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The Ohio Supreme Court Clarifies The Elements Of Tampering With Evidence

Today, the Ohio Supreme Court in State v. Barry, rejected the "Unmistakable Crime Doctrine," as it relates to the offense of tampering with evidence. The issue presented was whether a person who commits an obvious crime (i.e., an unmistakable crime) has constructive knowledge of an impending investigation of that crime. In other words, can a person who commits an obvious crime be considered to have knowledge about an impending investigation of that crime based on the commission of that offense alone? The Supreme Court says no.

In Barry, the defendant, Chelsey Barry traveled to Middletown, Ohio to meet up with friends. One of the friends gave her a condom filled with heroin and told her to conceal it in her body cavity with the promise she would be paid in drugs for helping them transport it to Hunington, West Virginia. On their way to West Virginia, the car they traveled in was pulled over for swerving. When the trooper approached the car, he smelled marijuana, searched the car, and questioned the individuals. Ultimately, Barry admitted she had inserted heroin in her body cavity and gave the heroin to the trooper. She was charged with, and ultimately convicted of, drug trafficking, drug possession, conspiracy, and tampering with evidence. 

Barry appealed her tampering with evidence conviction to the 4th District Court of Appeals, which affirmed her conviction. The court held by committing the "unmistakable crimes of drug trafficking, drug possession and conspiracy to traffic in drugs" at the time she concealed the heroin in her body cavity, Barry had "constructive knowledge of an impending investigation. Therefore, she knew she an official investigation was in progress or about to begin. Barry appealed this decision to the Ohio Supreme Court.

The Ohio Supreme Court ruled that in order to be convicted of tampering with evidence, the State must prove beyond a reasonable doubt the accused knew an official proceeding or investigation is in progress or likely to be instituted at the time the evidence is altered, destroyed, concealed, or removed. Therefore, the fact that an act is unmistakably a crime does not, by itself, show the accused knew about an investigation into that crime or that an investigation into that crime would likely begin. And the law will not assume the person has such knowledge.


This was the correct decision. The tampering with evidence statute itself requires the person to act "knowingly" when the offense is committed. Under Ohio law, a person acts knowingly, regardless of his purpose, when he is aware his conduct will probably cause a certain result. A person has knowledge of circumstances when he is aware that circumstances probably exist. It would be intellectually dishonest for the law to assume a person committing an obvious criminal act has actual knowledge he will be investigated for it simply because the act itself is obviously criminal in nature. 

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