NOT TO BE PUBLISHED

OPINION

THOMPSON, Judge.

A Campbell Circuit Court jury convicted Gevoyl Beauchamp of tampering with physical evidence, possession of marijuana and being a first-degree persistent felony offender. He received a fifteen-year sentence. On appeal, Beauchamp alleges the following errors: (1) the trial court improperly admitted into evidence his prior tampering conviction; (2) the tampering with physical evidence instruction was erroneous; (3) the prosecutor improperly informed the jury that it only recommends a sentence; and (4) a probation and parole officer incorrectly testified regarding Beauchamp's parole eligibility. We agree with Beauchamp that his prior tampering conviction was erroneously admitted pursuant to Kentucky Rules of Evidence (KRE) 404(b) and reverse.

On October 23, 2013, Campbell County Drug Task Force Detectives Ryan Markus and Brady Buemi were conducting surveillance in an unmarked car on a house located on the corner of 10th and Putnam Streets in Newport, Kentucky, after receiving complaints of drug trafficking in the garage attached to the house. The detectives observed Beauchamp stop by the house in a white SUV and enter the garage and then leave in the SUV. Believing Beauchamp had engaged in a drug transaction, Detective Buemi followed Beauchamp. After the detectives observed Beauchamp "roll" past a red light, Detective Buemi activated his lights and siren. Beauchamp slowed the SUV but continued for a short time. Detective Markus testified that as the SUV slowed to a stop, he observed Beauchamp fidgeting as if he was trying to conceal something.

Once stopped, the detectives approached the SUV and informed Beauchamp he was stopped for running a red light. Detective Buemi testified that while Beauchamp was talking to the detectives, he moved his mouth as if he was attempting to shift something. When asked if there was anything in his mouth, Beauchamp turned his head away from Detective Buemi and replied no.

Detective Buemi opened the door, grabbed Beauchamp by the mouth and pulled him from the SUV. Detective Buemi testified it is not uncommon for drug dealers to keep drugs in their mouths and swallow the drugs when approached by law enforcement officers.

Detective Buemi pried open Beauchamp's mouth and saw a plastic bag which Beauchamp eventually swallowed. Detective Buemi testified that Beauchamp confessed he swallowed a marijuana joint.

During a pat down search, Detective Buemi found a cell phone and $2,044 in cash. The cell phone contained messages that Detective Buemi believed were drug-related. Detective Buemi also testified he could smell fresh marijuana emanating from Beauchamp.

After Detective Buemi warned Beauchamp he could be charged with promoting contraband if he took anything into jail with him, Beauchamp admitted having 6.9 grams of marijuana in his underwear. Detective Buemi testified Beauchamp confessed to putting the baggie of marijuana in his pants as he was being pulled over.

Prior to trial, the Commonwealth gave notice under KRE 404(c) that it would introduce evidence at trial of Beauchamp's prior tampering conviction as evidence of "knowledge, intent, plan and absence of mistake." The trial court ruled evidence of Beauchamp's prior tampering conviction was admissible to prove specific intent to tamper with physical evidence in the current case and its prejudicial impact did not outweigh its probative value.

At trial, Detective Buemi provided details of Beauchamp's prior tampering conviction. He testified that in 2007, Beauchamp was taken to the Campbell County Detention Center and taken to a bathroom for a strip search. A deputy jailer observed Beauchamp in possession of a plastic bag. When the jailer attempted to take the bag, Beauchamp took it, lunged toward a toilet, threw the bag in the toilet, and managed to flush the toilet while wrestling with the deputy. Detective Buemi testified the deputy described the contents in the bag as an off-white substance. The trial court admonished the jury that Beauchamp's prior criminal history could only be used to determine his intent to tamper with the physical evidence when stopped by the detectives.

Beauchamp testified he stopped at the home being watched by the detectives to look for a job. He denied having placed marijuana in his mouth when stopped by the detectives. Although he admitted he had some marijuana in his pants, he denied placing marijuana in his underwear when stopped by the detectives. Regarding the cash, Beauchamp testified it was part of an inheritance received from his father.

The jury found Beauchamp guilty of tampering with physical evidence and possession of marijuana. At the beginning of the penalty phase, the prosecutor reminded the jury that during voir dire, "we talked . . . about how the ultimate sentencing comes down from the judge, but it is your job to make a recommendation as to what you think would be an appropriate sentence within the penalty range." The Commonwealth also told the jury "there have been a number of changes that have been made [to the parole system] which makes being released on parole usually quicker or more likely." The jury recommended the maximum sentence of five years for tampering, enhanced to twenty years for the PFO I. The trial court deviated from the jury's recommended sentence and sentenced Beauchamp to fifteen years.

The elements of tampering with physical evidence are set forth in Kentucky Revised Statues (KRS) 524.100 which provides in part:

In Kentucky, tampering with physical evidence is a Class D felony. KRS 524.100(2). Our Supreme Court has recognized that "[c]oncern has been expressed that a barrage of felony charges against those who otherwise would be charged only with misdemeanors will . . . be brought" under the current tampering statute. Commonwealth v. Henderson, 85 S.W.3d 618, 620 (Ky. 2002). Nevertheless, it has held steadfast to its view that a tampering crime has not occurred simply because the incriminating evidence remains on one's person. It stated:

Id. at 619-20.

However, our Supreme Court has also recognized that when a person charged with tampering is also a defendant, the element of intent is not easily proven. As the Court noted in Mullins v. Commonwealth, 350 S.W.3d 434, 443 (Ky. 2011), "[w]here the person charged with tampering is not a defendant, it is easier to infer that by destroying, concealing, mutilating, removing, or altering evidence, there is intent to impair its availability." The same conclusion is not so easily reached when the defendant is charged with tampering with evidence of his or her own criminal act. In those cases, the tampering may be simply a continuation of the original criminal act or it may have been the defendant's intent to separate from the incriminating evidence, not specifically to destroy or conceal evidence to prevent its use in a subsequent criminal proceeding. Id.

There is strong logic and fairness in the argument that our tampering statute is sometimes misused to bootstrap a felony to a misdemeanor charge and that its consequences are often too harsh for the crime committed. This case is illustrative of its unjustness. Beauchamp was charged with a felony for destroying or concealing evidence that would support only a misdemeanor conviction. With that said and conceding that any change in the statute must come from the legislature, we address the admission of Beauchamp's prior tampering conviction.

KRE 404 contains a strict prohibition against the use of prior convictions. It states: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." KRE 404(b). Evidence offered only to demonstrate that "on other occasions a person has acted in a particular way, and . . . offered as proof that the person, being the sort of person who does that sort of thing or acts that way, is likely to have done the same sort of thing or acted that same way on the occasion at issue in this case" must be excluded. Darcy v. Commonwealth, 441 S.W.3d 77, 88 (Ky. 2014) (quoting Trorer v. Estate of Burton, 423 S.W.3d 165, 172 (Ky. 2014)). As stated in Marshall v. Commonwealth, 482 S.W.2d 765, 766 (Ky. 1972), "[t]he law distrusts the inference that because a man has committed other crimes he is more likely to have committed the current crime."

The rule provides limited exceptions, including to demonstrate "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident[.]" KRE 404(b). However, the rule is an exclusionary rule and must be strictly construed. Pendleton v. Commonwealth, 685 S.W.2d 549, 552 (Ky. 1985). "[T]rial courts must apply the rule cautiously, with an eye towards eliminating evidence which is relevant only as proof of an accused's propensity to commit a certain type of crime." Bell v. Commonwealth, 875 S.W.2d 882, 889 (Ky. 1994).

When offered to prove intent, a prior conviction is admissible only when intent is a genuine issue. Walker v. Commonwealth, 52 S.W.3d 533, 535 (Ky. 2001). If not, the trial court's inquiry ends and the evidence must be excluded. If so, the trial court must apply a three-part test. The trial court must examine the proposed evidence for its (1) relevance, (2) probativeness, and (3) prejudicial effect. Id. at 536. We review the trial court's application of KRE 404(b) for an abuse of discretion. Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007). The test for abuse of discretion is "whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire and Rubber Co. v. Thompson, 111 S.W.3d 575, 581 (Ky. 2000).

Beauchamp denied any intent to conceal the marijuana and, therefore, it was a genuine issue in dispute. The next question is whether his prior conviction was relevant to his intent to tamper with physical evidence. Because we conclude it was not relevant, we do not discuss its probativeness or its prejudicial effect.

Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." KRE 401. The same standard is applicable when determining relevancy for purposes of the intent exception to KRE 404(b). Quoting the Federal Court in United States v. Beechum 582 F.2d 898, 911 (5th Cir. 1978), in Walker, 52 S.W.3d at 537, the Court explained:

Does Beauchamp's prior conviction tend to prove he intended to consume the marijuana or conceal marijuana in his pants while being pursued by the detectives with the intent to destroy or conceal it so that it would not be available at trial against him? We conclude it was not.

Beauchamp's prior conviction for tampering did not tend to make it more probable that Beauchamp intended to tamper with the physical evidence on the date in question. The fact that Beauchamp flushed a baggie of suspected drugs down a toilet while undergoing a strip search in 2007 is not remotely relevant to his intent to swallow drugs or hide a baggie in his underwear in 2013. The evidence of his prior conviction for tampering only demonstrated that he had propensity to conceal or destroy drugs in his possession, a clearly impermissible use under KRE 404. We conclude the trial court abused its discretion in admitting Beauchamp's prior conviction and reverse.

Beauchamp's remaining contentions are unpreserved and he requests review under Kentucky Rules of Criminal Procedure (RCr) 10.26. He contends there was error in the jury instructions. He also contends that the prosecutor improperly informed the jury it only recommends a sentence and that during the penalty phase a probation officer testified incorrectly regarding Beauchamp's parole eligibility.

Because we are reversing and remanding, we decline to engage in palpable error review. However, we note that our Supreme Court has specifically approved the model tampering with physical evidence instruction set forth in Cooper, Kentucky Instructions to Juries, § 7.63, which is instructive:

Owens v. Commonwealth, 329 S.W.3d 307, 316 (Ky. 2011). Commending its use by our trial courts, the Court emphasized the instruction requires "identification of the particular item or items which, according to the proof, would qualify as physical evidence supporting the charge." Id.

Based on the foregoing, the tampering with physical evidence conviction is reversed and, because the felony conviction is reversed, the PFO I conviction is also reversed.

ALL CONCUR.