State v. EstesState v. Estes
McClain Anastasi, LLC, Brandon Charles McClain, 70 Birch Alley, Suite 240, Beavercreek, Ohio 45440, for defendant-appellant
O P I N I O N
S. POWELL, J.
{¶ 1} Defendant-appellant, Joshua P. Estes, appeals from the conviction and sentence he received in the Preble County Court of Common Pleas following his guilty plea to single counts of voluntary manslaughter, aggravated arsоn, tampering with evidence and gross abuse of a corpse. For the reasons outlined below, we affirm.
{¶ 2} On October 24, 2011 at 6:39 p.m., authorities were dispatched to a house fire
{¶ 3} Three days later, on October 27, 2011, Estes went to the Preble County Sheriff‘s Office where he submitted to an interview with detectives. During that interview, Estes admitted to stabbing Grigg and setting the house on fire in an apparent attempt to conceal his crime.
{¶ 4} On November 7, 2011, thе Preble County grand jury returned an indictment charging Estes with murder, aggravated arson, tampering with evidence and gross abuse of a corpse. After entering into plea negotiations, and following a competency hearing, Estes agreed to plead guilty to a reduсed charge of voluntary manslaughter, as well as one count each of aggravated arson, tampering with evidence and gross abuse of a corpse. The plea agreement also included an agreed sentence of 20 years in prison.
{¶ 5} On July 9, 2012, Estes entered his guilty plea and was subsequently sentenced to the agreed 20-year prison term. Prior to sentencing, Estes did not raise any issues in regards to merger. Estes now appeals from his conviction and sentence, raising one assignment of error for review.
{¶ 6} THE TRIAL COURT COMMITTED PLAIN ERROR BY IMPOSING SEPARATE CONVICTIONS AND SENTENCES UPON MR. ESTES FOR ALLIED OFFENSES ARISING OUT OF THE SAME CONDUCT AND SIMILAR IMPORT.
{¶ 7} In his single assignment of error, Estes argues the trial court committed plain error by failing to merge his aggravated arson, tampering with evidence and gross abuse of a corpse convictions for purposes of sentencing. We disagree.
{¶ 8} Pursuant to
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separatе animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶ 9} The Ohio Supreme Court established a two-part test for determining whether offenses are allied offenses of similar import under
{¶ 10} If it is possible to commit the offenses with the same conduct, the second inquiry under the Johnson test focuses on whether the offenses were in fact committed by the same conduct; that is, by a single act, perfоrmed with a single state of mind. State v. Lung, 12th Dist. Brown No. CA2012-03-004, 2012-Ohio-5352, ¶ 11, citing Johnson at ¶ 49. If so, the offenses are allied offenses of similar import and must be merged. State v. Luong, 12th Dist. Brown No. CA2011-06-110, 2012-Ohio-4520, ¶ 39. However, if the commission of one offense will never result in the commission of the other, “or if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to
{¶ 11} Estes acknowledges that he failed to raise any objection to the multiple punishments he received as a result of the plea bargain and agreed sentence. However, although failing to object, absent a stipulation or agreement on the allied offenses issue, the imposition of multiple punishments for allied offenses is reviewable under the plain error analysis “even if a defendant has entered into a plea bargain and even if the sentence was an agreed sentence under
{¶ 12} As noted above, after entering into a plea agreement, Estes pled guilty and was convicted of single counts of aggravated arson, tampering with evidence аnd gross abuse of a corpse. Aggravated arson in violation of
{¶ 13} Before turning to the second prong in the Johnson analysis, we note that appellate courts, including this court, have recognized the “challenges inherent in allowing a criminal defendant to raise, on appeal, an allied offensе attack to a negotiated plea because the reviewing court has a limited record of facts, if any, upon which to make an allied offenses analysis.” State v. Tannreuther, 12th Dist. Butler No. CA2013-04-062, 2014-Ohio-74, ¶ 16, quoting State v. Vitt, 9th Dist. Medina App. No. 11 CA0071-M, 2012-Ohio-4438, ¶ 10. However, even when salient facts are lacking, a court must still make an allied offenses determination by looking to the information contained in the record, including the indictment and bill of particulars. Id. In other words, and as recently noted by the Ohio Supreme Court, “[w]hen deciding whether to merge multiple offenses at sentencing pursuant to
{¶ 14} As Estes pled guilty to the offenses, there was no witness testimony at the plea hearing, nor did the state offer any facts establishing Estes’ conduct at sеntencing. Nevertheless, after reviewing the entire record before us, we find the record contains
{¶ 15} Here, although possible for these three offenses to be committed with the same conduct, the facts indicate that they were not. As noted in the complaint, indictment and bill of particulars, three days after Grigg‘s body was discovered, Estes admitted to the killing and setting the house on fire. Specifically, as stated in the bill of particulars:
[Estes] admitted to stabbing [Grigg] Monday morning, October 24, 2011; that Estes further admitted that he returned to the home that evening and set the house on fire to destroy evidence of the crimе because he was afraid he was going to ‘get caught.’
The competency report, however, contains a much more detailed description of Estes conduct at issue here.
{¶ 16} According to the competency report, after having an argument with his girlfriend, Estes went to Grigg‘s house. Estes classified Grigg as “one of [his] drug dealers” from whom he would often buy pain pills and with whom Estes would drink alcohol. After arriving at the house, Estes claimed Grigg offered to let him stay at the house for a while, which he agreed to do. Estes then called his girlfriend аnd arranged to pick up some of his belongings. However, after arriving at his girlfriend‘s home, Estes got into another argument regarding his son, wherein he “threw a fit” and broke several picture frames. Estes then returned to Grigg‘s home where he claims he “wound up drinking [himself] drunk and stupid,” before еventually falling asleep on the couch.
{¶ 17} At approximately 10:00 a.m. the next morning, Estes claims he awoke to find Grigg standing over him wearing nothing but a robe. Unnerved by Grigg‘s appearance, Estes stated that he thought Grigg was “trying to make [him] his boyfriend because [he] was staying there.” Estes then claims that as he tried to get up, Grigg wrapped his arms around him. In response, Estes stated that he grabbed a knife that was sitting on a nearby table and
{¶ 18} Continuing, Estes stated he went to the back porch where four gallons of gasoline were stored and began pouring the gas all “over the area.” Covered in blood, Estes claims he then changed his clothes and took a shower. Estes then called his stepsister‘s boyfriend‘s mother to come gеt him, before placing a lit propane torch on the ground. When asked about the torch, the competency report indicates Estes “placed the lit torch in the aforementioned position because he ‘figured on letting [the house] burn.‘”
{¶ 19} Later that day, Estes claims he called an unnamed individual living in the area to find out if the house had burned down or if he had heard any other information. Learning that the house had not burned down, Estes claims he went back to Grigg‘s house and used the propane torch to successfully ignite a gаsoline soaked blanket laying on the floor. Estes claims he then left the house, pawned several of his items and bought a “bunch of heroin” because his “nerves were shot.”
{¶ 20} Contrary to Estes’ claim otherwise, we find the three offenses were not committed with the same сonduct. For instance, Estes’ tampering with evidence conviction was based on Estes showering and changing his blood stained clothes shortly after stabbing Grigg multiple times. As noted above, tampering with evidence merely requires the alteration, destruction, or removal оf any “thing” with the purpose to impair its value or availability as evidence. See generally State v. Yoder, 10th Dist. Franklin No. 10AP-653, 2011-Ohio-3308, ¶ 32 (finding sufficient evidence to support tampering with evidence conviction where appellant disposed of his bloody clothes and knife used in a stabbing); State v. Garrett, 8th Dist. Cuyahoga No. 80172, 2003-Ohio-274, ¶ 72-73 (finding tampering with еvidence conviction was not against manifest weight of the evidence where testimony revealed appellant burned the clothes he was wearing at the time of the murder).
{¶ 21} Furthermore, Estes’ gross abuse of a corpse conviction was based on his
{¶ 22} Finally, Estes’ aggravated arson cоnviction was based on Estes successfully lighting a gasoline soaked blanket on fire after he returned to the scene later that day. In turn, due to the vast time difference, Estes’ conduct used to establish this charge was wholly separate from that used to support his tamрering with evidence or gross abuse of a corpse convictions. Therefore, although faced with a limited record on appeal, we nevertheless find Estes has failed to establish he committed each of these three offenses with the same conduct; that is, by a single act, performed with a single state of mind. Estes’ single assignment of error lacks merit and is therefore overruled.
{¶ 23} Judgment affirmed.
RINGLAND, P.J., and M. POWELL, J., concur.