State v. Dominique, F-21-012

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtMAYLE, J.
Citation2022 Ohio 2068
PartiesState of Ohio Appellee v. David A. Dominique Appellant
Decision Date17 June 2022
Docket NumberF-21-012

2022-Ohio-2068

State of Ohio Appellee
v.

David A. Dominique Appellant

No. F-21-012

Court of Appeals of Ohio, Sixth District, Fulton

June 17, 2022


Trial Court No. 20CR126

Scott A. Haselman, Fulton County Prosecuting Attorney, for appellee.

Autumn D. Adams, for appellant.

DECISION AND JUDGMENT

MAYLE, J.

{¶ 1} Following a jury trial, defendant-appellant, David A. Dominique, appeals the August 11, 2021 judgment of the Fulton County Court of Common Pleas, convicting him of tampering with evidence and sentencing him to a term of 12 months in prison. For the following reasons, we reverse.

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I. Background

{¶ 2} According to the evidence presented by the state at trial, David Dominique was serving a term of community control. As one of the conditions of community control, he was required to report for visits with Tiffany O'Neill, a probation officer employed by the Fulton County Western District Court. On October 29, 2020, Dominique reported for a visit with O'Neill. At that visit, he was expected to provide a urine sample that would be tested for the presence of drugs or alcohol. Apparently fearful that drugs or alcohol would be detected in his urine sample, Dominique arrived at his meeting wearing a bladder around his waist filled with synthetic urine. This was discovered when the bladder leaked, leaving a visible wet spot in the crotch of his pants. Dominique first claimed that his pants became wet from working in the rain, but quickly admitted that he had purchased the synthetic urine for purposes of providing a urine sample that day.

{¶ 3} On direct examination, Dominique's fiancée testified that she became aware of his intent to use the synthetic urine and confronted him, he agreed that he would not use it, but he did not have enough time to remove the bladder before his scheduled meeting time. On cross-examination, she acknowledged that in a phone call from the jail, Dominique told her that the thing leaked and he got caught.

{¶ 4} A jury convicted Dominique of tampering with evidence, a violation of R.C. 2921.12(A)(2), a third-degree felony. The trial court sentenced him to a term of 12

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months in prison, and three years' discretionary postrelease control. Dominique appealed. He assigns the following errors for our review:

I. Dominique was entitled to an abandonment jury instruction as his voluntary actions showed he abandoned his attempt to supply fake urine and was not under threat of detection when he made this voluntary action
II. The State's evidence showed Dominique knew he could not supply fake urine, as his actions caused the bag of urine to empty all over his pants and he gave the urine bag to his probation officer before he went to the bathroom, thus the conviction was based upon insufficient evidence.

II. Law and Analysis

{¶ 5} In his first assignment of error, Dominique complains that the trial court erred in refusing to instruct the jury on abandonment or renunciation of criminal purpose. In his second assignment of error, he challenges the sufficiency of the evidence. Because we find it dispositive, we begin by addressing Dominique's second assignment of error.

{¶ 6} R.C. 2921.12(A)(2) provides that "[n]o person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall * * * [m]ake, present, or use any record, document, or thing, knowing it to be false and with purpose to mislead a public official who is or may be engaged in such proceeding or investigation, or with purpose to corrupt the outcome of any such proceeding or investigation." Dominique argues that his conviction was based on insufficient evidence

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because he necessarily could not use or supply synthetic urine to the probation officer given that the bladder of urine had emptied all over his pants and was turned over to his probation officer before he actually attempted to provide a urine sample.

{¶ 7} The state responds that for purposes of R.C. 2921.12(A)(2), Dominique "used" the synthetic urine even though he never "presented" it to the probation officer by placing it in a testing cup. It claims that Dominique could be convicted of tampering with evidence simply by appearing for the meeting with the bladder of synthetic urine wrapped around his waist. It insists that the offense occurred at the moment he arrived at the courthouse for the meeting with his probation...

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