Opinion
Court of Appeals No. A-10419 Trial Court No. 3PA-07-1038 CR No. 5800
02-08-2012
COLEEN M. WOOD, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Caitlin Shortell, Anchorage, for the Appellant. W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Palmer, Beverly Cutler, Judge.
Appearances: Caitlin Shortell, Anchorage, for the Appellant. W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
COATS, Chief Judge.
Coleen M. Wood was required by the conditions of her probation to provide a urine sample to her probation officer for drug testing. Two days prior to her meeting with her probation officer, Wood saved a sample of her urine when she was drug free. She then used drugs. On the morning of the meeting with her probation officer, Wood placed a tiny bottle of the two-day-old urine into her vagina. When she was asked to provide a urine sample by her probation officer, Wood provided the urine from the bottle. Her probation officer refused the sample because it was contaminated by a piece of rubber band which Wood had used as part of the apparatus to secure the bottle. When Wood was asked to provide another sample, she confessed to her deception and admitted to having consumed methadone. Based on this evidence, Wood was convicted of tampering with physical evidence. Wood appeals. She argues that her conduct, as a matter of law, did not constitute tampering with physical evidence. We reject Wood's argument.
AS 11.56.610(a)(1), (4).
Factual and procedural background
In the spring of 2007, Wood was on felony probation for misconduct involving a controlled substance in the fourth degree, a class C felony. Wood's conditions of probation prohibited her from using illegal drugs and required her to submit to random urinalyses. Wood signed a Urinalysis Contract that stated that any attempt to "switch" urine samples would result in a violation and that a violation could result in Wood's probation officer petitioning the court to revoke her probation. Wood testified at trial that she understood that her probation officer, Conrad Brown, had the discretion to file a petition to revoke her probation if her urinalysis showed the use of a controlled substance.
AS 11.71.040.
Wood visited Brown every two weeks. She would talk with him about the events of her life and verify that she had complied with her probation conditions. On occasion, Brown would ask Wood to provide a urine sample. Brown had the discretion to make Wood submit a urine sample on any given visit. Wood had submitted urine samples for urinalysis on three occasions prior to April 10, 2007, and was familiar with the process.
Wood testified that she took methadone on April 8, 2007. Wood further testified that prior to ingesting the drug, she collected her own urine because she knew she had an April 10th appointment with Brown and that he could possibly ask her to submit a urine sample. Wood testified that she believed that if she provided a current sample of her urine on April 10th, a test of the sample would show that she had consumed methadone.
So, on the morning of April 10th, Wood funneled the urine she had collected on April 8th into a miniature Smirnoff bottle. She fastened a piece of aluminum foil over the bottle's opening with several small rubber bands. She testified that she had learned from fellow inmates this method of concealing drug use when she was in Hiland Mountain Correctional Center. Wood inserted the bottle inside her vaginal cavity ahead of her appointment with her probation officer to ensure that the temperature of the urine was roughly equivalent to its natural temperature.
When Wood arrived at Brown's office, Brown informed Wood that she would have to provide a urine sample, and asked Wood if she was prepared to do so. Wood said that she was. A female probation officer, Kathi Forgue, was called to assist with collecting Wood's urine sample. Wood was given a collection cup, and Forgue escorted Wood into the bathroom. Forgue stood by while Wood filled the collection cup with urine. Wood testified that she seated herself on the toilet and used the nail on her pinky to pierce the foil on the Smirnoff bottle. The urine then emptied into the collection cup. Wood presented the cup to Forgue. Forgue testified that she was unaware that Wood had not provided fresh urine. Forgue brought the cup to Brown, who was to administer the drug test. But Brown found a rubber band floating in the urine. Brown called his supervisor, Rebecca Brunger, over to view the sample. Brunger concluded that, because the sample was contaminated, it was invalid and Wood would need to provide another sample.
Brown told Wood that she would have to remain in the waiting room until she could provide a valid sample. Brown and Brunger both testified that Wood seemed nervous. Brown stated that he asked Wood if "there's anything she needed to tell [him] at that time." Brown testified that Wood responded that she had "something inside her." Wood contends that she also told the probation officers that she "faked" her urine sample and that she was "hot for methadone." Neither Brown nor Brunger recalled Wood making these additional assertions.
Brunger led Wood back into the bathroom, where Wood reached down the front of her pants and removed the empty Smirnoff bottle. Brunger testified that Wood said something equivalent to, "Fine, here it is." Brown testified that he had seen others use the same method in attempts to produce "false urine samples."
Brunger and Brown both testified that Wood subsequently confessed that she would likely be positive for drugs and signed a statement admitting to having methadone in her system. Wood contends she only signed the statement because Brown implied that she would be going to jail if she did not sign. Wood was then arrested and remanded to custody.
Wood was indicted under AS 11.56.610(a)(1) and (4) for tampering with physical evidence, and she was convicted at a jury trial.
Why we uphold Wood's conviction for tampering with physical evidence
Under AS 11.56.610(a)(1) and (4), a person commits the crime of tampering with physical evidence if they suppress or conceal physical evidence "with intent to impair its verity or availability in an official proceeding or a criminal investigation," or "with intent to prevent the institution of an official proceeding."
Wood argues that she did not suppress or conceal anything when she provided the two-day-old urine sample at the probation office because she "voluntarily admitted that she had used methadone." But the evidence presented at trial supported the conclusion that Wood provided the two-day-old urine sample to suppress or conceal the current urine sample that she was obligated to provide — because a current sample would provide evidence that she had consumed a narcotic drug in violation of her probation, which could lead to a revocation of her probation. It is true that she ultimately did not succeed with her plan. But she suppressed or concealed a current sample of her urine. The fact that her concealment was ultimately detected does not change the analysis.
Wood argues that the two-day-old urine sample she provided was not "physical evidence" because the "probation staff did not collect it after Ms. Wood admitted to having used methadone." But Wood was required to provide a urine sample to her probation officer under the conditions of her probation. The probation office would test the urine sample to determine whether Wood was abiding by her conditions of probation by avoiding the use of illegal drugs. Alaska Statute 11.56.900(4) defines "physical evidence" as "an article, object, document, record, or other thing of physical substance." Urine is a physical substance, as distinguished from testimony, which lacks physical substance. After Wood admitted and described her deception, the State had no need to obtain a current urine sample to charge Wood with tampering with physical evidence.
Wood also contends that the evidence at trial was not legally sufficient to support the jury's determination that Wood "secret[ed] the bottle of urine into her urine test with the intent to prevent the institution of an official proceeding." But again, Wood was required by the conditions of her probation to provide a urine sample. The evidence at trial supported the conclusion that Wood engaged in a premeditated scheme to avoid providing a current urine sample that would disclose that she had consumed methadone. If the urine sample disclosed that she had consumed methadone, Wood would be in violation of her probation and could face revocation of that probation. This evidence would support a conclusion that Wood concealed physical evidence (a current sample of her urine) intending to prevent the institution of an "official proceeding," a revocation of her probation. We conclude that the evidence presented at trial supported Wood's conviction for tampering with physical evidence.
Under AS 11.81.900(b)(41), "'official proceeding' means a proceeding heard before a legislative, judicial, administrative, or other governmental body or official authorized to hear evidence under oath."
Wood also argues that she received ineffective assistance of counsel. This court's decision in Barry v. State requires, in most cases, that an ineffective assistance of counsel claim be argued "first to the trial judge either in a motion for a new trial or an application for post-conviction relief." Wood's case does not present one of the exceptional circumstances which would allow us to review her claim of ineffective assistance of counsel on direct appeal.
675 P.2d 1292 (Alaska App. 1984).
Id. at 1295.
See Sharp v. State, 837 P.2d 718, 722-23 (Alaska App. 1992).
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Wood also claims that her sentence is unlawful because she was denied her constitutional rights to due process and effective assistance of counsel. Wood's final claim is essentially a restatement of the claims we have already addressed.
Conclusion
The judgment of the superior court is AFFIRMED.