author: CORNELIA A. CLARK, J.,

text:
    STATE of Tennessee v. Curtis Lee MAJORS.
    Supreme Court of Tennessee, at Nashville.
    June 2, 2010 Session at Cookeville.

    Sept. 3, 2010.

      J. David Wicker, Jr., Nashville, Tennessee, for the appellant, Curtis Lee Majors.
    Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Robert E. McGuire, Assistant Attorney General, for the appellee, State of Tennessee.

      . Oral argument was presented at Derryberry Hall on the campus of Tennessee Technological University in Cookeville, Putnam County, Tennessee, as a part of the Supreme Court Advancing Legal Education for Students (S.C.A.L.E.S.) project.

   OPINION

CORNELIA A. CLARK, J.,

delivered the opinion of the Court,

in which JANICE M. HOLDER, C.J., and GARY R. WADE, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

We accepted this case to determine whether, under Tennessee Code Annotated section 39 — 16—503(a) (1), the proof required to convict the defendant of tampering with evidence is sufficient where the “thing” destroyed during the course of an investigation is not specifically identified. On the facts of this case, we hold that the evidence is sufficient. The judgment of the trial court is affirmed.

Facts

Curtis Majors (“Defendant”) was originally indicted on February 7, 2006. The grand jury issued a superseding indictment on November 16, 2006, charging Defendant with one count of possession with intent to sell or deliver less than 0.5 grams of a substance containing cocaine within one thousand feet of a school zone and one count of tampering with evidence. Defendant pled not guilty to both counts.

Prior to trial, Defendant moved to dismiss the indictment for tampering with evidence, arguing that, in its failure to specify the evidence with which Defendant had tampered, the superseding indictment was too vague to satisfy the requirements of federal constitutional and Tennessee statutory law. After hearing oral argument on April 3, 2007, the trial court denied the motion.

The following facts were adduced at trial. At approximately 9:00 P.M. on October 12, 2005, seven officers of a Metropolitan Nashville Police Department crime suppression unit executed a search warrant for an apartment located at 621 Charles E. Davis Boulevard. Officer William Traughber, the affiant for the search warrant, led the unit members to the apartment door. As the officers approached the door, a male opened the door and was apprehended inside the apartment by Officer Traughber. The officers all yelled “search warrant” and “police” as they entered the apartment. Each officer wore a raid vest bearing the department logo, a badge, and the word “police” in large lettering.

Officer Traughber testified that, right inside the door, there was a flight of steps leading up into the kitchen. When Officer Traughber entered the apartment, he could see Defendant seated at the kitchen table. Officer Traughber testified that Defendant “absolutely” saw the members of the crime suppression unit and heard them yelling “police.” Defendant then “t[ook] off running” from the kitchen table and disappeared from view. Officer Traughber saw Officers Ron Black and Tim Szymanski pursue Defendant as he left the kitchen. Officer Traughber testified that he then heard the “instantaneous” sound of a toilet flushing.

Officer Black testified that he could not see Defendant when he first entered the apartment but went upstairs because he heard a “commotion” in that area. Officer Black encountered Defendant coming out of the bathroom and took Defendant into custody. The toilet had just been flushed, water was still spraying in the bowl, but Defendant was completely dressed. Officer Black found no one else around Defendant when he took Defendant into custody just outside the bathroom.

Officer Traughber estimated that the bathroom was located about fifteen to twenty feet from the top of the steps. By the time that Officer Traughber climbed the steps, Defendant had been apprehended at the bathroom door. The commode’s water tank was still filling up, and Defendant was wearing all of his clothes. Officer Traughber observed water splattered on the toilet seat.

After apprehending Defendant, the man who opened the door, and two other individuals in the apartment, the officers searched the premises. Officers Traugh-ber and Black both testified that no drug residue or paraphernalia were observed in or around the toilet. Furthermore, the officers did not attempt to see if any drug-related evidence had been lodged in the toilet. Nor did they locate any drug paraphernalia or weapons on Defendant’s person.

At the kitchen table, however, Officer Traughber found a small plate with a white powdery substance on it and a rolled-up dollar bill next to it. The powder field-tested positive for cocaine. This powder was collected and sent to the Tennessee Bureau of Investigation for further testing. At trial, Agent John Scott, a TBI forensic scientist, testified that he tested the powder and determined that it consisted of 0.04 grams of cocaine. The officers also recovered digital scales from a kitchen drawer, along with crack pipes and Chore Boy (a copper scouring pad frequently used as a filter for smoking crack cocaine) on the persons of other individuals arrested inside the apartment.

Defendant was read his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defendant then agreed to speak with Officer Traughber. Defendant admitted that the cocaine on the kitchen table belonged to him and that he snorted cocaine. When Officer Traughber asked Defendant what he flushed down the toilet, Defendant did not answer the question directly but repeatedly stated, “I snort.”

Lieutenant William MacKall testified as an expert in narcotics investigations. Based on his experience executing more than two thousand search warrants, Lieutenant MacKall testified that, when police enter a residence, the subjects of the search warrants often move around attempting to destroy evidence. Specifically, he testified that “people typically run to the bathroom and throw the product in the toilet and flush it.” He testified that powder cocaine dissolves in water such that he has only been able to recover powder cocaine left on the rim of the toilet seat. Furthermore, if evidence is actually flushed down the toilet (as opposed to getting clogged in the drain or not going under in the first place), Lieutenant Mac-Kali testified that he has never been able to recover that evidence, even by removing the toilet from the floor.

At the conclusion of the proof, the trial court instructed the jury. Concerning the second count for tampering with evidence, the trial court orally gave the following instruction:

For you to find the defendant guilty of this offense the State must have proven beyond a reasonable doubt the existence of the following essential elements: (1) that the defendant knew an investigation or official proceeding was pending or in progress and (2) that the defendant altered, destroyed, or concealed any record with intent to impair its viredity (phonetic), legibility, or availability as evidence in the investigation or official proceeding. And it also needs to be record or any thing. It should be thing. And I think it’s also any document. I am going to change this.

The record does not contain the written charge that the trial court actually submitted to the jury.

The jury ultimately convicted Defendant of simple possession of cocaine, a Class A misdemeanor, and tampering with evidence, a Class C felony. Following the convictions, Defendant filed a motion for judgment of acquittal, see Tenn. R.Crim. P. 29(c), and two motions for new trial, see Tenn. R.Crim. P. 33. Among other issues, Defendant’s motions argued that the evidence supporting the tampering conviction was insufficient to establish the identity of the “thing” that Defendant allegedly destroyed; the trial court should have granted the prior motion to dismiss the tampering count from the indictment; and the jury instruction for tampering failed to specify the “thing” that Defendant allegedly destroyed. The trial court denied all of these motions. The trial court then determined that Defendant was a Range III, persistent offender and sentenced him to fifteen years for tampering with evidence and eleven months, twenty-nine days for simple possession, to be served concurrently.

Defendant appealed only his conviction and sentence for tampering with evidence, raising three issues to the Court of Criminal Appeals. First, Defendant challenged the sufficiency of the evidence to establish either his knowledge of an investigation pending or in progress or the identity of the “thing” with which Defendant tampered. Second, Defendant challenged the jury instruction for failing to name the “thing” that was destroyed. Finally, Defendant challenged his sentence because the trial court purportedly did not give proper consideration to a mitigating factor. A split panel of the Court of Criminal Appeals affirmed Defendant’s conviction, with one judge dissenting on the sufficiency of the evidence. See State v. Majors, No. M2007-01911-CCA-R3-CD, 2009 WL 1422951 (Tenn.Crim.App. May 21, 2009).

This appeal followed. In this Court Defendant raises the issues of (1) sufficiency of the evidence, (2) error in the jury instructions, and (3) failure to grant the motion to dismiss the indictment, all related to the State’s inability to identify the “thing” Defendant flushed down the toilet.

Analysis

I. Sufficiency of the Evidence

A. Standard of Review

When evaluating the sufficiency of the evidence, we must determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In making this determination, we afford the prosecution the strongest legitimate view of the evidence as well as all reasonable and legitimate inferences which may be drawn therefrom. State v. Bland, 958 S.W.2d 651, 659 (Tenn.1997). Questions concerning the credibility of the witnesses, the weight to be given the evidence, and factual issues raised by the evidence are resolved by the trier of fact. Id. Because a verdict of guilt removes the presumption of innocence and imposes a presumption of guilt, the defendant upon conviction bears the burden of showing why the evidence is insufficient to support the verdict. State v. Rice, 184 S.W.3d 646, 661 (Tenn.2006); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.1982). This standard is identical whether the conviction is predicated on direct or circumstantial evidence. State v. Casper, 297 S.W.3d 676, 683 (Tenn.2009); State v. Brown, 551 S.W.2d 329, 331 (Tenn.1977).

In the absence of direct evidence, a criminal offense may be established entirely by circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn.1973); Marable v. State, 203 Tenn. 440, 313 S.W.2d 451, 456-58 (1958). We have traditionally held, however, that, before the trier of fact convicts a defendant on circumstantial evidence alone, the evidence “must be so strong and cogent as to exclude every other reasonable hypothesis save the guilt of the defendant, and that beyond a reasonable doubt.” State v. Crawford, 225 Tenn. 478, 470 S.W.2d 610, 612 (1971). A “web of guilt must be woven around the defendant from which he cannot escape and from which facts and circumstances the jury could draw no other reasonable inferences save the guilt of the defendant beyond a reasonable doubt.” Id. at 613. The weight of circumstantial evidence, the inferences to draw from such evidence, and the extent to which that evidence is consistent with guilt are all questions for the jury. State v. James, 315 S.W.3d 440, 456 (Tenn.2010); Smith v. State, 205 Tenn. 502, 327 S.W.2d 308, 317 (1959).

B. Elements of Tampering with Evidence

Tennessee’s criminal code provides as follows:

Tampering with or fabricating evidence. — (a) It is unlawful for any person, knowing that an investigation or official proceeding is pending or in progress, to:
(1) Alter, destroy, or conceal any record, document or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding[.]

Tenn.Code Ann. § 39-16-503(a)(l) (2006). Thus, the felony offense of tampering with evidence consists of three elements: (1) an ongoing investigation about which the accused knows, (2) the accused alters, destroys, or conceals some “record, document or thing,” and (3) the accused tampers with the “record, document or thing” in order to impair its use as evidence in the investigation. Here, Defendant maintains that the evidence was insufficient in two respects. First, Defendant contends that the evidence did not establish his knowledge of an investigation that was pending or in progress. Second, Defendant argues that the evidence did not establish the identity of the precise “thing” that defendant altered, concealed, or destroyed, or even that he altered, concealed, or destroyed any “thing” at all.

Defendant’s Knowledge of an Investigation

Officer Traughber testified that the members of the crime suppression unit all yelled “police” and “search warrant” as they entered the apartment. The officers were wearing raid vests with the police department logo, a badge, and the word “police” in large lettering. Defendant “absolutely” saw the officers and heard their yelling before he “t[ook] off running” from the kitchen table. The officers’ exclamations and attire, coupled with Defendant’s response to hearing and seeing the officers, are sufficient for a reasonable trier of fact to conclude that Defendant knew an investigation was in progress when he got up from the kitchen table. See State v. Logan, 973 S.W.2d 279, 282 (Tenn.Crim.App.1998).

Nonetheless, Defendant maintains that he did not know an investigation was in progress because the members of the crime suppression unit purportedly did not comply with the “knock and announce” rule when they executed the search warrant. Under this rule, “a law enforcement officer who is charged with the execution of a search warrant must give: (1) notice of his authority; and (2) the purpose of his presence at the structure to be searched.” State v. Perry, 178 S.W.3d 739, 745 (Tenn.Crim.App.2005) (discussing Tenn. R.Crim. P. 41(e)). Under federal law, the “knock and announce” procedure is one factor in determining the reasonableness of a search and seizure, see Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995), and, except in certain exigent circumstances, failure to comply with the rule in Tennessee is grounds for excluding any evidence seized under the search warrant, see State v. Curtis, 964 S.W.2d 604, 609 (Tenn.Crim.App.1997).

The Court of Criminal Appeals rejected Defendant’s argument based on the knock and announce rule. The intermediate appellate court began by reasoning that the rule is typically cited for the proposition that police seized evidence in violation of the Fourth Amendment, but Defendant never filed a motion to suppress the evidence that the officers collected from the apartment. Majors, 2009 WL 1422951, at *4. It also noted that, under federal law, a majority of the federal circuit courts of appeal had concluded that police entry through an open door does not violate the rule. Id. Finally, it concluded that, setting aside the knock and announce issue, the evidence established the fact of Defendant’s awareness of an investigation for purposes of the evidence tampering statute. Id.

We agree with the Court of Criminal Appeals’ resolution of this issue. We hold that the evidence is sufficient to establish that Defendant had knowledge of an investigation in progress when he rushed to the bathroom and flushed the toilet.

Identification of “Thing” Tampered With

We turn now to the question of whether the language of the statute requires the State to establish the exact “thing” with which the accused allegedly tampered. The provisions of the criminal code are to be “construed according to the fair import of their terms.” Tenn.Code Ann. § 39-11-104 (2006). This construction requires that we give “[t]he words of the statute ... their ordinary and natural meaning,” and we refer to dictionary definitions where appropriate. State v. Williams, 690 S.W.2d 517, 529 (Tenn.1985); see also Logan, 973 S.W.2d at 282.

“Thing” means “an object or entity not precisely designated or capable of being designated.” Webster’s Ninth New Collegiate Dictionary 1226 (1986). Therefore, it is a vague word by definition. Consistent with the ordinary and natural meaning of “thing,” our evidence tampering statute makes no attempt to define it more precisely. In using the word “thing,” the statute creates criminal liability for tampering with any object or entity, even if it is not capable of precise designation.

The rest of the statutory language supports this broad, generic construction of the word “thing.” As our Court of Criminal Appeals has previously explained, “ ‘[djestroy1 is a verb that means to ruin or put out of existence. For something to be destroyed within the context of T.C.A. § 39-16-503, its evidentiary value must be ruined.” Logan, 973 S.W.2d at 282 (citations omitted). Similarly, “conceal” is a verb meaning “to prevent disclosure or recognition of’ or “to place out of sight.” Webster’s Ninth New Collegiate Dictionary 271 (1986). The verb “alter” means “to make different without changing into something else.” Id. Furthermore, the statute additionally requires that the tampering of a thing take place “with intent to impair its ... availability as evidence.” Tenn.Code Ann. § 39-16-503(a)(l). Where a person ruins, puts out of existence, prevents disclosure of, places out of sight, or makes different some “thing” and thereby carries out the person’s intent to keep the “thing” from being available as evidence, then a person may succeed in getting rid of the “thing” altogether. In such cases, the State may be unable not just to recover the “thing” but also to identify exactly what “thing” was tampered with. Yet, this is the precise situation in which the statute imposes criminal liability.

If the legislature had wanted to predicate liability for evidence tampering on the precise identification of the “thing,” it could have done so. Indeed, the criminal code contains very precise language in a number of other statutes, including various tampering statutes. For example, the road construction tampering statute prohibits, among other things, the intentional destruction or alteration on any state road or highway of letters and figures on a “detour sign,” “warning sign,” “barricade,” or “fence” — all defined within the section. Tenn.Code Ann. § 39-17-108(a) & (b)(1)-(2) (2006). Elsewhere, the Code makes it a criminal offense “to knowingly damage, destroy, remove or otherwise tamper with a residential mailbox or other container such person knows or reasonably should know is used for the receipt and deposit of United States mail.” Id. § 39-14-412(a) (2006). Still another provision prohibits influencing the winning of a prize by “tampering with lottery equipment or materials.” Id. § 39-17-607 (2006). Indeed, in the section immediately following the provision at issue in this case, the Code prohibits the intentional destruction or concealment of a “governmental record,” a term expressly defined elsewhere. See id. §§ 39-11-106(15), 39-16-504 (2006 & Supp.2009). These examples show that, when the legislature wishes to be specific in identifying the prohibited target of a defendant’s tampering, the Code uses precise language frequently accompanied by specific definitions. In the statute at issue here, however, the legislature proscribed the alteration, destruction, or concealment of a “thing” — a term for an object or entity not precisely designated and perhaps not even capable of being designated.

Based on the language of the statute and our comparative analysis of other criminal code sections, we hold that, in order to obtain a conviction for tampering with a “thing” of evidence, the State is not required to identify the specific object or entity that the defendant altered, destroyed, or concealed with the intent to impair its verity, legibility, or availability as evidence in an investigation or official proceeding. Instead, the statute only requires that the State establish beyond a reasonable doubt that the defendant altered, destroyed, or concealed some evi-dentiary “thing,” even if it is not capable of precise identification. See Vaughn v. State, 33 S.W.3d 901, 903-04 (Tex.App.2000) (holding that, where the prosecution could not positively prove what object the defendant had flushed down the toilet, the proof was factually and legally sufficient to sustain conviction for evidence tampering under a similarly worded statute).

In this case Defendant argues that the proof is insufficient to establish that he altered, concealed, or destroyed any “thing” at all. The State, while conceding that the evidence to support Defendant’s tampering conviction is entirely circumstantial, argues that the only reasonable inference is that Defendant flushed the toilet to alter, destroy, or conceal some “thing” to prevent its availability as evidence in a criminal investigation. The Court of Criminal Appeals concluded that the evidence was sufficient to support the conviction. We agree.

Affording the prosecution the strongest legitimate view of the evidence and all reasonable and legitimate inferences to be drawn therefrom, the facts adduced at trial established that, once members of the crime suppression unit entered the apartment shouting “police” and “search warrant,” Defendant got up from the kitchen table and “t[ook] off running” into the interior of the apartment. After Defendant disappeared the “instantaneous” sound of a flushing commode was heard. Heading directly upstairs upon entering the apartment, Officer Black confronted Defendant as Defendant came out of the bathroom, while water was still spraying in the toilet bowl. Officer Black found no one else around Defendant when he arrested Defendant. The only reasonable inference to be drawn from this evidence is that Defendant was the person who flushed the commode.

The purpose of flushing a commode is to dispose of the contents in the toilet bowl. While those contents ordinarily consist of human waste, the evidence in this case compels a different inference. Officer Traughber heard the “instantaneous” sound of a flushing commode after Defendant got up from the kitchen table and disappeared from view. As set forth above, Defendant ran for the bathroom with the knowledge that an investigation was pending. When Officer Black apprehended Defendant at the bathroom entrance, Defendant was completely dressed, even as water was still spraying in the toilet bowl. Similarly, Officer Traughber found Defendant wearing all his clothes, even as the commode’s water tank continued to refill. Defendant was not rearranging his clothes as would be expected if he had used the toilet for its intended purpose. Officer Traughber also observed water (and not urine) splattered on the toilet seat, as if something had been dropped in the bowl, and splashed water up.

Furthermore, when asked what he had flushed down the toilet, Defendant repeatedly stated, “I snort.” Defendant gave no indication that he flushed the commode because he had been using the restroom. Defendant also admitted that the powder cocaine Officer Traughber found at the kitchen table belonged to him. Additionally, according to Lieutenant MacKall’s expert testimony, powder cocaine would dissolve in the toilet bowl water, and any other objects that actually went down the toilet would be impossible to recover, even if the members of the crime suppression unit had attempted to lift the toilet off the floor.

Taken together, we conclude that the circumstantial evidence in this case supports only one reasonable inference: Defendant flushed some “thing” down the toilet in order to prevent its confiscation by the police. The instantaneous flushing sound and the water splattered on the toilet seat indicate that, upon seeing the officers enter the apartment, Defendant hastily rushed to the bathroom to throw something in the toilet bowl. If Defendant had run to the bathroom to use the facilities, one would not expect Officer Traugh-ber to hear an immediate flushing sound or to discover merely water splattered on the toilet seat. Furthermore, Defendant’s state of complete dress while the toilet bowl was still refilling and his repetition of the statement “I snort” make it unreasonable to infer that Defendant used the toilet for its intended purpose. The expert testimony confirms that, once Defendant flushed the commode and the contents of the toilet bowl went down into the toilet, the evidence in the bowl became impossible to recover. Defendant thereby concealed and prevented the disclosure of whatever he had flushed down the toilet bowl, ruining its evidentiary value. Thus, Defendant “concealed]” and “destroyed]” the “thing,” within the meaning of section 39 — 16—508(a)(1). See State v. Papillion, 556 So.2d 1331, 1336 (La.Ct.App.1990) (affirming conviction for obstruction of justice where defendant was seen leaning over a flushing commode and officers found drug paraphernalia and cocaine elsewhere in the residence, but nothing besides five bullets was recovered from the commode).

We are not persuaded by Defendant’s reliance on a case involving the abandonment of evidence during a flight from police. In State v. Patton, law enforcement officers attempted to arrest the defendant at the end of a drug transaction with a police informant. 898 S.W.2d 732, 734 (Tenn.Crim.App.1994). The defendant ran from the officers and tossed away the bag of marijuana that he had just purchased. Officers arrested the defendant and retrieved the bag. The Court of Criminal Appeals held that the trial court properly dismissed the indictment charging the defendant with evidence tampering because the statute did not criminalize “ ‘mere abandonment’ of contraband.” Id. at 736; see also State v. Jones, 983 So.2d 95, 99 (La.2008) (collecting cases for the proposition that tampering with evidence does not occur “where a defendant merely drops, throws down, or abandons drugs [or other contraband] in the presence of police officers”). In this case, however, Defendant did not merely abandon evidence by, for instance, throwing it in a corner. Instead, the circumstantial evidence establishes that Defendant took some evidentiary “thing” with him to the bathroom, which he proceeded to flush down the toilet so that the police officers were unable to recover it. After surveying the law across multiple jurisdictions, the Jones court concluded that appellate courts have upheld convictions for evidence tampering “where the defendant did something to impair the evidence’s integrity, veracity, or availability at trial.” 983 So.2d at 100. Here, in flushing some “thing” down the toilet so that law enforcement could not recover it, Defendant committed the requisite action to impair the evidence’s availability at trial, and the “mere abandonment” cases do not control.

We are also not persuaded by Defendant’s citation to the factually distinguishable case of C.K. v. State, 753 So.2d 617 (Fla.Dist.Ct.App.2000). In that case, the court considered the sufficiency of the evidence for a violation of Florida’s evidence-tampering statute, which provides that “ ‘(1) No person, knowing that a criminal ... investigation by a ... law enforcement agency, ... is pending or about to be instituted, shall: (a) [a]lter, destroy, conceal, or remove any record, document, or thing with the purpose to impair its verity or availability in such ... investigation.’ ” Id. at 618 (quoting Fla. Stat. § 918.13(l)(a) (1997)) (alterations in original). In C.K, the State’s only witness at the juvenile defendant’s adjudicatory hearing was arresting officer Sierra, who testified that, while he and his partner were driving in an unmarked vehicle, he noticed an individual who matched the description of a suspect. As Officer Sierra parked the car, his partner approached the individual, who made a motion with his hand and began running. The two officers gave chase. They did not announce that they were police officers. Officer Sierra was not in uniform, and the other officer’s attire was not described. Officer Sierra testified that, because he was parking the car while his partner approached the individual, “[h]e only caught a quick glimpse of [the accused] making a small waving motion [with his hand].” Id. at 617-18. The court held that the evidence was insufficient to support the adjudication of guilt because the prosecution failed to prove that the accused “knew of a pending criminal investigation,” id. at 618, and further failed to prove that the accused “concealed or destroyed any ‘thing’” on the basis of the accused’s small hand gesture, id.

In our case, by contrast, there is considerably more circumstantial evidence to establish that Defendant did, in fact, flush some “thing” down the toilet and to refute any other inference to the contrary. Defendant’s flight from the police, the “instantaneous” timing of the flushing, Defendant’s completely dressed state while the water tank was still refilling, the splattered water around the toilet seat, Defendant’s admitted possession of the cocaine found pn the kitchen table, and Defendant’s repeatedly saying “I snort” combine to exclude every reasonable hypothesis other than Defendant’s concealment and destruction of some “thing” in response to the officers’ entry and related to Defendant’s professed illegal possession and use of drugs.

Because we have held that the statute does not require the State to prove the identity of the “thing,” we need not adopt the portion of the Court of Criminal Appeals’ holding that specifically identified cocaine as the “thing” with which Defendant tampered. However, we note that, under our law, flushing drugs down a toilet constitutes the destruction of evidence and supports a conviction for tampering with evidence. See State v. Abernathy, 159 S.W.3d 601, 603, 605 (Tenn.Crim.App.2004); see also Logan, 973 S.W.2d at 282 (holding that the defendant “successfully destroyed” the white powder inside twelve zip-lock bags merely by placing those bags in the toilet because “the evidentiary value of the contents of those bags was destroyed”). This conclusion is consistent with the law of other jurisdictions that have likewise held the same kind of activity constitutes intentional destruction of evidence within the meaning of evidence-tampering statutes. See, e.g., McKenzie v. State, 632 So.2d 276, 277 (Fla.Dist.Ct.App.1994); State v. Mendez, 345 N.J.Super. 498, 785 A.2d 945, 954 (N.J.Super.Ct.App.Div.2001); State v. Hawkins-Hall, No. 22381, 2008 WL 2222258, at *3 (Ohio Ct.App. May 30, 2008); Commonwealth v. Govens, 429 Pa.Super. 464, 632 A.2d 1316, 1328-29 (1993). Although we have interpreted our statute not to require the precise identification of the “thing,” these precedents support the broader proposition that flushing some “thing” of evidence down the toilet during a drug-related investigation constitutes the intentional destruction of evidence.

In summary, viewing the evidence in the light most favorable to the State, we hold that the evidence was sufficient to support Defendant’s conviction for tampering with evidence. A reasonable trier of fact could have found all three essential elements of the offense beyond a reasonable doubt. Specifically, based on the only reasonable inferences to be drawn from the circumstantial evidence, Defendant knew that an investigation was in progress and thereafter concealed and destroyed some “thing” with the intent to impair its availability as evidence in the investigation. The statute does not require the State to establish the precise identity of the tampered “thing.”

II. Remaining Issues

Defendant also maintains that the trial court erred by denying Defendant’s motion to dismiss the indictment and by improperly instructing the jury. Both of these alleged errors are variants of the issue that we have already resolved, for Defendant merely maintains that both the indictment and jury instructions should have identified the “record, document, or thing” with which Defendant allegedly tampered.

A. Indictment

Because Defendant did not challenge the indictment in the Court of Criminal Appeals, that issue is waived. Tenn. R.App. P. 18(a) advisory comm’n cmt. Nonetheless, under the doctrine of “plain error” review, we have the authority to consider a waived issue “[w]hen necessary to do substantial justice” if the issue “has affected the substantial rights of a party.” Tenn. R.App. P. 36(b); see also State v. Hatcher, 310 S.W.3d 788, 808 (Tenn.2010). The Court does not grant relief under plain error review unless these five criteria are all satisfied: (1) the record clearly establishes what occurred in the trial court; (2) the error breached a clear and unequivocal rule of law; (3) the error adversely affected a substantial right of the complaining party; (4) the error was not waived for tactical purposes; and (5) substantial justice is at stake, that is the error was so significant that it “ ‘probably changed the outcome of the trial.’ ” State v. Smith, 24 S.W.3d 274, 282-83 (Tenn.2000) (quoting State v. Adkisson, 899 S.W.2d 626, 642 (Tenn.Crim.App.1994)). The defendant bears the burden of persuading us that the trial court committed plain error. State v. Banks, 271 S.W.3d 90, 119 (Tenn.2008). We need not consider all five factors if it is clear from the record that at least one factor cannot be established. Smith, 24 S.W.3d at 283.

Here, Defendant does not even attempt to carry his burden of persuading us that all five criteria of plain-error review are satisfied. Instead, Defendant merely insists his indictment was defective because it did not identify the “thing” with which Defendant tampered. The indictment must provide notice to the defendant of the charged offense, provide the court with adequate grounds for entering a proper judgment, and adequately protect the defendant against double jeopardy. State v. Byrd, 820 S.W.2d 739, 741 (Tenn.1991). It is generally sufficient for the indictment to state the offense charged in the words of the statute. State v. Griffis, 964 S.W.2d 577, 591 (Tenn.Crim.App.1997). As we have held supra, the specific identity of the “thing” with which Defendant tampered is not an essential element of the offense. By alleging that Defendant tampered with “any record, document, or thing,” the indictment was not constitutionally deficient. Therefore, Defendant has failed to establish the breach of a clear and unequivocal rule of law. Plain error relief is not warranted.

B. Jury Instruction

Turning to Defendant’s final issue, the Court of Criminal Appeals correctly articulated the legal principles that govern jury instructions in criminal cases. Every defendant “has a right to a correct and complete charge of the law so that each issue of fact .raised by the evidence will be submitted to the jury on proper instructions.” State v. Farner, 66 S.W.3d 188, 204 (Tenn.2001). The omission of an essential element from the jury charge is subject to harmless error analysis. State v. Garrison, 40 S.W.3d 426, 434 (Tenn.2000). “An instruction should be considered prejudicially erroneous only if the jury charge, when read as a whole, fails to fairly submit the legal issues or misleads the jury as to the applicable law.” State v. Faulkner, 154 S.W.3d 48, 58 (Tenn.2005).

Here, the instruction found in the record essentially employed the language of our evidence tampering statute, see TenmCode Ann. § 39-16-503(a). In relying on the statutory language, the instruction fairly submitted the legal issues and did not mislead the jury concerning the applicable law. See Woods v. Herman Walldorf & Co., 26 S.W.3d 868, 878 (Tenn.Ct.App.1999); State v. Dillmon, No. M 1997 00080 CCA R3 CD, 1999 WL 1257722, at *9-10 (Tenn.Crim.App. Dec. 28, 1999). We acknowledge that the verbal charge delivered by the trial judge contains an internal correction. Initially, the trial judge referred to Defendant’s alteration, destruction, or concealment of “any record.” She immediately corrected this limited description, however, by explaining that “it also needs to be record or any thing. It should be thing ” (emphasis added). The judge then stated that she was “going to change this,” by which we presume that she was going to make the correction on the written jury charge that the jury took into deliberations. She also advised the jury at the end of all the instructions that there were typographical errors that needed to be corrected on “the main charge” and that she would make the changes and then make copies for the jurors before they began deliberating the next morning. Because Defendant failed to include the written jury charge in the record before this Court, see Tenn. R.App. 24(b), we are unable to confirm that the written correction was made.

In any event, Defendant’s complaint before this Court is limited to the trial court’s failure to identify the “thing” in her instructions to the jury. Although Tennessee Pattern Jury Instruction (Criminal) 26.03 directs the trial court to name the record, document, or thing when charging the jury on tampering with evidence, we have squarely held that a trial court is not limited to using the pattern instructions. James, 315 S.W.3d at 445-46; State v. West, 844 S.W.2d 144, 151 (Tenn.1992). Furthermore, as we have already held supra, in cases involving alleged tampering with objects or entities, the specific identity of the “thing” is not an essential element of the crime. Rather, the State must establish beyond a reasonable doubt that the accused tampered with some “thing.” We hold that the trial court did not err in failing to name in its jury instruction the “thing” with which Defendant tampered.

Conclusion

We hold that, in order to convict an accused for tampering with evidence, the State is not required to prove beyond a reasonable doubt the specific identity of the “thing” that the accused has altered, destroyed, or concealed. Under these facts, viewing the evidence in the light most favorable to the prosecution, we further hold that the evidence is sufficient to sustain Defendant’s conviction for tampering with evidence. The denial of the motion to dismiss the indictment was not plain error, and the trial court did not commit reversible error in instructing the jury. Therefore, we affirm the judgments of the trial court and the Court of Criminal Appeals. Since it appears Defendant is indigent, we tax the costs of this appeal to the State of Tennessee,

      . At trial, the parties stipulated to the accuracy of a map that the State introduced into evidence, showing that the location for the search warrant executed in this case was inside a thousand-foot buffer around Cameron Middle School.

      . In the same hearing, the court conducted an evidentiary hearing on Defendant's motion to suppress statements made to Officer William Traughber after the administration of the Miranda warnings. The trial court ultimately denied the motion to suppress. That ruling has not been appealed and is not at issue in this appeal.

      . Defendant's counsel cross-examined Officer Traughber regarding his prior testimony at the October 2005 preliminary hearing concerning whether he saw Defendant at the kitchen table. The preliminary hearing transcript is not part of this record. Testimony from that transcript was admissible only for the purpose of impeaching Officer Traugh-ber's credibility, see State v. Mayo, 735 S.W.2d 811, 814 (Tenn.Crim.App.1987), and it does not preclude the jury from finding that Officer Traughber’s testimony at trial was credible.

      . The word ‘‘verity” was apparently not understood by the court reporter.

      . The difference between Defendant’s two Rule 33 motions is that one motion specifically invoked subsection (d), which allows the trial court to grant a new trial following a guilty verdict if the trial court "disagrees with the jury about the weight of the evidence.” Tenn. R.Crim. P. 33(d); see also State v. Dankworth, 919 S.W.2d 52, 56 (Tenn.Crim.App.1995) (explaining the function of the trial court in setting aside a verdict under this codification of the "thirteenth juror rule”).

      .Defendant’s brief in the Court of Criminal Appeals couched this argument as two separate issues — first, that the evidence was insufficient to support the conviction and, second, that the trial court erred in denying Defendant's motion for judgment of acquittal. Their substance, however, is essentially overlapping, and we summarize them as one.

      . Before this Court Defendant does not challenge his conviction for misdemeanor possession of cocaine or his sentence for either offense.

      . Under Texas Penal Code section 37.09(a)(1) (Vernon Supp.2000), “[a] person commits an offense if, knowing that an investigation or official proceeding is in progress, he: (1) alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding." See Vaughn, 33 S.W.3d at 903.

      . Under Louisiana law when Papillion was decided, obstruction of justice included the following:
      (1) Tampering with evidence with the specific intent of distorting the results of any criminal investigation or proceeding which may reasonably prove relevant to a criminal investigation or proceeding. Tampering with evidence shall include the intentional alteration, movement, removal, or addition of any object or substance ...:
      (a) At the location of any incident which the perpetrator knows or has good reason to believe will be the subject of any investigation by ... law enforcement officers. Papillion, 556 So.2d at 1336 (quoting La.Rev. Stat. Ann. § 14:130.1).

      . The dissenting opinion below, in reasoning that the evidence was insufficient to sustain an evidence tampering conviction, maintained that the State could not have obtained a conviction for simple possession of cocaine based on the circumstantial evidence that Defendant flushed the toilet. Majors, 2009 WL 1422951, at *8 (Witt, J., dissenting). The analogy to the simple-possession statute is misplaced, however, for that statute requires possession of a “controlled substance” as an essential element of the offense. See Tenn. Code Ann. § 39-17-418 (2006). As we have explained, the evidence tampering statute only requires tampering with a "record, document, or thing," and the word "thing” encompasses any object or entity, even one that is not capable of a precise designation.

      . It is the appellant’s duty to compile the record necessary for resolution of the issues presented to an appellate court. State v. Bobadilla, 181 S.W.3d 641, 643 (Tenn.2005).

      . Defendant contends, without elaboration, that the trial court’s jury instruction did not reflect the language of the superseding indictment. Defendant is incorrect. The language of the superseding indictment, like the jury instruction, closely follows the statutory language and uses the same words.


source: Caselaw Access Project

license: Public Domain

text:
    ERI CONSULTING ENGINEERS, INC. and Larry G. Snodgrass, Petitioners, v. J. Mark SWINNEA, Brady Environmental, Inc., and Malmeba Company, Ltd., Respondents.
    No. 07-1042.
    Supreme Court of Texas.
    Argued Dec. 17, 2009.
    Decided May 7, 2010.
    Rehearing Denied Oct. 1, 2010.

      Sarah B. Duncan, Elissa Gail Underwood, Mike A. Hatchell, Susan A. Kidwell, Locke Lord Bissell & Liddell, LLP, Austin, TX, Deborah J. Race, Ireland Carroll & Kelley, P.C., Roger W. Anderson, Gillen & Anderson, Tyler, TX, for Petitioners.
    Gregory D. Smith, S. Justin Lindley, Ramey & Flock, P.C., Tyler, TX, Sheral Kniffin Maloy, El Paso, TX, for Respondents.
   Justice GREEN delivered the opinion of the Court.

The principal question in this case is whether consideration received for the sale of a business interest is subject to equitable forfeiture as a remedy for breach of fiduciary duty. We hold that when a partner in a business breached his fiduciary duty by fraudulently inducing another partner to buy out his interest, the consideration received by the breaching party for his interest in the business is subject to forfeiture as a remedy for the breach, in addition to other damages that result from the tortious conduct. Here, the trial court ordered equitable forfeiture, but the court of appeals reversed, concluding that forfeiture was not an available remedy. We reverse the court of appeals’ judgment in part and remand the case to that court for further proceedings consistent with this opinion.

I. Facts

Larry G. Snodgrass and J. Mark Swin-nea owned equal interests in two business entities, ERI Consulting Engineers, Inc., and Malmeba Company, Ltd., which they operated together for approximately ten years. ERI is a small consulting company that manages asbestos abatement projects for contractors. It leased office space from Malmeba, a partnership that owned the building.

Snodgrass and ERI purchased Swin-nea’s interest in ERI in 2001. ERI paid Swinnea $497,500 to redeem Swinnea’s ERI stock, and Snodgrass transferred his half-interest in Malmeba to Swinnea. ERI agreed to employ Swinnea for six years, and Swinnea agreed not to compete with ERI. At the same time, ERI agreed to continue leasing from Malmeba for six years.

Unknown to Snodgrass, the wives of Swinnea and Chris Power, an ERI employee, had created a new company called Air Quality Associates a month before Swinnea and Snodgrass executed the buyout agreement. Air Quality Associates was created to perform mold abatement, but later engaged in asbestos abatement as a contractor even though neither wife had experience in the asbestos abatement field. Swinnea did not disclose the existence of Air Quality Associates to Snodgrass during the ERI buyout negotiations. In fact, because Swinnea believed Snodgrass would “run [ERI] into the ground,” Swinnea told Power to “[b]e patient because we can buy this company back 50 cents on the dollar.” The trial court found that “Swinnea’s placement of his wife, Dawn Swinnea, and Tracy Power as principals of Air Quality Associates, Inc. was deceptive, a sham and constituted fraud.”

After the buyout, Swinnea’s revenue production as an ERI employee dropped 30%-50%. Snodgrass testified that although Swinnea’s supervisory responsibilities were to cease under their agreement, Swinnea’s revenue production was to remain the same, if not increase. Soon thereafter, Snodgrass learned about Swinnea’s relationship with Air Quality Associates from one of ERI’s asbestos contractors, Merico, with which Air Quality Associates was competing. Because of the personal relationship between the individuals involved with ERI and Air Quality Associates, Merico told Snodgrass that Merico would no longer work with ERI if ERI were to accept bids from Air Quality Associates on asbestos abatement projects. ERI had been accepting bids from Air Quality Associates without Snodgrass knowing of Swinnea’s or Power’s relationship with Air Quality Associates.

Power and his wife later bought out the Swinneas’ interest in Air Quality Associates. ERI subsequently worked with Air Quality Associates, while its work with Merico declined. Meanwhile, Swinnea and his wife formed a new company, Brady Environmental. The Swinneas told Snod-grass that Brady Environmental was going to clean homes and air ducts. However, Brady Environmental began performing asbestos abatement using the Resilient Floor Covering Institute method. Evidence suggests that ERI’s clients’ use of this method impacted ERI’s business because RFCI does not require a consultant like ERI. Although he was employed by ERI, Swinnea encouraged ERI’s clients to use RFCI instead, contrary to ERI’s interest and policy. After the relationship between Swinnea and ERI deteriorated, Snodgrass ultimately fired Swinnea, releasing him from his non-compete obligations. Swinnea obtained a license to perform asbestos consulting work the next day and began working for Brady Environmental as a consultant. Snodgrass moved ERI out of Malmeba’s building and pursued this lawsuit with ERI against Swinnea, Malmeba, and Brady Environmental.

After a bench trial, the trial court found for Snodgrass and ERI on their claims for statutory fraud in a real estate and stock transaction, common law fraud, breach of the non-compete clause in the contract, as well as for breach of fiduciary duty. It rendered judgment awarding ERI and Snodgrass combined damages of $1,020,700, and $1 million in exemplary damages. The non-exemplary damages awarded by the trial court consisted of both equitable forfeiture and actual damages: forfeiture of $437,500, a portion of the $497,500 paid to Swinnea by ERI; forfeiture of $150,000, the value of Snod-grass’s one-half interest in Malmeba transferred to Swinnea; forfeiture of $133,200, constituting the sum of the lease payments from ERI to Malmeba after the buyout; and $300,000 as ERI’s lost profits from its business relationship with Merico. The trial court found that a civil conspiracy existed between Swinnea and Brady Environmental, and held Brady Environmental jointly and severally liable with Swinnea for the damages.

The court of appeals reversed and rendered judgment in favor of Swinnea because it found the evidence “legally insufficient to support the damage awards.” 236 S.W.3d 825, 832 (Tex.App.-Tyler 2007). In particular, the court of appeals found that ERI failed to prove any actual damages. Id. at 841. It found that the equitable remedy of forfeiture was unavailable because there was no fee paid to Swinnea to be forfeited. Id. It concluded further that ERI failed to prove that Swinnea obtained any ill-gotten gains subject to disgorgement. Id. It determined that the lease payments were not recoverable because the evidence that the lease payments were intended as consideration for the buyout was “incompetent parol evidence.” Id. at 835. Finally, the court of appeals concluded that there was no basis for joint liability as to Brady Environmental because there was no evidence of a conspiracy between Swinnea and Brady Environmental. Id. at 841-42.

Swinnea does not dispute his liability for fraud, breach of contract, or breach of fiduciary duty. Rather, he disputes the damages the trial court awarded. He asserts that the forfeiture award is unsupported by law. He also asserts that the lost profits award is unsupported by legally sufficient evidence. Brady Environmental primarily disputes whether it can be jointly liable for any of the particular damages awarded by the trial court regardless of whether it later conspired in certain wrongful acts.

II. Equitable Forfeiture

The primary question we must address is whether forfeiture of contractual consideration is available as a remedy against Swinnea. We have previously upheld equitable remedies for breach of fiduciary duty. E.g., Burrow v. Arce, 997 S.W.2d 229, 237-45 (Tex.1999) (upholding remedy of forfeiture upon attorney’s breach of fiduciary duty). In Kinzbach Tool Co. v. Corbett-Wallace Corp., we stated the principle behind such remedies:

It is beside the point for [Defendant] to say that [Plaintiff] suffered no damages because it received full value for what it has paid and agreed to pay.... It would be a dangerous precedent for us to say that unless some affirmative loss can be shown, the person who has violated his fiduciary relationship with another may hold on to any secret gain or benefit he may have thereby acquired. It is the law that in such instances if the fiduciary “takes any gift, gratuity, or benefit in violation of his duty, or acquires any interest adverse to his principal, without a full disclosure, it is a betrayal of his trust and a breach of confidence, and he must account to his principal for all he has received.”

138 Tex. 565, 160 S.W.2d 509, 514 (1942) (quoting United States v. Carter, 217 U.S. 286, 306, 30 S.Ct. 515, 54 L.Ed. 769 (1910)). We later reiterated that a fiduciary may be punished for breaching his duty: “The main purpose of forfeiture is not to compensate an injured principal.... Rather, the central purpose ... is to protect relationships of trust by discouraging agents’ disloyalty.” Burrow, 997 S.W.2d at 238.

Accordingly, courts may fashion equitable remedies such as profit disgorgement and fee forfeiture to remedy a breach of fiduciary duty. For instance, courts may disgorge all ill-gotten profits from a fiduciary when a fiduciary agent usurps an opportunity properly belonging to a principal, or competes with a principal. See, e.g., Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 200 (Tex.2002) (stating the rule that courts may disgorge any profit where “an agent diverted an opportunity from the principal or engaged in competition with the principal, [and] the agent or an entity controlled by the agent profited or benefitted in some way”). Similarly, even if a fiduciary does not obtain a benefit from a third party by violating his duty, a fiduciary may be required to forfeit the right to compensation for the fiduciary’s work. See, e.g., Burrow, 997 S.W.2d at 237 (“[A] person who renders service to another in a relationship of trust may be denied compensation for his service if he breaches that trust”). The difficulty comes in categorizing the damages awarded in this case. Here, the damages awarded by the trial court were not ill-gotten profits from an outside opportunity or external competition, or compensation for work done by the fiduciary. Rather, the trial court returned a significant part of the contractual consideration paid by ERI and Snodgrass to Swinnea as part of the buyout agreement. The situation arises because here the contracting party, Swin-nea, was a fiduciary, such that we must consider whether under the circumstances an equitable remedy may cross the line from actual damages for breach of contract or fraud (redressing specific harm) to further, equitable return of contractual consideration.

The trial court found Swinnea liable for fraudulent inducement as to the buyout agreement, and Swinnea does not challenge this liability. The trial court also found that Swinnea owed fiduciary duties both to ERI and to Snodgrass. It follows that Swinnea’s actions in fraudulently inducing the buyout agreement contracts were willful breaches of his fiduciary duty. We hold that where willful actions constituting breach of fiduciary duty also amount to fraudulent inducement, the contractual consideration received by the fiduciary is recoverable in equity regardless of whether actual damages are proven, subject to certain limiting principles set out below..

The situation in this case is akin in many respects to the fee forfeiture scenario between a principal and agent, which we discussed at length in Burrow, 997 S.W.2d at 237-45. In that case, former clients sued their attorneys alleging breach of fiduciary duty arising from settlement negotiations in a previous lawsuit. Id. at 232-33. We held that “a client need not prove actual damages in order to obtain forfeiture of an attorney’s fee for the attorney’s breach of fiduciary duty to the client.” Id. at 240. We repeated that “the central purpose of the remedy is to protect relationships of trust from an agent’s disloyalty or other misconduct.” Id. That policy applies equally to the relationship of trust at issue here and the duties Swinnea owed to ERI and Snodgrass. We cited section 469 of the Restatement (Second) of Agency, which states that if “conduct [that is a breach of his duty of loyalty] constitutes a wilful and deliberate breach of his contract of service, he is not entitled to compensation even for properly performed services for which no compensation is apportioned.” Id. at 237. We also stated:

[T]he possibility of forfeiture of compensation discourages an agent from taking personal advantage of his position of trust in every situation no matter the circumstances, whether the principal may be injured or not. The remedy of forfeiture removes any incentive for an agent to stray from his duty of loyalty based on the possibility that the principal will be unharmed or may have difficulty proving the existence or amount of damages.

Id. at 238. The same principles apply to circumstances where a fiduciary takes advantage of his position of trust to induce a principal to enter into a contract. The remedy of forfeiture is necessary to prevent such abuses of trust, regardless of proof of actual damages.

Although forfeiture of contractual consideration may “have a punitive effect” like forfeiture of compensation, id. at 240, it may nevertheless be necessary to protect fiduciary relationships. As we said in the attorney-client context:

An attorney who has clearly and seriously breached his fiduciary duty to his client should not be insulated from fee forfeiture by his client’s ignorance of the matter. Nor should an attorney who has deliberately engaged in professional misconduct be allowed to put his client to the choice of terminating the relationship and risking that the outcome of the litigation may be adversely affected, or continuing the relationship despite the misconduct.

Id. at 244. The same reasoning applies here: a fiduciary who breaches his duty should not be insulated from forfeiture if the party whom he fraudulently induced into contract is ignorant about the fraud, or fails to suffer harm. Likewise, the innocent party should not be put into a difficult choice regarding termination of the contract upon discovering the breach of duty.

Where equitable remedies exist, however, “the remedy of forfeiture must fit the circumstances presented.” Id. at 241. In Burrow, we listed several factors for consideration when fashioning a particular equitable forfeiture remedy in the context of attorney-client relationships:

“[T]he gravity and timing of the violation, its wilfulness, its effect on the value of the lawyer’s work for the client, any other threatened or actual harm to the client, and the adequacy of other remedies.” These factors are to be considered in determining whether a violation is clear and serious, whether forfeiture of any fee should be required, and if so, what amount. The list is not exclusive. The several factors embrace broad considerations which must be weighed together and not mechanically applied. For example, the “wilfulness” factor requires consideration of the attorney’s culpability generally; it does not simply limit forfeiture to situations in which the attorney’s breach of duty was intentional. The adequacy-of-other-remedies factor does not preclude forfeiture when a client can be fully compensated by damages. Even though the main purpose of the remedy is not to compensate the client, if other remedies do not afford the client full compensation for his damages, forfeiture may be considered for that purpose.

Id. at 243-44 (quoting Restatement (ThiRd) of the Law Governing Lawyers § 49 (Proposed Final Draft No. 1, 1996)). We also cited comment c to section 243 of the Restatement (Second) of Trusts:

It is within the discretion of the court whether the trustee who has committed a breach of trust shall receive full compensation or whether his compensation shall be reduced or denied. In the exercise of the court’s discretion the following factors are considered: (1) whether the trustee acted in good faith or not; (2) whether the breach of trust was intentional or negligent or without fault; (3) whether the breach of trust related to the management of the whole trust or related only to a part of the trust property; (4) whether or not the breach of trust occasioned any loss and whether if there has been a loss it has been made good by the trustee; (5) whether the trustee’s services were of value to the trust.

Id. at 243. Several of these factors are also relevant in this context. The gravity and timing of the breach of duty, the level of intent or fault, whether the principal received any benefit from the fiduciary despite the breach, the centrality of the breach to the scope of the fiduciary relationship, and any threatened or actual harm to the principal are relevant. Likewise, the adequacy of other remedies— including any punitive damages award- — is also relevant. Above all, the remedy must fit the circumstances and work to serve the ultimate goal of protecting relationships of trust.

There is no indication the trial court followed these principles in fashioning its award. Accordingly, we direct the court of appeals to remand the case to the trial court for consideration of these factors upon resolution of the issues remaining for the court of appeals.

III. Evidence of Contractual Consideration

We next consider whether the trial court properly admitted undisputed testimony offered to show that the lease agreement was intended to be consideration for the buyout agreement, and thus subject to potential forfeiture under our analysis above. The court of appeals concluded that such testimony was “incompetent par-ol evidence.” 236 S.W.3d at 835. We disagree.

The general rule for an unambiguous contract is that evidence of prior or contemporaneous agreements is inadmissible as parol evidence. David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450 (Tex.2008) (per curiam). However, an exception exists for consistent collateral agreements. As we stated over half a century ago in Hubacek v. Ennis State Bank, the parol evidence rule “does not preclude enforcement of prior or contemporaneous agreements which are collateral to an integrated agreement and which are not inconsistent with and do not vary or contradict the express or implied terms or obligations thereof.” 159 Tex. 166, 317 S.W.2d 30, 32 (1958); accord Haden, 266 S.W.3d at 451 (“Under the exception, parol evidence can be used to demonstrate a prior or contemporaneous agreement that is both collateral to and consistent with a binding agreement, and that does not vary or contradict the agreement’s express or implied terms or obligations.”). A collateral agreement between parties concerning the relationship of several distinct obligations between them falls within the exception. See, e.g., Hubacek, 317 S.W.2d at 34 (“A and B in an integrated contract respectively promise to sell and to buy Blackacre for $3,000.00. A contemporaneous oral agreement between them that the price shall be paid partly by discharge of a judgment which B has against A is operative.” (quoting with approval Restatement (First) of Contracts section 240 cmt. d (1939))). Here, if the parties agreed that the lease obligation was to be additional consideration for the buyout, then such an agreement was a consistent collateral agreement. Nothing in such an agreement would contradict the written contracts. See id. at 32 (“If ... the parol evidence rule precludes enforcement of the oral agreement, it is because the agreement varies or contradicts the terms or obligations of the [written contracts].”). Accordingly, Swinnea’s testimony conceding this fact was properly admitted under this long-standing exception to the parol evidence rule. The fact that the lease agreement was consideration for the buyout agreement as a whole is thus established by legally sufficient evidence.

Therefore, as contractual consideration, the lease payments from ERI to Malmeba are subject to forfeiture for Swinnea’s breach of fiduciary duty. The trial court should consider whether to include them in fashioning an appropriate equitable forfeiture.

IV. Lost Profit Damages

We turn next to the question of actual damages. Here, where the only actual damages that the trial court awarded were lost profit damages, the issue is whether ERI provided legally sufficient evidence of those lost profits.

The rule concerning adequate evidence of lost profit damages is well established:

Recovery for lost profits does not require that the loss be susceptible of exact calculation. However, the injured party must do more than show that they suffered some lost profits. The amount of the loss must be shown by competent evidence with reasonable certainty. What constitutes reasonably certain evidence of lost profits is a fact intensive determination. As a minimum, opinions or estimates of lost profits must be based on objective facts, figures, or data from which the amount of lost profits can be ascertained. Although supporting documentation may affect the weight of the evidence, it is not necessary to produce in court the documents supporting the opinions or estimates.

Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex.1992) (citations omitted).

The trial court awarded $300,000 in lost profits “constituting the loss of income from [ERI’s and Snodgrass’s] business relationship with Merico.” Our legal sufficiency analysis thus reviews whether competent evidence establishes this amount with reasonable certainty. See id.

Snodgrass testified that based on information from his in-house accountant, ERI’s net profit margin on revenue from Merico was approximately 25%-30%. As a long-time co-owner and then sole owner of ERI — a small, profitable company— Snodgrass was competent to testify as to ERI’s estimated profit margin on the Mer-ico account. Cf. Bowen v. Robinson, 227 S.W.3d 86, 97 (Tex.App.-Houston [1st Dist.] 2006, pet. denied) (“Competent evidence of lost profits relating to property can be proved by the testimony of an expert or the owner of the property.”). Swinnea directs us to no evidence contra-dieting this testimony concerning ERI’s profit margin. ERI also introduced evidence — including dozens of detailed invoices — indicating that from January 2000 through August 2001 (20 months), ERI averaged $19,833.10 in revenue per month from Merico. Later, from September 2001 through May 2004 (33 months), average revenue dropped to $1,792.59 per month. Contrasting revenue from a time period immediately before the period at issue is an established method of proving revenue for a lost profit damages calculation. See Tex. Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877 S.W.2d 276, 279 (Tex.1994) (“It is permissible to show the amount of business done by the plaintiff in a corresponding period of time not too remote, and the business during the time for which recovery is sought.” (quoting Sw. Battery Corp. v. Owen, 131 Tex. 423, 115 S.W.2d 1097, 1098-99 (1938))). Thus, ERI’s method for proving its lost profits in a reasonably certain amount — establishing its lost revenue with comparative evidence from a recent time period, and establishing its profit margin on that revenue by competent testimony of its owner — was legally adequate under Holt Atherton.

However, ERI’s method does not support a calculation yielding the amount of damages awarded by the trial court. Even assuming a 30% profit margin on the work from Merico, Snodgrass’s maximum profit margin estimate, the damages award would be only $178,601.05 for the 33-month period at issue when ERI’s profits from Merico declined. ERI’s evidence thus fails to meet the minimum requirements for legal sufficiency that we set out in Holt Atherton regarding reasonable certainty as to the amount awarded by the trial court — here, $300,000. Up to this point, the court of appeals reached the same conclusions that we have. See 236 S.W.3d at 838-39 (reciting the same evidence and reaching the same conclusion regarding whether such evidence is legally sufficient to prove $300,000 of lost profit damages with reasonable certainty).

Still, while the evidence does not prove $300,000 in lost profits, ERI’s evidence is legally sufficient evidence to prove a lesser, ascertainable amount of lost profits with reasonable certainty. In this situation, such a discrepancy between two reasonably certain amounts will not defeat recovery by ERI. See Sw. Battery, 115 S.W.2d at 1099 (“[Uncertainty as to the fact of legal damages is fatal to recovery, but uncertainty as to the amount will not defeat recovery.”); Tex. Instruments, 877 S.W.2d at 279 (explaining that Southwest Battery and subsequent cases required reasonable certainty as to the amount of lost profit damages); cf. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 109 (Tex.2009) (remanding to the court of appeals where there was some evidence of damages, but not enough to support the full amount awarded by the trial court). ERI proved lost profit damages; its entitlement to recover them survives the trial court’s error in awarding too much. Accordingly, the appropriate remedy is to remand the case to the court of appeals to consider the possibility for remittitur on lost profit damages. See Tex.R.App. P. 46.3, 46.5 (providing procedures for remit-titur by courts of appeals).

Swinnea argues that ERI’s lost profits calculation is inadequate because it fails to apply certain credits or deduct certain expenses. First, Swinnea asserts that because ERI’s lost profits were on the Merico account, which were in turn lost because of Swinnea’s involvement with Air Quality Associates, we must offset any amount that ERI gained by doing business with Air Quality Associates. That is, where the two accounts were mutually exclusive, loss from one must be offset by gain from the other. This argument is unpersuasive in part because the exclusivity arose out of Merico’s ultimatum to ERI about Air Quality Associates — “us or them” — not because it was otherwise impossible for ERI to pursue both business relationships simultaneously. The evidence shows that Merico came to give ERI its ultimatum because of Swinnea. Merico did not object to ERI’s work with Air Quality Associates — a competitor of Merico’s in asbestos abatement — until it discovered that Swinnea and Power were involved with Air Quality Associates. Nothing suggests that ERI could not have profited from working both with Air Quality Associates (apart from Swinnea) and Merico. Accordingly, because nothing indicates that ERI could not work with both companies, any profits from ERI’s work with Air Quality Associates need not be offset against the lost profits from Merico caused by Swinnea’s position with Air Quality Associates.

Even assuming that Swinnea is correct that profits from Air Quality Associates must be credited against the lost profits figure, he can point to no evidence to support his assertion that ERI profited from work with Air Quality Associates as a substitute for Merico. The plaintiff bears the burden of providing evidence supporting a single complete calculation of lost profits, which may often require certain credits and expenses. See Holt Atherton, 835 S.W.2d at 85 (“Recovery of lost profits must be predicated on one complete calculation.”). However, the defendant properly bears the burden of providing at least some evidence suggesting that an otherwise complete lost profits calculation is in fact missing relevant credits. Cf Brown v. Am. Transfer & Storage Co., 601 S.W.2d 931, 936 (Tex.1980) (“The right of offset is an affirmative defense. The burden of pleading offset and of proving facts necessary to support it are on the party making the assertion.”). Were this not so, every facially adequate calculation of lost profits would be susceptible to an unsubstantiated challenge that something is missing. That subtle distinction is crucial here because Swinnea directs us to nothing in the record proving that ERI profited — in any amount — from working with Air Quality Associates as a substitute for Merico in asbestos abatement; and we can find none. Rather, he simply asserts that ERI does not dispute that it developed a mutually successful relationship with Air Quality Associates. The only evidence in the record indicates that ERI continued to show an overall profit despite the decline in revenue from Merico, and that ERI worked with Air Quality Associates. No evidence shows whether any profits from working with Air Quality Associates contributed to ERI’s overall profits, as a substitute for Merico or otherwise.

Swinnea also contests that overhead costs and other unspecified expenses were not included in ERI’s evidence or calculation. However, it is not necessarily the case that a company will incur increased expense or overhead, especially where — as evidence here suggests — a corporation was already profitable at the time damages began, and evidence supports an inference that it could have performed profitable services using only its existing resources. See Tex. Instruments, 877 S.W.2d at 279 (“[P]re-existing profit, together with other facts and circumstances, may indicate with reasonable certainty the amount of profits lost.” (quoting Sw. Battery, 115 S.W.2d at 1099)). This is not a manufacturing scenario, where production costs necessarily exist. Rather, ERI was a consulting company, which wrote plans and specifications, solicited bids for projects, and completed surveys. Evidence suggests that ERI would have been able to perform all of this service work using its existing employees. Power, for instance, testified that he “put in whatever hours it takes to get jobs done.” Swinnea himself had begun contributing much less work to ERI, despite having been one of its most productive workers before. Had Swinnea continued to contribute at his prior level, that productivity would only have helped ERI complete additional projects. Furthermore, after Snodgrass fired Swinnea, ERI began to work with Merico again, while still working with Air Quality Associates, without expansion to ERI’s staff. Accordingly, Swinnea has not met his burden to provide at least some evidence that ERI’s otherwise complete lost profit damages calculation was actually inadequate because of a necessary credit or additional expense.

Swinnea also challenges causation as to ERI’s lost profit damages. However, evidence showed that at the end of October 2001, upon concluding a series of conversations about Swinnea’s involvement with Air Quality Associates, Merico specifically indicated that it would no longer be working with ERI because of Swinnea’s involvement. Swinnea himself testified that his involvement with Air Quality Associates could harm the Merico relationship, and that a severance of ERI’s relationship with Merico would negatively affect ERI’s revenues. This evidence is legally sufficient to establish a straightforward link between Swinnea’s breach of duty and the loss of profits to ERI.

In sum, legally sufficient evidence does not exist to prove the trial court’s lost profit damages award under the minimum requirements of Holt Atherton. However, this insufficiency does not extend to reasonable certainty as to any amount. Rather, competent evidence exists to establish some reasonably certain amount of lost profits — -just not the particular amount awarded by the trial court. Unlike a situation where no evidence establishes any amount of lost profit damages with reasonable certainty, the situation here requires a potential reduction, not a take — nothing judgment against the plaintiff. Therefore, we reverse the court of appeals’ judgment that ERI recover no lost profit damages and remand the case to that court for further proceedings. Should the court of appeals fail to arrive at a disposition concerning remittitur, it may remand for a new trial on lost profit damages, as we might have if the evidence did not seem conducive to remittitur. See Formosa Plasties Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 51 (Tex.1998) (“[Bjecause there is no legally sufficient evidence to support the entire amount of damages, but there is some evidence of the correct measure of damages, we reverse the judgment of the court of appeals and remand the cause for a new trial.”).

Two additional collateral issues remain: punitive damages and factual sufficiency. The trial court found clear and convincing evidence establishing that Swinnea willfully, maliciously, and intentionally caused injury to ERI and Snodgrass in committing fraud. Accordingly, exemplary damages may be recoverable. See Tex. Civ. PRAC. & Rem.Code § 41.003 (providing that exemplary damages are recoverable if clear and convincing evidence shows harm from fraud or malice). Thus, upon resolution of the actual damages (lost profits) question, it is now proper for the courts below to consider any remaining issues concerning the trial court’s initial award of $1 million in punitive damages, which Swinnea has continued to contest.

As for factual sufficiency of the lost profits award, however, we observe that there may be a question of whether Swin-nea adequately briefed the issue to the court of appeals. The Texas Rules of Appellate Procedure require adequate briefing. See Tex.R.App. P. 38.1© (“The [Appellant’s] brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”); accord Redmon v. Griffith, 202 S.W.3d 225, 241 (Tex.App.Tyler 2006, pet. denied) (“In their brief, the [cross-appellants] have not presented much in the way of cogent argument, nor have they cited to any authority in support of their sole issue.... We hold that the [cross-appellants] have waived their sole issue by their failure to adequately brief it.”); Murchison v. State, 93 S.W.3d 239, 254 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) (holding that factual sufficiency point concerning criminal trial was waived because “appellants’ argument, record citations, and authorities do not address” the point); Smith v. Tilton, 3 S.W.3d 77, 84 (Tex.App.-Dallas 1999, no pet.) (“Points of error asserted on appeal but not briefed are waived.”). On remand, the court of appeals should consider whether Swinnea adequately raised a factual sufficiency challenge.

V. Liability for Conspiracy

Having found that legally sufficient evidence established lost profit damages in some amount, and that Swinnea may also be liable for punitive damages as well as forfeiture of contractual consideration, we must next address whether Brady Environmental may be jointly liable for these damages as a conspirator.

An actionable civil conspiracy requires specific intent to agree to accomplish an unlawful purpose or a lawful purpose by unlawful means. Juhl v. Airington, 936 S.W.2d 640, 644 (Tex.1996). One of the elements of conspiracy is a meeting of the minds on the object or course of action. Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.1983). Another element is actual damages as the proximate result of the conspiracy. Id.

In its live pleading at trial, ERI asserted that Brady Environmental conspired in Swinnea’s ongoing fraudulent misrepresentations as well as Swinnea’s ongoing breach of fiduciary duty, which among other things damaged existing ERI client relationships. The trial court found that Swinnea’s wrongful conduct “continued after the buy-out, including but not limited to his formation of Brady Environmental, Inc.” It also found that Brady Environmental “participated in and knowingly accepted the benefits of ... Swinnea’s wrongful conduct,” and that Brady Environmental “had actual awareness of the wrongful conduct.”

Even assuming those findings are true, there is no evidence that any of the damages awarded by the trial court occurred as the proximate result of any involvement by Brady Environmental. Moreover, no meeting of the minds between Swinnea and Brady Environmental could have occurred involving the actions causing ERI actual harm — lost profits — because Brady Environmental did not yet exist, having been formed approximately six months after Swinnea left Air Quality Associates. Accordingly, Brady Environmental cannot be jointly and severally liable for any lost profit damages discussed above, or any potential punitive damages that follow from them.

Furthermore, while Brady Environmental may have participated in the abuse of trust in Swinnea’s ongoing breaches of fiduciary duty and Swinnea’s ongoing fraudulent misrepresentations, Brady Environmental had no part in inducing the buyout agreement. As discussed above, the forfeiture of contractual consideration is available as an equitable remedy against a fiduciary who fraudulently induces the contract, regardless of actual harm. Contractual consideration is subject to forfeiture because it was fraudulently bargained for by a fiduciary. Certainly the rule allowing such equitable remedies to protect relationships of trust encompasses the ability to fashion such remedies against those who would conspire to abuse such relationships. See Kinzbach, 160 S.W.2d at 514 (“It is settled as the law of this State that where a third party knowingly participates in the breach of duty of a fiduciary, such third party becomes a joint tortfeasor with the fiduciary and is hable as such.”). Yet, “the remedy of forfeiture must fit the circumstances presented.” Burrow, 997 S.W.2d at 241. The trial court’s award included no equitable remedy tied to conduct in which Brady Environmental participated. Rather, the only equitable award — forfeiture of contractual consideration — arose from a transaction that occurred approximately a year before Brady Environmental existed. Under the circumstances of this particular case, we believe that even if Brady Environmental conspired in later breaches of fiduciary duty or fraud, Brady Environmental is not subject to liability for any particular equitable forfeiture amount from the return of contractual consideration given in the specific transaction at issue. Accordingly, we affirm the court of appeals’ judgment that ERI take nothing on its conspiracy claim against Brady Environmental.

VI. Conclusion

We hold that when a fiduciary fraudulently induced a contract, such a breach of fiduciary duty may give rise to equitable forfeiture of contractual consideration. We therefore reverse the portion of the court of appeals’ judgment that ERI take nothing in equity. Because trial courts are required to consider certain factors when fashioning a forfeiture remedy, which we have set out, we direct the court of appeals to remand the case to the trial court, in turn, for review of its forfeiture award in light of these principles. Additionally, we conclude that the court of appeals erred in excluding evidence that certain lease payments were contractual consideration subject to forfeiture because testimony proving this fact was properly admitted under the consistent collateral agreement exception to the parol evidence rule.

We also hold that while legally sufficient evidence does not exist to prove the lost profits awarded by the trial court, legally sufficient evidence does exist to prove some reasonably certain amount of lost profits. We therefore also reverse the portion of the court of appeals’ judgment that ERI take nothing on its claims for lost profit damages and punitive damages and remand the case to the court of appeals to consider a remittitur, as well as any other remaining issues, before remanding the case to the trial court.

Finally, we affirm the portion of the court of appeals’ judgment that ERI and Snodgrass take nothing on their civil conspiracy claims against Brady Environmental because the actual damages awarded by the trial court were not caused by Brady Environmental’s wrongful conduct, and the equitable forfeiture awarded by the trial court arose from a transaction too remote from Brady Environmental’s involvement to support liability in equity.

      . The parties dispute whether the lease agreement was intended to be consideration for the buyout. None of the documents in the buyout agreement expressly addressed this, but Snod-grass testified that he and Swinnea had agreed to the lease as part of the comprehensive buyout.

      . As we discuss below, certain issues that remain as a result of our holdings in this case are properly before the court of appeals on remand, precluding us from remanding the case directly to the trial court.

      . We need not distinguish here between ERI's causes of action — common-law and statutory fraud, breach of contract, and breach of fiduciary duty — because ERI's lost profit damages are recoverable for any one of those claims. See Waite Hill Servs., Inc. v. World Class Metal Works, Inc., 959 S.W.2d 182, 184-85 (Tex. 1998) (per curiam) (observing that lost profits are recoverable both as tort and contract damages, subject to the rule precluding double recovery for a single injury).

      . Swinnea did not raise a hearsay objection at trial.

      . We note that Swinnea’s counsel stated on cross-examination of Snodgrass that "if we looked at [ERI’s] financials, we could pretty well figure [the profit margin on the Merico account] out.” Indeed, Swinnea had the opportunity to attempt to negate Snodgrass’s testimony on profit margin with conclusive contrary evidence, if such evidence existed. Yet, Swinnea directs us to no such evidence from which we could determine whether Snodgrass’s estimate was mistaken.

      . ERI points us to testimony from another ERI employee that its revenue from Merico was $300,000-$400,000 per year, but the accounting statements introduced by ERI as a trial exhibit conclusively establish otherwise. See City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex.2005) ("[Fact-finders] are not free to believe testimony that is conclusively negated by undisputed facts.”)

      .At trial, ERI put on evidence that its estimated lost revenue over the 33-month period was $595,336.83. Thirty percent of this figure is $178,601.05.

      . Swinnea elsewhere points out to us that Air Quality Associates was also doing profitable mold treatment work, while Merico focused on asbestos removal. This suggests that ERI might have had separate consulting opportunities with Air Quality Associates that were unavailable from Merico, meaning it could have consistently worked with both without overlap, as ERI also performed mold assessments. Indeed, ERI began to work with both Merico and Air Quality Associates some time after the period in question.

      .Swinnea asserts in his brief that where "ERI chose the relationship with AQA [instead of Merico, such] conduct of itself is evidence of ERI's belief that the AQA relationship was the more profitable one.” At most, this suggests that ERI might have believed that the Air Quality Associates relationship would be the more profitable one, which says nothing about whether it was actually profitable. Swinnea also asserts in his brief that "the AQA relationship was demonstrably ... lucrative to ERI, as the corporate financial records proved.” But Swinnea does not direct us to any such financial records in the record. Further, having reviewed hundreds of ERI’s invoices (the majority of which were issued to Merico), as well as other financial records introduced as evidence, we could not find a single piece of evidence in the record proving any profit to ERI from Air Quality Associates.

      . Indeed, we are left to wonder further whether any such alleged profits were in turn for asbestos projects that Merico might have worked on rather than for mold projects.

      . We reiterate that Swinnea does not contest liability. The trial court entered specific findings of fact and conclusions of law concerning the impropriety of Swinnea’s involvement with Air Quality Associates. Thus, Swinnea’s liability extends to any damage caused by his involvement with Air Quality Associates.