[Cite as State v. Mathis, 2019-Ohio-4887.]


                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                 Plaintiff-Appellee,               :
                                                             No. 107986
                 v.                                :

JASMINE L. MATHIS,                                 :

                 Defendant-Appellant.              :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: November 27, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-17-620952-B


                                             Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Jeffrey Schnatter, Assistant Prosecuting
                 Attorney, for appellee.

                 Mark A. Stanton, Cuyahoga County Public Defender, and
                 Robert McCaleb, Assistant Public Defender, for appellant.
MARY J. BOYLE, P.J.:

                 Defendant-appellant, Jasmine L. Mathis (“Mathis”), appeals the trial

court’s denial of her motion to suppress and her conviction for tampering with

evidence. She raises two assignments of error for our appeal:

        1.     The trial court erred when it denied Ms. Mathis’s motion to
               suppress on the grounds that she consented to the warrantless
               search of her cellular telephone.

        2.     Ms. Mathis was convicted on insufficient evidence because the
               government failed to prove mens rea.

                 Finding no merit to her assignments of error, we affirm.

   I.        Procedural History and Factual Background

                 On September 8, 2017, the Cuyahoga County Grand Jury indicted

Mathis for one count of obstructing justice in violation of R.C. 2921.32(A)(5), a

felony of the third degree, and one count of tampering with evidence in violation of

R.C. 2921.12(A)(1), a felony of the third degree, with a one-year firearm

specification.

                 Mathis was indicted along with two codefendants, Terry Thomas, Jr.

(“Thomas”),1 and Kurtis Fields (“Fields”), for the shooting death of Tyrone Rodgers.

Both Thomas and Fields were charged with one count of aggravated murder in

violation of R.C. 2903.01(A), an undefined felony; one count of murder in violation



        1In Cuyahoga C.P. No. CR-17-620952-A, Thomas agreed to a plea deal in
September 2018 and pleaded guilty to an amended count of involuntary manslaughter in
violation of R.C. 2903.04(A), a felony of the first degree, and carrying concealed weapons,
and the remaining counts were nolled. Thomas filed a notice of appeal, but voluntarily
dismissed it in February 2019.
of R.C. 2903.02(B), an undefined felony; two counts of felonious assault in violation

of R.C. 2903.11(A)(1) and (2), felonies of the second degree; and one count of

carrying a concealed weapon in violation of R.C. 2923.12(A)(2), a felony of the

fourth degree. The aggravated murder, murder, and felonious-assault counts all

carried firearm specifications. Additionally, Fields was charged with two counts of

having weapons while under a disability in violation of R.C. 2923.13(A)(2) and (3)

(one of which carried one- and three-year firearm specifications), and his counts for

aggravated murder, murder, and felonious assault also carried notices of prior

conviction and repeat violent offender specifications. 2

               In January 2018, Mathis filed a motion to suppress her statements

and evidence collected from her cell phone, arguing that (1) she and her phone were

illegally seized and searched, (2) she did not voluntarily consent to the search of her

phone, (3) the officer’s pat down was illegal, and (4) officers failed to advise her of

Miranda warnings. The state opposed her motion.

               The court held a hearing on the motion, during which the following

evidence was presented.

               On February 26, 2015, at around approximately 10 p.m., officers

responded to an apartment complex for a report of a shooting. When they arrived,



      2  In Cuyahoga C.P. No. CR-17-620952-C, Fields went to trial and the jury found
him not guilty of aggravated murder and carrying concealed weapons, but guilty of the
remaining counts of murder, felonious assault, and some of the firearm specifications.
The trial court found Fields guilty of both counts of having weapons while under a
disability. He appealed. See State v. Fields, 8th Dist. Cuyahoga No. 107971. Fields’s
appeal is a companion case to the instant case.
they found Rodgers bleeding from gunshot wounds at the bottom of a stairwell

leading down to the first floor. After Rodgers was transported by EMS, Officer Vasile

Nan (“Officer Nan”) spoke with residents in the building and “determined the

argument [that] led to the shooting occurred in or around Apartment 102.” After a

period of knocking, Mathis answered the door, and there were five to six adults in

the apartment and a number of small children. Officer Nan did not enter the

apartment and “stayed pretty much by the door.” Mathis told him that she did not

know Rodgers, but that her sister “was being followed prior to the incident from the

rapid station on West 98th and Detroit to this location * * * by [Rodgers].” Mathis

said that Rodgers followed her sister and came into Mathis’s apartment, there was

an argument between her sister and Rodgers, and Rodgers eventually left. Mathis

told him that after Rodgers left her apartment, Mathis let two males, later identified

as Thomas and Fields, into the building and that “almost immediately[,] an

argument erupted between the * * * two unknown males, and the victim” and,

shortly after, she heard gunshots. Mathis denied knowing Thomas and Fields and

denied that they came into her apartment.

              After his 15-minute discussion with Mathis and while still on scene,

Officer Nan viewed the security footage of the first-floor hallway showing that

Thomas and Fields entered Mathis’s apartment about 10 to 15 seconds before the

shooting, which was inconsistent with Mathis’s account.

              Upon finding that Mathis gave an account inconsistent with the

security footage, Officer Nan and two to three other officers talked to Mathis again,
asking her to step into the hallway to talk. Mathis stood in the doorway, and the

officers stood around her because the hallway was a “very tight spot.” Officer Nan

asked Mathis whether she called anybody based upon the fact that the video showed

that Thomas and Fields showed up to the apartment within minutes of Rodgers

arriving. Officer Nan believed that Mathis may have called someone for “re-

enforcement.” Mathis denied calling anybody.

                 One of Officer Nan’s supervisors told officers at the scene to arrest

Mathis for obstructing justice; however, Officer Nan’s testimony is not clear on when

that order was given, specifically, before or after his second interaction with Mathis.

Despite those instructions, Officer Nan did not arrest Mathis, tell Mathis that she

was under arrest, or seize Mathis or any items at the scene. While he initially

testified that he never told Mathis or any of the adults in her apartment that they

could not leave the apartment, on cross-examination, Officer Nan said that the

adults in Mathis’s apartment, including Mathis, were ordered not to leave until the

investigation was complete.

                 Detective David Borden (“Detective Borden”), a member of Cleveland

Police Department’s Homicide Unit, responded to the apartment building around

10:30 p.m. and spoke to Mathis inside her apartment to try to figure out why

Rodgers was at her apartment. There were five to six other people in the apartment

during their discussion, during which Mathis told him that her sister was dating

Rodgers, the two had “some kind of altercation,” and her sister left Rodgers at the

rapid station.
               During his conversation with Mathis, Detective Borden learned that

the security camera footage showed:

      The two suspects arrived at a common hallway door to the apartments.
      The victim goes up, lets them in, and they all go back walking towards
      the basement where [Mathis’s] apartment is, 102. The one gentleman
      goes in the apartment. He’s in there. The other gentleman stands by
      the doorway. He comes back out, and then there’s some exchange of
      words, and then the victim is shot.

               Upon learning the above information, Detective Borden believed that

someone may have called Thomas and Fields to the apartment complex and invited

Mathis to talk in his police car so they could speak privately. Mathis sat in the front

seat of the car, the car door was not locked, and she was not detained and was free

to leave. He said that he did not tell her she was free to leave though. In the car,

Detective Borden asked Mathis whether she called “anybody to come over,” but

Mathis again denied calling anyone.

               After talking to Mathis in the police car, Detective Borden and Mathis

returned to her apartment, and Detective Borden asked Mathis if he could search

her phone, providing her a consent-to-search form. The form, which was dated

February 27, 2015, at 3 a.m., stated:

      I, Jasmine Mathis, having been informed of my Constitutional rights
      not to have a search made of the premises herein, after mentioned
      without a search warrant, and of my right to refuse consent to search,
      hereby authorize Detective Borden, Detective Etenok of the Cleveland
      Police Department to conduct a complete search of my cell phone
      described as follows. Black smartphone no. [xxxxxxxxxx].

      I am the owner of the cell phone to be searched. These officers or
      agents are authorized by me to take from my phone any images, videos,
      texts, contact list, recent calls they may desire.
      This written permission is being given by me to the above-named
      persons voluntarily and without threats or promises of any kind.

      I also understand that I will be given a copy of this consent for any
      property taken.

Mathis signed the bottom of the form.

               Detective Borden testified that in addition to the form, he explained

her rights to her and said that she could consent to the search and “[i]f not, [he]

would seek a search warrant.” He said his tone was conversational. On cross-

examination, Detective Borden stated that he told Mathis, “You can consent. But if

you don’t consent I will have to get a search warrant. That is what I have to do[,]”

and “If you sign the consent form, it will be quicker. If I have to get a search warrant,

it’s [going to] take longer, which is the truth. It was a Friday night. There are no

judges or prosecutors available on Saturday or Sunday, so you’re looking into next

week which makes it longer.” He testified that he did not promise Mathis that she

would have her phone returned to her that same day if she signed the consent form.

               After receiving her consent, Detective Borden seized Mathis’s phone,

which was sitting on a table in her apartment, as evidence and later had it

downloaded. He said that Mathis gave him the cell phone and that he did not make

any threats or promises to cause Mathis to sign the form.

               Detective Borden testified that Mathis was not placed under arrest,

brought down to the police station, or forcefully removed from her apartment.

Detective Borden did not remember any police officers being inside Mathis’s
apartment, besides when he went inside the apartment to obtain her consent to seize

and search her cell phone.

               In September 2018, the trial court denied Mathis’s motion in a

written opinion, finding that (1) her statements should not be suppressed because

she was not in custody and therefore not entitled to Miranda warnings, and (2) her

phone was legally seized and searched because Mathis signed a consent form

allowing officers to search her phone.

               The case against Mathis and Fields then proceeded to a joint trial by

jury, during which the following evidence was presented with respect to the charges

against Mathis.

               Mathis had some people over to her apartment on February 26, 2015.

Earlier that evening, Mathis’s sister went to the Rapid Station to pick up Rodgers,

but the two got into an altercation and Mathis’s sister left Rodgers there. The

security footage of the first-floor hallway shows that at 9:31 p.m., Rodgers showed

up and Mathis’s sister let him in through the building’s locked front door. Rodgers

and Mathis’s sister then entered Mathis’s apartment at 9:32 p.m. During her

interview with Detective Borden, Mathis said she heard her sister yelling at Rodgers

in the hallway during this time and, despite her sister telling Rodgers to leave,

Rodgers rushed through Mathis’s door into her apartment. Mathis said she did not

know Rodgers and asked him to leave her apartment. Mathis told Detective Borden

that Rodgers refused to leave, took his jacket off, was fidgeting with himself as if he

had a gun, and sat down. Mathis said her brother told Rodgers to leave and that
eventually Rodgers, Mathis’s brother, and Mathis’s sister went into the hallway.

Mathis said she was scared and called “C.J.,” who was identified as Marion Jenkins

(“Jenkins”), to tell him what was going on.

              The security camera footage shows that at 9:38 p.m., while Rodgers,

Mathis’s sister, and Mathis’s brother were out in the hallway, Thomas and Fields

showed up, and Rodgers let them into the building. Thomas and Fields immediately

walked to Mathis’s apartment. Thomas went inside Mathis’s apartment for a few

seconds and Fields stood in the doorway. The security footage shows that at

9:39 p.m., Thomas handed Fields a gun and Fields shot Rodgers multiple times.

Thomas and Fields then fled the scene.

              Thomas testified that he knew Mathis because she had a child with

his cousin, Donald Baines. He said he also knew Fields from meeting him in the

neighborhood a few times. Thomas said that he carried a gun for his protection and

that Fields knew he had a gun.

              Thomas testified that he was walking with Fields near West 83rd

Street on February 26, 2015. Fields was talking on the phone, and at one point,

Thomas and Fields “veered” towards Mathis’s apartment complex and entered the

building after a man, later identified as Rodgers, let them in. Thomas said he did

not know Rodgers, but recognized Mathis and Mathis’s sister when he and Fields

went to Mathis’s apartment. Thomas stood in the doorway to the apartment and

heard Mathis’s sister and Rodgers having a “heated” conversation in the hallway.

After Mathis’s sister entered the apartment, Thomas heard Rodgers swear at Fields,
who was also standing in the hallway. Fields told Thomas to give him Thomas’s gun,

which Thomas did, and Fields shot Rodgers. Thomas and Fields then ran from the

building.

              Thomas stated that Fields was on the phone from the time they were

walking together until the shooting occurred. Thomas identified himself and Fields

as the men shown in still images taken from the security camera footage.

              Officer Nan’s testimony was largely consistent with the testimony he

gave at the suppression hearing. He testified that when he talked to Mathis, she

denied knowing Thomas and Fields.

              Detective Borden’s testimony at trial was also largely consistent with

the testimony he provided at the hearing on Mathis’s motion to suppress. He said

he learned that Mathis and her sister knew Thomas and Fields and focused his

investigation on them. Mathis told him that Thomas and Fields were just guys “that

just happened to show up at her apartment and shot [Rodgers].” He said he began

asking Mathis about her cell-phone use after learning that “[Mathis] was on her

phone when [the suspects] showed up right before and after she was on her cell

phone.” He testified that based upon information he learned, “it was obvious to me

that somebody had called or contacted these [suspects]” and that after receiving

their consent, seized cell phones from all of the adults in Mathis’s apartment.

              He said he eventually received the “cell phone dump” from Mathis’s

cell phone, which showed that there were two phone calls deleted from her call log

to Marion Jenkins and Reginald Baines and that they were deleted right around the
time of the shooting. Specifically, he said the call log showed that Mathis made

numerous phone calls before and after the incident, including calls to and from

Jenkins and Baines, but that she only deleted the 9:25 p.m. call from Jenkins and

the 9:38 p.m. call to Baines. During her interview in March 2015 with Detective

Borden, Mathis admitted that she lied when she told him at the scene that she did

not call anyone because she was scared.

              The state presented testimony establishing Mathis’s connection with

Thomas and Fields. Detective Borden testified: “Jasmine Mathis has a son with

Donald Baines. Donald Baines and Reginald Baines are brothers. They are cousins

to Senekia Gray, [who] is the mother of Terry Thomas. They all live or hang out or

socialize in the area of West 83rd and Detroit.” The state also presented testimony

from Whittni Slater, who testified that Mathis knew Fields from the neighborhood

and she had seen Mathis with both Fields and Thomas.

              Detective Dwayne Duke (“Detective Duke”) testified that he extracted

information from the phones Detective Borden collected, including those from

Mathis’s sister, Fields, and Mathis. Detective Duke’s reports were admitted into

evidence. The report on Mathis’s phone shows a phone call from “Regg” to Mathis’s

phone on February 27, 2015, at 9:38 p.m. and a phone call from Mathis’s phone to

“Cj2” on February 27, 2015, at 9:25 p.m. were deleted from the phone. Detective

Borden testified that he later learned that “Cj2” was Marion Jenkins.

              The state rested, and Mathis moved for an acquittal under

Crim.R. 29. The trial court denied her motion.
                   Mathis did not present any witnesses in her defense, and she renewed

her Crim.R. 29 motion, which the trial court again denied.

                   The jury found Mathis not guilty of obstructing justice but guilty of

tampering with evidence without the one-year firearm specification. The trial

court’s November 21, 2018 nunc pro tunc entry indicates that the count for

tampering with evidence was amended to delete the one-year firearm specification.

                   The trial court sentenced Mathis to a one-year prison term and

advised Mathis that she would be subject to a discretionary term of postrelease

control for up to three years.3

                   It is from this judgment that Mathis now appeals.

   II.        Law and Analysis

         A. Motion to Suppress

                   In her first assignment of error, Mathis argues that the trial court

erred in denying her motion to suppress with respect to the search of her cell phone.

Specifically, she states that while the trial court’s opinion noted that she signed the

consent-to-search form, the trial court failed to analyze whether her consent was

voluntary, an argument she raised in her motion to suppress. She maintains that

her consent was not voluntary and that the evidence retrieved from her phone

should have been suppressed.

         Appellate review of a motion to suppress presents a mixed question of
         law and fact. When considering a motion to suppress, the trial court
         assumes the role of trier of fact and is therefore in the best position to

         3   Mathis was released on October 13, 2019.
      resolve factual questions and evaluate the credibility of witnesses.
      Consequently, an appellate court must accept the trial court’s findings
      of fact if they are supported by competent, credible
      evidence. Accepting these facts as true, the appellate court must then
      independently determine, without deference to the conclusion of the
      trial court, whether the facts satisfy the applicable legal standard.

State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

              The Fourth Amendment to the United States Constitution protects

individuals from unreasonable searches and seizures. Ohio Constitution, Article I,

Section 14, is nearly identical to its federal counterpart. State v. Kinney, 83 Ohio

St.3d 85, 87, 698 N.E.2d 49 (1998).

              For a search or seizure to be reasonable under the Fourth

Amendment, it must be based upon probable cause and executed pursuant to a

warrant. See Katz v. United States, 389 U.S. 347, 350, 88 S.Ct. 507, 19 L.Ed.2d 576

(1967). Warrantless searches and seizures are considered per se unreasonable,

unless an exception to the warrant requirement applies. Id. at 357.

              One exception to the warrant requirement is voluntary consent. State

v. Riedel, 2017-Ohio-8865, 100 N.E.3d 1155, ¶ 32 (8th Dist.), citing Schneckloth v.

Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The state bears the

burden of proving voluntary consent, and it must prove by “clear and positive”

evidence that the consent was “freely and voluntarily” given and was not

contaminated by any duress or coercion. Id.; State v. Rodriguez, 8th Dist. Cuyahoga

No. 98422, 2013-Ohio-491, ¶ 21.
               The question of whether consent to a search was voluntary or the

product of duress or coercion, express or implied, is a question of fact to be

determined from the totality of the circumstances.          Schneckloth at 227. The

standard for measuring the scope of consent under the Fourth Amendment is

objective reasonableness; i.e., what a typical reasonable person would have

understood by the exchange between the officer and the suspect. Florida v. Jimeno,

500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991).

      Important factors in determining whether a consent was voluntary are:
      (1) the voluntariness of the defendant’s custodial status; (2) the
      presence of coercive police procedures; (3) the extent and level of the
      defendant’s cooperation with the police; (4) the defendant’s awareness
      of his right to refuse to consent; (5) the defendant’s education and
      intelligence; and (6) the defendant’s belief that no incriminating
      evidence will be found.

State v. Washington, 8th Dist. Cuyahoga No. 86370, 2006-Ohio-568, ¶ 20.

               Further, “[k]nowledge of the right to refuse is not a prerequisite to

voluntary consent, but consent must not have been coerced by threats or force or by

a claim of lawful authority.” State v. Moncrease, 8th Dist. Cuyahoga Nos. 76145,

76146, and 76147, 2000 Ohio App. LEXIS 1650, 9 (Apr. 13, 2000), citing

Schneckloth. “The voluntariness of consent is vitiated by police statements that lead

the person to believe that refusing consent will be fruitless.” Id. at 9-10, citing State

v. Foster, 87 Ohio App.3d 32, 621 N.E.2d 843 (2d Dist.1993).

               To support her claim that her consent was not voluntary, Mathis cites

to Moncrease, State v. Bradford, 4th Dist. Adams No. 09CA880, 2010-Ohio-1784,

and State v. Ludington, 7th Dist. Columbiana No. 99CO13, 2000 Ohio App. LEXIS
3986 (Aug. 23, 2000), all of which found that the defendants did not voluntarily

consent to search.

               In Moncrease, the state appealed the trial court’s order granting the

defendant’s motion to suppress. Agreeing with the trial court’s decision, we stated:

       The sudden and forcible entry of the police into his home, their show of
       strength through the number of officers, and their use of guns and
       handcuffs created a coercive environment. Though [the defendant]
       was not handcuffed and was not surrounded by all of the officers on the
       premises at the exact moment he was asked to give consent, the
       coercive forces cited by the [trial] court were sufficiently recent to
       conclude they continued to affect [the defendant]; he was aware that all
       of the officers remained nearby, on the premises. Furthermore, [the
       defendant] was told the police were probably going to obtain a warrant
       anyway, making him believe a search would occur whether he
       consented or not.

Id. at 11.

               In Bradford, the state appealed the trial court’s order granting the

defendant’s motion to suppress. The Fourth District reviewed a number of factors

in determining whether the defendant voluntarily consented to the search of his

property, including the defendant’s custodial status, the presence of coercive police

tactics, the extent and level of cooperation with police, the defendant’s awareness of

his right to refuse, the defendant’s education and intelligence, and the defendant’s

belief that no incriminating evidence would be found. Id. at ¶ 44-52. The court

specifically found that:

       (1) the defendant was in police custody involuntarily because although
       he was not under arrest, he was not free to leave the trailer;

       (2) the police acted coercively “for hours” by knocking on the
       defendant’s door, announcing their presence, and saying that the
       defendant “might as well open [his door]” or they would get a search
      warrant and “implied to [the defendant] that it would be futile to refuse
      consent to search the property;

      (3) the police did not inform the defendant that he could refuse to
      consent and the police did not read the defendant the consent form, but
      merely handed him the form and told him to sign it; and

      (4) the defendant “had every reason to believe marijuana would be
      found.”

Id. The court found that “there [was] some evidence in the record to support the

trial court’s finding that, based on the totality of circumstances, the state failed to

demonstrate that [the defendant’s] consent was voluntary.” Id. at ¶ 53.

               In Ludington, 7th Dist. Columbiana No. 99CO13, 2000 Ohio App.

LEXIS 3986 (Aug. 23, 2000), the state appealed the trial court’s order granting the

defendant’s motion to suppress evidence that was collected from a search of his

home. On appeal, the Seventh District stated:

      It is relevant that [the defendant] was called home from work to
      address a situation where police were attempting to talk with his wife
      into allowing them to search the house. When he arrived, six officers
      were there to meet him. They were wearing task force outfits with
      identification hanging from their necks and carrying guns. They had
      his wife waiting outside with them for thirty minutes. They would not
      allow him to enter his own home.

      ***

      [The defendant] was also informed that the officers smelled
      marijuana[.] * * * [The defendant] was informed that if he refused
      consent, the officers were prepared to go to a judge with the reports and
      the allegation that they smelled marijuana. * * * As aforementioned, a
      person could draw a reasonable inference from this statement that the
      officers were confident in their ability to obtain a warrant. The court
      determined that a reasonable person in this situation would feel that
      the police were implying that it was futile to refuse consent.
Id. at 10-11. The court noted that although the only witness at the suppression

hearing was one of the six police officers present at the search and no conflicting

testimony regarding the defendant’s consent was presented, “the court as the fact-

finder and the judge of credibility obviously found that the officer’s testimony that

consent was freely given was insufficient to meet the state’s burden of proving

voluntariness by clear and convincing evidence.” Id. at 11. The court concluded,

“Considering the number of officers, their characterization of the incriminating

evidence, the restriction upon entering the home and other relevant factors[,] we

cannot say that the court was incorrect in its assessment of the totality of the

circumstances.” Id. at 11-12. Therefore, the court affirmed the suppression.

              In arguing that Mathis’s consent was voluntary, the state relies on

Riedel, 2017-Ohio-8865, 100 N.E.3d 1155. In that case, the defendant appealed the

trial court’s order denying his motion to suppress evidence, arguing that he did not

voluntarily sign the consent-to-search form. The court reviewed the trial court’s

factual findings related to the defendant’s consent and stated:

      The evidence clearly demonstrates that prior to signing the consent to
      search form, Sergeant Ross explained the rights [the defendant] was
      waiving and that he had the right to refuse consent. During the
      suppression hearing, [the defendant] acknowledged that he believed it
      would be in his best interests to consent to the search and that he signed
      the consent to search form presented to him. The fact that [the
      defendant] signed a written waiver is strong proof that the waiver was
      valid. * * *

      [The defendant] was not subjected to an officer’s continued pursuit for
      consent once the first request for permission to search was denied. * * *
      Both [the defendant] and Sergeant Ross stated that the conversation
      was “cordial” and that [the defendant] agreed to sign the consent form
      because he believed it was in his best interest to cooperate with the
      police.

Id. at ¶ 43 and 45. The court therefore found “competent, credible evidence” that

the defendant “freely and voluntarily consented to the search when he signed the

consent to search form” and affirmed the trial court’s denial of his suppression

motion. Id. at ¶ 47.

                 In the instant case, although the trial court did not state that Mathis’s

consent was voluntary, it clearly found that it was. Its written opinion denying

Mathis’s motion stated, “After interviewing [Mathis,] officers went over a consent to

search form with [her], which would allow officers to download her cell phone.

[Mathis] signed the form, giving officers access to her phone. As such, [Mathis’s]

Fourth Amendment rights were not violated.”

                 After a review of the record, we find competent, credible evidence to

support the trial court’s finding that Mathis voluntarily consented to the search of

her phone. Even though Officer Nan testified that Mathis was not free to leave until

the investigation was complete, at the time Mathis consented to the search of her

phone, she was not under arrest and in her own apartment with family members

present. The consent-to-search form explained that Mathis could refuse to consent

to the search.

                 As to the presence of coercive police procedures, just because

Detective Borden told Mathis that he would seek a warrant does not render her

consent involuntary. See Reidel, 8th Dist. Cuyahoga No. 104929, 2017-Ohio-8865,
at ¶ 40 (upholding denial of motion to suppress even though the detective told the

defendant the police “were going to get a search warrant for the home regardless.”).

This case is distinguishable from Moncrease, 8th Dist. Cuyahoga Nos. 76145, 76146,

and 76147, 2000 Ohio App. LEXIS 1650, 9 (Apr. 13, 2000), where we held that “[the

defendant] was told the police were probably going to obtain a warrant anyway,

making him believe a search would occur whether he consented or not.” Id. at 11.

In Moncrease, the defendant actually testified that he signed the consent form

because “he did not feel he had a choice” and a partial search of the defendant’s

property had already taken place. Id. at 4, 10. Here, however, Mathis did not

provide testimony establishing that she felt that she did not have a choice and no

search of her phone had yet taken place.

              Additionally, we find that Detective Borden’s statement was more

informative rather than threatening. He did not falsely claim to have a search

warrant, but instead was candid about the steps he would take if Mathis chose not

to consent. “Where the record clearly reveals no coercion and a police officer does

not falsely claim possession of a search warrant, but rather candidly informs a

person why a search is needed, either with his consent or with a search warrant, and

the person clearly understood that he had a constitutional right to withhold

consent, a finding of voluntariness is appropriate.” State v. Clelland, 83 Ohio

App.3d 474, 481, 615 N.E.2d 276 (4th Dist.1992).

              Further, while this court in Moncrease found that the detective’s

statement that he would get a warrant rendered the defendant’s consent
involuntary, coercive police procedures are only one factor that a trial court

considers. In Moncrease, Ludington, and Bradford, there were many other factors

that the trial and appellate courts found to render the defendants’ consent

involuntary. Here, the trial court did not find that the other factors established that

Mathis’s consent was involuntary, and we find that the record supports that

conclusion.

               Accordingly, we overrule Mathis’s first assignment of error.

      B. Sufficiency of the Evidence

               In her second assignment of error, Mathis argues that there was

insufficient evidence to convict her of tampering with evidence because the state

failed to present sufficient evidence that she knew at the time she deleted the two

phone calls that an investigation was in progress or likely to be instituted.

               Crim.R. 29(A) provides for an acquittal “if the evidence is insufficient

to sustain a conviction of such offense or offenses.”        A sufficiency challenge

essentially argues that the evidence presented was inadequate to support the jury

verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d

541 (1997). “‘The relevant question is whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’” State v. Getsy, 84 Ohio

St.3d 180, 193, 702 N.E.2d 866 (1998), quoting Jackson v. Virginia, 443 U.S. 307,

99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “[A] conviction based on legally insufficient

evidence constitutes a denial of due process.” Thompkins at 386, citing Tibbs v.
Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). When reviewing a

sufficiency of the evidence claim, we review the evidence in a light most favorable to

the prosecution. State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996).

               Tampering with evidence has three elements: “(1) the knowledge of

an official proceeding or investigation in progress or likely to be instituted, (2) the

alteration, destruction, concealment, or removal of the potential evidence, (3) the

purpose of impairing 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.

      Tampering with evidence under R.C. 2921.12(A)(1) requires a person to
      act with purpose, meaning that the person has a specific intention to
      cause a certain result. See State v. Skorvanek, 182 Ohio App.3d 615,
      2009-Ohio-1709, 914 N.E.2d 418, ¶ 21 (9th Dist.); R.C.
      2901.22(A). When determining whether the defendant acted
      purposely, a defendant's state of mind may be inferred from the
      surrounding circumstances. State v. Rock, 3d Dist. Seneca No. 13-13-
      38, 2014-Ohio-1786, ¶ 13, citing Skorvanek at ¶ 21.

State v. Sharp, 8th Dist. Cuyahoga No. 103445, 2016-Ohio-2634, ¶ 19.

               Here, Mathis argues that there was insufficient evidence of the first

element. Regarding a defendant’s knowledge of an ongoing or likely proceeding or

investigation, “there is [commonly] no direct evidence of a defendant’s state of mind

so the state must rely on circumstantial evidence to satisfy this element of its case.

A defendant’s state of mind may be inferred from the totality of the circumstances.”

State v. Rodano, 2017-Ohio-1034, 86 N.E.3d 1032, ¶ 43 (8th Dist.). Circumstantial

evidence and direct evidence inherently possess the same probative value. State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph one of the syllabus. “A

conviction can be sustained based on circumstantial evidence alone.” State v.

Franklin, 62 Ohio St.3d 118, 124, 580 N.E.2d 1 (1991), citing State v. Nicely, 39

Ohio St.3d 147, 529 N.E.2d 1236 (1988).

              The likelihood of an investigation is measured at the time of the

alleged act of tampering. State v. Barry, 145 Ohio St.3d 354, 2015-Ohio-5449, 49

N.E.3d 1248, ¶ 21. “[T]he state must demonstrate that the accused knew of a

pending official proceeding or investigation or knew that such a proceeding or

investigation was likely to be instituted at the time of the concealment.” Id. at ¶ 2.

“Knowledge that a criminal investigation is imminent is based upon a reasonable

person standard.” Sharp at ¶ 18, citing State v. Workman, 2015-Ohio-5049, 52

N.E.3d 286 (3d Dist.).

              The record shows that Mathis made a number of phone calls

immediately before the shooting took place, including numerous calls to and from

Jenkins and Reginald Baines. However, she only deleted two of those phone calls

from her call log — one from Jenkins at 9:25 p.m. and one to Reginald Baines at

9:38 p.m. Fields and Thomas arrived at Mathis’s apartment at 9:38 p.m. and, within

a minute of being there, shot and killed Rodgers. Fields’s and Thomas’s actions led

to a homicide, which was likely to be and actually was reported to police almost

immediately after it occurred.      Further, Mathis misled police in her initial

statements, in which she said she did not know Thomas or Fields and did not call

anyone over to the apartment. But testimony established that Mathis knew Thomas
because he was cousins with her child’s father, Donald Baines, and knew Fields

because they lived in the same neighborhood. There was also testimony that Mathis

had been seen with Thomas and Fields in the neighborhood. Also, Mathis later

admitted to Detective Borden that she lied about not calling anyone. The evidence

presented at trial allowed the jury to infer that (1) Mathis knew that an investigation

was likely, (2) the police would come to her apartment due to the fact that Fields,

Thomas, and the victim were there before the homicide; that the homicide occurred

immediately outside her apartment; and that she knew both Fields and Thomas, and

(3) the police would be investigating why Fields and Thomas came to the apartment

and who summoned them there. Thus, the evidence, although circumstantial, was

sufficient to prove beyond a reasonable doubt that Mathis committed tampering

with evidence.

                 Accordingly, we overrule Mathis’s second assignment of error.

                 Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



MARY J. BOYLE, PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., and
MICHELLE J. SHEEHAN, J., CONCUR
