State v. Harvey

2025 Ohio 1889

Opinion

[Cite as State v. Harvey, 2025-Ohio-1889.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY

STATE OF OHIO, CASE NO. 9-24-27

PLAINTIFF-APPELLEE,

V. OPINION AND MARCUS G. HARVEY, JUDGMENT ENTRY DEFENDANT-APPELLANT.

Appeal from Marion County Common Pleas Court Trial Court No. 23-CR-371

Judgment Affirmed

Date of Decision: May 27, 2025

APPEARANCES:

W. Joseph Edwards for Appellant

Allison M. Kesler for Appellee Case No. 9-24-27

ZIMMERMAN, J.

{¶1} Defendant-appellant, Marcus G. Harvey (“Harvey”), appeals the June

18, 2024 judgment entry of sentence of the Marion County Court of Common Pleas.

For the reasons that follow, we affirm.

{¶2} The case originated from an incident on August 19, 2023, where law

enforcement officers were dispatched to a location in Marion, Ohio, in response to

alleged threats involving a person brandishing a gun. When law enforcement

located Harvey, officers observed him place a bag into the passenger compartment

of a truck, which prevented immediate access to the bag and its contents. The

subsequent search of the bag revealed a firearm, along with Harvey’s identification

and debit cards bearing his name.

{¶3} On August 23, 2023, the Marion County Grand Jury indicted Harvey

on Count One of tampering with evidence in violation of R.C. 2921.12(A)(1), (B),

a third-degree felony, and Count Two of receiving stolen property in violation of

R.C. 2913.51(A), (C), a fourth-degree felony. On August 25, 2023, Harvey

appeared for arraignment and entered pleas of not guilty.

{¶4} The case proceeded to a jury trial on May 1, 2024, and the jury found

Harvey guilty of Count One but not guilty of Count Two of the indictment. On June

18, 2024, the trial court sentenced Harvey to three years of community control.

(Doc. No. 77).

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{¶5} Harvey filed his notice of appeal on June 26, 2024, and raises one

assignment of error for our review.

Assignment of Error

The Trial Court Erred In Entering A Finding Of Guilty Because The Verdict Was Against The Manifest Weight Of The Evidence.

{¶6} In his sole assignment of error, Harvey argues that his tampering with

evidence conviction is against the manifest weight of the evidence.

Standard of Review

{¶7} Manifest “weight of the evidence and sufficiency of the evidence are

clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389

(1997). In determining whether a conviction is against the manifest weight of the

evidence, a reviewing court must examine the entire record, “‘weigh[] the evidence

and all reasonable inferences, consider[] the credibility of witnesses and determine[]

whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way

and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.’” Id. at 387, quoting State v. Martin, 20 Ohio

App.3d 172, 175 (1st Dist. 1983). A reviewing court must, however, allow the trier

of fact appropriate discretion on matters relating to the weight of the evidence and

the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967).

When applying the manifest-weight standard, “[o]nly in exceptional cases, where

the evidence ‘weighs heavily against the conviction,’ should an appellate court

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overturn the trial court’s judgment.” State v. Haller, 2012-Ohio-5233, ¶ 9 (3d Dist.),

quoting State v. Hunter, 2011-Ohio-6524, ¶ 119.

Analysis

{¶8} Harvey was convicted of tampering with evidence in violation of R.C.

2921.12(A)(1). R.C. 2921.12 sets forth the elements of the offense of tampering

with evidence and provides, in relevant 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 . . . .” R.C. 2921.12(A)(1). Thus, to prove that Harvey tampered with

evidence, the State was required to prove “(1) the knowledge of an official

proceeding or investigation in progress or likely to be instituted; (2) the alteration,

destruction, concealment, or removal of the potential evidence; and (3) the purpose

of impairing the potential evidence’s availability or value in such proceeding or

investigation.” State v. Straley, 2014-Ohio-2139, ¶ 11.

{¶9} “Knowledge that an official proceeding or investigation is under way

or is likely to be instituted is based on a reasonable person standard.” State v.

Shepherd, 2020-Ohio-3915, ¶ 16 (3d Dist.). “The focus is on the intent of the

defendant rather than the purpose of the criminal investigation.” State v. Hicks,

2008-Ohio-3600, ¶ 54 (3d Dist.). “R.C. 2921.12(A)(1) employs a ‘purposely’

culpability standard.” State v. Rock, 2014-Ohio-1786, ¶ 13 (3d Dist.). “A person

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acts purposely when it is his specific intention to cause a certain result, or, when the

gist of the offense is a prohibition against conduct of a certain nature, regardless of

what the offender intends to accomplish thereby, it is his specific intention to engage

in conduct of that nature.” R.C. 2901.22(A). “To determine whether a defendant

acted purposely, his or her intent may be inferred from the surrounding facts and

circumstances.” Shepherd at ¶ 17.

{¶10} On appeal, Harvey argues that his tampering with evidence conviction

is against the manifest weight of the evidence, pointing to the absence of DNA

evidence linking him to the stolen firearm and the lack of evidence that law

enforcement was prevented from accessing the bag. In other words, Harvey is

challenging the weight of the evidence supporting that he was the person who

committed the crime and the weight of the evidence supporting that he acted with

purpose to impair law enforcement’s investigation. Because they are the only

elements that Harvey challenges on appeal, we will review the weight of the

evidence supporting only whether he was the person who tampered with the

evidence and whether he acted with purpose to impair law enforcement’s

investigation.

{¶11} “‘It is well settled that in order to support a conviction, the evidence

must establish beyond a reasonable doubt the identity of the defendant as the person

who actually committed the crime at issue.’” State v. Missler, 2015-Ohio-1076, ¶

13 (3d Dist.), quoting State v. Johnson, 2014-Ohio-1226, ¶ 27 (7th Dist.). “‘[D]irect

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or circumstantial evidence is sufficient to establish the identity of a defendant as the

person who committed a crime.’” Id., quoting State v. Collins, 2013-Ohio-488, ¶

19 (8th Dist.). “‘Circumstantial evidence’ is the ‘proof of facts by direct evidence

from which the trier of fact may infer or derive by reasoning or other facts.’” State

v. Lawwill, 2008-Ohio-3592, ¶ 12 (12th Dist.), quoting State v. Wells, 2007-Ohio-

1362, ¶ 11 (12th Dist.). Circumstantial evidence has no less probative value than

direct evidence. State v. Eckard, 2016-Ohio-5174, ¶ 30 (3d Dist.). See also State

v. Heinish, 50 Ohio St.3d 231, 238 (1990) (“This court has long held that

circumstantial evidence is sufficient to sustain a conviction if that evidence would

convince the average mind of the defendant’s guilt beyond a reasonable doubt.”).

{¶12} Based on our review of the record, Harvey’s arguments are without

merit. At trial, the State presented the testimony of Officer Nicholas Geurkink

(“Officer Geurkink”) of the Marion Police Department who investigated the report

that Harvey threatened a neighbor on August 19, 2023 with a firearm. After finding

Harvey, Officer Geurkink saw that Harvey had a black crossbody bag across his

chest. Officer Geurkink ordered Harvey to remove the bag from his body, but

instead of complying, Harvey “began taking the bag off and turned around and

began walking away.” (May 1, 2024 Tr. at 136). Officer Geurkink testified that

Harvey then put the bag in the passenger compartment of a Dodge truck that he did

not own. According to Officer Geurkink, because Harvey was not the truck’s

owner, law enforcement had to wait for permission from the truck’s owner to search

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it and retrieve the bag. After receiving permission, Officer Geurkink found a

firearm, Harvey’s identification, and debit cards with Harvey’s name inside the bag.

{¶13} Importantly, Officer Geurkink’s direct testimony identifying Harvey

as the person who tampered with evidence refutes Harvey’s identity argument.

Therefore, the presence or absence of DNA evidence at trial is not determinative in

this case. That is, Harvey’s tampering with evidence conviction did not hinge on

whether Harvey physically touched the firearm. Rather, the critical evidence is the

direct testimony of Officer Geurkink, who stated that he observed Harvey in sole

possession of the bag and that Harvey put the bag in the truck’s passenger

compartment instead of complying with his order to place the bag on the ground.

Further, the fact that Harvey’s identification and debit cards bearing his name were

located in the bag with the stolen firearm constitutes circumstantial evidence that

the bag and its contents belonged to Harvey. This direct and circumstantial

evidence, taken together, carries significantly more weight in establishing Harvey’s

identity as the perpetrator than the absence of DNA evidence. Moreover, any

argument that the firearm’s owner could not definitively identify the firearm is

irrelevant as to the question of whether Harvey tampered with evidence.

{¶14} Furthermore, Harvey’s argument that his tampering with evidence

conviction is against the manifest weight of the evidence because there was nothing

that prevented law enforcement from accessing the bag and its contents is belied by

Officer Geurkink’s testimony. Indeed, Officer Geurkink’s testimony established

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that Harvey disregarded his instructions and placed the bag in another’s truck,

supporting the conclusion that Harvey aimed to impair the availability of potential

evidence. Critically, the resulting delay in accessing the bag constitutes evidence

of his intent. This evidence of Harvey’s deliberate actions and their immediate

consequence of delaying law enforcement access outweighs any suggestion that

Harvey did not intend to impair an investigation. Additionally, whether the truck

or bag was legally searchable does not change the fact that Harvey’s conduct

demonstrates a purpose to impair law enforcement’s investigation.

{¶15} For these reasons, we conclude that the jury did not lose its way and

create such a manifest miscarriage of justice that Harvey’s tampering with evidence

conviction must be reversed and a new trial ordered. Therefore, Harvey’s tampering

with evidence conviction is not against the manifest weight of the evidence.

{¶16} Harvey’s assignment of error is overruled.

{¶17} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

MILLER and WILLAMOWSKI, J.J., concur.

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JUDGMENT ENTRY

For the reasons stated in the opinion of this Court, the assignment of error is

overruled and it is the judgment and order of this Court that the judgment of the trial

court is affirmed with costs assessed to Appellant for which judgment is hereby

rendered. The cause is hereby remanded to the trial court for execution of the

judgment for costs.

It is further ordered that the Clerk of this Court certify a copy of this Court’s

judgment entry and opinion to the trial court as the mandate prescribed by App.R.

27; and serve a copy of this Court’s judgment entry and opinion on each party to the

proceedings and note the date of service in the docket. See App.R. 30.

William R. Zimmerman, Judge

Mark C. Miller, Judge

John R. Willamowski, Judge

DATED: /hls

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