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State v. Bradshaw

Court of Appeals of Ohio, Fourth District, Scioto

March 9, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
GARVIN S. BRADSHAW, Defendant-Appellant.

          CRIMINAL APPEAL FROM COMMON PLEAS COURT

          S. Andrew Sturgill, Portsmouth, Ohio, for appellant.

          Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.

          DECISION AND JUDGMENT ENTRY

          Peter B. Abele, Judge.

         {¶ 1} This is an appeal from a Scioto County Common Pleas Court judgment of conviction and sentence. A jury found Garvin S. Bradshaw, defendant below and appellant herein, guilty of three offenses: (1) trafficking in heroin, in violation of R.C. 2925.03(A)(2); (2) possession of heroin, in violation of R.C. 2925.11(A); and (3) tampering with evidence, in violation of R.C. 2921.12(A)(1).

         {¶ 2} Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:
"THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO CONVICT APPELLANT OF TAMPERING WITH EVIDENCE AS INDICTED; OR IN THE ALTERNATIVE, THE CONVICTION OF TAMPERING WITH EVIDENCE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE"
SECOND ASSIGNMENT OF ERROR:
"THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO CONVICT APPELLANT OF EITHER CHARGE OF POSSESSION OF HEROIN OR TRAFFICKING IN HEROIN AS INDICTED; OR, IN THE ALTERNATIVE, THE CONVICTIONS OF POSSESSION OF HEROIN AND TRAFFICKING IN HEROIN WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

         {¶ 3} After a Scioto County grand jury returned an indictment that charged appellant with trafficking in heroin, possession of heroin, and tampering with evidence, appellant entered not guilty pleas. The trial court later held a jury trial.

         {¶ 4} At trial, Matthew Mathias, appellant's parole officer, testified that he arrested appellant "pending an investigation of violations." Mathias did not elaborate upon the nature of the violations. However, Mathias stated that before he placed appellant in a vehicle to transport him to jail, Mathias checked the vehicle's backseat for any items or contraband. Mathias then asked appellant whether he had anything on him, and appellant stated that he did not. Mathias patted down appellant and did not locate any contraband. Mathias indicated that he "tr[ies] to make it a standard practice to remind [arrestees] that they are going into custody, they don't want to catch any other charges, and [appellant] said he ha[d] nothing else on him."

         {¶ 5} Mathias testified that after appellant exited the vehicle at the jail, Mathias's supervisor, Parole Services Supervisor Matthew Stuntebeck, saw appellant throw something in the trash. Stuntebeck retrieved the item that looked like a cigarette wrapper. Mathias stated that Stuntebeck asked appellant about the item, and appellant responded that "it was some dope * * * [and] that he was taking it to a guy in the Ville."[1]

         {¶ 6} Stuntebeck testified that he was present during appellant's arrest and helped transport him to the jail. Stuntebeck explained that he and Mathias arrested appellant "pending an investigation * * * for a potential parole violation."[2]

         {¶ 7} Stuntebeck stated that he, like Mathias, generally informs arrestees "that it's potentially another felony charge if they do convey something into a detention facility and can lead to further violations, as well as potentially new charges." Stuntebeck indicated that he asked appellant if he had "anything else" that might "get [him] in trouble." Appellant said that he did not. Stuntebeck stated that before he placed appellant in the transport vehicle, he personally inspected the backseat to ensure that it did not contain any contraband.

         {¶ 8} Stuntebeck explained that when they arrived at the jail, he walked over to help appellant out of the car. As he did so, he noticed that appellant appeared to be "fidgeting." Stuntebeck testified that once appellant exited the vehicle, Stuntebeck saw "something in [appellant's] hand and [he] kind of had his hands in the back of his pants."

         {¶ 9} Stuntebeck related that as they approached the door to the jail, appellant dropped something in the trash can. Stuntebeck retrieved the item and discovered that it was a "really thin smashed Pall Mall cigarette package" that contained a powdery substance wrapped inside a small plastic bag. Stuntebeck asked appellant what it was, and appellant stated it was "dope." Stuntebeck next inquired whether it was heroin, and appellant responded, "Yeah, something like that." Stuntebeck explained that appellant indicated that "he was going to take it to some guy in the Ville to deliver."

         {¶ 10} After the state rested, appellant moved for a Crim.R. 29 judgment of acquittal regarding the tampering with evidence charge. He asserted that the state failed to present evidence showing that appellant tampered with evidence related to an ongoing or likely investigation into alleged drug activity. Appellant alleged that no evidence indicated that he knew the officers were investigating, or likely to investigate, appellant for drug activity. Appellant claimed that without evidence that the officers suspected him of drug activity, the state could not show that he tampered with evidence relating to an ongoing or likely investigation.

         {¶ 11} The state countered that appellant knew the officers were investigating him for violating parole and that the investigation did not end at the jail-house doors. The state further argued that the officers warned appellant about the consequences of carrying contraband into the jail, and that warning gave appellant knowledge that an investigation into whether he was carrying contraband was likely. The trial court overruled appellant's motion.

         {¶ 12} The jury subsequently found appellant guilty of all three offenses as charged in the indictment. The trial court (1) merged appellant's trafficking in heroin and possession of heroin convictions and ordered appellant to serve twelve months in prison for trafficking in heroin, (2) sentenced appellant to serve thirty-six months in prison for his tampering with evidence, and (3) further ordered that the sentences be served consecutively to one another for a total of forty-eight months. This appeal followed.

         I

         {¶ 13} Appellant's first and second assignments of error assert that the state failed to present sufficient evidence to support his convictions, or alternatively, that his convictions are against the manifest weight of the evidence. For ease of discussion, we first set forth the standards that apply to both assignments of error.

         {¶ 14} We initially observe that "sufficiency" and "manifest weight" present two distinct legal concepts. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶23 (stating that "sufficiency of the evidence is quantitatively and qualitatively different from the weight of the evidence"); State v Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), syllabus A claim of insufficient evidence invokes a due process concern and raises the question whether the evidence is legally sufficient to support the verdict as a matter of law Thompkins, 78 Ohio St.3d at 386 When reviewing the sufficiency of the evidence, our inquiry focuses primarily upon the adequacy of the evidence; that is, whether the evidence, if believed, reasonably could support a finding of guilt beyond a reasonable doubt Id. at syllabus The standard of review is whether, after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt Eg, Jackson v Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v Jenks, 61 Ohio St.3d 259');">61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991) Furthermore, a reviewing court is not to assess "whether the state's evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction" Thompkins, 78 Ohio St.3d at 390 (Cook, J, concurring).

         {¶ 15} Thus, when reviewing a sufficiency-of-the-evidence claim, an appellate court must construe the evidence in a light most favorable to the prosecution. E.g., State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio St.3d 465, 477, 620 N.E.2d 50 (1993). A reviewing court will not overturn a conviction on a sufficiency-of-the-evidence claim unless reasonable minds could not reach the conclusion that the trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146, 162, 749 N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484, 739 N.E.2d 749 (2001).

         {¶ 16} "Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence." Thompkins, 78 Ohio St.3d at 387. When an appellate court considers a claim that a conviction is against the manifest weight of the evidence, the court must dutifully examine the entire record, weigh the evidence and all reasonable inferences, and consider the witness credibility. State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶151, citing Thompkins, 78 Ohio St.3d at 387. A reviewing court must bear in mind, however, that credibility generally is an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008-Ohio-1744, ¶31. "'Because the trier of fact sees and hears the witnesses and is particularly competent to decide "whether, and to what extent, to credit the testimony of particular witnesses, " we must afford substantial deference to its determinations of credibility.'" Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, 929 N.E.2d 1047, ¶20, quoting State v. Konya, 2nd Dist. Montgomery No. 21434, 2006-Ohio-6312, ¶6, quoting State v. Lawson, 2nd Dist. Montgomery No. 16288 (Aug. 22, 1997). As the court explained in Eastley:

"'[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment must be made in favor of the judgment and the finding of facts. * * *
If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.'"

Id. at ¶21, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191-192 (1978). Thus, an appellate court will leave the issues of weight and credibility of the evidence to the fact-finder, as long as a rational basis exists in the record for its decision. State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012-Ohio-1282, ¶24; accord State v. Howard, 4th Dist. Ross No. 07CA2948, 2007-Ohio-6331, ¶6 ("We will not intercede as long as the trier of fact has some factual and rational basis for its determination of credibility and weight").

         {¶ 17} Once the reviewing court finishes its examination, the court may reverse the judgment of conviction only if it appears that the fact-finder, when resolving the conflicts in evidence, "'clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.'" Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). If the prosecution presented substantial credible evidence upon which the trier of fact reasonably could conclude, beyond a reasonable doubt, that the essential elements of the offense had been established, the judgment of conviction is not against the manifest weight of the evidence. E.g., State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132 (1978), syllabus, superseded by state constitutional amendment on other grounds in State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668 (1997). Accord Eastley at ¶12, quoting Thompkins, 78 Ohio St.3d at 387, quoting Black's Law Dictionary 1594 (6th ed.1990) (explaining that a judgment is not against the manifest weight of the evidence when "'"the greater amount of credible evidence"'" supports it). A reviewing court should find a conviction against the manifest weight of the evidence only in the "'exceptional case in which the evidence weighs heavily against the conviction.'" Thompkins, 78 Ohio St.3d at 387, quoting Martin, 20 Ohio App.3d at 175. Accord State v. Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d 995 (2000).

         II

         {¶ 18} In his first assignment of error, appellant asserts that the state did not present sufficient evidence to support his tampering with evidence conviction, or alternatively, that his conviction is against the manifest weight of the evidence. In particular, appellant contends that the state failed to present any evidence to show that the evidence he allegedly tampered with, heroin, related to an ongoing or likely investigation regarding the possession of or trafficking in heroin. Appellant claims that at the time he allegedly disposed of the heroin, the only investigation concerned his alleged parole violations. Because appellant contends that the state did not present any evidence that his alleged violations involved drug-related offenses or that the heroin related to his alleged parole violations, appellant thus argues that the evidence allegedly tampered with, heroin, did not bear any relation to an ongoing or likely investigation. He therefore asserts that because the evidence fails to show a pending or likely investigation into his alleged drug-related activity, the evidence is legally insufficient to support his tampering with evidence conviction.

         {¶ 19} The tampering with evidence statute provides:

(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;

         To support a conviction for tampering with evidence under R.C. 2921.12(A)(1), the state 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 removed "the potential evidence, " and (3) possessed a purpose to impair "the potential evidence's availability or value in such proceeding or investigation." State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175, ¶11.

         A

         {¶ 20} The first element requires the state to establish that at the time of concealment, the defendant knew "of an official proceeding or investigation in progress or likely to be instituted." State v. Barry,145 Ohio St.3d 354, 2015-Ohio-5449, 49 N.E.3d 1248, ¶2. "The likelihood of an investigation is measured at the time of the alleged tampering." State v. Martin, ___ Ohio St.3d ___, 2017-Ohio-7 ...


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