State v. Straley (Slip Opinion)

[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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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,

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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

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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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January Term, 2014

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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