STATE OF OHIO v. DARREN SIMPSON

{¶2} On September 27, 2017, appellant was driving through Austintown

Township with his eight-year-old son in the car. Austintown Police Officer David Kriebel

noticed appellant did not stop at a stop sign, so he executed a traffic stop of appellant’s

vehicle. Appellant was not able to provide Officer Kriebel with a driver’s license,

registration, or proof of insurance. Consequently, Officer Kriebel ran a status check with

appellant’s social security number. The officer learned that appellant had a suspended

driver’s license and an active warrant for a seatbelt violation from Youngstown Municipal

Court.

{¶3} Officer Kriebel called for backup. He had appellant step out of his vehicle.

The officer conducted a pat-down search for weapons on appellant’s person. He did not

find any weapons. With appellant’s permission, the officer also searched appellant’s car

and found nothing. Officer Kriebel allowed appellant to call his son’s mother to come and

pick up their son. After she picked up their son and appellant’s car, Officer Kriebel placed

appellant under arrest. He contacted the Youngstown Police Department because

appellant’s warrant was from Youngstown. Officer Kriebel made arrangements to

transport appellant to a meeting place in Youngstown so that he could hand appellant

over to the Youngstown officers.

{¶4} Officer Kriebel handcuffed appellant’s hands in front of him and placed him

in the backseat of his cruiser. During the short drive to meet the Youngstown officers,

Officer Kriebel noticed appellant bending over and moving his head down towards his

legs several times. Appellant told the officer he was wiping sweat from his brow. Officer

Kriebel instructed appellant to stop.

{¶5} When they arrived at the meeting place, Officer Kriebel got appellant out

of the back of his cruiser and turned him over to the Youngstown Police Officers who

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were waiting for them. Once appellant was out of the car, Officer Kriebel looked into his

back seat and noticed a baggie on the floor where appellant’s feet had been. The baggie

appeared to have drugs in it. Appellant denied that it belonged to him. But because

Officer Kriebel had thoroughly cleaned and inspected his cruiser at the beginning of his

shift, and because no one else had been in the backseat of his cruiser, the officer believed

the drugs belonged to appellant. Therefore, Officer Kriebel re-assumed custody of

appellant and transported him to the Austintown Police Department for booking on drugrelated charges.

{¶6} A Mahoning County Grand Jury subsequently indicted appellant on one

count of tampering with evidence, a third-degree felony in violation of R.C.

2921.12(A)(1)(B); one count of possession of heroin in an amount that equals or exceeds

five grams but is less than ten grams, a third-degree felony in violation of R.C.

2925.11(A)(C)(6)(c); and one count of aggravated possession of drugs for possessing

Fentanyl in an amount that does not equal or exceed the bulk amount, a fifth-degree

felony in violation of R.C. 2925.11(A)(C)(1)(a).

{¶7} The matter proceeded to a jury trial where the jury heard from the arresting

officer, appellant, the lieutenant who submitted the drugs for testing, and the chemist who

tested the drugs. The jury found appellant guilty of all charges.

{¶8} The trial court subsequently sentenced appellant to a prison term of two

years for tampering with evidence; one year for possession of heroin, to be served

consecutively to the tampering with evidence sentence; and one year for aggravated

possession, to be served concurrently with the other two sentences. Thus, appellant’s

total sentence is three years.

{¶9} Appellant filed a timely notice of appeal and now raises a single

assignment of error.

{¶10} Appellant’s assignment of error states:

APPELLANT’S CONVICTION WAS NOT SUPPORTED BY THE

MANIFEST WEIGHT OF THE EVIDENCE; NOR WAS THEIR [sic.]

SUFFICIENT EVIDENCE TO CONVICT THE APPELLANT OF THE

CRIMES IN WHICH HE WAS CHARGED WITH.

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{¶11} Appellant asserts that his convictions were not supported by the

sufficiency of evidence or the manifest weight of the evidence.

{¶12} As to his drug possession convictions, appellant points out that Officer

Kriebel searched him before placing him in the patrol car. The search did not reveal any

drugs. Additionally, he notes that the officer searched his car and did not locate any

drugs. Appellant argues the state failed to present any evidence that he was ever in

possession of the drugs that were found in the back of the police cruiser. He notes that

he was handcuffed and in the presence of Officer Kriebel the entire time. Thus, appellant

claims there was no evidence connecting him to the drugs located in the police cruiser.

{¶13} As to his tampering with evidence conviction, appellant first argues that

Officer Kriebel did not observe appellant remove anything from his person and place it on

the floor of the cruiser and did not observe appellant attempt to conceal anything.

{¶14} Appellant goes on to argue that regardless of his actions and independent

of the drug possession charges, there is no evidence to support his tampering with

evidence conviction. He points out that he was initially taken into custody on a seatbelt

warrant. And prior to that he was stopped for running a stop sign and then detained for

driving with a suspended license. Appellant argues that in order to support a conviction

for tampering with evidence, the law requires that he be under investigation or would likely

be under investigation for a crime directly involving the evidence in which he allegedly

tampered with. But he was only under investigation and in custody for traffic-related

offenses. Appellant argues an investigation into possession of drugs did not start until

Officer Kriebel found the drugs in his backseat. Up until that time, appellant asserts, there

was no indication that he was under investigation for any drug-related crime. On this

basis, he asserts we must overturn his tampering with evidence conviction.

{¶15} We must examine each of appellant’s convictions to determine if they are

supported by the sufficiency of the evidence. We must then move on to determine if his

convictions are against the manifest weight of the evidence.

{¶16} Sufficiency of the evidence is the legal standard applied to determine

whether the case may go to the jury or whether the evidence is legally sufficient as a

matter of law to support the verdict. State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d

668 (1997). In essence, sufficiency is a test of adequacy. State v. Thompkins, 78 Ohio

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St.3d 380, 386, 678 N.E.2d 541 (1997). Whether the evidence is legally sufficient to

sustain a verdict is a question of law. Id. In reviewing the record for sufficiency, the

relevant inquiry is whether, after viewing the evidence in a light most favorable to the

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

proven beyond a reasonable doubt. Smith, 80 Ohio St.3d at 113.

{¶17} We must examine the state’s evidence to determine whether appellant’s

convictions were supported by sufficient evidence.

{¶18} Officer Kriebel testified first. Officer Kriebel stated that per department

policy, at the beginning of his shift he inspects the inside and the outside of the police

cruiser he will be using. (Tr. 234-235). On September 27, 2017, at the beginning of his

shift, Officer Kriebel also had time to clean the inside and outside of his cruiser, including

vacuuming and wiping down the floorboards. (Tr. 236). While he was cleaning, Officer

Kriebel searched the interior of the cruiser. (Tr. 237). He did not find anything during his

search and cleaning. (Tr. 237).

{¶19} Officer Kriebel also described the interior of the cruiser. He stated that

there is one partition that separates the front seat from the back seat. (Tr. 236). That

partition goes down to the floorboard so that nothing can roll on the floor from the front to

the back or vice versa. (Tr. 236-237). There is a second partition in the back from the

ceiling to the floor that separates the rear driver-side seat from the rear passenger-side

seat. (Tr. 237).

{¶20} After cleaning his cruiser on the day in question, Officer Kriebel left the

station. He encountered appellant and observed appellant failure to stop at a stop sign.

(Tr. 239). He subsequently stopped appellant’s car. (Tr. 239). Officer Kriebel asked

appellant for his driver’s license, registration, and proof of insurance. (Tr. 241). Appellant

was unable to provide these items but he did provide the officer with his social security

number. (Tr. 241). Based on the social security number, Officer Kriebel learned that

appellant had a suspended driver’s license and an outstanding warrant from Youngstown

Municipal Court for a seatbelt violation. (Tr. 242). The officer then called for backup. (Tr.

242).

{¶21} Once his backup arrived, Officer Kriebel had appellant step out of the car.

(Tr. 243). He testified that he patted appellant down in a search for weapons. (Tr. 243).

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He did not locate any weapons. (Tr. 243-244). The officer then allowed appellant to call

his son’s mother so she could pick up their son who had been in the car with appellant.

(Tr. 245).

{¶22} After the mother picked up the child and the car, the officer handcuffed

appellant while he was seated in the backseat of the police cruiser. (Tr. 248). Officer

Kriebel stated that he handcuffed appellant’s hands in front of him. (Tr. 248). He admitted

this was a mistake and he should have handcuffed appellant’s hands behind his back.

(Tr. 250). Officer Kriebel stated that he had made arrangements to meet Youngstown

police officers at a gas station to transfer appellant to them so that they could handle the

issue of his outstanding warrant. (Tr. 251-252). The Youngstown officers would then

take appellant to the county jail for processing. (Tr. 252).

{¶23} While Officer Kriebel was driving appellant, appellant was seated behind

the front passenger seat. (Tr. 253). The officer testified that through the rearview mirror

he noticed appellant placing his head down to his lap as if he was wiping sweat on his

shorts. (Tr. 254). Officer Kriebel stated that he told appellant several times not to do that

but appellant continued. (Tr. 254). At that point, the officer testified, he suspected that

something was going on. (Tr. 254).

{¶24} When the Youngstown officers arrived, appellant was able to get out of the

back of Officer Kriebel’s cruiser. (Tr. 256). Officer Kriebel testified that once appellant

got out of his cruiser, he looked down to where appellant had been seated. (Tr. 257). He

then noticed a plastic bag containing some rocks on the floorboard where appellant’s feet

had just been. (Tr. 257). The rocks in the bag contained heroin and Fentanyl. (Tr. 258).

{¶25} Officer Kriebel testified that appellant repeatedly denied that the drugs

belonged to him. (Tr. 258). Officer Kriebel then placed appellant under arrest for drug

possession and transported him to the Austintown Police Department for processing. (Tr.

260). During a phone call appellant made from the police station, Officer Kriebel heard

appellant tell someone, “I didn’t admit shit, so they gonna lose this case rather [sic] he

clean his car or not.” (Tr. 262). Officer Kriebel testified that no one else had been in the

backseat of his cruiser that day. (Tr. 262).

{¶26} Whitney Voss is a forensic scientist in the drug chemistry unit at the Bureau

of Criminal Identification and Investigation (BCI). She tested the suspected drugs in this

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case. Voss’s testing revealed that the rocks contained 7.31 grams of heroin, Fentanyl,

and cocaine. (Tr. 295).

{¶27} Austintown Police Lieutenant Jeffrey Solic is assigned to the Mahoning

County Drug Task Force. Lt. Solic field tested the drugs in this case before sending them

to BCI. He stated that the field tests were positive for heroin and Fentanyl. (Tr. 305-306).

Lt. Solic also testified that he has been involved in several thousand drug investigations

over the course of his career. (Tr. 312). Based on his experience, he testified that it has

become quite common for drug suspects to hide their drugs in their genitals, in their body

cavities, in their shoes and socks, and in layers of clothing. (Tr. 313-314). He stated that

the drugs are not generally found during a pat-down but are found during a full body scan

when the suspects are brought to jail. (Tr. 314).

{¶28} Lt. Solic also testified regarding Austintown police procedures. He stated

that it is police policy that the officer check his or her cruiser at the beginning of a shift

and before and after anyone is in the back seat. (Tr. 315).

{¶29} The jury convicted appellant of possession of heroin in an amount that

equals or exceeds five grams but is less than ten grams. And it convicted him of

aggravated possession of drugs for possessing Fentanyl in an amount that does not equal

or exceed the bulk amount. Pursuant to R.C. 2925.01(K), “‘[p]ossess’ or ‘possession’

means having control over a thing or substance, but may not be inferred solely from mere

access to the thing or substance through ownership or occupation of the premises upon

which the thing or substance is found.”

{¶30} A defendant’s conviction for drug possession can be based upon

circumstantial evidence of possession. State v. DeSarro, 7th Dist. Columbiana No. 13

CO 39, 2015-Ohio-5470, ¶ 41. When drugs are readily usable and found in very close

proximity to a defendant these facts may constitute circumstantial evidence and support

a conclusion that the defendant had constructive possession of the drugs. State v.

Barker, 7th Dist. Jefferson No. 05-JE-21, 2006-Ohio-1472, ¶ 78, quoting State v. Kobi,

122 Ohio App.3d 160, 174, 701 N.E.2d 420 (1997).

{¶31} Viewing the evidence in the light most favorable to the state, as we are

required to do when examining whether sufficient evidence supports a conviction, there

were no drugs present in the back seat of Officer Kriebel’s cruiser before appellant got in.

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Officer Kriebel testified that he personally cleaned and inspected his entire cruiser,

including the back seat area at the beginning of his shift. He also testified that appellant

was the first person to sit in his cruiser after his shift started. Officer Kriebel additionally

testified that there was no way for something to roll from the front of the cruiser to the

back. Next, Officer Kriebel testified that while he was transporting appellant, appellant

repeatedly brought his head down toward his lap. And when appellant got out of Officer

Kriebel’s cruiser, the officer found the bag of drugs on the floor where appellant’s feet had

been. Taking all of this circumstantial evidence together supports a conclusion that

appellant had possession of the drugs. Moreover, Voss testified that drugs contained

7.31 grams of heroin, Fentanyl, and cocaine. Thus, there is sufficient evidence to support

both of appellant’s drug possession convictions.

{¶32} The jury also convicted appellant of tampering with evidence in violation of

R.C. 2921.12(A)(1), which provides: “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.”

{¶33} Appellant argues that he was only under investigation for traffic-related

offenses. Because there was no drug investigation in progress, he contends he could not

have altered, destroyed, or concealed the drugs with the purpose to impair its availability

in a drug investigation.

{¶34} Appellant relies on the case of State v. Straley, 139 Ohio St.3d 339, 2014-

Ohio-2129, 11 N.E.2d 1176. In Straley, officers stopped Straley when they noticed erratic

driving. Id. at ¶ 2. The officers then noticed that Straley exhibited slurred speech and she

could not produce her driver’s license. Id. Straley consented to a search of her vehicle,

in which the officers did not find any contraband. Id. The officers decided not to pursue

any charges but would not allow Straley to drive home. Id. at ¶ 3. They decided they

would drive Straley home. Id. While they were obtaining permission to drive her home,

Straley indicated that she had to urinate. Id. She moved away from the officers, pulled

down her pants, and urinated. Id. Afterwards, one of the officers walked back to the area

where Straley had been and saw a clear cellophane baggie covered with urine. Id. at ¶

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4. Inside the baggie there appeared to be crack cocaine. Id. The officers then placed

Straley under arrest. Id.

{¶35} Straley entered no contest pleas to drug charges and was convicted at a

jury trial of tampering with evidence. Id. at ¶ 6. On appeal, the Second District reversed

the conviction for tampering with evidence finding that nothing in the record supported a

finding that Straley acted with purpose to impair the value of evidence of any ongoing

investigation, i.e., of driving under the influence of alcohol or driving without a license, or

of any likely investigation, i.e., of public urination. Id. at ¶ 7. The Second District then

certified a conflict with the Ninth District on the question of “[w]hether a tampering

conviction requires proof that the defendant impaired evidence in an investigation by

tampering with evidence related to the investigation.” Id. at ¶ 8.

{¶36} The Ohio Supreme Court answered the certified question in the

affirmative. It held that “[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.” Id. at

the syllabus. The Court further stated that the evidence tampered with must have some

relevance to an ongoing or likely investigation in order to support a tampering with

evidence charge. Id. at ¶16.

{¶37} Straley is distinguishable, however, because at the time Straley discarded

the drugs on her person, she was not under arrest and was not going to be transported

to jail. The officers were going to give her a ride home. Thus, there was no indication

that the drugs would have been discovered or that an official investigation was likely.

{¶38} Another case is more instructive to the specific facts of this case. In State

v. Cabrera, 9th Dist. Lorain No. 13CA010434, 2014-Ohio-3372, an officer performed a

random check on the license plate. Upon discovering that the plates had expired and

were registered to a different car, the officer initiated a traffic stop. Id. at ¶ 2. The driver,

Cabrera, admitted to the officer that his driver’s license was suspended. Id. at ¶ 3. The

officer had Cabrera exit the car and the officer handcuffed him and placed him in the back

seat of his cruiser. Id. After transporting Cabrera to jail, the officer searched the back

seat of his cruiser and discovered five hydrocodone pills underneath the seat cushion

near where Cabrera had been sitting. Id. at ¶ 4. Cabrera was subsequently convicted of

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tampering with evidence, possession of a controlled substance, and driving under

suspension. Id.

{¶39} On appeal, Cabrera argued his conviction for tampering was against the

manifest weight of the evidence. He asserted he was handcuffed, with his hands behind

his back, and was searched prior to being placed in the cruiser. Id. at ¶ 16. The Ninth

District noted, however, that the officer testified that, in his pat down of Cabrera, he was

searching for weapons, not pills. Id. The officer further testified that he had searched

underneath the back seat at the start of his shift, the pills were found immediately after

transporting Cabrera to jail, and Cabrera was the only person that had been in the back

of the cruiser during the time in between the two searches. Id.

{¶40} Given these facts, the Ninth District found:

While Cabrera was initially arrested for driving under suspension, he knew

that he was going to jail when he was handcuffed and placed in the back

seat of Officer Gelenius' cruiser. Any illegal drugs possessed by Cabrera at

the time he was admitted into the jail would likely have been discovered and

investigated. Therefore, at the point that Cabrera was handcuffed and

placed in the back of the police cruiser, the hydrocodone pills on his person

were evidence of a “likely official investigation” and his actions of hiding

them underneath the back seat was “intended to impair the value or

availability of evidence related” to that likely investigation. See Straley, Slip

Opinion No. 2014-Ohio-2139, at syllabus.

Id. at ¶ 17.

{¶41} The facts of Cabrera are nearly identical to the facts of this case. Once

appellant was placed under arrest for the outstanding traffic-related warrant, he knew he

was on his way to jail. Any illegal drugs on his person at that time would likely be

discovered once he was processed at the jail and an investigation would then ensue.

Thus, at the point appellant was placed under arrest and placed in the back of Officer

Kriebel’s cruiser, the baggie of drugs was evidence of a likely official investigation.

Furthermore, appellant’s action of removing them from his person and discarding them in

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the back of the cruiser was intended to impair the value or availability of the drug evidence

related to the likely investigation.

{¶42} Thus, in this case the evidence was sufficient to support appellant’s

tampering with evidence conviction.

{¶43} In determining whether a verdict is against the manifest weight of the

evidence, an appellate court must review the entire record, weigh the evidence and all

reasonable inferences and determine whether, in resolving conflicts in the evidence, the

jury clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered. Thompkins, 78 Ohio St.3d at 387.

“Weight of the evidence concerns ‘the inclination of the greater amount of credible

evidence, offered in a trial, to support one side of the issue rather than the other.’” Id.

(Emphasis sic.) In making its determination, a reviewing court is not required to view the

evidence in a light most favorable to the prosecution but may consider and weigh all of

the evidence produced at trial. Id. at 390.

{¶44} Yet granting a new trial is only appropriate in extraordinary cases where

the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio App.3d 172,

175, 485 N.E.2d 717 (1st Dist.1983). This is because determinations of witness

credibility, conflicting testimony, and evidence weight are primarily for the trier of the facts

who sits in the best position to judge the weight of the evidence and the witnesses'

credibility by observing their gestures, voice inflections, and demeanor. State v. Rouse,

7th Dist. Belmont No. 04-BE-53, 2005-Ohio-6328, ¶ 49, citing State v. Hill, 75 Ohio St.3d

195, 205, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212

(1967), paragraph one of the syllabus. Thus, “[w]hen there exist two fairly reasonable

views of the evidence or two conflicting versions of events, neither of which is

unbelievable, it is not our province to choose which one we believe.” State v. Dyke, 7th

Dist. Mahoning No. 99-CA-149, 2002-Ohio1152.

{¶45} In order to reverse a jury verdict as against the manifest weight of the

evidence, all three appellate judges must concur. Thompkins, 78 Ohio St.3d at 389.

{¶46} In addition to the state’s evidence set out above, in conducting a manifest

weight analysis we must also consider the evidence appellant put on in his defense and

the state’s rebuttal evidence.

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{¶47} Appellant testified on his own behalf. Appellant testified that when Officer

Kriebel stopped him, he was not able to provide a driver’s license or proof of insurance

but did provide the officer with his social security number. (Tr. 327-328). Appellant stated

that he believed he might be arrested for driving without a license. (Tr. 328). He stated

that the officer allowed him to call his child’s mother to pick the child up. (Tr. 332). After

his child was picked up, Officer Kriebel told appellant he was taking him into custody for

a seatbelt warrant. (Tr. 333). He stated the officer conducted a pat-down search of him

where the officer grabbed his pockets and patted his waistband. (Tr. 335). The officer

then placed appellant in the cruiser and handcuffed his hand in front of him. (Tr. 335).

{¶48} Appellant testified that Officer Kriebel then began driving to the gas station

where they were to meet the Youngstown police. (Tr. 336). He stated that it was very

hot and he was sweating. (Tr. 336). Appellant testified that he used his knee to wipe the

sweat off of him. (Tr. 337). When they arrived at the gas station, Officer Kriebel got

appellant out of the cruiser. (Tr. 338). Appellant testified that the officer then said that he

found something and held a baggie up. (Tr. 338). Appellant immediately told the officer

it was not his. (Tr. 339). He stated he asked Officer Kriebel to check his camera. (Tr.

339). Officer Kriebel then transported appellant to the Austintown police department and

he repeatedly told the officer that the baggie of drugs was not his. (Tr. 341).

{¶49} Appellant stated that at the time of his arrest, he was wearing loose fitting

basketball shorts, no socks, “house shoes,” and a tight tee-shirt. (Tr. 343-344, 352).

{¶50} On rebuttal, the state called Mahoning County Sheriff Deputy Mary Jane

Greene. Deputy Greene worked in intake at the county jail on the day appellant was

brought in. She testified that during intake, the deputies record everything an arrestee is

wearing and all property they come into the jail with. (Tr. 371). Referring to the jail’s

records, Deputy Greene was able to testify that when appellant was brought to the jail on

September 27, 2017, he was wearing a hat, a tee-shirt, pants, underwear, athletic shoes,

and a pair of socks. (Tr. 372-373).

{¶51} Here the jury was faced with deciding whether to believe appellant’s

testimony that the drugs were not his or the circumstantial evidence supported by Officer

Kriebel’s testimony. The jury clearly believed Officer Kriebel and found appellant to be

not credible. We should not second-guess the jury's credibility determinations as the jury

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was in the best position to observe the witnesses' gestures, voice inflections, and

demeanor. Rouse, 2005-Ohio-6328, ¶ 49, citing Hill, 75 Ohio St.3d at 205.

{¶52} Moreover, even though Officer Kriebel searched appellant before placing

him in the cruiser, this was simply a pat-down of appellant’s clothing to locate any potential

weapons. The officer did not look in appellant’s shoes or socks and did not reach

underneath appellant’s clothing. Appellant easily could have had a small baggie of drugs

concealed somewhere on his person that was not readily discoverable during a pat-down

search.

{¶53} Based on the above, appellant’s convictions are not against the manifest

weight of the evidence.

{¶54} Accordingly, appellant’s sole assignment of error is without merit and is

overruled.

For the reasons stated above, the trial court’s judgment is hereby affirmed.