March 11, 2015
Tampering with evidence, etc. Clarke Superior Court. Before Judge Sweat.
Judgment reversed and case remanded.
John W. Donnelly, for appellant.
Kenneth W. Mauldin, District Attorney, Brian V. Patterson, Assistant District Attorney, for appellee.
DOYLE, Presiding Judge. Miller and Dillard, JJ., concur.
Doyle, Presiding Judge.
George Haynes appeals from his conviction for tampering with evidence and committing financial transaction card fraud, contending that he was incorrectly sentenced for felony tampering because the indictment was ambiguous as to whether it alleged the felony or misdemeanor version of that offense. For the reasons that follow, we agree and remand the case for resentencing.
Based on his role in a burglary by an alleged accomplice resulting in the stabbing death of the victim, Haynes was indicted for felony murder, burglary, aggravated assault, armed robbery, possession of a knife during the commission of a crime, tampering with evidence, and financial transaction card fraud. Following a jury trial during which his alleged accomplice testified, Haynes was acquitted of all counts except for tampering with evidence and financial transaction card fraud. The trial evidence showed that Haynes's alleged accomplice entered a mobile home to steal money and encountered the occupant, whom he killed during a struggle over a knife. The alleged accomplice then fled through a wooded path to a retail parking lot where Haynes was waiting in a car. The tampering charge arose from evidence that Haynes disposed of his alleged accomplice's blood spattered jumpsuit and the victim's wallet in a dumpster after the burglary.
The trial court sentenced Haynes to ten years confinement for the tampering count and two years concurrently for the fraud count. [331 Ga.App. 105] Haynes now appeals the sentence on the tampering count, arguing that the trial court erred by sentencing him for a felony when the indictment did not clearly charge him with a felony.
OCGA § 16-10-94 (c) provides the sentencing structure for tampering with evidence:
... [A]ny person who [commits the offense of tampering with evidence] involving the prosecution or defense of a felony and involving another person shall be guilty of a felony and, upon conviction thereof, shall
be punished by imprisonment for not less than one nor more than three years; provided, however, that any person who violates subsection (a) of this Code section involving the prosecution or defense of a serious violent felony as defined in subsection (a) of Code Section 17-10-6.1 and involving another person shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than ten years. Except as otherwise provided in this subsection, any person who violates subsection (a) of this Code section involving the prosecution or defense of a misdemeanor shall be guilty of a misdemeanor.
Based on the emphasized language above, Georgia's courts have interpreted this subsection to authorize a felony sentence only when the tampering is done in the case against another person. Tampering with evidence in one's own case is merely a misdemeanor.
Haynes's indictment accused him as follows:
We, the Grand Jurors aforesaid, do further charge and accuse [the alleged accomplice] and George Lee Haynes ... with the offense of TAMPERING WITH EVIDENCE for that the said [alleged accomplice and Haynes] ... did, with the intent to prevent the apprehension of each said accused for the felony offense of Murder, knowingly conceal certain [331 Ga.App. 106] physical evidence, to wit: the coveralls of [the alleged accomplice] and a wallet of [the victim], in violation of OCGA § 16-10-94, [c]ontrary to the laws of [Georgia].
Relying on Hampton v. State, Haynes argues that the indictment does not allege specifically whether he tampered with the evidence to prevent his own apprehension or the apprehension of his alleged accomplice. Therefore, Haynes argues, it is ambiguous and it must be construed in his favor, especially in light of the fact that neither the jury charge nor the verdict form required any specificity by the jury in its decision.
Hampton addressed a very similar scenario in which the indictment alleged tampering " to prevent the apprehension of [accomplice 1], [Hampton], and [accomplice 2]."  Because of this nonspecific language, the Supreme Court of Georgia concluded that
[t]he indictment, along with the jury charge and the evidence, permitted the jury to find that Hampton tampered with the evidence in his case alone (a misdemeanor) or in either or both [accomplice 1's] and [accomplice 2's] case (a felony). However, the verdict form simply contained a finding of guilty on the tampering count, making it impossible to determine if the jury found Hampton guilty of misdemeanor or felony tampering.
Based on the resulting ambiguity of the jury's verdict, the Court vacated Hampton's felony tampering sentence and remanded for misdemeanor sentencing, " [b]ecause Hampton must be given the benefit of the doubt in construing this ambiguous verdict." 
Here, the situation is no different. The indictment accused Haynes and his alleged accomplice of tampering " with the intent to prevent the apprehension of each said accused." Because " each said accused" could mean either of the accused, the jury could have found Haynes guilty of tampering to prevent his own apprehension (a misdemeanor) or the apprehension of his alleged accomplice (a felony). Neither the verdict form nor the jury charge required any further specificity. Therefore, as in Hampton, Haynes " must be given [331 Ga.App. 107] the benefit of the
doubt in construing this ambiguous verdict."  Accordingly, we vacate Haynes's felony tampering sentence and remand for resentencing in accordance with this opinion.
Judgment reversed and case remanded.
Miller and Dillard, JJ., concur.