“Unmistakable crime” not enough to convict of evidence tampering, rules Ohio Supreme Court

The Ohio Supreme Court ruled last week in an unanimous decision that in order to convict a defendant of tampering with evidence, a court must find that the person had actual knowledge of an on-going or likely criminal investigation. The fact that a defendant hides evidence of an "unmistakable crime" does not make him guilty of evidence-tampering without actual knowledge that there is, or is likely to be, an investigation of that crime.

The case involved Chelsey Barry, who was convicted of drug trafficking, possession, conspiracy and tampering with evidence. Ms. Barry had agreed to conceal a bag of heroin in her vagina and transport it and three men to West Virginia. She was pulled over in Ohio and ultimately admitted to concealing the drugs and gave them to an officer. At trial, Ms. Barry admitted that she concealed the heroin so police could not find it, and that she knew it was a crime to possess it and to conceal it.

The trial court found her guilty on all counts and sentenced her to six years in prison, plus three additional years for tampering with evidence. The court found that because she had committed an "unmistakable crime," she had constructive knowledge that there would be an investigation of that crime, and her act of hiding the heroin amounted to tampering with evidence.

Barry appealed the tampering conviction, arguing that the jury instruction about constructive knowledge of an investigation for an "unmistakable crime," was not appropriate. The 4th District affirmed the trial court, finding that this was a correct statement of the law, but certifying that this conflicted with an opinion out of the 2nd District Court of Appeals. The Ohio Supreme Court found that a defendant has to have actual knowledge of an investigation that is on-going or likely to be found guilty of tampering, and that the constructive knowledge standard was not appropriate. The court emphasized that a defendant has a right not to incriminate herself, and silence about a charge cannot be used to find her guilty of that charge.

For more information about this case, see this article from Court News Ohio, and the online docket, available here and here. The Cincinnati Enquirer also provided coverage, here.

Image via Flickr user Joe Gratz.