[Cite as State v. Wallace, 2016-Ohio-4922.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              FAYETTE COUNTY




STATE OF OHIO,                                      :
                                                           CASE NO. CA2015-09-019
        Plaintiff-Appellee,                         :
                                                                OPINION
                                                    :            7/11/2016
    - vs -
                                                    :

TAVIO D. WALLACE,                                   :

        Defendant-Appellant.                        :



      CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
                          Case No. CRI 20140236



Jess C. Weade, Fayette County Prosecuting Attorney, John M. Scott, Jr., 110 East Court
Street, Washington C.H., Ohio 43160, for plaintiff-appellee

Steven H. Eckstein, 1208 Bramble Avenue, Washington C.H., Ohio 43160, for defendant-
appellant



        M. POWELL, P.J.

        {¶ 1} Defendant-appellant, Tavio Wallace, appeals his conviction in the Fayette

County Court of Common Pleas for tampering with evidence.

        {¶ 2} In the early morning hours of August 16, 2014, Washington Court House Police

Officer Jeffery Heinz stopped a vehicle for speeding. Appellant was the driver; a male

passenger was in the front seat. Upon approaching the vehicle, Officer Heinz noticed an
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odor of alcohol coming from the vehicle and observed a marijuana stem on appellant's lap.

The officer removed the stem and placed it atop the vehicle. Appellant was removed from

the vehicle, patted down for weapons, and told to sit on the curb. Officer Heinz asked

appellant whether there were any weapons or anything else in the car that should not be

there. Appellant did not reply. During the stop, Officer Heinz discovered that appellant's

driver's license was suspended and that appellant lacked driving privileges in Ohio.

       {¶ 3} Based upon the marijuana stem found on appellant's lap, Officer Heinz

suspected there may be drugs in the vehicle. Consequently, the passenger was removed

from the vehicle. Upon learning that the passenger also lacked driving privileges, Officer

Heinz requested a tow truck to the scene. The officer then expressed an intention to search

the interior of the vehicle as it was going to be towed, and inquired of the passenger whether

there was anything illegal on his person or where he sat in the car. As Officer Heinz started

to pat down the passenger for weapons, Washington Court House Police Officer Matthew

Pfeifer arrived on the scene.

       {¶ 4} Officer Pfeifer testified that as he pulled up to the scene, he noticed appellant

"put what appeared to be a baggie in his mouth."          Officer Pfeifer exited his cruiser,

approached appellant, asked him, "what's in your mouth?" and ordered him to open his

mouth. Despite being repeatedly ordered to open his mouth, appellant refused to comply

and instead was observed chewing and trying to swallow what was in his mouth. Both

officers attempted to retrieve the object from appellant's mouth; however, appellant bolted

from the scene. Officer Heinz pursued appellant and tazed him to the ground. After

appellant was subdued, a baggie containing white powder and covered in saliva was

recovered on the ground next to appellant's face. The white powder subsequently tested

positive for cocaine.

       {¶ 5} Appellant was indicted in October 2014 on one count each of cocaine
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possession and tampering with evidence. During a jury trial, Officers Heinz and Pfeifer

testified on behalf of the state. At the close of the state's case, appellant moved for acquittal

pursuant to Crim.R. 29(A). The trial court overruled the motion. Appellant did not testify or

present witnesses on his behalf. On June 23, 2015, the jury found appellant guilty as

charged.

       {¶ 6} Appellant now appeals, raising one assignment of error:

       {¶ 7} THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S

CRIM.R. 29 MOTION FOR ACQUITTAL.

       {¶ 8} Appellant argues the trial court erred in denying his Crim.R. 29(A) motion with

regard to his tampering-with-evidence conviction because the state failed to show there was

an ongoing or the likelihood of a cocaine-related investigation at the time appellant put the

baggie of cocaine in his mouth, as the officers "were only looking for marijuana and only in

the car." Appellant cites State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, in support of

his argument.

       {¶ 9} Pursuant to Crim.R. 29(A), "[t]he court on motion of a defendant or on its own

motion, after the evidence on either side is closed, shall order the entry of a judgment of

acquittal of one or more offenses charged * * *, if the evidence is insufficient to sustain a

conviction of such offense or offenses." Our review of a trial court's denial of a Crim.R. 29

motion for acquittal is governed by the same standard used for determining whether a verdict

is supported by sufficient evidence. State v. Rivera, 12th Dist. Butler No. CA2012-11-220,

2013-Ohio-3203, ¶ 8. Therefore, when reviewing a challenge to the sufficiency of the

evidence to support a criminal conviction, 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. Hancock,

108 Ohio St.3d 57, 2006-Ohio-160, ¶ 34.
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       {¶ 10} Appellant was convicted of tampering with evidence in violation of R.C.

2921.12(A)(1), which provides: "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: 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."

       {¶ 11} The Ohio Supreme Court acknowledged in Straley that there are three

elements to tampering with evidence under R.C. 2921.12(A)(1): "(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; and (3) the purpose of

impairing the potential evidence's availability or value in such proceeding or investigation."

Straley, 2014-Ohio-2139 at ¶ 11.

       {¶ 12} "Because the statute requires that the evidence be related to an ongoing or

likely investigation, * * * a conviction for tampering with evidence pursuant to R.C.

2921.12(A)(1) requires proof that the defendant intended to impair the value or availability of

evidence that related to an existing or likely official investigation or proceeding." Id. at ¶ 19.

"Likelihood is measured at the time of the act of alleged tampering." Id. In addition, the state

must show that the defendant knew that an investigation was ongoing or likely at the time the

evidence was tampered with. Id. at ¶ 18.

       {¶ 13} In Straley, two narcotic detectives stopped the defendant's car for erratic

driving. While the detectives smelled an odor of an alcoholic beverage on the defendant and

suspected her of driving while under the influence of alcohol, a search of the car and her bag

revealed no contraband. The detectives decided not to charge the defendant but would not

allow her to drive home. As they were attempting to find her a ride home, the defendant

announced she had to urinate. She then ran to the corner of a building and relieved herself.

One of the detectives went to where the defendant urinated and discovered a urine covered
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cellophane baggie containing crack cocaine.

       {¶ 14} The defendant was convicted of tampering with evidence, but the Second

Appellate District reversed the conviction, finding that the defendant had not impaired

evidence related to any ongoing or likely investigation. The supreme court affirmed the

appellate court's decision, finding

              There 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
              baggie of cocaine did not relate to either an ongoing investigation
              of driving while under the influence of alcohol or driving without a
              license and had no evidentiary value to a likely investigation of
              public urination, and thus the record does not support a
              conviction for tampering with evidence.

Straley, 2014-Ohio-2139 at ¶ 19.

       {¶ 15} We find the facts present in this case are distinguishable from those in Straley.

Furthermore, we find the trial court did not err in denying appellant's Crim.R. 29(A) motion

with regard to his conviction for tampering with evidence.

       {¶ 16} The critical determination in our analysis is whether the evidence tampered with

was connected to an existing or likely investigation. State v. Watson, 12th Dist. Warren No.

CA2014-08-110, 2015-Ohio-2321, ¶ 28. Here, although the investigation began as a routine

traffic stop for speeding, it escalated to the discovery of a marijuana stem on appellant's lap,

appellant's suspended driver's license and lack of driving privileges, and the passenger's lack

of driving privileges, which resulted in the need to arrest appellant and have the vehicle

towed. When appellant put the baggie in his mouth and Officer Pfeifer asked him, "what's in

your mouth?" appellant knew an investigation into his cocaine possession was in progress.

Subsequently, appellant refused to open his mouth, chewed the baggie and tried to swallow

it, resisted the officers' attempts to retrieve the baggie, and bolted from the scene at the first

opportunity. Viewing this evidence in a light most favorable to the state, a rational trier of fact


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could find that appellant's refusal to remove the baggie of cocaine from his mouth and his

subsequent flight with the baggie constituted concealment and removal of the baggie, with

the purpose of impairing its availability in the investigation. See State v. Sharp, 8th Dist.

Cuyahoga No. 103445, 2016-Ohio-2634. Appellant's conviction for tampering with evidence

is therefore supported by sufficient evidence.

      {¶ 17} Appellant's assignment of error is overruled.

      {¶ 18} Judgment affirmed.


      S. POWELL and RINGLAND, JJ., concur.




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