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State v. White

Court of Appeals of Ohio, Twelfth District, Clermont

July 29, 2019

STATE OF OHIO, Appellee,
v.
TREMAYNE AMIR WHITE, Appellant.

          CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2018CR000161

          D. Vincent Faris, Clermont County Prosecuting Attorney, Katherine Terpstra, for appellee

          W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, for appellant

          OPINION

          PIPER, J.

         {¶ 1} Appellant, Tremayne White, appeals his felonious assault convictions and the accompanying firearm specifications, as well as his conviction for having weapons under disability in the Clermont County Court of Common Pleas.

         {¶ 2} White agreed to meet the victim at a restaurant parking lot to perform a drug transaction. Once the victim entered White's car, a backseat passenger held a gun against the victim's neck while White demanded the victim's money. The victim then fled White's car and jumped into his girlfriend's car. The victim's girlfriend then sped away, and White pursued the car. During the chase, the cars traveled through a residential neighborhood during which time, White fired 8-10 shots at the car. None of the bullets struck the victim or his girlfriend. At the time of the incident, White was under indictment in a different county for burglary, aggravated robbery, carrying concealed weapons, and having weapons under disability. White was also on community control for attempted aggravated assault, which also involved a firearm.

         {¶ 3} White was indicted on two counts of attempted murder, two counts of felonious assault, one count of aggravated robbery, one count of improperly handling a firearm in a motor vehicle, and one count of having weapons under disability. The attempted murder, felonious assaults, and aggravated robbery charges also carried firearm specifications.

         {¶ 4} White entered a guilty plea to two counts of felonious assault and their firearm specifications, as well as having weapons under disability. The remaining charges and specifications were dismissed. The trial court sentenced White to an aggregate sentence of 12 years. White now appeals his convictions and sentence, raising the following assignments of error.

         {¶ 5} Assignment of Error No. 1:

         {¶ 6} THE TRIAL COURT COMMITTED PLAIN ERROR IN NOT MERGING HAVING WEAPONS WHILE UNDER DISABILITY WITH FELONIOUS ASSAULT.

         {¶ 7} White first argues that the trial court should have merged his conviction for having weapons under disability with his felonious assault convictions.

         {¶ 8} As noted in White's assignment of error, he did not object at his sentencing hearing or raise the issue of merger before the trial court. As such, White has waived all but plain error in this regard. "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Crim.R. 52(B). Plain error does not exist unless the error is obvious and but for the error, the outcome of the trial would have been different. State v. Blacker, 12th Dist. Warren No. CA2008-07-094, 2009-Ohio-5519, ¶ 39. Notice of plain error is taken with the utmost caution and only under exceptional circumstances to prevent a manifest miscarriage of justice. Id.

         {¶ 9} Pursuant to R.C. 2941.25, the imposition of multiple punishments for the same criminal conduct is prohibited. State v. Rodriguez, 12th Dist. Butler No. CA2015-02-024, 2016-Ohio-452, ¶ 23. If any of the following occurs, the defendant may be convicted and sentenced for multiple offenses: "(1) the offenses are dissimilar in import or significance - in other words, each offense caused separate, identifiable harm, (2) the offenses were committed separately, and (3) the offenses were committed with separate animus or motivation." State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, ¶ 25. Two or more offenses of dissimilar import exist "when the defendant's conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable." Id. at ¶ 26.

         {¶ 10} "At its heart, the allied-offense analysis is dependent upon the facts of a case because R.C. 2941.25 focuses on the defendant's conduct." Id. "The defendant bears the burden of establishing his entitlement to the protection provided by R.C. 2941.25 against multiple punishments for a single criminal act." Sta ...


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