[Cite as State v. White, 2018-Ohio-3673.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 106490




                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                      JASON E. WHITE
                                                    DEFENDANT-APPELLANT




                               JUDGMENT:
                    AFFIRMED IN PART, MODIFIED IN PART


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-17-614163-A

        BEFORE: Stewart, P.J., Laster Mays, J., and Keough, J.

        RELEASED AND JOURNALIZED: September 13, 2018
[Cite as State v. White, 2018-Ohio-3673.]
ATTORNEY FOR APPELLANT

Paul A. Mancino, Jr.
Mancino Mancino & Mancino
75 Public Square Building, Suite 1016
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

Kristin M. Karkutt
Jennifer King
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
[Cite as State v. White, 2018-Ohio-3673.]
MELODY J. STEWART, P.J.:

        {¶1} Defendant-appellant Jason E. White admitted to killing his wife by shooting

her in the head. After being indicted on counts of aggravated murder and felonious

assault, White elected to be tried by the court solely on the issue of whether he acted with

prior calculation and design. The state showed that White believed that his wife was

unfaithful to him and it relied on White’s confession to the police in which he stated that

he made the decision to kill her in advance of actually doing so. On this evidence, the

court found White acted with prior calculation and design and found him guilty of

aggravated murder, murder, and two counts of felonious assault. White was sentenced to

a total prison term of 23 years to life.

        {¶2} In this appeal from the judgment of conviction, White argues that the court

erroneously admitted into evidence a number of firearms he owned that were not used in

the shooting; that there was insufficient evidence to prove that he acted with prior

calculation and design; that trial counsel should have filed a motion to suppress evidence;

and that the court erred by accepting a waiver of a jury trial. A fifth error, relating to the

merger of various offenses for sentencing, is conceded by the state. Apart from the

conceded error, we find no other errors.

                                 I. Admission of Irrelevant Evidence
[Cite as State v. White, 2018-Ohio-3673.]
        {¶3} When the police searched White’s house after the murder, they discovered, in

addition to the murder weapon, a number of handguns, a shotgun, and a rifle. The court

allowed evidence of the weapons to be admitted at trial. White argues that this evidence

was irrelevant because the weapons were not used in the murder and he was licensed to

carry a concealed weapon. The state maintains defense counsel opened the door to the

evidence because he mentioned in his opening statement that the “house was full of

guns[.]”

        {¶4} We agree with White that “‘the fact that a person collects knives or other

weapons does not tend to make it more probable that the person is experienced with the

use of knives and intends to use a knife to cause serious injury to others. * * * Possession

and use are not equivalent.’” State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011, 92

N.E.3d 821, ¶ 37, quoting Kaufman v. People, 202 P.3d 542, 555 (Colo.2009).

Nevertheless, the error is harmless beyond a reasonable doubt. See Crim.R. 52(A).

White admitted that he shot his wife. The issue at trial was whether he acted with prior

calculation and design to cause her death.           Whether White had access to multiple

firearms in addition to the one he used to kill his wife was irrelevant to the issue of prior

calculation and design. Evidence showing the presence of the firearms would not have

affected the court’s verdict.

                            II. Evidence of Prior Calculation and Design

        {¶5} White next argues that there was insufficient evidence to prove that he acted

with prior calculation and design when he killed his wife.
[Cite as State v. White, 2018-Ohio-3673.]
        {¶6} The state charged White with aggravated murder in violation of R.C.

2903.01(A).       That section states that “[n]o person shall purposely, and with prior

calculation and design, cause the death of another * * *.” “Prior calculation and design”

is not defined by the Revised Code, but is considered to be “a scheme designed to

implement the calculated decision to kill.” State v. Cotton, 56 Ohio St.2d 8, 11, 381

N.E.2d 190 (1978). This is more than “momentary deliberation.” State v. Walker, 150

Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶ 17, citing Ohio Legislative Service

Commission, Proposed Ohio Criminal Code: Final Report of the Technical Committee to

Study Ohio Criminal Laws and Procedures, at 71 (1971).
[Cite as State v. White, 2018-Ohio-3673.]
        {¶7} In a recorded interview conducted just hours after the murder, White told the

police that he and his wife had long been experiencing marital issues. These issues came

to a head when he saw text messages on her cell phone that he believed indicated that she

had been unfaithful with another man. His wife denied any infidelity, in contradiction to

the text messages he claimed to have seen on her cell phone. Nevertheless, they talked

throughout the night about their relationship. The following evening, they watched

television together and discussed whether they should divorce. Before going to sleep in

their basement bedroom, White decided he “couldn’t take it anymore.” When he awoke

the following morning, White said he made the decision to kill his wife. They smoked a

cigarette, and the wife, claiming to be tired from the evening spent talking, said she

wanted to sleep some more. After she fell asleep, White obtained a gun, went upstairs,

and placed a chair in front of his daughter’s door so that she would not be able to leave

the room and see what he was about to do. White returned to his sleeping wife and,

using a heavy blanket to muzzle the sound of the shot, placed the handgun against her

head and shot her. White then wrote a lengthy text message to his father, stating that “I

can’t live in jail so I don’t see a better alternative I’m giving up my life for my daughter.”

 White sent the text message and claimed that he tried to shoot himself, but that the gun

jammed. When asked why he did not use another one of the weapons in the basement,

White claimed that fate decided he should live, so he lost the will to die. The father

arrived at White’s house just minutes after receiving the text message. He found White
sitting on the side of the bed next to the wife, who was covered with a blanket. White

told his father that he shot her. The father took the child and called the police.

       {¶8} White did not make a spur of the moment decision to kill his wife. The court

found that White’s statements to the police laid the foundation for prior calculation and

design; notably, when asked how it got to the point of murder, White responded, “it

wasn’t just an overnight type of thing.” The court found that regardless of whether

White formed the plan to kill his wife the night before or when he awoke:
[Cite as State v. White, 2018-Ohio-3673.]
        [h]e had time to change his mind from the time that he smoked that
        cigarette from when he went to the bathroom, from when he carefully
        calculated putting the chair in front of his daughter’s door so she couldn’t
        see or hear anything, from the time that he took a perfectly folded blanket
        and placed it over her head so that he could muzzle the sound of that shot.

The court could rationally find that White made the decision to kill his wife the moment

he woke up, and that the steps he took to make sure that his daughter would not witness

the murder showed studied care in carrying out the plan. These facts show that White’s

actions “went beyond a momentary impulse and show that he was determined to complete

a specific course of action.” State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842

N.E.2d 996, ¶ 46. The court’s verdict was supported by sufficient evidence of prior

calculation and design.

                                III. Ineffective Assistance of Counsel

        {¶9} For his third assignment of error, White complains that he was denied the

effective of assistance of counsel because defense counsel failed to file a motion to

suppress statements he made to the police after they entered his house without a warrant

and without knocking.
[Cite as State v. White, 2018-Ohio-3673.]
        {¶10} Central to White’s argument is his assertion that there is no “crime scene”

exception to the warrant clause of the Fourth Amendment to the United States

Constitution. “It is well settled under the Fourth and Fourteenth Amendments that a

search conducted without a warrant issued upon probable cause is ‘per se unreasonable’”

and is “‘subject only to a few specifically established and well-delineated exceptions.’”

Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973),

quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

Nevertheless, an exception to the warrant requirement exists for searches conducted

during exigent or emergency circumstances. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct.

2408, 57 L.Ed.2d 290 (1978). In emergency situations, the Fourth Amendment does not

bar police officers from making warrantless entries and searches when they reasonably

believe a person inside is in need of immediate aid. Id. at 392-393; Michigan v. Fisher,

558 U.S. 45, 47, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (law enforcement “may enter a

home without a warrant to render emergency assistance to an injured occupant or to

protect an occupant from imminent injury.”).
[Cite as State v. White, 2018-Ohio-3673.]
        {¶11} The state played a recording of the 911 call that White’s father made to the

police. In that call, the father stated that White “just shot his wife” and “he’s got a gun.”

 The father said that the wife was “in the basement with my son,” but when asked if he

saw the wife, he could only say that she was “laying in the bed covered with a blanket.”

With this limited information, the police justifiably entered the house to render

emergency assistance to the wife, whom they knew had been shot by White, but had no

further indication of her condition. In addition, the police were told that White remained

with the wife. They understood the scene as one with an active shooter and, in the words

of a police investigator, “we didn’t know what was going on and who was inside[.]” All

of this was known to defense counsel. A motion to suppress on grounds that the police

lacked a warrant when they entered the house would have been futile, so defense counsel

did not violate any essential duty by refusing to file one. State v. Miller, 8th Dist.

Cuyahoga No. 94662, 2011-Ohio-2388, ¶ 44.
       {¶12} White also complains that defense counsel erred by failing to request a

psychiatric evaluation even though granted funds to do so by the court. He maintains

that an examination was warranted given that he contemplated killing himself after

shooting his wife.    We reject this assertion because the record shows that during

sentencing, defense counsel informed the court that White had been examined by a

forensic psychologist but did not offer the psychologist’s report because White was found

to be “sane and competent.” In addition, the record shows that the court granted payment

for the defendant’s consulting psychologist. So not only would a motion based on

White’s alleged lack of competency have been futile, appellate counsel’s argument that

defense counsel failed to seek an evaluation is frivolous.
[Cite as State v. White, 2018-Ohio-3673.]
        {¶13} Finally, White argues that defense counsel erred by conceding guilt without

White’s express consent.          This case is not affected by the recent United States Supreme

Court decision in McCoy v. Louisiana, 584 U.S. ___, 138 S.Ct. 1500, 200 L.Ed.2d 821

(2018), where the court held that “counsel may not admit her client’s guilt of a charged

crime over the client’s intransigent objection to that admission[.]” Id. at 833. White

freely admitted to shooting his wife in his statement to the police and did not offer an

“intransigent objection” to defense counsel’s strategy. United States v. Weston, E.D.Pa.

No. 13-cr-25-01, 2018 U.S. Dist. LEXIS 91306, 15 (May 31, 2018), fn. 31.

        {¶14} In fact, White rejected a plea offer in which he would plead guilty to a

single count of aggravated murder in exchange for a sentence of 20 years to life, with a

three-year firearm specification. White desired to plead to a single count of murder with

a term of 15 years to life, with a three-year firearm specification. When the state rejected

that counteroffer, White elected to try the case on the sole issue of prior calculation and

design, being “hopeful” that he would be found guilty of murder, which would require a

prison term of 18 years to life, with a firearm specification. As defense counsel told the

court during sentencing, during his discussions with White on the plea offer made by the

state, White said, “I’ll take my chances on the prior calculation and design.” The record

thus shows that White made a reasoned decision to concede, consistent with his

confession, that he killed his wife.

                                            IV. Waiver of Jury Trial
[Cite as State v. White, 2018-Ohio-3673.]
        {¶15} White waived his right to be tried to a jury, a waiver that he concedes “may

have been sufficient to waive a jury trial” under the Ohio Constitution. He maintains,

however, that the jury trial waiver was insufficient under the United States Constitution.

Unfortunately, apart from citing two federal cases that provide guidelines for determining

the voluntariness of a jury trial waiver, White makes no independent argument, supported

by facts in the record, showing why his waiver was invalid. This type of asserted but

undeveloped argument does not satisfy an appellant’s obligation under App.R. 16(A)(7).

State v. Ware, 8th Dist. Cuyahoga No. 106176, 2018-Ohio-2294, ¶ 21, fn. 2. In any

event, the transcript shows that the court thoroughly questioned White about his written

waiver before accepting it and was satisfied that the waiver was knowingly, intelligently,

and voluntarily made by White. We have no basis for finding error.

                                            V. Allied Offenses

        {¶16} After finding White guilty of all charges, the court imposed a sentence on

each count and only then merged the counts into the aggravated murder count as elected

by the state.      White argues that the court violated the allied offenses statute, R.C.

2941.25(A), by imposing a sentence on the counts that were to be merged.
[Cite as State v. White, 2018-Ohio-3673.]
        {¶17} The state concedes that the court should not have imposed sentences on

allied offenses of similar import that merged into the aggravated murder conviction.

That concession is warranted on the authority of State v. Whitfield, 124 Ohio St.3d 319,

2010-Ohio-2, 922 N.E.2d 182, ¶ 17 (“A defendant may be indicted and tried for allied

offenses of similar import, but may be sentenced on only one of the allied offenses.”).

We sustain the fifth assignment of error and, on the authority of State v. Williams, 148

Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, modify White’s sentence consistent

with the state’s election of aggravated murder and vacate the sentences imposed on

Counts 2, 3, and 4. Id. at ¶ 31-33.

        {¶18} Judgment affirmed in part, modified in part.

        It is ordered that appellee and the appellant share costs herein taxed.

        The court finds there were reasonable grounds for this appeal.

        It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

        A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



______________________________________________
MELODY J. STEWART, PRESIDING JUDGE

ANITA LASTER MAYS, J., and
KATHLEEN ANN KEOUGH, J., CONCUR
