[Cite as State v. Henry,
2024-Ohio-849.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230287
TRIAL NO. B-2200597
Plaintiff-Appellee, :
vs. :
O P I N I O N.
SELINDA HENRY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 8, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and John D. Hill, Jr.,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michael J. Trapp, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Presiding Judge.
{¶1} A gunfight in defendant-appellant Selinda Henry’s home resulted in
Cornelius Thomas’s serious injuries and Eugene Cunningham’s death. Henry accepted
police officers’ invitation to answer questions at the police station, allowed police
detectives to access and search her phone, and voluntarily made statements both
before and after the detectives notified her of her rights under Miranda v. Arizona,
384 U.S. 436,
86 S.Ct. 1602,
16 L.Ed.2d 694 (1966).
{¶2} The state charged Henry with aggravated murder, murder, aggravated
robbery, and felonious assault, all with gun specifications, and one count of tampering
with evidence. After the trial court denied her motion to suppress evidence, a jury
acquitted her of all counts, except the tampering-with-evidence count.
{¶3} Henry appeals the trial court’s denial of her motion to suppress the
statements she made to the police detectives, arguing that the statements she provided
before the detectives had informed her of her rights under Miranda were made during
a custodial interrogation. Henry argues that the statements she made after the
detectives notified her of her Miranda rights should have been suppressed because
they provided the Miranda warnings hours into a lengthy interrogation and Henry
lacked a meaningful choice to exercise her Miranda rights. Finally, Henry asserts that
her conviction was based on insufficient evidence.
{¶4} Because the Miranda warnings informed Henry of her rights against
self-incrimination, Henry voluntarily offered incriminating statements after police
informed her of her rights, and her conviction was supported by sufficient evidence,
we overrule Henry’s assignments of error and affirm the trial court’s judgment.
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OHIO FIRST DISTRICT COURT OF APPEALS
I. Facts and Procedure
A. Police investigated a shooting
{¶5} During autumn and early winter 2021, Henry communicated with
Thomas, a former paramour. In December 2021, Thomas visited Henry’s townhouse.
Thomas testified that when he attempted to leave Henry’s home, a man wearing a ski
mask, sunglasses, and a hood—later identified as Cunningham—hit him on the head
with a gun, pushed him backwards into Henry’s living room, pointed a gun in
Thomas’s face, ordered Thomas to give him everything he had, and shot Thomas in
the foot.
{¶6} Thomas pulled a gun from his waistband and fired back at Cunningham.
The two men engaged in a gunfight. Cunningham shot Thomas several additional
times in the leg and stomach. After Cunningham ran from the townhouse, Thomas left
the townhouse and went to the hospital.
{¶7} Henry went to a neighbor’s house, who called 911. When Cincinnati
police officers arrived at the scene, they found Cunningham lying between two vehicles
with a handgun next to him and a trail of blood leading back to Henry’s townhouse.
Cunningham died on the way to the hospital.
{¶8} Henry agreed to give a statement to the police. Police transported
Henry, who was not handcuffed, to the Criminal Investigation Section (“CIS”) in a
police cruiser.
B. The interview
{¶9} When Henry agreed to provide a statement to police, they thought that
Henry was a victim of the crime and believed that Cunningham had shot at both her
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OHIO FIRST DISTRICT COURT OF APPEALS
and Thomas. Officers placed Henry in a “soft” interview room, which had a window
and remained unlocked.
1. Pre-Miranda statements
{¶10} Homicide detectives Eric Karaguleff and Jeff Smallwood interviewed
Henry, but they did not arrive to interview Henry until about three hours after an
officer brought her to CIS. The officer who transported Henry offered her
refreshments, ensured she was comfortable, apologized for the wait, and casually
chatted with Henry about topics such as the weather, the Bengals, the neighborhood,
and more.
{¶11} Before the detectives arrived, Henry opened the door to the interview
room and walked around several times. Although employees use a badge to enter the
building, anyone could open the doors to exit from the building. Smallwood testified
that soft interview rooms were typically used to interview witnesses and victims, rather
than suspects, and Henry was free to leave.
{¶12} Though it is not clear when, at some point before Henry arrived at CIS,
Henry had given her phone to police officers. As Detectives Smallwood and Karaguleff
collected Henry’s demographic information, she asked if she could get her phone back.
The officers responded, “We’ll talk about that in just a minute,” and continued asking
Henry questions about her employment and her children before asking her to tell them
about what she had witnessed.
{¶13} Henry stated that other than Thomas, no one had been at her home from
the previous evening until the shooting. She stated that Thomas was leaving her house
and when he opened the door, a “dude” came in and shot at her and Thomas. Later,
she told the detectives that she immediately recognized Cunningham when he entered
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OHIO FIRST DISTRICT COURT OF APPEALS
her house. She said she ran upstairs and when she came downstairs, she saw that
Thomas had been shot and was leaving and was getting into a car. She said that
Thomas accused her of setting him up. And she told police that she had a prior
relationship with Cunningham, which had ended the previous July, and she had not
been in contact with him for a few months.
{¶14} About 25 minutes into the interview, Smallwood asked Henry if they
could access her phone. When Henry asked if she could have her phone back and how
long she had to stay there, Smallwood responded that they would get it to her as soon
as possible, she was free to go home, and they would bring her phone to her when they
were finished with it. Later, Karaguleff asked who they should contact to return her
phone to her if she was not home when they returned it. Henry provided her phone’s
passcode to the detectives. Henry denied erasing anything from her phone or
communicating with Cunningham about Thomas being at her house.
{¶15} Henry again asked how long she would have to be there and if she could
have her keys. Smallwood told her not long and they were bringing down her keys.
Just after that, the detectives left the room and then Henry left the room briefly.
{¶16} After about five minutes, the detectives returned to the room. They gave
her a “consent to search” form for her phone and told her that someone was on the
way to process it. Karaguleff told her that she need not wait for her phone and she
could leave if she wanted. When Henry asked if she had to sign the consent form, the
detectives told her that she did not have to sign it.
{¶17} It appears that during the five minutes that the detectives had left the
room, they learned that investigators had found a cell phone inside Henry’s purse at
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OHIO FIRST DISTRICT COURT OF APPEALS
her townhouse. When the detectives asked about the phone in the purse, Henry denied
knowing anything about it.
{¶18} The detectives offered to let her leave to have a cigarette and then check
to see if they had finished with her phone, but Henry did not take them up on their
offer. Later, Henry asked Smallwood for a lighter. He asked her if she wanted to go
downstairs to smoke.
{¶19} Karaguleff left the room. When he reentered the room, he showed
Henry a picture of the phone that investigators had found in the purse at Henry’s
house—Henry said she did not recognize it.
{¶20} After Karaguleff left the room and reentered it, the detectives’ questions
became more confrontational. They asked Henry about several recent phone calls to
and from Henry’s phone and Cunningham’s phone, including an hour-and-33-minute
phone call from Henry to Cunningham that spanned from shortly after Thomas
arrived to just before the shootout happened. Henry denied remembering calling
Cunningham and said that she did not mean to call him.
{¶21} The detectives questioned Henry for approximately 22 minutes after
they learned about these phone calls. Henry repeatedly denied purposely calling
Cunningham or setting up Thomas. The detectives told Henry that they were taking a
break. She asked for some matches—they replied that they would try to find some and
told her they wanted her to stay in the room.
{¶22} But when Henry asked to leave the room to use the restroom, she was
permitted to leave the room. When the detectives returned to the room, Smallwood
read Henry her Miranda rights and Henry indicated that she understood her rights.
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OHIO FIRST DISTRICT COURT OF APPEALS
2. Post-Miranda Statements
{¶23} The detectives told Henry that they called Cunningham’s cell phone and
the phone that investigators had found inside of Henry’s purse rang. Henry said she
had not touched the phone. The detectives began questioning Henry about how the
phone ended up in her purse. Henry denied touching Cunningham’s phone and said
she did not know how the phone got into her purse.
{¶24} Eventually, however, Henry admitted to picking Cunningham’s phone
up off of her couch and putting it in her purse after denying ever touching it. She said
she did not know that the phone belonged to Cunningham. Later, she said that she
should not have touched the phone and should have left the phone on the couch.
{¶25} Under the theory that Henry had lured Thomas to her home so that
Cunningham could rob him, the state charged Henry with aggravated murder, murder,
aggravated robbery, felonious assault, and one count of tampering with evidence.
3. Trial court denied Henry’s motion to suppress
{¶26} Henry moved to suppress the statements that she had made to the police
detectives at CIS. After a hearing, the trial court denied Henry’s motion, finding that
Henry was questioned pre-Miranda warnings for about two-and-a half hours and was
free to move around. It noted that Henry had opened the door to the interview room
and walked out multiple times and officers offered to allow her to leave the building to
smoke several times. The trial court noted that police are not required to administer
Miranda warnings to everyone they question, Miranda warnings are not required
merely because a person is questioned at a police station, and the requirement to
provide warnings under Miranda is triggered only by custodial interrogations.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶27} Noting that Henry “voluntarily” left the room again just before
Smallwood informed her of her Miranda rights, the court concluded that “a
reasonable person would believe that this was not a custodial setting,” and therefore,
denied the motion to suppress both the pre- and post-Miranda statements.
{¶28} At trial, the jury viewed the video of Detectives Smallwood and
Karaguleff interviewing Henry in which Henry admitted that she had moved
Cunningham’s phone from the couch to her purse, after initially lying about it. They
also heard evidence that Henry had deleted messages and evidence of communications
between her and Cunningham from her phone. In its closing argument, the state
argued that the tampering-with-evidence count was based on Henry hiding
Cunningham’s phone from them.
{¶29} The jury returned a guilty verdict only on the tampering-with-evidence
charge. The trial court imposed on Henry a three-year sentence. This appeal followed.
II. Law and Analysis
A. The trial court did not err by failing to suppress Henry’s statements
{¶30} Henry’s first assignment of error asserts that the trial court erred by
failing to suppress her statements made to police.
{¶31} Appellate review of a motion to suppress presents a mixed question of
law and fact. State v. Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372,
787 N.E.2d 71,
¶ 8. We accept the trial court’s factual findings if they are supported by competent and
credible evidence, but we review the court’s legal conclusions de novo.
Id.
{¶32} The Fifth Amendment to the United States Constitution and Article I,
Section 10 of the Ohio Constitution protect criminal suspects and defendants against
self-incrimination. City of Cleveland v. Oles, 152 Ohio St.3d 1,
2017-Ohio-5834, 92
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OHIO FIRST DISTRICT COURT OF APPEALS
N.E.3d 810, ¶ 8.
{¶33} In Miranda v. Arizona, the United States Supreme Court held that the
state is prohibited from using statements that a suspect makes to police “stemming
from custodial interrogation of the defendant unless it demonstrates the use of
procedural safeguards effective to secure the privilege against self-incrimination.”
Miranda, 384 U.S. at 444,
86 S.Ct. 1602,
16 L.Ed.2d 694. The Court defined custodial
interrogation as “questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of action in any
significant way.”
Id. Before questioning a suspect in a custodial interrogation, the state
must warn the suspect “that he has the right to remain silent, that anything he says
can be used against him in a court of law, that he has the right to the presence of an
attorney, and that if he cannot afford an attorney one will be appointed for him prior
to any questioning if he so desires.”
Id. at 479.
1. Pre-Miranda statements
{¶34} Henry first argues that the trial court should have suppressed her pre-
Miranda statements because a reasonable person would have believed that she was in
custody during the entire interview.
{¶35} The court’s factual finding that Henry was not in a custodial
interrogation before the detectives notified her of her rights under Miranda was
supported by competent, credible evidence. The detectives did not deny Henry’s
requests to leave the room before they provided the Miranda warnings. Henry
voluntarily provided the police access to her phone. Detectives told her that she was
free to leave the building and they would bring her phone to her after they finished
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OHIO FIRST DISTRICT COURT OF APPEALS
downloading the information. The trial court did not err by failing to suppress Henry’s
pre-Miranda statements.
2. Henry voluntarily waived her Miranda rights
{¶36} A “defendant may waive effectuation of [Miranda] rights, provided the
waiver is made voluntarily, knowingly and intelligently.” State v. Biros, 78 Ohio St.3d
426, 439-440,
678 N.E.2d 891 (1997).
{¶37} Henry’s waiver of her Miranda rights against self-incrimination was
valid if the totality of the circumstances show both 1.) her choice to provide statements
was an uncoerced choice, and 2.) she understood the rights that she was waiving. State
v. Tibbetts, 92 Ohio St.3d 146, 154,
749 N.E.2d 226 (2001). To determine whether a
waiver was valid, courts should consider “ ‘the age, mentality, and prior criminal
experience of the accused; the length, intensity, and frequency of interrogation; the
existence of physical deprivation or mistreatment; and the existence of any threat or
inducement.’ ” State v. Green,
90 Ohio St.3d 352, 366,
738 N.E.2d 1208 (2000),
quoting State v. Edwards,
49 Ohio St.2d 31,
358 N.E.2d 1051 (1976), paragraph two
of the syllabus.
{¶38} Henry argues that her waiver of her rights under Miranda was invalid
because the detectives had questioned her before providing the Miranda warnings and
did not inform her that her unwarned statements could not be used against her. She
asserts that the detectives asked the same questions before and after providing the
warnings. But the interview video does not bear this out. The only relevant charge is
tampering with evidence. While Henry told the detectives before the detectives
provided Miranda warnings that she did not erase anything from her phone, the
tampering charge was based on Henry attempting to hide Cunningham’s phone from
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OHIO FIRST DISTRICT COURT OF APPEALS
them. She provided no statements to the detectives about doing so until after the
detectives had read Henry the Miranda warnings.
{¶39} Citing State v. Farris, 100 Ohio St.3d 519,
2006-Ohio-3255,
849 N.E.2d
985, Henry argues that because she had been up all night, had been drinking, and had
been subjected to a long wait and lengthy interrogation, her waiver was invalid. In
Farris, the defendant had been in custody after a traffic stop and he was not free to
leave. Id. at ¶ 14. He made “virtually identical” statements to police before and after
an officer provided the Miranda warnings. Id. at ¶ 15.
{¶40} But unlike the defendant in Farris, Henry was not subject to a custodial
interrogation before the detectives provided Miranda warnings. As discussed above,
the trial court’s finding that the pre-Miranda discussions did not amount to a
custodial interrogation was supported by competent, credible evidence. And nothing
in the interview video suggested that Henry’s waiver of her Miranda rights was
unknowing or involuntary.
{¶41} Because Henry was not in custody before detectives provided Miranda
warnings and Henry’s post-Miranda waiver of her right against self-incrimination was
valid, we overrule her first assignment of error.
B. The state’s evidence supported Henry’s conviction
{¶42} In her second assignment of error, Henry argues there was insufficient
evidence supporting her tampering-with-evidence conviction.
{¶43} A sufficiency-of-the-evidence argument is a legal argument testing
whether the state presented sufficient evidence to support the verdict. State v. Rainey,
1st Dist. Hamilton No. C-230055, 2023-Ohio-4666, ¶ 53. We must view the evidence
in a light most favorable to the state to determine if any rational fact finder could have
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OHIO FIRST DISTRICT COURT OF APPEALS
found that the state proved each element of the offense beyond a reasonable doubt. Id.
{¶44} The jury found Henry guilty of tampering with evidence under R.C.
2921.12(A)(1), which provides, in part:
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.
{¶45} The state based the tampering-with-evidence charge on Henry’s
attempt to conceal the phone in her purse. While the detectives were interviewing
Henry at CIS, police investigators found Cunningham’s phone in Henry’s purse at the
crime scene. Henry lied to the detectives, telling them that she knew nothing about the
phone. The state showed that Henry had deleted evidence of communications between
her and Cunningham from her phone, which showed that she had motive to hide
Cunningham’s phone. And Henry eventually admitted to finding Cunningham’s phone
on the couch and moving it to her purse. She provided no explanation, other than
admitting that she should not have moved the phone.
{¶46} The state provided sufficient evidence on every element of R.C.
2921.12(A)(1). First, because there had been a shootout in her townhouse involving the
phone’s owner, Henry knew that an official investigation was likely to begin. Second,
Henry concealed Cunningham’s phone—she moved it from plain sight on her couch to
inside of her purse.
{¶47} Finally, the state provided evidence that Henry’s purpose in moving the
phone was to impair its value or availability as evidence in the investigation. Henry
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OHIO FIRST DISTRICT COURT OF APPEALS
knew that Cunningham’s phone would show that she and Cunningham were in
communication before and during the time that Thomas was at her house and the
content of some of those communications. That Henry erased evidence of
communications between her and Cunningham from her own phone would allow a
reasonable person to conclude that Henry’s attempt to hide Cunningham’s phone was
for the purpose of impairing its availability as evidence.
{¶48} The state provided sufficient evidence to support Henry’s tampering-
with-evidence conviction. A reasonable person could conclude that Henry concealed
the phone for the purpose of impairing its availability as evidence in the investigation
and proceeding involving the shootout. Because sufficient evidence supported Henry’s
conviction, we overrule Henry’s second assignment of error.
III. Conclusion
{¶49} For the foregoing reasons, we overrule Henry’s assignments of error and
affirm the trial court’s judgment.
Judgment affirmed.
ZAYAS, J., and KINSLEY, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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