State v. Austin

ORS 162.295 requires that, in the absence of a pending proceeding at the time of the tampering, a person must have knowledge of a proceeding that is about to be instituted. Knowledge of a proceeding that is about to be instituted is not the same as a hope for a proceeding to be instituted at some indefinite point in the future.

Defendant appealed her conviction for tampering with physical evidence. Defendant was granted a temporary restraining order (RO) against her ex-boyfriend, Coffman. The day before a hearing on whether to continue the temporary RO, Defendant reported that Coffman violated the order by breaking a lamp in the residence they were living in together. An officer arrived when no one was home and noticed through the widow that the described lamp was undamaged. Later, a smashing noise was heard and Defendant was found inside the trailer. The officer returned and saw the lamp smashed. Defendant was charged with initiating a false report and tampering with physical evidence. At trial, Defendant moved for judgment of acquittal. The trial court denied the motion and Defendant was convicted. On appeal, Defendant argued the State failed to prove evidence of a pending proceeding or a proceeding that was about to be instituted. The Court agreed and held that a belief that a proceeding might occur is not the same as knowledge of an actual proceeding or one that is about to be instituted. The evidence was insufficient for a juror to find the “official proceeding” element beyond a reasonable doubt. Reversed.