Tampering with evidence

By Justice Paul E. Pfeifer

In February 2013, Chelsey Barry traveled to Middletown, Ohio, with her friend, James Valero, to pick up Jashean Green and Devonte Revez and drive them to Huntington, West Virginia. It wasn’t an innocent road trip.

When they departed on the evening of February 27, Valero handed Barry a condom filled with heroin and told her to conceal it in her vagina. She did. The men promised her a share of the heroin for helping.

On Route 23 south of Lucasville, State Trooper Nick Lewis stopped their car after hearing its defective muffler and observing erratic driving. Lewis smelled marijuana, so he asked Barry – who was driving – to get out. She denied anyone had smoked marijuana, but when Lewis and another trooper searched the car, they found a baggie containing marijuana residue.

After speaking with Green, Revez, and Valero, Lewis suspected that they had given drugs to Barry to conceal inside her body. He warned Barry that he could obtain a warrant for a body cavity search if she didn’t cooperate.

Barry initially denied concealing drugs, but on further questioning admitted it. Later – in the presence of a female officer – she produced a condom containing 56.36 grams of heroin.

The state indicted Barry for trafficking in heroin, possession of heroin, conspiracy to traffic in drugs, and tampering with evidence. At trial, Barry admitted that she “stuffed the heroin to conceal it so the police wouldn’t see it,” that she “knew that that was an unmistakable crime,” and that “it was a crime to possess heroin and to stuff it.”

The court instructed the jury on the “knowledge element” of the tampering with evidence charge, stating that when “an offender commits an unmistakable crime, the offender has ‘constructive knowledge’ of an impending investigation of the crime committed.”

The jury returned guilty verdicts on all charges. The trial court determined that trafficking, possession and conspiracy merged as allied offenses and for those charges imposed a six-year sentence. It also imposed a consecutive term of three years for tampering with evidence for a total sentence of nine years.

The court of appeals confirmed Barry’s tampering conviction, concluding that when she concealed the heroin, Barry had “constructive knowledge of an impending investigation.” After that, Barry’s case came before us – the Ohio Supreme Court.

In her appeal, Barry maintained that a person who hides evidence of a crime that is unmistakable only to that person does not commit tampering unless the state proves that someone else – a third party – was likely to report the crime. Barry argued that a person is guilty of tampering only when that person has knowledge of a likely investigation directly related to the concealed evidence.

The state countered that a person who conceals evidence of an unmistakable crime is guilty of tampering with evidence, regardless of whether the crime was likely to be reported by a third party, and that committing a crime gives an offender “constructive knowledge” of an impending investigation.

So the question was this: Can knowledge that an investigation is likely to be instituted be attributed to a person who commits a crime, regardless of whether that crime is likely to be reported to law enforcement?

The tampering law states that no person – knowing that an official investigation is in progress or is likely to be instituted – “shall alter, destroy, conceal, or remove any records, document, or thing, with purpose to impair its value or availability as evidence in such…investigation.”

In order to convict Barry of tampering, the state’s burden was to prove beyond a reasonable doubt that at the time Barry concealed the heroin, she knew that an investigation into her actions was likely.

Our court rejected the proposition that by committing an “unmistakable crime” by concealing, transporting, or possessing heroin, Barry at that time had “constructive knowledge” of an impending investigation into at least one of those crimes.

The tampering law says that a person can be charged with knowledge of a particular fact only if that 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.”

Thus, the “unmistakable crime” instruction given to the jury attributes to the offender “constructive knowledge” of a pending or likely investigation into the crime. But “constructive knowledge” is insufficient to prove that Barry knew that an investigation was likely to be commenced at the time she concealed the heroin.

Ohio doesn’t recognize the “unmistakable crime” doctrine in connection with the offense of tampering with evidence because that doctrine erroneously attributes to the perpetrator “constructive knowledge” of a pending or likely investigation into a crime; merely establishing that the crime committed is an “unmistakable crime” is insufficient to prove that the accused knew at the time the evidence was concealed that an official investigation into that crime was ongoing or likely to be instituted.

Our court has never adopted or approved the “unmistakable crime” instruction, and we disavowed its use in this instance.

The state failed to prove that Barry was aware that an investigation into her drug trafficking and possession was likely at the time she concealed evidence. When she hid the heroin, only her co-conspirators knew and could have reported her drug offense.

She concealed the drugs with a purpose to avoid detection by law enforcement and without knowledge of an impending investigation. Thus, her conviction for tampering was not supported by sufficient evidence.

The state failed to prove that Barry knew an official investigation was likely to be instituted at the time she concealed the heroin, and proof that she knew she committed a crime by doing so isn’t the same as knowledge that an investigation into her activities was likely to be instituted.

The evidence didn’t support Barry’s conviction for tampering with evidence. Therefore – by a seven-to-zero vote – we reversed the court of appeals’ judgment and sent the matter back to the trial court for further proceedings consistent with our opinion.

By Justice Paul E. Pfeifer

Paul Pfeifer is an associate justice of the Supreme Court of Ohio.

Paul Pfeifer is an associate justice of the Supreme Court of Ohio.