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March 5, 2026 Get Citation Alerts Download PDF Add Note

State v. Gill

Ohio Court of Appeals

• Citations: 2026 Ohio 748
• Docket Number: 25AP-738

• Judges: Edelstein

• Opinion

• Authorities (25)

• Cited By (0)

• Summaries (0)

• Similar Cases (667)

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Syllabus

The trial court erred in denying Mr. Gill's Crim.R. 29(A) motion for judgment of acquittal on the weapons under disability charge. The state formally rested its case without making exception for the having weapons under disability charge and failed to present any evidence of Mr. Gill's alleged disability when it closed its case in chief. Additionally, the state presented insufficient evidence to find Mr. Gill guilty of tampering with evidence. The state offered evidence only that Mr. Gill possessed a gun, law enforcement did not recover the gun, and Mr. Gill was not present at the scene when law enforcement arrived. However, the state did not present any evidence that Mr. Gill engaged in an act to alter, destroy, conceal, or remove the gun with the purpose of impairing an investigation. We reverse the judgment of conviction of the Franklin County Court of Common Pleas and enter a judgment of acquittal.

Combined Opinion

[Cite as State v. Gill, 2026-Ohio-748.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellant/Cross- :
Appellee, No. 25AP-738
: (C.P.C. No. 23CR-0696)
v.
: (REGULAR CALENDAR)
Lee Gill,
:
Defendant-Appellee/Cross-
Appellant. :

D E C I S I O N

Rendered on March 5, 2026

On brief: Shayla D. Favor, Prosecuting Attorney, and
Jeffrey D. Devereaux for appellant/cross-appellee.

On brief: The Tyack Law Firm Co., LPA, James P. Tyack, and
Cecilia M. Hardy for appellee/cross-appellant.

APPEAL from the Franklin County Court of Common Pleas
EDELSTEIN, J.

{¶ 1} Plaintiff-appellant/cross-appellee, State of Ohio, appeals from a judgment
entry of the Franklin County Court of Common Pleas finding defendant-appellee/cross-
appellant, Lee Gill, guilty of tampering with evidence and having weapons while under
disability. Mr. Gill cross-appeals from the same judgment entry. For the following reasons,
we reverse and vacate the convictions.
No. 25AP-738 2

I. Facts and Procedural History
{¶ 2} By indictment filed February 14, 2023, the state charged Mr. Gill with one
count of purposeful murder, in violation of R.C. 2903.02(A)(1), an unclassified felony
(Count 1); one count of felony murder, in violation of R.C. 2903.02(A)(2), an unclassified
felony (Count 2); one count of felonious assault, in violation of R.C. 2903.11, a second-
degree felony (Count 3); one count of discharge of a firearm on or near prohibited premises,
in violation of R.C. 2923.162, a first-degree felony (Count 4); one count of tampering with
evidence, in violation of R.C. 2921.12, a third-degree felony (Count 5); one count of
improperly discharging a firearm at or into a habitation or a school safety zone, in violation
of R.C. 2923.161, a second-degree felony (Count 6); and one count of having weapons while
under disability, in violation of R.C. 2923.13, a third-degree felony (Count 7). Counts 1
through 6 contained accompanying firearm specifications. The charges related to the
October 22, 2022 fatal shooting of J.C. and the nonfatal shooting of J.L. outside of Platform
Lounge in Columbus. The state separately issued an indictment charging co-defendant
Charles Williams with the same offenses as Counts 1 through 6. Mr. Gill entered a plea of
not guilty.
{¶ 3} On February 26, 2024, Mr. Gill filed an entry with the trial court waiving his
right to trial by jury as to Count 7, having weapons while under disability. The entry stated:
I Lee Gill, Defendant in the above cause, hereby voluntarily
waive and relinquish my right to a trial by jury and elect to be
tried by a Judge of the Court in which said cause may be
pending. I fully understand that under the laws of this State, I
have a constitutional right to a trial by a jury. This as to Count
7 only; Weapon Under Disability, F-3.

(Feb. 26, 2024 Entry.)

{¶ 4} The next day, on February 27, 2024, the matter proceeded to a joint trial of
Mr. Gill and his co-defendant, Mr. Williams. The state called 11 witnesses. In State v.
Williams, 2025-Ohio-1151 (10th Dist.), we summarized the evidence the state presented at
the February 2024 trial as follows:
At all relevant times, Mr. Gill and Mr. Williams worked
security for Platform Lounge. (See Tr. Vol. I at 42-47.) On
October 22, 2022, J.C. and J.L. went to Platform Lounge for a
few drinks. (Tr. Vol. I at 39-40, 61-63.) Around 11:40 p.m., the
No. 25AP-738 3

two men decided to leave. (Tr. Vol. I at 42. See Ex. A3,
Channel 13.) On their way out, Mr. Gill approached J.C. about
leaving the bar with an alcoholic drink in his hand. (Tr. Vol. I
at 42-43, 60-61, 69-70; Ex. A3, Channel 13.) The exchange
between Mr. Gill and J.C. became heated, but J.L. was able to
deescalate the situation. (Tr. Vol. I at 43, 46-48.) J.C. and J.L
then got into J.L.’s white Dodge Challenger, which was parked
in the Platform Lounge parking lot. (Tr. Vol. I at 43-44, 50,
55-56.)

At trial, J.L. testified that as they were preparing to leave, he
“heard a shot and then . . . heard a ricochet come through the
passenger back panel window.” (Tr. Vol. I at 50.) In response,
J.L. (who was a licensed firearm permit holder) grabbed his
firearm located on the back floorboard of his vehicle and
exited his car. (Tr. Vol. I at 48-50, 56-57.) Surveillance video
footage of the parking lot showed Mr. Gill, Mr. Williams, and
a third man, Dominic Elmore, standing around the rear
passenger side of J.L.’s parked car at 11:45 p.m. when J.L.
opens the driver’s door, the three men suddenly jump back,
J.L. exits the vehicle while ducking, both Mr. Elmore and Mr.
Gill pull out handguns, and Mr. Elmore begins rapidly firing
at the car. (See Feb. 28, 2024 Tr. Vol. II at 370-76, 388, 416-
17, 427-33; Ex. A3, Channel 16; Ex. A3, Channel 14.) In the
video footage, while Mr. Williams is running away from the
shooting to retrieve a rifle from the trunk of a car parked
nearby (see Tr. Vol. II at 369-76; Ex. A3, Channel 15; Ex. A3,
Channel 14; Ex. A3, Channel 13), J.C. can be seen crawling out
of the driver’s side door and running away from the vehicle
towards Platform Lounge’s south parking lot (see Ex. L), out
of view of the surveillance camera and toward Country Club
Road. (See Tr. Vol. I at 50, 57; Tr. Vol. II at 376-78; Ex. A3,
Channel 16; Ex. L.)

Although J.L. was not injured when he exited his car, he
testified he did not know about J.C.’s condition after he exited
the vehicle and ran away. (See Tr. Vol. I at 57; Tr. Vol. II at
376-78; Ex. A3, Channel 16; Ex. L.) And, on review, it is
unclear from the surveillance video footage whether J.C. had
been shot at that point. (See Ex. A3, Channel 16.) After the
shooting stopped, J.L. got back into his vehicle, drove out of
the lounge’s parking lot, and attempted to locate J.C. (Tr. Vol.
I at 49-51, 57-58, 64-65. See also Tr. Vol. II at 417-24.)

Not long after the incident, J.C. was discovered lying face
down on Country Club Road near Platform Lounge’s south
No. 25AP-738 4

parking lot. (See Tr. Vol. I at 51-52, 65, 77-81, 128-29; Tr. Vol.
II at 378; Ex. Q; Ex. B29; Ex. L.) Law enforcement and medics
responded to the scene, where J.C. was pronounced dead at
12:10 a.m. on October 23, 2022 and transported to the
morgue. (See Tr. Vol. II at 346-47; Ex. E.) At trial, the forensic
pathologist who conducted the autopsy examination of J.C.,
Dr. Russell Uptegrove, testified J.C. would have been
immediately paralyzed from the penetrating gunshot wound
injury to his neck and died almost instantaneously because
the bullet transected his brain stem. (See Ex. E; Feb. 29, 2024
Tr. Vol. III at 461-69, 480-81.) Based on that testimony, we
can surmise J.C. had not yet been struck when he exited J.C.’s
car and ran out of view of the surveillance cameras. (See Ex.
A3, Channel 16.) During the autopsy, Dr. Uptegrove removed
four lead fragments and three copper jacket fragments from
the soft tissue of J.C.’s neck, which were collected as evidence
and submitted to the crime lab for analysis. (See Tr. Vol. III at
479-80; Ex. M92; Ex. E. See also Tr. Vol. II at 357-58; Ex. F.)

Evidence presented at trial established J.L.’s car was struck by
multiple rounds of bullets. (See Tr. Vol. I at 63, 76, 204-18,
220; Ex. D; Ex. J.) Although bullet fragments and a spent
projectile were found in J.L.’s vehicle, these items were not
sent to the crime lab for analysis. (Tr. Vol. II at 391-92; Ex. J.)
Columbus Police Department (“CPD”) Detective Derek
Corbin testified that, based on his experience observing
shooting scenes, it was his opinion that damage to the Dodge
Challenger was caused by bullets fired from outside of the
vehicle. (Tr. Vol. II at 442-43.)

Police recovered 17 seventeen spent shell casings fired from
multiple firearms—including three spent rifle casings—and
one spent projectile from Platform Lounge’s parking lot on the
morning of October 23, 2022. (See Ex. L; Ex. B109; Tr. Vol. I
at 119-21, 130-31, 135, 139-40; Tr. Vol. II at 387; Ex. F.)
Additionally, a woman who lived across the street from
Platform Lounge, R.C., testified about bullets striking her
home while she was inside that night. (Tr. Vol. I at 33-34, 111-
13, 127-28, 161, 173-74; Ex. H; Ex. B31 through B37. But
see Tr. Vol. II at 405-06.) Her home is located approximately
50 feet from where J.C.’s body was found. (See Tr. Vol. I at
129; Ex. L; Ex. B30.) Police took photographs of the damage
to R.C.’s home on the night of the incident. (See Tr. Vol. I at
111-14.) But detectives could not identify exactly what struck
R.C.’s home at trial because the police did not collect any
No. 25AP-738 5

evidence from her property. (Tr. Vol. I at 127-28; Tr. Vol. II at
405-06.)

Law enforcement reviewed surveillance video footage
depicting the incident on October 24, 2022. (See Tr. Vol. I at
165-66; Ex. I. See also Ex. L (specifying locations of outdoor
security cameras).) The surveillance footage from a security
camera located at the south corner of the strip mall showed
Mr. Gill and Mr. Williams go out of view of the camera in a
southbound direction—toward the area where J.C.’s body was
found (see Ex. L; Ex. B27)—and depicted movement
suggesting a gun was fired in that area. (See Tr. Vol. I at 165-
66, 177, 180-81; Tr. Vol. II at 378-79, 434-36. See also Ex. A3,
Channel 16.) In that video, Mr. Gill can be seen racking the
slide on his handgun backwards while walking toward
Platform Lounge’s south parking lot and disappearing from
view of the surveillance camera for about 25 seconds. (See Tr.
Vol. II at 378-79; Ex. A3, Channel 16.) Mr. Williams follows
after Mr. Gill with his rifle in tow, disappearing from the
surveillance camera’s view for approximately five seconds
before running back into the frame toward the lounge’s front
entrance. (Tr. Vol. II at 378-79; Ex. A3, Channel 16.) At 11:47
p.m., Mr. Gill, Mr. Williams, and Mr. Elmore can be seen
walking into Platform Lounge together. (Ex. A3, Channel 16;
Tr. Vol. II at 379.) Less than two minutes later, Mr. Gill gets
into his vehicle and leaves. (Ex. A3, Channel 14; Tr. Vol. II at
369-70, 374, 380-81, 440.)

Detective Richard Bair explained that law enforcement did
not initially search Platform Lounge’s south parking lot when
collecting evidence in the early morning of October 23, 2022
because it was not designated within the taped-off crime scene
area. (See Tr. Vol. I at 122-24, 149, 154. See also Tr. Vol. II at
411-13.) After reviewing video surveillance footage depicting
Mr. Gill and Mr. Williams running toward the south parking
lot near where J.C.’s body was found (see Ex. B25; Ex. B27),
detectives searched that area for additional evidence on
October 24, 2022 around 12:00 p.m., approximately 36 hours
after the shooting incident. (See Ex. I; Tr. Vol. I at 177, 187-
201; Tr. Vol. II at 389-93.) Five 9mm Ruger Hornady shell
casings and two spent projectiles were recovered from the
south parking lot near the south corner of the strip mall. (Ex.
I; Tr. Vol. I at 177, 187-201; Ex. C2; Ex. C4.) Although the shell
casings were submitted to the CPD crime lab for analysis, the
two spent projectiles were not. (Tr. Vol. II at 390-91. See
also Tr. Vol. II at 407.)
No. 25AP-738 6

At trial, J.L. identified Mr. Williams as one of the three
shooters (Tr. Vol. I at 54-55) and described seeing Mr.
Williams point an “AR” rifle in his direction when J.L. exited
his vehicle. (Tr. Vol. I at 50, 81-82. See also Tr. Vol. II at
351; Ex. A3, Channel 16.) And surveillance video showed Mr.
Williams pointing and firing a rifle in the direction of J.L.’s
parked vehicle. (Tr. Vol. II at 363-65, 370-77, 386-87; Ex. A3,
Channel 7; Ex. A3, Channel 13; Ex. A3, Channel 14; Ex. A3,
Channel 15.)

Detective Corbin testified that no rifles were recovered during
law enforcement’s investigation of the incident. (Tr. Vol. II at
365.) We note, however, that shortly after J.L. drove away, the
surveillance video footage shows Mr. Williams putting the
rifle into the trunk of the car he retrieved it from, getting it
back out a few minutes later, and taking the rifle into Platform
Lounge around 11:50 p.m. (Tr. Vol. II at 363-65; Ex. A3,
Channel 7; Ex. A3, Channel 14.) Thus, although he could not
make any comparison to any particular rifle since none were
recovered in connection with this incident, CPD firearms
examiner Caleb Worley opined the three rifle casings
recovered from Platform Lounge’s front parking lot (see Ex.
H; Ex. L) were fired from the same rifle. (Tr. Vol. II at 259-61,
274-75; Ex. F, Firearms Report at 1; Ex. G20 through G24.) Of
note, no rifle casings were recovered from Platform Lounge’s
south parking lot. (Tr. Vol. II at 389; Ex. I; Ex. L.)

Law enforcement also identified Mr. Gill and Mr. Elmore as
the other two [individuals] involved in the incident. (See Tr.
Vol. II at 348-52, 363-65, 368-82; Ex. A3, Channel 13.)

Regarding Mr. Elmore, the surveillance video depicted him
firing a handgun multiple times at J.L.’s vehicle while it was
parked in Platform Lounge’s front parking lot. (See Ex. A3,
Channel 16.) Detectives subsequently executed a search
warrant upon his residence and recovered a semi-automatic
Glock 9mm Luger pistol. (Tr. Vol. II at 359-60, 383-85. See
also Ex. H; Ex. R.) After comparing test fires from that pistol
to the ballistics evidence from the scene, firearms examiner
Worley opined that fourteen of the shell casings recovered
from Platform Lounge’s front parking lot on October 23, 2022
(see Ex. H; Ex. L) were fired by the pistol seized from Mr.
Elmore’s home. (Tr. Vol. II at 258-60, 268-73, 277-79, 309,
314, 359-60, 402-03; Ex. F, Firearms Report at 1-2; Ex. G1
through G19; Ex. G31 through G34.) Mr. Worley further
No. 25AP-738 7

determined the spent Hornady 9mm Luger shell casings
recovered from the south parking lot were not fired by that
Glock pistol. (See Tr. Vol. II at 280; Ex. F; Ex. G36.)

Mr. Gill was also depicted on the surveillance video pointing
a handgun at J.L.’s parked car multiple times. (See Ex. A3,
Channel 16; Ex. A3, Channel 13; Ex. A3, Channel 14. See Tr.
Vol. II at 433.) The handgun used by Mr. Gill was never
recovered by law enforcement. (See Tr. Vol. II at 381, 388.) At
trial, firearms examiner Worley testified that one of the spent
Hornady 9mm Luger shell casings recovered from Platform
Lounge’s front parking lot on October 23, 2022 (see Ex. H; Ex.
L) and all five of the spent Hornady 9mm Luger shell casings
recovered from the south parking lot on October 24, 2022
(see Ex. I) were fired from the same gun. (Tr. Vol. II at 261-
63, 275-77; Ex. F, Firearms Report at 1; Ex. G25 through G30.)
Although another handgun (a Ruger 9mm Luger pistol) was
recovered from Platform Lounge’s office by police on
October 23, 2022 (Ex. H), Mr. Worley testified that none of
the shell casings recovered from either of Platform Lounge’s
parking lots were fired from that gun. (Tr. Vol. II at 261-63,
279-77, 281; Ex. G35. See also Ex. F.)

J.L. acknowledged he did not see who shot J.C. or know
exactly when J.C. was shot. (Tr. Vol. I at 64, 76. See also Tr.
Vol. II at 418.) At trial, firearms examiner Worley opined that
the four lead fragments and the three copper jacket fragments
recovered from J.C.’s neck by the coroner were not fired by
any of the three pistols seized by police—one from J.L.’s
impounded car, another from Platform Lounge’s office, and
one from Mr. Elmore’s residence—in connection with this
incident. (Ex. F at 2; Tr. Vol. II at 262-63, 280-82; Ex. G37
through G41.) Mr. Worley was unable to determine the caliber
and type (e.g., full metal jacket or hollow point) of the bullet
fragments[ ] recovered from J.C.’s neck “due to deformation”
and their small size. (Ex. F, Firearms Worksheet A at 7. See
also Tr. Vol. II at 266-68, 284-86, 290-92, 312-13.)

Based on his visual observation of one of the copper jacket
fragments recovered from J.C.’s neck, Mr. Worley noted that
particular fragment “appear[ed] to be the tip of the nose
section of a bullet,” which would be “consistent with those
[types] of bullets typically loaded in rifle cartridges.” (Ex. F,
Firearms Worksheet A at 7. See also Tr. Vol. II at 266-68, 312,
315.) But, on cross-examination, Mr. Worley admitted
“[t]here were no rifling characteristics on that particular
No. 25AP-738 8

fragment” and he could not actually say that copper jacket
fragment was the tip of a rifle bullet. (Tr. Vol. II at 285-86.)
Notably, Mr. Worley was not asked to analyze any of the
projectiles or bullet fragments observed (and, in some
instances, recovered from) either of Platform Lounge’s two
parking lots, the nearby residence struck by bullets, or J.L.’s
car. (See Tr. Vol. II at 288-89, 298-99.)

J.L. maintained he did not retrieve his firearm—a .40-caliber
Smith & Wesson semi-automatic pistol (Tr. Vol. I at 71, 82;
Ex. J; Tr. Vol. II at 383)—from the floorboard of his car until
after the shooting began. (Tr. Vol. I at 48-49, 57, 70-72.) He
also maintained his firearm was not discharged that night.
(Tr. Vol. I at 49, 57, 82-83.) Evidence presented at trial
supported his claim. Indeed, after law enforcement recovered
the Smith & Wesson pistol from J.L.’s impounded vehicle, test
fires from that handgun were compared to the ballistics
evidence recovered from the scene. (See Ex. J; Ex. F; Tr. Vol.
II at 280-81, 311-12, 314, 360.) Mr. Worley opined the Smith
& Wesson pistol recovered from J.L.’s vehicle did not fire any
of the spent shell casings recovered from the scene or the
spent bullet fragments recovered from J.C.’s neck during the
autopsy. (See Ex. F; Tr. Vol. II at 280-81, 311-12, 314, 360. See
also Tr. Vol. II at 441.) Moreover, a fully loaded magazine and
chambered round were recovered from the Smith & Wesson
pistol law enforcement found in J.L.’s vehicle. (See Ex. J. See
also Tr. Vol. II at 360.) J.L. also testified that J.C. was
unarmed on the night of the incident (Tr. Vol. I at 49, 53, 71,
77), and no evidence presented at trial contradicted that
testimony (see Tr. Vol. II at 360-61, 397, 439).

Williams at ¶ 7-22.

{¶ 5} On the third day of trial, after Dr. Uptegrove concluded his testimony, the
state rested its case. (Tr. Vol. III at 489.) Specifically, the following exchange occurred:
THE COURT: Counsel for the State, do you have any additional
witnesses?

[THE STATE]: Judge, we do not. The State would rest pending
admission of the exhibits that we’ve used for past few days.

(Tr. Vol. III at 489.) The trial court granted the state a five-minute recess to organize its
exhibits. (Tr. Vol. III at 490.) The state went through each of its exhibits, and they were
No. 25AP-738 9

admitted by the trial court. (Tr. Vol. III at 490-500.) Thereafter, both Mr. Williams and
Mr. Gill made Crim.R. 29 motions for acquittal. (Tr. Vol. III at 500-07.) Counsel for Mr.
Gill argued the state presented insufficient evidence to support any of the charged offenses.
(Tr. Vol. III at 504.) Relevant to the charges of tampering with evidence and having a
weapon while under disability, Mr. Gill’s counsel argued:
[DEFENSE COUNSEL]: . . . As it relates to tampering with
evidence, I’ll, again, adopt [Mr. Gill’s] arguments as it relates to
the elements and simply state that you know based on the
evidence that Mr. Gill was actually not there when the police
arrived. There is no evidence suggesting that he was aware of
any investigation ongoing and certainly no evidence
affirmatively establishing that he did anything to impede an
investigation.

Your Honor, other than that, at this time I also believe the State
has failed to comply with the obligations under the weapons
under disability charges. There is no evidence establishing that
Mr. Gill is a convicted felon, there is also insufficient evidence
to establish that he was holding a firearm. Thank you.

THE COURT: Thank you. On behalf of the State?

[THE STATE]: Judge, just a little bit of housekeeping, I think
we had waived the [weapons under disability], so I don’t think
that was -- maybe something that we can deal with later on, at
least the weapon under disability. I believe that was waived at
least in front of the jury. Is that --

THE COURT: It was waived in front of the jury.

[THE STATE]: So I’m just going to address the other counts,
one through six, which I believe are the same for both
Defendants.

(Tr. Vol. III at 506-08.) The trial court then denied the Crim.R. 29 motions, finding “there
is sufficient evidence for all of these counts to go to the jury.” (Tr. Vol. III at 513.)
Subsequently, the state reiterated that it “formally rest[ed]” its case. (Tr. Vol. III at 514.)
{¶ 6} After the defense rested, the trial court submitted the case to the jury. (Tr.
Vol. III at 513-15, 617.) Following deliberations, the jury found Mr. Williams guilty of felony
murder, felonious assault, unlawful discharge of a firearm upon or over a public road or
No. 25AP-738 10

highway, and tampering with evidence, along with their attendant firearm specifications.
(Tr. Vol. IV at 630-33.) The jury found Mr. Williams not guilty of purposeful murder and
improper discharge of a firearm into an occupied habitation. (Tr. Vol. IV at 630, 633.) The
jury found Mr. Gill guilty of Count 5, tampering with evidence, and the accompanying
firearm specification, but could not reach a unanimous decision as to Counts 1, 2, 3, 4, and
6. (Tr. Vol. IV at 630-33.) The trial court declared a mistrial on Counts 1, 2, 3, 4, and 6 with
respect to Mr. Gill. (Tr. Vol. IV at 633.)
{¶ 7} Mr. Gill renewed his Crim.R. 29 motion after the jury returned its verdict.
(Tr. Vol. IV at 637.) Defense counsel argued:
Your Honor, I’m sorry, if I may, I think we can follow the Rule
29 motion up with a 29(C) written motion, which I will do
regarding the [weapons under disability], but I just want to
make sure that there’s no potential for a waiver on the
[weapons under disability], that the trial is completed, that
State has rested, the State has confirmed that it has rested. I
don’t believe there’s a different time track for a court trial
versus a jury trial when the State is presenting evidence and
decisions are made on cross examination, confrontation clause
issues and others. And as such, we would ask the Court to grant
that motion at this time.

THE COURT: All right. We’ll have you file the motion, the State
can respond, and we’ll deal with it accordingly.

(Tr. Vol. IV at 641.)
{¶ 8} On March 14, 2024, Mr. Gill filed a written motion for judgment of acquittal
pursuant to Crim.R. 29(C). Mr. Gill again argued, in relevant part, that the state failed to
present sufficient evidence for both Count 5, tampering with evidence, and Count 7, having
weapons while under disability. At a March 21, 2024 hearing, the trial court denied the
Crim.R. 29 motion, stating:
I’ll start with count five, that was the one, tampering with
evidence with the one-year gun specification and that’s the one
that the jury found the Defendant guilty of the count and the
specification. Given precedent and the jury’s verdict and the
Court’s prior ruling as to the Rule 29 motion on that specific
count, the Court finds that there was sufficient evidence to
support the verdict. The Court’s not going to overturn that
verdict or grant a Rule 29 motion as to that count.
No. 25AP-738 11

...

With respect to count seven, the Court is not going to grant a
Rule 29 on that either. The Defendant did waive jury trial,
agreed to have that tried by the Court, and it has been the
practice of this Court that those counts -- when that happens,
whether it is a separate count or a specification, that those in
some part often tried -- you know, you have the trial, the jury
does what they’re going to do, and then the Court will take
further evidence on those counts or specifications and make a
ruling at that time. So the Court -- again, that count was not --
was waived as far as right to jury. It was requested that the
Court rule on it and the Court has not made a ruling yet and has
not had the parties give the rest of the evidence on that. And
the Court finds that there’s no double jeopardy because, again,
he has not been fully tried on that count. So at this point, the
Court is denying the Rule 29 motion in full.

(Mar. 21, 2024 Tr. at 6-7.)
{¶ 9} During a July 2, 2024 bond hearing, Mr. Gill again asked the court to “make
a ruling on whether to dismiss” the having weapons under disability charge. (July 2, 2024
Tr. at 3.) The trial court denied the motion. (July 2, 2024 Tr. at 6.)
{¶ 10} On May 2, 2025, more than a year after the verdict in the first trial, Mr. Gill
filed a motion for decision and verdict requesting the trial court render a verdict on Count
7, having weapons while under disability. Three days later, on May 5, 2025, Mr. Gill filed a
renewed motion for acquittal and amended motion for decision and verdict, asking the trial
court to dismiss Count 7 under Crim.R. 29(C) or, alternatively, render a decision and verdict
on Count 7.
{¶ 11} Over the objection of defense counsel, the trial court allowed the state to enter
evidence related to Count 7. (May 5, 20251 Tr. at 3-5.) For the first time, the state submitted
documentation of Mr. Gill’s prior felony conviction. (May 5, 2025 Tr. at 4.) The trial court

1 The transcript of the May 5, 2025 proceedings appears in the record with the title page “TRANSCRIPT
EXCERPT OF JURY TRIAL PROCEEDINGS Before the Honorable Kim Brown, Judge, on Wednesday,
August 27, 2025.” The second page of the transcript excerpt indicates the proceedings occurred “Monday
Morning Session[,] May 5, 2025[,] 10:38 a.m.” Thus, despite the listed caption date appearing on the title page
of the excerpted transcript, we refer to the transcript of these proceedings as the May 5, 2025 transcript.
No. 25AP-738 12

orally announced it “finds the Defendant is guilty of count seven, having weapons under
disability,” noting its finding “is consistent with the jury verdict on the one count of the
tampering with evidence with a one-year firearm specification, so -- and the testimony that
did come in at the first trial in this matter. So the Court does find the Defendant guilty on
that count.” (May 5, 2025 Tr. at 7-8.) Immediately following its oral ruling on Count 7, the
trial court commenced the second jury trial on Counts 1, 2, 3, 4, and 6. (May 5, 2025 Tr. at
17.) Following deliberations, the jury found Mr. Gill not guilty of all the retried counts.
{¶ 12} In an August 29, 2025 judgment entry, the trial court stated:
On May 4, 2025, the State of Ohio was represented by Assistant
Prosecuting Attorney J. Wong/M. Holvey and the Defendant
was represented by counsel, J. Landusky, Esq.

On that date, the Court held a hearing on Count Seven. The
Court found the Defendant as follows:

GUILTY of COUNT SEVEN of the Indictment, to-wit:
WEAPON UNDER DISABILITY, in violation of Section
2923.13 of the Ohio Revised Code, being a Felony of the Third
Degree.

(Emphasis omitted.) The trial court sentenced Mr. Gill to three years in prison on Count 5,
tampering with evidence, with a mandatory consecutive one-year sentence on the firearm
specification, plus an additional one year on Count 7, having weapons while under
disability, to be served consecutively for an aggregate sentence of five years in prison.
Pursuant to the court’s sentencing entry, only the one-year firearm specification sentence
was mandatory. Both the state and Mr. Gill timely appeal.
II. Assignments of Error
{¶ 13} The state raises the following sole assignment of error for our review:
The trial court’s imposition of a non-mandatory prison term on
the underlying felony in Count Five is clearly and convincingly
contrary to law.

{¶ 14} Additionally, on cross-appeal, Mr. Gill raises the following five assignments
of error for our review:
[I.] The State presented insufficient evidence to convict Mr. Gill
of Having Weapons While Under Disability and therefore
violated his Due Process Rights under the Fifth and Fourteenth
No. 25AP-738 13

Amendments to the United States Constitution and Article I,
Section 16 of the Ohio Constitution.

[II.] Defendant’s rights under the Fifth Amendment, Sixth and
Fourteenth Amendments to the United States Constitution and
Article I, Sections 10 and 16 of the Ohio Constitution were
violated by the trial court’s handling of the Having Weapons
While Under Disability charge.

[III.] Defendant’s conviction for Tampering with Evidence is
not supported by sufficient evidence and therefore violated his
Due Process Rights under the Fifth and Fourteenth
Amendments to the United States Constitution and Article I,
Section 16 of the Ohio Constitution.

[IV]. Mr. Gill’s conviction for the one-year firearm specification
is not supported by sufficient evidence and therefore violated
his Due Process Rights under the Fifth and Fourteenth
Amendments to the United States Constitution and Article I,
Section 16 of the Ohio Constitution.

[V.] The convictions for Having Weapons While Under
Disability, Tampering with Evidence, and the Firearm
Specification are against the manifest weight of the evidence.

For ease of discussion, we address the parties’ assignments of error out of order.
III. Mr. Gill’s First and Third Assignments of Error—Sufficiency of the
Evidence
{¶ 15} In his first assignment of error, Mr. Gill argues the state presented
insufficient evidence to convict him of having weapons while under disability. In his third
assignment of error, Mr. Gill argues the state presented insufficient evidence to convict him
of tampering with evidence. Because both of these assignments of error involve the
sufficiency of the evidence, we address them jointly.

A. Legal Standard and Standard of Review

{¶ 16} Whether evidence is sufficient as a matter of law to support a conviction
involves a determination of whether the state met its burden of production at trial. See,
e.g., State v. Smith, 2004-Ohio-4786, ¶ 16 (10th Dist.); State v. Frazier, 2007-Ohio-11, ¶ 7
(10th Dist.); State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). We do not weigh the
evidence but instead determine “ ‘whether, after viewing the evidence in a light most
No. 25AP-738 14

favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.’ ” State v. Leonard, 2004-Ohio-
6235, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶ 17} In evaluating a sufficiency challenge, we assume the state’s witnesses testified
truthfully and determine whether that testimony and any other evidence presented at trial
satisfied each element of the offense. See State v. Watkins, 2016-Ohio-8272, ¶ 31 (10th
Dist.), quoting State v. Hill, 2008-Ohio-4257, ¶ 41 (10th Dist.). Thus, evidence is sufficient
to support a conviction where, if believed, that evidence would allow any rational trier of
fact to conclude that the state proved each element of the offense beyond a reasonable
doubt. Frazier at ¶ 7, citing Jenks at paragraph two of the syllabus.
B. Having Weapons While Under Disability
{¶ 18} Mr. Gill argues the state presented insufficient evidence to convict him of
having weapons while under disability.
{¶ 19} In relevant part, R.C. 2923.13(A)(3) provides that “[u]nless relieved from
disability under operation of law or legal process, no person shall knowingly acquire, have,
carry, or use any firearm or dangerous ordnance, if . . . [t]he person is under indictment for
or has been convicted of any felony offense involving the illegal possession, use, sale,
administration, distribution, or trafficking in any drug of abuse.” Mr. Gill asserts the state
failed to present sufficient evidence that he was under any disability on October 22, 2022
and that he possessed an operable firearm within the meaning of R.C. 2923.11.
{¶ 20} As outlined above, the state formally rested its case on the third day of trial
pending the admission of exhibits. (Tr. Vol. III at 489.) After the state went through each
of its exhibits and rested its case, Mr. Gill made a Crim.R. 29(A) motion for acquittal,
arguing the state failed to present any evidence of disability under R.C. 2923.13. (Tr. Vol.
III at 507.) A review of the record confirms the state indeed failed to present any evidence
of Mr. Gill’s alleged disability prior to resting its case. The state did not dispute that it had
not produced evidence of Mr. Gill’s disability when it rested. Instead, the state indicated its
belief that the having weapons under a disability charge had been waived in front of the
jury and therefore was “maybe something that we can deal with later on.” (Tr. Vol. III at
507.) The trial court agreed the having weapons under disability charge “was waived in
front of the jury,” and the state did not respond further to the Crim.R. 29(A) motion with
No. 25AP-738 15

respect to that charge. (Tr. Vol. III at 508.) The trial court then denied the Crim.R. 29(A)
motion, and the state reiterated it had “formally rest[ed]” its case. (Tr. Vol. III at 513-14.)
On appeal, Mr. Gill argues the trial court erred in denying his Crim.R. 29(A) motion once
the state formally rested its case.
{¶ 21} Crim.R. 29(A) governs a motion for judgment of acquittal. The rule provides:
The court on motion of a defendant or on its own motion, after
the evidence on either side is closed, shall order the entry
of a judgment of acquittal of one or more offenses charged in
the indictment, information, or complaint, if the evidence is
insufficient to sustain a conviction of such offense or offenses.
The court may not reserve ruling on a motion for
judgment of acquittal made at the close of the state’s
case.

(Emphasis added.) “ ‘A conviction based on insufficient evidence constitutes a denial of
due process.’ ” State v. Pride, 2011-Ohio-6055, ¶ 11 (10th Dist.), quoting State v. Rawls,
2004-Ohio-836, ¶ 25 (10th Dist.), citing Thompkins, 78 Ohio St.3d at 386. Although we
apply the same standard when reviewing a Crim.R. 29 motion and a sufficiency of the
evidence claim, see State v. Abdullahi, 2024-Ohio-418, ¶ 22 (10th Dist.), citing State v.
Fugate, 2013-Ohio-79, ¶ 5 (10th Dist.), the procedural distinction between a Crim.R. 29(A)
motion and a sufficiency of the evidence claim controls the scope of our review. In
reviewing the denial of a Crim.R. 29(A) motion, “we consider only the evidence presented
in the State’s case-in-chief.” State v. Stokes, 2016-Ohio-612, ¶ 22 (2d Dist.). “In contrast,
we consider all of the evidence admitted at trial when considering whether a defendant’s
conviction was supported by sufficient evidence.” Id. See also State v. Harris, 2023-Ohio-
648, ¶ 33 (2d Dist.). From the plain language of the rule, a proper Crim.R. 29(A) motion
cannot be made until the state concludes its case-in-chief. See also State v. C.C., 2019-
Ohio-4881, ¶ 5 (9th Dist.), quoting State v. Hitsman, 2018-Ohio-5315, ¶ 16 (9th Dist.),
citing State v. Kolat, 2002-Ohio-4699, ¶ 16 (11th Dist.), citing State v. Abercrombie, 2002-
Ohio-2414, ¶ 18 (12th Dist.) (“A motion that tests the sufficiency of the evidence ‘cannot
properly be made until, at the earliest, the conclusion of the state’s case in chief and
pursuant to a Crim.R. 29(A) motion.’ ”).
{¶ 22} In this case, the state affirmatively indicated on the record that it had rested
its case without making any exception as to Count 7 and went through each of its exhibits
No. 25AP-738 16

for admission, none of which pertained to the element of disability for purposes of Count 7.
It was not until this point that Mr. Gill made his Crim.R. 29(A) motion, and the trial court
then heard arguments from both parties on the motion. Given the language of Crim.R.
29(A), the trial court could not have entertained Mr. Gill’s Crim.R. 29(A) motion until the
state had concluded its case-in-chief. Stated another way, it was the state’s conclusion of
its case that rendered Mr. Gill’s motion for judgment of acquittal a proper Crim.R. 29(A)
motion.
{¶ 23} The state asserts it was not resting the entirety of its case, citing the trial
prosecutor’s comment to the trial court that the having weapons under disability charge
would be handled “later on.” (Tr. Vol. III at 507.) Though the state indicated its belief that
Mr. Gill had waived the jury trial for Count 7, the state did not ask to modify its earlier
statement resting its case. To the extent the state now argues the trial court also understood
the trial prosecutor planned to address Count 7 separately such that the state’s act of resting
its case included an implicit exception for Count 7, we note there is nothing in the record
indicating Mr. Gill and his counsel were aware of such an arrangement. To the contrary,
Mr. Gill’s repeated Crim.R. 29 motions, beginning at that moment after the close of the
state’s evidence, indicate Mr. Gill was not aware of, nor had agreed to, any arrangement for
handling Count 7 separately. While Mr. Gill waived his right to a jury trial on Count 7, he
did not move to sever or bifurcate Count 7 from the rest of the indictment. There is no
indication in the record that all parties understood the state’s presentation of evidence at
trial did not or would not relate to Count 7; instead, the record shows the state intended to,
and ultimately did, rely on the evidence presented to the jury to support the possession
element of the having weapons under disability charge. Thus, we reject the state’s
argument that it was not resting its entire case when it stated, after calling its eleventh and
final witness, that it “would rest pending admission of the exhibits that we’ve used for past
few days.” (Tr. Vol. III at 489.) Because the state had rested its case, the trial court was
required to rule on Mr. Gill’s Crim.R. 29(A) motion for judgment of acquittal at that time.
{¶ 24} The trial court did not return a verdict on Count 7 until the state eventually
submitted evidence of Mr. Gill’s disability, more than a year after the jury’s verdict in the
first trial. The state argues that even if it was deemed to have rested its case on the third
day of trial, the trial court had discretion, under Crim.R. 29(B), to reserve ruling on Mr.
No. 25AP-738 17

Gill’s Crim.R. 29 motion until it rendered its verdict on Count 7. But the discretion to
reserve ruling on a Crim.R. 29 motion for judgment of acquittal applies when the motion is
made “at the close of all the evidence.” (Emphasis added.) Crim.R. 29(B). The rule is clear
that the trial court “may not reserve ruling on a motion for judgment of acquittal made at
the close of the state’s case.” (Emphasis added.) Crim.R. 29(A). Though Mr. Gill
renewed his Crim.R. 29 motion several times throughout the course of these proceedings,
our focus for purposes of this appeal is his first Crim.R. 29 motion made at the close of the
state’s case-in-chief. That motion was a proper Crim.R. 29(A) motion for judgment of
acquittal made at the close of the state’s case and, as such, the trial court was required to
rule on it based on the evidence the state had presented by that time. See State v. Doss,
2019-Ohio-436, ¶ 18 (9th Dist.), citing State v. Maxwell, 2010-Ohio-4214, ¶ 13 (9th Dist.)
(“When a motion is made at the conclusion of the State’s case, the trial court must rule at
that time without reserving judgment until the defense has rested,” and when an appellate
court reviews the denial of Crim.R. 29(A) motion, it applies the standard for the sufficiency
of the evidence “to the evidence presented by the State in its case-in-chief.”). (Emphasis
added.)
{¶ 25} The state further argues the trial court had discretion to permit the state to
reopen its case to introduce more evidence even after Mr. Gill made his Crim.R. 29(A)
motion, relying on the decision of the Ninth District Court of Appeals in State v. Nerren,
2006-Ohio-2855 (9th Dist.). In Nerren, the Ninth District concluded the trial court acted
within its discretion to permit the state to reopen its case immediately following the
defendant’s Crim.R. 29(A) motion to present evidence of an element of the offense that had
been omitted before the state rested. Nerren relies on another Ninth District case, State v.
Pertee, 1995 Ohio App. LEXIS 5150 (9th Dist. Nov. 22, 1995), for the more general
proposition that the language in Crim.R. 29(A) prohibiting a trial court from withholding
ruling on a motion for acquittal made at the close of the state’s case until after the close of
the defendant’s case “does not remove the trial court’s discretion to permit the State to
reopen its case.” Pertee at *7. In Pertee, the state sought leave to reopen its case in response
to the defendant’s Crim.R. 29(A) motion to allow the alleged victim to clarify her testimony
in support of an essential element of the case. Following the alleged victim’s clarifying
No. 25AP-738 18

testimony, and before the defense began its case-in-chief, the trial court denied the
defendant’s Crim.R. 29(A) motion.
{¶ 26} We are not persuaded by the logic of Pertee and Nerren that Crim.R. 29(A)
affords a trial court this discretion. See Crim.R. 29(A) (“[t]he court on motion of a
defendant or on its own motion, after the evidence of either side is closed, shall order the
entry of a judgment of acquittal . . . if the evidence is insufficient to sustain a conviction”).
(Emphasis added.) Moreover, Nerren is distinguishable from the instant case. Unlike in
Nerren, the state here did not move to reopen its case “upon the realization that it had
inadvertently omitted the presentation of evidence relevant to its prosecution.” Nerren at
¶ 14 (“[t]his is not the case where the State was permitted to reopen its case after further
opportunity to obtain the necessary evidence” but was “a case of mere oversight by the
State”). Instead, the state acknowledged it had not submitted any evidence relative to Mr.
Gill’s disability but did not indicate the failure to do so was a mere oversight. The state
neither moved to reopen the case nor indicated it was prepared to introduce evidence of
Mr. Gill’s disability at that time; rather, the state simply asked the court to reserve ruling
on Mr. Gill’s Crim.R. 29(A) motion until “later on.” (Tr. Vol. III at 507.) Thus, on these
facts, Nerren is not persuasive.
{¶ 27} Both parties acknowledge the unusual procedural circumstances of this case.
Consistent with the basic due process principle that criminal defendants have a right to
hear the evidence against them before attempting to refute it, the state is required to present
sufficient evidence of every element of an offense during its case-in-chief. See, e.g., State
v. Messenger, 2022-Ohio-4562, ¶ 13, 18, citing Thompkins, 78 Ohio St.3d at 386-87, and
Jackson v. Virginia, 443 U.S. 307, 316 (1979); R.C. 2901.05(A); R.C. 2945.10(C) (“[t]he
state must first produce its evidence and the defendant shall then produce the defendant’s
evidence”). (Emphasis added.) When the state rested its case on the third day of trial, Mr.
Gill’s motion for judgment of acquittal was a proper Crim.R. 29(A) motion. As such, the
trial court was required to rule on the motion at that time and determine, from the evidence
the state had presented during its case-in-chief, whether the state had presented sufficient
evidence to satisfy each of the elements of having weapons while under disability. Doss,
2019-Ohio-436, at ¶ 18 (9th Dist.); Stokes, 2016-Ohio-612, at ¶ 22 (2d Dist.) (a review of
the denial of Crim.R. 29(A) motion considers the evidence the state presented in its case-
No. 25AP-738 19

in-chief). The record indicates, and the state does not dispute, that the state had not
introduced any evidence demonstrating Mr. Gill’s disability when Mr. Gill made his initial
Crim.R. 29(A) motion. And, again, to the extent the state now argues the trial court also
understood the trial prosecutor planned to address Count 7 separately such that the state’s
act of resting its case included an implicit exception for Count 7, there is nothing in the
record indicating Mr. Gill and his counsel were aware of such an arrangement. In light of
the unique facts of this case, whether we construe the trial court’s denial of Mr. Gill’s
Crim.R. 29(A) motion as an outright denial related to Count 7 or as reservation of a ruling
on the motion related to Count 7, we conclude the trial court erred in denying Mr. Gill’s
Crim.R. 29(A) motion made at the close of the state’s case-in-chief.
{¶ 28} Accordingly, we conclude the state failed to present sufficient evidence of Mr.
Gill’s disability to support the charge of having weapons under disability pursuant to R.C.
2923.13 when it rested its case. See Smith, 2004-Ohio-4786, at ¶ 16 (10th Dist.). As such,
the trial court erred in denying Mr. Gill’s Crim.R. 29(A) motion for judgment of acquittal,
and Mr. Gill’s conviction for having weapons under disability must be reversed and vacated.
State v. Hernandez, 2010-Ohio-2066, ¶ 21 (10th Dist.) (remedy for insufficient evidence is
to vacate conviction and enter judgment of acquittal). Having determined the state failed
to present sufficient evidence of the disability element, requiring reversal of Mr. Gill’s
conviction of having weapons under disability for insufficient evidence, we need not
consider Mr. Gill’s additional argument under his first assignment of error that the state
also failed to present sufficient evidence that he possessed an operable firearm.
{¶ 29} Mr. Gill’s first assignment of error is sustained.
C. Tampering with Evidence
{¶ 30} Mr. Gill next argues the state presented insufficient evidence to convict him
of tampering with evidence. In order to convict Mr. Gill of tampering with evidence, the
state had to prove that, knowing an official proceeding or investigation was in progress or
was about to be or likely to be instituted, he altered, destroyed, concealed or removed
evidence with purpose to impair its value or availability as evidence in such proceeding or
investigation. R.C. 2921.12(A)(1); State v. Jackson, 2024-Ohio-2721, ¶ 15 (10th Dist.).
{¶ 31} Mr. Gill argues the state failed to produce any evidence that he altered,
destroyed, concealed or removed a gun with a purpose to impair its availability as evidence.
No. 25AP-738 20

More specifically, he asserts the state presented evidence only that he possessed a gun on
October 22, 2022 and law enforcement did not recover the gun during the investigation,
thereby improperly conflating law enforcement’s inability to locate the gun with proof that
Mr. Gill altered, destroyed, concealed or removed the gun. We agree.
{¶ 32} To demonstrate the “concealment” element of tampering with evidence, the
state must establish the defendant knowingly altered, destroyed, concealed, or removed the
evidence with the purpose of impairing the value or availability of the evidence in an
ongoing or likely investigation of proceeding. R.C. 2921.12. The statute thus requires an
overt act of alteration, destruction, concealment, or removal, coupled with the requisite
intent to impair its evidentiary value. See, e.g., State v. Workman, 2024-Ohio-167, ¶ 38-
39 (10th Dist.) (finding sufficient evidence of tampering with evidence where the defendant
concealed or removed the gun “by the act of selling it to a stranger” a short time after being
questioned by police) (emphasis added); State v. Craig, 2022-Ohio-1219, ¶ 14 (10th Dist.)
(“to convict [appellant] of tampering with evidence, the state needed to submit sufficient
evidence for the trier of fact to conclude [appellant] knew or should have known an
investigation was forthcoming, but he nevertheless purposely took steps to conceal
or remove the knife so as to impair its availability in the investigation,” and finding
sufficient evidence of tampering with evidence where appellant admitted to tossing the
knife used in a stabbing out of the vehicle as he fled) (emphasis added); State v. Wade,
2023-Ohio-3490, ¶ 42 (10th Dist.) (sufficient evidence of tampering with evidence where
the defendant threw a gun in a sewer after leaving the scene of a shooting); State v.
Freeman, 2005-Ohio-5892, ¶ 22 (3d Dist.) (“Generally, violating R.C. 2921.12(A)(1) by
concealing physical evidence requires some overt act of concealment by the defendant.”).
{¶ 33} Other Ohio appellate districts have found the fact that a gun was not
recovered during law enforcement’s investigation is not, standing alone, sufficient evidence
of tampering with evidence. See, e.g., State v. Beard, 2009-Ohio-4412, ¶ 18 (6th Dist.),
citing State v. Wooden, 86 Ohio App.3d 23, 27 (9th Dist. 1993) (“The inability of law
enforcement to find the gun used in a shooting, by itself, does not show that the defendant
‘altered, destroyed, concealed, or removed’ it.”); State v. Spears, 2008-Ohio-5181, ¶ 23 (2d
Dist.) (insufficient evidence of tampering with evidence where law enforcement never
found the gun and there was no properly admitted evidence to support an inference that
No. 25AP-738 21

the defendant threw the gun away); State v. Sheets, 2023-Ohio-2591, ¶ 89 (4th Dist.)
(“evidence that [the defendant] was seen with a gun at the scene of the crime, coupled with
the fact that law enforcement never recovered the gun, does not constitute sufficient
evidence to support a conviction for tampering with evidence”). We agree with the logic of
these cases. Where law enforcement does not locate a gun present during the relevant
incident, there must be some additional evidence to support the concealment element of a
tampering with evidence charge. See Beard at ¶ 19, citing State v. Copley, 2005-Ohio-896,
¶ 12, 60 (10th Dist.) (sufficient evidence where law enforcement never recovered the gun
used in the shooting but the defendant testified he dropped the weapon on the ground near
a fence after he left the scene of the shooting); Sheets at ¶ 89 (“[a]lthough the gun used in
the shootings was not found, that fact alone is insufficient to support an inference that [the
defendant] tampered with it” because “the State presented no evidence that [the defendant]
actually altered, destroyed, concealed, or removed the gun”). Here, the state did not offer
any additional evidence to support the concealment element of tampering with evidence.
{¶ 34} As the Sixth District Court of Appeals explained in Beard, construing the fact
that a piece of evidence is never found as proof of concealment relies on a “faulty syllogism:
Witnesses saw [the defendant] fire a gun. The gun was never found. Therefore, [the
defendant] must have tampered with the gun in order to make it unavailable as evidence
against him.” Beard at ¶ 20. Here, as in Beard, the state relied on the same flawed logic
when it produced evidence that Mr. Gill possessed a gun at the scene and the gun was never
found. Those two premises, without more, do not support an inference that Mr. Gill
engaged in an act of alteration, destruction, concealment, or removal for the purpose of
impairing an investigation. Id. at ¶ 20 (when “[t]he gun used in the shooting was not found,
. . . that fact alone cannot lead to an inference that [the defendant] tampered with it”). But
see State v. Kelly, 2008-Ohio-4683, ¶ 42 (10th Dist.) (where a knife used during the
commission of a murder was never found, “[t]he jury could have reasonably concluded that
the knife that left the impression on Mr. Kelly’s body had been used in the commission of
the crime, and that it had been removed from the scene and concealed for the purpose of
impairing its evidentiary value”).
{¶ 35} The state also argues, without citation to any authority, that Mr. Gill’s act of
leaving the scene before police arrived constituted tampering with evidence because it
No. 25AP-738 22

deprived law enforcement of the opportunity to obtain testimonial evidence from him as a
potential witness. We reject this argument. R.C. 2921.12(A)(1) specifically prohibits the
alteration, destruction, concealment, or removal of “any record, document, or thing.” The
state does not identify any authority extending the list of physical evidence in R.C. 2923.12
to potential testimonial evidence. See Freeman, 2005-Ohio-5892, at ¶ 22 (3d Dist.)
(“violating R.C. 2921.12(A)(1) by concealing physical evidence requires some overt act
of concealment by the defendant”). (Emphasis added.) See also Committee Comment to
R.C. 2921.12 (“In some respects, this section complements the section on perjury, in that it
deals with the falsification of physical evidence while perjury deals with the falsification
of testimony. The purview of this section is broader than that of perjury, however, since it
includes not only falsification but removal, concealment, or destruction as well.”)
(Emphasis added.) More fundamentally, “[e]very offender has the right against self-
incrimination and to remain silent pending an investigation, and therefore the state cannot
use the silence of the accused as evidence to satisfy an element of a crime.” State v. Barry,
2015-Ohio-5449, ¶ 25 (rejecting the “unmistakable crime” doctrine in connection with
tampering with evidence because it erroneously imputes constructive knowledge of an
investigation to a defendant). See also Freeman at ¶ 22 (“A mere failure to volunteer
information has been held not to rise to the level of tampering with evidence.”).
{¶ 36} We agree with Mr. Gill that the state failed to put forth any evidence that he
engaged in an overt act to alter, destroy, conceal, or remove the gun with the purpose of
impairing an investigation. The record indicates the state offered evidence only that Mr.
Gill possessed a gun, law enforcement did not recover the gun, and Mr. Gill was not present
at the scene when law enforcement arrived. Without more, the state did not present
sufficient evidence to support a conviction of tampering with evidence. Sheets, 2023-Ohio-
2591, at ¶ 89 (4th Dist.); Beard, 2009-Ohio-4412, at ¶ 20 (6th Dist.); Spears, 2008-Ohio-
5181, at ¶ 23 (2d Dist.). Accordingly, Mr. Gill’s tampering with evidence conviction and the
accompanying firearm specification must be reversed and vacated. Hernandez, 2010-
Ohio-2066, at ¶ 21 (10th Dist.); State v. Ford, 2011-Ohio-765, ¶ 17 (a firearm specification
“is merely a sentence enhancement, not a separate criminal offense” and is contingent upon
an underlying felony conviction).
{¶ 37} Mr. Gill’s third assignment of error is sustained.
No. 25AP-738 23

IV. Remaining Assignments of Error
{¶ 38} In his second assignment of error, Mr. Gill argues the trial court violated his
constitutional rights in its handling of the having weapons under disability charge. In his
fourth assignment of error, Mr. Gill argues there was insufficient evidence to support the
firearm specification accompanying his tampering with evidence conviction. In his fifth
assignment of error, Mr. Gill argues his convictions are against the manifest weight of the
evidence. Finally, in its sole assignment of error, the state argues the trial court’s imposition
of a non-mandatory prison term is clearly and convincingly contrary to law. Because our
resolution of Mr. Gill’s first and third assignments of error require reversal and vacating of
Mr. Gill’s convictions, the remaining assignments of error are moot, and we need not
address them. State v. Gideon, 2020-Ohio-6961, ¶ 26 (“an assignment of error is moot
when an appellant presents issues that are no longer live as a result of some other decision
rendered by the appellate court”); App.R. 12(A)(1)(c) (an appellate court must decide each
assignment of error “unless an assignment of error is made moot by ruling on another
assignment of error”).
V. Disposition
{¶ 39} Based on the foregoing reasons, the trial court erred in denying Mr. Gill’s
Crim.R. 29(A) motion for judgment of acquittal on the weapons under disability charge,
and the state presented insufficient evidence to find Mr. Gill guilty of tampering with
evidence. Having sustained Mr. Gill’s first and third assignments of error, rendering moot
Mr. Gill’s second, fourth, and fifth assignments of error and the state’s sole assignment of
error, we reverse the judgment of conviction of the Franklin County Court of Common Pleas
and enter a judgment of acquittal.
Judgement reversed; convictions vacated.

BOGGS, P.J. and DINGUS, J., concur.