The Ohio Supreme Court has ruled that a Scioto County woman who concealed heroin in a body cavity could not be convicted of tampering with evidence unless the state proved that she knew an investigation by authorities was ongoing or would likely be instituted.

According to a story in Court News Ohio, in a 7-0 decision authored by Justice Terrence O’Donnell, the Supreme Court of Ohio reversed Chelsey Barry’s tampering with evidence conviction for concealing 56 grams of heroin within a body cavity. Justice O’Donnell wrote, to prove she was guilty of tampering with evidence, prosecutors needed to prove beyond a reasonable doubt that the accused knew an official proceeding or investigation was in progress or likely to be commenced at the time the evidence was concealed. The state cannot simply infer that because Barry knew that concealing evidence was an “unmistakable crime,” but rather it must also prove that she knew a criminal investigation was ongoing or likely to follow.

“This is actually the second case the Supreme Court has decided on tampering with evidence in the last couple of years,” Scioto County Prosecutor Mark Kuhn said. “The ruling is that the person that hides evidence of a crime, they want more evidence that they knew or should have known that an investigation was underway.”

Kuhn said, the actual statute reads the way the ruling came down.

“Of course we would argue that someone that hides narcotics in a body cavity is not doing that because it was a convenient place to hide their drugs,” Kuhn said. “They were doing it because they want to keep law enforcement from finding it because they know there are officers doing drug interdiction on the highways and the Supreme Court has indicated at least how the statute is written, they’re not willing to allow the tampering statute to be used in those kinds of circumstances.”

Kuhn said Barry will still have to serve a six year mandatory sentence for drug trafficking, drug possession and conspiracy.

“The court’s decision did not change her other convictions,” Kuhn said. “It didn’t address those.”

The Court News Ohio story goes on to say the jury convicted her of drug trafficking, drug possession, conspiracy, and tampering with evidence. The trial court merged all but the tampering charge as allied offenses and sentenced her to six years in prison. The court also imposed a three-year consecutive sentence for tampering with evidence, for a total nine-year sentence. However, with the ruling, those three years are erased from the sentencing, leaving her with a six year term.

“We actually won it at the appellate level,” Kuhn said. “But the Supreme Court has sort of been hinting this is where they’re going on tampering.”

O’Donnell wrote Ohio has never approved the “unmistakable crime” jury instruction where merely establishing that the accused committed an obvious crime could be used to prove the accused knew at the time the evidence was concealed that an investigation was likely to be instituted later. He wrote that prosecutors failed to prove Barry was aware an investigation into her drug trafficking and possession was likely at the time she concealed evidence of those crimes. The Court vacated the tampering with evidence conviction and remanded the case to the trial court for further proceedings.