The Akron Legal News

Appellate court remands arson case for resentencing

ANNIE YAMSON
Special to the Legal News
Published: May 17, 2013

The 8th District Court of Appeals has partially remanded a conviction ruling to the Cuyahoga County Court of Common Pleas for resentencing on two separate counts.

David Piscura had been indicted on several charges in relation to the fire bombing of a house on Russell Avenue in Parma.

He was charged with three counts of aggravated arson, one count of attempted murder, one count of unlawful possession of a dangerous ordnance and one count of possessing criminal tools.

Case summary stated that, in the early morning of Jan. 13, 2012, Piscura began texting his friend Anthony Veto. Veto was dating Kimberly Stillman who was staying in a rental home with two friends.

Veto told Piscura, “I can make three firebombs, and I know one place that needs it. Got all the tools. Just need a ride.”

Piscura picked Veto up and drove to Russell Avenue where neighbors later told police they saw Piscura’s car driving up and down the street.

Veto used a rock to break in the front window of Stillman’s residence and threw two Molotov cocktails inside, according to court documents.

The house went up in flames and though all of the tenants, including a dog, made it out unscathed, the house was a total loss and all three victims lost their personal possessions.

The trial court merged the arson and murder charges and sentenced Piscura to six years in prison on those counts.

He was sentenced to six months in prison on the counts of possessing criminal tools and possession of a dangerous ordnance, which were also merged.

Upon appeal, Piscura argued that all of his offenses should have been merged into a single crime because they were “committed with the same animus.”

Presiding Judge Larry Jones wrote the decision on behalf of the appellate court in which he cited the merger statute from the Ohio Revised Code: “Where the same conduct by a 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 only be convicted of one.”

Jones also deferred to State v. Johnson, which established that, when merging offenses, the court must determine “whether it is possible to commit one offense and commit the other with the same conduct” and then establish whether the offenses were “committed with a single state of mind.”

“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 the offenses will not merge,” the court opinion stated.

The appellate court’s opinion differed from Piscura’s though, because it stated that the trial court correctly merged his last two charges but should have convicted him on three separate counts of attempted murder, considering there were three people in the house at the time of the fire bombing.

Jones determined that Piscura’s attempted arson and murder charges should not have been merged.

“Where a defendant commits the same offense against different victims during the same course of conduct, a separate animus exists for each victim such that the offenses are not allied and the defendant can properly be convicted of and sentenced on multiple counts,” wrote Jones.

The three-judge appellate panel agreed that the facts set forth in the case record showed that there were three people in the house at the time of the fire and that each victim corresponds to one count of attempted murder.

“As to the (aggravated arson),” wrote Jones. “Piscura’s conviction under that count for knowingly causing physical harm to the Churby’s house was separate and apart from attempting to cause the death of (the residents).”

Piscura also contended in his appeal that the Molotov cocktails, the rock used to break the window and his car concerned “nothing more that implements needed to perform the firebombing act. They had no independent criminal purpose.”

“Historically, this court has declined to find that possessing criminal tools and possessing a dangerous ordnance merge as allied offenses of similar import,” Jones stated.

The appellate panel focused specifically on the particular conduct of the defendant at issue.

“In this case, Piscura’s conduct of possessing the firebomb is sufficient to support a charge and conviction of both possessions of a dangerous ordnance and possessing criminal tools,” said Jones. “Because the state identified ... that the firebomb was both the dangerous ordnance and a criminal tool, the result is that (both counts) are allied offenses.”

However, the court found that when considering the merger of all counts, it needed to determine whether a separate animus existed for the two offenses.

Jones stated that the appellate panel examined “case-specific factors such as whether the defendant, at some point, broke a temporal continuum started by his initial act.”

To illustrate his point, Jones cited State v. Sludder in which the court concluded that breaking and entering and theft were not allied offenses even though the two offenses were committed close in time.

“Because one offense was complete before the other offense occurred,” the case stated. “The two offenses were committed separately ... notwithstanding their proximity in time and that one was committed in order to commit the other.”

Likewise, transporting the firebombs to the residence and the subsequent act of throwing them in the house was done with a separate animus and conduct, the court of appeals concluded.

“There is a distinction and a break in the continuum of events that allowed the trial court to reasonably conclude that separate and distinct crimes were committed,” Jones wrote.

The appellate panel reversed and vacated Piscura’s sentence regarding the charges of possession of criminal tools and a dangerous ordnance and remanded the case for new sentencing and hearing on the remaining offenses after the state selects which allied offenses to pursue.

Judge Kathleen Ann Keough concurred. Judge Mary Eileen Kilbane dissented in part, stating that the possession charges should not have been merged.

The case is cited State v. Piscura, 2013-Ohio-1793.

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