State v. Rainer , 2013 Ohio 963 ( 2013 )

[Cite as State v. Rainer, 2013-Ohio-963.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO
Plaintiff-Appellee
v.
PAUL G. RAINER
Defendant-Appellant
Appellate Case No. 25091
Trial Court Case No. 10-CR-3709
(Criminal Appeal from
(Common Pleas Court)
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OPINION
Rendered on the 15th day of March, 2013.
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MATHIAS H. HECK, JR., by JOSEPH R. HABBYSHAW, Atty. Reg. #0089530,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
ROBERT ALAN BRENNER, Atty. Reg. #0067714, Post Office Box 341021, Beavercreek,
Ohio 45434
Attorney for Defendant-Appellant
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2
HALL, J.
{¶ 1} Paul G. Rainer appeals from his conviction and sentence following a guilty
plea to five counts of felonious assault.
{¶ 2} Rainer advances two assignments of error on appeal. First, he contends the
trial court erred in failing to merge all of the felonious-assault counts involving one of his two
victims. Second, he claims the trial court erred in imposing partially consecutive sentences.
{¶ 3} The charges against Rainer involved a stabbing at a bar. While drinking at the
bar, Rainer became upset with one of the victims, Rebecca Henry. He stabbed her once in the
chest and once in the arm. As she fled, he stabbed her a third time in the back. The second
victim was bar patron Christopher Derr, who intervened in the knife attack. Rainer swung his
knife and cut Derr’s hand as Derr tried to restrain him.
{¶ 4} A grand jury indicted Rainer on five counts of felonious assault. Counts one,
three, four, and five pertained to Henry. Count one alleged felonious assault (deadly weapon).
Counts three, four, and five alleged felonious assault (serious physical harm). Count two
pertained to Derr and alleged felonious assault (deadly weapon). Rainer pled guilty to all of
the charges. At sentencing, the trial court merged counts three and four (which involved the
stab wounds to Henry’s chest and arm) into count one for purposes of sentencing. The trial
court found that count five (which involved the stab wound to Henry’s back) had a separate
animus and was separated in time from the other wounds. Therefore, the trial court declined to
merge count five. The trial court also found a separate animus for count two (the assault on
Derr) and declined to merge it. Rainer received concurrent two-year prison sentences on
counts one and five and a consecutive two-year sentence on count two, resulting in an
3
aggregate four-year prison term. The appeal followed.1
{¶ 5} In his first assignment of error, Rainer contends the trial court erred in failing
to merge all of the counts involving Henry into one for purposes of sentencing. Specifically,
he claims the trial court should have merged count five (which involved the stab wound to
Henry’s back) into count one, just as it merged counts three and four (which involved the stab
wounds to Henry’s chest and arm) into count one.
{¶ 6} Prior to sentencing, the State made the following uncontested proffer of the
evidence:
* * * [T]he evidence would have shown * * * that Ms. Henry was
stabbed while standing at the bar and next to the defendant. She was quickly
stabbed in the chest area and to her arm area. As a result of being stabbed, * * *
Ms. Henry fled the initial bar area and while she was fleeing the bar, this
defendant, Mr. Rainer, stabbed Ms. Henry in the back for the third stab wound.
(Sentencing Tr. at 4-5).
{¶ 7} Based on the State’s proffer, the trial court concluded:
* * * [T]he stab wounds to Ms. Henry to the chest and arm, which are
the subject of counts 1, 3 and 4, occurred in quick succession and, therefore,
those three counts involve a single animus. The Court finds that the stab wound
to the back, which is Count 5, that is separate and apart from and is
significantly separated in time from the wounds sustained in the bar, and so that
1
On November 15, 2012, this court remanded the matter for the limited purpose of allowing the trial court to file a nunc pro tunc
termination entry accurately stating the sentence imposed. The trial court filed such an entry on December 10, 2012, reciting the sentence we
have set forth above.
4
involved an animus that’s separate and apart from the animus that’s the subject
of Counts 1, 3 and 5 [sic]. So with regard to Counts 1, 3, and—let me repeat
that. Count 5 has a separate animus separate from the animus of Counts 1, 3
and 4.
(Id. at 6).
{¶ 8} On appeal, Rainer insists that the stab wound to Henry’s back was not
meaningfully distinguishable from counts one, three, and four, which the parties agree
involved the stab wounds to her chest and arm. Rainer asserts that the same animus existed for
each of the stab wounds and that the stab wound to Henry’s back did not involve any
significant separation in time or any intervening event. Therefore, he argues that count five
should have merged into count one as an allied offense of similar import,2 just as counts three
and four did.
{¶ 9} Under State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d
1061, the narrow issue before us is whether Rainer’s act of stabbing Henry in the back was
committed separately or with a separate animus from the other stab wounds he inflicted on
her. Id. at ¶51. As set forth above, the trial court determined that the knife blow to Henry’s
back was a distinct act sufficiently separated in time from the prior blows and was committed
with a separate animus. We review that determination de novo. State v. Williams, __ Ohio
St.3d __, 2012-Ohio-5699, __ N.E.2d __, ¶12.
2
Although the trial court imposed concurrent two-year prison terms on counts one and five, that does not render the allied-offense
issue moot or result in any error being harmless. “Even when the sentences imposed for allied offenses are ordered to be served concurrently,
a defendant is prejudiced by having more convictions than are authorized by law.” State v. Anderson, __ Ohio App.3d __, 2012-Ohio-3347,
974 N.E.2d 1236, ¶41 (1st Dist.).
5
{¶ 10} The facts before us support the trial court’s determination that count five was
not subject to merger. We recognize that a defendant’s infliction of multiple wounds in rapid
succession may constitute a single act with a single animus for purposes of an allied-offense
analysis. See, e.g., State v. McClendon, 2d Dist. Montgomery No. 23558, 2011-Ohio-5067(involving a defendant who shot the victim five times in rapid succession). Under the facts of
this case, however, the trial court correctly distinguished between the initial knife blows
Rainer inflicted at the bar and the final blow he inflicted to Henry’s back when she fled the bar
area and attempted to escape. The temporal separation between the knife blows, albeit slight,
establishes separate acts of felonious assault. This court reached a similar conclusion in State
v. Wilson, 2d Dist. Montgomery No. 22120, 2008-Ohio-4130, reasoning:
The evidence in this case demonstrates that Defendant committed two
separate and distinct felonious assaults against D’Laquan Phillips, and then
murdered him. The initial felonious assault occurred when Michael Phillips
heard a gunshot and looked up to see his nephew, D'Laquan Phillips, struggling
with Defendant. Although it is unclear from the record whether this first shot
struck D’Laquan Phillips, this conduct corresponds to count four of the
indictment which charged that Defendant caused or attempted to cause physical
harm with a deadly weapon. This first felonious assault was completed before
Defendant committed the second felonious assault, which occurred when
Defendant shot D’Laquan Phillips in the back as Phillips attempted to flee. * *
*
Id. at ¶43.
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{¶ 11} Similarly, the record here supports a finding that Rainer committed an act of
felonious assault when he stabbed Henry in the chest and arm as they were standing at the bar.
Rainer then committed a separate and distinct act of felonious assault when he stabbed Henry
in the back as she turned and attempted to flee. Having determined that Rainer’s act of
stabbing Henry in the back was committed separately from the other stab wounds, we need not
determine whether he also acted with a separate animus. Our determination that the act of
stabbing Henry in the back was a separately committed act is sufficient to uphold the trial
court’s ruling. Accordingly, the first assignment of error is overruled.
{¶ 12} In his second assignment of error, Rainer contends the trial court abused its
discretion in imposing consecutive two-year prison terms for felonious assault on Henry and
felonious assault on Derr.3 In support, Rainer stresses that Henry’s injuries were much more
severe than the injury sustained by Derr, who suffered only a cut to his hand. Given the
disparity in the harm he inflicted, Rainer reasons that the trial court abused its discretion in
requiring him to “serve the same time” for each victim by imposing consecutive two-year
sentences.
{¶ 13} We review a felony sentence using a two-step procedure. State v. Kalish, 120
Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 4. “The first step is to ‘examine the
sentencing court’s compliance with all applicable rules and statutes in imposing the sentence
to determine whether the sentence is clearly and convincingly contrary to law.’” State v.
Stevens, 179 Ohio App.3d 97, 2008-Ohio-5775, 900 N.E.2d 1037, ¶ 4 (2d Dist.), quoting id.3
As set forth above, the trial court imposed concurrent two-year prison terms on counts one and five, which pertained to Henry. It
then imposed a consecutive two-year prison term on count two, which pertained to Derr.
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“If this step is satisfied, the second step requires that the trial court decision be ‘reviewed
under an abuse-of-discretion standard.’” Id., quoting Kalish at ¶4.
{¶ 14} Here Rainer does not argue that his sentence is contrary to law. He maintains
only that the trial court’s imposition of consecutive sentences constituted an abuse of
discretion.4 We disagree. The fact that Derr suffered less physical harm than Henry did not
obligate the trial court to impose wholly concurrent sentences, as Rainer suggests.
{¶ 15} The pre-sentence investigation report, which the trial court considered, reveals
that Rainer had prior convictions for falsification, OVI, and two separate incidents of
disorderly conduct (one of which was amended down from assault). The trial court noted that
Rainer had been terminated from probation just seven months before committing his offenses
against Derr and Henry. The trial court also noted that Henry had suffered potentially
permanent tendon damage as a result of the knife attack. In addition, the trial court pointed out
that Rainer stopped stabbing Henry only because Derr successfully restrained him. Although
Derr’s physical injury was not as serious as Henry’s, the trial court noted Derr’s victim-impact
statement regarding significant psychological problems he had been experiencing due to the
knife attack.
{¶ 16} Based on our review of the record, we cannot say the trial court abused its
discretion in imposing an aggregate four-year prison term consisting of two concurrent
two-year prison terms (for the assault on Henry) and a consecutive two-year term (for the
4
In its brief, the State contends Rainer does argue that his sentence is contrary to law. (Appellee’s Brief at 5). A review of Rainer’s
brief reveals, however, that he makes only an abuse-of-discretion argument. (Appellant’s Brief at 4-5). Parenthetically, we note too that under
2011 Am.Sub.H.B. 86, a trial court now must make findings under R.C. 2929.14(C)(4) before imposing consecutive sentences. That
requirement became effective September 30, 2011. It had no applicability in Rainer’s case because his termination entry was filed on March
21, 2011. See State v. Du, 2d Dist. Greene No. 2010-CA-27, 2011-Ohio-6306, ¶23.
8
assault on Derr). In reaching this conclusion, we note that the potential prison term for each of
the three counts was two to eight years, meaning Rainer faced a potential twenty-four year
prison sentence. The second assignment of error is overruled.
{¶ 17} The judgment of the Montgomery County Common Pleas Court is affirmed.
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DONOVAN and FROELICH, JJ., concur.
Copies mailed to:
Mathias H. Heck
Joseph R. Habbyshaw
Robert Alan Brenner
Hon. Dennis J. Langer