[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State v. Straley, Slip Opinion No. 2014-Ohio-2139.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.


                          SLIP OPINION NO. 2014-OHIO-2139.
            THE STATE OF OHIO, APPELLANT, v. STRALEY, APPELLEE.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
     it may be cited as State v. Straley, Slip Opinion No. 2014-Ohio-2139.]
Criminal law—R.C. 2921.12(A)(1)—Tampering with evidence—Conviction
        requires proof that defendant impaired value or availability of evidence
        related to existing or likely official investigation or proceeding—
        Destruction or concealment of contraband insufficient to constitute
        tampering without proof of defendant’s knowledge of ongoing or likely
        investigation.
     (No. 2013-0544—Submitted February 5, 2014—Decided May 29, 2014.)
       CERTIFIED by the Court of Appeals for Clark County, No. 12-CA-34,
                                    2013-Ohio-510.
                               ____________________
                              SYLLABUS OF THE COURT
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.
                            SUPREME COURT OF OHIO




                            ____________________
       LANZINGER, J.
       {¶ 1} In this case, we are asked to resolve a conflict between the
appellate districts presented by the following certified question: “Whether a
tampering conviction requires proof that the defendant impaired evidence in an
investigation by tampering with evidence related to the investigation.”        We
answer the certified conflict question in the affirmative and affirm the judgment
of the Second District Court of Appeals.
                              I. Case Background
       {¶ 2} The events that give rise to this case are not disputed. On the
evening of April 18, 2011, two plain-clothes narcotic detectives in an unmarked
police vehicle observed a car travel left of center. Although they were not on
traffic duty, the officers stopped the car for public safety because of the erratic
driving.   Detective Will Speakman approached the driver, appellee, Amanda
Straley, who was alone in the car. He noted the smell of an alcoholic beverage
and asked Straley to leave the vehicle. Straley could not produce a driver’s
license and also exhibited slurred speech. Speakman obtained her consent to
search the vehicle and her bag, but no contraband was found.
       {¶ 3} The detectives decided not to pursue any charges but would not
allow Straley to drive home. They attempted to arrange a ride for her with her
mother and her aunt but were unsuccessful. Detective Jason Via telephoned the
shift lieutenant to get permission to take Straley home, and meanwhile, as
Speakman testified at trial, Straley indicated that she needed to use the restroom
and was jumping up and down, “doing a little dance.” Speakman instructed her to
wait because there was no restroom available, but Straley started to unbutton her
pants and stated, “I have got to pee. I have to urinate.” She trotted 20 to 30 feet
away to the corner of a building, saying, “I’m not running; I just gotta pee. I
don’t care if you have to arrest me; I gotta pee.” She then pulled down her pants




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and urinated.    Detective Speakman avoided looking directly at her but kept
Straley in his peripheral vision.
       {¶ 4} Afterwards, Straley returned to Speakman, who then escorted her
back to Via. Speakman walked back to the area where Straley had been and saw
a clear cellophane baggie covered with urine. Inside the baggie there appeared to
be crack cocaine.      Straley was placed under arrest, and the evidence was
collected.
       {¶ 5} As a result of these events, Straley was charged in a three-count
indictment with trafficking in drugs, a felony of the fifth degree, in violation of
R.C. 2925.03(A)(2); possession of cocaine, a felony of the fifth degree, in
violation of R.C. 2925.11(A); and tampering with evidence, a felony of the third
degree, in violation of R.C. 2921.12(A). She filed a motion to suppress all the
statements she had made to law enforcement.
       {¶ 6} On the morning of trial, the trial court held a suppression hearing
and denied the motion. Straley then entered pleas of no contest to the trafficking
and possession counts. The case proceeded to jury trial on the remaining count of
tampering with evidence, and she was found guilty. The trial court sentenced
Straley to concurrent prison terms of nine months for tampering with evidence
and for trafficking, after merging the counts of possession and trafficking.
       {¶ 7} Straley filed a notice of appeal to the Second District Court of
Appeals. The appellate court reversed the judgment of conviction related to
tampering with evidence. It concluded that nothing in the record supported a
finding that Straley acted with purpose to impair the value of evidence of any
ongoing investigation, i.e., of driving under the influence of alcohol or driving
without a license, or of any likely investigation, i.e., of public urination. 2d Dist.
Clark No. 2012-CA-34, 2013-Ohio-510, ¶ 14 and 16. It held that to be guilty of
violating R.C. 2921.12(A)(1), “a defendant must ‘impair’ evidence in an




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investigation that is ongoing or likely to occur by tampering in some way with
evidence related to the investigation.” Id. at ¶ 15.
       {¶ 8} The Second District granted the state’s motion to certify a conflict,
holding that its judgment conflicted with the judgment of the Ninth District in
State v. Skorvanek, 182 Ohio App.3d 615, 2009-Ohio-1709, 914 N.E.2d 418 (9th
Dist.). We recognized the conflict. 135 Ohio St.3d 1446, 2013-Ohio-2062, 987
N.E.2d 702. The sole issue before this court is “[w]hether a tampering conviction
requires proof that the defendant impaired evidence in an investigation by
tampering with evidence related to the investigation.” Id.
                                 II. Legal Analysis
Standard of Review
       {¶ 9} The interpretation of a statute is a matter of law, and thus we
review the court of appeals decision de novo, including consideration of the
statute’s ambiguity. State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998
N.E.2d 401, ¶ 9. Our main objective is to determine and give effect to the
legislative intent. State ex rel. Solomon v. Police & Firemen’s Disability &
Pension Fund Bd. of Trustees, 72 Ohio St.3d 62, 65, 647 N.E.2d 486 (1995). To
accomplish this, we first must look at the language of the statute itself. Provident
Bank v. Wood, 36 Ohio St.2d 101, 105, 304 N.E.2d 378 (1973). If the language is
clear and unambiguous, we must apply it as written. “[I]t is the duty of this court
to give effect to the words used, not to delete words used or to insert words not
used.” Columbus-Suburban Coach Lines, Inc. v. Pub. Util. Comm., 20 Ohio St.2d
125, 127, 254 N.E.2d 8 (1969).
       {¶ 10} We have, however, emphasized that “ ‘where there is ambiguity in
a criminal statute, doubts are resolved in favor of the defendant.’ ” State v.
Young, 62 Ohio St.2d 370, 374, 406 N.E.2d 499 (1980), quoting United States v.
Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). This canon of
strict construction, also known as the rule of lenity, is codified in R.C.




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                                January Term, 2014




2901.04(A), which provides that sections of the Revised Code that define offenses
or penalties “shall be strictly construed against the state, and liberally construed in
favor of the accused.” Under the rule, ambiguity in a criminal statute is construed
strictly so as to apply the statute only to conduct that is clearly proscribed. United
States v. Lanier, 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997).
The Statute—R.C. 2921.12(A)(1)
       {¶ 11} Straley 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:
                 (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.


There are three elements of this offense: (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.
       {¶ 12} The state argues that the Second District Court of Appeals
misinterpreted R.C. 2921.12(A)(1) by unduly limiting the definition of
“investigation” to require that the evidence tampered with be related to the
investigation of only those charges of which law enforcement was then aware or
likely to be aware. The state contends that an investigation involves the process
of gathering facts and information and may grow beyond the scope of initial
charges. Accordingly, the state reasons that if law enforcement investigates a



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suspect for possible criminal conduct, that investigation necessarily encompasses
all criminal conduct that law enforcement may discover.
       {¶ 13} Straley counters that the state’s expansive reading of R.C.
2921.12(A)(1) is inconsistent with the plain language of the statute and the rule of
lenity. She contends that the purpose of the tampering-with-evidence statute is to
protect the availability of evidence related to an ongoing investigation during its
progress and any related later proceeding.      According to Straley, the statute
should not be broadly interpreted to encompass the discarding of contraband
when there is no investigation or potential investigation relating to that
contraband.
The Conflict Cases
       {¶ 14} The Second District in this case held that there was no proof of the
third statutory element of purpose to impair the value or availability of evidence
related to an ongoing or likely investigation. It determined that the weight of the
evidence supported a finding that Straley had discarded contraband─the baggie of
drugs. It also surmised that the jury could have found that she knew that an
investigation was likely to be instituted regarding her act of public urination (“I
don’t care if you have to arrest me; I gotta pee”). But the court concluded that
Straley did not discard the baggie of drugs with the purpose of impairing its
availability as evidence in the investigation of public urination. Nor would the
baggie relate to an investigation into driving while under the influence of alcohol
or driving without a license. Because the baggie did not relate to any current or
likely investigation, the Second District reversed the conviction for tampering
with evidence.
       {¶ 15} In contrast, the Ninth District Court of Appeals stated, “This court
has never held that a defendant commits the offense of tampering with evidence
only if he tampers with an item directly related to a police officer’s purpose for
investigating the defendant.” Skorvanek, 182 Ohio App.3d 615, 2009-Ohio-1709,




                                         6
                                 January Term, 2014




914 N.E.2d 418, ¶ 23. In Skorvanek, a request went out to stop a vehicle for an
improper left-hand turn. When officers observed that vehicle drive by, they began
to follow it and saw the driver throw something over the top of the car. The
officers stopped the vehicle, and one of them returned to the area where the item
had been thrown. A pill bottle containing heroin and various pills was found.
The defendant was charged with and convicted of possessing oxycodone, heroin,
Percocet, and Vicodin, tampering with evidence, and possessing drug
paraphernalia and criminal tools. Skorvanek argued that his tampering conviction
should be overturned because the pill bottle was unrelated to the traffic-stop
investigation. The Ninth District rejected the contention that the evidence had to
be related to the investigation, stating,


        An investigation may quickly proceed beyond its initial purpose.
        See [State v. Sullivan, 9th Dist. Medina No. 07CA0076-M, 2008-
        Ohio-2390, ¶ 11-25]. The fact that officers initially were following
        Skorvanek for a traffic violation does not detract from the
        evidentiary value of the pill bottle filled with heroin and multiple
        prescription drugs that he threw from his car.


Id. at ¶ 23. In short, the Ninth District focused on the “evidentiary value” of the
contraband and held that Skorvanek could be found guilty of tampering with
evidence.
        {¶ 16} Based on our reading of the tampering statute, we agree with the
Second District that the evidence tampered with must have some relevance to an
ongoing or likely investigation to support a tampering charge.                 R.C.
2921.12(A)(1) requires the state to prove that an offender, with knowledge of an
ongoing (or likely) investigation or proceeding, tampered with (altered, destroyed,
concealed, or removed) a record, document, or thing “with purpose to impair its



                                            7
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value or availability as evidence in such proceeding or investigation.” (Emphasis
added.) The word “such” is an adjective commonly used to avoid repetition. It
means “having a quality already or just specified.”          Webster’s Third New
International Dictionary 2283 (1986). In this instance, “such” investigation refers
back to the investigation just specified, i.e., the one that that the defendant knows
is ongoing or is likely to be instituted. Therefore, the evidence must relate to that
investigation; otherwise, the word “such” loses all meaning. The state’s argument
that all evidence recovered in an investigation should be included in the ambit of
the tampering statute would require us to change the language from “such”
proceeding or investigation to “any” proceeding or investigation.
       {¶ 17} Our resolution in this case is similar to the decision that we
reached in State v. Malone, 121 Ohio St.3d 244, 2009-Ohio-310, 903 N.E.2d 614.
In Malone, we were asked to resolve a conflict between the districts regarding
whether a conviction for intimidation of a witness under R.C. 2921.04(B) requires
the state to show that the witness was involved in a criminal action or proceeding
at the time the act of intimidation occurred. We stated, “The statute simply does
not apply to witnesses or attorneys who might become involved in a criminal
action or proceeding. It applies only to witnesses and attorneys who are involved
in a criminal action or proceeding.” (Emphasis sic.) Id. at ¶ 25. Similarly, the
tampering statute applies only when a person intends to impair availability or
value of evidence in an ongoing investigation or proceeding.
       {¶ 18} In this case, the state also brought additional charges related to the
contraband that Straley discarded.     And Straley pled no contest to both the
trafficking and possession charges. Our holding simply requires that to establish
a violation of the tampering statute, the state must show that the defendant, with
knowledge of a proceeding or investigation that is in progress or likely to be
instituted, altered, destroyed, concealed, or removed any “record, document, or
thing” with the purpose to impair its value or availability as evidence in that




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proceeding or investigation. There is no need to expand the reach of the statute
beyond its plain meaning.
                                  III. Conclusion
          {¶ 19} Because the statute requires that the evidence be related to an
ongoing or likely investigation, we hold that 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. Likelihood is measured at the time
of the act of alleged tampering. 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.
          {¶ 20} We, therefore, answer the certified conflict question in the
affirmative and affirm the judgment of the Clark County Court of Appeals.
                                                                Judgment affirmed.
          O’CONNOR, C.J., and PFEIFER, KENNEDY, FRENCH, and O’NEILL, JJ.,
concur.
          O’DONNELL, J., dissents and would dismiss the cause as having been
improvidently accepted.
                             ____________________
          D. Andrew Wilson, Clark County Prosecuting Attorney, and Christopher
L. Kinsler, Assistant Prosecuting Attorney, for appellant.
          Timothy Young, Ohio Public Defender, and Valerie Kunze, Assistant
Public Defender, for appellee.
                          _________________________



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