[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)
                                             ...........

                                            OPINION

                              Rendered on the 15th day of March, 2013.

                                             ...........

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

                                            .............
                                                                                                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.
                                                                                                                                  6


         {¶ 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.
                                                                                                                                         7


“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.

                                            .............

DONOVAN and FROELICH, JJ., concur.


Copies mailed to:

Mathias H. Heck
Joseph R. Habbyshaw
Robert Alan Brenner
Hon. Dennis J. Langer
