[Cite as State v. Henry, 2024-Ohio-849.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STATE OF OHIO,

Plaintiff-Appellee,

vs.

SELINDA HENRY,

Defendant-Appellant.

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APPEAL NO. C-230287

TRIAL NO. B-2200597

O P I N I O N.

Criminal Appeal From: Hamilton County Court of Common Pleas

 

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: March 8, 2024

Melissa A. Powers, Hamilton County Prosecuting Attorney, and John D. Hill, Jr.,

Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Michael J. Trapp, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS

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BOCK, Presiding Judge.

{¶1} A gunfight in defendant-appellant Selinda Henry’s home resulted in 

Cornelius Thomas’s serious injuries and Eugene Cunningham’s death. Henry accepted 

police officers’ invitation to answer questions at the police station, allowed police

detectives to access and search her phone, and voluntarily made statements both 

before and after the detectives notified her of her rights under Miranda v. Arizona, 

384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 

{¶2} The state charged Henry with aggravated murder, murder, aggravated 

robbery, and felonious assault, all with gun specifications, and one count of tampering 

with evidence. After the trial court denied her motion to suppress evidence, a jury 

acquitted her of all counts, except the tampering-with-evidence count. 

{¶3} Henry appeals the trial court’s denial of her motion to suppress the 

statements she made to the police detectives, arguing that the statements she provided 

before the detectives had informed her of her rights under Miranda were made during 

a custodial interrogation. Henry argues that the statements she made after the 

detectives notified her of her Miranda rights should have been suppressed because 

they provided the Miranda warnings hours into a lengthy interrogation and Henry 

lacked a meaningful choice to exercise her Miranda rights. Finally, Henry asserts that 

her conviction was based on insufficient evidence. 

{¶4} Because the Miranda warnings informed Henry of her rights against 

self-incrimination, Henry voluntarily offered incriminating statements after police 

informed her of her rights, and her conviction was supported by sufficient evidence, 

we overrule Henry’s assignments of error and affirm the trial court’s judgment. 
OHIO FIRST DISTRICT COURT OF APPEALS

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I. Facts and Procedure

A. Police investigated a shooting

{¶5} During autumn and early winter 2021, Henry communicated with 

Thomas, a former paramour. In December 2021, Thomas visited Henry’s townhouse. 

Thomas testified that when he attempted to leave Henry’s home, a man wearing a ski 

mask, sunglasses, and a hood—later identified as Cunningham—hit him on the head 

with a gun, pushed him backwards into Henry’s living room, pointed a gun in 

Thomas’s face, ordered Thomas to give him everything he had, and shot Thomas in 

the foot. 

{¶6} Thomas pulled a gun from his waistband and fired back at Cunningham. 

The two men engaged in a gunfight. Cunningham shot Thomas several additional 

times in the leg and stomach. After Cunningham ran from the townhouse, Thomas left 

the townhouse and went to the hospital. 

{¶7} Henry went to a neighbor’s house, who called 911. When Cincinnati 

police officers arrived at the scene, they found Cunningham lying between two vehicles 

with a handgun next to him and a trail of blood leading back to Henry’s townhouse. 

Cunningham died on the way to the hospital. 

{¶8} Henry agreed to give a statement to the police. Police transported 

Henry, who was not handcuffed, to the Criminal Investigation Section (“CIS”) in a 

police cruiser. 

B. The interview

{¶9} When Henry agreed to provide a statement to police, they thought that

Henry was a victim of the crime and believed that Cunningham had shot at both her 
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and Thomas. Officers placed Henry in a “soft” interview room, which had a window 

and remained unlocked. 

1. Pre-Miranda statements

{¶10} Homicide detectives Eric Karaguleff and Jeff Smallwood interviewed 

Henry, but they did not arrive to interview Henry until about three hours after an 

officer brought her to CIS. The officer who transported Henry offered her 

refreshments, ensured she was comfortable, apologized for the wait, and casually 

chatted with Henry about topics such as the weather, the Bengals, the neighborhood, 

and more. 

{¶11} Before the detectives arrived, Henry opened the door to the interview 

room and walked around several times. Although employees use a badge to enter the 

building, anyone could open the doors to exit from the building. Smallwood testified 

that soft interview rooms were typically used to interview witnesses and victims, rather 

than suspects, and Henry was free to leave.

{¶12} Though it is not clear when, at some point before Henry arrived at CIS, 

Henry had given her phone to police officers. As Detectives Smallwood and Karaguleff 

collected Henry’s demographic information, she asked if she could get her phone back. 

The officers responded, “We’ll talk about that in just a minute,” and continued asking 

Henry questions about her employment and her children before asking her to tell them 

about what she had witnessed.

{¶13} Henry stated that other than Thomas, no one had been at her home from 

the previous evening until the shooting. She stated that Thomas was leaving her house 

and when he opened the door, a “dude” came in and shot at her and Thomas. Later, 

she told the detectives that she immediately recognized Cunningham when he entered 
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her house. She said she ran upstairs and when she came downstairs, she saw that 

Thomas had been shot and was leaving and was getting into a car. She said that 

Thomas accused her of setting him up. And she told police that she had a prior

relationship with Cunningham, which had ended the previous July, and she had not 

been in contact with him for a few months. 

{¶14} About 25 minutes into the interview, Smallwood asked Henry if they 

could access her phone. When Henry asked if she could have her phone back and how 

long she had to stay there, Smallwood responded that they would get it to her as soon 

as possible, she was free to go home, and they would bring her phone to her when they 

were finished with it. Later, Karaguleff asked who they should contact to return her 

phone to her if she was not home when they returned it. Henry provided her phone’s 

passcode to the detectives. Henry denied erasing anything from her phone or 

communicating with Cunningham about Thomas being at her house. 

{¶15} Henry again asked how long she would have to be there and if she could 

have her keys. Smallwood told her not long and they were bringing down her keys. 

Just after that, the detectives left the room and then Henry left the room briefly. 

{¶16} After about five minutes, the detectives returned to the room. They gave 

her a “consent to search” form for her phone and told her that someone was on the 

way to process it. Karaguleff told her that she need not wait for her phone and she 

could leave if she wanted. When Henry asked if she had to sign the consent form, the 

detectives told her that she did not have to sign it. 

{¶17} It appears that during the five minutes that the detectives had left the 

room, they learned that investigators had found a cell phone inside Henry’s purse at 
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her townhouse. When the detectives asked about the phone in the purse, Henry denied 

knowing anything about it.

{¶18} The detectives offered to let her leave to have a cigarette and then check 

to see if they had finished with her phone, but Henry did not take them up on their 

offer. Later, Henry asked Smallwood for a lighter. He asked her if she wanted to go 

downstairs to smoke. 

{¶19} Karaguleff left the room. When he reentered the room, he showed 

Henry a picture of the phone that investigators had found in the purse at Henry’s 

house—Henry said she did not recognize it.

{¶20} After Karaguleff left the room and reentered it, the detectives’ questions 

became more confrontational. They asked Henry about several recent phone calls to 

and from Henry’s phone and Cunningham’s phone, including an hour-and-33-minute 

phone call from Henry to Cunningham that spanned from shortly after Thomas 

arrived to just before the shootout happened. Henry denied remembering calling 

Cunningham and said that she did not mean to call him. 

{¶21} The detectives questioned Henry for approximately 22 minutes after 

they learned about these phone calls. Henry repeatedly denied purposely calling 

Cunningham or setting up Thomas. The detectives told Henry that they were taking a 

break. She asked for some matches—they replied that they would try to find some and 

told her they wanted her to stay in the room. 

{¶22} But when Henry asked to leave the room to use the restroom, she was 

permitted to leave the room. When the detectives returned to the room, Smallwood 

read Henry her Miranda rights and Henry indicated that she understood her rights. 
OHIO FIRST DISTRICT COURT OF APPEALS

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2. Post-Miranda Statements

{¶23} The detectives told Henry that they called Cunningham’s cell phone and 

the phone that investigators had found inside of Henry’s purse rang. Henry said she 

had not touched the phone. The detectives began questioning Henry about how the 

phone ended up in her purse. Henry denied touching Cunningham’s phone and said 

she did not know how the phone got into her purse. 

{¶24} Eventually, however, Henry admitted to picking Cunningham’s phone 

up off of her couch and putting it in her purse after denying ever touching it. She said 

she did not know that the phone belonged to Cunningham. Later, she said that she 

should not have touched the phone and should have left the phone on the couch. 

{¶25} Under the theory that Henry had lured Thomas to her home so that 

Cunningham could rob him, the state charged Henry with aggravated murder, murder, 

aggravated robbery, felonious assault, and one count of tampering with evidence. 

3. Trial court denied Henry’s motion to suppress

{¶26} Henry moved to suppress the statements that she had made to the police 

detectives at CIS. After a hearing, the trial court denied Henry’s motion, finding that 

Henry was questioned pre-Miranda warnings for about two-and-a half hours and was 

free to move around. It noted that Henry had opened the door to the interview room 

and walked out multiple times and officers offered to allow her to leave the building to 

smoke several times. The trial court noted that police are not required to administer 

Miranda warnings to everyone they question, Miranda warnings are not required 

merely because a person is questioned at a police station, and the requirement to 

provide warnings under Miranda is triggered only by custodial interrogations. 
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{¶27} Noting that Henry “voluntarily” left the room again just before 

Smallwood informed her of her Miranda rights, the court concluded that “a 

reasonable person would believe that this was not a custodial setting,” and therefore, 

denied the motion to suppress both the pre- and post-Miranda statements. 

{¶28} At trial, the jury viewed the video of Detectives Smallwood and 

Karaguleff interviewing Henry in which Henry admitted that she had moved 

Cunningham’s phone from the couch to her purse, after initially lying about it. They 

also heard evidence that Henry had deleted messages and evidence of communications 

between her and Cunningham from her phone. In its closing argument, the state 

argued that the tampering-with-evidence count was based on Henry hiding 

Cunningham’s phone from them.

{¶29} The jury returned a guilty verdict only on the tampering-with-evidence

charge. The trial court imposed on Henry a three-year sentence. This appeal followed. 

II. Law and Analysis

A. The trial court did not err by failing to suppress Henry’s statements

{¶30} Henry’s first assignment of error asserts that the trial court erred by 

failing to suppress her statements made to police. 

{¶31} Appellate review of a motion to suppress presents a mixed question of 

law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 787 N.E.2d 71, 

¶ 8. We accept the trial court’s factual findings if they are supported by competent and 

credible evidence, but we review the court’s legal conclusions de novo. Id.

{¶32} The Fifth Amendment to the United States Constitution and Article I, 

Section 10 of the Ohio Constitution protect criminal suspects and defendants against 

self-incrimination. City of Cleveland v. Oles, 152 Ohio St.3d 1, 2017-Ohio-5834, 92 
OHIO FIRST DISTRICT COURT OF APPEALS

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N.E.3d 810, ¶ 8. 

{¶33} In Miranda v. Arizona, the United States Supreme Court held that the 

state is prohibited from using statements that a suspect makes to police “stemming 

from custodial interrogation of the defendant unless it demonstrates the use of 

procedural safeguards effective to secure the privilege against self-incrimination.” 

Miranda, 384 U.S. at 444, 86 S.Ct. 1602, 16 L.Ed.2d 694. The Court defined custodial 

interrogation as “questioning initiated by law enforcement officers after a person has 

been taken into custody or otherwise deprived of his freedom of action in any 

significant way.” Id. Before questioning a suspect in a custodial interrogation, the state 

must warn the suspect “that he has the right to remain silent, that anything he says 

can be used against him in a court of law, that he has the right to the presence of an 

attorney, and that if he cannot afford an attorney one will be appointed for him prior 

to any questioning if he so desires.” Id. at 479. 

1. Pre-Miranda statements

{¶34} Henry first argues that the trial court should have suppressed her preMiranda statements because a reasonable person would have believed that she was in 

custody during the entire interview. 

{¶35} The court’s factual finding that Henry was not in a custodial

interrogation before the detectives notified her of her rights under Miranda was

supported by competent, credible evidence. The detectives did not deny Henry’s 

requests to leave the room before they provided the Miranda warnings. Henry 

voluntarily provided the police access to her phone. Detectives told her that she was 

free to leave the building and they would bring her phone to her after they finished 
OHIO FIRST DISTRICT COURT OF APPEALS

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downloading the information. The trial court did not err by failing to suppress Henry’s 

pre-Miranda statements. 

2. Henry voluntarily waived her Miranda rights

{¶36} A “defendant may waive effectuation of [Miranda] rights, provided the 

waiver is made voluntarily, knowingly and intelligently.” State v. Biros, 78 Ohio St.3d 

426, 439-440, 678 N.E.2d 891 (1997). 

{¶37} Henry’s waiver of her Miranda rights against self-incrimination was 

valid if the totality of the circumstances show both 1.) her choice to provide statements 

was an uncoerced choice, and 2.) she understood the rights that she was waiving. State 

v. Tibbetts, 92 Ohio St.3d 146, 154, 749 N.E.2d 226 (2001). To determine whether a 

waiver was valid, courts should consider “ ‘the age, mentality, and prior criminal 

experience of the accused; the length, intensity, and frequency of interrogation; the 

existence of physical deprivation or mistreatment; and the existence of any threat or 

inducement.’ ” State v. Green, 90 Ohio St.3d 352, 366, 738 N.E.2d 1208 (2000), 

quoting State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), paragraph two 

of the syllabus. 

{¶38} Henry argues that her waiver of her rights under Miranda was invalid 

because the detectives had questioned her before providing the Miranda warnings and 

did not inform her that her unwarned statements could not be used against her. She 

asserts that the detectives asked the same questions before and after providing the 

warnings. But the interview video does not bear this out. The only relevant charge is 

tampering with evidence. While Henry told the detectives before the detectives 

provided Miranda warnings that she did not erase anything from her phone, the 

tampering charge was based on Henry attempting to hide Cunningham’s phone from 
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them. She provided no statements to the detectives about doing so until after the 

detectives had read Henry the Miranda warnings. 

{¶39} Citing State v. Farris, 100 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 

985, Henry argues that because she had been up all night, had been drinking, and had 

been subjected to a long wait and lengthy interrogation, her waiver was invalid. In 

Farris, the defendant had been in custody after a traffic stop and he was not free to 

leave. Id. at ¶ 14. He made “virtually identical” statements to police before and after 

an officer provided the Miranda warnings. Id. at ¶ 15.

{¶40} But unlike the defendant in Farris, Henry was not subject to a custodial 

interrogation before the detectives provided Miranda warnings. As discussed above, 

the trial court’s finding that the pre-Miranda discussions did not amount to a 

custodial interrogation was supported by competent, credible evidence. And nothing 

in the interview video suggested that Henry’s waiver of her Miranda rights was 

unknowing or involuntary. 

{¶41} Because Henry was not in custody before detectives provided Miranda

warnings and Henry’s post-Miranda waiver of her right against self-incrimination was 

valid, we overrule her first assignment of error. 

B. The state’s evidence supported Henry’s conviction 

{¶42} In her second assignment of error, Henry argues there was insufficient 

evidence supporting her tampering-with-evidence conviction.

{¶43} A sufficiency-of-the-evidence argument is a legal argument testing 

whether the state presented sufficient evidence to support the verdict. State v. Rainey, 

1st Dist. Hamilton No. C-230055, 2023-Ohio-4666, ¶ 53. We must view the evidence 

in a light most favorable to the state to determine if any rational fact finder could have 
OHIO FIRST DISTRICT COURT OF APPEALS

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found that the state proved each element of the offense beyond a reasonable doubt. Id. 

{¶44} The jury found Henry guilty of tampering with evidence under R.C. 

2921.12(A)(1), which provides, in part:

No person, knowing that an official proceeding or investigation is in 

progress, or is about to be or likely to be instituted, shall * * * [a]lter, 

destroy, conceal, or remove any record, document, or thing, with 

purpose to impair its value or availability as evidence in such proceeding 

or investigation.

{¶45} The state based the tampering-with-evidence charge on Henry’s 

attempt to conceal the phone in her purse. While the detectives were interviewing 

Henry at CIS, police investigators found Cunningham’s phone in Henry’s purse at the 

crime scene. Henry lied to the detectives, telling them that she knew nothing about the 

phone. The state showed that Henry had deleted evidence of communications between 

her and Cunningham from her phone, which showed that she had motive to hide 

Cunningham’s phone. And Henry eventually admitted to finding Cunningham’s phone 

on the couch and moving it to her purse. She provided no explanation, other than 

admitting that she should not have moved the phone. 

{¶46} The state provided sufficient evidence on every element of R.C. 

2921.12(A)(1). First, because there had been a shootout in her townhouse involving the 

phone’s owner, Henry knew that an official investigation was likely to begin. Second, 

Henry concealed Cunningham’s phone—she moved it from plain sight on her couch to 

inside of her purse.

{¶47} Finally, the state provided evidence that Henry’s purpose in moving the 

phone was to impair its value or availability as evidence in the investigation. Henry 
OHIO FIRST DISTRICT COURT OF APPEALS

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knew that Cunningham’s phone would show that she and Cunningham were in 

communication before and during the time that Thomas was at her house and the 

content of some of those communications. That Henry erased evidence of 

communications between her and Cunningham from her own phone would allow a 

reasonable person to conclude that Henry’s attempt to hide Cunningham’s phone was 

for the purpose of impairing its availability as evidence. 

{¶48} The state provided sufficient evidence to support Henry’s tamperingwith-evidence conviction. A reasonable person could conclude that Henry concealed 

the phone for the purpose of impairing its availability as evidence in the investigation 

and proceeding involving the shootout. Because sufficient evidence supported Henry’s 

conviction, we overrule Henry’s second assignment of error.

III. Conclusion

{¶49} For the foregoing reasons, we overrule Henry’s assignments of error and 

affirm the trial court’s judgment. 

Judgment affirmed.

ZAYAS, J., and KINSLEY, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.