sight   in   two   different   rooms   of   the   police   station   —   the   cash   in   one   of   the 

mailboxes in the police mail room, and the jar of gold nuggets (with the lid of the jar 

removed) in a box in the police briefing room.  Lockwood then called Zeisel and asked 

him to bring his dog, Argo, to the police station to see if the dog found anything. 

                Argo alerted to the cash in the mail room and to the jar of gold nuggets in 

the briefing room. 

                During Zeisel’s testimony, he explained that Argo was trained to detect four 

different controlled substances: marijuana, cocaine, heroin, and methamphetamine.  The 

fact that Argo alerted to the cash and to the jar of gold nuggets meant that both of these 

items gave off one of the four smells that Argo had been trained to detect. 

                (With respect to the jar of gold nuggets, Zeisel conceded that he did not 

know whether Argo alerted to the nuggets or to the jar itself.) 

                In   the   superior   court,   Stepovich’s   attorneys     argued    that   the   evidence 

pertaining to the dog sniff was not admissible unless and until the State established a 

valid scientific basis for this evidence under the Daubert test. 4             However, the defense 

    4   See Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 589-95, 113 S.Ct. 


                                                 –  10 –                                              2391 

----------------------- Page 11-----------------------

attorneys did not attack the validity of the scientific premises of this evidence — for 

example, the premise that a dog can detect odors that are undetectable by humans, or the 

premise that a dog can be trained to react in a particular, identifiable fashion to one or 

more specific odors. 

                 Instead,   Stepovich’s      attack   on   the  dog-sniff   evidence     focused    on   the 

arguable ways in which the evidence might not be probative of the factual assertion for 

which it was offered — to wit, the State’s assertion that the cash and the jar of gold 

nuggets found in Stepovich’s pockets had recently been in contact with, or in the close 

vicinity of, cocaine. 

                 Stepovich’s lawyers pointed out that the dog, Argo, had been trained to 

react in the same way to four different controlled substances (marijuana, cocaine, heroin, 

and methamphetamine), so the fact that Argo alerted to the cash and the jar of gold did 

not necessarily prove that these items smelled of cocaine, as opposed to one of the other 

three controlled substances. 

                 Stepovich’s lawyers also presented the testimony of a dog handler expert 

witness, Lieutenant Garry Gilliam of the Anchorage Police Department. 

                 With respect to the fact that Argo alerted to the cash found on Stepovich, 

Gilliam testified that this fact had little probative value, because a large percentage of 

United   States   currency   is   contaminated        with   trace   amounts   of   illegal   drugs   —   in 

particular, cocaine. 

                 Gilliam also testified that one of the major chemical ingredients of cocaine, 

methyl benzoate, dissipates over time.             Thus, even if the cash and the jar of nuggets 

    4   (...continued) 

2786, 125 L.Ed.2d 469 (1993) (announcing a new test for assessing the admissibility of 

scientific   evidence);  State   v.   Coon ,   974   P.2d   386,   395-98   (Alaska   1999)   (adopting   the 

Daubert test under the Alaska Rules of Evidence). 

                                                  –  11 –                                               2391 

----------------------- Page 12-----------------------

found in Stepovich’s possession had been in contact with cocaine, the methyl benzoate 

might have dissipated by the time the police conducted the dog sniff.  This would suggest 

that Argo might have been reacting to some substance other than cocaine. 

                After hearing this evidence (and the arguments of Stepovich’s attorneys), 

Judge Wood concluded that Stepovich’s attack on the dog-sniff evidence did not really 

raise   an   issue  of   scientific  validity  under  Daubert .     Rather,   the   judge   concluded, 

Stepovich had offered potential reasons for doubting the probative value of the evidence. 

                Judge Wood acknowledged that if Argo had reacted solely to the cash, this 

“alert” might have little probative value.  But the judge pointed out that Argo reacted to 

both the cash and the jar of gold nuggets. 

                Judge Wood further acknowledged that Stepovich’s attorneys had raised 

other “legitimate concerns” about the probative force of this evidence.                 But the judge 

declared that the ultimate question was “whether those concerns [are so paramount] that 

I [sh]ouldn’t submit [the issue] to the jury to [let them] figure it out.” 

                Judge Wood concluded that Stepovich’s concerns about the probative value 

of the dog-sniff evidence “[went] to weight, not admissibility”, so the judge allowed the 

State to introduce this evidence.  However, the judge declared that he would instruct the 

jury   that   the   dog-sniff   evidence   “should   be   treated   with   caution”,   because   it   was 

important for the jury to understand “that they need to scrutinize [this] evidence”.  Judge 

Wood invited Stepovich’s attorneys to submit such an instruction. 

                On appeal, Stepovich renews the arguments that he made in the superior 

court.   But the record shows that Judge Wood understood the potential problems with 

this evidence, and the judge concluded that these problems affected the weight, rather 

than the admissibility, of the evidence. 

                The question is whether Judge Wood’s resolution of this issue constitutes 

an    abuse   of   discretion   —   i.e.,  whether     his  decision    was   “clearly   untenable     or 

                                                 –  12 –                                           2391

----------------------- Page 13-----------------------

unreasonable”.      Gonzales v. State, 691 P.2d 285, 286 (Alaska App. 1984).   Our review 

of the record convinces us that Judge Wood did not abuse his discretion when he decided 

to admit this evidence, but to instruct the jurors to view the evidence with caution. 

        The admissibility of the evidence concerning the value of the cash and the 

        gold nuggets found on Stepovich’s person when he was arrested 

                As we have explained, Stepovich was found to be carrying $865 in cash and 

several thousand dollars’ worth of gold nuggets when he was arrested.                      Before trial, 

Stepovich   asked   the   superior   court   to   prohibit   the   State   from   introducing   evidence 

concerning the value of the cash and the gold. Stepovich’s attorney argued that the value 

of the cash and the gold was irrelevant, and that admission of this evidence would simply 

encourage the jury to speculate that Stepovich was engaged in “some nefarious activity” 

apart from his alleged possession of the cocaine. 

                (The defense attorney was apparently referring to the possibility that the 

jurors   might   conclude   that   Stepovich   was   either   selling   drugs   or   was   planning   to 

purchase a much greater quantity of drugs in the near future.) 

                The   prosecutor   conceded   that   Stepovich’s   possession   of   such   a   large 

amount of cash and gold gave rise to a reasonable inference that Stepovich was “engaged 

in trafficking” — either buying or selling large amounts of drugs.                But the prosecutor 

argued that, even though the State had only charged Stepovich with simple possession 

of cocaine (and not possession for purposes of distribution), the State was nevertheless 

entitled to introduce evidence of how much cash and gold Stepovich was carrying — 

because if Stepovich was engaged in buying or selling cocaine in commercial quantities, 

this would be relevant to prove that he possessed the slip of cocaine at issue in this case. 

                                                 –  13 –                                           2391

----------------------- Page 14-----------------------

                 Judge Wood declared that he would not “sanitize the facts [for] the jury”, 

and so he allowed the State to introduce evidence of the value of the cash and the gold 

that Stepovich was carrying.         However, the judge expressly prohibited the prosecutor 

from using this evidence to argue that Stepovich was engaged in the distribution of 


                 Judge   Wood’s   ruling   appears   to   be   a   reasonable   effort   to   balance   the 

probative value of the evidence against its potential for unfair prejudice, and to minimize 

that potential unfair prejudice. 

                 But even assuming that this ruling was an abuse of discretion, any error was 

harmless under the facts of Stepovich’s case.              Stepovich’s wife testified at trial that 

Stepovich was a restaurant owner, and that he regularly carried large amounts of cash on 

his person during the days leading up to his weekly deposit of funds into the bank.  With 

respect   to   the   jar   of   gold   nuggets,   Stepovich’s   wife   explained   that   Stepovich   had 

purchased the nuggets at her request, because she intended to use the nuggets to make 

jewelry for friends and family. 

                 When Stepovich designated the transcript in this case, he did not designate 

the summations of the parties to the jury at the end of the trial.                 However, we must 

assume   that   the   prosecutor   obeyed   Judge   Wood’s   directive,   and   that   the   prosecutor 

refrained from arguing that Stepovich’s possession of the cash and the gold nuggets 

indicated that he was engaged in the distribution of drugs. 

                 Given this record, we conclude that the evidence concerning the value of 

the cash and the gold nuggets did not appreciably affect the jury’s verdict. 5 

    5   See Love v. State , 457 P.2d 622, 634 (Alaska 1969) (holding that, for instances of 

non-constitutional error, the test for harmlessness is whether the appellate court “can fairly 

say that the error did not appreciably affect the jury’s verdict”). 

                                                  –  14 –                                             2391 

----------------------- Page 15-----------------------

        Why we conclude that the evidence presented at Stepovich’s trial is not 

        legally sufficient to support Stepovich’s conviction for attempted tampering 

        with evidence 

                Under AS 11.56.610(a)(1), a person commits the offense of tampering with 

physical evidence if the person “suppresses or conceals” physical evidence with the 

intent to impair its availability in an official proceeding or a criminal investigation. 

                Based on evidence that Stepovich stepped behind a Dumpster when Officer 

Lockwood approached, and that Stepovich dropped or threw the slip of cocaine to the 

ground   behind   the   Dumpster,   the   State   charged   Stepovich   with   attempted   evidence 

tampering — that is, an attempt to suppress or conceal the cocaine. 

                We   addressed   an   analogous   situation   in    Vigue   v.   State,   987   P.2d   204 

(Alaska App. 1999).  In Vigue, a police officer contacted the defendant for urinating in 

public. 6   Vigue walked towards the officer, but he kept his hands behind his back. 7 

Then the officer saw Vigue make a shaking motion, as if he had dropped something from 

his hands behind his back. 8   When Vigue arrived at the officer’s patrol car, the officer 

examined the ground where Vigue had been standing, and he discovered five rocks of 

crack cocaine. 9 

                Based   on   these   facts,   Vigue   was   convicted   of   tampering   with   physical 

evidence, on the theory that he “suppressed” or “concealed” the cocaine. 10                 This Court 

reversed Vigue’s conviction: 

    6   Vigue, 987 P.2d at 205. 

    7   Ibid.

    8   Ibid.

    9   Ibid.

    10  Id. at 204. 

                                                 –  15 –                                            2391

----------------------- Page 16-----------------------

                         The fact that Vigue intended to make it harder for [the 

                 officer]   to  detect   the  cocaine    does   not   mean    that  Vigue 

                 actually    succeeded      in   “suppressing      or  concealing”      the 

                 cocaine when he tossed or dropped it to the ground. Indeed, 

                under the facts of this case, no suppression or concealment 

                 occurred:     [the   officer]   observed   Vigue’s   action   and   was 

                 alerted   to   the   possibility   that   something   might   be   on   the 

                 ground at the spot where Vigue had been standing. 

Vigue, 987 P.2d at 210. 

                 After we concluded that Vigue’s actions did not amount to the completed 

crime of evidence tampering, we then addressed — and rejected — the possibility that 

the facts of Vigue’s case might support a conviction for the lesser offense of attempted 

evidence tampering: 

                         One could argue that, even if Vigue did not succeed in 

                 suppressing or concealing the cocaine, he nevertheless tried 

                 to   do   so,  and   so   his  conviction     should    be   reduced    to 

                 attempted     evidence-tampering.         Again,     this  would    make 

                 sense if we interpreted the terms “suppress” and “conceal” 

                broadly.        But   ...  we   are  persuaded      to  give    a  narrow 

                 interpretation to the terms “suppress” and “conceal.”  We are 

                 convinced that a broad reading of these terms would lead to 

                results that are inexplicably harsh and probably not within the 

                 legislature’s intent ... .    As [other state courts noted], if the 

                words   “suppress”   and   “conceal”   are   interpreted   to   cover 

                 actions such as tossing evidence to the ground, or tossing 

                 evidence out of a car window, or hiding evidence in one’s 

                 clothing,   then   minor   possessory   offenses   would   often   be 

                 converted to felonies with little reason. 

Vigue, 987 P.2d at 210-11. 

                                                  –  16 –                                             2391

----------------------- Page 17-----------------------

                Thus,   Vigue   apparently     rejects  the   State’s  theory   of  prosecution     in 

Stepovich’s case. 

                The State attempts to distinguish Vigue by noting that Stepovich discarded 

the slip of cocaine while he was standing behind a Dumpster, out of Officer Lockwood’s 

direct view.    The State analogizes Stepovich’s case to a number of cases from other 

jurisdictions where courts upheld the evidence-tampering convictions of defendants who 

swallowed drugs or threw drugs down drains or into toilets. 

                But   whether   a   defendant’s   conduct   constitutes   evidence   tampering   (or 

attempted   evidence   tampering)   does   not   hinge   on   whether   the   defendant’s   conduct 

occurred in the direct view of the police.  Rather, the question is the degree to which the 

defendant’s conduct impaired the recovery or availability of the evidence. 

                This Court’s opinion in Anderson v. State , 123 P.3d 1110 (Alaska App. 

2005), is instructive on this point.  In Anderson , the police were chasing the car in which 

Anderson   was   riding.     During     the   chase,   Anderson   tossed   a  handgun,   as   well   as 

ammunition and the magazine for the handgun, out of the car window. 11  This Court held 

that Anderson’s conduct did not constitute the offense of evidence tampering. 

                We first re-affirmed our holding in  Vigue that a conviction for evidence 

tampering   must   be   supported   by   more   than    proof   that   the   defendant   tossed   away 

evidence while being approached or chased by the police. 12           We then explained that the 

test for whether a defendant’s conduct constitutes evidence tampering is “whether the 

    11  Anderson , 123 P.3d at 1117. 

    12  Id. at 1119. 

                                               –  17 –                                           2391 

----------------------- Page 18-----------------------

defendant   disposed   of   the   evidence   in   a   manner   that   destroyed   it   or   that   made   its 

recovery substantially more difficult or impossible.” 13 

                We then gave an example of conduct that might occur in full view of the 

police, but would nevertheless constitute evidence tampering:   a defendant who poured 

a bag of powder cocaine out of the window of a moving car. 14 

                To analyze the facts of Stepovich’s case under our decisions in Vigue and 

Anderson , we must ask whether Stepovich’s actions made it impossible or substantially 

more   difficult   for   Officer   Lockwood   to   recover   the   slip   of   cocaine.   Even   though 

Stepovich did step behind the Dumpster, out of Lockwood’s direct view, Lockwood saw 

Stepovich do this. Moreover, Lockwood suspected — from the way that Stepovich held 

his hands when he went behind the Dumpster, and then when he emerged again — that 

Stepovich had discarded something.  Lockwood, like the officer in Vigue, quickly went 

behind the Dumpster, observed the slip of cocaine, and recovered it. 

                True, Stepovich was only charged with attempt, and not the completed 

crime of evidence tampering.          But in  Vigue we explained why the law will not allow a 

conviction for attempt in these circumstances, and we now re-affirm what we said in 


                Accordingly, the State’s evidence is not sufficient to support Stepovich’s 

conviction for attempted evidence tampering. 

    13  Ibid. 

    14  Ibid. 

                                                 –  18 –                                              2391 

----------------------- Page 19-----------------------


              For the reasons explained here, we AFFIRM Stepovich’s conviction for 

fourth-degree    controlled   substance   misconduct     (possession   of  cocaine),  but  we 

REVERSE Stepovich’s conviction for attempted evidence tampering. 

                                            –  19 –                                      2391

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