[Cite as State v. Cook, 2019-Ohio-4745.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                               GALLIA COUNTY

STATE OF OHIO,                  :
                                :   Case No. 18CA11
     Plaintiff-Appellee,        :
                                :
     vs.                        :   DECISION AND JUDGMENT
                                :   ENTRY
MICHAEL L. COOK,                :
                                :
     Defendant-Appellant.       :   Released: 11/07/19
_____________________________________________________________
                          APPEARANCES:

Timothy P. Gleeson, Gleeson Law Office, Logan, Ohio, for Appellant.

Jason D. Holdren, Gallia County Prosecuting Attorney, and Jeremy Fisher,
Gallia County Assistant Prosecuting Attorney, Gallipolis, Ohio, for
Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} Appellant Michael L. Cook appeals from his conviction for

possession of heroin and cocaine, trafficking in heroin, and tampering with

evidence after a jury trial in the Court of Common Pleas for Gallia County,

Ohio. Appellant asserts two assignments of error on appeal. Namely, he

contends that (1) his conviction for tampering with evidence under R.C.

2921.12 is not supported by sufficient evidence, and (2) the trial court erred

by referring to the substance alleged to be heroin at trial as, in fact, heroin
Gallia App. No. 18CA11                                                         2

when explaining that it would not be placed in the jury room during

deliberations for safety reasons.

      {¶2} The Court sustains Appellant’s first assignment of error because

the evidence does not support a finding that Appellant knew an official

investigation into his possession of unlawful drugs was in progress, or about

to be or likely to be instituted, when he tossed a bag containing heroin and

cocaine out of a state trooper’s view during a traffic stop. The Court

therefore reverses his conviction for tampering with evidence and vacates

the sentence imposed upon that offense. The Court overrules Appellant’s

second assignment of error, however, because he failed to object to the

alleged error below and has not shown that it caused him any prejudice.

                                    FACTS

      {¶3} On March 19, 2015, Appellant was indicted on charges of

possession of cocaine, a fifth degree felony in violation of R.C. 2925.11(A);

possession of heroin, a third degree felony in violation of R.C. 2925.11(A);

trafficking in heroin, a third degree felony in violation of R.C.

2925.03(A)(2); and tampering with evidence, a third degree felony in

violation of R.C. 2921.12(A)(1). In February 2016, Appellant was arrested

pursuant to the indictment. He entered a plea of not guilty to all charges and

the trial court appointed counsel to represent him.
Gallia App. No. 18CA11                                                         3

      {¶4} The charges against Appellant arose from a traffic stop on

October 10, 2014. On that date, an Ohio State Highway Patrol trooper saw

Appellant driving a pickup truck with window tint darker than permitted

under Ohio law. The trooper activated his overhead lights and followed

Appellant into the parking lot of a Shake Shoppe restaurant. The trooper

parked behind the truck and approached Appellant, who was standing beside

the truck. The trooper asked Appellant for his license, registration and proof

of insurance. After Appellant provided an Ohio ID card, the trooper walked

to the other side of the truck to address Appellant’s female passenger. While

speaking to the passenger, the trooper saw Appellant “making very quick

movements” and reaching into the truck’s glove box. His nervous demeanor

and “fumbling around” drew the trooper’s attention and led him to believe

that the stop might involve more than a window tint violation. The trooper,

however, did not communicate this suspicion to Appellant.

      {¶5} The trooper used his radio, which was situated on his left

shoulder, to call in Appellant’s information to the Ohio State Highway

Patrol. The Patrol responded that there was a warrant for Appellant’s arrest

in Gallia County. Now aware of the warrant, the trooper returned his

attention to Appellant and noticed that his demeanor had changed.

Appellant was less frantic and his nervousness had subsided.
Gallia App. No. 18CA11                                                          4

      {¶6} The trooper asked Appellant about the warrant and why he was

in Gallia County. Appellant said he was helping someone move, had bought

cigarettes at another store, and was going to get something to eat. At this

time, a patron leaving the Shake Shoppe alerted the trooper to a small bag

lying in the parking lot between the truck and a vehicle parked beside it.

The trooper retrieved the bag, which contained a “tan powdery substance”

consistent with heroin. A laboratory analysis later determined the bag

contained twenty-two small plastic bags of heroin and one small plastic bag

of cocaine. The trooper placed the bag in the trunk of his cruiser.

      {¶7} The trooper read Appellant and his passenger their Miranda

rights and placed them in the back of the cruiser. He then went to see if the

Shake Shoppe’s security cameras captured any evidence of how the bag

ended up in the parking lot. They did not provide any such evidence. The

trooper then checked the video from his in-dash camera. That video showed

Appellant tossing the bag into the parking lot while the trooper was speaking

with Patrol on his radio. When confronted with this information, Appellant

denied any involvement with the bag. After additional questioning,

Appellant was placed under arrest and, ultimately, charged with the crimes

in the indictment.
Gallia App. No. 18CA11                                                           5

      {¶8} This case did not proceed to trial until October 9, 2018 because

Appellant failed to appear at two pretrial conferences. In both instances,

Appellant was arrested pursuant to a warrant and the proceedings continued,

but more than a year and a half of delay was inserted into the case.

      {¶9} One of the trial court’s statements to the jury is at issue in this

appeal. After the trial court provided jury instructions, but just before it

released the jury to deliberate, the trial court informed the jury, “The other

thing I want to tell you (the jury) is that we are, for safety reasons, not going

to send the heroin back with you to be handled.” This statement is the basis

of Appellant’s second assignment of error.

      {¶10} The jury returned a guilty verdict on all four counts. At

sentencing, the trial court merged counts 2 and 3 for possession and

trafficking in heroin, respectively. The State elected to proceed with

sentencing on count 3 and the trial court sentenced Appellant as follows: 12

months for possession of cocaine, 36 months for trafficking in heroin, and

36 months for tampering with evidence. The two drug offenses are to be

served concurrently to each other, but consecutively to the sentence for

tampering with evidence, for a total prison term of 6 years.
Gallia App. No. 18CA11                                                             6

      {¶11} On November 14, 2018, Appellant’s trial counsel timely filed

notice of this appeal. On February 15, 2019, Appellant was assigned

separate appellate counsel.

                        ASSIGNMENTS OF ERROR

      “I. THE CONVICTION FOR TAMPERING WITH EVIDENCE IS
          NOT SUPPORTED BY SUFFICIENT EVIDENCE.

      II. THE TRIAL COURT DETERMINED AN ESSENTIAL
          ELEMENT OF THE OFFENSE, INVADING THE PROVINCE
          OF THE JURY.”

                        ASSIGNMENT OF ERROR I

      {¶12} In his first assignment of error, Appellant contends his

conviction for tampering with evidence is not supported by sufficient

evidence. Appellant relies heavily on the Supreme Court of Ohio’s decision

in State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175,

and this Court’s analysis of that decision and others in State v. Bradshaw,

4th Dist. Scioto No. 17CA3803, 2018-Ohio-1105. Appellant argues that,

based on the timeline of events presented by the State at trial, there was

insufficient evidence to support a finding that he knew of an investigation or

that an investigation was likely to be instituted into his possession of illegal

drugs. In response, the State argues the cases cited by Appellant are

distinguishable and that there was sufficient circumstantial evidence from
Gallia App. No. 18CA11                                                           7

which the jury could have inferred that Cook knew he was likely to be

searched for illegal drugs.

      {¶13} As discussed below, the tampering with evidence statute

requires a finding that, when Appellant tossed the bag of heroin, he knew

that his actions would conceal evidence relevant to an existing or likely

investigation. Because the State did not produce sufficient evidence for the

jury to make this finding, the Court reverses the conviction for tampering

with evidence.

                          STANDARD OF REVIEW

      {¶14} A claim of insufficient evidence asks whether the evidence

presented at trial is legally sufficient to support the jury’s verdict as a matter

of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

When reviewing this claim, we must determine 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 of the essential elements of the offense proven beyond a reasonable

doubt. E.g., 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, 273, 574 N.E.2d 492

(1991).
Gallia App. No. 18CA11                                                         8

      {¶15} As a reviewing court, we are 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). Accordingly, “[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.” Bradshaw at ¶¶ 14-

15; citing 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).

                             LEGAL ANALYSIS

      {¶16} The tampering with evidence statute provides, in pertinent part:

      (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;

R.C. 2921.12(A)(1). To support a conviction for tampering with evidence,

the prosecution 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
Gallia App. No. 18CA11                                                             9

evidence’s availability or value in such proceeding or investigation.” Straley

at ¶ 11.

       {¶17} 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, 2017-Ohio-7556, ¶ 110, 151 Ohio St.3d 470, 489, 90 N.E.3d 857,

881.

       {¶18} R.C. 2901.22(B) defines when a person acts “knowingly.” The

statute states:

       A person acts knowingly, regardless of purpose, when the
       person is aware that the person’s conduct will probably cause a
       certain result or will probably be of a certain nature. A person
       has knowledge of circumstances when the person is aware that
       such circumstances probably exist. When knowledge of the
       existence of a particular fact is an element of an offense, such
       knowledge is established if a person subjectively believes that
       there is a high probability of its existence and fails to make
       inquiry or acts with a conscious purpose to avoid learning the
       fact.

“Notably, this definition does not encompass knowledge that a reasonably

diligent person should, but does not, have. Rather, the statute requires the

accused to be aware that conduct will probably cause a certain result or will

probably be of a certain nature or that circumstances probably exist.” Barry
Gallia App. No. 18CA11                                                       10

at ¶ 24. Consequently, “constructive knowledge is insufficient to prove that

[an accused] knew that an investigation was ongoing or likely to be

commenced.” Id. at ¶ 25. “Ohio law does not impute constructive

knowledge of an impending investigation based solely on the commission of

an offense.” Id. at ¶ 2.

      {¶19} However, “knowledge of a likely investigation may be inferred

when the defendant commits a crime that is likely to be reported.” Martin at

¶ 118 (emphasis in original). Knowledge may be inferred in homicide cases,

for example, because “[h]omicides are highly likely to be discovered and

investigated” and “a jury may reasonably believe that a murderer knows

this.” Id. at ¶ 119.

      {¶20} This case does not involve a homicide, but heroin possession.

In Barry, the Supreme Court of Ohio expressly rejected the proposition that

“by concealing, transporting or possessing heroin, [the defendant] had

constructive knowledge of an impending investigation into at least one of

those crimes.” Barry at ¶ 23. In other words, the concealing, transportation

or possession of heroin is not the type of crime “that is likely to be

reported,” and therefore a jury may not infer that the perpetrator knew an

investigation was forthcoming based solely on the commission of those acts.
Gallia App. No. 18CA11                                                         11

Martin at ¶ 118 (distinguishing the possessory offense in Barry from the

commission of a homicide).

      {¶21} The State argues this case is distinguishable from the Supreme

Court of Ohio’s decision in Straley, which also involved a traffic stop that

led to the discovery of the defendant’s possession of an illegal drug,

because, in that case, the traffic stop had already ceased when the defendant

attempted to conceal the drug. We previously summarized Straley as

follows:

      In Straley, the court determined that the evidence failed to show
      that the evidence tampered with related to the ongoing or likely
      investigation of which the defendant had knowledge. In Straley,
      law enforcement officers stopped the defendant's vehicle for
      erratic driving. Although the officers detected an odor of
      alcohol emanating from the defendant, they decided not to
      pursue an investigation. The officers would not, however, allow
      the defendant to drive home. As the officers tried to arrange a
      ride home for the defendant, the defendant announced that she
      needed to urinate. Afterwards, one of the officers walked to the
      area where the defendant had urinated and discovered a clear
      plastic bag covered with urine. The officer believed the bag
      contained crack cocaine. The officers subsequently arrested the
      defendant, and she later was charged with trafficking in drugs,
      possession of drugs, and tampering with evidence.

      Following her conviction on all counts, the defendant appealed.
      The court of appeals reversed the defendant's tampering with
      evidence conviction. The court determined that the evidence
      failed to show that the defendant acted with purpose to impair
      the value of evidence in an ongoing or likely investigation into
      her (1) driving under the influence of alcohol, or (2) public
      urination. The court concluded that the bag of drugs did not
      relate to a current or likely investigation.
Gallia App. No. 18CA11                                                          12

      On further appeal, the Ohio Supreme Court agreed with the
      appellate court’s decision. The court explained that “the
      evidence tampered with must have some relevance to an
      ongoing or likely investigation to support a tampering charge.”
      Id. at ¶ 16. The court further held that the evidence tampered
      with must relate to “the one that the defendant knows is
      ongoing or is likely to be instituted.” Id.

      The court applied these rules to the defendant’s conviction and
      determined that the evidence failed “to suggest that the officers
      were conducting or likely to conduct an investigation into
      trafficking or possession of cocaine when [the defendant]
      discarded the baggie.” Id. at ¶ 19. The court additionally
      pointed out that 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.” Id. The court
      thus concluded that the evidence failed to adequately support
      the defendant’s tampering with evidence conviction.

Bradshaw at ¶¶ 57-60. The State’s distinction between the concluded traffic

stop in Straley and the active traffic stop in this case is valid. The analysis in

Straley also demonstrates, however, that a court’s inquiry into the evidence

supporting a tampering with evidence conviction is fact intensive and each

case is unique. The existence of an active traffic stop is just one of the facts

that must be considered.

      {¶22} In this case, the traffic stop was for a window tint violation, not

a violation that, in the ordinary course, a reasonable person might expect to

lead to an investigation into the possession of illegal drugs. The State also

notes that the trooper, who had ten years of law enforcement experience,
Gallia App. No. 18CA11                                                         13

was alerted to the possibility of other illegal activity by Appellant’s nervous

behavior. Even if the trooper had a well-founded suspicion that Appellant

possessed illegal drugs, there is no evidence that he communicated that

suspicion to Appellant before he tossed the bag of heroin. The State must

prove that Appellant—not law enforcement—knew that an investigation was

likely.

          {¶23} There is also no evidence showing Appellant knew about the

warrant for his arrest before he threw the bag. The video from the trooper’s

in-dash camera shows Appellant throwing the bag as the trooper was calling

in Appellant’s information to the State Highway Patrol. The trooper learned

of the warrant during that call. The trooper could not have informed

Appellant about the warrant until after that call. There is no evidence that

Appellant was aware of the warrant before his conversation with the trooper.

          {¶24} The State also argues the jury could have inferred Appellant’s

knowledge of a likely investigation based on his statements to the trooper.

Specifically, when the trooper asked Appellant why he had thrown the bag,

Appellant responded, “I had to get it there.” The trooper understood this

explanation to mean Appellant had to get the heroin to a nearby apartment

complex. The State argues the statement is a tacit admission that Appellant
Gallia App. No. 18CA11                                                           14

knew the bag contained heroin and, therefore, the jury could infer that he

threw the bag in anticipation that he might be searched.

      {¶25} Permitting such an inference to be sufficient under R.C.

2921.12(A)(1), however, would violate the Supreme Court of Ohio’s clear

instruction that “Ohio law does not impute constructive knowledge of an

impending investigation based solely on the commission of an offense.”

Barry at ¶ 2. The State therefore must show the existence of facts and

circumstances—in addition to the mere possession of an illegal drug—from

which knowledge of an investigation or likely investigation may be inferred.

In this case, the State has failed to identify such facts and circumstances to

support Appellant’s conviction. As a result, the Court reverses the

conviction for tampering with evidence under R.C. 2921(A)(1).

                        ASSIGNMENT OF ERROR II

      {¶26} In his second assignment of error, Appellant contends the trial

court erred by determining an essential element of an offense, thus invading

the province of the jury. Specifically, Appellant contends that the trial court

determined that the bag tossed by Appellant contained heroin and then

communicated that determination to the jury before their deliberations.

Appellant suggests the trial court’s statement was tantamount to an

instruction that the jury must find that the bag contained heroin, which was
Gallia App. No. 18CA11                                                         15

an essential element of the offenses of possession and trafficking of heroin.

The State argues this assignment of error should be overruled because

Appellant failed to object to the trial judge’s statement and, in any event,

never contested that the bag contained heroin at trial. The State’s arguments

are compelling. Appellant failed to object at trial, thereby waiving anything

but plain error, which he has not shown. Appellant has not shown that he

was prejudiced by the trial judge’s statement. Accordingly, his second

assignment of error is overruled.

                         STANDARD OF REVIEW

      {¶27} When “determining whether a trial judge’s remarks were

prejudicial, the courts will adhere to the following rules: (1) The burden of

proof is placed upon the defendant to demonstrate prejudice, (2) it is

presumed that the trial judge is in the best position to decide when a breach

is committed and what corrective measures are called for, (3) the remarks

are to be considered in light of the circumstances under which they are

made, (4) consideration is to be given to their possible effect upon the jury,

and (5) to their possible impairment of the effectiveness of counsel.” State

v. Wade, 53 Ohio St.2d 182, 188, 373 N.E.2d 1244, 1248–49, cert. granted,

judgment vacated on other grounds, 438 U.S. 911, 98 S.Ct. 3138, 57

L.Ed.2d 1157 (1978).
Gallia App. No. 18CA11                                                             16

      {¶28} Here, the record also shows that Appellant did not object to the

challenged statement by the trial judge when it was made. “The failure to

object has been held to constitute a waiver of the error and to preclude its

consideration upon appeal, for, absent an objection, the trial judge is denied

an opportunity to give corrective instructions as to the error.” Id.

“Accordingly, any errors not brought to the attention of the trial court by

objection or otherwise are waived and may not be raised on appeal unless

they rise to the level of plain error.” State v. Swint, 2018-Ohio-5384, ¶ 25.

      {¶29} “To constitute plain error, a reviewing court must find (1) an

error in the proceedings, (2) the error must be a plain, obvious or clear defect

in the trial proceedings, and (3) the error must have affected ‘substantial

rights’ (i.e., the trial court’s error must have affected the trial’s outcome).”

State v. Lewis, supra, at ¶ 9; quoting State v. Dickess, 174 Ohio App.3d 658,

2008-Ohio-39, 884 N.E.2d 92, ¶ 31 (4th Dist.); citing State v. Hill, 92 Ohio

St.3d 191, 749 N.E.2d 274 (2001), and State v. Barnes, 94 Ohio St.3d 21,

27, 759 N.E.2d 1240 (2002). “Furthermore, notice of plain error must be

taken with the utmost caution, under exceptional circumstances, and only to

prevent a manifest miscarriage of justice.” Lewis, supra; citing State v.

Landrum, 53 Ohio St.3d 107, 111, 559 N.E.2d 710 (1990), and State v.

Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the
Gallia App. No. 18CA11                                                        17

syllabus. “A reviewing court should notice plain error only if the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id.

                              LEGAL ANALYSIS

      {¶30} Appellant’s failure to show that he suffered prejudice as a result

of the trial judge’s statement undermines his assignment of error. Even

accepting the argument that the statement constituted a de facto

determination that the bag contained heroin, Appellant has not shown that

there was any evidence from which the jury might have inferred that the bag

did not contain heroin. Instead, all of the evidence in the record supports

only one finding—that the bag contained both heroin and cocaine.

      {¶31} The State’s first witness, Jacqueline Smith, was the chemical

supervisor for the Ohio State Highway Patrol Crime Lab who analyzed the

contents of the bag thrown by Appellant. She testified regarding the chain

of custody for the bag and the steps taken by the lab to ensure that its

contents were not contaminated. Ms. Smith further testified that the lab’s

analysis determined the bag contained 8.396 grams of heroin and .514 grams

of cocaine. Appellant’s trial counsel declined to cross-examine Ms. Smith

regarding her testimony. The only other evidence regarding the contents of

the bag was the trooper’s testimony that, in his experience, its contents
Gallia App. No. 18CA11                                                       18

appeared consistent with heroin. Based on this evidence, the only

reasonable conclusion the jury could have reached was that the bag

contained heroin and cocaine. The trial judge’s statement regarding the bag

therefore did not affect the jury’s consideration of this issue.

      {¶32} Without a showing that the alleged error affected the trial’s

outcome, Appellant cannot establish plain error. Even if Appellant’s failure

to object did not require plain error analysis, he has not shown any prejudice

caused by the trial judge’s statement. For both of these reasons, Appellant’s

second assignment of error is overruled.

                                CONCLUSION

      {¶33} In summary, the Court sustains Appellant’s first assignment of

error for lack of sufficient evidence, reverses Appellant’s conviction for

tampering with evidence under R.C. 2921.12, and vacates the sentence

imposed upon that offense. Appellant’s total prison sentence is therefore

reduced by 36 months. Appellant’s second assignment of error is overruled

because he has not shown any prejudice from the alleged error.

                                        JUDGMENT AFFIRMED IN
                                        PART, REVERSED IN PART,
                                        AND VACATED IN PART.
Gallia App. No. 18CA11                                                         19

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED IN PART,
REVERSED IN PART, AND VACATED IN PART. Court costs shall be
divided equally between the parties.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Gallia County Court of Common Pleas to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. & Hess, J.: Concur in Judgment and Opinion.

                                        For the Court,

                                 BY: ______________________________
                                     Matthew W. McFarland, Judge

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
