State v. Demastry

2011 Ohio 1320, 952 N.E.2d 1151, 193 Ohio App. 3d 495
CourtOhio Court of Appeals
DecidedMarch 17, 2011
Docket10-CA-13
StatusPublished
Cited by3 cases

This text of 2011 Ohio 1320 (State v. Demastry) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Demastry, 2011 Ohio 1320, 952 N.E.2d 1151, 193 Ohio App. 3d 495 (Ohio Ct. App. 2011).

Opinions

Hoffman, Presiding Judge.

{¶ 1} On April 9, 2009, the Fairfield County Grand Jury indicted appellant, Caitlin DeMastry, on one count of aggravated vehicular homicide in violation of R.C. 2903.06 and one count of involuntary manslaughter in violation of R.C. 2903.04, the predicate offense(s) being operating a motor vehicle while under the influence of alcohol and/or driving while under suspension. Appellant was also indicted on one count of tampering with evidence in violation of R.C. 2921.12. The charges arose from an incident when appellant struck and killed a pedestrian, Charles Cain Jr., while she was operating a motor vehicle. Immediately following the accident, appellant told a 9-1-1 dispatcher that her “designated driver,” Jeffrey Davis, was operating the motor vehicle. Davis was in fact a passenger in the vehicle.

[497]*497{¶ 2} On January 7, 2010, appellant filed a motion to dismiss the tampering count. The trial court denied the motion.

{¶ 3} A jury trial commenced on January 12, 2010. At the conclusion of the state’s case-in-chief, appellant moved for acquittal pursuant to Crim.R. 29. The motion was denied. The jury found appellant not guilty of the aggravated-vehicular-homicide count, but guilty of the involuntary-manslaughter count. The jury specifically found that the state did not prove beyond a reasonable doubt that at the time of the incident, appellant was operating her motor vehicle while under the influence of alcohol. The jury also found appellant guilty of tampering with evidence.

{¶ 4} On January 27, 2010, appellant filed a postverdict motion for acquittal pursuant to Crim.R. 29 as to the involuntary-manslaughter count. By entry filed March 9, 2010, the trial court denied the motion.

{¶ 5} By judgment entry filed March 18, 2010, the trial court sentenced appellant to four years on each count, to be served consecutively.

{¶ 6} Appellant filed an appeal, and this matter is now before this court for consideration. Assignments of error are as follows:

I

{¶ 7} “The trial court erred in overruling appellant’s motion to dismiss count three of the indictment prior to trial.”

II

{¶ 8} “The trial court erred in overruling appellant’s motion for acquittal as to count three of the indictment and there was insufficient evidence to support a conviction for count three of the indictment.”

III

{¶ 9} “The trial court erred in overruling appellant’s motion for acquittal as to the driving under suspension charge, as the predicate offense to count two.”

IV

{¶ 10} “The trial court erred in overruling appellant’s post-verdict motion for acquittal as to count two of the indictment.”

V

{¶ 11} “The trial court’s imposition of consecutive sentences was contrary to law.”

[498]*498I, II

{¶ 12} These assignments of error challenge appellant’s conviction of tampering with evidence in violation of R.C. 2921.12(A)(2). Appellant claims that the trial court erred in denying her motion to dismiss and her motion to acquit because there was insufficient evidence to support a conviction. We disagree.

{¶ 13} Tampering with evidence as defined in R.C. 2921.12(A)(2) states the following:

{¶ 14} “(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:

{¶ 15} “(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.”

{¶ 16} With regard to the tampering-with-evidence charge, the bill of particulars filed November 25, 2009, states the following:

{¶ 17} “[I]t is alleged that, the Defendant, on or about the 22nd day of February, 2009, at the County of Fairfield, State of Ohio, knowing that an official proceeding or investigation was in progress or about to be or likely to be instituted, unlawfully, did make, present or use a record, document or thing to-wit: a 911 call placed at 3:28 a.m. on February 22, 2009, knowing it to be false 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, in violation of § 2921.12(A)(2) of the Ohio Revised Code.”

{¶ 18} Appellant argues that a more specific criminal statute, R.C. 2921.13(A)(3) (falsification) and/or R.C. 2921.31(A) (obstructing official business), takes precedence over the general criminal prohibition of R.C. 2921.12(A)(2). Those sections state the following:

{¶ 19} R.C. 2921.13 states:

{¶ 20} “(A) No person shall knowingly make a false statement, or knowingly swear or affirm the truth of a false statement previously made, when any of the following applies:

{¶ 21} “(3) The statement is made with purpose to mislead a public official in performing the public official’s official function.”

{¶ 22} R.C. 2921.31 states:

[499]*499{¶ 23} “(A) No person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official of any authorized act within the public official’s official capacity, shall do any act that hampers or impedes a public official in the performance of the public official’s lawful duties.”

{¶ 24} Appellant argues that these statutes are more specific by definition than the tampering-with-evidence statute. Falsification requires a false statement to a public official with the purpose to mislead. Obstruction of official business requires purpose to prevent, obstruct, or delay an official duty and “any act” that hampers or impedes an official duty. Appellant argues that either or both of these specific legislative statutes prevail over the general statute of tampering with evidence, citing State v. Conyers (1999), 87 Ohio St.3d 246, 248, 719 N.E.2d 535, in support.

{¶ 25} Appellant argues that the more specific statute of falsification and/or obstructing official business applied to her conduct; therefore, the trial court should have dismissed the tampering-with-evidence count.

{¶ 26} It is undisputed in this case that the conduct alleged was appellant’s making false statements in her 9-1-1 call for the purpose of misleading the police in their investigation of the incident. Appellant told the 9-1-1 dispatcher that Davis, her “designated driver,” struck Cain.

{¶ 27} In State v. Lazzaro (1996), 76 Ohio St.3d 261, 266, 667 N.E.2d 384, the Supreme Court of Ohio held the following:

{¶ 28} “The General Assembly has adopted legislation intended to discourage individuals from purposely giving false information that hinders public officials in the performance of their duties. Complete and honest cooperation with the law enforcement process by all citizens is essential to the effective operation of the justice system. Columbus v. New (1982), 1 Ohio St.3d 221, 227, 1 OBR 244, 249, 438 N.E.2d 1155, 1160.

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Related

State v. Jones
2022 Ohio 3978 (Ohio Court of Appeals, 2022)
State v. DeMastry
948 N.E.2d 450 (Ohio Supreme Court, 2011)
State v. Demastry
2011 Ohio 1320 (Ohio Court of Appeals, 2011)

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Bluebook (online)
2011 Ohio 1320, 952 N.E.2d 1151, 193 Ohio App. 3d 495, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-demastry-ohioctapp-2011.