[Cite as State v. Barker,
2019-Ohio-4891.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108182
v. :
JAMES BARKER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED, VACATED, AND REMANDED
RELEASED AND JOURNALIZED: November 27, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-624121-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel A. Cleary, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and
Francis Cavallo, Assistant Public Defender, for appellant.
MARY J. BOYLE, P.J.:
Defendant-appellant, James Barker, appeals his conviction. He
raises three assignments of error for our review:
1. There was insufficient evidence produced at trial to support a finding
of guilt.
2. The guilty verdict in this case was against the manifest weight of the
evidence.
3. The trial court committed plain error by instructing the jury on the
definition of “official proceeding” where no evidence of one existed in
the record.
Finding merit to his first assignment of error, we reverse, remand,
and vacate Barker’s conviction for tampering with evidence.
I. Procedural History and Factual Background
On December 18, 2017, the Cuyahoga County Grand Jury indicted
Barker for one count of rape in violation of R.C. 2907.02(A)(1)(c), a felony of the
first degree; four counts of rape in violation of R.C. 2907.02(A)(2), felonies of the
first degree; three counts of kidnapping in violation of R.C. 2905.01(A)(4), felonies
of the first degree; and one count of tampering with evidence in violation of R.C.
2921.12(A)(1), a felony of the third degree. One of the kidnapping counts carried a
sexual motivation specification.1
Barker pleaded not guilty, and the case proceeded to a jury trial in
August 2018. The following evidence was presented.
1 The indictment did not identify the evidence that Barker allegedly tampered with,
but a review of the record shows that the state argued it was a mattress that Barker threw
out.
N.C., the alleged victim, and her four-year-old child traveled from Las
Vegas to Cleveland in December 2017 with a friend, intending to stay in Cleveland.
When she arrived at the Greyhound station in downtown Cleveland on the night of
December 3, however, the friend and the friend’s boyfriend left N.C. there. N.C. also
testified that she arrived in Cleveland on December 1 and that she actually stayed
with her friend, but her friend kicked her out on December 3. N.C. called 211, the
homeless hotline, and was told where to go for assistance.
On her way to a shelter, N.C. met Barker at a bus stop near the
Greyhound Station, and he offered N.C. and her child a place to stay that night. N.C.
agreed, and she said that while at Barker’s apartment, located on Hough Avenue in
Cleveland, he gave them iced tea and toys and allowed them to clean up. N.C. stated
that after putting her child to sleep in a separate room, she smoked marijuana with
Barker. She testified that she then fell asleep with her child, but woke up in a
different room with Barker having sex with her. N.C. said she did not give Barker
permission to have sex with her and could not call 911 because her phone died. N.C.
stated that after Barker finished having sex with her, he made her take a bath.
The next morning on December 4, N.C. testified that Barker took her
and her child to a food pantry. They later returned to his apartment where they
again smoked marijuana and had sex multiple times. N.C. stated that she never
consented to having sex.
The next day, on December 5, N.C. said Barker took her to the social
security office in Cleveland, but it was closed, and that he then took her to the welfare
office. N.C. agreed that the welfare office was a county building and that there were
police officers present, but she said she did not tell anyone about what was
happening to her because Barker was standing nearby while she filled out an
application. She stated she tried to make eye contact with the welfare employee and
have him read her lips, but that she did not actually tell the employee about Barker.
She said they later returned to his apartment, smoked marijuana, and Barker began
“insinuating oral sex.” She said that she did not remember what happened next, but
that they had sex two more times that night. She stated during that night, she
“started to get like, you know, this is just too much,” and she “gave [Barker] the
indication and let him know that [she did not] want to do this[.]” According to N.C.,
Barker apologized and said that he did not “mean to be a brute.”
When asked if she tried to fight him off, N.C. testified, “I would push
him, you know. Tell him you’re hurting me, I’m tired, you know. I didn’t want to
say specifically, you know, anything that would have him choke me or, you know
what I’m saying, he was a little bigger than me.” She testified that that night,
however, she told Barker that the sexual encounters were hurting her and that she
was uncomfortable. N.C.’s testimony was not clear on when she told Barker about
being hurt and uncomfortable, specifically, before, during, or after the sexual
encounters had taken place that night.
On December 6, N.C. was able to turn on her phone and call 211 to
find a shelter. The phone call, which was admitted into evidence, lasted
approximately 15 minutes and took place outside of Barker’s apartment. During the
phone call, N.C. said she was not comfortable where she was staying, which she said
was “just [with] a friend.”
Despite being able to make phone calls, N.C. stated that she did not
call 911 or tell the 211 employee about Barker’s actions because she was afraid he
would overhear her.
N.C. said that during that morning, Barker threw out his mattress
which was where most of the sexual encounters had occurred. She said she “had no
idea” why he threw the mattress away, but stated that he “probably” threw it away
because the night before, she “started to get like, you know, this is just too much and
I need to be able to leave.”
N.C., who was 35 years old, testified that that despite being afraid of
Barker, who was 62 years old, he never threatened her.
N.C. testified that on December 6, Barker drove her to Frontline
Services2 to obtain assistance and find a shelter. She said she did not tell him that
she wanted to go to Frontline so she could leave and live somewhere else, but instead
told him that she wanted to get some food and “hygienic stuff.” She said, “I didn’t
let [Barker] know anything.”
At Frontline, N.C. met with two employees, Kashonda Murphy and
Anderson Pope, outside of Barker’s presence. N.C. testified that she told Murphy
that “the man that brought [her] in … [kept] having sex with her and [she did not]
2Frontline Services is a nonprofit organization that provides support services to
homeless individuals as far as housing, shelter, health services, and crisis stabilization.
want to have sex with him.” N.C. never explicitly told the employees that Barker
“raped” her.
Murphy testified that N.C. told her that she had to “exchange sex to
stay” with Barker and that “she felt very uncomfortable doing that.” Murphy
testified that although N.C. appeared scared, N.C. never told her that Barker raped
her.
Anderson met with N.C. after Murphy because he had more
experience dealing with “difficult cases.” Anderson met with Barker in the lobby and
went back to Barker’s apartment with Barker to retrieve N.C.’s belongings. He said
he went with Barker because N.C. said she was scared, wanted her belongings, and
did not “want to continue to keep kissing on him in order to stay there in the home.”
Anderson said Barker was “very cooperative” and offered no resistance.
After meeting with Anderson, N.C. said she met with police officers
and went to the hospital to have a rape kit performed. She said she never offered to
have sex with Barker to stay at his apartment and that she never consented to the
sexual encounters.
The next day, on December 7, Barker returned to Frontline and spoke
to Anderson about assistance in finding a new bed because his bed was broken.
Anderson gave Barker a referral.
On the night of December 7, police officers went to Barker’s home
after receiving the case report. According to officers, they told him why they were
there and Barker cooperated. They said that there was not a mattress in the
apartment. They arrested him and transported him to jail.
The state rested, and Barker moved for an acquittal pursuant to
Crim.R. 29, which the trial court denied.
Barker did not present any witnesses or evidence in his defense, and
he renewed his motion for an acquittal, which the trial court again denied.
On August 13, 2018, the jury found Barker guilty of tampering with
evidence, could not reach a verdict as to one of the rape counts (Count 6), and found
Barker not guilty of the remaining counts. The trial court declared a mistrial as to
Count 6, and the state subsequently moved to dismiss that count, which the trial
court granted.
On August 30, 2018, the trial court sentenced Barker to prison for one
year and advised him that he was subject to a discretionary three-year term of
postrelease control. The trial court also credited Barker for 265 days of jail-time
credit.
It is from this judgment that Barker now appeals.
II. Law and Analysis
In his first assignment of error, Barker argues that his conviction for
tampering with evidence was not supported by sufficient evidence.
Crim.R. 29(A) provides for an acquittal “if the evidence is insufficient
to sustain a conviction of such offense or offenses.” A sufficiency challenge
essentially argues that the evidence presented was inadequate to support the jury
verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386,
678 N.E.2d
541 (1997). “‘The relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” State v. Getsy,
84 Ohio
St.3d 180, 193,
702 N.E.2d 866 (1998), quoting Jackson v. Virginia,
443 U.S. 307,
99 S.Ct. 2781,
61 L.Ed.2d 560 (1979). “[A] conviction based on legally insufficient
evidence constitutes a denial of due process.”
Thompkins at 386, citing Tibbs v.
Florida,
457 U.S. 31,
102 S.Ct. 2211,
72 L.Ed.2d 652 (1982). When reviewing a
sufficiency of the evidence claim, we review the evidence in a light most favorable to
the prosecution. State v. Hill,
75 Ohio St.3d 195, 205,
661 N.E.2d 1068 (1996).
Tampering with evidence has three elements: “(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 N.E.3d 1175, ¶ 11. Here, Barker argues that there was insufficient evidence that
he was aware of any legal proceeding or investigation against him, the first element.
Tampering with evidence under R.C. 2921.12(A)(1) requires a person to
act with purpose, meaning that the person has a specific intention to
cause a certain result. See State v. Skorvanek, 182 Ohio App.3d 615,
2009-Ohio-1709,
914 N.E.2d 418, ¶ 21 (9th Dist.); R.C.
2901.22(A). When determining whether the defendant acted
purposely, a defendant's state of mind may be inferred from the
surrounding circumstances. State v. Rock, 3d Dist. Seneca No. 13-13-
38, 2014-Ohio-1786, ¶ 13, citing
Skorvanek at ¶ 21.
State v. Sharp, 8th Dist. Cuyahoga No. 103445,
2016-Ohio-2634, ¶ 19.
Regarding a defendant’s knowledge of an ongoing or likely
proceeding or investigation, “there is [commonly] no direct evidence of a
defendant’s state of mind so the state must rely on circumstantial evidence to satisfy
this element of its case. A defendant’s state of mind may be inferred from the totality
of the circumstances.” State v. Rodano, 2017-Ohio-1034,
86 N.E.3d 1032, ¶ 43 (8th
Dist.). Circumstantial evidence and direct evidence inherently possess the same
probative value. State v. Jenks,
61 Ohio St.3d 259,
574 N.E.2d 492 (1991),
paragraph one of the syllabus. “A conviction can be sustained based on
circumstantial evidence alone.” State v. Franklin,
62 Ohio St.3d 118, 124,
580
N.E.2d 1 (1991), citing State v. Nicely,
39 Ohio St.3d 147,
529 N.E.2d 1236 (1988).
The likelihood of an investigation is measured at the time of the
alleged act of tampering. State v. Barry, 145 Ohio St.3d 354,
2015-Ohio-5449,
49
N.E.3d 1248, ¶ 21. “[T]he state must demonstrate that the accused knew of a
pending official proceeding or investigation or knew that such a proceeding or
investigation was likely to be instituted at the time of the concealment.” Id. at ¶ 2.
“Knowledge that a criminal investigation is imminent is based upon
a reasonable person standard.” Sharp, 8th Dist. Cuyahoga No. 103445, 2016-Ohio-
2634, at ¶ 18, citing State v. Workman, 2015-Ohio-5049,
52 N.E.3d 286, (3d Dist.).
The state argues that the testimony presented at trial shows that
Barker “knew that an investigation was likely forthcoming because he had been
sexually assaulting the victim on that mattress over a period of days and she was
about to go to a government building and talk about housing.” It points out that
Barker threw out the mattress after N.C. told him that the sex was hurting her and
learning that N.C. wanted to go to Frontline Services. The state also argues that
whether Barker knew “the extent of the claims that N.C. was going to make is
immaterial” and that it was “reasonable [for the jury] to believe that a sexual assault
[was] likely to be reported and [Barker took] steps to thwart the investigation by
removing” the mattress.
Barker argues that the testimony shows that he threw out the
mattress before N.C. ever went to Frontline and later reported an alleged crime to
police, which means that there was not an investigation or proceeding against him
at that time. Therefore, he argues, the “only remaining question” is whether he
“knew or should have known that such a proceeding or investigation was about to
be or likely to be instituted.” He argues that N.C.’s testimony was insufficient to
establish that he knew or should have known about such a proceeding or
investigation because N.C. acted as a “willing partner,” did not accuse him of rape
or any other crime prior to throwing out his mattress, “deliberately concealed from
[Barker] her intention to file any sort of complaint[,]” and did not give Barker any
indication that she was going to report a crime. We agree.
Upon review of the evidence presented, we find that the state failed to
provide sufficient evidence that Barker knew or should have known that such a
proceeding or investigation was about to be or likely to be instituted. N.C. spent
multiple days and nights with Barker at his apartment, during which time she
smoked marijuana with him. She also traveled to a food pantry and the welfare
office with Barker, where she did not tell or indicate to anyone that Barker was
raping her and then returned to Barker’s apartment after each of those visits. There
was also testimony that N.C. admitted that she and her child were able to stay with
Barker in exchange for sex and that she only stopped staying with him because she
no longer wanted to have sex with Barker.
Further, and most importantly, N.C. testified that she only told
Barker that the sexual encounters were hurting her and made her uncomfortable on
December 5, the last night she and her child stayed with Barker. While she testified
that the sex hurt her, she did not tell Barker that their prior sexual encounters were
not consensual, that she was going to report him, or that she wanted to leave his
apartment and stay elsewhere. Her testimony is not clear if any sexual encounters
occurred after she told Barker to stop.
N.C. never told or in any way indicated to Barker or anyone else before
he threw out his mattress that she planned on speaking with police or reporting him.
N.C. specifically testified that she did not “let [Barker] know anything” before going
to Frontline Services, including the fact that she wanted to leave and live somewhere
else. When Barker took N.C. to Frontline, which was after he had already thrown
out the mattress, N.C. did not tell either Murphy or Pope that Barker raped her. In
fact, Anderson said that he would have called the police had he thought that was the
case. N.C. did not indicate to anyone that Barker was raping her until she met with
police and after Barker had already thrown the mattress out.
While the timing of Barker throwing out his mattress the next
morning may be odd, there was testimony indicating that the bed was broken and
that Barker actually returned to Frontline himself to find a new bed the day after
N.C. left. We find that the timing alone, which occurred after N.C. told Barker only
that the sex hurt and made her uncomfortable and in no way indicated that she
would report Barker for a crime, is not sufficient to show that he knew an
investigation or proceeding was likely.
In sum, there was insufficient evidence to show that Barker knew or
should have known that a proceeding or investigation was likely at the time he threw
out his mattress. Accordingly, we sustain Barker’s first assignment of error. Our
disposition of his first assignment of error renders his second and third assignments
of error moot.
Judgment reversed and remanded for the trial court to vacate
Barker’s conviction for tampering with evidence.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been reversed and vacated, any bail pending is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
RAYMOND C. HEADEN, J., CONCUR
