On September 28, 2004, appellant Roderick Cooper1 rode in a car with Carla Simmons, Torrell Young, and Donnie Murphy, to the home of Paul Rucker in Banks County. Simmons and Young went to the house and Simmons offered to have sex with Rucker for money. Young, Cooper and Murphy drove up the road for a few minutes. Upon returning, Young and Murphy entered Rucker’s house while appellant stayed in the car. Young and Murphy went into the bedroom and Simmons ran out of the house. Murphy assaulted Rucker with a bottle, while Young ransacked the bedroom looking for Rucker’s wallet. Simmons testified that she urged appellant to go into the house to see about Young and Murphy. Murphy testified that appellant entered the room and pointed his gun at Rucker and asked for money and then Young took the gun and demanded money from Rucker. Appellant and Young left the bedroom,2 found a computer in the living room, took it outside, and placed it in the car. Meanwhile, Murphy strangled Rucker to death. The four drove off and Murphy threw the bottle he used to assault the victim outside the car window onto a roadway near the victim’s house. The four then drove to a gas station where Murphy wiped the blood from his person, discarded his bloody garments and put on a pair of pants appellant gave him. Upon leaving the gas station, Young drove to an acquaintance’s house to sell the stolen computer and used the money raised therefrom to buy crack for himself, Murphy and Simmons who were all addicts. The next day, Young took Murphy’s shoes and disposed of them. At trial, the medical examiner testified that the cause of the victim’s death was blunt force trauma to the head complicated by asphyxia by manual strangulation. 1. The evidence as described above was sufficient for a rational trier of fact to find beyond a reasonable doubt appellant guilty as a party to the crime of murder, burglary, tampering with evidence bottle, armed robbery, and attempted armed robbery with a bottle. Jackson v. Virginia , 443 U.S. 307 99 SC 2781, 61 L.E2d 560 1979; OCGA § 16-2-20. The evidence was also sufficient under Jackson v. Virginia , supra, to find appellant guilty of attempted armed robbery with a gun, tampering with evidence discarding of clothes, and possession of a firearm by a first offender probationer.
2. The evidence was insufficient to convict appellant for tampering with evidence in regard to the gun. The indictment alleged that appellant “with the intent to obstruct the prosecution of another, did knowingly conceal physical evidence, to wit: a gun. . . .” At trial, there was evidence that appellant had a gun on his person at the victim’s home. However, the State did not present any evidence as to what, if anything, appellant did with the gun. In the absence of any evidence that appellant intentionally and “knowingly destroyed, altered, concealed, or disguised physical evidence,” OCGA § 16-10-94 a, he cannot be convicted for tampering with evidence. The State’s reliance on the mere fact that the police did not recover the gun is insufficient to prove appellant tampered with evidence in order to obstruct the prosecution of another as alleged in the indictment. See Chastain v. State , 255 Ga. 723 4 342 SE2d 678 1986 in the absence of evidence that the defendant placed a knife in the hand of the victim, defendant could not be convicted of tampering with evidence. See also Merritt v. State , 285 Ga. 778 2 683 SE2d 855 2009 mere repositioning of victim’s body insufficient to show perpetrator intended to frustrate his apprehension or obstruct the prosecution. Accordingly, appellant’s conviction for tampering with evidence regarding his gun is reversed.
