[Cite as State v. Greeno, 2021-Ohio-1372.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

PICKAWAY COUNTY 

STATE OF OHIO, : 

 : 

 Plaintiff-Appellee, : Case No. 19CA15 

 : 

 vs. : 

 : 

BRIAN A. GREENO, : DECISION AND JUDGMENT ENTRY 

 : 

 Defendant-Appellant. : 

APPEARANCES: 

Jerry L. McHenry, Pickerington, Ohio, for Appellant. 

Judy Wolford, Pickaway County Prosecuting Attorney, Circleville, Ohio, for 

Appellee. 

 

Smith, P.J. 

 {¶1} This is an appeal from a Pickaway County Common Pleas Court 

judgment of conviction and sentence. The jury found Brian A. Greeno (Appellant) 

guilty of tampering with evidence in violation of R.C. 2921.12(A)(1), a third-degree 

felony. The trial court ordered Appellant to serve a 36-month prison sentence. On 

appeal, Appellant raises a single assignment of error contending that his conviction 

was against the manifest weight of the evidence and was not supported by sufficient 
Pickaway App. No. 19CA15 2 

evidence. However, because we find no merit to Appellant’s assignment of error, it 

is overruled. Accordingly, the judgment of the trial court is affirmed. 

FACTS 

 {¶2} On December 7, 2018, a Pickaway County Grand Jury returned an 

indictment that charged Appellant with one count of tampering with evidence in 

violation of R.C. 2921.12(A)(1), a third-degree felony. Previously, the State had 

charged Appellant with drug possession in a separate case that stemmed from an 

incident that occurred months before the tampering incident. 

 {¶3} At trial, Pickaway County Corrections Officer Austin Reeves testified 

that as officers booked Appellant into the Pickaway County Jail, Circleville Police 

Officer Lance Canterbury advised Reeves that Appellant “may have some type of 

contraband within his pants. He said he thought he saw him shove something inside 

of there before he brought him in, but he wasn’t entirely sure.” Reeves began the 

booking process, which included conducting a pat down search, removing 

Appellant’s handcuffs and having him empty his pockets. Reeves then frisked 

Appellant and found nothing. Reeves testified that “[i]f there is thought to be 

contraband that was not found during the pat down, we have an inmate change over 

into a jail issued uniform. That way it’s harder for them to convey drugs, contraband 

into the facility.” 
Pickaway App. No. 19CA15 3 

 {¶4} Officer Reeves further testified that as Appellant stood behind a short 

wall in the booking cell, Reeves heard “what seemed to be plastic crinkling.” He 

testified that he asked Appellant to hand over whatever he had in his hands, but he 

refused. He testified that he then said “come on Greeno, whatever you have, give it 

to me[,]” but that Appellant refused and instead “attempted to eat whatever the 

contraband was that he had.” 

 {¶5} Officer Reeves testified that after the incident, he told Appellant to sit in 

the booking area. At that point, Appellant “began to act almost as if he was on some 

kind of drug, kind of phasing out, just acting not normal * * *.” Reeves testified that 

when Appellant came to the jail, he had been “a little bit irate, a little bit aggressive. 

By the time I left he was ― it was almost as if he was fading in and out of 

consciousness, seemed very tired, almost fell out of the chair once or twice I do 

believe.” Reeves stated that he could not see what Appellant may have put in his 

mouth; rather, he only heard crinkling and observed Appellant put his hand near his 

mouth. 

 {¶6} Pickaway County Sheriff’s Department Jail Administrator Lieutenant 

Gabe Carpenter testified that when he was outside the cell while Appellant changed 

to a jail uniform, he heard raised voices. Carpenter entered the room and observed 

Appellant face away from him, toward the wall. Carpenter testified that although 

Appellant had removed all of his clothing, he had not yet put on a jail uniform, and 
Pickaway App. No. 19CA15 4 

that “[s]hortly thereafter he made movement towards his mouth, and it appeared that 

he had swallowed something, was attempting to swallow something.” Carpenter 

further testified as follows regarding the incident: 

I tried to make him spit it out, to drop it, to get it out. He continued. 

He still would not comply with the commands. Had to take him to 

the bunk to try to get him secured and under control. 

 {¶7} Once the officers took Appellant to the bunk and positioned him on his 

side, they continued to order him to spit out the item. However, it appears Appellant 

still refused. Carpenter further testified as follows: 

At one point you could hear him trying to, when we ask him 

questions he would try to say something we could just hear 

something was stuck in his throat. We then stood and continued to 

try to get him to spit the item out. At one point I told him that he 

was going to, and he again refused. When he would talk to us, you 

could hear like he had something in his throat. He still was not 

compliant, until eventually he swallowed that item. 

 {¶8} Lieutenant Carpenter testified that Appellant became lethargic thereafter 

and that “[h]e was having trouble keeping his consciousness and alertness.” As a 

result, the jail nurse practitioner was consulted for guidance. Carpenter testified that 

a dose of Narcan was requested and that Appellant was transported to the hospital. 

Although the trial transcript indicates that officers transported Appellant to the 

hospital, there was no evidence introduced at trial concerning what transpired at the 

hospital, or what tests, if any, doctors may have administered to determine 

Appellant’s condition or to determine what substance he may have possibly ingested. 
Pickaway App. No. 19CA15 5 

Our review of the record indicates that Appellant “left around 2:15 and returned 

around 6:15 that evening.” 

 {¶9} A USB flash drive identified as Exhibit 2 was also utilized at trial and is 

part of the appellate record. The drive contains video footage of the jail incident from 

an officer’s bodycam. The video does not begin until after Appellant placed the 

unknown substance into his mouth, but demonstrates Appellant making muffled 

sounds that could indicate something in his mouth, while being held by multiple 

officers who attempted to extract whatever substance they believed he had placed into 

his mouth. The video does not contain footage of Appellant’s demeanor after the 

incident. 

 {¶10} On February 7, 2019, the jury found Appellant (1) not guilty of 

possession of drugs, and (2) guilty of tampering with evidence. The trial court 

sentenced Appellant to serve 36 months in prison. Appellant sets forth a single 

assignment of error for our review. 

ASSIGNMENT OF ERROR 

“THE APPELLANT’S CONVICTION WAS AGAINST THE 

MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT 

SUPPORTED BY SUFFICIENT EVIDENCE. HE WAS DENIED 

HIS RIGHTS TO A FAIR TRIAL, DUE PROCESS OF LAW AND 

EQUAL PROTECTION OF THE LAW AS GUARANTEED TO 

HIM BY THE FIFTH, SIXTH AND FOURTEENTH 

AMENDMENTS OF THE UNITED STATES CONSTITUTION 

AND ARTICLE I, SECTION 10 OF THE OHIO 

CONSTITUTION.” 

Legal Analysis 
Pickaway App. No. 19CA15 6 

 {¶11} In his sole assignment of error, Appellant contends that his tampering 

with evidence conviction is against the manifest weight of the evidence and is not 

supported by sufficient evidence. He further argues that he was denied his right to a 

fair trial, due process of law, and equal protection as a result. We begin by 

considering the appropriate standards of review for both sufficiency-of-the-evidence 

and manifest-weight-of-the-evidence challenges. 

Standard of Review 

 {¶12} This Court recently observed that “sufficiency” and “manifest weight” 

are distinct legal concepts. State v. Bradshaw, 4th Dist. Scioto No. 17CA3803, 2018-

Ohio-1105, ¶ 14, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 

972 N.E.2d 517, ¶ 23 (stating that “sufficiency of the evidence is quantitatively and 

qualitatively different from the weight of the evidence”); State v. Thompkins, 78 Ohio 

St.3d 380, 678 N.E.2d 541, syllabus (1997). A claim of insufficient evidence invokes 

a due process concern and raises the question whether the evidence is legally 

sufficient to support the verdict as a matter of law. See Thompkins at 386. When 

reviewing the sufficiency of the evidence, an appellate court’s inquiry focuses 

primarily upon the adequacy of the evidence; that is, whether the evidence, if 

believed, reasonably could support a finding of guilt beyond a reasonable doubt. Id.

at syllabus. Thus, the standard of review is whether, after viewing the probative 

evidence and inferences reasonably drawn therefrom in the light most favorable to the 
Pickaway App. No. 19CA15 7 

prosecution, any rational trier of fact could have found all the essential elements of 

the offense beyond a reasonable doubt. See 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). 

 {¶13} A reviewing court is 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, supra, at 390 (Cook, J., concurring). Additionally, when 

reviewing a sufficiency-of-the-evidence claim, an appellate court must construe the 

evidence in a light most favorable to the prosecution. See State v. Hill, 75 Ohio St.3d 

195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio St.3d 465, 477, 620 

N.E.2d 50 (1993). Furthermore, 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. See 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). 

 {¶14} “Although a court of appeals may determine that a judgment of a trial 

court is sustained by sufficient evidence, that court may nevertheless conclude that 

the judgment is against the weight of the evidence.” Thompkins, supra, at 387. 

When an appellate court considers a claim that a conviction is against the manifest 

weight of the evidence, the court must dutifully examine the entire record, weigh the 
Pickaway App. No. 19CA15 8 

evidence and all reasonable inferences, and consider the witness credibility. See State 

v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 151, citing 

Thompkins at 387. A reviewing court must bear in mind, however, that credibility 

generally is an issue for the trier of fact to resolve. See State v. Issa, 93 Ohio St.3d 

49, 67, 752 N.E.2d 904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 

2008-Ohio-1744, ¶ 31. “ ‘Because the trier of fact sees and hears the witnesses and is 

particularly competent to decide “whether, and to what extent, to credit the testimony 

of particular witnesses,” we must afford substantial deference to its determinations of 

credibility.’ ” Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, 929 N.E.2d 

1047, ¶ 20, quoting State v. Konya, 2nd Dist. Montgomery No. 21434, 2006-Ohio6312, ¶ 6, in turn quoting State v. Lawson, 2nd Dist. Montgomery No. 16288, 1997 

WL 476684 (Aug. 22, 1997). As the Court explained in Eastley : 

“[I]n determining whether the judgment below is manifestly against 

the weight of the evidence, every reasonable intendment must be

made in favor of the judgment and the finding of facts. * * * If the 

evidence is susceptible of more than one construction, the 

reviewing court is bound to give it that interpretation which is 

consistent with the verdict and judgment, most favorable to 

sustaining the verdict and judgment.” 

Eastley, supra, at ¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 

77, 80, 461 N.E.2d 1273, fn. 3 (1984). 

 {¶15} Furthermore, appellate courts recognize that issues of evidence weight 

and witness credibility are matters for the trier of fact to determine, as long as a 
Pickaway App. No. 19CA15 9 

rational basis exists in the record for its decision. See State v. Picklesimer, 4th Dist. 

Pickaway No. 11CA9, 2012-Ohio-1282, ¶ 24. Accord State v. Howard, 4th Dist. 

Ross No. 07CA2948, 2007-Ohio-6331, ¶ 6 (“We will not intercede as long as the trier 

of fact has some factual and rational basis for its determination of credibility and 

weight.”). Once a reviewing court finishes its weight of the evidence examination, 

the court may reverse the judgment of conviction only if it appears that the factfinder, when resolving the conflicts in evidence, “ ‘clearly lost its way and created 

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

trial ordered.’ ” Thompkins, supra, at 387, quoting State v. Martin, 20 Ohio App.3d 

172, 175, 485 N.E.2d 717 (1st Dist.1983). If the prosecution presents substantial 

credible evidence upon which the trier of fact reasonably could conclude, beyond a 

reasonable doubt, that the essential elements of the offense have been established, the 

judgment of conviction is not against the manifest weight of the evidence. See State 

v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132, syllabus (1978), superseded by state 

constitutional amendment on other grounds in State v. Smith, 80 Ohio St.3d 89, 684 

N.E.2d 668 (1997). Accord Eastley, supra, at ¶ 12, quoting Thompkins at 387, in turn 

quoting Black's Law Dictionary 1594 (6th ed.1990) (explaining that a judgment is not 

against the manifest weight of the evidence when “ ‘ “the greater amount of credible 

evidence” ’ ” supports it). A reviewing court should find a conviction against the 

manifest weight of the evidence only in the “ ‘exceptional case in which the evidence 
Pickaway App. No. 19CA15 10 

weighs heavily against the conviction.’ ” Thompkins, supra, at 387, quoting Martin, 

supra, at 175. Accord State v. Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d 995 

(2000). 

Tampering with Evidence 

 {¶16} R.C. 2921.12 governs the offense of tampering with evidence and 

provides, in pertinent part, 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. 

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

Supreme Court of Ohio held that three elements must be satisfied under R.C. 2921.12 

in order to establish that the offense of tampering with evidence occurred. These 

elements are as follows: 

(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; [and] (3) the purpose of impairing the potential 

evidence’s availability or value in such proceeding or 

investigation.” 

Straley at ¶ 11. 

 {¶17} In Straley, after two officers stopped a vehicle for erratic driving, the

officers detected an odor of an alcoholic beverage and suspected the driver of being 
Pickaway App. No. 19CA15 11 

under the influence. Straley at ¶ 2. While the officers were attempting to secure a 

ride for the defendant, she announced that she needed to urinate and ran to the corner 

of a building to relieve herself. Id. at ¶ 3. One of the officers then discovered a 

urine-covered cellophane baggie that contained crack cocaine in the area where the 

defendant urinated. Id. at ¶ 4. Although a jury found Straley guilty of tampering 

with evidence, the Second District Court of Appeals reversed the conviction and 

concluded that Straley did not impair evidence that related to an ongoing or likely 

investigation. Id. at ¶ 7. The Supreme Court of Ohio subsequently affirmed the 

appellate court’s decision, reasoning, in part, as follows: 

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 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. 

Straley, supra, at ¶ 19. 

 {¶18} As indicated above, the first element for tampering with evidence 

requires the State to establish that, at the time of the 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. Further, 

“[t]he likelihood of an investigation is measured at the time of the alleged 

tampering.” State v. Martin, 151 Ohio St.3d 470, 2017-Ohio-7556, 90 N.E.3d 857, 
Pickaway App. No. 19CA15 12 

¶ 110, citing Straley at ¶ 19, and Barry at ¶ 21. In Straley, the Supreme Court of 

Ohio concluded that at the time Straley discarded the baggie, nothing in the record 

suggested that the officers were conducting, or were likely to conduct, an 

investigation into the trafficking or possession of cocaine. Straley at ¶ 19. 

 {¶19} For ease of discussion, we jointly address the remaining prongs of the 

Straley analysis. In order to prove tampering with evidence, the State must also 

establish: (1) that the defendant altered, destroyed, concealed, or removed the 

potential evidence; and (2) that the defendant intended to impair the value or 

availability of evidence that related to an existing or likely official investigation or 

proceeding. Straley at syllabus. Thus, “the evidence tampered with must have some

relevance to an ongoing or likely investigation” of which the defendant has 

knowledge. Straley at ¶ 16. 

 {¶20} After a thorough review, we conclude that the case sub judice is 

factually distinguishable from both Straley and Barry. As this Court has recently 

observed, “[t]he analysis in Straley * * * demonstrates * * * that a court’s inquiry 

into the evidence supporting a tampering with evidence conviction is fact intensive 

and each case is unique.” State v. Cook, 4th Dist. Gallia No. 18CA11, 2019-Ohio4745, ¶ 21. Even applying the legal holdings of both Straley and Barry, the jury’s 

finding of guilt with respect to the tampering with evidence charge should be 

affirmed. 
Pickaway App. No. 19CA15 13 

 {¶21} Here, the record before us indicates that law enforcement initiated a 

traffic stop of Appellant after receiving a tip connecting him with drug trafficking 

activity. While stopped, in addition to being cited for driving under suspension and 

two other driving infractions, Appellant was arrested and charged with possession of 

drug paraphernalia due to the fact that hypodermic needles were found on his person 

during a routine pat down search during the traffic stop. When Appellant was taken 

to jail, the arresting officer informed the receiving officer at the jail that he had 

observed Appellant stuff something into his pants. However, when the arresting 

officer was called to testify during the trial, he was not in the hallway. Further, the 

officer that received Appellant into the jail could not recall the reason for Appellant’s 

initial stop or arrest and the trial was concluded without the arresting officer’s 

testimony. Thus, no evidence regarding the drug trafficking tip, Appellant’s initial 

stop or search that yielded hypodermic needles was before the jury. Nevertheless, 

based upon our careful analysis and comparison of several different cases involving 

tampering with evidence convictions, we conclude that the evidence that was before 

the jury supports Appellant’s tampering with evidence conviction. 

 {¶22} In State v. Williams, 8th Dist. Cuyahoga No. 83574, 2004-Ohio-4476, 

the court addressed an incident that involved a tampering by ingestion charge in 

which officers believed that they had witnessed a drug transaction and gave chase. 

Id. at ¶ 4. As the officers handcuffed Williams, one officer observed him “chewing 
Pickaway App. No. 19CA15 14 

rapidly,” trying to swallow something. Id. at ¶ 5. After Williams refused to open his 

mouth, officers pried his mouth open and observed crack cocaine residue. Id. 

Further, officers transported Williams to a hospital to have his stomach pumped. Id.

at ¶ 7. A urinalysis tested positive for cocaine and marijuana and a gastric lavage 

recovered white pill fragments. Id. at ¶ 10. The court concluded that, under these 

facts, the State presented sufficient evidence from which a reasonable factfinder 

could have found the elements of tampering with evidence proven beyond a 

reasonable doubt. Williams at ¶ 43 and 47. 

 {¶23} In State v. Price, 2019-Ohio-1642, 135 N.E.3d 1093, another case 

involving a tampering by ingestion incident, there was testimony introduced that the 

defendant was arrested in a parking lot in connection with a drug trafficking 

investigation. As officers tried to put Price into a cruiser, they observed “his mouth 

had kind of drooped open and there was a baggie sticking out of his mouth.” Id. at 

¶ 15. Upon witnessing Price’s condition at that time, the detective testified that he 

“immediately knew he ingested heroin.” Id. The evidence introduced further 

indicated that paramedics subsequently removed a bag from Price’s mouth that 

contained “a pinkish-tan mixture with saliva.” Id. at ¶ 64. The Price court ultimately 

concluded that sufficient, circumstantial evidence established that when Price saw the 

police, he ingested the drugs in the baggie. Id. at ¶ 66. 
Pickaway App. No. 19CA15 15 

 {¶24} In another tampering with evidence case, in which ingestion was not a 

factor, this Court concluded that the defendant tampered with evidence, but the Ohio 

Supreme Court disagreed. In State v. Barry, 4th Dist. Scioto 13CA3569, 2014-Ohio4452, reversed in 145 Ohio St.3d 354, 49 N.E.3d 1248, this Court held that a 

defendant, who admitted that she concealed heroin in her vagina in order to conceal 

the drug from law enforcement authorities, had constructive knowledge of an 

impending investigation, or at least knowledge that an investigation would likely 

ensue, in view of the obvious, inherent and unmistakable evidence of a crime of 

possessing the controlled substance. The theory to support this view is that a person 

actively engaged in the commission of a drug offense should have constructive notice 

that an investigation will likely ensue. Barry, 2014-Ohio- 4452 at ¶ 10. However, 

the Ohio Supreme Court determined that the law will not impute constructive 

knowledge of an impending investigation as an element of the tampering with 

evidence offense based solely on the commission of an offense. Barry, 145 Ohio 

St.3d at paragraph one of the syllabus. The Court determined that, consistent with the 

required strict construction of criminal statutes, including the elements of R.C. 

2921.12(A)(1), a tampering with evidence violation requires the State to establish that 

the defendant had knowledge of a proceeding or investigation that is in progress, or 

likely to be instituted, and then concealed or destroyed an object with the purpose to 
Pickaway App. No. 19CA15 16 

impair its availability as evidence in that proceeding or investigation. See also State 

v. Crocker, 4th Dist. Scioto 14CA3640. 

 {¶25} After careful case comparison and consideration of the foregoing, we 

conclude this case is factually more akin to State v. Bradshaw, 4th Dist. Scioto No. 

17CA3803, 2018-Ohio-1105, than it is either Barry or Straley and thus, it demands a 

different outcome. In Bradshaw, this Court upheld a tampering with evidence 

conviction where the defendant: (1) was arrested on a parole violation; (2) was 

informed he was going to jail; (3) was asked whether he had any contraband on him 

and denied that he did; (4) was patted down and warned regarding taking contraband 

into the jail; and (5) the defendant then threw an item in a cigarette wrapper into the 

trash on the way into the jail. State v. Bradshaw at ¶ 4-5. Like the underlying arrest 

here, the nature of the parole violation in Bradshaw was not in evidence. Id. When 

an officer accompanying Bradshaw retrieved the item out of the trash, Bradshaw 

admitted it was “some dope,” which turned out to be heroin. Id. at ¶ 9. This Court 

affirmed a tampering with evidence conviction based upon those facts despite 

Bradshaw’s arguments that at the time he allegedly disposed of the heroin the only 

investigation concerned his alleged parole violation and that the State failed to 

present any evidence that the alleged violation involved drug-related offenses. Id. at 

¶ 18. 
Pickaway App. No. 19CA15 17 

 {¶26} In upholding Bradshaw’s conviction we noted the State’s argument that 

the parole violation investigation “did not end at the jail-house doors[,]” and “that the 

officers warned appellant about the consequences of carrying contraband into the jail, 

and that warning gave appellant knowledge that an investigation into whether he was 

carrying contraband was likely.” Id. at ¶ 11. Here, Appellant was not arrested on a 

parole violation, but he had nevertheless been arrested and was being booked into 

jail. Further, as in Bradshaw, there was testimony at trial that Appellant was warned 

about bringing contraband into the jail and that he denied having anything. There 

was also testimony that he was patted down and subjected to the further scrutiny of 

having to change out of his clothing and into a jail-issued uniform, which was 

explained is typically done when law enforcement suspects that someone has 

contraband that was not found during a pat down. 

 {¶27} It was during this phase of his booking that Appellant was observed to 

have something in his hand that was making a crinkling sound, which he then put into 

his mouth and eventually swallowed, despite being repeatedly ordered to hand the 

item over, being ordered to spit the item out, all the while being told he would be 

charged with tampering. In upholding Bradshaw’s conviction we noted that the first 

element of the offense of tampering was satisfied because Bradshaw knew he was 

under investigation for violating parole “and that he would be searched for 

contraband more thoroughly once he arrived at the jail.” Id. at ¶ 53. In reaching our 
Pickaway App. No. 19CA15 18 

holding, we reasoned that Bradshaw’s “attempt to dispose of the evidence was a 

‘reaction to a likely investigation of a * * * criminal act,’ and not a preemptive 

measure to avoid detection.” Bradshaw at ¶ 50, quoting State v. Shaw, 8th Dist. 

Cuyahoga No. 105111, 2017-Ohio-7404, ¶ 24. We believe the first element is 

likewise satisfied in the case sub judice, where Appellant knew he was going to jail, 

was warned about bringing contraband into the jail, knew he would be searched more 

thoroughly, and took action to destroy evidence of a crime. 

 {¶28} As for the second element, in Bradshaw we concluded that Bradshaw’s 

act of disposing of heroin in a trash can on the way into jail constituted concealment 

or removal for purposes of the tampering statute. Id. at ¶ 54. Likewise, we conclude 

Appellant’s act of putting the item at issue in his mouth after being commanded to 

hand it over, and then taking the further step of swallowing it after being commanded 

to spit it out, satisfied the second element of the offense of tampering. See also State 

v. Cheesman, 5th Dist. Fairfield No. 15CA59, 2016-Ohio-5040, ¶ 9 (upholding a 

conviction for tampering with evidence where the defendant was put in the “changeout room” while being booked into jail and reached his hand toward his rectum in an 

attempt to further conceal contraband he already had in his rectum). In Cheeseman, 

the appellate court “agreed with the State that the defendant committed the tampering 

offense not before the officers placed him in custody, but instead, he committed the 

tampering offense ‘in the change-out room in the jail “when [he] put his hand in and 
Pickaway App. No. 19CA15 19 

then over his rectal area in order to further conceal the apprehension of drugs.” ’ ” 

Bradshaw at ¶ 33, quoting Cheesman at ¶ 42, quoting the State’s argument on appeal. 

Here, we conclude there is ample evidence in the record that Appellant was observed 

with something in his hand, which he put into his mouth, and then with great 

difficulty, swallowed. 

 {¶29} Finally, we found the third element was satisfied in Bradshaw because 

the defendant “knew he was under investigation for violating parole, knew that 

conveying drugs into the jail constituted a crime, and could reasonably expect to be 

more thoroughly searched for contraband at the jail.” Bradshaw at ¶ 61. We further 

reasoned that “by disposing of the evidence immediately before entering the jailhouse doors, appellant impaired the availability of that evidence for use in an ongoing 

parole-violation investigation or in a likely investigation into whether he had 

conveyed illegal drugs into a detention facility.” Id. The same reasoning should 

apply here to Appellant who was under arrest and being booked into the jail, had been 

warned about conveying contraband into the jail, and knew he would be more 

thoroughly searched, prior to putting the contraband into his mouth and then 

swallowing it. 

 {¶30} In Bradshaw, the contraband was recovered from the trash can and was 

ultimately able to be tested. We noted, however, that “even when a defendant’s 

attempted concealment ultimately proves unsuccessful, * * * this failure ‘has no 
Pickaway App. No. 19CA15 20 

effect on a sufficiency-of-the-evidence analysis.’ ” Id. at ¶ 62. Here, the opposite 

happened. Appellant was so successful in his actions of tampering with evidence that 

the item he had in his pants, and then in his hand, and then in his mouth, was lost 

when he swallowed it. Although there are cases that reference defendants having the 

contents of their stomach pumped, and although Appellant argues the State never 

introduced medical records regarding what happened once he arrived at the hospital, 

it seems an onerous burden to require such action by the State in order to be able to 

establish that tampering with evidence took place. Further, recovery of the evidence 

is not necessary to sustain a tampering with evidence conviction. State v. Caute, 8th 

Dist. Cuyahoga No. 92169, 2009-Ohio-5222, ¶ 74. 

 {¶31} Appellant contends that no one knows what “thing” he allegedly 

ingested, or if the “thing” that caused the “crinkly” sound was evidence of some 

value to an investigation. Thus, he argues the jury had to infer that the “thing” that 

caused the “crinkly” sound was actually evidence of some value to an investigation 

and, moreover, the jury had to further infer that Appellant sought to impair the value 

or the availability of the “thing” as evidence. Therefore, Appellant essentially 

contends that the jury engaged in impermissible inference stacking in reaching its 

decision. 

 {¶32} “A trier of fact may not draw ‘[a]n inference based * * * entirely upon 

another inference, unsupported by any additional fact or another inference from other 
Pickaway App. No. 19CA15 21 

facts[.]’ ” State v. Cowans, 87 Ohio St.3d 68, 78, 717 N.E.2d 298 (1999), quoting 

Hurt v. Charles J. Rogers Transp. Co., 164 Ohio St. 329, 130 N.E.2d 820, paragraph 

one of the syllabus (1955). “When an inference, which forms the basis of a 

conviction, is drawn solely from another inference and that inference is not supported 

by any additional facts or inferences drawn from other established facts, the 

conviction is improper.” State v. Armstrong, 11th Dist. Portage No. 2015-P-0075, 

2016-Ohio-7841, ¶ 23, citing State v. Payne, 11th Dist. Ashtabula No. 2014-A-0001, 

2014-Ohio-4304, ¶ 23, see also State v. Maynard, 10th Dist. Franklin No. 11AP-697, 

2012-Ohio-2946, ¶ 27. 

The rule against inference-stacking essentially forbids the drawing 

of an inference from evidence which is too uncertain or speculative 

or which raises merely a possibility or conjecture. While 

reasonable inferences may be drawn from the facts and conditions 

established, they cannot be drawn from facts or conditions merely 

assumed. 

Armstrong at ¶ 23. See generally Ray v. Wal–Mart Stores, Inc., 2013-Ohio-2684, 993 

N.E.2d 808, ¶ 35 (4th Dist.) (discussing improper inference stacking). 

 {¶33} “Though widely denounced by both courts and legal commentators, the 

rule prohibiting the stacking of one inference upon another is still recognized in 

Ohio.” Donaldson v. N. Trading Co., 82 Ohio App.3d 476, 481 (10th Dist.1992), 

citing Motorists Mut. Ins. Co. v. Hamilton Twp. Trustees, 28 Ohio St.3d 13, 502 

N.E.2d 204 (1986), see also State ex rel. Verhovec v. Marietta, 4th Dist. Washington 

Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2, 2013-Ohio-5414, ¶ 59. However, 
Pickaway App. No. 19CA15 22 

“the rule has very limited application. It prohibits only the drawing of one inference 

solely and entirely from another inference, where that inference is unsupported by 

any additional facts or inferences drawn from other facts.” Id., citing Hurt v. Charles 

J. Rogers Transp. Co., 164 Ohio St. 329, 130 N.E.2d 820, paragraph one of the 

syllabus (1955). As the Court in Motorists warned: “the rule forbidding the stacking 

of an inference upon an inference is disfavored by scholars and many courts. If such 

a rule were uniformly enforced, ‘ * * * hardly a single trial could be adequately 

prosecuted.’ ” Motorists Mut. Ins. Co. at 207, quoting 1A Wigmore, Evidence (Tillers 

Rev.1983) 1106, 1111, Section 41; United States v. Eustace, 423 F.2d 569, 571(2nd 

Cir., 1970); see also Verhovec at ¶ 60. 

 {¶34} “An inference which is based solely and entirely upon another inference 

and which is unsupported by any additional fact or another inference from other facts 

is an inference upon an inference and is universally condemned.” Hurt at ¶ 2 of the 

syllabus. However, there are two instances when the rule against inference stacking 

does not apply. The first is when “[a]n inference which is based in part upon another 

inference and in part upon factual support is called a parallel inference and is 

universally approved provided it is a reasonable conclusion for the jury to deduce.” 

Id. at ¶ 3 of the syllabus. The second is when multiple inferences arise separately 

from the same set of facts. McDougall v. Glenn Cartage Co., 169 Ohio St. 522, 160 

N.E.2d 266, paragraph two of the syllabus (1959). 
Pickaway App. No. 19CA15 23 

 {¶35} At trial the State presented two witnesses, Deputy Reeves and 

Lieutenant Carpenter, both of whom were at the jail when Appellant arrived after his 

arrest. Reeves testified that he heard a “crinkling” sound as Appellant attempted to 

swallow something but he did not know what he swallowed. Carpenter testified that 

he did not see any contraband that Appellant may have swallowed. Following the 

swallowing, however, both officers stated that Appellant’s demeanor changed and he 

appeared to be under the influence. Carpenter testified that upon noting a change in 

Appellant’s demeanor, he requested a dose of Narcan and a nurse practitioner was 

summoned to monitor him. Appellant was thereafter transported to the hospital. 

 {¶36} Based upon the information contained in the record before us, we cannot 

conclude that the jury had to engage in impermissible inference stacking in order to 

reach a guilty verdict. There is evidence indicating Appellant swallowed some type 

of contraband which likely was a controlled substance in light of the near immediate 

change in his demeanor. As set forth above, Appellant came into the jail irate and 

aggressive, but after the swallowing incident he became lethargic and almost fell out 

of a chair twice. This change in his demeanor or mental status actually necessitated 

medical attention requiring him to be transported to the hospital. Thus, there was 

some circumstantial evidence that was introduced indicating that the item Appellant 

swallowed was a controlled substance. Further, circumstantial evidence has equal 

probative value to direct evidence. See State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 
Pickaway App. No. 19CA15 24 

492, paragraph one of the syllabus (1991). As such, it does not appear the jury had to 

stack inferences, but rather could have inferred that the item ingested was a controlled 

substance based upon the factual information in the record related to Appellant’s 

status change after ingesting the unknown item. As explained in Motorists: 

Where a jury bases its verdict partly on a reasonable inference

drawn from facts in evidence, and partly on an inference drawn both 

from those same facts and from common human experience, the 

verdict is not the result of the impermissible stacking of an 

inference upon an inference. 

(Emphasis added.) 28 Ohio St.3d at 14. 

 {¶37} Here, we cannot conclude that the second inference (that the item 

ingested was a controlled substance) was based solely upon the first inference (that 

Appellant actually ingested something) Rather, the jury could have based the second 

inference on “common human experience” that a person who, contrary to an order by 

a law enforcement officer to spit out an item, instead ingests it and subsequently 

becomes lethargic and has difficulty staying alert has ingested “evidence,” i.e. a 

controlled substance. In re Lucas, 33 Cal. 4th 682, 696, 94 P.3d 477, 485 (2004) 

(“[I]llicit drugs and their effects have become a matter of common knowledge or 

experience.”). See also Wilkerson v. State, 736 S.W.2d 656, 664 (Tex. Crim. App. 

1987) (“[I]t is common knowledge that most controlled substances have some effect 

upon human beings when taken * * *.”). 
Pickaway App. No. 19CA15 25 

 {¶38} As such, based upon the foregoing reasons, we cannot conclude that 

Appellant’s conviction for tampering with evidence was against the manifest weight 

of the evidence or was not supported by sufficient evidence. Thus, we find no merit 

to Appellant’s sole assignment of error. Accordingly, it is overruled and the 

judgment of the trial court is affirmed. 

 JUDGMENT AFFIRMED. 
Pickaway App. No. 19CA15 26 

Abele, J, dissenting: 

 {¶39} I respectfully dissent. After my review of the evidence adduced at trial, 

I do not believe the prosecution presented sufficient evidence to reasonably support a 

finding of guilty beyond a reasonable doubt. 

 {¶40} At trial appellee presented two witnesses, Deputy Reeves and Lieutenant 

Carpenter, both of whom were at the jail when appellant arrived. Reeves heard a 

“crinkling” sound as appellant appeared to attempt to swallow something, but he did 

not know what appellant may have swallowed. Carpenter did not see any contraband. 

Following the alleged swallowing, both officers testified that appellant appeared to be 

under the influence. Carpenter requested Narcan, but the record does not reflect if 

anyone administered Narcan, or what effect, if any, it may have had on appellant’s 

demeanor or condition. Carpenter’s testimony also refers to a nurse practitioner 

summoned to monitor appellant after he allegedly swallowed the unknown item, but 

the nurse practitioner did not testify. Additionally, the transcript indicates that 

officers transported appellant to the hospital. However, I find no testimony, records 

or other evidence concerning what transpired at the hospital, or what tests, if any, 

doctors or medical staff may have administered to determine the source of appellant’s 

condition, or to determine what substance, if any, that appellant may have possibly 

ingested. Apparently, concerning appellant’s transport to and from the hospital, he 

“left around 2:15 and returned around 6:15 that evening.” 
Pickaway App. No. 19CA15 27 

 {¶41} Appellant asserts that no one knows what “thing” appellant allegedly 

ingested, or if the “thing” that caused the “crinkly” sound was evidence of some 

value to an investigation. Thus, appellant argues, the jury had to first infer that the 

“thing” that caused the “crinkly” sound was actually evidence of some value to an 

investigation, then the jury had to further infer that appellant sought to impair the 

value or the availability of the “thing” as evidence. Appellee, however, urges this 

court to uphold the jury’s determination. 

 {¶42} I agree that appellate courts should generally afford great deference to a 

trier of fact’s determination. Nevertheless, after my review of the record, I do not 

believe that the prosecution presented sufficient evidence to prove that appellant 

tampered with evidence in violation of R.C. 2921.12. The statute provides that no 

person shall destroy or conceal anything with purpose to impair its availability as 

evidence in an investigation. With no information or testimony about the particular 

nature of the “evidence” that the appellant allegedly tampered with, along with the 

absence of any expert testimony regarding appellant’s condition, the absence of any 

medical tests to indicate what substance, if any, appellant may have ingested, and 

with eye-witnesses unable to identify what substance, if any, appellant may have 

ingested, I believe the evidence adduced at trial is insufficient to establish beyond a 

reasonable doubt that appellant tampered with evidence. 
Pickaway App. No. 19CA15 28 

 {¶43} The principal opinion cites several tampering with evidence cases to 

support its view. I, however, do not believe that this case is sufficiently similar to 

those decisions. In State v. Williams, 8th Dist. Cuyahoga No. 83574, 2004-Ohio4476, the handcuffed defendant attempted to chew and swallow crack cocaine. The 

officers pried open the defendant’s mouth, observed crack cocaine residue, and had 

the defendant submit to chemical tests. Subsequently, the defendant’s urinalysis 

tested positive for cocaine and marijuana, and his stomach pump yielded pill 

fragments. In the case sub judice, however, I find no testimony about drug residue in 

appellant’s mouth, no drug test results and no gastric lavage results. 

 {¶44} In State v. Price, 2019-Ohio-1642, 135 N.E.3d 1093, the defendant 

observed police and ingested a small baggie of drugs. Police observed the drugs in 

the defendant’s mouth and paramedics observed and removed a “pinkish-tan mixture 

with saliva.” In the case at bar, however, officers did not recover any evidence at the 

scene or at the hospital. 

 {¶45} I believe that the case at bar is more similar to State v. Caute, 8th Dist. 

Cuyahoga No. 92169, 2009-Ohio-5222. As Caute approached the passenger side of a 

detective’s car with something small in his hand, the detective held out a $20 bill. As 

Caute leaned into the window, police surrounded him. Caute then “tossed something 

on the ground behind him, and put his hands in the air.” Caute at ¶ 4. Although 
Pickaway App. No. 19CA15 29 

police searched the surrounding area, they did not recover any drugs. With respect to 

his tampering with evidence conviction, the court held: 

[W]e find that the state did not present sufficient evidence to show 

that defendant tampered with evidence in violation of R.C. 2921.12. 

There was no evidence that anyone saw any type of drugs that day, 

and no drugs were recovered from the scene. Testimony that 

defendant had an unidentified object in his hand that he tossed to 

the ground is not sufficient to show that he altered, destroyed, 

concealed, or removed any ‘thing, with purpose to impair its value 

or availability as evidence in [a] proceeding or investigation * * *.’ 

In other words, in looking at the evidence in a light most favorable 

to the state, nothing in the record links the unidentified object that 

defendant threw to the ground to the state’s accusation that he

offered to sell [the defective] crack cocaine. * * * 

We do not mean to say that the recovery of the evidence in question 

is necessary to sustain a tampering with evidence conviction. 

Clearly, if the evidence is destroyed, recovery is impossible. 

However, the state must show, inter alia, that the evidence existed, 

and it must identify that evidence as the same “thing” that the

defendant tampered with. See, e.g. State v. Williams, Cuyahoga 

App. No. 83574, 2004-Ohio-4476 (holding that sufficient evidence 

was presented to prove the elements of tampering with evidence 

when officers testified that they ‘observed Williams put something 

in his mouth before he started running’; ‘they observed Williams 

chewing and trying to swallow something,’ after they caught him; 

‘when they were able to get Williams’ mouth open, they observed

crack cocaine particles’ inside; and drug fragments were recovered 

from Williams’ stomach after it was pumped with gastric lavage.) 

Caute at ¶ 74-74. 

Thus, even if evidence is lost or destroyed, the prosecution must show that the 

evidence existed, and that this evidence is the same “thing” that the appellant 

tampered with. 
Pickaway App. No. 19CA15 30 

 {¶46} Based upon the foregoing reasons, I believe that the evidence adduced at 

trial is insufficient to establish appellant’s guilt beyond a reasonable doubt. While I 

do not doubt that, in all likelihood, appellant ingested something, and that something 

was, in all likelihood, a drug of some sort, I do not believe that the evidence adduced 

at trial satisfied the beyond a reasonable doubt standard. This standard is stringent, 

sets a very high bar for proof of a criminal conviction, and applies to each and every 

element of a crime. In fact, the beyond a reasonable doubt standard is the highest 

standard of proof known to the law. 

 {¶47} At this juncture, I also wish to emphasize that I am certainly sympathetic 

with the law enforcement officers involved in this matter. During the booking 

process, the officers had to physically subdue the recalcitrant appellant. Obviously, 

appellant’s actions unnecessarily endangered the officers’ safety and this is 

unacceptable. Quite possibly, other criminal statutes may have applied to this 

uncooperative and combative defendant (see, e.g. R.C. 2921.31). Nevertheless, I 

believe the evidence adduced at trial does not sufficiently support appellant’s 

conviction for tampering with evidence. 
Pickaway App. No. 19CA15 31 

JUDGMENT ENTRY 

 It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to 

Appellant. 

 The Court finds there were reasonable grounds for this appeal.

 It is ordered that a special mandate issue out of this Court directing the 

Pickaway County Common Pleas Court 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. 

 Wilkin, J., Concurs in Judgment and Opinion. 

 Abele, J., Dissents with Opinion. 

 

 For the Court, 

 __________________________________ 

 Jason P. Smith 

Presiding 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.
Pickaway App. No. 19CA15 32