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Date: 03-11-2019
Case Style:
STATE OF OHIO v. CURTIS CAMPBELL
Case Number: 18CA0005-M
Judge: Julie A. Schafer
Court: COURT OF APPEALS NINTH JUDICIAL DISTRICT
Plaintiff's Attorney: S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant Prosecuting Attorney
Defendant's Attorney: CHRISTINA MADRIGUERA, Assistant State Public Defender, for
Description:
On April 10, 2017, Ohio State Highway Patrol Trooper Joshua Grimm, while on
duty, received a call from dispatch regarding a concerned citizen’s report of a dark green Saturn
“driving recklessly all over the roadway.” In response, Trooper Grimm reported to the area
indicated by the caller. Trooper Grimm watched traffic until he observed the vehicle described
by the caller pass by, hit the brakes, and make a marked lanes violation. Deciding that the
marked lanes violation constituted independent probable cause to initiate a traffic stop, Trooper
Grimm pulled into traffic following the vehicle and activated his overhead lights.
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{¶3} The vehicle was extremely slow to pull over after Trooper Grimm activated his
overhead lights, but eventually started to slow down. As Trooper Grimm looked down to find
the siren button he saw, out of the corner of his eye, an object come from the passenger side of
the vehicle. The vehicle then pulled over on to the right berm. Trooper Grimm approached the
vehicle and made contact with the driver while another officer on scene, Trooper Bissonnette,
approached the passenger side of the vehicle and made contact with the passenger later identified
as Mr. Campbell. Upon discovering that the driver did not have proper identification or a valid
driver’s license, Trooper Grimm had the driver exit the vehicle, performed a pat-down for
weapons, and then placed him temporarily in the rear of the patrol car.
{¶4} Trooper Grimm then spoke with Trooper Bissonnette regarding Mr. Campbell.
Based on Mr. Campbell’s strange behavior—slurred speech, talking fast, hard to understand—
and the fact that he had not been wearing a seatbelt, Trooper Bissonnette decided to investigate
further. Standing next to the open passenger door, Trooper Grimm noticed a pen tube or straw
with white residue on it under Mr. Campbell’s feet, which he immediately assumed to be some
sort of drug paraphernalia. Trooper Grimm also observed residue of a white powder substance
on Mr. Campbell’s nostril, the side of his face, and on his shirt. At that point, the officers
detained Mr. Campbell and confiscated the pen tube.
{¶5} Trooper Grimm then returned to speak with the driver, informed him of the pen
tube with residue they had discovered at Mr. Campbell’s feet, and asked if there was anything
else in the vehicle that the officers should know about. The driver admitted that there was a
syringe in the driver side door pocket, but claimed that it was not his, rather, it belonged to a
friend. Officers found the syringe, not in the door pocket, but in the center console of the vehicle
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between the driver and passenger seats. Upon further questioning, the officers determined that
the driver was not impaired.
{¶6} Trooper Grimm then reviewed the video of the initial traffic stop and clearly
observed something coming from the passenger side of the vehicle. He relayed this information
to Trooper Bissonnette. Trooper Bissonnette then searched the location where the object
appeared to have been thrown out. He located and recovered two baggies containing a white
powder and white rock substance. A field test of these substances at the scene confirmed that
both baggies tested positive for cocaine.
{¶7} The Medina County Grand Jury indicted Mr. Campbell for one count of
possession of cocaine in violation of R.C. 2925.11(A)(C)(4)(b), a felony of the fourth degree,
and one count of tampering with evidence in violation of R.C. 2921.12(A)(1), a felony of the
third degree. The matter proceeded to a jury trial and the jury returned verdicts finding Mr.
Campbell guilty on both counts of the indictment. The trial court entered a judgment of
conviction and sentenced Mr. Campbell.1 Mr. Campbell now timely appeals from his conviction
for tampering with evidence, and raises two assignments of error for our review.
II.
Assignment of Error I
Mr. Campbell’s conviction for tampering with evidence under R.C. 2921.12(A)(1) is not supported by sufficient evidence. * * *[.]
{¶8} In his first assignment of error, Mr. Campbell argues that his conviction for
tampering with evidence was not supported by sufficient evidence. A challenge to the
sufficiency of a criminal conviction presents a question of law, which we review de novo. State
1 An issue, not directly relevant to this appeal, regarding the sentencing and judgment entry is addressed herein.
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v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In carrying out this review, our “function * * * is
to examine the evidence admitted at trial to determine whether such evidence, if believed, would
convince the average mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks,
61 Ohio St.3d 259 (1991), paragraph two of the syllabus. After such an examination and taking
the evidence in the light most favorable to the prosecution, we must decide whether “any rational
trier of fact could have found the essential elements of the crime proven beyond a reasonable
doubt.” Id.
{¶9} Mr. Campbell was convicted of tampering with evidence in violation of R.C.
2921.12(A)(1), which provides that “[n]o 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 * * *[.]” Thus, the three elements of
this offense are:
(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.
{¶10} Mr. Campbell argues that “because the State has not shown that Mr. Campbell
was under investigation for a drug offense at the time he allegedly discarded the drugs from the
car, he cannot, as a matter of law, be convicted of tampering with evidence.” Mr. Campbell
concedes that, at the time Trooper Grimm saw the objects come from the passenger side of the
vehicle, an investigation for a marked lane change violation had been initiated. However, Mr.
Campbell claims that, in order for the State’s evidence that he threw the baggies of cocaine out
of the vehicle to support the charge of tampering with evidence, “an investigation into
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[Campbell]’s drug activity would have had to have been the reason, or one of the reasons, for the
stop.”
{¶11} Mr. Campbell asserts that the State needed to prove that an investigation into his
drug activity was already underway, when the act of tampering occurred. This argument
misconstrues the law insofar as it fails to recognize that Mr. Campbell’s knowledge of a likely
investigation is the relevant factor, not Trooper Grimm’s basis for initiating the traffic stop. “[A]
conviction for tampering with evidence pursuant to R.C. 2921.12(A)(1) requires proof that the
defendant intended to impair the value or availability of evidence that related to an existing or
likely official investigation or proceeding.” (Emphasis added.) Straley, 139 Ohio St.3d 339 at ¶
19. Furthermore, the likelihood of an investigation “is measured at the time of the act of alleged
tampering[,]” not at the time an officer initiates the a stop, as Campbell contends. Id. Therefore,
the State had the burden “to prove beyond a reasonable doubt that at the time [Campbell
concealed the cocaine], [he] knew that an investigation into [his drug possession] was likely to
be instituted.” State v. Barry, 145 Ohio St.3d 354, 2015-Ohio-5449, ¶ 22.
{¶12} There is no dispute as to the fact that Trooper Grimm did not initiate the traffic
stop specifically to investigate Mr. Campbell. However, notwithstanding Mr. Campbell’s
contention, the State was not required to prove that an investigation into drug possession was in
progress at the time of the act of tampering. See State v. Cabrera, 9th Dist. Lorain No.
13CA010434, 2014-Ohio-3372, ¶ 17 (Holding that, despite being arrested on an unrelated
charge, a defendant’s knowledge that illegal drugs in his possession are likely to be discovered
and investigated, together with his actions in hiding the drugs, evidence his intention to impair
the value or availability of evidence related to that likely investigation). It is sufficient to show
that, when Mr. Campbell threw the drugs from the vehicle, he knew an investigation related to
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the evidence he discarded, was about to be or likely to be instituted. See State v. Martin, 151
Ohio St.3d 470, 2017-Ohio-7556, ¶ 119, citing R.C. 2921.12(A).
{¶13} Regarding the issue of the likelihood of an investigation, Mr. Campbell’s
argument is limited to the lone conclusory statement in his brief that “at the time the traffic stop
was initiated there is nothing in this record to establish that the passenger, Mr. Campbell, was
under investigation or likely to be investigated for any crime.” However, Trooper Grimm
testified that he observed something coming from the passenger side of the vehicle after he
activated the overhead lights and initiated the traffic stop. According to Trooper Grimm, once
officers approached the vehicle they observed Mr. Campbell exhibiting signs of impaired
behavior—slurred speech, talking fast, hard to understand—which prompted further
investigation. Trooper Grimm testified that he observed drug paraphernalia in the vehicle, in the
form of a pen tube with white residue under Mr. Campbell’s feet, and residue of a white powder
substance on Mr. Campbell’s nostril, the side of his face, and on his shirt. At this point Trooper
Grimm reviewed the video footage, Trooper Bissonnette retrieved the baggies Mr. Campbell
discarded, and they confirmed that Mr. Campbell had thrown the baggies containing cocaine
from the vehicle after he became aware that a traffic stop was underway.
{¶14} Based on these circumstances, a jury could have reasonably concluded that Mr.
Campbell knew an investigation into his drug activities was likely to occur, and that Mr.
Campbell threw the baggies from the vehicle in an effort to impair the value or availability of
that evidence in a likely investigation. Straley at ¶ 19. Viewing the evidence presented at trial in
a light most favorable to the State, we conclude the evidence was sufficient to permit the jury to
find Mr. Campbell guilty of tampering with evidence. Accordingly, his first assignment of error
is overruled.
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Assignment of Error II
Mr. Campbell’s conviction for tampering with evidence under R.C. 2921.12(A)(1) is against the manifest weight of the evidence. * * *[.]
{¶15} In his second assignment of error, Mr. Campbell argues that the jury lost its way
when it found him guilty of tampering with evidence. When considering an argument that a
criminal conviction is against the manifest weight standard, this Court is required to
review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Courts are cautioned to only reverse a
conviction on manifest weight grounds “in exceptional cases,” State v. Carson, 9th Dist. Summit
No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340, where the evidence “weighs heavily
against the conviction,” Thompkins at 387.
{¶16} Mr. Campbell asserts that “at the time the traffic stop was initiated there is
nothing in the record to establish that the passenger, Mr. Campbell, was under investigation or
was likely to be investigated.” Without any citation to the record, Mr. Campbell offers only a
brief summary of his sufficiency argument, claiming a lack of evidence in the record to support
his tampering charge. However, Mr. Campbell has not articulated an argument regarding the
weight of the evidence and has failed to support his contentions with respect to this assignment
of error as required by App.R. 16(A)(7). “This court will not create or develop a manifest weight
argument on Mr. [Campbell]’s behalf.” State v. Jackson, 9th Dist. Summit No. 28691, 2018
Ohio-1285, ¶ 47.
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{¶17} We conclude that Mr. Campbell has failed to demonstrate that his conviction for
tampering with evidence is against the manifest weight of the evidence. Mr. Campbell’s second
assignment of error is overruled.
III.
{¶18} We affirm the judgment of the Medina County Court of Common Pleas
convicting Mr. Campbell of tampering with evidence. However, upon review of the record, this
Court has identified inconsistencies between the trial court’s sentencing and judgment entry of
December 26, 2017, the certificate of judgment, the indictment, and the jury’s verdict. Count
one of the indictment charged Mr. Campbell with possession of drugs in violation of R.C.
2925.11(A)(C)(4)(b), a felony of the fourth degree. Initially, the caption of the indictment
incorrectly listed the subsection as R.C. 2925.11(A)(C)(4)(a)2, though the body of the indictment
stated the correct section and the document consistently states that the charge is a felony of the
fourth degree. The caption was later corrected upon the State’s motion, and the trial court’s
August 29, 2017 journal entry amended the caption of the indictment to R.C.
2925.11(A)(C)(4)(b)
{¶19} With respect to count one, the jury found Mr. Campbell guilty of possession of
drugs and further found that he possessed an amount of cocaine that equaled or exceeded 5
grams, which constitutes a fourth degree felony violation of R.C. 2925.11(A)(C)(4)(b).
However, the trial court’s October 31, 2017 journal entry stated that the jury found Mr. Campbell
guilty of R.C. 2925.11(A)(C)(4)(a), rather than subsection (b). The December 26, 2017
sentencing and judgment entry again included the error, stating that Mr. Campbell was convicted
2 The caption indicated that the charge was for a felony of the fourth degree, which is consistent with R.C. 2925.11(A)(C)(4)(b). R.C. 2925.11(A)(C)(4)(a), however, is a felony of the fifth degree.
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of possession of drugs in violation of R.C. 2925.11(A)(C)(4)(a) as a felony of the fourth degree.
Furthermore, the certified copy of judgment and sentence issued by the Medina Clerk of Courts
does state the correct subsection, indicating that Mr. Campbell was found guilty of R.C.
2925.11(A)(C)(4)(b) as a felony of the fourth degree. However, the certified copy contains
another error, in that it incorrectly states that Mr. Campbell pled guilty to charges in the
indictment when, in fact, he pled not guilty and his guilt was determined by the jury.
Outcome: Mr. Campbell’s assignments of error are overruled. The judgment of the Medina
County Common Pleas Court is affirmed and remanded for the trial court to correct the abovementioned typographical errors and prepare a nunc pro tunc sentencing entry to properly reflect the record.
Plaintiff's Experts:
Defendant's Experts:
Comments: