[Cite as State v. Barker, 2019-Ohio-4891.]

 

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 No. 108182 

 v. : 

 

JAMES BARKER, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: REVERSED, VACATED, AND REMANDED 

RELEASED AND JOURNALIZED: November 27, 2019 

 

Criminal Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CR-17-624121-A 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Daniel A. Cleary, for appellee. 

Mark A. Stanton, Cuyahoga County Public Defender, and 

Francis Cavallo, Assistant Public Defender, for appellant. 
MARY J. BOYLE, P.J.: 

Defendant-appellant, James Barker, appeals his conviction. He 

raises three assignments of error for our review: 

1. There was insufficient evidence produced at trial to support a finding 

of guilt. 

2. The guilty verdict in this case was against the manifest weight of the 

evidence. 

3. The trial court committed plain error by instructing the jury on the 

definition of “official proceeding” where no evidence of one existed in 

the record. 

Finding merit to his first assignment of error, we reverse, remand, 

and vacate Barker’s conviction for tampering with evidence. 

I. Procedural History and Factual Background 

On December 18, 2017, the Cuyahoga County Grand Jury indicted 

Barker for one count of rape in violation of R.C. 2907.02(A)(1)(c), a felony of the 

first degree; four counts of rape in violation of R.C. 2907.02(A)(2), felonies of the 

first degree; three counts of kidnapping in violation of R.C. 2905.01(A)(4), felonies 

of the first degree; and one count of tampering with evidence in violation of R.C. 

2921.12(A)(1), a felony of the third degree. One of the kidnapping counts carried a 

sexual motivation specification.1

Barker pleaded not guilty, and the case proceeded to a jury trial in 

August 2018. The following evidence was presented. 

 1 The indictment did not identify the evidence that Barker allegedly tampered with, 

but a review of the record shows that the state argued it was a mattress that Barker threw 

out. 
N.C., the alleged victim, and her four-year-old child traveled from Las 

Vegas to Cleveland in December 2017 with a friend, intending to stay in Cleveland. 

When she arrived at the Greyhound station in downtown Cleveland on the night of 

December 3, however, the friend and the friend’s boyfriend left N.C. there. N.C. also 

testified that she arrived in Cleveland on December 1 and that she actually stayed 

with her friend, but her friend kicked her out on December 3. N.C. called 211, the 

homeless hotline, and was told where to go for assistance. 

On her way to a shelter, N.C. met Barker at a bus stop near the 

Greyhound Station, and he offered N.C. and her child a place to stay that night. N.C. 

agreed, and she said that while at Barker’s apartment, located on Hough Avenue in 

Cleveland, he gave them iced tea and toys and allowed them to clean up. N.C. stated 

that after putting her child to sleep in a separate room, she smoked marijuana with 

Barker. She testified that she then fell asleep with her child, but woke up in a 

different room with Barker having sex with her. N.C. said she did not give Barker 

permission to have sex with her and could not call 911 because her phone died. N.C. 

stated that after Barker finished having sex with her, he made her take a bath. 

The next morning on December 4, N.C. testified that Barker took her 

and her child to a food pantry. They later returned to his apartment where they 

again smoked marijuana and had sex multiple times. N.C. stated that she never 

consented to having sex. 

The next day, on December 5, N.C. said Barker took her to the social 

security office in Cleveland, but it was closed, and that he then took her to the welfare 
office. N.C. agreed that the welfare office was a county building and that there were 

police officers present, but she said she did not tell anyone about what was 

happening to her because Barker was standing nearby while she filled out an 

application. She stated she tried to make eye contact with the welfare employee and 

have him read her lips, but that she did not actually tell the employee about Barker. 

She said they later returned to his apartment, smoked marijuana, and Barker began 

“insinuating oral sex.” She said that she did not remember what happened next, but 

that they had sex two more times that night. She stated during that night, she 

“started to get like, you know, this is just too much,” and she “gave [Barker] the 

indication and let him know that [she did not] want to do this[.]” According to N.C., 

Barker apologized and said that he did not “mean to be a brute.” 

When asked if she tried to fight him off, N.C. testified, “I would push 

him, you know. Tell him you’re hurting me, I’m tired, you know. I didn’t want to 

say specifically, you know, anything that would have him choke me or, you know 

what I’m saying, he was a little bigger than me.” She testified that that night, 

however, she told Barker that the sexual encounters were hurting her and that she 

was uncomfortable. N.C.’s testimony was not clear on when she told Barker about 

being hurt and uncomfortable, specifically, before, during, or after the sexual 

encounters had taken place that night. 

On December 6, N.C. was able to turn on her phone and call 211 to 

find a shelter. The phone call, which was admitted into evidence, lasted 

approximately 15 minutes and took place outside of Barker’s apartment. During the 
phone call, N.C. said she was not comfortable where she was staying, which she said 

was “just [with] a friend.” 

Despite being able to make phone calls, N.C. stated that she did not 

call 911 or tell the 211 employee about Barker’s actions because she was afraid he 

would overhear her. 

N.C. said that during that morning, Barker threw out his mattress 

which was where most of the sexual encounters had occurred. She said she “had no 

idea” why he threw the mattress away, but stated that he “probably” threw it away 

because the night before, she “started to get like, you know, this is just too much and 

I need to be able to leave.” 

N.C., who was 35 years old, testified that that despite being afraid of 

Barker, who was 62 years old, he never threatened her. 

N.C. testified that on December 6, Barker drove her to Frontline 

Services2 to obtain assistance and find a shelter. She said she did not tell him that 

she wanted to go to Frontline so she could leave and live somewhere else, but instead 

told him that she wanted to get some food and “hygienic stuff.” She said, “I didn’t 

let [Barker] know anything.” 

At Frontline, N.C. met with two employees, Kashonda Murphy and 

Anderson Pope, outside of Barker’s presence. N.C. testified that she told Murphy 

that “the man that brought [her] in * * * [kept] having sex with her and [she did not] 

 2 Frontline Services is a nonprofit organization that provides support services to 

homeless individuals as far as housing, shelter, health services, and crisis stabilization. 
want to have sex with him.” N.C. never explicitly told the employees that Barker 

“raped” her. 

Murphy testified that N.C. told her that she had to “exchange sex to 

stay” with Barker and that “she felt very uncomfortable doing that.” Murphy 

testified that although N.C. appeared scared, N.C. never told her that Barker raped 

her. 

Anderson met with N.C. after Murphy because he had more 

experience dealing with “difficult cases.” Anderson met with Barker in the lobby and 

went back to Barker’s apartment with Barker to retrieve N.C.’s belongings. He said 

he went with Barker because N.C. said she was scared, wanted her belongings, and 

did not “want to continue to keep kissing on him in order to stay there in the home.” 

Anderson said Barker was “very cooperative” and offered no resistance. 

After meeting with Anderson, N.C. said she met with police officers 

and went to the hospital to have a rape kit performed. She said she never offered to 

have sex with Barker to stay at his apartment and that she never consented to the 

sexual encounters. 

The next day, on December 7, Barker returned to Frontline and spoke 

to Anderson about assistance in finding a new bed because his bed was broken. 

Anderson gave Barker a referral. 

On the night of December 7, police officers went to Barker’s home 

after receiving the case report. According to officers, they told him why they were 
there and Barker cooperated. They said that there was not a mattress in the 

apartment. They arrested him and transported him to jail. 

The state rested, and Barker moved for an acquittal pursuant to 

Crim.R. 29, which the trial court denied. 

Barker did not present any witnesses or evidence in his defense, and 

he renewed his motion for an acquittal, which the trial court again denied. 

On August 13, 2018, the jury found Barker guilty of tampering with 

evidence, could not reach a verdict as to one of the rape counts (Count 6), and found 

Barker not guilty of the remaining counts. The trial court declared a mistrial as to 

Count 6, and the state subsequently moved to dismiss that count, which the trial 

court granted. 

On August 30, 2018, the trial court sentenced Barker to prison for one 

year and advised him that he was subject to a discretionary three-year term of 

postrelease control. The trial court also credited Barker for 265 days of jail-time 

credit. 

It is from this judgment that Barker now appeals. 

II. Law and Analysis 

In his first assignment of error, Barker argues that his conviction for 

tampering with evidence was not supported by sufficient evidence. 

Crim.R. 29(A) provides for an acquittal “if the evidence is insufficient 

to sustain a conviction of such offense or offenses.” A sufficiency challenge 

essentially argues that the evidence presented was inadequate to support the jury 
verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 

541 (1997). “‘The relevant question is whether, after viewing the evidence in the light 

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

essential elements of the crime beyond a reasonable doubt.’” State v. Getsy, 84 Ohio 

St.3d 180, 193, 702 N.E.2d 866 (1998), quoting Jackson v. Virginia, 443 U.S. 307, 

99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “[A] conviction based on legally insufficient 

evidence constitutes a denial of due process.” Thompkins at 386, citing Tibbs v. 

Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). When reviewing a 

sufficiency of the evidence claim, we review the evidence in a light most favorable to 

the prosecution. State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996). 

Tampering with evidence has three elements: “(1) the knowledge of 

an official proceeding or investigation in progress or likely to be instituted, (2) the 

alteration, destruction, concealment, or removal of the potential evidence, (3) the 

purpose of impairing the potential evidence’s availability or value in such 

proceeding or investigation.” State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, 

11 N.E.3d 1175, ¶ 11. Here, Barker argues that there was insufficient evidence that 

he was aware of any legal proceeding or investigation against him, the first element. 

Tampering with evidence under R.C. 2921.12(A)(1) requires a person to 

act with purpose, meaning that the person has a specific intention to 

cause a certain result. See State v. Skorvanek, 182 Ohio App.3d 615, 

2009-Ohio-1709, 914 N.E.2d 418, ¶ 21 (9th Dist.); R.C. 

2901.22(A). When determining whether the defendant acted 

purposely, a defendant's state of mind may be inferred from the 

surrounding circumstances. State v. Rock, 3d Dist. Seneca No. 13-13-

38, 2014-Ohio-1786, ¶ 13, citing Skorvanek at ¶ 21. 
State v. Sharp, 8th Dist. Cuyahoga No. 103445, 2016-Ohio-2634, ¶ 19. 

Regarding a defendant’s knowledge of an ongoing or likely 

proceeding or investigation, “there is [commonly] no direct evidence of a 

defendant’s state of mind so the state must rely on circumstantial evidence to satisfy 

this element of its case. A defendant’s state of mind may be inferred from the totality 

of the circumstances.” State v. Rodano, 2017-Ohio-1034, 86 N.E.3d 1032, ¶ 43 (8th 

Dist.). Circumstantial evidence and direct evidence inherently possess the same 

probative value. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), 

paragraph one of the syllabus. “A conviction can be sustained based on 

circumstantial evidence alone.” State v. Franklin, 62 Ohio St.3d 118, 124, 580 

N.E.2d 1 (1991), citing State v. Nicely, 39 Ohio St.3d 147, 529 N.E.2d 1236 (1988). 

The likelihood of an investigation is measured at the time of the 

alleged act of tampering. State v. Barry, 145 Ohio St.3d 354, 2015-Ohio-5449, 49 

N.E.3d 1248, ¶ 21. “[T]he state must demonstrate that the accused knew of a 

pending official proceeding or investigation or knew that such a proceeding or 

investigation was likely to be instituted at the time of the concealment.” Id. at ¶ 2. 

“Knowledge that a criminal investigation is imminent is based upon 

a reasonable person standard.” Sharp, 8th Dist. Cuyahoga No. 103445, 2016-Ohio2634, at ¶ 18, citing State v. Workman, 2015-Ohio-5049, 52 N.E.3d 286, (3d Dist.). 

The state argues that the testimony presented at trial shows that 

Barker “knew that an investigation was likely forthcoming because he had been 

sexually assaulting the victim on that mattress over a period of days and she was 
about to go to a government building and talk about housing.” It points out that 

Barker threw out the mattress after N.C. told him that the sex was hurting her and 

learning that N.C. wanted to go to Frontline Services. The state also argues that 

whether Barker knew “the extent of the claims that N.C. was going to make is 

immaterial” and that it was “reasonable [for the jury] to believe that a sexual assault 

[was] likely to be reported and [Barker took] steps to thwart the investigation by 

removing” the mattress. 

Barker argues that the testimony shows that he threw out the 

mattress before N.C. ever went to Frontline and later reported an alleged crime to 

police, which means that there was not an investigation or proceeding against him 

at that time. Therefore, he argues, the “only remaining question” is whether he 

“knew or should have known that such a proceeding or investigation was about to 

be or likely to be instituted.” He argues that N.C.’s testimony was insufficient to 

establish that he knew or should have known about such a proceeding or 

investigation because N.C. acted as a “willing partner,” did not accuse him of rape 

or any other crime prior to throwing out his mattress, “deliberately concealed from 

[Barker] her intention to file any sort of complaint[,]” and did not give Barker any 

indication that she was going to report a crime. We agree. 

Upon review of the evidence presented, we find that the state failed to 

provide sufficient evidence that Barker knew or should have known that such a 

proceeding or investigation was about to be or likely to be instituted. N.C. spent 

multiple days and nights with Barker at his apartment, during which time she 
smoked marijuana with him. She also traveled to a food pantry and the welfare 

office with Barker, where she did not tell or indicate to anyone that Barker was 

raping her and then returned to Barker’s apartment after each of those visits. There 

was also testimony that N.C. admitted that she and her child were able to stay with 

Barker in exchange for sex and that she only stopped staying with him because she 

no longer wanted to have sex with Barker. 

Further, and most importantly, N.C. testified that she only told 

Barker that the sexual encounters were hurting her and made her uncomfortable on 

December 5, the last night she and her child stayed with Barker. While she testified 

that the sex hurt her, she did not tell Barker that their prior sexual encounters were 

not consensual, that she was going to report him, or that she wanted to leave his 

apartment and stay elsewhere. Her testimony is not clear if any sexual encounters 

occurred after she told Barker to stop. 

N.C. never told or in any way indicated to Barker or anyone else before 

he threw out his mattress that she planned on speaking with police or reporting him. 

N.C. specifically testified that she did not “let [Barker] know anything” before going 

to Frontline Services, including the fact that she wanted to leave and live somewhere 

else. When Barker took N.C. to Frontline, which was after he had already thrown 

out the mattress, N.C. did not tell either Murphy or Pope that Barker raped her. In 

fact, Anderson said that he would have called the police had he thought that was the 

case. N.C. did not indicate to anyone that Barker was raping her until she met with 

police and after Barker had already thrown the mattress out. 
While the timing of Barker throwing out his mattress the next 

morning may be odd, there was testimony indicating that the bed was broken and 

that Barker actually returned to Frontline himself to find a new bed the day after 

N.C. left. We find that the timing alone, which occurred after N.C. told Barker only 

that the sex hurt and made her uncomfortable and in no way indicated that she 

would report Barker for a crime, is not sufficient to show that he knew an 

investigation or proceeding was likely. 

In sum, there was insufficient evidence to show that Barker knew or 

should have known that a proceeding or investigation was likely at the time he threw 

out his mattress. Accordingly, we sustain Barker’s first assignment of error. Our 

disposition of his first assignment of error renders his second and third assignments 

of error moot. 

Judgment reversed and remanded for the trial court to vacate 

Barker’s conviction for tampering with evidence. 

It is ordered that appellant recover from appellee costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

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

common pleas court to carry this judgment into execution. The defendant’s 

conviction having been reversed and vacated, any bail pending is terminated. 
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

 

MARY J. BOYLE, PRESIDING JUDGE 

KATHLEEN ANN KEOUGH, J., and 

RAYMOND C. HEADEN, J., CONCUR