Court of Appeals of Ohio, Twelfth District, Clermont
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2018CR000161
Vincent Faris, Clermont County Prosecuting Attorney,
Katherine Terpstra, for appellee
Stephen Haynes, Clermont County Public Defender, Robert F.
Benintendi, for appellant
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
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
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
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
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."