[Cite as State v. Montgomery,
2021-Ohio-1831.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, : Case No. 19CA3679
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
KAREN MONTGOMERY, :
Defendant-Appellant. : RELEASED 5/26/2021
______________________________________________________________________
APPEARANCES:
Paul Giorgianni, Giorgianni Law L.L.C., Columbus, Ohio, for appellant.
Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross County
Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee.
______________________________________________________________________
Hess, J.
{¶1} Karen Montgomery appeals her conviction, following a jury trial, for
tampering with evidence. In her first assignment of error, Montgomery contends that her
conviction is not supported by sufficient evidence. We agree. After viewing the evidence
in a light most favorable to the prosecution, we conclude that no rational trier of fact could
have found all of the essential elements of the crime proven beyond a reasonable doubt.
Accordingly, we sustain the first assignment of error, reverse the trial court’s judgment,
and remand to the trial court for entry of a judgment of acquittal. This decision renders
moot the remaining assignments of error, so we need not address them.
I. FACTS AND PROCEDURAL HISTORY
{¶2} The Ross County grand jury indicted Montgomery on one count of
tampering with evidence in violation of R.C. 2921.12(A)(2) and one count of unlawfully
Ross App. No. 19CA3679 2
disturbing a body in violation of R.C. 313.11. The matter proceeded to a jury trial at which
Jamie Thomas testified that his fiancée, Juanita Payne, had an allergic reaction to
penicillin that resulted in heart surgery that led to kidney problems. Payne’s doctors said
there was nothing more they could do for her, and on April 22, 2017, she began to receive
home hospice care through Heartland Hospice. Thomas testified that he knew Payne
was dying. He testified that on April 25, 2017, a chaplain came to the house and had a
private conversation with Payne. Tina Parsley, a Heartland nurse’s aide, came to bathe
Payne, who was swollen and sore because dialysis via a catheter in her right internal
jugular vein had been discontinued. Payne mentioned being in pain, and there was a
discussion about changing a bandage where the catheter protruded from her neck
because it had dried blood on it and tape around the bandage was in her hair. Parsley
did not have the authority to administer pills or change the bandage and called for a nurse
to come.
{¶3} Thomas testified that Montgomery responded, and while trying to change
the bandage, asked Parsley for scissors. Payne told Thomas that she loved him and
asked him to make sure her children knew that she loved them. Thomas said he would,
heard a “snip,” and saw blood “shooting across” her neck.1 He got lightheaded, went
outside, and collapsed. At some point, his sister, Rose Cochenour, asked him about
hemostats (instruments used to prevent the flow of blood from an open blood vessel by
compression of the vessel) Payne had in the house. Thomas could not remember if he
went inside and got the hemostats or if his sister went inside with him and got them.
However, he did not reenter the house until his sister told him that Payne had passed
1 We have changed trial transcript quotes from all capital letters to lowercase letters for ease of reading.
Ross App. No. 19CA3679 3
away. After Payne died, Thomas aided cleanup efforts by providing the location of empty
trash bags, and he gave instructions for bagged items to be placed in a bathtub. Later,
someone put the bags in a dumpster, but Thomas retrieved them and put them in vacuum-
sealed containers which he gave to his attorney about a week later. He did not disturb
the contents of the bags but recalled that his sister went through them to locate things
and got sick to her stomach from the odor.
{¶4} Cochenour testified that after Montgomery arrived, she gave Payne
morphine, and Payne requested a second dose. During Payne’s bed bath, Montgomery
tried to remove the heavily-taped bandage with her fingers but then asked Parsley for
scissors. At some point, Thomas said, “Oh god no,” and ran outside. Cochenour
followed, and after he told her what had happened, she went back inside to see if she
could help and saw Montgomery and Parsley on cell phones. Cochenour went outside
again to check on Thomas, and when she reentered the house, she saw Payne “take her
last breaths.” Cochenour offered to get Montgomery hemostats and went outside and
told Thomas that Payne had passed and that Montgomery wanted the hemostats. They
reentered the house, Thomas got the hemostats, and Cochenour gave them to
Montgomery. Cochenour helped Montgomery and Parsley wash Payne’s body and told
them to put bags of bloody items in a bathtub. Cochenour later moved the bags to a
dumpster but helped Thomas retrieve them the next day. She denied opening the bags.
{¶5} Parsley testified that she went to Payne’s home to drop off supplies but
noticed that Payne was struggling to breathe and that her color was off. Payne reported
breathing trouble and pain, and Parsley, who cannot administer medication, called for a
nurse. Montgomery responded and gave Payne morphine, and she requested a second
Ross App. No. 19CA3679 4
dose. Payne told Thomas she loved him and was sorry she was dying. She “kept saying
she was dying” and said she “didn’t want to die awake.” During Payne’s bed bath,
Thomas talked about changing the bandage. Montgomery tried to remove it with her
fingers, but later had Parsley get her scissors. At that time, Payne was responsive but
was more “grayish” and “purplish looking.” Parsley became aware that Montgomery cut
the catheter and saw her apply pressure to the area with her hands through a towel.
Parsley told a detective that Montgomery used the hemostats after Payne died. However,
Parsley testified that she did not know if Payne was dead at that time and is not trained
to make that determination. Parsley testified that Montgomery did not pronounce Payne
dead until she applied the hemostats and listened to Payne’s heart with a stethoscope.
Afterwards Parsley bathed Payne’s body, helped Montgomery bag up items, and put the
bags in a bathroom. Someone from a funeral home came and removed Payne’s body.
{¶6} Stephanie McGinnis, senior administrator at Heartland, testified that the day
Payne died, she spoke to Parsley and Montgomery about the cut catheter and went to
the scene. On the way, McGinnis called Dr. Dirk Juschka and advised him of the
circumstances of Payne’s death. McGinnis did not call the coroner. She testified that
generally when a home hospice patient dies in Ross County, the death must be reported
to the coroner via a hospice death report form that is usually faxed the next day. McGinnis
suggested there is a different requirement for accidental deaths but did not elaborate on
it. McGinnis also testified that Heartland nurses and STNAs must make reports about
patient visits which are used internally and are not forwarded to the coroner’s office.
Montgomery made two reports about Payne’s death because an “as needed visit”
became a “death visit.” On April 25, 2017, at 9:15 p.m., Montgomery signed a Visit Note
Ross App. No. 19CA3679 5
Report for a “RN HOSPICE DEATH AT HOME” visit. Under “INDICATE TIME OF DEATH
CONFIRMED,” she wrote “4/25/17 @ 5:45PM.” Under “INDICATE NOTIFICATIONS
COMPLETED BY THE AGENCY (MARK ALL THAT APPLY),” Montgomery marked that
the coroner had been notified. Her report did not mention the cut catheter. On April 26,
2017, at 8:32 p.m., Montgomery signed a Visit Note Report for a “SN HOSPICE
SUBSEQUENT VISIT.” The report included the following narrative:
STNA TINA PRESENT AND ASSISTING NURSE TO GIVE PT A BED
BATH. PT SUDDENLY BECAME ANXIOUS AND REPEATING TO
FIANCE [sic] “I’M SORRY JAMIE, I LOVE YOU. TELL THE KIDS I LOVE
THEM. GIVE ME SOME MORPHINE I AM SCARED TO DIE I WANNA DIE
IN MY SLEEP.” GIVEN ROXANOL 5MG. PT FIANCE [sic] JAMIE
REQUESTED RN CHANGE DRESSING ON DIALYSIS CATHETER IN
LEFT NECK. DRESSING WAS HANGING OFF, INSERTION SITE OPEN
TO AIR. PT SUDDENLY BECAME NONRESPONSIVE AND
RESPIRATIONS CHANGED TO CHEN [sic] STOKES. ATTEMPTING TO
REMOVE DRESSING WHICH HAD MULTIPLE LAYERS OF TAPE
ADDED TO IT AND ACCIDENTLY CUT INTO LINE. PRESSURE APPLIED
UNTIL NURSE COULD PINCH LINE OFF WITH FINGERS THEN LINE
WAS CLAMPED WITH HEMOSTATS AND BLEEDING WAS STOPPED.
PT BLED ENOUGH TO WET LESS THAN HALF OF A TOWEL AND AN
AREA ON HER PILLOW. PT RESPIRATION SHALLOW. PT CYANOTIC
AND EXPIRED AT 5:45PM WITH HOSPICE NURSE, STNA AND
FIANCES [sic] SISTER PRESENT AT BEDSIDE.
{¶7} Tonja Helmick, a patient care coordinator at Heartland, testified that when
a hospice patient dies at home in Ross County, the coroner must receive a hospice death
report form within 24 hours. The form requests information on the patient’s terminal
diagnosis and signs of or recent history of trauma, indicates the form should be faxed to
the coroner’s office “ASAP,” and gives instructions to contact the “investigator on call for
release of the body” “[i]f anything appears suspicious or if trauma related, recent or past.”
Helmick testified it is “usually” the nurse at the scene’s responsibility to send the form, but
it is also part of her job duties. On average, she completes the form once or twice a
Ross App. No. 19CA3679 6
month for patients she did not witness pass. Helmick completed a form for Payne’s death
indicating there was no sign of or recent history of trauma, and she faxed it to the coroner
on April 26, 2017, at 2:36 p.m. Helmick testified that she was not aware of the cut catheter
at that time. She used the April 25th report to complete the form but not the April 26th
report, which had not been completed yet. Sometimes, Helmick calls a nurse if the
nurse’s report does not provide enough information to complete the form, but Helmick
could not recall whether she talked to anyone who had been at the scene before sending
the form on Payne’s death. When asked why she sent the form even though the April
25th report indicated the coroner had already been notified, Helmick testified: “It’s just
something that we do. He requires this form every time regardless of what happens.”
{¶8} Attorney Michael Warren testified that on May 8, 2017, Thomas contacted
him because he thought Payne’s death certificate stated the wrong cause of death. A
week later, Warren retrieved vacuum-sealed bags of evidence from Thomas’s home and
stored them at his office. Warren encouraged the coroner to open an investigation, and
a detective and representative from the coroner’s office collected the bags. Warren filed
a civil action related to Payne’s death on behalf of her estate, her father, Thomas, and
Cochenour.
{¶9} Michael Ratliff, chief investigator at the Ross County Coroner’s Office,
testified that his duties include determining whether reported deaths are under the
coroner’s jurisdiction, and if so, investigating to assist the coroner and determine the
cause and manner of death. Ratliff testified that unnatural, suspicious, and unusual
deaths are under the coroner’s jurisdiction and “whoever has knowledge” of such a death
“is suppose[d] to immediately notify” the coroner’s office, prior to the body being disturbed.
Ross App. No. 19CA3679 7
On cross-examination, he acknowledged that by statute, only attending physicians and
members of an ambulance service, emergency squad, or law enforcement agency must
provide notice. Ratliff testified that hospice care providers must report all deaths under
their care to the coroner via a form and need to provide notice of natural deaths within a
reasonable time. On April 26, 2017, the coroner’s office received the form Helmick faxed,
which did not alert Ratliff to the need for an investigation. If the office had been
immediately notified of the cut catheter, he would have gone to the scene and examined
Payne’s body. About a month after Payne died, Ratliff opened an investigation into her
death, which included obtaining records like Montgomery’s reports, seeking the opinion
of a forensic pathologist, and helping Detective Stanley Addy of the Ross County Sheriff’s
Office document evidence collected from Warren. Ratliff testified that the evidence he
saw was inconsistent with Montgomery’s statement in the April 26th report about the
amount of blood loss.
{¶10} Dr. Charles Lee, deputy coroner and chief forensic pathologist at the Licking
County Coroner’s Office, testified that the Ross County Coroner’s Office hired him to
review Payne’s case. Based on photos of items from the scene and records concerning
Payne’s health, he opined that she experienced a “significant amount of bleeding.” Dr.
Lee testified that although Payne was probably within days or weeks of dying when
Montgomery cut the catheter, he did not think Payne would have died when she did “if
she had not bled.”
{¶11} Dr. John Gabis testified that in 2017, he was the Ross County Coroner, who
is a public official. A death certificate completed by Dr. Juschka stated the immediate
cause of Payne’s death was renal failure, due to cardiogenic shock, due to right
Ross App. No. 19CA3679 8
ventricular failure, due to idiopathic pulmonary arterial hypertension, and the manner of
death was natural. Dr. Gabis found the cause of death was hemorrhagic shock due to
the cutting of the dialysis catheter, and the manner of death was accident. A
supplemental death certificate was issued that reflected his verdict. Dr. Gabis testified
that Payne’s “many comorbidities” impacted the amount of blood loss needed for her to
experience hemorrhagic shock, and based on photos of items from the scene, he opined
that she lost a “large amount” of blood.
{¶12} Detective Addy testified that the coroner’s office contacted the Ross County
Sheriff regarding Payne’s death, and he began an investigation into the matter. He
believed the Ohio Board of Nursing and Ohio Department of Health also investigated.
Detective Addy collected bags of evidence from Warren, and he and Ratliff photographed
their contents. Detective Addy also interviewed witnesses and testified that Dr. Juschka
said if he had had “all the information … he would have rendered a different decision”
on cause of death.
{¶13} At the close of the state’s case-in-chief, the court denied Montgomery’s
Crim.R. 29(A) motion for a judgment of acquittal. Subsequently, Dr. Juschka testified that
he has had a contractual relationship with Heartland for eight years. In April 2017, as
team physician, his responsibilities included being available to nurses by phone and
preparing death certificates when requested by a funeral home. By statute, he can certify
only natural deaths. He testified that usually when a patient dies, he gets notice of the
death and surrounding circumstances via a phone call from the nurse who assessed the
patient. On April 25, 2017, he communicated with Montgomery about Payne’s medical
condition, medications for her comfort, a change in her code status to “D.N.R.” (do-not-
Ross App. No. 19CA3679 9
resuscitate), and her death. Montgomery told him about the cut catheter. Dr. Juschka
did not notify the coroner’s office about Payne’s death or direct anyone at Heartland to do
so. Sometime after Payne’s death, Dr. Juschka and Montgomery attended a regular
Heartland meeting on patients at which Payne’s available records were discussed. Dr.
Juschka testified that when he prepared the death certificate, he believed that Payne’s
death was natural and that the catheter cutting was “coincidental” because she “was
going to pass anyway.” He admitted that he prepared the death certificate before he saw
photos of items from the scene and that he told Detective Addy they depicted more blood
than he would have expected based on what had been reported to him. However, he
testified that the photos did not alter his opinion on cause of death, and he disagreed with
the decision to change it.
{¶14} Montgomery testified that she had been a nurse at Heartland but is currently
employed there in a different capacity. Montgomery was asked to visit Payne because
she was in distress. When Montgomery arrived, Payne was “in a lot of pain” and
exhibiting “signs of impending death.” Montgomery gave her morphine, and at some
point, her code status changed to “D.N.R.C.C.” (do-not-resuscitate comfort care). Payne
declined “rapidly,” became “very anxious,” and told Thomas that she loved him, to make
sure her boys knew that she loved them, that she knew she was dying, and that she was
sorry. Montgomery gave her more morphine, and at Thomas’s request, tried to change
her bandage. She could not get the tape off with her hands, used scissors, and
accidentally cut the catheter. She put pressure on the area using her hands and a towel
and had Parsley call McGinnis and hold the phone while she explained what had
happened. At some point, she stopped the bleeding by pinching the catheter with her
Ross App. No. 19CA3679 10
fingers, and she applied hemostats to it. Montgomery testified that before she cut the
catheter, Payne was unresponsive and had Cheyne-Stokes respirations—a type of
breathing seen right before death. After Montgomery cut the catheter, Payne stopped
breathing, and once Montgomery applied the hemostats, her hands were free to use her
stethoscope to check for a heartbeat and call time of death.
{¶15} Montgomery communicated with McGinnis and Dr. Juschka and helped
Parsley perform typical post-mortem care for a hospice patient, i.e., bathe Payne, change
her clothes and linens, bag up stained items, and ask the family where to put them.
Montgomery did not think to call the coroner. Although cutting the catheter was unusual,
she believed Payne was dying when she arrived, and her death was natural. Montgomery
testified that in visit notes, she always indicates that the coroner has been notified of a
Ross County home patient death because a death report form must be sent to the coroner
within 24 hours. However, Montgomery never sent the form and did not offer Helmick
information to complete it because she “didn’t know at the time that [Helmick] was filling
that paper out.” When Montgomery made the April 26th report, she believed the blood
loss reported was accurate, and she testified that the towel she bagged did not look like
a towel depicted in a photograph the state had introduced.
{¶16} After the defense rested, the court denied Montgomery’s renewed Crim.R.
29(A) motion. The jury found her guilty of tampering with evidence but not guilty of
unlawfully disturbing a body. She made a Crim.R. 29(C) motion for a judgment of acquittal
and a Crim.R. 33(A)(4) motion for a new trial. The court denied the motions and
sentenced her to five years of community control.
Ross App. No. 19CA3679 11
II. ASSIGNMENTS OF ERROR
{¶17} Montgomery assigns the following errors for our review:
1. The conviction is not supported by sufficient evidence.
2. The conviction is contrary to the manifest weight of the evidence.
3. The uncertainty as to whether or not all twelve jurors believed that Nurse
Montgomery violated the statute on April 25 by making the check-mark and
the uncertainty as to whether or not all twelve jurors believed that Nurse
Montgomery violated the statute on April 26 by writing the narrative violated
Nurse Montgomery’s right to a unanimous jury verdict and her right to be
convicted only upon proof beyond a reasonable doubt as to every fact
necessary to constitute a criminal conviction.
4. Prosecutorial misconduct during opening statement and closing
argument violated Nurse Montgomery’s right to a fair trial.
5. Nurse Montgomery was denied effective assistance of counsel.
6. The aggregate prejudice of the foregoing errors violated Nurse
Montgomery’s right to a fair trial.
III. SUFFICIENCY OF THE EVIDENCE
{¶18} In the first assignment of error, Montgomery contends that her conviction is
not supported by sufficient evidence. Montgomery asserts that the prosecution argued
to the jury that she tampered with evidence when she made the April 25, 2017 report and
indicated the coroner had already been notified of Payne’s death and tampered with
evidence when she made the April 26, 2017 report and supposedly indicated that she
applied the hemostats before Payne died and misrepresented the amount of blood loss.
Montgomery maintains that the evidence does not give rise to an inference beyond a
reasonable doubt that: (1) she made either report knowing a Ross County proceeding or
investigation into Payne’s death was in progress or was about to be or likely to be
instituted; (2) she made the April 25th report with purpose to mislead a county official; (3)
Ross App. No. 19CA3679 12
the April 26th report asserted that she applied the hemostats before Payne died, she
made such an assertion knowing it to be false, or she made such an assertion with
purpose to mislead a county official; and (4) her statement about blood loss in the April
26th report was false, she made the statement knowing it to be false, or she made it with
purpose to mislead a county official. Montgomery asserts that because it is unknown how
many jurors voted to convict based on each report, if there is insufficient evidence to
support a conviction based on either report, due process and double jeopardy principles
require that we vacate her conviction and enter a judgment of acquittal.
{¶19} In reviewing the sufficiency of the evidence for a conviction, “[t]he 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.” State v. Jenks, 61 Ohio St.3d 259,
574 N.E.2d 492 (1991),
paragraph two of the syllabus, superseded by constitutional amendment on other grounds
as stated in State v. Smith,
80 Ohio St.3d 89, 102, fn. 4,
684 N.E.2d 668 (1997), and
following Jackson v. Virginia,
443 U.S. 307,
99 S.Ct. 2781,
61 L.Ed.2d 560 (1979). “A
sufficiency assignment of error challenges the legal adequacy of the state’s prima facie
case, not its rational persuasiveness.” State v. Anderson, 4th Dist. Highland No. 18CA14,
2019-Ohio-395, ¶ 13. “That limited review does not intrude on the jury’s role ‘to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.’ ” Musacchio v. United States,
577 U.S. 237, 243,
136 S.Ct.
709,
193 L.Ed.2d 639 (2016), quoting
Jackson at 319. A reviewing court will not overturn
a conviction based on insufficient evidence “ ‘unless reasonable minds could not reach
the conclusion that the trier of fact did.’ ” State v. Cook, 4th Dist. Gallia No. 18CA11,
Ross App. No. 19CA3679 13
2019-Ohio-4745, ¶ 15, quoting State v. Bradshaw, 4th Dist. Scioto No. 17CA3803, 2018-
Ohio-1105, ¶ 15. If the evidence is legally insufficient, “the Double Jeopardy Clause
precludes a second trial”; the “only ‘just’ remedy available” is “the direction of a judgment
of acquittal.” Burks v. United States,
437 U.S. 1, 18,
98 S.Ct. 2141,
57 L.E.2d 1 (1978).
{¶20} R.C. 2921.12, the statute on tampering with evidence, states:
(A) No person, knowing that an official proceeding or investigation is in
progress, or is about to be or likely to be instituted, shall do any of the
following:
…
(2) Make, present, or use any record, document, or thing, knowing it to be
false and with purpose to mislead a public official who is or may be engaged
in such proceeding or investigation, or with purpose to corrupt the outcome
of any such proceeding or investigation.
{¶21} The trial court defined purposely and knowingly for the jury:
Purposely. A person acts purposely when it is the person’s specific
intention to cause a certain result.
Knowingly. A person acts knowingly, regardless of his or her
purpose, when he or she is aware that his or her conduct will probably cause
a certain result. A person has knowledge of circumstances when he or she
is aware that such circumstances probably exist.
Knowingly means that a person is aware of the existence of the facts
and that his or her acts will probably cause a certain result.
Since you cannot look into the mind of another, knowledge is
determined from all of the facts and circumstances in evidence. You will
determine from these facts and circumstances whether there existed at the
time in the mind of the defendant an awareness of the probability that an
official proceeding or investigation was in progress or was about to be or
likely to be instituted.
See generally R.C. 2901.22(A) (defining “purposely”); R.C. 2901.22(B) (defining
“knowingly”). “[C]onstructive knowledge is insufficient to prove that [an accused] knew
Ross App. No. 19CA3679 14
that an investigation was ongoing or likely to be commenced ….” State v. Barry, 145
Ohio St.3d 354,
2015-Ohio-5449,
49 N.E.3d 1248, ¶ 25.
A. The April 25, 2017 Report
{¶22} There is insufficient evidence that Montgomery tampered with evidence
when she made the April 25, 2017 report, which falsely indicated that Heartland had
notified the coroner of Payne’s death.
{¶23} There is no evidence that Montgomery made the April 25th report knowing
that an official proceeding or investigation was in progress. The bill of particulars specified
that the official proceeding or investigation that Montgomery had the requisite knowledge
of was “a Ross County investigation” into Payne’s death. When Montgomery made the
April 25th report, no Ross County Coroner’s Office investigation was in progress because
the coroner did not have notice of Payne’s death and facts indicating it fell under the
coroner’s jurisdiction, i.e., facts suggesting the death was unnatural, suspicious, or
unusual. Moreover, no Ross County Sheriff’s Office investigation was in progress as no
one had contacted that office about any potential criminal activity.
{¶24} There is no evidence that Montgomery made the April 25th report knowing
that a Ross County investigation into Payne’s death was about to be or likely to be
instituted. R.C. 2921.12(A)(2) requires proof that the defendant acted knowing an official
investigation was about to be or likely to be instituted, not knowing that one should be
instituted.
{¶25} The state presented evidence that Dr. Juschka had a statutory duty to
immediately notify the coroner about Payne’s death and the surrounding circumstances
because they were unusual and involved an accident. See R.C. 313.12(A). Dr. Juschka
Ross App. No. 19CA3679 15
and Montgomery discussed the cut catheter near the time Payne died, but he did not
immediately (or ever) notify the coroner or direct Montgomery or anyone else at Heartland
to do so. As a result, Montgomery and others disturbed Payne’s body.
{¶26} The state also presented evidence that Helmick had a job duty to prepare
and send hospice death report forms. However, there is no evidence that Montgomery
made the April 25th report knowing that Helmick was likely to send a form that would
cause a coroner investigation to be instituted. It is unclear why Helmick sent a hospice
death report form in this case. She testified that usually the nurse at the scene is
responsible for sending the form, and in this case, that nurse (Montgomery) reported that
the coroner had already been notified. Helmick’s job duties may have included checking
the files of deceased patients for the form, but she did not offer testimony to that effect.
In any event, a form completed by Helmick was not likely to (and did not) cause the
coroner to institute an investigation. Helmick indicated that she uses the nurse on the
scene’s report to complete the form. Because the April 25th report did not mention the
cut catheter and Montgomery did not otherwise provide that information to Helmick before
she sent the form, Helmick did not convey that information to the coroner’s office.
{¶27} There is no evidence that Montgomery made the April 25th report knowing
that any other individual was likely to report Payne’s death to the coroner and cause the
coroner to institute an investigation. Thomas, the person who instigated the coroner’s
investigation, was present when Montgomery accidentally cut the catheter. However, he
did not request that law enforcement or the coroner come to the scene. Thomas knew
that Payne was terminally ill, and there is no evidence that when Montgomery was at the
scene, Thomas treated her with hostility or expressed a desire to preserve evidence, have
Ross App. No. 19CA3679 16
the coroner determine Payne’s cause of death, or pursue a civil action for the hastening
of Payne’s death.
{¶28} There is no evidence that Montgomery made the April 25th report knowing
that a Ross County Sheriff’s Office investigation was about to be or likely to be instituted.
“[K]nowledge of a likely investigation may be inferred when the defendant commits a
crime that is likely to be reported.” (Emphasis deleted.) Cook, 4th Dist. Gallia No.
18CA11, 2019-Ohio-4745, at ¶ 19, quoting State v. Martin,
151 Ohio St.3d 470, 2017-
Ohio-7556,
90 N.E.3d 857, ¶ 118. There is no evidence that Montgomery committed a
crime when she accidentally cut the catheter, and the jury acquitted her of unlawfully
disturbing Payne’s body after she cut the catheter.
{¶29} We note that during trial, Detective Addy testified that he believed the Ohio
Department of Health and Ohio Board of Nursing had investigated this matter. But the
bill of particulars specified that the official proceeding or investigation that Montgomery
had the requisite knowledge of was “a Ross County investigation” into Payne’s death, not
an investigation by a state department or board. Moreover, there is no evidence that
when Montgomery made the April 25th report, she knew that an official investigation by
one of these entities was in progress or was about to be or likely to be instituted.
{¶30} There is no evidence that Montgomery made the April 25th report with
purpose to mislead a public official or to corrupt the outcome of an official proceeding or
investigation. The bill of particulars specified she acted with purpose to mislead the Ross
County Coroner or to corrupt the outcome of a Ross County proceeding or investigation
into Payne’s death. The April 25th report was an internal Heartland document, not an
official report to a public official.
Ross App. No. 19CA3679 17
{¶31} After viewing the evidence in a light most favorable to the prosecution, we
conclude that no rational trier of fact could have found all of the essential elements of
tampering with evidence proven beyond a reasonable doubt with respect to the April 25th
report. Specifically, there is no evidence that Montgomery made the April 25th report
knowing that an official proceeding or investigation was in progress or was about to be or
likely to be instituted or that she made the report with purpose to mislead a public official
or to corrupt the outcome of an official proceeding or investigation.
B. The April 26, 2017 Report
{¶32} There is insufficient evidence that Montgomery tampered with evidence
when she made the April 26, 2017 report, which contained information about the cut
catheter, hemostats, and amount of blood loss.
{¶33} There is no evidence that Montgomery made the April 26th report knowing
that an official proceeding or investigation was in progress. Again, the bill of particulars
specified that the official proceeding or investigation that Montgomery had the requisite
knowledge of was “a Ross County investigation” into Payne’s death. When Montgomery
made the April 26th report, the coroner had notice of Payne’s death via the hospice death
report form Helmick had sent. However, no Ross County Coroner’s Office investigation
was in progress because the form suggested the death was natural and therefore outside
the coroner’s jurisdiction. Moreover, no Ross County’s Sheriff’s Office investigation was
in progress as no one had contacted that office about any potential criminal activity.
{¶34} There is no evidence that Montgomery made the April 26th report knowing
that a Ross County investigation into Payne’s death was about to be or likely to be
instituted. R.C. 2921.12(A)(2) requires proof that the defendant acted knowing an official
Ross App. No. 19CA3679 18
investigation was about to be or likely to be instituted, not knowing that one should be
instituted.
{¶35} The state presented evidence that Dr. Juschka had a statutory duty to
immediately notify the coroner about Payne’s death and the surrounding circumstances
because they were unusual and involved an accident. See R.C. 313.12(A). Dr. Juschka
and Montgomery discussed the cut catheter near the time Payne died, but he did not
immediately (or ever) notify the coroner or direct Montgomery or anyone else at Heartland
to do so. As a result, Montgomery and others disturbed Payne’s body.
{¶36} The state also presented evidence that Helmick had a job duty to prepare
and send hospice death report forms. However, there is no evidence that Montgomery
made the April 26th report knowing that Helmick was likely to send a form that would
cause a coroner investigation to be instituted. Montgomery made the April 26th report
more than 24 hours after Payne’s death, and by that time, Helmick had already sent the
form, which did not trigger an investigation.
{¶37} There is no evidence that Montgomery made the April 26th report knowing
that any other individual was likely to report Payne’s death to the coroner and cause the
coroner to institute an investigation. Thomas, the person who instigated the coroner’s
investigation, was present when Montgomery accidentally cut the catheter. However, he
did not request that law enforcement or the coroner come to the scene. Thomas knew
that Payne was terminally ill, and there is no evidence that when Montgomery was at the
scene, Thomas treated her with hostility or expressed a desire to preserve evidence, have
the coroner determine Payne’s cause of death, or pursue a civil action for the hastening
of Payne’s death. There is also no evidence that when Montgomery made the April 26th
Ross App. No. 19CA3679 19
report, she was aware of measures Thomas had taken to preserve evidence after she
had left the scene.
{¶38} There is no evidence that Montgomery made the April 26th report knowing
that a Ross County Sheriff’s Office investigation was about to be or likely to be instituted.
“[K]nowledge of a likely investigation may be inferred when the defendant commits a
crime that is likely to be reported.” (Emphasis deleted.) Cook, 4th Dist. Gallia No.
18CA11, 2019-Ohio-4745, at ¶ 19, quoting State v. Martin,
151 Ohio St.3d 470, 2017-
Ohio-7556,
90 N.E.3d 857, ¶ 118. There is no evidence that Montgomery committed a
crime when she accidentally cut the catheter, and the jury acquitted her of unlawfully
disturbing Payne’s body after she cut the catheter.
{¶39} We again note that during trial, Detective Addy testified that he believed the
Ohio Department of Health and Ohio Board of Nursing had investigated this matter. But
the bill of particulars specified that the official proceeding or investigation that
Montgomery had the requisite knowledge of was “a Ross County investigation” into
Payne’s death, not an investigation by a state department or board. Moreover, there is
no evidence that when Montgomery made the April 26th report, she knew that an official
investigation by one of these entities was in progress or was about to be or likely to be
instituted.
{¶40} After viewing the evidence in a light most favorable to the prosecution, we
conclude that no rational trier of fact could have found all of the essential elements of
tampering with evidence proven beyond a reasonable doubt with respect to the April 26th
report. Specifically, there is no evidence that Montgomery made the April 26th report
knowing that an official proceeding or investigation was in progress or was about to be or
Ross App. No. 19CA3679 20
likely to be instituted. It is unnecessary for us to address Montgomery’s arguments
regarding other elements of the offense with regard to the April 26th report.
C. Conclusion
{¶41} There is insufficient evidence to support the conviction for tampering with
evidence in violation of R.C. 2921.12(A)(2) regardless of whether it was based on the
April 25, 2017 report, the April 26, 2017 report, or both reports. Accordingly, we sustain
the first assignment of error, reverse the trial court’s judgment, and remand to the trial
court for entry of a judgment of acquittal. Our decision renders moot the remaining
assignments of error, so we need not address them. See App.R. 12(A)(1)(c).
JUDGMENT REVERSED AND
CAUSE REMANDED.
Ross App. No. 19CA3679 21
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS
REMANDED. Appellee shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross
County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed 60 days upon the bail previously posted.
The purpose of a continued stay is to allow appellant to file with the Supreme Court of
Ohio an application for a stay during the pendency of proceedings in that court. If a stay
is continued by this entry, it will terminate at the earlier of the expiration of the 60-day
period, or the failure of the appellant to file a notice of appeal with the Supreme Court of
Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of 60 days, the stay will terminate as of the date of such
dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Smith, P.J.: Concurs in Judgment and Opinion.
*Dorrian, J.: Concurs in Judgment Only.
For the Court
BY: ________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.
*Judge Julia L. Dorrian, Tenth District Court of Appeals, sitting by assignment of the
Supreme Court of Ohio in the Fourth Appellate District.
