2023 Ohio 1246
Ohio Ct. App.2023Background
- In June 2016 Kori Glossett was discharged on bond; Dale Gear posted Kori’s bond on June 24 and was the last known person to have contact with Kori on June 25. ATM footage showed Kori as a passenger on June 24 and Gear alone on June 25 morning.
- Kori was reported missing July 21, 2016; Gear was told police were investigating and contacted them on July 22 reporting he last dropped Kori off on June 25.
- Gear purchased concentrated blacktop/concrete cleaner on July 31, 2016. An October 5, 2016 search of Gear’s property revealed: degraded blood with swirl/linear patterns on the garage floor, a mop with blood residue, and blood patches on a red pickup.
- Initial 2016 lab testing did not connect samples to Kori; additional untested samples were submitted in 2020 and DNA from blood on the red pickup matched a child of Kori’s parents.
- Gear was indicted (Aug. 2021) for tampering with evidence (R.C. 2921.12(A)(1)), convicted by a jury on June 8, 2022, moved unsuccessfully for a new trial, and appealed raising four assignments of error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence to support tampering conviction | State: evidence (Gear posted bond, was last with Kori, learned of investigation, bought cleaner, blood/degraded blood and mop on Gear’s property, DNA on truck matching child of Kori’s parents) if believed, establishes elements of R.C. 2921.12(A)(1) | Gear: blood on garage floor was degraded and not proven to be Kori’s; timing of blood deposits not established | Court: Overruled — viewing evidence favorably to prosecution, a rational juror could find each element proven beyond a reasonable doubt |
| Manifest weight of the evidence | State: physical evidence, timeline, and conduct support inference of intentional cleaning to impair evidence | Gear: experts could not date deposits or conclusively show cleaning of truck; some blood samples were unusable | Court: Overruled — jury credibility determinations reasonable; evidence does not weigh heavily against verdict |
| Denial of new trial (timeliness) | State: motion untimely under Crim.R. 33(B); no showing of unavoidable prevention | Gear: sought new trial based on juror statements post-trial suggesting ambiguity in deliberations | Court: Overruled — motion filed beyond 14-day rule and no clear-and-convincing proof of unavoidable prevention; jury poll confirmed unanimous verdict |
| Ineffective assistance of counsel (failure to call expert; failure to timely file new-trial motion; cumulative error) | State: counsel’s tactical decisions and cross-examination were reasonable; even if untimely filing was error, Gear cannot show prejudice | Gear: counsel was deficient for not calling a blood/forensic expert and for failing to timely file the new-trial motion | Court: Overruled — no deficient-performance record or proof of prejudice; tactical choice not to call expert reasonable; untimely motion would not have succeeded; no cumulative error |
Key Cases Cited
- State v. Thompkins, 78 Ohio St.3d 380 (Ohio 1997) (distinguishes sufficiency and manifest-weight review)
- State v. Jenks, 61 Ohio St.3d 259 (Ohio 1991) (standard for sufficiency review)
- State v. Straley, 139 Ohio St.3d 339 (Ohio 2014) (elements of tampering with evidence under R.C. 2921.12)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance of counsel)
- State v. Williams, 99 Ohio St.3d 493 (Ohio 2003) (jury poll as benchmark of verdict finality)