State v. Straley , 2013 Ohio 510 ( 2013 )

[Cite as State v. Straley, 2013-Ohio-510.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
: Appellate Case No. 2012-CA-34
Plaintiff-Appellee :
: Trial Court Case No. 2012-CR-39
v. :
:
AMANDA STRALEY : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 15th day of February, 2013.
...........
LISA M. FANNIN, Atty. Reg. #0082337, Clark County Prosecutor’s Office, 50 East
Columbia Street, 4th Floor, Post Office Box 1608, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
GREGORY K. LIND, Atty. Reg. #0055227, One South Limestone Street, Ground Floor -
Suite D, Springfield, Ohio 45502
Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} Amanda Straley appeals from her conviction and sentence on charges of
trafficking in crack cocaine, possession of crack cocaine, and tampering with evidence. In two
related assignments of error, she challenges the legal sufficiency and manifest weight of the
evidence to support the tampering conviction.
{¶ 2} The record reflects Straley pled no contest to the crack-cocaine trafficking and
possession charges, both fifth-degree felonies, after the trial court denied a pre-trial
suppression motion. The case proceeded to a jury trial on the evidence-tampering charge, a
third-degree felony. The State’s evidence established that two plain-clothes detectives in an
unmarked car stopped Straley’s vehicle after seeing it go left of center. One of the detectives,
Will Speakman, approached the stopped vehicle and asked Straley, the driver and sole
occupant, for her license. Upon discovering that Straley lacked a license, Speakman ordered
her out of the car. At that point, he suspected she was intoxicated based on her driving,
slurred speech, and the smell of alcohol. Speakman and his partner, detective Jason Via,
obtained permission to search Straley’s vehicle and found no contraband.
{¶ 3} Speakman testified at trial that he stopped Straley’s vehicle because of the
potential safety issue her driving posed. He was not on traffic patrol when he made the stop.
Because he was in plain clothes in an unmarked car, he decided not to pursue charges for
driving without a license or driving under the influence of alcohol. Speakman informed
Straley he simply wanted to find her a ride home. He unsuccessfully attempted to contact her
mother and aunt. Speakman then decided to ask his supervisor for permission to drive Straley
home. While detective Via was calling the supervisor, Straley announced that she had to use
the restroom. Speakman advised her to wait because no restrooms were nearby. Straley
responded that she had to relieve herself. Despite Speakman’s admonition that she could not
do it there, Straley “trotted” twenty or thirty feet away to the corner of a building, pulled down
her pants, and urinated. As she did so, she told Speakman, “I don’t care if you have to arrest
me; I gotta pee.” To give Straley some privacy, Speakman kept her in his peripheral vision but
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avoided looking at her. It was dusk at the time, and the sun had set. After Straley finished,
Speakman walked over to where she had urinated. He noticed a cellophane baggie on the
ground covered in urine. The baggie contained crack cocaine. When Straley saw Speakman
retrieve the baggie, she told him, “I forgot I had that. I wasn’t trying to hide it from you.”
Speakman arrested Straley based on his discovery of the crack cocaine.
{¶ 4} Straley ultimately was charged with trafficking in crack cocaine, possession of
crack cocaine, and tampering with evidence. The tampering charge involved her act of
dropping the baggie while urinating. Following her no-contest plea to the trafficking and
possession charges, a jury convicted her on the tampering charge. The trial court merged the
trafficking and possession convictions for purposes of sentencing, and the State elected to
proceed on the trafficking conviction. The trial court imposed concurrent nine-month prison
sentences for the trafficking conviction and the tampering conviction. This appeal followed.
{¶ 5} In her first assignment of error, Straley contends the State presented legally
insufficient evidence to sustain the tampering conviction. She argues that dropping drugs on
the ground in full view of a police officer, with knowledge of the officer’s presence, does not
constitute tampering with evidence. In support, she cites State v. Delaney, 3d Dist. Union No.
14-04-10, 2004-Ohio-4158, and State v. Henderson, 9th Dist. Lorain No. 02CA008052,
2003-Ohio-1470.
{¶ 6} As relevant here, the evidence-tampering statute provides: “No person,
knowing that an official * * * investigation is in progress, or is about to be or likely to be
instituted, shall * * * [a]lter, destroy, conceal, or remove any * * * thing, with purpose to
impair its * * * availability as evidence in such * * * investigation.” R.C. 2921.12(A)(1).
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{¶ 7} In Delaney, the defendant removed a packet of drugs from his sock and
dropped the packet on the floor directly in front of a police officer. The Third District
reasoned: “In this case, Delaney's actions were done in full view of [the officer]. When all of
the actions occur within full view of law enforcement officials, and the defendant knows that
the officers are there, the evidence is insufficient to prove tampering with evidence.”
Delaney at ¶7.
{¶ 8} In Henderson, police stopped a vehicle for a firearm offense. After the vehicle
stopped, the defendant opened the passenger’s door, reached his arm out, and placed a gun in
the road. He did this in full view of officers who had surrounded the vehicle. The Ninth
District found no evidence tampering based on the defendant’s act of placing the gun in the
road. It reasoned: “The officers provided no testimony that they witnessed appellant altering,
concealing, or attempting to destroy the gun when they stopped the vehicle. Rather, the
officers’ testimony was clear that appellant openly deposited the gun on the road in their plain
view.” Henderson at ¶56.
{¶ 9} Upon review, we find Delaney and Henderson to be distinguishable. Unlike
the defendant in those cases, Straley did not drop her crack cocaine in full view of Speakman.
She distanced herself from him by moving twenty to thirty feet away and dropped a baggie
near a building where she was urinating. It was dusk at the time, and Speakman was not
watching her closely. Under these circumstances, the State presented legally sufficient
evidence to establish that Straley either concealed or removed the drugs within the meaning of
the evidence-tampering statute. A defendant’s act of removing contraband from his or her
person can constitute concealment or removal if done to avoid discovery. See, e.g., State v.
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Colquitt, 2d Dist. Clark No. 98-CA-71, 1999 WL 812313 (Sept. 24, 1999) (“The jury could
reasonably infer that, by throwing the baggie over the fence, Colquitt was seeking to prevent
the baggie’s disclosure by placing it out of sight, or getting rid of it.”). Straley’s only argument
in this first assignment of error is that the evidence is insufficient because she discarded
drugs in plain view of a police officer. We disagree that the evidence supports the conclusion
she acted in the officer’s plain view. Accordingly, her first assignment of error is overruled.
{¶ 10} In her second assignment of error, Straley contends her evidence-tampering
conviction is against the manifest weight of the evidence. In support, she reiterates her
argument that she did not alter, destroy, conceal, or remove the baggie of drugs. But even if
she did one of those things, Straley further asserts that the weight of the evidence fails to show
she did so (1) with knowledge that an investigation was in progress or was likely to be
instituted or (2) with the purpose to impair the baggie’s availability as evidence in such
investigation.
{¶ 11} Upon review, we believe the weight of the evidence supports the factual
finding that Straley concealed or removed the baggie of drugs within the meaning of R.C.
2921.12(A)(1). As discussed above, she distanced herself from Speakman and dropped the
baggie in a dark area when he was not paying close attention to her.
{¶ 12} We also believe the weight of the evidence supports a finding that Straley
knew an investigation was likely to be instituted. For present purposes, we will assume,
arguendo, that Speakman’s investigation into her apparent act of driving under the influence
of alcohol and driving without a license had been completed. When Straley went to urinate,
Speakman was simply trying to find her a ride home. Nevertheless, the evidence supports a
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finding that Straley knew when she dropped the baggie that a second “investigation” was
likely to occur.
{¶ 13} This court has recognized that a police officer may conduct an investigative
detention based on an observed act of urinating in public. State v. Broom, 2d Dist.
Montgomery No. 22468, 2008-Ohio-5160, ¶8; see also State v. Minton, 6th Dist. Sandusky
No. S-93-25, 1994 WL 39057, *1 (Feb. 11, 1994) (finding “that a police officer who observes
someone urinating in a public place is justified in conducting a brief investigative detention of
that individual”). Straley appears to have been aware that her act of urinating in public could
lead to at least an investigative detention. When going to urinate, Straley told Speakman, “I
don’t care if you have to arrest me; I gotta pee.” Under these circumstances, the jury
reasonably could have found that Straley knew some “investigation” into her public urination
was likely.
{¶ 14} In addition to Straley concealing or removing the baggie with knowledge that
an investigation was likely, R.C. 2921.12(A)(1) obligated the State to prove that she acted
“with purpose to impair its * * * availability as evidence in such * * * investigation[.]”
(Emphasis added). Here the record does not support a finding that Straley discarded the baggie
to impair its availability as evidence in an investigation of her public urination—or, for that
matter, an investigation of her driving under the influence of alcohol or driving without a
license. In State v. Moulder, 2d Dist. Greene No. 08-CA-108, 2009-Ohio-5871, this court
reasoned that the evidence at issue in a tampering case must be related to the subject of the
investigation. In Moulder, the defendant was stopped for speeding and placed in a police
cruiser, where he dropped a small bag of cocaine on the floorboard. This court found no
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evidence-tampering, explaining:
* * * Moulder argues that his tampering with evidence conviction is
against the manifest weight of the evidence. We agree. When Moulder
allegedly dropped the cocaine on the floorboard of the cruiser, the only
“investigation” that had taken place was his alleged speeding violation. The
cocaine could not have been used in proving the speeding violation. * * *
Id. at ¶7.
{¶ 15} Similarly, when Straley dropped the baggie of crack cocaine, the investigation
that had already taken place involved apparent driving under the influence of alcohol and
driving without a license. The only investigation still likely to take place concerned public
urination which could amount to either Disorderly Conduct in violation of R.C.
2917.11(B)(1), or Public Indecency in violation of R.C. 2907.09(A)(1). 1 The contraband
Straley dropped had no use or value as “evidence” in an investigation of these offenses.
Because R.C. 2921.12(A)(1) required Straley to conceal or remove the baggie with knowledge
that an investigation was likely and “with purpose to impair its * * * availability as evidence
in such * * * investigation[,]” we believe the baggie had to have some relevance to an
investigation into public urination, driving under the influence of alcohol, or driving without a
license. Moulder at ¶7. To be convicted under the statute, a defendant must “impair” evidence
in an investigation that is ongoing or likely to occur by tampering in some way with evidence
related to the investigation. In reaching this conclusion, we are mindful that “[s]ections of the
1
We do not need to determine whether, under the circumstances, Straley would be found guilty of either offense, only that an
investigation was likely to be instituted.
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Revised Code defining offenses shall be strictly construed in favor of the accused.” Id. at ¶8.2
{¶ 16} Although appellant’s second assignment of error refers to the manifest weight
of the evidence, our analysis actually determines the insufficiency of the evidence. Sufficiency
involves whether the state produced evidence to meet its burden on an issue, manifest weight
evaluates the greater amount of credible evidence. Here, we determine that there is no
evidence to support a finding that Straley acted with purpose to impair the baggie’s
availability as evidence in any ongoing or likely investigation. Therefore, she did not
“tamper” with evidence in violation of R.C. 2921.12(A)(1). Instead, she merely discarded
contraband, unrelated to any investigation, in the hope that police would not see it. Thus,
although weight and sufficiency are separate concepts, when evidence is insufficient, it is also
necessarily against the manifest weight. State v. Spears, 178 Ohio App.3d 580,
2008–Ohio–5181, 899 N.E.2d 188, ¶ 24 (2d Dist.). Straley’s second assignment of error is
sustained.
{¶ 17} The trial court’s judgment is reversed, and the cause is remanded for vacation
of the evidence-tampering conviction.
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FAIN, P.J. and FROELICH, J., concur.
Copies mailed to:
Lisa M. Fannin
Gregory K. Lind
2
But see State v. Skorvanek, 182 Ohio App.3d 615, 2009-Ohio-1709, 914 N.E.2d 418, ¶23 (9th Dist.2009) (“This court has never
held that a defendant commits the offense of tampering with evidence only if he tampers with an item directly related to a police officer’s
purpose for investigating the defendant.”).