[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 Pi ckaway County Common Pleas Cou rt judgment of conviction and sentence. The jury found Brian A. G reeno (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 contendin g that his conviction was against the manifest weight of the evidence and was not sup ported by sufficientPickaway App. No. 19CA15 2 evidence. However, because we find no merit to Appellant’s ass ignment of error, it is overruled. Accordingly, the judgment of the trial court is affirmed.

FACTS {¶2} On December 7, 2018, a Pic kaway County Gra nd Jury returne d an indictment that charged Appellant with one count of tampering w ith evidence in violation of R.C. 2921.12(A)(1) , a third-degree felony. Previo usly, 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 Reev es testified that as officers booked Appellant into the Pickaway County Jail , Circleville Police Officer Lance Canterbury advised Reeves that Appellant “may hav e some type of contraband within his pants. He said he thought he saw him sho ve 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, r emoving 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 i nmate change over into a jail issued uniform. That way it’s harder for them to co nvey 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 plast ic 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, whate ver 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 almos t 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 irat e, a little bit aggressive. By the time I left he was ― it was almost as if he was fading i n 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 m ay have put in his mouth; rather, he only heard crinkling and observed Appellant p ut his hand near his mouth. {¶6} Pickaway County Sheriff’s Department Jail Administrator L ieutenant Gabe Carpenter testified that wh en he was outsid e the cell whil e Appellant changed to a jail uniform, he heard raised voices. Carpenter entered t he room and observed Appellant face away from him, toward the wall. Carpenter testi fied that although Appellant had removed all of his clothing, he had not yet put o n a jail uniform, andPickaway 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 t o the bunk to try to get him secured and under control. {¶7} Once the officers took Appellant to the bunk and position ed him on his side, they continued to order him to spit out the item. Howeve r, 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 t hat 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 n ot compliant, until eventually he swallowed that item. {¶8} Lieutenant Carpenter testified that Appellant became leth argic 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 transport ed to the hospital. Although the trial transcript indicates that officers transport ed 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 hav e 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 utiliz ed 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 App ellant placed the unknown substance into his mouth, but demonstrates Appellant ma king muffled sounds that could indicate something in his mouth, while being held by multiple officers who attempted to extract whatever substance they belie ved he had placed into his mouth. The video does not cont ain footage of Appellant’s d emeanor after the incident. {¶10} On February 7, 2019, the jury found Appellant (1) not gu ilty of possession of drugs, and (2) guilty of tampering with evidence. The trial court sentenced Appellant to serve 36 months in prison. Appellant se ts 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 AnalysisPickaway 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 wa s denied his right to a fair trial, due process of law, and equal protection as a resul t. We begin by considering the appropriate standards of review for both suffic iency-of-the-evidence and manifest-weight-of-the-evidence challenges. Standard of Review {¶12} This Court recently observed that “sufficiency” and “man ifest 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 insuffi cient evidence invokes a due process concern and raises the question whether the evide nce 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 t he 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 vi ewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to thePickaway App. No. 19CA15 7 prosecution, any rational trier of fact could have found all th e 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 defe ndant would support a conviction.” Thompkins, supra , at 390 (Cook, J., concurring). Additionally, when reviewing a sufficiency-of-the-evi dence claim, an appellate cou rt 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 over turn 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 judgm ent of a trial court is sustained by sufficient evidence, that court may never theless 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 thePickaway App. No. 19CA15 8 evidence and all reasonable inferences, and consider the witnes s credibility. See State
v. Dean , 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 151, citi ng Thompkins at 387. A reviewing court must bear in mind, however, that cr edibility 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 t rier of fact sees and he ars 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 agai nst the weight of the evidence, every reasonable intendment must be made in favor of the judgment and the finding of facts. * * * I f the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which i s 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 matte rs for the trier of fact to de termine, as long as aPickaway 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 determinati on of credibility and weight.”). Once a reviewing court finishes its weight of the e vidence examination, the court may reverse the judgment of conviction only if it app ears that the factfinder, when resolving the conflicts in evidence, “ ‘clearly lo st 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 p resents 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 th e evidence. See State v. Eley , 56 Ohio St.2d 169, 383 N.E.2d 132, syllabus (1978), supersede d 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 t hat a judgment is not against the manifest weight of the evidence when “ ‘ “the great er amount of credible evidence” ’ ” supports it). A reviewing court should find a co nviction against the manifest weight of the evidence only in the “ ‘exceptional case in which the evidencePickaway 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 evide nce 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, s hall 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 satisfie d under R.C. 2921.12 in order to establish that the offense of tampering with eviden ce 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 suspecte d the driver of beingPickaway 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 urinat e 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 th e 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 wer e conducting or likely to conduct an investigation into trafficki ng or possession of cocaine when Straley discarded the baggie. The baggie of cocaine did not relate to either an ongoing investiga tion 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 convic tion for tampering with evidence. Straley, supra , at ¶ 19. {¶18} As indicated above, the first element for tampering withevidence requires the State to establish that, at the time of the concea lment, the defendant knew “of an official proceeding or investigation in progress or like ly to be instituted.” State v. Barry , 145 Ohio St.3d 354, 2015-Ohio-5449, 49 N.E.3d 1248, ¶ 2. Fur ther, “[t]he likelihood of an investigation is measured at the time o f 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, n othing 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 Stat e must also establish: (1) that the defendant altered, destroyed, conceale d, or removed the potential evidence; and (2) that the defendant intended to impa ir the value or availability of evidence that related to an existing or likely official inves tigation or proceeding. Straley at syllabus. Thus, “the evidence tampered with must have some relevance to an ongoing or likely investigation” of which the d efendant has knowledge . Straley at ¶ 16. {¶20} After a thorough review, we conclude that the case sub j udice is factually distinguishable from both Straley andBarry . As this Court has recently observed, “[t]he analysis in Straley * * * demonstrates * * * that a court’s inquiry into the evidence supporting a t ampering with evidence convicti on 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 ch arge should be affirmed.Pickaway App. No. 19CA15 13 {¶21} Here, the record before us indicates that law enforcemen t initiated a traffic stop of Appellant after receiving a tip connecting him with drug trafficking activity. While stopped, in addition to being cited for drivin g under suspension and two other driving infractions, Appellant was arrested and charg ed 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 a t the jail that he had observed Appellant stuff something into his pants. However, wh en the arresting officer was called to testify during the trial, he was not in t he 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 ti p, Appellant’s initial stop or search that yielded hypodermic needles was before the j ury. Nevertheless, based upon our careful analysis and comparison of several diffe rent cases involving tampering with evidence convictions, we conclude that the evide nce that was before the jury supports Appellant’s tampering with evidence convictio n. {¶22} In State v. Williams , 8th Dist. Cuyahoga No. 83574, 2004-Ohio-4476, the court addressed an incident that involved a tampering by in gestion charge in which officers believed that they had witnessed a drug transact ion and gave chase.
Id . at ¶ 4. As the officers handcuffed Williams, one officer obs erved him “chewingPickaway 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 hi s stomach pumped. Id. at ¶ 7. A urinalysis tested positive for cocaine and marijuanaand 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 rea sonable factfinder could have found the elements of tampering with evidence provenbeyond 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 testimon y introduced that the defendant was arrested in a parking lot in connection with a dr ug 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 dete ctive 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 m ixture 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 ingest ion was not a factor, this Court concluded that the defendant tampered with e vidence, 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 kno wledge of an impending investigation, or at least knowledge that an investig ation would likely ensue, in view of the obvious, inherent and unmistakable eviden ce of a crime of possessing the controlled substance. The theory to support thi s view is that a person actively engaged in the commission of a drug offense should hav e 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 ta mpering 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 th e 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 th at is in progress, or likely to be instituted, and then concealed or destroyed an obj ect with the purpose toPickaway App. No. 19CA15 16 impair its availability as evidence in that proceeding or inves tigation. See also State
v. Crocker , 4th Dist. Scioto 14CA3640. {¶25} After careful case comparison and consideration of the f oregoing, 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 v iolation; (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 regardin g taking contraband into the jail; and (5) the defendant then threw an item in a ci garette 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 t he State failed to present any evidence that the alleged violation involved drug-r elated offenses. Id. at ¶ 18.Pickaway App. No. 19CA15 17 {¶26} In upholding Bradshaw’s c onviction we noted the State’s argument that the parole violation investigation “did not end at the jail-hou se doors[,]” and “that the officers warned appellant about the consequences of carrying co ntraband 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 havi ng 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 uni form, 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 w as 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 or dered to hand the item over, being ordered to spit the item out, all the while be ing 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 Brads haw 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 ourPickaway 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 firs t element is likewise satisfied in the case sub judice, where Appellant knewhe was going to jail, was warned about bringing contraband into the jail, knew he wou ld 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 (upholdin g a conviction for tampering with evidence where the defendant was put in the “changeout room” while being booked into jail and reached his hand tow ard his rectum in an attempt to further c onceal contraband he a lready had in his rec tum). In Cheeseman , the appellate court “agreed with the State that the defendant c ommitted the tampering offense not before the officers placed him in custody, but inst ead, he committed the tampering offense ‘in the change-out room in the jail “when [he ] put his hand in andPickaway App. No. 19CA15 19 then over his rectal area in order to further conceal the appre hension 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 Ap pellant was observed with something in his hand, which he put into his mouth, and th en 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 re asonably 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 eviden ce for use in an ongoing parole-violation investigation or in a likely investigation int o 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 i nto the jail, had been warned about conveying contraband into the jail, and knew he wo uld be more thoroughly searched, prior to putting the contraband into his m outh 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 wh en a defendant’s attempted concealment ultimately proves unsuccessful, * * * thi s failure ‘has noPickaway 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 tamper ing with evidence that the item he had in his pants, and then in his hand, and then inhis 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 arri ved 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, re covery of the evidence is not necessary to sustain a tampering with evidence convictio n. State v. Caute , 8th Dist. Cuyahoga No. 92169, 2009-Ohio-5222, ¶ 74. {¶31} Appellant contends that no one knows what “thing” he all egedly 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 inf er 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 sou ght to impair the value or the availability of the “thing” as evidence. Therefore, App ellant essentially contends that the jury engaged in impermissible inference stack ing 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 anothe r inference from otherPickaway 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 th e basis of a conviction, is drawn solely from another inference and that inf erence is not supported by any additional facts or inferences drawn from other establis hed 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 specula tive or which raises merely a possibility or conjecture. While reasonable inferences may be drawn from the facts and condition s established, they cannot be drawn from facts or conditions mere ly 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 sta cking). {¶33} “Though widely denounced by both courts and legal commen tators, 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, 1 3CA1, 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 inferenc e 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 c ould 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 a nother inference and which is unsupported by any additional fact or another infe rence 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 again st inference stacking does not apply. The first is when “[a]n inference which is bas ed 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 sec ond is when multiple inference s 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 Reeve s and Lieutenant Carpenter, both of whom were at the jail when Appell ant 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. Carpe nter testified that he did not see any contraband that Appellant may have swallowed . Following the swallowing, however, both officers stated that Appellant’s deme anor changed and he appeared to be under the influence. Carpenter testified that u pon 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 befor e 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 int o the jail irate and aggressive, but after the swallowing incident he became letharg ic 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 hospit al. Thus, there was some circumstantial evidence that was introduced indicating tha t 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.2dPickaway App. No. 19CA15 24 492, paragraph one of the syllabus (1991). As such, it does no t 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 rela ted to Appellant’s status change after ingesting the unknown item. As explained i n 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, contr ary 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 substance s have some effect upon human beings wh en taken * * *.”).Pickaway App. No. 19CA15 25 {¶38} As such, based upon the foregoing reasons, we cannot con clude that Appellant’s conviction for tampering with evidence was against the manifest weight of the evidence or was not supported by sufficient evidence. T hus, we find no merit to Appellant’s sole assignment of error. Accordingly, it is ov erruled 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 s omething, 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 recor d 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 tran script indicates that officers transported appellant to the hospital. However, I fin d no testimony, records or other evidence concerning wha t transpired at the hospital, o r 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 appella nt 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” appella nt allegedly ingested, or if the “thing” that caused the “crinkly” sound was evidence of some value to an investigation. Thus, appellant argues, the jury ha d to first infer that the “thing” that caused the “crinkly” sound was actually evidence o f some value to an investigation, then the jury had to further infer that appellan t 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 gr eat deference to a trier of fact’s determination. Nevertheless, after my review o f the record, I do not believe that the prosecution presented sufficient evidence to p rove that appellant tampered with evidence in violation of R.C. 2921.12. The statu te 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, a ppellant may have ingested, I believe the evidence adduced at trial is insufficie nt to establish beyond a reasonable doubt that appellant tampered with evidence.Pickaway App. No. 19CA15 28 {¶43} The principal opinion cites several tampering with evide nce 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 cr ack cocaine. The officers pried open the defendant’s mouth, observed crack cocai ne residue, and had the defendant submit to chemical tests. Subsequently, the defe ndant’s urinalysis tested positive for cocaine and marijuana, and his stomach pump yielded pill fragments. In the case sub judice, however, I find no testimon y about drug residue in appellant’s mouth, no drug test results and no gastric lavage r esults. {¶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 o bserved the drugs in the defendant’s mouth and paramedics observed and removed a “pi nkish-tan mixture with saliva.” In the case at bar, however, officers did not re cover 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 the n “tossed something on the ground behind him, and put his hands in the air.” Caute at ¶ 4. AlthoughPickaway 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 va lue or availability as evidence in [a] proceeding or investigation * * *.’ In other words, in looking at the evidence in a light most favo rable to the state, nothing in the record links the unidentified obje ct 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 ques tion 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 exi sted, 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 evidenc e was presented to prove the elements of tampering with evidence when officers testified that they ‘observed Williams put someth ing in his mouth before he started running’; ‘they observed William s 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 recove red from Williams’ stomach after it was pumped with gastric lavage. ) Caute at ¶ 74-74. Thus, even if evidence is lost or destroyed, the prosecution mu st show that the evidence existed, and that this evidence is the same “thing” th at the appellant tampered with.Pickaway App. No. 19CA15 30 {¶46} Based upon the foregoing reasons, I believe that the evi dence adduced at trial is insufficient to establish appellant’s guilt beyond a r easonable doubt. While I do not doubt that, in all likelihood, appellant ingested someth ing, 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. Thi s standard is stringent, sets a very high bar for proof of a criminal conviction, and ap plies to each and every element of a crime. In fact, the beyond a reasonable doubt sta ndard is the highest standard of proof known to the law. {¶47} At this juncture, I also wish to emphasize that I am cer tainly sympathetic with the law enforcement officers involved in this matter. Dur ing the booking process, the officers had to physically subdue the recalcitrant appellant. Obviously, appellant’s actions unnecessarily endangered the officers’ safe ty and this is unacceptable. Quite pos sibly, 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 sup port 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 asses sed to Appellant. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court d irecting 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 B Y THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed s ixty 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 entr y, it will terminate at the earlier of the expiration of the sixty-day period, or the failu re 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 Sup reme 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 dism issal. A certified copy of this entry shall constitute the mandate pu rsuant 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. Sm ith Presiding Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a fin al judgment entry and the time period for fur ther appeal commences from the date of filing with the clerk.Pickaway App. No. 19CA15 32