[W]e find a jury could properly infer that, at the time he passed the drugs to Ms. Atkins, Mr. Allen knew an official proceeding or investigation was likely to be instituted regarding possible drug use and possession and that Mr. Allen passed the drugs to Ms. Atkins with a purpose to impair the drugs availability in such proceeding or investigation.
State v. Allen
2023 – Ohio – 196
Fifth District Appellate Court
Guernsey County, Ohio
January 23, 2023
On Tuesday June 11, 2019, Trooper Scott Bayless of the Ohio State Highway Patrol initiated a traffic stop of a 2007 Buick Lucerne for a marked lanes violation. Trooper Bayless is a canine handler. Trooper Bayless had his canine partner in his patrol cruiser at the time of the traffic stop.
The occupants of the vehicle were driver Ms. Kira Atkins, Mr. Kevin Swift, and Mr. Mario Allen. Trooper Bayless approached the right side of the vehicle and testified that he could immediately smell the odor of burnt marijuana. Sergeant Bayless testified that Mr. Allen admitted the occupants of the car had been smoking a blunt. Trooper Seth Jones arrived to assist Trooper Bayless. Trooper Jones testified that he smelled raw marijuana.
The occupants were removed from their vehicle, patted down and placed in Trooper Jones’ patrol vehicle. No weapons or contraband were removed from anyone’s person. Both troopers then searched the vehicle and found marijuana and an empty THC cartridge. At some point while the troopers were conducting the search, one, or both, of the troopers were advised that Mr. Allen had an active arrest warrant. Mr. Allen was then taken into custody due to his warrant and placed in the back of Trooper Bayless’ cruiser. Ms. Atkins and Mr. Swift were permitted to return to their vehicle.
Ms. Atkins did not have a valid license, so Trooper Bayless went to his cruiser to write a traffic citation and Trooper Jones returned to his cruiser. Upon returning to his cruiser, Trooper Jones took the opportunity to review his in-car audio and video. Trooper Jones only testified as to his recollection of his observations because the recordings of the in-car audio and video were not retained by the Ohio State Highway Patrol. Trooper Jones testified that he saw the motions of a hand-to-hand transaction in the back of the cruiser but did not see specific items. More specifically, Allen’s trial counsel and Trooper Jones had the following exchange:
Mr. Connick: Okay. And you are alleging that in the back of your cruiser, which, again, we don’t have the footage for, that Mr. Allen removed something from his person and gave it to Ms. Atkins, that’s what your alleging, correct?
Tr. Jones: Yes.
Mr. Connick: Where did this come from on Mr. Allen?
Tr. Jones: The back of his pants.
Mr. Connick: The back of his pants. So as in a back pocket?
Tr. Jones: As in I don’t know. I can’t see from-the camera angles-we just have one camera in the back of our cruiser-I just know that he retrieved an item from behind his back and sitting up in the seat to where he’s digging for the item, and then handing it to Ms. Atkins.
Trooper Jones testified that he observed Mr. Allen and Mr. Swift both hand items to Ms. Atkins.
Trooper Bayless testified that Trooper Jones then notified him that there had been a hand-to-hand transaction and the drugs were concealed. This was done via the use of hand signals developed between them over the years. Trooper Bayless testified that Ms. Atkins admitted to having contraband on her person and Allen, Mr. Swift and Ms. Atkins were transported to the Guernsey County Jail.
While being processed to enter the jail, Mr. Allen refused to “squat and cough” to determine if he had concealed contraband on his person. This necessitated that Mr. Allen be taken to the hospital to be examined and cleared to enter the jail.
Mr. Allen was interviewed the following day by Sergeant Coy Lehman of the Ohio State Highway Patrol. Mr. Allen admitted the drugs that were found on Ms. Atkins belonged to him and that he had given them to her in the backseat of the patrol car.
The drugs were analyzed and found to be:
(1) 1.1959 grams of marijuana;
(2) 3.6475 grams of cocaine packaged in 7 individual plastic bags;
(3) 2.9384 grams of Fentanyl packaged in 14 individual plastic bags, and
(4) A rock like substance containing Fentanyl.
After the presentation of evidence and instructions by the trial court, the jury returned a verdict of guilty on the Tampering with Evidence charge. The jury could not reach a verdict as to either the possession of cocaine charge or the possession of fentanyl related compound. The state elected to dismiss both of these counts.
On January 24, 2022, the court sentenced Mr. Allen to a prison term of 24 months.
Whether, after viewing the evidence in the light most favorable to the prosecution, the evidence, if believed, would convince the average mind that Allen was guilty beyond a reasonable doubt.
Mr. Allen was convicted of Tampering with Evidence in violation of O.R.C. §2912.12, which provides in relevant part, (A) 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: (1) 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…
In order to find Mr. Allen guilty of tampering with evidence, the state had to prove that Mr. Allen:
(1) Had knowledge that an official proceeding or investigation was in progress or likely to be instituted; and
(2) Altered, destroyed, concealed, or removed the potential evidence;
(3) For the purpose of impairing the potential evidence’s availability or value in such proceeding or investigation.
State v. Straley, 2014-Ohio-2139
O.R.C. §2901.22(B) defines when a person acts “knowingly.” The statute states: A person acts knowingly, regardless of purpose, when the person is aware that the person’s conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.
Under this test, “‘[T]he evidence tampered with must have some relevance to an ongoing or likely investigation to support a tampering charge.’” State v. Martin, 2017-Ohio-7556, quoting Straley. The likelihood of an investigation is measured at the time of the alleged tampering. State v. Straley, 2014-Ohio-2139; State v. Barry, 2015-Ohio-5449. Circumstantial evidence may be sufficient to support a conviction for tampering with evidence. State v. Martin, 2017-Ohio-7556.
The definition of “knowingly” does not encompass knowledge that a reasonably diligent person should, but does not, have. State v. Barry, 2015–Ohio–5449. Consequently, “[C]onstructive knowledge is insufficient to prove that [an accused] knew that an investigation was ongoing or likely to be commenced.” Id. at ¶ 25. “Ohio law does not impute constructive knowledge of an impending investigation based solely on the commission of an offense.” Id. at ¶ 2.
Knowledge that an official proceeding or investigation was in progress or likely to be instituted.
In Barry, the court determined that the evidence was legally insufficient to show that the defendant knew that an official proceeding or investigation was in progress or was likely to be instituted at the time she concealed drugs. In Barry, the defendant hid the drugs in her body before departing for a road trip. She intended to drive with a group of friends to West Virginia. While en route, a law enforcement officer stopped the defendant’s vehicle. After questioning, the officer began to suspect that the defendant had hidden drugs inside her body. The officer then warned the defendant that he could obtain a warrant for a body cavity search if she did not cooperate. The defendant eventually admitted that she had concealed drugs inside her body.
The Ohio Supreme Court concluded in Barry that the evidence failed to establish that the defendant “[K]new or could have known that a state trooper would stop her car … and begin an investigation of her for drug trafficking and drug possession” at the time she concealed the drugs. Rather, the court found that the defendant “[C]oncealed the drugs with a purpose to avoid detection by law enforcement and without knowledge of an impending or likely investigation.” The court thus concluded that the evidence was insufficient to support the defendant’s tampering with evidence conviction.
In State v. Straley, 2014-Ohio-2139, two narcotics detectives stopped Straley’s car after observing it travel left of center. They suspected Straley of driving under the influence of alcohol, but when the search of her car revealed no contraband, the detectives decided not to arrest her. However, Straley needed to urinate while the officers were attempting to find her a safe ride home. An officer searched the area where she relieved herself and discovered a urine soaked cellophane baggie containing crack cocaine. Straley at ¶ 19. Straley subsequently pleaded no contest to drug trafficking and possession of cocaine, and a jury convicted her of tampering with evidence. In affirming the appellate court’s decision reversing Straley’s tampering with evidence conviction, the Ohio Supreme Court explained “[T]here is nothing in the record to suggest that the officers were conducting or likely to conduct an investigation into trafficking or possession of cocaine when Straley discarded the baggie.”.
The [Ohio] Supreme Court’s focus in Straley and Barry was upon the events that had transpired at the time the suspects hid the evidence. Unlike the facts of this case, there was nothing in those cases that would have drawn attention to their drug trafficking activity. Straley and Barry concealed the contraband before they knew they would actually encounter the police. Hiding the evidence was a preemptive measure as opposed to a reaction to a likely investigation of a recent criminal act. See, State v. Shaw, 2018-Ohio-403.
Application of Law
Ms. Atkins was lawfully stopped for a traffic infraction. Both officers testified that he smelled marijuana upon approaching the car. The occupants of the car were told that the officers were going to conduct a probable cause search of the car for contraband. The three occupants of the car were removed, patted down and placed inside Trooper Jones’s cruiser. While in Trooper Jones’s cruiser Allen and Swift pass what is later found to be drugs to Ms. Atkins. During the search of the car, an outstanding arrest warrant was found for Mr. Allen. Mr. Allen was arrested and placed into Trooper Bayless’s cruiser.
While Mr. Allen initially concealed the drugs on his person before embarking on the trip with Swift and Atkins, at the time Allen passed the drugs to Ms. Atkins he was aware that an investigation into possible drug activity had begun. He was told the officers were going to search to car and the troopers began to search the car. On these facts, we find a jury could properly infer that, at the time he passed the drugs to Ms. Atkins, Mr. Allen knew an official proceeding or investigation was likely to be instituted regarding possible drug use and possession and that Mr. Allen passed the drugs to Ms. Atkins with a purpose to impair the drugs availability in such proceeding or investigation. Straley at ¶11; O.R.C. §2921.12(A)(1).
Viewing the evidence in a light most favorable to the prosecution, we conclude that a reasonable person could have found beyond a reasonable doubt that Mr. Allen, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted altered, destroyed, concealed, or removed any record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation.
We hold, therefore, that the state met its burden of production regarding the elements of tampering with evidence; accordingly, there was sufficient evidence to support Mr. Allen’s conviction.
Information for this article was obtained from State v. Allen, 2023 – Ohio – 196.
This case was issue by the Fifth District Appellate Court and is binding in the following Ohio Counties: Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark and Tuscarawas.
- The Fifth District Appellate Court provides a detailed analysis as to what constitutes Tampering With Evidence O.R.C. 2921.12. In this case, the issue raised by Mr. Allen is whether or not the state could prove that when he passed the drugs to Ms. Atkins inside of Trooper Jones’ cruiser that he did so to conceal the drugs from an investigation. The court determined that Mr. Jones did knowingly conceal the drugs via Ms. Atkins as the court held “He was told the officers were going to search to car and the troopers began to search the car. On these facts, we find a jury could properly infer that, at the time he passed the drugs to Ms. Atkins, Mr. Allen knew an official proceeding or investigation was likely to be instituted regarding possible drug use and possession and that Mr. Allen passed the drugs to Ms. Atkins with a purpose to impair the drugs availability in such proceeding or investigation.”.
- Both Trooper Bayless and Trooper Jones should be highly commended for their investigative prowess. Many agencies today have in-cruiser cameras but the key is not only having the in-cruiser camera but using the camera in-the-moment. If Trooper Jones had not reviewed the video contemporaneous with the investigation the narcotics would have been lost. Well done Trooper Bayless and Trooper Jones!
- Because of the Supreme Court of Ohio’s decision in State v. Straley, 2014-Ohio-2139, law enforcement must be able to articulate that when a suspect conceals, hides, destroys evidence that the suspect knew that an investigation into possession of that same evidence was about to or had commenced. In this case, Mr. Jones and Ms. Atkins knew that the troopers were investigating possession of narcotics since, on first approach, Trooper Bayless smelled marijuana and Mr. Jones admitted to smoking a blunt just prior to the traffic stop.
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