A woman who concealed heroin in her body could not be convicted of tampering with evidence unless the state proved that she knew that an investigation by authorities was ongoing or would likely be instituted, the Ohio Supreme Court ruled today.

In a 7-0 decision authored by Justice Terrence O’Donnell, the Supreme Court of Ohio reversed Chelsey Barry’s tampering with evidence conviction for concealing 56 grams of heroin within a body cavity. Justice O’Donnell wrote that to prove she was guilty of tampering with evidence, prosecutors needed to prove beyond a reasonable doubt that the accused knew an official proceeding or investigation was in progress or likely to be commenced at the time the evidence was concealed. The state cannot simply infer that because Barry knew that concealing evidence was an “unmistakable crime,” but rather it must also prove that she knew a criminal investigation was ongoing or likely to follow.

Barry Traveled With Drugs
In February 2013, Barry and three friends met up in Middletown, where one of the men with her gave her a condom filled with heroin. She concealed it in her body with the promise she would be paid in drugs for helping them transport it to Huntington, West Virginia. An Ohio State Highway Patrol trooper observed the four’s car driving erratically as it traveled through Scioto County, and he stopped them. After smelling marijuana, the trooper searched the vehicle for drugs and questioned Barry about possessing any drugs. She initially denied it, but after the trooper told her he could get a warrant for a body cavity search, she admitted possession and produced the drug-filled condom in the presence of a female police officer.

A jury convicted her of drug trafficking, drug possession, conspiracy, and tampering with evidence. The trial court merged all but the tampering charge as allied offenses and sentenced her to six years in prison. The court also imposed a three-year consecutive sentence for tampering with evidence, for a total nine-year sentence. Barry appealed the tampering conviction claiming the jury was misled by a jury instruction that stated by her knowing that drug possession and trafficking were unmistakable crimes when she concealed the heroin, she had “constructive knowledge” that she would be investigated. Because she could be perceived as knowing she would be investigated, she could be convicted of tampering. While the Fourth District Court of Appeals affirmed her conviction, that court also certified that its decision conflicted with the Second District Court of Appeals 2012 State v. Cavalier decision. In that case, the appeals court rejected a similar tampering with evidence conviction. The Supreme Court accepted Barry’s appeal and agreed to resolve the conflict between the appellate courts.

In seeking to overturn her conviction, Barry argued that for her to be convicted of tampering, Ohio law requires more than “constructive knowledge,” but rather “actual knowledge” of an ongoing or likely investigation. Justice O’Donnell explained that constructive knowledge is what a person using reasonable care and diligence should know about a circumstance, and that the law will attribute that knowledge to that person. He noted Ohio law requires a higher standard than the knowledge a reasonably diligent person should, but does not, have. “Rather, the statute requires the accused to be aware that conduct will probably cause a certain result or will probably be of a certain nature or that circumstances probably exist,” he wrote.

Court Upholds Higher Proof Standard
Justice O’Donnell wrote Ohio has never approved the “unmistakable crime” jury instruction where merely establishing that the accused committed an obvious crime could be used to prove the accused knew at the time the evidence was concealed that an investigation was likely to be instituted later. He wrote that prosecutors failed to prove Barry was aware an investigation into her drug trafficking and possession was likely at the time she concealed evidence of those crimes. To use the unmistakable crime theory, the state would have to show “that Barry was aware that an investigation into her drug trafficking and possession was likely at the time she concealed evidence of those crimes.” Justice O’Donnell further noted that “nothing in the record shows that she thought it likely that she would be stopped by law enforcement” when driving to West Virginia. Justice O’Donnell concluded that proof she knew she was committing a crime “is not tantamount to knowledge that an investigation into her activities was likely to be instituted.”

The Court vacated the tampering with evidence conviction and remanded the case to the trial court for further proceedings.

2014-1984 and 2014-2064. State v. Barry, Slip Opinion No. 2015-Ohio-5449.

View oral argument video of this case.

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