State v. Cervantes

[Cite as State v. Cervantes, 2019-Ohio-1373.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 18AP-505
v. : (C.P.C. No. 17CR-509)
Jose L. Cervantes, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on April 11, 2019
On brief: Ron O'Brien, Prosecuting Attorney, and Valerie
Swanson, for appellee.
On brief: Yavitch & Palmer, Co. L.P.A., and Jeffery A.
Linn, II, for appellant.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Defendant-appellant, Jose L. Cervantes, appeals the judgment of the
Franklin County Court of Common Pleas convicting appellant of possession of heroin and
tampering with evidence. For the following reasons, we affirm the trial court.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On January 27, 2017, appellant was indicted on one count of possession of
heroin pursuant to R.C. 2925.11, a second-degree felony, and one count of tampering with
evidence pursuant to R.C. 2921.12, a third-degree felony. Appellant entered a plea of not
guilty, and the matter proceeded to a jury trial held from February 12-14, 2018.
{¶ 3} Plaintiff-appellee, State of Ohio, called Jeffrey Tabor of the Criminal
Intelligence Unit of the Columbus Division of Police, which he described a "plainclothes
No. 18AP-505 2
assignment" that assists other units of the department. (Tr. at 40.) Prior to his 3 years of
working in the criminal intelligence unit, he worked in narcotics for 12 years and was on
patrol for approximately 10 years.
{¶ 4} According to Tabor, on December 28, 2016, an informant provided
information that a woman with a warrant out for her arrest named Ashley Rinehart was
located in a certain room in a Columbus hotel. Tabor had information that the original,
violent incident underlying Rinehart's warrant also involved two accomplices, a man and a
women.
{¶ 5} Tabor, a couple of people from his unit, and patrol officers went to the hotel
at about 11:00 a.m. and confirmed with the hotel manager that Rinehart was in the hotel
room indicated by the informant. The manager knocked on the hotel room door and
announced that it was past time for Rinehart to check out and moved off to the side when
Rinehart opened the door.
{¶ 6} Tabor positively identified Rinehart as the person subject to the warrant and
entered the hotel room, which had a bathroom to the immediate left, followed by two beds
divided by a middle nightstand, and a window at the back of the room. The lights were on.
Tabor entered the hotel room in plain clothes, his police identification badge out, and, since
Rinehart had been involved in a violent crime where a weapon had been used, his gun
drawn. Tabor testified he "yelled, 'police' as [the group was] coming in." (Tr. at 46.)
According to Tabor, Rinehart retreated all the way back towards a window, saying "[w]hat
did I do? What did I do?"; Tabor observed two people, a male and a female, sitting on the
bed closest to the door and a man, who Tabor identified as appellant, sitting on the far bed
closest to the window. (Tr. at 43.) At that point, Tabor testified:
Out of the corner of my eye I see the male sitting in the bed.
He automatically bends over like this and reaches. I
automatically turned my gun on him, thinking he is trying to
get a gun. I order him to stop. He doesn't stop. I order him
again, show me his hands. He takes his hands and shoves
them in his pants. I order him two more times to show me his
hands. He finally brings his hands out and puts them up.
At that time we secure everybody that is in the room, because
we are not just looking for one person, we are looking for a
total of three people, two females and one male that was also
supposed to be in the room.
No. 18AP-505 3
But we were only able to positively identify the one person at
that time being there for sure. So we handcuff everybody, get
them all secure. And then Officer Cramblett walks over, so I
tell him he was reaching for something, it might be a gun.
He walks over and he says, "No, it wasn't a gun. It was what
you thought it was, a big bag of dope."
(Tr. at 43-44.)
{¶ 7} According to Tabor, he was standing in between the two beds when he saw
appellant "reaching over," which automatically drew his attention. (Tr. at 47.) Asked more
about appellant's specific movement, Tabor testified:
When we came in, he was laying in the bed, looked over, saw
me, saw us come in. And he leaned across the bed, made a
motion like this, grabbed something and reached over and hid
it. And on those beds in the hotel, the backboards are right up
against the wall, like most of them are in a hotel room. And
then you had the box-spring. And on the corner of it where the
two meet, where the bed frame meets with the headboard, that
is where it was sitting, right there, the heroin was.
(Tr. at 49-50.) Tabor further testified appellant had underwear on and, at one point, stuck
his hands in his underwear and was trying to pretend to sleep.
{¶ 8} Tabor testified they ended up arresting appellant, who had $1,000 and two
cell phones in his pants and seizing the plastic bag of heroin. Later testing showed 13.979
grams of "tar heroin," which has a "dark black solid color." (Tr. at 60.) According to Tabor,
who testified he is familiar with the various types of heroin, the street value of the heroin
found in the hotel room was about $100 to $120 per gram and was in a quantity beyond
"user amount." (Tr. at 63.) Tabor testified appellant gave police a false name prior to his
arrest. Regarding the other two people in the room on the closer bed, Tabor testified they
identified them, confirmed they were not the male and female involved in the original
incident underlying the warrant, ran checks on them and spoke to them briefly, and
ultimately let them gather their property and leave.
{¶ 9} On cross-examination, Tabor testified when appellant initially moved, he
thought appellant had a gun. However, Tabor did not see a gun and testified "[h]e had
something in his hand when he reached over," then agreed he saw drugs in appellant's
hands, which he could "[e]asily" identify. (Tr. at 69, 70.) Cross-examined on this point
No. 18AP-505 4
further, Tabor testified "[appellant] picked something up off of the bed which was a black
substance in a bag," about the size of a golf ball, that resembled heroin but, at the time, he
did not know for certain was heroin until it was tested. (Tr. at 74.)
{¶ 10} Regarding the report of the incident Tabor prepared, he agreed with the
defense attorney's characterization of his report that said he found appellant lying with his
hands hanging over the bed as if he was trying to hide "something" (without specifying
appellant was trying to hide drugs), and appellant was "asked to show his hands after two
warnings." (Tr. at 78.) On redirect, Tabor testified he did not interview Rinehart about the
drugs because he saw appellant "reach over and place it there." (Tr. at 82.)
{¶ 11} Monte Nommay, a detective in the Columbus Division of Police Criminal
Intelligence Unit, testified to being the second person to enter the hotel room, behind
Tabor. According to Nommay, "[o]nce the door started opening, we could hear the handle
go down, we announced 'Columbus police' just for our safety. * * * [W]e don't say it softly."
(Tr. at 98.) Once they announced "police," Rinehart backed away, and Nommay stepped to
the left side of the room, focusing his attention on the male and female in the first bed.
Tabor then yelled "[l]et me see your hands," which caused Nommay to look over to
appellant and draw his own weapon. (Tr. at 91.) When Nommay looked toward appellant,
appellant was laying on his side with his hand already down beside the bed toward the back
head board. Appellant rolled to his back, and "[w]hen he brought his hands up, he kind of
shoved them down into the front of his pants": his hand went up but then back down under
the covers before bringing his hands up again. (Tr. at 92.) Asked about the pants, Nommay
specified that he thought appellant was under the covers and did not believe he was wearing
any clothes.
{¶ 12} Todd Cramblett, a patrol officer with the Columbus Division of Police,
testified to assisting Tabor and Nommay with the arrest warrant and being the third person
to enter the hotel room. He was in a police uniform. According to Cramblett, when the
doors opened, Rinehart backed away, the group of officers entered the room, Tabor and
Nommay went after Rinehart, and one of the officers started saying something to appellant.
Cramblett testified after Tabor detained appellant, Tabor said something to the effect that
"he believed [appellant] was putting something at the top of the bed, he was reaching for
something or putting something up there." (Tr. at 114.) Cramblett walked to the bed and
No. 18AP-505 5
saw a "clear bag that had what appeared to be black tar heroin in it shoved between the
mattress and the wall." (Tr. at 110.) The bag was visible to Cramblett near the top of the
mattress—he did not need to move anything to see it—and appeared to him to be pushed
down. Cramblett let the officers know about the bag and stood near it until Tabor walked
over to secure the bag.
{¶ 13} Appellee admitted as evidence the inventory from the room, the laboratory
report, and evidence items, including the heroin, and rested its case. The police report was
not admitted into evidence. Appellant moved for acquittal under Crim.R. 29, which the
trial court denied. Appellant then called two witnesses in his defense.
{¶ 14} Ladawn Mercier testified she had known appellant for about three to four
years and her fiancé, Donald Housley, was appellant's mechanic. Mercier testified that she,
Housley, appellant, and Rinehart, who Mercier said she just met that day, went to the hotel
on December 27, 2016. According to Mercier, all of them did heroin, which they got from
Rinehart, and Mercier stayed up all night with Rinehart while both men went to sleep.
Mercier testified a few minutes before 11:00 a.m. the next morning, she heard a knock at
the door and a lady saying "[f]ront desk." (Tr. at 132.) According to Mercier, Rinehart first
said "[n]o, wait a minute," because she was smoking heroin at the time, and after a second
knock on the door, Rinehart stuffed the heroin in one side of her bra and money in the other
side of her bra and went to open the door. (Tr. at 132.) Rinehart opened the door, was
"jerked" out of the room, and "plainclothes people came in with guns." (Tr. at 132.) Mercier
did not know who the people were until she saw their badges and realized they were cops.
{¶ 15} According to Mercier, at this time appellant was laying down, "dead asleep,"
with his pit bull on the bed. (Tr. at 140.) Mercier testified she saw appellant wake up with
a person standing over him with a gun in his face, telling him to stand up. She never saw
appellant hide any drugs or make a movement when the officers entered the room as if he
were hiding something. Mercier testified the officers sat appellant up, searched and
handcuffed all three of them, and questioned them about whether there was any drugs in
the room and whether any of them had warrants. According to Mercier, while they were
sitting in the room, the officers looked at her and said " '[y]ou are a meth head'; looked at
[Housley] and said, 'You are a heroin addict'; and looked at [appellant] and said, 'And that
is your dealer.' " (Tr. at 141.) The officers took all 3 of them outside and put them in a paddy
No. 18AP-505 6
wagon for about 30 minutes. Finally, an officer released Mercier and Housley and told
appellant they were taking him to jail for the drugs they found in the hotel room.
{¶ 16} According to Mercier, the officers never found any drugs in the room while
she was in the room, and Rinehart was the only person in possession of heroin: prior to
putting it in her bra, she had it in her purse. Mercier testified appellant only smoked what
Rinehart gave him, she never saw appellant in possession of the heroin, and no drugs were
on the bed with appellant. Mercier further testified she never saw an officer in uniform
until they were outside, and the officers never interviewed her about the drugs.
{¶ 17} On cross-examination, Mercier denied offering to testify on appellant's behalf
in exchange for heroin and agreed appellant's fiancée gave her a ride to court to testify.
Mercier testified that, at the point people with guns were coming into the hotel room, she
was not focused on the people with guns but "looked right at [Housley]." (Tr. at 152.)
{¶ 18} Housley testified Rinehart gave all of them heroin on the evening of
December 27, 2016, he did some heroin, and he and appellant went to sleep. According to
Housley, he saw Rinehart keep the heroin in her bra. In the morning, he heard a knock on
the door and someone say "front desk." (Tr. at 166.) Rinehart was doing heroin at the time.
Mercier tried to open the door, but Rinehart pushed her arm back. Rinehart then opened
the door and was "snatch[ed]" out of the room, while the officers "back[ed Mercier] up"
into the room. (Tr. at 167.) According to Housley, people with guns then came in "yelling,
'police,' whatever. I don’t think they even said 'police.' " (Tr. at 167.) At this time, appellant
was still asleep, according to Housley. Housley and appellant, who then woke up, jumped
up and put their hands up. The officers sat all three on the bed and labeled Mercier,
Housley, and appellant a meth head, heroin addict, and drug dealer, respectively. The
officers then handcuffed them, took them to the paddy wagon, and eventually let Mercier
and Housley go while arresting appellant for possession. According to Housley, he never
saw appellant try to hide anything and never saw appellant in possession of drugs aside
from the amount appellant smoked.
{¶ 19} On cross-examination, Housley testified he had just met Rinehart the day
they went to the hotel, and when asked why she would give him heroin, Housley said he
guessed "[b]ecause she had a lot of it" and noted "[t]hat is not the first time a heroin addict
No. 18AP-505 7
with a lot of dope has given me some." (Tr. at 172.) Housley denied coordinating his
recollection of events with his fiancée.
{¶ 20} Appellant rested his case and offered one exhibit, a layout of the hotel room,
which was admitted into evidence. Appellant renewed his motion for acquittal under
Crim.R. 29, which the trial court again denied. In the jury instructions, by agreement of
both parties, a paragraph was added to the tampering with evidence charge intended to
paraphrase State v. Barry, 145 Ohio St.3d 354, 2015-Ohio-5449, quoting State v. Straley,
139 Ohio St.3d 339, 2014-Ohio-2139, ¶ 16, regarding the unmistakable crime doctrine. It
states:
Merely establishing that a crime was committed is insufficient
to prove that the accused knew at the time the evidence was
altered, destroyed, concealed or removed that an official
proceeding or investigation into that crime was ongoing or
likely to be instituted. The evidence tampered with must have
some relevance to the ongoing or likely investigation or
proceeding.
(Tr. at 203.)
{¶ 21} The jury found appellant guilty on both counts; the verdict form for the
possession count indicated the jury found the amount of heroin involved was equal to or
exceeding 10 grams but less than 50 grams. After a sentencing hearing, on May 30, 2018,
the trial court filed a judgment entry imposing 5 years of incarceration for the possession
of heroin count concurrent to 12 months incarceration on the tampering with evidence
count, to be served concurrently with the sentence in another case. The trial court further
imposed a 3-year mandatory post-release control and a financial sanction in the amount of
$7,500 and found and certified 387 days of jail credit.
{¶ 22} Appellant filed a timely appeal.
II. ASSIGNMENTS OF ERROR
{¶ 23} Appellant assigns the following as trial court error:
[1.] THE TRIAL COURT ERRED BY OVERRULING
APPELLANT'S CRIM. R. 29 MOTION FOR JUDGMENT OF
ACQUITTAL, AND THEREBY DEPRIVED APPELLANT OF
DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH
AND FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND COMPARABLE
PROVISIONS OF THE OHIO CONSTITUTION.
No. 18AP-505 8
[2.] THE TRIAL COURT ERRED BY FINDING APPELLANT
GUILTY AND THEREBY DEPRIVED APPELLANT OF DUE
PROCESS OF LAW AS GUARANTEED BY PROVISIONS OF
THE OHIO CONSTITUTION BECAUSE THE VERDICT OF
GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
III. STANDARD OF REVIEW
{¶ 24} "Because a Crim.R. 29 motion questions the sufficiency of the evidence, we
apply the same standard of review on appeal as in a challenge to the sufficiency of the
evidence." State v. Guy, 10th Dist. No. 17AP-322, 2018-Ohio-4836, ¶ 40, citing State v.
Kearns, 10th Dist. No. 15AP-244, 2016-Ohio-5941, ¶ 44. "Sufficiency of the evidence is a
legal standard that tests whether the evidence is legally adequate to support a verdict."
State v. Kurtz, 10th Dist. No. 17AP-382, 2018-Ohio-3942, ¶ 15, citing State v. Thompkins,
78 Ohio St.3d 380, 386 (1997). Whether the evidence is legally sufficient to support a
verdict is a question of law, not fact. Id. In determining whether the evidence is legally
sufficient to support a conviction, " '[t]he relevant inquiry is whether, after viewing the
evidence in a light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt.' " State v.
Robinson, 124 Ohio St.3d 76, 2009-Ohio-5937, ¶ 34, quoting State v. Jenks, 61 Ohio St.3d
259 (1991), paragraph two of the syllabus. "A verdict will not be disturbed unless, after
viewing the evidence in a light most favorable to the prosecution, it is apparent that
reasonable minds could not reach the conclusion reached by the trier of fact." State v.
Patterson, 10th Dist. No. 15AP-1117, 2016-Ohio-7130, ¶ 32, citing State v. Treesh, 90 Ohio
St.3d 460, 484 (2001).
{¶ 25} "In a sufficiency of the evidence inquiry, appellate courts do not assess
whether the prosecution's evidence is to be believed but whether, if believed, the evidence
supports the conviction." Kurtz at ¶ 16, citing State v. Yarbrough, 95 Ohio St.3d 227, 2002-
Ohio-2126, ¶ 79-80 (evaluation of witness credibility not proper on review for sufficiency
of evidence); State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4 (noting that
"in a sufficiency of the evidence review, an appellate court does not engage in a
determination of witness credibility; rather, it essentially assumes the state's witnesses
testified truthfully and determines if that testimony satisfies each element of the crime").
"Further, 'the testimony of one witness, if believed by the jury, is enough to support a
No. 18AP-505 9
conviction.' " Patterson at ¶ 33, quoting State v. Strong, 10th Dist. No. 09AP-874, 2011-
Ohio-1024, ¶ 42. See also State v. Clark, 10th Dist. No. 15AP-926, 2016-Ohio-5493, ¶ 25.
{¶ 26} "Even though supported by sufficient evidence, a conviction may still be
reversed as being against the manifest weight of the evidence." State v. McCombs, 10th
Dist. No. 15AP-245, 2015-Ohio-3848, ¶ 3, citing Thompkins at 387. "While sufficiency of
the evidence is a test of adequacy regarding whether the evidence is legally sufficient to
support the verdict as a matter of law, the criminal manifest weight of the evidence standard
addresses the evidence's effect of inducing belief." State v. Cassell, 10th Dist. No. 08AP-
1093, 2010-Ohio-1881, ¶ 38.
{¶ 27} "When presented with a manifest-weight challenge, an appellate court may
not merely substitute its view for that of the trier of fact but must review the entire record,
weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and
determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered." Patterson at ¶ 34, citing Thompkins at 387, citing State v. Martin, 20
Ohio App.3d 172, 175 (1st Dist.1983). An appellate court should reserve reversal of a
conviction as being against the manifest weight of the evidence for only the most
" 'exceptional case in which the evidence weighs heavily against the conviction.' "
Thompkins at 387, quoting Martin at 175.
{¶ 28} In conducting a manifest weight of the evidence review, we may consider the
credibility of the witnesses. State v. Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio-4953,
¶ 6. However, in conducting such review, "we are guided by the presumption that the jury,
or the trial court in a bench trial, 'is best able to view the witnesses and observe their
demeanor, gestures and voice inflections, and use these observations in weighing the
credibility of the proffered testimony.' " Id., quoting Seasons Coal Co., Inc. v. Cleveland,
10 Ohio St.3d 77, 80 (1984). "Accordingly, we afford great deference to the jury's
determination of witness credibility." State v. Albert, 10th Dist. No 14AP-30, 2015-Ohio-
249, ¶ 14. "Mere disagreement over the credibility of witnesses is not a sufficient reason to
reverse a judgment on manifest weight grounds." State v. Harris, 10th Dist. No. 13AP-770,
2014-Ohio-2501, ¶ 25, discretionary appeal not allowed, 140 Ohio St.3d 1455, 2014-Ohio-
4414, citing State v. G.G., 10th Dist. No. 12AP-188, 2012-Ohio-5902, ¶ 7.
No. 18AP-505 10
IV. LEGAL ANALYSIS
A. Appellant's First Assignment of Error
{¶ 29} Under his first assignment of error, appellant contends the trial court erred
in overruling his Crim.R. 29 motion for judgment of acquittal, as appellee failed to offer
sufficient evidence to prove each element of the crimes charged. For the following reasons,
we disagree with appellant.
{¶ 30} Appellant was convicted of possession of heroin and tampering with
evidence. Regarding the possession of heroin charge, R.C. 2925.11(A) states, in pertinent
part: "No person shall knowingly obtain, possess, or use a controlled substance or a
controlled substance analog." R.C. 2925.11(A) and (C)(6).
{¶ 31} As a preliminary issue, we are unclear what argument appellant is making
regarding the sufficiency of the evidence as it relates to the possession conviction.
Appellant does not divide the assignment of error into arguments regarding each conviction
or present legal authority regarding sufficiency of the evidence of possession. As a result,
appellant does not meet his burden of demonstrating error on appeal in regard to the
possession conviction. App.R. 16(A)(7); State v. Sims, 10th Dist. No. 14AP-1025, 2016-
Ohio-4763, ¶ 11 (stating general rule that an appellant bears the burden of affirmatively
demonstrating error on appeal); State v. Smith, 9th Dist. No. 15AP0001n, 2017-Ohio-359,
¶ 22 (noting that it is not the duty of an appellate court to create an argument on an
appellant's behalf).
{¶ 32} Furthermore, the arguments appellant presents that could possibly be linked
to the possession conviction concern matters of weight rather than sufficiency. For
example, appellant argues appellee offered "inconsistent and unreliable" evidence,
particularly through Tabor's testimony regarding what he thought was in appellant's hand.
(Appellant's Brief at 8.) Appellant believes this inconsistency deemed the evidence
insufficient to prove the charges and diminished Tabor's credibility. Appellant additionally
implies he simply had no time to possess the drugs on these facts. This argument is based
on believing Mercier's and Housley's version of events, presented in appellant's defense,
that appellant was asleep until the officer was above him with a gun, rather than Tabor's
recollection.
No. 18AP-505 11
{¶ 33} Arguments concerning inconsistent evidence and witness credibility are
matters relevant to the weight, rather than the sufficiency, of the evidence. State v. Dennis,
10th Dist. No. 08AP-369, 2008-Ohio-6125, ¶ 32-44; State v. Haynes, 10th Dist. No. 03AP-
1134, 2005-Ohio-256, ¶ 24; State v. Hudson, 8th Dist. No. 91803, 2009-Ohio-6454, ¶ 44.
As such, we will address these considerations under our review of the manifest weight of
the evidence in the second assignment of error. State v. Sieng, 10th Dist. No. 18AP-39,
2018-Ohio-5103, ¶ 51.
{¶ 34} Moreover, to the extent appellant challenges evidence of possession, the
argument lacks merit. Appellee presented evidence that, if believed, shows appellant
grabbed something off the bed that resembled heroin and placed it between the mattress
and wall, officers found a clear bag with a black substance in that location, and testing
showed the substance was heroin. We find this evidence sufficient on the facts and
circumstances of this case to show appellant had control of the bag of heroin beyond mere
"access to the thing or substance through ownership or occupation of the premises upon
which the thing or substance is found." R.C. 2925.01(K).1 Therefore, considering all the
above, appellant's first assignment of error as it relates to his possession of heroin
conviction lacks merit.
{¶ 35} Regarding the conviction for tampering with evidence, R.C. 2921.12(A)(1)
states in pertinent part: "No person, knowing that an official proceeding or investigation is
in progress, or is about to be or likely to be instituted, shall do any of the following: * * *
Alter, destroy, conceal, or remove any record, document, or thing, with purpose to impair
its value or availability as evidence in such proceeding or investigation." Thus, to support
a conviction for tampering with evidence under R.C. 2921.12(A)(1), appellee must establish,
beyond a reasonable doubt, that the defendant (1) knew "of an official proceeding or
investigation in progress or likely to be instituted," (2) altered, destroyed, concealed, or
1 Pursuant to R.C. 2925.01(K), " '[p]ossess' or 'possession' means having control over a thing or substance, but
may not be inferred solely from mere access to the thing or substance through ownership or occupation of the
premises upon which the thing or substance is found." Ownership of the drugs need not be established for
possession. State v. Hilton, 9th Dist. No. 21624, 2004-Ohio-1418, ¶ 16. " '[I]n determining whether a
defendant knowingly possessed a controlled substance, it is necessary to examine all of the facts and
circumstances surrounding the incident.' " State v. Walker, 10th Dist. No. 14AP-905, 2016-Ohio-3185, ¶ 72,
quoting State v. Mabry, 2d Dist. No. 21569, 2007-Ohio-1895, ¶ 20. Circumstantial evidence may be sufficient
to support a conviction for possession of a controlled substance. Guy at ¶ 44, citing State v. Hurse, 10th Dist.
No. 14AP-687, 2015-Ohio-2656, ¶ 21.
No. 18AP-505 12
removed "the potential evidence," and (3) possessed a purpose to impair "the potential
evidence's availability or value in such proceeding or investigation." Straley, 2014-Ohio-
2139 at ¶ 11.
{¶ 36} Under this test, " 'the evidence tampered with must have some relevance to
an ongoing or likely investigation to support a tampering charge.' " State v. Martin, 151
Ohio St.3d 470, 2017-Ohio-7556, ¶ 111, quoting Straley at ¶ 16. "The likelihood of an
investigation is measured at the time of the alleged tampering." Martin at ¶ 110.
Circumstantial evidence may be sufficient to support a conviction for tampering with
evidence. Id. at ¶ 112.
{¶ 37} We first reiterate that appellant's argument regarding appellee presenting
"inconsistent and unreliable" evidence is a matter properly considered under the second
assignment of error in assessing the manifest weight of the evidence. (Appellant's Brief at
8.) Sieng at ¶ 51; Dennis at ¶ 32-44; Haynes at ¶ 24; Hudson at ¶ 44. Likewise, appellant's
argument that he "did not have the capacity or time to realize the presence of officers
(armed men in plain clothing) * * * and attempt to tamper with evidence to conceal that
crime" again depends on which version of events is believed and will therefore be addressed
under the second assignment of error concerning the manifest weight of the evidence.
(Appellant's Brief at 11-12.) Sieng at ¶ 51.
{¶ 38} Regarding the "unmistakable crime" doctrine, appellant specifically argues
he had "no reason to believe that an investigation was instituted or pending against him"
and implies that the conviction was instead based on the "unmistakable crime" doctrine,
which Ohio does not recognize in connection with the offense of tampering with evidence,
as stated in Barry.2 (Appellant's Brief at 11, 12.)
{¶ 39} In Barry, the Supreme Court of Ohio addressed the issue of "whether
knowledge that an official proceeding or investigation is pending or likely to be instituted
can be imputed to one who commits a crime, regardless of whether that crime is likely to
be reported to law enforcement." Id., 2015-Ohio-5449 at ¶ 17. The defendant in Barry had
concealed heroin in her body cavity several hours prior to being stopped by a state highway
patrol officer for erratic driving and a defective muffler. At the traffic stop, the officer
2 We note the Supreme Court in Martin at ¶ 108-09, 115-19, considered Barry relevant to a sufficiency
argument on appeal.
No. 18AP-505 13
smelled marijuana, which led to a search of the car and questioning of the occupants, one
of whom indicated the defendant had heroin concealed in her body. The defendant
eventually admitted to having the heroin, and it was later recovered.
{¶ 40} The Barry court first noted that in its recent case, Straley, it held that the
evidence tampered with must have some relevance to an ongoing or likely investigation to
support a tampering charge and that the likelihood of an investigation is measured at the
time of the act of alleged tampering. As such, the Straley court concluded a defendant's
conviction for tampering was not supported by sufficient evidence where nothing in the
record suggested the officers were conducting or likely to conduct an investigation into
trafficking or possession of cocaine at the point in time the defendant discarded a baggie of
cocaine.
{¶ 41} Applying Straley, the court in Barry rejected the proposition that "by
committing an 'unmistakable crime' by concealing, transporting, or possessing heroin, [the
defendant] at that time had constructive knowledge of an impending investigation into at
least one of those crimes." Id. at ¶ 23. The court reiterated "Ohio does not recognize the
'unmistakable crime' doctrine in connection with the offense of tampering with evidence"
and "merely establishing that the crime committed is an unmistakable crime is insufficient
to prove that the accused knew at the time the evidence was altered, destroyed, concealed,
or removed that an official proceeding or investigation into that crime was ongoing or likely
to be instituted." Id. at ¶ 26.
{¶ 42} Applied to the facts of its case, the Barry court then found the defendant's
conviction for tampering was not supported by sufficient evidence since the defendant
concealed the heroin with a purpose to generally avoid detection by law enforcement but
without knowledge of an impending or likely investigation. The court noted the only people
present when she concealed the heroin were her co-conspirators, nothing in the record
showed that she thought it likely that she would be stopped by law enforcement, and she
was confronted by police hours after she concealed the heroin.
{¶ 43} We find Barry distinguishable based on the instant record. First, as later
noted by the Supreme Court in Martin, 2017-Ohio-7556 at ¶ 118, "Barry does not foreclose
the possibility that knowledge of a likely investigation may be inferred when the defendant
commits a crime that is likely to be reported." (Emphasis sic.) See also State v. Bradshaw,
No. 18AP-505 14
4th Dist. No. 17CA3803, 2018-Ohio-1105 (noting Barry involved preemptive measures as
opposed to a reaction to a likely investigation of a recent criminal act).
{¶ 44} Here, appellee provided evidence that, if believed, showed officers
announced "police" as they entered the hotel room, the two officers who entered first wore
police badges and one had his gun drawn, the third officer to enter the room wore a police
uniform, and, after the officers entered the room, appellant moved a clear bag with what
appeared to be tar heroin from the bed to a place between the mattress and the wall, and
tar heroin was actually found in that location. On these facts, we find a jury could properly
infer that, at the time he concealed the heroin, appellant knew an official proceeding or
investigation was likely to be instituted regarding possible drug use and possession and that
appellant concealed or removed the heroin with a purpose to impair the heroin's availability
in such proceeding or investigation. Straley at ¶ 11; R.C. 2921.12(A)(1). Thus, a rational
juror could find all the essential elements of tampering with evidence had been proven
beyond a reasonable doubt. Robinson, 2009-Ohio-5937, at ¶ 34; Jenks, 61 Ohio St.3d 259,
at paragraph two of the syllabus. Therefore, sufficient evidence supported appellant's
conviction.
{¶ 45} Accordingly, appellant's first assignment of error is overruled.
B. Appellant's Second Assignment of Error
{¶ 46} Under his second assignment of error, appellant contends his convictions are
against the manifest weight of the evidence "[f]or the reasons already argued in the [first]
assignment of error." (Appellant's Brief at 14.) For the following reasons, we disagree with
appellant.
{¶ 47} Appellant argues appellee offered "inconsistent and unreliable" evidence and
contrasts Tabor's testimony that he could easily identify the drugs as heroin against Tabor's
testimony that thought appellant could have had a gun in his hand and Tabor's report,
which did not specifically indicate he instantly knew the drugs were on the bed.
(Appellant's Brief at 8.) According to appellant, this diminished Tabor's credibility.
Appellant additionally argues he "did not have the capacity or time to realize the presence
of officers (armed men in plain clothing), worry about consuming/possessing drugs that is
a crime, and attempt to tamper with evidence to conceal that crime." (Appellant's Brief at
12.) This argument is based on Mercier's and Housley's version of events in which appellant
No. 18AP-505 15
was asleep until the officers were in the room and Tabor was standing above him with a
gun. Essentially, appellant contends the jury should have believed the version of events
presented by Mercier and Housley over Tabor.
{¶ 48} Matters of alleged inconsistencies in testimony and evidence, credibility of
witnesses, and weight are issues primarily determined by the trier of fact. Dennis, 2008-
Ohio-6125 at ¶ 32, citing Yarbrough, 2002-Ohio-2126 at ¶ 79; State v. Thomas, 70 Ohio
St.2d 79, 80 (1982). "The jury thus may take note of the inconsistencies and resolve them
accordingly, believing all, part, or none of a witness's testimony." (Internal quotations and
citations omitted.) State v. Glover, 10th Dist. No. 07AP-832, 2008-Ohio-4255, ¶ 40. " ' "It
is the province of the jury to determine where the truth probably lies from conflicting
statements, not only of different witnesses but by the same witness." ' " State v. Hunt, 10th
Dist. No. 12AP-1037, 2013-Ohio-5326, ¶ 91, quoting Haynes, 2005-Ohio-256 at ¶ 24,
quoting State v. Lakes, 120 Ohio App. 213, 217 (4th Dist.1964). Further, "[a] defendant is
not entitled to a reversal on manifest weight grounds merely because inconsistent evidence
was presented at trial." State v. Scott, 10th Dist. No. 10AP-174, 2010-Ohio-5869, ¶ 16.
{¶ 49} First, on this record, we disagree with appellant's characterization of Tabor's
testimony as inconsistent and lacking in credibility. Although Tabor's testimony overall
was not exceptionally clear, we can discern from the transcript that the material points of
Tabor's testimony remained consistent: after Tabor entered the hotel room, appellant's
initial movement drew his attention due to the safety threat possibility of a gun; when
focused on appellant, Tabor saw appellant grab something, reach, and hide it where the bed
frame meets the wall; appellant then hid his hands again; and heroin was found where the
bed meets the wall. Tabor's action in focusing his attention on appellant instead of others
in the room, which appellant's witnesses also observed, tends to strengthen the credibility
of Tabor's contention about appellant's movements. Testimony by Nommay and Cramblett
regarding Tabor yelling "[l]et me see your hands," appellant hiding his hands, and finding
heroin in the location indicated by Tabor, as well as the amount of money and two cell
phones found on appellant, also strengthens Tabor's credibility. (Tr. at 91.)
{¶ 50} Furthermore, to believe Mercier's and Housley's version of events, the jury
would have to believe that, instead of being focused on the armed people entering the hotel
room, Mercier and Housley were observing appellant at the moment the officers were
No. 18AP-505 16
entering and near him. Furthermore, Mercier testified to observing appellant being dead
asleep until the point Tabor was near him with the gun aimed at him but also testified that
when the officers entered she was looking at Housley, not appellant. Housley seemed to
admit the officers yelled "police" when they entered the room but quickly backtracked on
that statement. (Tr. at 167.) Mercier's and Housley's version of events would also require
the jury to believe that Rinehart, a person they just met that day and an addict herself, gave
three other people her heroin for no apparent reason. These points diminished the
credibility of Mercier's and Housley's testimony.
{¶ 51} Considering all the above, this is not the exceptional case in which the
evidence weighs heavily against conviction. Thompkins, 78 Ohio St.3d 380, at 387. The
jury heard testimony from the witnesses and were able to personally observe the witnesses'
demeanor, gestures, and voice inflections and used these observations in weighing the
credibility of all the witnesses. Having reviewed the entire record, weighed the evidence
and all reasonable inferences, and considered the credibility of witnesses, we find the jury,
in resolving conflicts in the evidence, did not clearly lose its way and create such a manifest
miscarriage of justice that appellant's convictions must be reversed and a new trial ordered.
Patterson, 2016-Ohio-7130, at ¶ 34. Therefore, appellant's convictions are not against the
manifest weight of the evidence.
{¶ 52} Accordingly, we overrule appellant's second assignment of error.
V. CONCLUSION
{¶ 53} Having overruled appellant's two assignments of error, we affirm the decision
of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN and LUPER SCHUSTER, JJ., concur.
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