Court of Appeals of Ohio, Fourth District, Scioto
CRIMINAL APPEAL FROM COMMON PLEAS COURT
Andrew Sturgill, Portsmouth, Ohio, for appellant.
E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis,
Scioto County Assistant Prosecuting Attorney, Portsmouth,
Ohio, for appellee.
DECISION AND JUDGMENT ENTRY
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
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
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
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."
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
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
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.
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,
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
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).
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;
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.
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,
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