[Cite as State v. Rivera, 2019-Ohio-3296.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                       CLARK COUNTY

 STATE OF OHIO                                     :
                                                   :
          Plaintiff-Appellee                       :   Appellate Case No. 2018-CA-117
                                                   :
 v.                                                :   Trial Court Case No. 2018-CR-354
                                                   :
 CARMELO RIVERA, JR.                               :   (Criminal Appeal from
                                                   :   Common Pleas Court)
          Defendant-Appellant                      :
                                                   :

                                              ...........

                                             OPINION

                            Rendered on the 16th day of August, 2019.

                                              ...........

JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County
Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

WILLIAM O. CASS, JR., Atty. Reg. No. 0034517, 135 West Dorothy Lane, Suite 117,
Kettering, Ohio 45429
       Attorney for Defendant-Appellant

                                             .............




TUCKER, J.
                                                                                          -2-


       {¶ 1} Defendant-appellant, Carmelo Rivera, Jr., pleaded guilty to abuse of a corpse

and tampering with evidence. Without mentioning the issue of merger, the trial court

convicted Rivera of each offense. On appeal, Rivera asserts that the offenses were

allied offenses of similar import and, thus, should have been merged so that he was

convicted of a single offense. We conclude that the offenses were of dissimilar import

because the harm resulting from each offense was separate and distinct.            The trial

court’s judgment will be affirmed.



                             Facts and Procedural History

       {¶ 2} Rivera pleaded guilty to abuse of a corpse in violation of R.C. 2927.01(B), a

fifth degree felony, and tampering with evidence in violation of R.C. 2921.12(A)(1), a third

degree felony. 1 At the plea hearing, the State stated the following in support of the

offenses:

              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 woods where it was left by those individuals. They did



1
 R.C. 2927.01(B) states that “no person, except as authorized by law, shall treat a human
corpse in a way that would outrage community sensibilities.” R.C. 2921.12(A) in relevant
part states that “no person, knowing that an official proceeding or investigation is in
progress, or is about to be or likely to be instituted, shall do any of the following: Alter,
destroy, conceal, or remove any * * * thing, with purpose to impair its value or availability
as evidence in such proceeding or investigation.”
                                                                                         -3-


       this knowing that an official investigation had begun or was about to begin

       and did so to make that evidence unavailable to 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 sentenced 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 not 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 shall “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



2
 Rivera’s failure to raise the merger issue before the trial court triggers a plain error
analysis, but “the imposition of multiple punishments for allied offenses of similar import
amounts to plain error.” State v. Estes, 12th Dist. Preble No. 2013-04-001, 2014-Ohio-
767, ¶ 11. (Citation omitted.)
                                                                                      -4-

jeopardy protection to Ohio citizens. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995,

34 N.E.3d 892, ¶ 10. The prohibition against double jeopardy protects citizens from a

second prosecution for the same offense and against multiple punishments for the same

offense. (Citations omitted.) Id. Rivera asserts that his punishment for both the abuse

of a corpse count and the tampering with evidence count constitutes multiple punishments

for the same offense.

       {¶ 5} In Ohio, the multiple punishment double jeopardy protection has been

codified at R.C. 2941.25 as follows:

       (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 separate 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.

       {¶ 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 offenses 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)
                                                                                         -5-


       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 answer to any of the above will permit

       separate convictions. The conduct, the animus, and the import must all be

       considered.

Id. at ¶ 31.

       {¶ 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 harm. 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, the defendant can be

       convicted of multiple counts. Also, a defendant’s conduct that constitutes

       two or more offenses against a single victim can 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.

Ruff at ¶ 26.
                                                                                         -6-


       {¶ 9} Turning to the pending case, the “victims” of each offense are the same, the

citizens of the State of Ohio. But, each offense resulted in separate, distinct harm. The

harm resulting from the tampering with evidence offense was the unavailability of the

corpse as evidence. In contrast, the harm resulting from the abuse of a corpse offense

was the outrage to reasonable community sensibilities. Since the two offenses resulted

in separate, identifiable harm, they were offenses of dissimilar import, and, thus, not

subject to merger.3 The assignment of error is overruled.



                                       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.




3
  Rivera cites to two cases, State v. Crisp, 4th Dist. Scioto No. 10CA3404, 2012-Ohio-
1730, and State v. Shears, 1st Dist. Hamilton No. C-120212, 2013-Ohio-1196, where
courts concluded, under circumstances similar to this case, that the offenses of tampering
with evidence and abuse of a corpse were allied offenses of similar import subject to
merger. These cases, however, were decided under State v. Johnson, 128 Ohio St.3d
153, 2010-Ohio-6314, 942 N.E.2d 1061. The Johnson merger analysis required the trial
court to first determine whether the offenses could be committed by the same conduct,
and, if so, whether, in fact, the offenses were committed by the same conduct. If the
answer to each question was “yes,” the offenses were allied offenses of similar import
requiring merger. The Ruff decision concluded that the Johnson merger test “was
incomplete because R.C. 2941.25(B) provides that when a defendant’s conduct
constitutes two or more offenses of dissimilar import, the defendant may be convicted of
all of the offenses.” Ruff at ¶ 16. (Emphasis sic.) Ruff holds that when, as here, the
harm resulting from multiple offenses is separate and distinct, the offenses are of
dissimilar import.
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Copies sent to:

John M Lintz
William O. Cass, Jr.
Hon. Richard J. O’Neill
