State v. Henry

2024 Ohio 849

• Court: Ohio Court of Appeals
• Decided: March 8, 2024
• Docket: C-230287
• Status: Published

Opinion

[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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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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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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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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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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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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{¶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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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.

{¶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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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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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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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

12 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.