[Cite as State v. Harrison, 2020-Ohio-6967.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
JEFFERSON COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
DARYL D. HARRISON,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 19 JE 0009
Appellant’s Application for Reopening
BEFORE:
Cheryl L. Waite, Carol Ann Robb, David A. D’Apolito, Judges.
JUDGMENT:
Denied.
Atty. Timothy Young, Ohio Public Defender and Atty. Craig M. Jaquith, Assistant State
Public Defender, Office of the Ohio Public Defender, 250 E. Broad Street, Suite 1400,
Columbus, Ohio 43215, for Defendant-Appellant.
Dated: December 31, 2020
PER CURIAM.
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{¶1} Appellant Daryl D. Harrison has filed an application to reopen his appeal.
He raises a single assignment of error arguing that his appellate counsel was ineffective
for failing to challenge the sufficiency of the evidence supporting his tampering with the
evidence conviction. He argues that he had no reason to know that officers would
commence a firearm investigation when they approached his vehicle. Because he did
not know a firearm investigation was likely to commence, he argues that his actions in
concealing the firearm did not constitute tampering with evidence pursuant to State v.
Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175. For the reasons provided,
Appellant's application for reopening is denied.
Factual and Procedural History
{¶2} Appellant was charged with several crimes in two separate indictments that
were later consolidated for the purpose of trial. Here, he challenges only his tampering
with the evidence conviction associated with case number 18 CR 216. In that case, the
following facts are relevant:
[O]n December 13, 2018 * * * Steubenville police officers were dispatched
to a Wendy’s restaurant located at Hollywood Plaza to conduct a welfare
check on two individuals who were reportedly smoking marijuana in a
Sports Utility Vehicle (“SUV”). (4/1/19 Trial Tr. Vol. III, p. 324.) Patrolman
James Marquis arrived at the scene first. Officer Sean Exterovich and
Patrolman Edward Karovic arrived shortly thereafter. Two of the cruisers
had cameras mounted on their dashboard and the officers wore
microphones which captured the events.
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When the officers walked towards the vehicle, they observed Appellant in
the driver’s seat of the vehicle and a woman later identified as his girlfriend
in the passenger seat. Officers observed both occupants reach underneath
their seats. As the officers approached the vehicle, they detected a strong
smell of marijuana and saw Appellant smoking a marijuana cigarette.
At the officer’s request, Appellant exited the vehicle and handed Patrolman
Marquis the marijuana cigarette. He claimed that he had reached under his
seat to locate his GPS unit, which he held in his hand. Based on the odor
and presence of marijuana, the officers conducted a probable cause search
of the vehicle and also a patdown of both Appellant and his girlfriend. The
officers did not find any contraband on Appellant’s person, but located what
appeared to be crack cocaine and a crack pipe in his girlfriend’s hooded
sweatshirt.
Officer Exterovich asked Appellant whether he had any firearms inside the
vehicle. Appellant responded that he did not, as he is a convicted felon and
subject to a weapons disability. However, during a search of the vehicle
officers found a firearm underneath the passenger seat. A loose bullet and
a magazine were located in the center console. Both Appellant and his
girlfriend denied having any knowledge of the firearm. Officers relayed the
firearm’s serial number to dispatch and learned that it had been reported
stolen several days before by a Steubenville resident.
State v. Harrison, 7th Dist. Jefferson No. 19 JE 0009, 2020-Ohio-3624, ¶ 6-9.
Case No. 19 JE 0009
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{¶3} In the two indictments, Appellant was charged with one count of failure to
comply with the order or signal of a police officer, a felony of the third degree in violation
of R.C. 2921.331(B), (C)(5)(a)(iii); one count of having a weapon while under disability, a
felony of the third degree in violation of R.C. 2923.13(A)(3); one count of receiving stolen
property, a felony of the fourth degree in violation of R.C. 2913.51(A), (C); tampering with
evidence, a felony of the third degree in violation of R.C. 2921.12(A)(1), (B); and
improperly handling a firearm in a motor vehicle, a felony of the fourth degree in violation
of R.C. 2923.16(B).
{¶4} Following a jury trial, Appellant was convicted of all charged offenses,
including tampering with the evidence due to his actions in placing the gun underneath
the seat as police approached the vehicle. The trial court imposed an aggregate sentence
of twelve years of incarceration.
{¶5} On appeal, we reversed and vacated Appellant’s receiving stolen property
conviction and the corresponding sentence. We affirmed all other aspects of Appellant’s
convictions and sentence.
Reopening
{¶6} Pursuant to App.R. 26(B)(1), a criminal defendant “may apply for reopening
of the appeal from the judgment of conviction and sentence, based on a claim of
ineffective assistance of appellate counsel.” An applicant must demonstrate that “there
is a genuine issue as to whether the applicant was deprived of the effective assistance of
counsel on appeal.” App.R. 26(B)(5). If the application is granted, the appellate court
must appoint counsel to represent the applicant if the applicant is indigent and
unrepresented. App.R. 26(B)(6)(a).
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{¶7} In order to show ineffective assistance of appellate counsel, the applicant
must meet the two-prong test outlined in Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). Pursuant to Strickland, the applicant must first
demonstrate deficient performance of counsel and then must demonstrate resulting
prejudice. Id. at 687. See also App.R. 26(B)(9).
ASSIGNMENT OF ERROR
The trial court violated Mr. Harrison's rights to due process and a fair trial
when, in the absence of sufficient evidence, he was convicted of tampering
with evidence. Fifth and Fourteenth Amendments to the United States
Constitution; Article I, Section 16 of the Ohio Constitution. (Apr. 16, 2019,
Judgment Entry.)
{¶8} Appellant argues the Ohio Supreme Court has held that the state must
establish that law enforcement was conducting an investigation related to the conduct
forming the basis for a tampering with evidence charge, or that such investigation was
likely to be conducted, in order to convict. See Straley, supra. Here, Appellant argues
that the state did not establish that the officers were conducting a firearm investigation or
that such investigation was likely.
{¶9} The state has not filed a response brief.
{¶10} In Straley, officers initiated a traffic stop on a vehicle driven by the appellant
on suspicion of driving under the influence of alcohol. Id. at ¶ 3. During the investigation,
the officers decided not to arrest the appellant and attempted to arrange for someone to
drive her home. At some point, she ran to a nearby building and called out to the officers
Case No. 19 JE 0009
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that she was not fleeing, but had to urinate. She shortly returned to the area where
officers waited. One officer walked over to the building and saw a plastic baggie
containing suspected drugs near where the appellant had urinated. She was then
charged with driving under the influence, drug related offenses, tampering with evidence,
and public urination.
{¶11} On appeal, the Second District vacated the tampering with evidence
conviction because the conduct associated with that charge, dropping the baggie of drugs
near the building, did not relate to the ongoing investigation into driving under the
influence of alcohol or any investigation regarding public urination. The Ohio Supreme
Court accepted the case as a certified conflict. The Straley Court affirmed the Second
District. The Court explained the importance of “the time of the act of alleged tampering.”
Id. at ¶ 19. At the time the actions forming the basis for the tampering charge occur, the
conduct supporting this charge must either be the subject of an ongoing or likely
investigation in order to convict. Id.
{¶12} The Straley Court determined that, at the point the appellant dropped the
baggie of drugs, she was under an alcohol investigation and a likely public urination
investigation. Neither of these involved drug activity, and had she not dropped the baggie
of drugs, they do not appear likely to have formed the basis for a separate investigation.
Because her conduct in disposing of the drugs was not related to the ongoing or likely to
occur investigations, the Court held that the tampering conviction was not supported by
sufficient evidence. Id. at ¶ 19.
{¶13} In the instant matter, the relevant question is: when did Appellant attempt
to hide the firearm? While there is no direct evidence as to the specific time this conduct
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occurred, the record provides circumstantial evidence that it occurred when he reached
underneath his seat as the officers approached the vehicle. Pursuant to Straley, the
important issue is: what investigation was taking place or was likely to occur at that
moment. This record shows Appellant did not know why the three police cars had arrived
or that they had received a tip about possible drug activity. However, as he was holding
a marijuana cigarette in his hand as the officers approached the vehicle, it can be
presumed that he knew some drug investigation had or was likely to begin.
{¶14} The question becomes whether Appellant had any reason to believe that
investigation into a firearm was likely. The record reveals that he has a criminal history
involving drug related charges, hence is under a weapons disability. It can be presumed
that he knew a search of his person, and probably the vehicle, would likely occur based
on the open and obvious presence of drugs. Any such search would result in discovery
of his firearm. The record shows that the officers believed that they needed to investigate
for possible firearms, because when Officer Sean Exterovich approached the vehicle, he
asked Appellant if he had a firearm. Appellant responded that he did not, as he was under
a weapons disability. In a jailhouse telephone call to a friend, Appellant confided that he
had forgotten that his gun was inside the vehicle until police arrived. These facts
demonstrate that Appellant knew the presence of the firearm was problematic and would
likely be discovered by law enforcement during their investigation.
{¶15} Importantly, at the moment Appellant placed the firearm underneath his
seat, the officers were approaching the vehicle and able to observe his movements.
Despite knowing that the officers could see him through the windshield, he made a furtive
movement and placed his hands underneath his seat. At that point, he could reasonably
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expect that the officers may suspect his actions involved dangerous contraband and
would investigate those actions for purposes of officer safety, which occurred.
{¶16} In summation, there is ample evidence that an investigation regarding
whether he had a firearm did occur and was likely to occur here, based on Appellant’s
weapons disability, his movements, and the obvious presence of drugs. Based on
Straley, his tampering with evidence conviction was appropriate and Appellant’s
argument that he was deprived of effective assistance of counsel on appeal is misplaced.
{¶17} Accordingly, Appellant's sole assignment of error is without merit.
Conclusion
{¶18} Appellant argues that his appellate counsel was ineffective for failure to
challenge the sufficiency of the evidence presented relating to his tampering with
evidence conviction. For the reasons provided, Appellant has failed to show he was
deprived of effective assistance of counsel on appeal.
{¶19} Accordingly, Appellant's application for reopening is denied.
JUDGE CHERYL L. WAITE
JUDGE CAROL ANN ROBB
JUDGE DAVID A. D’APOLITO
Case No. 19 JE 0009
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NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 19 JE 0009