State v. Barry

• Decision Date: 30 December 2015
• Docket Number: 2014–2064.,Nos. 2014–1984,s. 2014–1984
• Citation: 2015 Ohio 5449,145 Ohio St.3d 354,49 N.E.3d 1248
• Parties: The STATE of Ohio, Appellee, v. BARRY, Appellant.
• Court: Ohio Supreme Court

145 Ohio St.3d 354

49 N.E.3d 1248

2015 Ohio 5449

The STATE of Ohio, Appellee,

v.BARRY, Appellant.

Nos. 2014–1984

2014–2064.

Supreme Court of Ohio.

Submitted Oct. 13, 2015.

Decided Dec. 30, 2015.

Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis and Shane Tieman, Assistant Prosecuting Attorneys, for appellee.

Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Assistant Public Defender, for appellant.

O'DONNELL, J.

{¶ 1} Chelsey Barry appeals from a judgment of the Fourth District Court of Appeals affirming her conviction for tampering with evidence arising from an incident involving the concealment of 56 grams of heroin within a body cavity. The appellate court certified that its decision conflicted with State v. Cavalier, 2d Dist. Montgomery No. 24651, 2012-Ohio-1976, 2012 WL 1580418, on the following question of law: "Whether a person who hides evidence of a crime that is unmistakable to him or her commits tampering with evidence in the absence of evidence that a victim or the public would report a crime?" 141 Ohio St.3d 1452, 2015-Ohio-239, 23 N.E.3d 1195.

{¶ 2} The answer to this question is no, because an element of tampering with evidence requires the state to prove beyond a reasonable doubt that the accused knew that an official proceeding or investigation is in progress or likely to be instituted at the time the evidence is altered, destroyed, concealed, or removed. Ohio law does not impute constructive knowledge of an impending investigation based solely on the commission of an offense, and therefore, the fact that an act was unmistakably a crime does not, by itself, establish that the accused knew of an investigation into that crime or that such an investigation was likely to be instituted. Rather, the state must demonstrate that the accused knew of a pending official proceeding or investigation or knew that such a proceeding or investigation was likely to be instituted at the time of the concealment.

{¶ 3} In this case, there is no evidence that at the time she concealed the heroin in her body in Middletown, Ohio, Barry knew or could have known that a state trooper would stop her car in Scioto County and begin an investigation of her for drug trafficking and drug possession. Thus, the trial court erred in instructing the jury that by committing an unmistakable crime, Barry had constructive knowledge of an impending investigation of that crime, and her tampering conviction is not supported by sufficient evidence.

{¶ 4} Accordingly, we reverse the judgment of the appellate court and remand the matter to the trial court for further proceedings consistent with this opinion.

Facts and Procedural History

{¶ 5} On February 25, 2013, Barry traveled to Middletown, Ohio, with her friend, James Valero, to pick up Jashean Green and Devonte Revez and drive them to Huntington, West Virginia. When they departed on the evening of February 27, Valero handed Barry a condom filled with heroin and told her to conceal it in her vagina, which she did. The men promised her a share of the heroin for helping them.

{¶ 6} After midnight on February 28, State Highway Patrol Trooper Nick Lewis stopped their white Pontiac Grand Prix on U.S. Route 23 in Scioto County south of Lucasville after hearing its defective muffler and observing erratic driving. When he approached the car, Lewis smelled marijuana, and he therefore removed Barry, who was driving, from the car to question her about it, but she denied that anyone had smoked marijuana in the car. Lewis and another trooper searched the car for drugs and found a baggie containing marijuana residue.

{¶ 7} After speaking with Barry, Green, Revez, and Valero, Lewis suspected that the men had given drugs to Barry to conceal inside her body, and he warned Barry that he could obtain a warrant for a body cavity search if she did not cooperate. Barry initially denied having any drugs inside her but on further questioning admitted that she had inserted them into her vaginal cavity, and she later produced a condom in the presence of a female police officer containing 56.36 grams of heroin.

{¶ 8} The state indicted Barry for trafficking in heroin, possession of heroin, conspiracy to traffic in drugs, and tampering with evidence. At trial, Barry admitted that she "stuffed [the heroin] to conceal it so the police wouldn't see it," that she "knew that that was an unmistakable crime," and that she understood that "it was a crime to possess heroin and to stuff it."

{¶ 9} In its charge, the court instructed the jury on the knowledge element of tampering with evidence:

A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result. A person has knowledge of circumstances when he is aware that circumstances probably exist.

When an offender commits an unmistakable crime, the offender has constructive knowledge of an impending investigation of the crime committed.

(Emphasis added.)

{¶ 10} The jury returned verdicts finding Barry guilty of drug trafficking, drug possession, conspiracy, and tampering with evidence. The trial court determined that the trafficking, possession, and conspiracy convictions merged as allied offenses of similar import, and it imposed a sentence of six years for the trafficking conviction. It also imposed a consecutive term of three years for tampering with evidence, resulting in an aggregate nine-year term of incarceration.

{¶ 11} The court of appeals affirmed Barry's tampering conviction, concluding that it was supported by sufficient evidence and was not against the manifest weight of the evidence. 2014-Ohio-4452, 2014 WL 4978929, ¶ 2. By committing the "unmistakable crimes of drug trafficking, drug possession and conspiracy to traffic in drugs" at the time she concealed the heroin in her body cavity, the court reasoned, Barry had "constructive knowledge of an impending investigation." Id. at ¶ 12. The appellate court specifically rejected the claim that the "unmistakable crime" instruction misled the jury, because it concluded that the instruction "was a correct statement of the law." Id. at ¶ 21.

{¶ 12} The appellate court certified that its decision conflicted with State v. Cavalier, 2d Dist. Montgomery No. 24651, 2012-Ohio-1976, 2012 WL 1580418. There, an officer arrested Cavalier for solicitation, and during a search incident to arrest, she denied having any needles. A search of her person, however, revealed a syringe with cocaine residue. Subsequently, a jury found her guilty of tampering with evidence and possessing a drug abuse instrument. The Second District Court of Appeals reversed the tampering conviction as not supported by sufficient evidence, explaining that at the time Cavalier hid the syringe, she had no reason to believe that an official investigation was likely to be instituted, and her false statements about not having a syringe did not amount to concealment of evidence. Id. at ¶ 53, 58. The appellate court in Cavalier rejected the state's argument that committing an offense provides constructive notice that an investigation will ensue:

If the State is correct, then anyone who commits the offense of changing lanes without signaling, continues on home, and then parks in a closed garage, would be guilty of Tampering with Evidence, a third-degree felony, since the offender would be on constructive notice that an official investigation is likely to result, and by parking the vehicle used in the commission of the offense in a closed garage, the offender has impaired its availability as evidence—an investigating police officer will be less likely to find it.

Id. at ¶ 52.

{¶ 13} We determined that a conflict existed and accepted Barry's discretionary appeal. 141 Ohio St.3d 1452, 2015-Ohio-239, 23 N.E.3d 1195 ; 141 Ohio St.3d 1454, 2015-Ohio-239, 23 N.E.3d 1196.

{¶ 14} During the pendency of this appeal, the Fourth District Court of Appeals in State v. Crocker, 2015-Ohio-2528, 38 N.E.3d 369 (4th Dist.), citing our recent decision in State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175, and referencing the Second District's decision in Cavalier , reversed a conviction for tampering with evidence and stated that it would "narrow" Barry to "restrict the ‘unmistakable crime’ cases to situations in which the pertinent conduct, e.g., murder, arson, rape, and gross sexual imposition, involves crimes with persons likely to complain or where discovery and investigation is almost certain to occur due to the death of or severe injury to the victim." Crocker at ¶ 36. Accordingly, the Fourth District Court of Appeals has followed the Second District on the conflict issue we accepted for review in this case.

Parties' Claims Before the Court

{¶ 15} Barry argues that a person who hides evidence of a crime that is unmistakable only to that person does not commit tampering with evidence unless the state proves that someone else was likely to report the crime. Further, she notes that the so-called "unmistakable crime doctrine" arose in cases where the crime was unmistakable to a third party who was likely to report it to police. Barry urges that according to Straley, a person is guilty of tampering only when that person has knowledge of a likely investigation directly related to the concealed evidence, and she maintains that the court of appeals imputed constructive knowledge to her based solely on her commission of an unmistakable crime. She argues that because constructive knowledge is a negligence standard and is not the same as actual knowledge, the "unmistakable crime" jury instruction improperly created an irrebuttable presumption that she had knowledge of an investigation regardless of whether she could have anticipated it. For these reasons, Barry contends the jury instruction misled the jurors and her tampering conviction is not supported by sufficient evidence.

{¶ 16} The state maintains that a person who conceals evidence of an unmistakable crime is guilty of tampering with evidence,...