[Cite as State v. Crowe, 2020-Ohio-1314.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SENECA COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 13-19-41

        v.

BRANDON J. CROWE,                                         OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Seneca County Common Pleas Court
                            Trial Court No. 18 CR 0144

                                      Judgment Affirmed

                              Date of Decision: April 6, 2020




APPEARANCES:

        Jennifer L. Kahler for Appellant

        Rebeka Beresh for Appellee
Case No. 13-19-41


SHAW, P.J.

        {¶1} Defendant-appellant, Brandon J. Crowe (“Crowe”), brings this appeal

from the September 25, 2019, judgment of the Seneca County Common Pleas Court

sentencing him to twenty-four months in prison after Crowe was found guilty by a

jury of Tampering with Evidence in violation of R.C. 2921.12(A)(1), a felony of the

third degree.   On appeal, Crowe argues that there was insufficient evidence

presented to convict him and that his conviction was against the manifest weight of

the evidence.

                                      Background

        {¶2} On July 11, 2018, Crowe was indicted for Tampering with Evidence in

violation of R.C. 2921.12(A)(1), a felony of the third degree. It was alleged that

Crowe concealed or removed his girlfriend’s cell phone after she overdosed and

died while the police investigated the matter or were likely to investigate the matter,

with purpose to impair the phone’s value or availability as evidence. Crowe entered

a plea of not guilty to the charge.

        {¶3} The matter proceeded to a jury trial, which was held August 21-22,

2019.    Following the presentation of evidence, Crowe was found guilty of

Tampering with Evidence as charged.

        {¶4} On September 24, 2019, Crowe was sentenced to serve twenty-four

months in prison, consecutive to his prison term on an unrelated Involuntary


                                         -2-
Case No. 13-19-41


Manslaughter conviction from another county. A judgment entry memorializing

Crowe’s sentence was filed September 25, 2019. It is from this judgment that Crowe

appeals, asserting the following assignments of error for our review.

                          Assignment of Error No. 1
       The trial court erred in finding appellant guilty of Tampering
       with Evidence when the conviction was against the manifest
       weight of the evidence.

                          Assignment of Error No. 2
       The trial court erred in finding appellant guilty of Tampering
       with Evidence where the State failed to introduce sufficient
       evidence to support the conviction.

       {¶5} We elect to address the assignments of error out of the order in which

they were raised.

                           Second Assignment of Error

      {¶6} In Crowe’s second assignment of error, he argues that there was

insufficient evidence presented to convict him of Tampering with Evidence.

                               Standard of Review

      {¶7} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio

St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly,


                                        -3-
Case No. 13-19-41


“[t]he relevant inquiry is whether, after viewing the evidence in a light most

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

elements of the crime proven beyond a reasonable doubt.” Id. “In deciding if the

evidence was sufficient, we neither resolve evidentiary conflicts nor assess the

credibility of witnesses, as both are functions reserved for the trier of fact.” State v.

Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33,

citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.);

see also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19, citing

State v. Thompkins, 78 Ohio St.3d 380, 386 (1997) (“Sufficiency of the evidence is

a test of adequacy rather than credibility or weight of the evidence.”).

                                  Controlling Statute

       {¶8} In this case, Crowe was convicted of Tampering with Evidence in

violation of R.C. 2921.12(A)(1), which reads as follows.

       (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[.]

                                 Evidence Presented

       {¶9} In order to convict Crowe at trial, the State presented evidence that in

Melmore, Ohio, around 1:30 a.m. on January 3, 2018, Crowe awakened on the


                                          -4-
Case No. 13-19-41


couch with his girlfriend, Ashley, in his lap. Ashley had vomited and she was

unresponsive. Crowe called Ashley’s mother, who lived only a couple blocks away,

and told her that Ashley was unresponsive and that Crowe thought Ashley was not

breathing.

        {¶10} Ashley’s mother, Pam, was aware that Ashley had a history of

substance abuse. Ashley had been in and out of rehab and Pam was also aware that

Ashley had recently been drinking. Ashley was twenty-six years old at the time.

Pam had last seen Ashley on New Year’s Day, two days prior. Pam thought Ashley

might have passed out from drinking, so she sent her husband Ryan—Ashley’s

step-father—to check on Ashley.1

        {¶11} Ryan hurriedly ran over to Ashley’s residence. When he arrived,

Crowe was on the porch and Crowe stated that he could not awaken Ashley. Ryan

went inside and observed Ashley on the couch. She was, as Crowe had stated, not

breathing and unresponsive, but she was still warm to the touch. Ryan called Pam,

then 911 was called, and Ryan performed CPR on Ashley.

        {¶12} A Deputy Sheriff, Troy Gibson, was dispatched to the residence for a

report of an unresponsive female at 1:39 a.m. He was the first responder at the

scene. When Deputy Gibson arrived, he was met at the door and led to Ashley,

where he checked her vitals then relieved Ryan from performing CPR. Deputy


1
  Ashley lived in a home that was owned by Pam and Ryan. Pam testified their houses were close,
approximately two blocks apart, Ryan testified that the houses were perhaps three or four blocks apart.

                                                 -5-
Case No. 13-19-41


Gibson continued performing CPR until further emergency responders arrived. Pam

arrived at the residence while Deputy Gibson was performing CPR.

         {¶13} EMTs transported Ashley to the hospital. Pam followed the EMTs but

Crowe and Ryan assisted police officers at the scene as the officers looked for any

drugs or drug paraphernalia that would help explain Ashley’s condition. The

officers also looked for Ashley’s cell phone, hoping it could provide information to

possibly explain what had happened to her. An officer stated that the cell phone

would be a valuable investigative tool to help provide a timeline leading to Ashley’s

condition, or if her condition was the result of an overdose, where she may have

obtained narcotics. The officer figured that a young woman would not be far from

her cell phone. In fact, Pam and Ryan testified that Ashley’s phone was always

within reach and that she was a “selfie” queen.

         {¶14} However, Ashley’s cell phone was also not located during the search

of the residence or her vehicle, which one officer stated was atypical. Brandon

specifically told the officers that he did not know the location of Ashley’s cell

phone.

         {¶15} In addition, no drugs or paraphernalia were located during the search

of the residence or vehicle. A detective testified that it was uncommon in an




                                         -6-
Case No. 13-19-41


overdose situation to have no drugs or drug paraphernalia around and that it was

something that warranted further investigation.2

           {¶16} After the search of the residence and Ashley’s vehicle, Ryan took

Crowe to the hospital, though they stopped at Pam and Ryan’s house on the way.

When they arrived at the hospital, they learned that Ashley had been pronounced

dead. Ashley’s blood was drawn to have it examined to help in determining the

cause of her death.

           {¶17} Deputy Gibson asked Crowe to come and speak with him after Crowe

left the hospital. Crowe went to the Sheriff’s Office, was interviewed, and he made

a written statement, which Crowe finished at approximately 4:30 a.m. on January 3,

2018. Crowe was then driven to the residence of one of his family members in

Marion by Ashley’s brother as Crowe did not have a vehicle.

           {¶18} Much later on the same day, after 6:30 p.m., Crowe made a phone call

to Pam, which Pam recorded. On the call Pam and Crowe initially spoke of their

shock and sadness over Ashley’s death, then Crowe spoke about Ashely’s absent

cell phone. Despite earlier telling the police he had no idea where Ashley’s phone

was located, Crowe told Pam that Crowe remembered having the phone on his lap

in Ryan’s truck (presumably on the way to the hospital), then he thought he placed

Ashley’s phone outside of Pam’s residence by the garage. Pam told Crowe that she



2
    At one point Brandon indicated that he thought the last time Ashley had used heroin was eight days prior.

                                                      -7-
Case No. 13-19-41


wanted the phone because it had numerous pictures of Ashley and Pam was

preparing for Ashley’s funeral.

      {¶19} While Pam was on the phone with Crowe, Ryan went outside to look

for the cell phone in the area Crowe said he had dropped it. Ryan could not locate

the phone. Pam told Crowe that Ryan could not find the phone and then Pam told

Crowe to let her know if he could think of any possibility where Ashley’s phone

was located. Crowe stated that he would, and the call was ended after approximately

ten minutes. Pam testified that she recorded her conversation with Crowe because

Crowe’s statements were not making sense to her, and she suspected Crowe had

Ashley’s phone.

      {¶20} A couple of days later a service was held for Ashley, which Crowe

attended. The following morning Ashley was buried. Crowe did not attend the

funeral; however, after the funeral Crowe exchanged text messages with Pam about

potentially visiting Ashley’s gravesite. Crowe did not know where the gravesite

was located. One of the messages Crowe sent stated as follows.

      I’m very sorry I wasn’t able to be there I’m so fucked up over it
      bc I really needed to be there. Yes thank you I would really like
      to do that sometime soon. It would really mean a lot to me. As
      far as the phone I have looked everywhere through all my stuff
      and haven’t found it. The last time I remember seeing it I had it
      on my lap when I was in Ryan’s truck leaving her house and I
      think I dropped it at either your house or the hospital when I got
      out. But I’ll keep looking until I find it bc it also has all the
      pictures she took of us as well and I really need to see them again.


                                        -8-
Case No. 13-19-41


       I miss her so much I just keep staring at my phone wishing she
       would call me

(State’s Exs. 3-4).

       {¶21} Pam agreed to take Crowe to Ashley’s gravesite on January 10, 2018,

and she did take him there. After Crowe took flowers to the grave, Crowe indicated

that he had some personal possessions in Ashley’s vehicle and at her residence.

Crowe was taken to Ashley’s residence where he gathered some of his possessions.

Nobody saw Crowe pick up a cell phone at that time.

       {¶22} On January 11, 2018, a detective investigating the matter received a

warrant to check the GPS locations on Ashley’s phone from January 3, 2018, to

January 10, 2018. The search did not reveal any results, indicating that the last place

Ashley’s phone had been was at her residence on or about January 3, 2018, just after

7:30 a.m. A detective indicated that a phone that was turned off would not transmit

GPS data, potentially accounting for no GPS data during any of the other days.

       {¶23} Also on January 11, 2018, Crowe was arrested on an unrelated matter

by the Marion Police Department. Crowe’s phone was seized and searched at that

time. From the search of Crowe’s phone, it was learned that over thirty pictures had

been exchanged between Ashley’s phone and Crowe’s phone on the morning of

January 11, 2018, around 7 a.m., which would have been over a week after Ashley’s

death. Some of the photos were of Ashley—including some topless photos—and

some were of Ashley and Crowe. The fact that photographs had been exchanged

                                         -9-
Case No. 13-19-41


with Ashley’s missing phone was relayed to the Seneca County Sheriff’s

Department. A new warrant was then obtained to get the GPS location for Ashley’s

phone for days spanning January 11, 2018, to January 22, 2018.

       {¶24} The search warrant was conducted and there was a GPS location for

Ashley’s phone at the residence of Crowe’s father on January 11, 2018. Crowe’s

father’s residence was searched and Ashley’s phone was located in Crowe’s room,

tucked underneath a mattress alongside another phone.

       {¶25} After searching Ashley’s phone, officers were not able to recover any

data that shed light on Ashley’s death or how she acquired narcotics. However,

Ashley was declared to have died from an overdose.

                                      Analysis

       {¶26} Crowe now contends that the State presented insufficient evidence to

convict him of Tampering with Evidence. Importantly, there are three elements to

the offense of Tampering with Evidence:          “(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.

       {¶27} In challenging his conviction, Crowe argues that there was no

evidence that he had knowledge of an official proceeding or investigation, that there


                                         -10-
Case No. 13-19-41


was no evidence as to how he came to be in possession of the phone, that there was

no indication that he intended to conceal the phone or keep it, and that there was no

underlying crime regarding Ashley’s death, thus her phone could not be evidence

of a crime. In addition he argues that he did nothing to impair the phone’s

evidentiary value. In short, he essentially alleges that the State presented no

evidence whatsoever that would meet any of the required elements of Tampering

with Evidence.

       {¶28} As to Crowe’s claim that there was no official proceeding or

investigation pending so he could have no knowledge of an investigation, Crowe

was aware that the police were looking for the phone. He was also aware that police

were looking for drugs and drug paraphernalia in the residence and in the car, in the

hopes of explaining Ashley’s death. The police also hoped to potentially find who

sold Ashley narcotics through her phone and piece together a timeline of her final

hours. Further, Crowe was interviewed and gave a written statement to police in

the hours after Ashley’s death. In combination, these facts constitute sufficient

evidence that an investigation was occurring and that Crowe was aware of the

ongoing investigation. State v. Martin, 151 Ohio St.3d 470, 2017-Ohio-7556; See

also State v. Workman, 3d Dist. Auglaize No. 2-15-05, 2015-Ohio-5049, ¶ 56.

       {¶29} Regarding Crowe’s possession and concealment of the phone, Crowe

gave multiple conflicting statements about the phone’s location, first indicating to


                                        -11-
Case No. 13-19-41


the police that he did not know where the phone was, then stating to Pam and Ryan

that he had the phone in Ryan’s truck at one point, then claiming he left it outside

of Pam and Ryan’s garage. Subsequently the phone was found in Crowe’s bedroom,

concealed underneath a mattress as though he was trying to hide it.

       {¶30} In addition, over thirty photographs were exchanged between Crowe’s

phone and Ashley’s phone eight days after her death. Given the presence of

Ashley’s cell phone underneath Crowe’s mattress, the pictures exchanged eight days

after Ashley’s death, and Crowe’s conflicting stories about the location of the

phone, there was sufficient evidence for a jury to find that Crowe possessed and

tried to conceal the phone. See State v. Workman, 3d Dist. Auglaize No. 2-15-05,

2015-Ohio-5049, ¶ 56.

       {¶31} As to Crowe’s contention that there was ultimately no evidentiary

value to the phone so he did not impair its value or availability as evidence, we note

that a detective testified that phone extractions were not perfect, that sometimes

things did not transfer, and that sometimes not all pertinent information was

extracted. The detective indicated that the material that could be retrieved from a

cell phone in an extraction varied and depended on the make and model of the

phone. (Tr. at 258).

       {¶32} Notwithstanding this point, by keeping the phone under his mattress

and not informing law enforcement or Pam and Ryan that he had it, Crowe was


                                        -12-
Case No. 13-19-41


hampering the availability of the phone as evidence or as an investigatory tool. Just

because the cell phone did not ultimately result in actionable intelligence or the

charging of a crime does not mean that it was not a crime for Crowe to conceal it

when the officers could have used it to explore various investigative avenues or even

eliminate some. In fact a detective testified that the investigation into Ashley’s

death was still open as of the date of trial. (Tr. at 232).

       {¶33} In sum, when reviewing a sufficiency claim, we must look at the

evidence in the light most favorable to the State, and in doing so in this case, there

was ample testimony and numerous inferences that could be made based on the

evidence presented that would support Crowe’s conviction. See State v. Leonard,

104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 77. Therefore, his second assignment of

error is overruled.

                              First Assignment of Error

       {¶34} In Crowe’s first assignment of error, he argues that even if there was

sufficient evidence presented to convict him of Tampering with Evidence, his

conviction was against the manifest weight of the evidence.

                                 Standard of Review

       {¶35} In reviewing whether a verdict was against the manifest weight of the

evidence, the appellate court sits as a “thirteenth juror” and examines the conflicting

testimony. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52. In doing


                                          -13-
Case No. 13-19-41


so, this Court must review the entire record, weigh the evidence and all of the

reasonable inferences, consider the credibility of witnesses and determine whether

in resolving conflicts in the evidence, the factfinder “clearly lost its way and created

such a manifest miscarriage of justice that the conviction must be reversed and a

new trial ordered.” Id.

       {¶36} Nevertheless, a reviewing court must allow the trier-of-fact

appropriate discretion on matters relating to the credibility of the witnesses. State

v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight

standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against

the conviction,’ should an appellate court overturn the trial court’s judgment.” State

v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter,

131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.

                                       Analysis

       {¶37} In arguing that his conviction for Tampering with Evidence was

against the manifest weight of the evidence, Crowe claims that the evidence did not

establish that there was a crime regarding Ashley’s death so no investigation was

impeded. Crowe also argues that there was no indication that he was aware of a

pending investigation and constructive knowledge of an investigation could not be

imputed to him.




                                         -14-
Case No. 13-19-41


       {¶38} Crowe points to some of the evidence presented at trial, claiming it

supports an acquittal in this matter. He contends that there is no indication of where

Ashley’s cell phone was between January 3, 2018, and January 11, 2018, and he

notes that the last time Ashley’s phone produced GPS coordinates before January

11, 2018, was on January 3, 2018. At that time, approximately 7:30 a.m., the

location shown was around Ashley’s residence. Crowe contends that if the phone

was at Ashley’s residence at that time, the evidence showed that he was in Marion

with his family and since he did not drive he could not have returned to the house

to get the phone. Crowe contends that it is just as likely that he found the phone

amongst his things when he was taken back to the residence to get his property on

January 10, 2018, and that he simply did not have time to return the phone to police

or to Pam and Ryan because Crowe was arrested the next day.

       {¶39} Contrary to Crowe’s claim that the evidence did not establish that he

possessed and concealed the phone, a reasonable interpretation of the evidence was

that Crowe either had the phone the whole time and the hours when Crowe left

Melmore were slightly different than the testimony, or that Crowe had hidden the

phone somewhere and later went to get it, or that the phone died and he never

charged it until later, turning it on January 11, 2018, and transferring pictures

between his phone and Ashley’s phone. Any of these theories would support Crowe

possessing the phone. Then, in placing the phone underneath his mattress, a


                                        -15-
Case No. 13-19-41


reasonable jury could infer that Crowe was attempting to conceal it and keep it from

a police investigation. See State v. Workman, 3d Dist. Auglaize No. 2-15-05, 2015-

Ohio-5049, ¶ 56. We must defer to the jury’s credibility determinations.3 State v.

DeHass, 10 Ohio St.2d 230, 231 (1967).

        {¶40} Next, Crowe states that there is no evidence that he was aware of any

official investigation, and that constructive knowledge of an investigation or of a

likely investigation was not enough to support a conviction for Tampering with

Evidence pursuant to the Supreme Court of Ohio’s decision in State v. Barry, 145

Ohio St.3d 354, 2015-Ohio-5449.

        {¶41} In Barry, Barry travelled to Middletown, Ohio where her friends

convinced her to conceal a package of heroin in her vagina. She did so. She and

the others then drove to Scioto County where they were stopped by police for a

defective muffler and erratic driving. The officer who approached the car smelled

marijuana and an investigation ensued.                    Barry eventually admitted she had

concealed heroin inside her body. Barry was subsequently charged with and

convicted of Tampering with Evidence in addition to other crimes.

        {¶42} The Fourth District Court of Appeals affirmed Barry’s conviction for

Tampering but certified its decision to the Supreme Court of Ohio after finding it to


3
  At trial, Crowe introduced some testimony that there was a phone-tracking application on Ashley’s phone
called “Life360.” Both of Ashley’s parents had Life360 on their phones, but they did not have the ability to
track Ashley’s; rather, apparently only Ashley’s ex-boyfriend had access to Ashley’s location through
Life360.

                                                   -16-
Case No. 13-19-41


be in conflict with a Second District case. The Supreme Court of Ohio was asked

to determine “whether knowledge that an official proceeding or investigation is

pending or likely to be instituted can be imputed to one who commits a crime,

regardless of whether that crime is likely to be reported to law enforcement.” Id. at

¶ 17.

        {¶43} The Court found that in order to convict Barry of Tampering with

Evidence, the State had to prove that at the time she concealed the heroin, Barry

knew that an investigation into her drug trafficking and possession was likely to be

instituted. Id. at ¶ 22. The Court went on to find:

        [T]here is no evidence that at the time she concealed the heroin in
        her body in Middletown, Ohio, Barry knew or could have known
        that a state trooper would stop her car in Scioto County and begin
        an investigation of her for drug trafficking and drug possession.
        Thus, the trial court erred in instructing the jury that by
        committing an unmistakable crime, Barry had constructive
        knowledge of an impending investigation of that crime, and her
        tampering conviction is not supported by sufficient evidence.

Id. at ¶ 3.

        {¶44} While Barry held that constructive knowledge of an impending

investigation based solely on the commission of an offense was not sufficient to

show that a defendant had the requisite intent for Tampering with Evidence, the

Supreme Court of Ohio subsequently clarified and distinguished Barry less than

two years after it was released in State v. Martin, 151 Ohio St.3d 470, 2017-Ohio-

7556. In Martin, the Court clarified that a jury could reasonably infer that a person

                                        -17-
Case No. 13-19-41


committing a homicide would be on notice that an investigation was likely to begin

because homicides “are highly likely to be discovered and investigated. ¶ 118.

         {¶45} The facts here are more similar to Martin than Barry, though both are

distinguishable. Here there was a death of a twenty-six year old otherwise healthy

woman. It would be reasonable to infer that an investigation was likely to be

undertaken into her death, regardless of whether a crime was ultimately charged in

causing her death.

         {¶46} Notwithstanding this point, we need not delve deeply into a discussion

of “constructive knowledge” of an investigation in this matter because the jury could

readily determine that Crowe had actual knowledge of an investigation. Crowe was

present and relatively involved in the search of Ashley’s residence and her vehicle.

After Ashley was pronounced dead Crowe was interviewed by the police and he

gave a written statement. It would be reasonable under the circumstances to

conclude that Crowe had actual knowledge of an investigation into Ashley’s cause

of death. See State v. Workman, 3d Dist. Auglaize No. 2-15-05, 2015-Ohio-5049,

¶ 56. Thus Crowe’s argument related to knowledge of an investigation is not well-

taken.

         {¶47} Finally, Crowe argues that since no evidence of a crime was found on

Ashley’s cell phone, he could not be convicted. However, the statutory elements do

not require that the concealed item actually be used as evidence. Nevertheless, an


                                         -18-
Case No. 13-19-41


officer gave testimony that transfers are not always perfect and sometimes they are

unable to detect deleted material. Moreover, the phone could have been a valuable

investigative tool to search various avenues of how Ashley obtained drugs and how

she spent her final hours. Thus this argument is not well-taken.

       {¶48} In sum, when deferring to the credibility determinations of the

factfinder as we are directed, we cannot find that the jury clearly lost its way and

created a manifest miscarriage of justice here. Therefore, Crowe’s first assignment

of error is overruled.

                                    Conclusion

       {¶49} For the foregoing reasons, Crowe’s assignments of error are overruled

and the judgment of the Seneca County Common Pleas Court is affirmed.

                                                               Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




                                       -19-
