STATE OF ARIZONA v. DONOVAN RICHARD LARRIBA TUCKER (2025)

OPINION

¶1 A jury convicted Donovan Larriba-Tucker of first-degree murder and several related crimes. He appeals only his convictions of one count of obstructing a criminal investigation and two counts of tampering with physical evidence. For reasons that follow, we reverse the tampering with physical evidence convictions, holding that concealing or removing evidence is not a separate crime under A.R.S. § 13-2809 where, as here, there was no indication that Larriba-Tucker was aware that an official proceeding was pending or was about to be commenced when the evidence at issue was concealed or removed. We otherwise affirm his convictions and sentences.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 2018, 15-year-old Nate (Larriba-Tucker's younger brother) and 15-year-old Zack decided to fight after Nate began dating Zack's ex-girlfriend.¹ Nate and Larriba-Tucker, together with two friends (Fred and Joe), agreed to meet Zack and two friends (Andrew and Tom) at a field in Chino Valley on June 29, 2018, to fight. While Nate and Zack fought (without weapons), Andrew waited by his car, where he saw Larriba-Tucker and greeted him. Larriba-Tucker responded “I'm not that nice,” then stabbed Andrew seven times.

¶3 Zack and Nate stopped fighting, and several of the boys took Andrew to Tom's house and called for help. Andrew was then taken to the hospital, where he died from his stab wounds.

¶4 Meanwhile, when Nate, Fred, and Larriba-Tucker returned to Joe's van, Larriba-Tucker told them “no snitching.” And when Fred and Joe dropped off Nate and Larriba-Tucker, Larriba-Tucker threw Fred a wet, bloody shirt and told him to get rid of it. Fred did so, throwing the shirt out of the van while Joe drove. Larriba-Tucker also told Fred and Joe to get rid of the knife he used to stab Andrew. Joe tossed the bloody knife in a trash can at a grocery store.

¶5 Fred and Joe both initially lied to police about what had happened. But when they were confronted with inconsistencies in their stories, they told officers that Larriba-Tucker had stabbed Andrew.

¶6 Larriba-Tucker was taken into custody on June 30, 2018, and he was charged with one count of first-degree murder, one count of obstructing criminal investigations or prosecutions, and two counts of tampering with physical evidence.² Following a jury trial, Larriba-Tucker was convicted of these four offenses. The superior court sentenced him to natural life for the first-degree murder conviction, to be served consecutively to a 1.5-year prison term for the obstructing a criminal investigation conviction and to concurrent 2-year terms for the tampering convictions.

¶7 Larriba-Tucker timely appealed, and we have jurisdiction under A.R.S. § 13-4033.

DISCUSSION

¶8 Larriba-Tucker argues the evidence was insufficient to sustain his convictions for obstructing a criminal investigation and tampering with physical evidence. The sufficiency of the evidence is a question of law we review de novo. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). We view the evidence in the light most favorable to sustaining the jury's verdicts. State v. Girdler, 138 Ariz. 482, 488 (1983). We do not distinguish between direct and circumstantial evidence, see State v. Stuard, 176 Ariz. 589, 603 (1993), and we will affirm a conviction if it is supported by substantial evidence, State v. Stroud, 209 Ariz. 410, 411, ¶ 6 (2005). Substantial evidence is evidence from which a reasonable juror could have found guilt beyond a reasonable doubt. Id. at 411–12, ¶ 6.

I. Obstructing a Criminal Investigation.

¶9 A person commits obstructing a criminal investigation by “knowingly attempt[ing] by means of ․ intimidation or force or threats of force to obstruct, delay or prevent the communication of information or testimony relating to a violation of any criminal statute to a peace officer, magistrate, prosecutor or grand jury.” A.R.S. § 13-2409.

A. Intimidation.

¶10 Larriba-Tucker argues that telling witnesses “no snitching” did not constitute intimidation, force, or threat of force. We disagree.

¶11 In State v. Sanchez, the court adopted the following definition of “intimidate”: “to make timid or fearful: FRIGHTEN; esp: to compel to action or inaction (as by threats).” 181 Ariz. 492, 495 (App. 1995) (quoting Webster's Third New International Dictionary, (G. & C. Merriam & Co. 1969)). The Sanchez court noted that fear or a similar response by the target of the intimidation is a key element of this definition. Id.

¶12 Here, Larriba-Tucker told Nate, Fred, and Joe “no snitching” immediately after the fight, and he told them to get rid of the bloody shirt and his knife. Joe testified that Larriba-Tucker's order sent “chills down [his] spine.” And none of the boys in Larriba-Tucker's group were truthful with the police when first questioned about the events, evidencing fear of reprisal by Larriba-Tucker. Thus, the evidence supports the jurors’ conclusion that Larriba-Tucker intimidated the witnesses.

B. Knowledge.

¶13 Larriba-Tucker also argues the conviction should be set aside because he did not knowingly intimidate Fred, Nate, and Joe by telling them “no snitching.” But the language he used implicitly suggested the opposite. The term “snitch”—and thus, “snitching”—carries a loaded connotation. See United States v. Colhoff, 833 F.3d 980, 985 (8th Cir. 2016); see also Richardson v. United States, 98 A.3d 178, 188 (D.C. 2014) (finding defendant's fear after being labeled a “snitch” was relevant to his self-defense claim); Brown v. United States, 89 A.3d 98, 104 (D.C. 2014) (finding the evidence sufficiently supported the defendant's conviction for obstruction of justice when he had instructed a witness to “keep the code,” referencing “the code of not snitching”); State v. Sabato, 138 A.3d 895, 905–06 (Conn. 2016) (finding evidence the defendant threatened a witness for “snitch[ing]” demonstrated the defendant's intent to influence, delay, or prevent the witness's testimony at a criminal trial); State v. Byrd, 967 A.2d 285, 297 (N.J. 2009) (noting that the urban proverb “snitches wear stitches” originated in the expectation of retribution against those who cooperate with the police) (citations omitted).

¶14 Larriba-Tucker does not meaningfully challenge the connotation of his “no snitching” comment, and the circumstances under which the comment was made supported an inference that he intended to intimidate the witnesses to prevent them from communicating truthfully with police about the stabbing. Larriba-Tucker was 10 years older and was larger than the boys who saw him stab Andrew. Fred and Jessie testified that they were afraid of Larriba-Tucker, and none of the boys who heard the “no snitching” command were initially truthful with the police when questioned. Thus, there was substantial evidence from which jurors could conclude that Larriba-Tucker knowingly obstructed a criminal investigation by telling the witnesses not to “snitch.”

II. Tampering with Physical Evidence.

¶15 The evidence does not support Larriba-Tucker's convictions of tampering with evidence. Under A.R.S. § 13-2809, a person commits tampering with physical evidence by destroying, mutilating, altering, concealing, or removing physical evidence with the intent to impair its verity or availability and with the intent that it be “unavailable in an official proceeding which is then pending or which such person knows is about to be instituted.” Larriba-Tucker argues the State did not prove the tampering convictions because there was no evidence he knew an official proceeding was about to be instituted. He concedes that it was reasonable to infer he knew an investigation of the stabbing was about to begin when he instructed the witnesses to get rid of the evidence, but he argues that an investigation does not qualify as an “official proceeding” under § 13-2809. We agree.

¶16 Under A.R.S. § 13-2801(2), an official proceeding is “a proceeding heard before any legislative, judicial, administrative or other governmental agency or official authorized to hear evidence under oath.” Arizona courts have not addressed whether an investigation is an “official proceeding” under this definition.

¶17 In interpreting this provision, we look first to the statute's plain language and consider the common meaning of any undefined terms. State v. Decker, 239 Ariz. 29, 32, ¶ 14 (App. 2016); see also A.R.S. § 1-213 (noting that statutes should be construed based on the common meaning of words and phrases, unless subject to an established legal definition). The word “investigation” does not appear in the plain text of the “official proceeding” definition. A.R.S. § 13-2801(2). While a police investigation is arguably an administrative governmental function, no governmental body hears evidence under oath in that context until charges are filed instituting a criminal prosecution. See Ariz. R. Crim. P. 2.1, 2.2. Accordingly, “investigation” does not fit cleanly into any of scenarios contemplated under § 13-2801(2).  ³

¶18 Arizona's tampering statute went into effect in 1978. See 1977 Ariz. Sess. Laws, ch. 172, § 90. The statute replaced A.R.S. § 13-547 (preparing or proffering false document; preventing production of document; punishment), which included the term “investigation.” A.R.S. § 13-547 (1956). The term also appeared in earlier versions of Arizona's and California's penal codes upon which § 13-547 was based. See Historical Notes to A.R.S. § 13-547 (1956); Rev. Stat. Ariz. Terr., Penal Code §§ 127, 129, 130 (1901); Rev. Stat. Ariz. Penal Code §§ 124, 126, 127 (1913); Ariz. Rev. Code §§ 4552, 4553 (1928); Ariz. Code Ann. §§ 43-3903, -3904 (1939); Cal. Penal Code §§ 132, 133, 135 (West 1872). The Arizona Legislature used much of the Model Penal Code's (“MPC”) Tampering with or Fabricating Physical Evidence language, which also referenced “investigation[s]” as well as “official proceeding[s].” MPC § 241.7; see State v. Bowsher, 225 Ariz. 586, 587–88, ¶ 9 (2010) (“The Commission and the Legislature generally relied on the [MPC] in drafting Arizona's revised criminal statutes.”). But the Legislature omitted the term “investigation” from § 13-2809, suggesting an intent to exclude investigations from the scope of that statute. See State v. Fell, 209 Ariz. 77, 81, ¶ 14 (App. 2004) (“[W]hen legislators amend a statute, we must presume they intended to change existing law rather than perform a futile act.”) (citations omitted).

¶19 Arizona's hindering prosecution statutes, in contrast, do not require that there be a pending or current official proceeding. See A.R.S. §§ 13-2510 to -2512. Under A.R.S. §§ 13-2511(A) and -2512(A), a person commits hindering prosecution (in the second degree and first degree, respectively) “if, with the intent to hinder the apprehension, prosecution, conviction or punishment of another for any [misdemeanor, petty offense, or felony, such] person renders assistance to the other person.” (Emphasis added.) The hindering prosecution statutes thus have a broader scope than § 13-2809 and do not require that an official proceeding be pending or about to be instituted. Had the Legislature that adopted the tampering statute intended to encompass actions taken by a defendant to steer an investigation away from him before he knew an official proceeding was about to be instituted, it could have adopted broader language such as that used in §§ 13-2510 to -2512 and in prior versions of Arizona's tampering statute.

¶20 Given this rubric, the chain of events after Larriba-Tucker stabbed Andrew does not support a conviction under § 13-2809. Zack, Andrew, and Tom did not know Larriba-Tucker before June 29, 2018, and did not know his name or relation to Nate at the time of the stabbing. Given Larriba-Tucker's directive not to snitch, the evidence did not establish knowledge that an official proceeding was about to be implemented against him, and instead arguably demonstrated Larriba-Tucker's hope or expectation that no such proceeding would be instituted. Thus, his actions fell outside the scope of § 13-2809. Accordingly, we reverse the two tampering with physical evidence convictions and vacate the sentences for those offenses.

CONCLUSION

¶21 We affirm Larriba-Tucker's convictions and sentence for first-degree murder and obstructing a criminal investigation, but we reverse his convictions and sentences for tampering with physical evidence.

FOOTNOTES

1.   We use pseudonyms to protect the victim's and then-juvenile witnesses’ identities.

2.   The State also charged Larriba-Tucker with two counts of disorderly conduct, an additional count of obstructing, and a count of conspiracy to commit fraudulent schemes and artifices, but those four charges were dismissed before trial at the State's request.

3.   Unlike Arizona, several states include the term “investigation” (or a substantially similar term) in their tampering with physical evidence statutes (or statutes addressing the same conduct). Alaska Stat. § 11.56.610(a)(1); Ark. Code Ann. § 5-53-111(a); Conn. Gen. Stat. § 53a-155(a); Fla. Stat. § 918.13(1)(a); Ga. Code Ann. § 16-10-94(a); Haw. Rev. Stat. § 710-1076(1); 720 Ill. Comp. Stat. 5 / 31-4(a)(1); Ind. Code § 35-44.1-2-2(a); La. Stat. Ann. § 14:130.1(A)(1)(a); Mass. Gen. Laws ch. 268, § 13B(b); Mich. Comp. Laws § 750.483a(3)(b); Minn. Stat. § 609.50(3)(a); Mo. Rev. Stat. § 575.100(1); Mont. Code Ann. § 45-7-207(1)(a); Nev. Rev. Stat. § 199.220; N.J. Stat. Ann. § 2C:28-6; Ohio Rev. Code. Ann. § 2921.12; 18 Pa. Cons. Stat. § 4910; Tenn. Code Ann. § 39-16-503(a)(1); Tex. Penal Code Ann. § 37.09(a)(1); Utah Code Ann. § 76-8-510.5(2).

CATTANI, Judge: