[Cite as State v. Lemaine, 2026-Ohio-1741.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-250633 TRIAL NO. B-2404313 Plaintiff-Appellee, :
vs. : JUDGMENT ENTRY ERNEST LEMAINE, :
Defendant-Appellant. :
This cause was heard upon the appeal, the record, and the briefs. For the reasons set forth in the Opinion filed this date, the judgment of the trial court is affirmed. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed under App.R. 24. The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27.
To the clerk: Enter upon the journal of the court on 5/13/2026 per order of the court.
By:_______________________ Administrative Judge [Cite as State v. Lemaine, 2026-Ohio-1741.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-250633 TRIAL NO. B-2404313 Plaintiff-Appellee, :
vs. : OPINION ERNEST LEMAINE, :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 13, 2026
Connie Pillich, Hamilton County Prosecuting Attorney, and John D. Hill, Jr., Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Fox & Scott, P.L.L.C., and Bradley W. Fox, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Presiding Judge.
{¶1} Victim K.B. testified that she was at a friend’s home when two men
pulled up and one shot through the wall. She identified the shooter as defendant-
appellant Ernest Lemaine, with whom she had two children and was embroiled in a
custody dispute. Lemaine protested that he had nothing to do with the shooting and
had been at work. After a bench trial, the trial court credited K.B., found Lemaine
guilty, and sentenced him to prison for felonious assault and three firearm
specifications.
{¶2} Lemaine now contends (1) that there was insufficient evidence to
convict him, (2) that his convictions were contrary to the manifest weight of the
evidence, (3) that his trial counsel was unconstitutionally ineffective, (4) that the
State’s closing arguments improperly relied upon evidence not admitted at trial, and
(5) that his sentences were contrary to law. After reviewing the record and concluding
that none of his contentions warrant reversal, we affirm.
I. BACKGROUND
A. Before the Shooting
{¶3} Lemaine and victim K.B. had two children together and, prior to 2024,
had been Florida residents. At some time prior to April 2024, the couple separated and
initiated custody proceedings in the Florida courts. The court awarded Lemaine
custody of their children and awarded K.B. a right of visitation. The court also imposed
upon K.B. an obligation to pay Lemaine child support. Lemaine then moved to the
Cincinnati area with his children to manage an apartment complex on Kentucky
Avenue for his employer, a property-management company. K.B. followed Lemaine to
Cincinnati in April 2024 to remain near her children, bringing her third child (who
was not Lemaine’s) with her.
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{¶4} K.B. and her daughter lived with Lemaine for a time at the apartment
complex. However, K.B. had moved out “several days before” September 6, 2024, the
date charged in the indictment.
{¶5} Around September 3, 2024, Lemaine and K.B. attended a Zoom hearing
with the Florida court that had retained jurisdiction over their child-custody matter.
K.B. apparently requested either joint custody or equal parenting time, to which
Lemaine would not consent.
B. The Shooting
{¶6} On the afternoon of September 6, K.B. was visiting a new friend, R.W.,
at R.W.’s “brother’s girlfriend’s house” on Washburn Street in Cincinnati. Several
other people were present in the home, including C.W., whom K.B. described as
“basically the owner of the house.” According to testimony elicited at trial, the
Washburn house was not far from the Kentucky Avenue apartment complex where
Lemaine lived and worked—roughly a quarter mile, or a five-minute walk.
{¶7} K.B. testified that, when she exited the Washburn house to go to her car
parked on the street outside, she saw Lemaine’s blue Dodge Ram truck “driving past
[her] car like very slowly.” Although K.B. could not see the driver through the truck’s
tinted windows, she testified that she recognized the truck as Lemaine’s.
{¶8} K.B. testified that, upon seeing the truck, she went back inside the
Washburn house for 10 to 15 minutes to avoid encountering Lemaine. When she
ventured back outside, she again saw Lemaine’s truck—this time parked on the street
around the corner—and again ducked into the house. At this point, K.B. gave her keys
to her friend, R.W., who volunteered to go out to her car. K.B. testified that when R.W.
returned, he seemed “in a panic as if something like happened.”
{¶9} K.B. estimated that another 30 minutes passed inside the Washburn
4 OHIO FIRST DISTRICT COURT OF APPEALS
house before she heard a knock at the door. R.W., his brother, and C.W. went to answer
it. K.B. testified that when her companions opened the door, she could see a man in a
white shirt standing in the doorway and a white Ford Fusion parked in front of the
house. K.B. identified the white-shirted man as “Marcus,” and said that he “live[d]
with Ernest Lemaine.” K.B. heard Marcus twice ask those at the door if K.B. could step
outside, and heard R.W. twice reply that K.B. could not. After the second denial,
Marcus headed back toward his car.
{¶10} As Marcus approached his vehicle, K.B. said, she saw him “fumbl[e]
with” and nearly drop a weapon. K.B. testified that, at roughly the same time, she saw
Lemaine roll down the white Ford’s passenger-side window and point a gun at the
Washburn house. A “second later” K.B. heard a gunshot, after which Marcus got into
the car and the two men drove off.
C. Police Response
{¶11} C.W. called 9-1-1. In her call, a recording of which was admitted at trial,
C.W. told the dispatcher that “some girl’s boyfriend came over here and shot at
[C.W.’s] house.” Eventually, C.W. handed the phone to K.B., who identified the shooter
as Lemaine.
{¶12} Cincinnati Police Officers Freeman and Ward received the shots-fired
call around 4:55 p.m. and were the first officers to arrive at the scene a few minutes
later. Officer Ward saw what he described as a “bullet hole” going through an exterior
wall and into the living room of the house. Those present at the house also informed
Officer Freeman about the white Ford and blue truck, leading Officer Freeman to radio
his fellow officers to be on the lookout for a white Ford.
{¶13} Within half an hour, officers had stopped a white Ford Fusion roughly
a half mile from Lemaine’s Kentucky Avenue apartment complex. That vehicle
5 OHIO FIRST DISTRICT COURT OF APPEALS
contained Marcus and another, unidentified passenger, but not Lemaine. Police
interviewed Marcus but did not arrest him or his passenger.
{¶14} Another Cincinnati police officer, Officer Croswell, recognized
Lemaine’s name over the radio and drove to the Kentucky Avenue apartment complex
to speak with him. According to the timestamps on the body-worn camera (“BWC”)
footage, officers arrived at the Kentucky Avenue complex roughly an hour after the
initial shots-fired call. When the officers asked Lemaine about the shooting, Lemaine
replied that he had nothing to do with any shots fired, that he had been working at his
apartment complex at the relevant time, that he had been about to go out for food with
his children when the officers arrived, and that K.B. had made false criminal
complaints against him in the past. Officers drove Lemaine to K.B., who identified
him. They then placed Lemaine under arrest.
D. Indictment & Trial
{¶15} The Hamilton County Grand Jury returned a four-count indictment
against Lemaine. Count 1 charged Lemaine with discharging a firearm at or into an
occupied structure in violation of R.C. 2923.161(A)(1). Counts 2, 3, and 4 charged him
with the felonious assault of K.B., C.W., and R.W., respectively, in violation of R.C.
2903.11(A)(2). Each count included three firearm specifications, which charged that
Lemaine had (1) possessed a firearm while committing the offense, (2) used a firearm
to facilitate the commission of the offense, and (3) committed the offense by
discharging a firearm from a motor vehicle. For ease, we shall refer to the first
specification to Count 1 as “Spec 1.1,” the first specification to Count 2 as “Spec 2.1,”
and so on.
{¶16} During the two-day bench trial, the State called K.B., as well as Officers
Freeman, Ward, and Croswell, to testify. Through these witnesses, it introduced the 9-
6 OHIO FIRST DISTRICT COURT OF APPEALS
1-1 call recording, BWC footage from Officers Freeman and Ward, footage of
Lemaine’s discussion with the officers captured by an in-cruiser camera, photos taken
at the Washburn house, and screenshots from other BWC footage. The defense called
Lemaine to testify on his own behalf.
{¶17} The court found Lemaine guilty on Counts 1 and 2 (improper discharge
into a habitation and felonious assault of K.B.) and all six of their attendant
specifications, but found Lemaine not guilty on Counts 3 and 4 (felonious assault of
C.W. and R.W.). The trial court merged Count 1 into Count 2 and merged three of the
specifications into the other three, so that Lemaine was only sentenced on Count 2 and
Specs 1.2, 2.2, and 2.3. It ran all four sentences consecutively, for an aggregate prison
term of 16 years to 18 years, 6 months.
II. SUFFICIENCY & WEIGHT OF THE EVIDENCE
{¶18} Lemaine’s first two assignments of error challenge the sufficiency and
weight of the evidence used to convict him of Counts 1 and 2.1
{¶19} To prove the allegations in Count 1 of its indictment charging a violation
of R.C. 2923.161(A)(1), the State had to show (1) that Lemaine “knowingly discharged
a firearm,” (2) that he fired “at or into an occupied structure,” and (3) that said
structure was the “permanent or temporary habitation of [C.W.].”
{¶20} And to prove the allegations in Count 2 that could support a conviction
under R.C. 2903.11(A)(2), the State had to show that Lemaine had (1) “knowingly
1 Ordinarily, a defendant’s challenge to his conviction on a merged count is moot, as no sentence
has been imposed on that count. See State v. Myers, 2018-Ohio-1903, ¶ 138; State v. Garrett, 2026- Ohio-49, ¶ 17 (1st Dist.). But while the court below merged Count 1 into Count 2, it still imposed a sentence on Spec 1.2. The validity of Lemaine’s sentence on Spec 1.2—indeed, the trial court’s ability to impose sentences for more than one firearm-facilitation specification—hinged on Lemaine’s guilt on the improper-discharge charge in Count 1. (For a fuller explanation of why this is so, see our discussion of Lemaine’s fifth assignment of error in Part IV.) Thus, his challenge to the finding of guilt on Count 1 is not moot.
7 OHIO FIRST DISTRICT COURT OF APPEALS
caused, or attempted to cause, physical harm to [K.B.],” and (2) that he did so “by
means of a deadly weapon or dangerous ordnance, to wit: A FIREARM.” Because the
State never sought to prove actual harm under the first element, we focus on its
evidence that Lemaine “knowingly . . . attempted to cause” K.B. physical harm.
{¶21} Lemaine does not appear to challenge the sufficiency or weight of the
evidence supporting his convictions on the various specifications, beyond challenging
factual findings that underpinned his findings of guilt for the underlying felonies.
A. Sufficiency
{¶22} Lemaine’s first assignment of error challenges the sufficiency of the
evidence. This is, in essence, an allegation that the State failed to meet its burden of
production. See State v. Messenger, 2022-Ohio-4562, ¶ 26; State v. Chambers, 2025-
Ohio-4737, ¶ 18 (1st Dist.). To determine whether the State’s evidence was sufficient
to sustain a conviction, we ask whether that evidence, if believed and taken in the light
most favorable to the State, could have satisfied all the elements the State had to prove
at trial. See State v. Jones, 2021-Ohio-3311, ¶ 16; Chambers at ¶ 18.
{¶23} In this case, K.B.’s testimony was clearly sufficient to convict Lemaine
on both Counts 1 and 2.
{¶24} First, K.B. testified that the Washburn house was C.W.’s home.
{¶25} Second, K.B.’s and Lemaine’s testimony could clearly support a finding
that Lemaine knew or believed that K.B. was inside the Washburn house. According
to K.B., Lemaine had been parked outside the Washburn house earlier, when K.B. had
gone outside to her car, so Lemaine could easily have seen her. K.B. also testified that
Lemaine was in the car with Marcus, when Marcus went up to the Washburn house
door and asked that K.B. come outside.
{¶26} Third, the testimony of K.B. and Officer Ward was sufficient to support
8 OHIO FIRST DISTRICT COURT OF APPEALS
a finding that Lemaine discharged a firearm into the Washburn home. K.B. testified
that, just before she heard a shot ring out, she saw Lemaine roll down the window of
the Ford Fusion, pull out a gun, and point it toward the building. And Officer Ward
testified about and authenticated photographs of an apparent bullet hole in the
Washburn house’s wall.
{¶27} This evidence, if believed, satisfied the State’s burden of production on
nearly every element of Counts 1 and 2; only one further inference was required. To
find guilt on the felonious-assault charge, the trial court needed to find that Lemaine’s
gunshot constituted a knowing attempt to strike K.B., rather than merely to threaten
or scare her. But such an inference would clearly be permissible if the factfinder
accepted the testimony regarding the couple’s past and present custodial disputes,
Lemaine’s repeated appearances outside the house earlier that day, and Marcus’s
ominous request that K.B. come outside.
{¶28} Accordingly, we hold that the evidence was sufficient to support
findings of guilt on the charges of improper discharge into C.W.’s habitation and
felonious assault of K.B. Lemaine’s first assignment of error is overruled.
B. Manifest Weight
{¶29} Unlike a sufficiency challenge, a manifest-weight challenge concerns the
burden of persuasion, rather than production. See Messenger, 2022-Ohio-4562, at
¶ 26; State v. Gibson, 2023-Ohio-1154, ¶ 39 (1st Dist.). We must review the record,
then weigh the evidence and all reasonable inferences to assure ourselves that the
factfinder—whether judge or jury—did not clearly lose its way in finding guilt beyond
a reasonable doubt. State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983); State v.
Thompkins, 1997-Ohio-52, ¶ 25. This necessarily entails consideration of the
witnesses’ credibility, where such assessments can be made from a cold record. State
9 OHIO FIRST DISTRICT COURT OF APPEALS
v. Garrett, 2026-Ohio-49, ¶ 69 (1st Dist.), citing Thompkins at ¶ 25. However, because
we did not observe the witnesses firsthand, we defer to the factfinder’s credibility
judgments in all but those “‘most exceptional circumstances,’ when the factfinder
‘disregarded or overlooked compelling evidence’ that contradicted its findings.”
Garrett at ¶ 69, quoting Gibson at ¶ 39; see State v. Railey, 2012-Ohio-4233, ¶ 14 (1st
Dist.). If, after review, we conclude that the trial court lost its way in resolving conflicts
in the evidence and created a manifest miscarriage of justice, then we must reverse its
judgment and order a new trial. Martin at 175; Thompkins at ¶ 25.
{¶30} The core point of contention at Lemaine’s trial was the shooter’s
identity. Defense counsel conceded in closing arguments that “shots were fired at the
house” and that “[s]omebody fired the shots.” The question was whether Lemaine was
that “somebody.” The trial court found he was. After reviewing the entire record, we
cannot say it lost its way in doing so.
{¶31} As the trial court aptly noted before making its on-the-record findings:
“[T]his is a case that involves a he said-she said circumstance.” K.B. said she saw
Lemaine with a gun in the white Ford Fusion. Lemaine said that he was at the
apartment complex with his kids. No witnesses provided corroboration for either
account.
{¶32} Below and in this court, Lemaine points to gaps in the State’s narrative
and reasons to question K.B.’s testimony.
{¶33} First, Lemaine questions K.B.’s narrative that she saw Lemaine drive by
the Washburn house in his blue truck, then come back and sit outside the house in the
same vehicle, only to return 30 minutes later as a passenger in Marcus’s white Ford
Fusion. Lemaine points out that K.B. testified that Lemaine had fled the Washburn
house with Marcus in Marcus’s car. Yet, when Marcus was pulled over less than 20 to
10 OHIO FIRST DISTRICT COURT OF APPEALS
30 minutes later, Lemaine was not in the vehicle. Rather, a different, unidentified
person was in the passenger seat.
{¶34} K.B.’s narrative is certainly not impossible or even implausible. The
Washburn house, Lemaine’s apartment complex, and the spot where Marcus was
pulled over were all within one mile of each other. The 20- and 30-minute gaps
between vehicle sightings would have provided time to switch cars or passengers in
each instance.
{¶35} Second, Lemaine notes that K.B. never said she saw Lemaine fire the
shot from the car; she merely heard a shot from someone’s gun. Thus, Lemaine argues,
it is at least possible the shot came from the weapon Marcus was fumbling with.
However, if the trial court credited the rest of K.B.’s testimony, it could easily infer that
the gunshot came from the man who K.B. said had lowered his window just seconds
prior to point his gun at the house (i.e., Lemaine)—and not from the fumbling man
walking away from the building (i.e., Marcus).
{¶36} Third, Lemaine argues that there was no evidence that he ever owned
or possessed a firearm. But this is somewhat misleading. It is true that K.B. testified
multiple times that she never saw Lemaine with a gun. But K.B. also testified that
Lemaine had told her he owned a gun and that he used it as part of his job.
{¶37} Fourth, Lemaine contends that what is not in evidence should have
created reasonable doubt. He notes that, although K.B. named several individuals who
were present in the Washburn house during the shooting—at least one of whom (R.W.)
allegedly went out to interact with Lemaine—the State’s only eyewitness was K.B., with
whom Lemaine was in a custody battle. Lemaine further notes that the officers never
interviewed his daughters about his whereabouts during the shooting or investigated
the mystery passenger in Marcus’s car. And he points out that, despite K.B.’s testimony
11 OHIO FIRST DISTRICT COURT OF APPEALS
that both Marcus and Lemaine had guns at the Washburn house, the officers never
found a weapon—even after accosting Marcus and Lemaine in their respective vehicles
within an hour of the shooting. These glaring omissions, Lemaine contends, warrant
reversal.
{¶38} But even after considering all these omissions, as well as Lemaine’s
testimony regarding K.B.’s alleged motive and prior accusations against him, we
cannot conclude that Lemaine’s convictions were against the manifest weight of the
evidence. K.B. said she heard a shot ring out right after seeing Lemaine roll down his
window and point a gun at the Washburn house. The trial court “had the opportunity
to learn [K.B.’s] potential bias and motive to lie, and it sat in the best position to assess
[her] credibility.” See Gibson, 2023-Ohio-1154, at ¶ 40 (1st Dist.). After doing so, it
found her credible.
{¶39} Nor has Lemaine pointed to the sort of truly “compelling evidence”
necessary for us to disregard such a credibility finding. See id. at ¶ 39. Lemaine’s
evidence provided some reason to doubt K.B., but it did not require the trial court to
disbelieve her. And even in a he-said-she-said case like this one, the law is clear: “an
adjudication is not against the manifest weight of the evidence simply because the trier
of fact believed the prosecution testimony.” (Cleaned up.) Id. at ¶ 43.
{¶40} We therefore hold that the trial court did not lose its way in finding
Lemaine guilty of improperly discharging a firearm into C.W.’s dwelling and of the
felonious assault of K.B. Lemaine’s second assignment of error is overruled.
III. TRIAL RIGHTS
{¶41} Lemaine’s next two assignments of error concern his right to due
process and a fair trial. In his third assignment of error, he contends that he was denied
the effective assistance of counsel. In his fourth, he contends that the prosecutor
12 OHIO FIRST DISTRICT COURT OF APPEALS
engaged in misconduct by relying upon facts not in evidence in his closing argument.
A. Ineffective Assistance of Counsel
{¶42} A criminal defendant has a right to the effective assistance of counsel,
both under the Sixth Amendment to the United States Constitution and under Article
I, Section 10, of the Ohio Constitution. Strickland v. Washington, 466 U.S. 668, 686
(1984); State v. Bradley, 42 Ohio St.3d 136, 141-142 (1989). A conviction will be
reversed based upon trial counsel’s ineffectiveness where (1) “counsel’s performance
was deficient,” and (2) that “deficient performance prejudiced the defense so as to
deprive the defendant of a fair trial.” State v. Conway, 2006-Ohio-2815, ¶ 95, citing
Strickland at 687.
{¶43} Lemaine argues that his trial counsel was ineffective for failing to
introduce (1) alibi evidence, (2) evidence of the dismissed criminal allegations K.B.
had allegedly filed against Lemaine, and (3) evidence of the alleged civil judgments
Lemaine received against K.B. for filing false reports or allegations.
{¶44} In general, it is “incredibly difficult, if not impossible, for a defendant
on direct appeal to challenge the effectiveness of her trial counsel under a failure-to-
introduce-evidence theory.” State v. Collins, 2024-Ohio-5112, ¶ 71 (1st Dist.), citing
State v. Bell, 2023-Ohio-1010, ¶ 9 (1st Dist.). This case is no exception. The record
contains none of the allegedly exculpatory materials Lemaine identifies, so we have no
way of discerning their relevance or weight. See id. at ¶ 74.
{¶45} Lemaine also argues that trial counsel was ineffective for failing to file a
notice of alibi. This theory fails for essentially the same reason as his failure-to-
introduce-evidence claims. To rule for Lemaine, we would need to hold that an
objectively reasonable attorney would necessarily have filed an alibi notice, and that,
had they done so, there would have been a “reasonable probability” of a different
13 OHIO FIRST DISTRICT COURT OF APPEALS
outcome. See Strickland, 466 U.S. at 687-688, 694. Both determinations turn on the
existence and quality of Lemaine’s alleged alibi evidence—evidence the record does
not contain.
{¶46} In a he-said-she-said case like this one, where physical evidence was
lacking and the case turned almost entirely on credibility determinations, evidence of
an alibi or evidence that the State’s main witness told similar false stories in the past
could make a difference. But no such evidence is in the record. Thus, Lemaine’s
Strickland claims are “better suited for proceedings where that evidence can be
introduced, such as a petition for postconviction relief under R.C. 2953.21 or a motion
for a new trial under Crim.R. 33.” See Collins at ¶ 73.
{¶47} Lemaine’s third assignment of error is overruled.
B. Prosecutorial Misconduct
{¶48} In his fourth assignment of error, Lemaine contends that the
prosecuting attorney acted improperly by “rel[ying] upon evidence not admitted at
trial during closing argument.” “When reviewing a claim of prosecutorial misconduct,
our inquiry is twofold: we must first decide whether the prosecutor’s actions were
improper, and if so, we consider whether the conduct prejudicially affected the
defendant’s substantial rights.” State v. Kirkland, 2020-Ohio-4079, ¶ 115. We assess
the prejudice component with respect to “‘the fairness of the trial, not the culpability
of the prosecutor.’” Id., quoting Smith v. Phillips, 455 U.S. 290, 219 (1982).
{¶49} In this case, Lemaine did not object to any portion of the State’s closing
argument or rebuttal. He has thus waived all but plain error. See Crim.R. 52(B); State
v. McAlpin, 2022-Ohio-1567, ¶ 228.
{¶50} It is obviously improper for a prosecutor to urge a finder of fact to rely
upon testimony never adduced at trial—or to rely upon out-of-court statements for
14 OHIO FIRST DISTRICT COURT OF APPEALS
their truth when not admitted for that purpose. See State v. Lott, 51 Ohio St.3d 160,
166 (1990) (finding prosecutorial misconduct where prosecutor, in closing,
“improperly injected hearsay statements” that were not admitted for their truth). But
in his brief, Lemaine neither cited nor quoted any allegedly improper statements from
the prosecuting attorney’s closing argument or rebuttal. Instead, he referred generally
to the prosecuting attorney’s “multiple statements about what other alleged witnesses
saw or said.”
{¶51} As best we can tell, this is a reference to C.W.’s comments on the 9-1-1-
call recording that “some girl’s boyfriend” had shot at her Washburn home. In his
closing argument, the prosecuting attorney told the court, “You have the contents of
that call, where it’s very clear who everyone in that home is pointing the finger at and
they’re pointing it at Mr. Lemaine.”
{¶52} The 9-1-1 call that included C.W.’s statements was admitted into
evidence, seemingly under the excited-utterance exception to the rule against hearsay.
Lemaine has not appealed that evidentiary decision, so we assume its propriety. Thus,
the prosecutor was permitted to rely upon C.W.’s statement for the truth of what it
asserted—i.e., to prove that “some girl’s boyfriend” had shot at C.W.’s home. However,
the prosecutor’s comment that “everyone in the home” pointed the finger at Lemaine
did go beyond the evidence admitted at trial. Only C.W. and K.B. spoke on the call.
Thus, to the extent the prosecutor suggested that anyone else in the Washburn house
had accused Lemaine, his statement was improper.
{¶53} Even so, Lemaine has failed to show that this comment deprived him of
a fair trial. We presume that, when a trial court presides over a trial without a jury, it
considers only relevant, material evidence in reaching its decision. State v. Rouzier,
2021-Ohio-1466, ¶ 19 (1st Dist.), citing State v. White, 15 Ohio St.2d 146, 151 (1968).
15 OHIO FIRST DISTRICT COURT OF APPEALS
Here, the trial court expressly said it relied on K.B.’s statements, which were in
evidence, to reach its conclusions. Thus, Lemaine has not rebutted—let alone plainly
rebutted—the presumption that the trial court relied upon legitimate evidence.
Compare id.
{¶54} Finding no plain error, we overrule Lemaine’s fourth assignment of
error.
IV. SENTENCES
{¶55} In his fifth and final assignment of error, Lemaine contends that his
sentence was not permitted by law. We have jurisdiction to review whether a sentence
is contrary to law pursuant to R.C. 2953.08(A)(4).
{¶56} As discussed above, Lemaine was found guilty of Counts 1 and 2 in the
indictment, along with six firearm specifications. When the trial court sentenced
Lemaine, it merged Count 1 into Count 2, and imposed an indefinite term of between
five years and seven years and six months for Count 2. Lemaine does not challenge the
trial court’s determination to merge Count 1 into Count 2. Thus, we consider only the
firearm specifications.
{¶57} Lemaine argues that he was sentenced for one too many firearm
specifications. Specifically, he argues that “R.C. 2929.14(B)(1)(g) requires consecutive
sentences be imposed for the two most serious specifications only,” and that “a
sentencing Court cannot impose a consecutive sentence for additional firearm
specifications beyond the two most serious” under the Ohio Supreme Court’s decisions
in State v. Bollar, 2022-Ohio-4370, and State v. Beatty, 2024-Ohio-5684.
{¶58} For each of Counts 1 and 2, Lemaine was charged with three separate
firearm specifications: (1) a “possession spec,” R.C. 2941.141, (2) a “facilitation spec,”
R.C. 2941.145, and (3) a “vehicle-discharge spec,” R.C. 2941.146(A).
16 OHIO FIRST DISTRICT COURT OF APPEALS
{¶59} The corresponding sentences for these specifications were prescribed by
R.C. 2929.14(B). Division (B)(1)(a)(iii) prescribed one-year prison terms for the
possession specs; division (B)(1)(a)(ii) prescribed three-year terms for the facilitation
specs; and division (B)(1)(c)(i) prescribed five-year terms for the vehicle-discharge
specs.
{¶60} The trial court then merged the possession specs into the respective
facilitation specs, and merged the vehicle-discharge spec on Count 1 into its
counterpart under Count 2. This left the two facilitation specs and one vehicle-
discharge spec, for a total of 11 years on the gun specifications. The trial court ran all
sentences consecutively, for a total sentence of 16 years to 18 years and 6 months. A
table summarizing the charges and sentences is below.
Description Statutes Sentence Improper Discharge Count 1 R.C. 2923.161(A)(1) merged with Count 2 into a Habitation R.C. 2941.141, Spec 1.1 Possession Spec merged with Spec 1.2 R.C. 2929.14(B)(1)(a)(iii) R.C. 2941.145, Spec 1.2 Facilitation Spec 3 years (consecutive) R.C. 2929.14(B)(1)(a)(ii) R.C. 2941.146, Spec 1.3 Vehicle-Discharge Spec merged with Spec 2.3 R.C. 2929.14(B)(1)(c)(i)
Count 2 Felonious Assault R.C. 2903.11(A)(2) 5 to 7.5 years
R.C. 2941.141, Spec 2.1 Possession Spec merged with Spec 2.2 R.C. 2929.14(B)(1)(a)(iii) R.C. 2941.145, Spec 2.2 Facilitation Spec 3 years (consecutive) R.C. 2929.14(B)(1)(a)(ii) R.C. 2941.146, Spec 2.3 Vehicle-Discharge Spec 5 years (consecutive) R.C. 2929.14(B)(1)(c)(i) Aggregate Sentence: 16 to 18.5 years
{¶61} Lemaine contends that because he should have been sentenced for the
two most serious specifications only, the trial court was required to impose
consecutive sentences for the vehicle-discharge specs to Counts 1 and 2, which totaled
17 OHIO FIRST DISTRICT COURT OF APPEALS
ten years, then merge all remaining specifications.
{¶62} Lemaine’s argument collapses two distinct questions, both of which a
sentencing court must answer. First, the court must determine which charges merge
and which remain for sentencing. Second, it must consider whether any statute has
authorized (or mandated) it to impose consecutive, rather than concurrent, sentences
for the unmerged offenses and specifications. When these questions are considered
individually, it becomes clear that R.C. 2929.14(B)(1)(g)—the provision on which
Lemaine relies—does not apply to vehicle-discharge specs and does not affect a court’s
ability to impose consecutive sentences.
A. Merger
{¶63} We turn first to the possession and facilitation specs. Specs 1.1 and 2.1
required sentences under R.C. 2929.14(B)(1)(a)(iii), and Specs 1.2 and 2.2 required
sentences under division (B)(1)(a)(ii). Because these sentences would be imposed
under division (B)(1)(a), and because the underlying felonies were committed “as part
of the same act or transaction,” R.C. 2929.14(B)(1)(b) would ordinarily permit a
sentence for only one of these four specifications.
{¶64} But R.C. 2929.14(B)(1)(g) creates an exception to (B)(1)(b). If (1) a
defendant is found guilty of two or more felonies, and (2) one of those offenses appears
on (B)(1)(g)’s list of serious felonies, then the trial court must impose sentences for the
two most serious (B)(1)(a) specifications. See R.C. 2929.14(B)(1)(g). And, as the Ohio
Supreme Court made clear in Bollar, specifications subject to (B)(1)(g) survive the
merger of their underlying felonies. See Bollar, 2022-Ohio-4370, at ¶ 19. After a trial
court has imposed sentences for the two most serious specifications, it has discretion
whether to impose sentences for the other (B)(1)(a) specifications. See R.C.
2929.14(B)(1)(g).
18 OHIO FIRST DISTRICT COURT OF APPEALS
{¶65} Lemaine fell within the (B)(1)(g) exception. He was found guilty of two
substantive offenses, and one of them (felonious assault) was on the list in (B)(1)(g).
Thus, the trial court was obligated to impose sentences for “each of the two most
serious [(B)(1)(a)] specifications of which [Lemaine was] convicted.” See R.C.
2929.14(B)(1)(g). Here, that meant that the trial court was obligated to impose
sentences on Specs 1.2 and 2.2, which carried three-year prison terms. The trial court
then exercised its discretion by declining to impose sentences for Specs 1.1 and 2.1,
which carried one-year terms.
{¶66} That left the sentences for the two vehicle-discharge specs (1.3 and 2.3),
which were imposed pursuant to R.C. 2929.14(B)(1)(c). These vehicle-discharge specs
were not subject to the special merger rules in (B)(1)(b) and (g), as those rules apply
only to sentences “impose[d] . . . under division (B)(1)(a).” Thus, the vehicle-discharge
specs were subject to ordinary merger principles, absent a clear statutory provision
authorizing multiple punishments for the same offense, like (B)(1)(g). See Bollar at ¶
20-21. The trial court properly merged the vehicle-discharge specs along with their
underlying felonies, resulting in an additional sentence for only one of the vehicle-
discharge specifications.
{¶67} Accordingly, we hold that the trial court did not err by imposing
sentences on Count 2 and Specs 1.2, 2.2, and 2.3.
B. Consecutive Sentencing
{¶68} Once a sentencing court determines which counts and specifications
will receive sentences, it then must determine whether those sentences should be
served concurrently or consecutively.
{¶69} We begin with the presumption that all sentences—including sentences
for specifications—are to be served concurrently, absent an express statutory
19 OHIO FIRST DISTRICT COURT OF APPEALS
exception. See R.C. 2929.41(A); Beatty, 2024-Ohio-5684, at ¶ 11, 15-17.
{¶70} R.C. 2929.14(C)(1)(a) sets forth one mandatory exception to this
presumption of concurrency. Under that provision, when a defendant receives a
mandatory prison term under R.C. 2929.14(B)(1)(a) or (B)(1)(c), the defendant “shall
serve” that term “consecutively to any other” prison term imposed for a different
(B)(1)(a), (c), or (d) specification; consecutively to any term imposed for the
underlying felony; and consecutively to any term imposed “previously or
subsequently.” R.C. 2929.14(C)(1)(a).
{¶71} Because Lemaine’s sentences on Specs 1.2, 2.2, and 2.3 were imposed
under R.C. 2929.14(B)(1)(a) and (B)(1)(c), Lemaine was required to serve them
consecutively to each other and to his sentence on Count 2. See R.C. 2929.14(C)(1)(a).
The trial court therefore did not act contrary to law by imposing consecutive sentences
on Count 2 and Specs 1.2, 2.2, and 2.3.
{¶72} Lemaine’s fifth assignment of error is overruled.
V. CONCLUSION
{¶73} Having overruled Lemaine’s five assignments of error, we affirm the
trial court’s judgment.
Judgment affirmed.
NESTOR and MOORE, JJ., concur.