State v. RiveraState v. Rivera
WILLIAM O. CASS, JR., Atty. Reg. No. 0034517, 135 West Dorothy Lane, Suite 117, Kettering, Ohio 45429 Attorney for Defendant-Appellant
Facts and Procedural History
{¶ 2} Rivera pleaded guilty to abuse of a corpse in violation of
The facts of this case, Your Honor, are that on or about July the 22nd of 2015, to on or about the 26th of July of 2015, the defendant, along with others, did transport the body of Tiffany Chambers from where she was deceased behind 144 West Pleasant Street in Springfield to a wooded lot near 2570 Elam Road. That‘s in Greene County, Ohio. The body was then dumped in the wоods where it was left by those individuals. They did
this knowing that an official investigation had begun or was about to begin and did so to make that evidence unavailable tо authorities. In doing so, they would outrage reasonable community sensibilities by abandoning the body in that secluded location.
The trial court found Rivera guilty and sеntenced him to a 36-month prison term for tampering with evidence and a 12-month prison term for abuse of a corpse. The sentences were ordered to be served consecutively, resulting in a 48-month prison term. At the sentencing hearing, Rivera did not raise the issue of merger, and the trial court, as noted, did nоt mention the issue. Following sentencing, Rivera filed this appeal.
Analysis
{¶ 3} Rivera‘s sole assignment of error is as follows:
THE TRIAL COURT ERRED WHEN IT FAIL[ED] TO MERGE [RIVERA‘S] CONVICTIONS FOR TAMPERING WITH EVIDENCE AND ABUSE OF A CORPSE.2
{¶ 4} The Fifth Amendment to the United States Constitution provides in relevant part that no person shаll “be subject for the same offense to be twice put in jeopardy of life or limb.” This protection applies to the states through the Fourteenth Amendment to the United States Constitution. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The Ohio Constitution, Article I, Section 10, also provides double
{¶ 5} In Ohio, the multiple punishment double jeopardy protection has been codified at
(A) Where the same conduct by defendant can be construed tо 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 mоre offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may cоntain counts for all such offenses, and the defendant may be convicted of all of them.
{¶ 6} Over the years, the Ohio Supreme Court has articulated several tests to use when making the sometimes difficult merger decision. The Supreme Court‘s most recent test is set forth in State v. Ruff, as follows:
* * * [W]hen determining whether offenses are allied оffenses of similar import within the meaning of
R.C. 2941.25 , courts must ask three simple questions when the defendant‘s conduct supports multiple offenses: (1)Were the offenses dissimilar in import or significance? (2) Were they committed separately? and (3) Were they committed with separate animus or motivation? An affirmative answеr to any of the above will permit separate convictions. The conduct, the animus, and the import must all be considered.
{¶ 7} It appears, based upon the State‘s factual recitation at the plea hearing, that Rivera committed each offense with the same conduct. Also, and again based upon the State‘s plea hearing statement, Rivera committed each offense with the same motivation. So we must determine whether the offenses are dissimilar in import or significance.
{¶ 8} The import or significance decision turns on whether the offenses resulted in separate, identifiable hаrm. The Ruff opinion states the following on this topic:
When a defendant‘s conduct victimizes more than one person, the harm for each person is separate and distinct, and, therefore, thе defendant can be convicted of multiple counts. Also, a defendant‘s conduct that constitutes two or more offenses against a single victim cаn support multiple convictions if the harm that results from each offense is separate and identifiable from the harm of the other offenses. We therefore hold that two or more offenses of dissimilar import exist within the meaning of
R.C. 2941.25(B) when the defendant‘s conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable.
Conclusion
{¶ 10} The trial court did not err in failing to merge the offenses of tampering with evidence and abuse of a corpse. The judgment of the Clark County Common Pleas Court is affirmed.
DONOVAN, J. and HALL, J., concur.
John M Lintz
William O. Cass, Jr.
Hon. Richard J. O‘Neill