State v. Cheatham

[Cite as State v. Cheatham, 2026-Ohio-3493.] IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY STATE OF OHIO, : CASE NOS. CA2025-09-067 Appellee, : CA2025-09-068 vs. : OPINION AND RASHON CHEATHAM, : JUDGMENT ENTRY 9/8/2026 Appellant. : : CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT Case Nos. 2023 CRB 2946; 2023 TRC 08861 Mark J. Tekulve, Clermont County Prosecuting Attorney, and Zachary K. Garrison, Assistant Prosecuting Attorney, for appellee. Denise S. Barone, for appellant. ____________ OPINION M. POWELL, J. {¶ 1} Appellant, Rashon Cheatham, appeals his conviction and sentence in the Clermont County Municipal Court for endangering children and operating a vehicle while under the influence of alcohol or drugs ("OVI").  Clermont CA2025-09-067 CA2025-09-068 I. FACTUAL AND PROCEDURAL BACKGROUND A. The Underlying Events {¶ 2} On July 29, 2023, Ohio State Troopers Austin Perry and Jason Byron initiated a traffic stop after observing a vehicle make repeated marked lanes violations on southbound I-275 in Clermont County, Ohio. Upon approaching the vehicle, the state troopers observed appellant in the driver's seat, an adult female in the front passenger seat, and two young children buckled in car seats in the backseat of the car. After appellant rolled down his window, both state troopers observed that he had bloodshot, watery eyes. Moreover, a strong odor of an alcoholic beverage was emanating from the vehicle and appellant's breath. Appellant had difficulty retrieving his driver's license from his wallet. A preliminary nystagmus check revealed jerking in both of his eyes. The troopers had appellant exit the vehicle to perform standardized field sobriety tests. {¶ 3} When Trooper Perry attempted to administer the horizontal gaze nystagmus test, appellant refused and claimed he was having a panic attack. Appellant then vomited on the ground. Trooper Byron noticed that the vomit smelled of alcohol. At appellant's request, the state troopers called an ambulance. When the ambulance arrived, appellant had to be assisted into the vehicle by EMS personnel because he was struggling with his balance and walking slowly. In performing a safety search of appellant, Trooper Perry noticed an odor of an alcoholic beverage on appellant's breath. EMS personnel likewise noticed an odor of an alcoholic beverage on appellant's breath. Appellant was transported to Bethesda North Hospital. {¶ 4} At the hospital, appellant was seen by a nurse ("Nurse"). After Nurse had triaged appellant, the troopers came into the room to speak with him and read him the BMV 2255 form. Appellant appeared to be asleep and was otherwise nonresponsive to -2-  Clermont CA2025-09-067 CA2025-09-068 the troopers. Subsequently, appellant refused to submit to a chemical test to determine his BAC. When Nurse returned to the room after treating other patients, she found that appellant was gone. The registration desk advised Nurse that appellant had left the hospital. During his time at the hospital, appellant was never seen by a doctor, was not given any medical testing, and was never treated. B. Procedural History {¶ 5} On July 29, 2023, appellant was charged in Case No. 2023TRC08861 with OVI in violation of R.C. 4511.19(A)(1)(a) and OVI (refusal of a chemical test with a prior OVI conviction) in violation of R.C. 4511.19(A)(2). On August 31, 2023, appellant was charged in Case No. 2023CRB2946 with two counts of endangering children in violation of R.C. 2919.22(C)(1), arising out of the traffic stop. The cases were consolidated at the State's request. {¶ 6} Appellant moved to suppress all evidence stemming from the traffic stop and subsequent arrest. The trial court denied the motion to suppress on September 25, 2023. A jury trial was originally scheduled for November 20, 2023. However, appellant failed to appear for a formal pretrial, and the trial court issued a bench warrant for his arrest and vacated the trial date. Appellant was not apprehended and brought before the court until late March 2025. {¶ 7} The matter was scheduled for a jury trial on June 5, 2025, but was continued to July 31, 2025, when appellant failed to comply with a discovery order. The case proceeded to trial on July 31, 2025. State Troopers Perry and Byron and Nurse testified on behalf of the State. At the conclusion of the State's case, appellant moved for acquittal under Crim.R. 29. The trial court denied the motion. Appellant then testified on his own behalf. The jury returned a verdict of guilty on all counts. A sentencing hearing was held -3-  Clermont CA2025-09-067 CA2025-09-068 on August 12, 2025. At sentencing, the trial court merged the OVI offenses as allied offenses of similar import, and the State elected to proceed with sentencing on the OVI refusal count. The court sentenced appellant to 90 days in jail on each count of endangering children, and 175 days in jail on the OVI refusal count. The jail sentences were ordered to be served consecutively for an aggregate jail sentence of 355 days. {¶ 8} Appellant now appeals, raising four assignments of error. First, he argues that his conviction for OVI and endangering children was not supported by sufficient evidence. Second, he argues that the trial court erred in denying his motion to suppress. Third, he argues he received ineffective assistance of counsel. Fourth, he challenges his sentence as excessive. II. ANALYSIS A. An Appellant's Burden in Appellate Review {¶ 9} "An appellant bears the burden of affirmatively demonstrating error on appeal and substantiating his arguments in support thereof." State v. Crawford, 2024- Ohio-691, ¶ 14 (12th Dist.). App.R. 16(A)(7) requires an appellant's brief to include "[a]n argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies." When a party fails to satisfy these requirements, App.R. 12(A)(2) authorizes an appellate court to disregard the assignment of error. State v. Hall, 2022-Ohio-1147, ¶ 212 (12th Dist.) (declining to review arguments presented "without any supporting argument" due to lack of briefing). This court has exercised that authority when an appellant offers nothing more than conclusory statements unsupported by meaningful legal analysis. See, e.g., State v. Watson, 126 Ohio App.3d 316, 321-322 (12th Dist. 1998); Crawford at ¶ 15-16 (overruling -4-  Clermont CA2025-09-067 CA2025-09-068 assignment of error where appellant "fails to cite to the record and does not offer any analysis of the assigned error"). {¶ 10} Appellate courts are neutral adjudicators, not advocates. State v. Bullock, 2026-Ohio-693, ¶ 15 (12th Dist.). It is not this court's duty "to 'root out' or develop an argument that can support an assigned error, even if one exists." Crawford at ¶ 15, quoting Lebanon v. Ballinger, 2015-Ohio-3522, ¶ 27 (12th Dist.). Nor is it our obligation to search the record for evidence supporting an appellant's argument as to alleged error. Id. As we have observed, an appellate court "is not a performing bear, required to dance to each and every tune played on an appeal." (Cleaned up.) Watson at 321. B. Sufficiency of the Evidence {¶ 11} Assignment of Error No. 1: THE TRIAL COURT ERRED TO THE PREJUDICE OF RASHON CHEATHAM WHEN IT FAILED TO DISMISS RASHON CHEATHAM'S CASE DUE TO AN INSUFFICIENCY OF EVIDENCE. {¶ 12} Appellant argues that his conviction for OVI and endangering children was not supported by sufficient evidence. {¶ 13} Crim.R. 29(A) provides that "[t]he court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal . . . if the evidence is insufficient to sustain a conviction of such offense or offenses." An appellate court reviews the denial of a Crim.R. 29(A) motion under the same standard as that used to review a sufficiency-of-the-evidence claim. State v. Workman, 2017-Ohio-8638, ¶ 19 (12th Dist.). {¶ 14} "When reviewing the sufficiency of the evidence underlying a conviction, an appellate court examines the evidence to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." -5-  Clermont CA2025-09-067 CA2025-09-068 State v. Madden, 2024-Ohio-2851, ¶ 31 (12th Dist.). "The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. In other words, the test for sufficiency requires the determination of whether the State offered any evidence at trial going to each essential element of the offense. State v. Wilson, 2007- Ohio-2298, ¶ 34 (12th Dist.); State v. Thigpen, 2016-Ohio-1374, ¶ 5 (8th Dist.). 1. Appellant's OVI Conviction {¶ 15} Appellant argues there was insufficient evidence to support his OVI conviction because there was no blood or urine test demonstrating he was intoxicated, and his testimony on cross-examination established that the odor of an alcoholic beverage on his person was actually the odor of his Tommy Bahama body spray. {¶ 16} Appellant was convicted of OVI in violation of R.C. 4511.19(A)(2), which prohibits a person who has been convicted of OVI within the last 20 years of operating a vehicle while under the influence and refusing to submit to a test to determine his or her blood alcohol content at the time of operating the vehicle. R.C. 4511.19(A)(2) does not require the State to prove that the defendant's blood alcohol content was above any prohibited blood alcohol level. State v. Burson, 2025-Ohio-499, ¶ 2 (12th Dist.). As the State was not required to prove that appellant had a prohibited blood alcohol concentration, the submission of a blood or urine test was not necessary. Furthermore, as appellant only argues that his OVI conviction was not supported by sufficient evidence as opposed to being against the manifest weight of the evidence, his explanation regarding the cause of the odor of an alcoholic beverage on his person need not be considered. -6-  Clermont CA2025-09-067 CA2025-09-068 {¶ 17} At trial, through the state troopers' testimony, the State presented evidence (1) that appellant committed several marked lanes violations while operating his car in Ohio, (2) that as the state troopers approached the vehicle, appellant had bloodshot, watery eyes and emitted a strong odor of an alcoholic beverage, and a preliminary nystagmus check revealed jerking in both of his eyes, and (3) that after appellant stepped out of the car to perform field sobriety tests, he vomited on the ground and a trooper could smell an odor of alcohol coming from the vomit. Throughout the traffic stop, appellant emitted a strong odor of an alcoholic beverage. Based on their training and experience, both troopers testified that all these facts were indicators of impairment and that they believed appellant was under the influence of alcohol and was too impaired to operate his vehicle. Both state troopers also testified that appellant refused to provide a urine sample at the hospital. Evidence of a prior OVI conviction within the last 20 years, as required by R.C. 4511.19(A)(2), was submitted via a joint stipulation of the parties filed on June 3, 2025. {¶ 18} In light of the foregoing, we find that appellant's OVI conviction under R.C. 4511.9(A)(2) was supported by sufficient evidence. 2. Appellant's Conviction for Endangering Children {¶ 19} Appellant argues that his conviction for endangering children was not supported by sufficient evidence because the two children remained securely fastened in their car seats during the traffic stop and were never harmed. {¶ 20} Appellant's argument is based upon the offense of endangering children under R.C. 2919.22(A), which prohibits conduct that would "create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support." However, appellant was convicted of endangering children in violation of R.C. -7-  Clermont CA2025-09-067 CA2025-09-068 2919.22(C)(1), which prohibits any person from operating a vehicle in Ohio in violation of R.C. 4511.19(A) when one or more children under 18 years of age are in the vehicle. Commission of an OVI offense in violation of R.C. 4511.19(A) is an element of the offense of endangering children under R.C. 2919.22(C)(1). State v. Murphy, 2006-Ohio-4341, ¶ 17 (10th Dist.). Here, appellant was charged with and convicted of OVI in violation of R.C. 4511.19(A). As the state troopers' testimony established that appellant was operating his vehicle in Ohio while under the influence in violation of R.C. 4511.19(A) and with young children in the car, his endangering children conviction under R.C. 2919.22(C)(1) was supported by sufficient evidence. {¶ 21} Appellant's first assignment of error is overruled. C. Denial of the Motion to Suppress {¶ 22} Assignment of Error No. 2: THE TRIAL COURT ERRED TO THE PREJUDICE OF RASHON CHEATHAM WHEN IT FAILED TO GRANT THE MOTION TO SUPPRESS. {¶ 23} Appellant challenges the denial of his motion to suppress, raising two issues for review. {¶ 24} In his first issue for review, appellant's argument merely consists of the conclusory sentence that "[t]here were sufficient facts elicited to establish that the stop was in error." Appellant fails to cite to the record and does not offer any analysis in support of this issue for review. As stated above, it is not an appellate court's duty to "root out" or develop an argument that can support an assigned error, even if one exists. Crawford, 2024-Ohio-691, at ¶ 15 (12th Dist.). Nor is it the duty of an appellate court to search the record for evidence to support an appellant's argument as to alleged error. Id. Appellant's argument fails to satisfy the requirements of App.R. 16(A)(7) and we decline to address -8-  Clermont CA2025-09-067 CA2025-09-068 it. App.R. 12(A)(2). {¶ 25} In his second issue for review, appellant argues that his trial counsel was ineffective in failing to immediately appeal the denial of his motion to suppress. We find no merit to this issue for review. An order denying a motion to suppress is not a final appealable order. State v. Crawley, 96 Ohio App.3d 149, 155 (12th Dist. 1994); State v. Jackson, 2024-Ohio-4667, ¶ 7 (5th Dist.); State v. Johnson, 2014-Ohio-1781, ¶ 12 (11th Dist.). {¶ 26} Appellant's second assignment of error is overruled. D. Ineffective Assistance of Trial Counsel {¶ 27} Assignment of Error No. 3: THE TRIAL COURT ERRED TO THE PREJUDICE OF RASHON CHEATHAM WHEN IT FAILED TO APPOINT A NEW PUBLIC DEFENDER TO REPRESENT HIM WHEN DOUGLAS A. BALL FAILED IN HIS DUTY TO HIS CLIENT. {¶ 28} Appellant argues that his trial counsel was ineffective because he failed to lay the foundation for admission of his July 29, 2023 hospital records which tended to show he suffered a panic attack on that day, and comply with discovery orders regarding other medical records resulting in their exclusion from evidence. Appellant claims that these medical records were the "most important piece of evidence" because they would have established that his conduct during the traffic stop resulted from a panic attack as opposed to his being intoxicated. {¶ 29} To prevail on an ineffective-assistance claim, a defendant must satisfy both prongs of the test established by the United States Supreme Court: counsel's performance must have been deficient, falling below an objective standard of reasonableness, and the deficient performance must have prejudiced the defense such that there is a reasonable probability that the result of the proceeding would have been -9-  Clermont CA2025-09-067 CA2025-09-068 different. Strickland v. Washington, 466 U.S. 668, 687-688, 694 (1984); State v. Madrigal, 2000-Ohio-448, ¶ 49. With respect to prejudice, it is not enough "to show that the errors had some conceivable effect on the outcome of the proceeding." Strickland at 693. Counsel's errors must be "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687. The failure to make an adequate showing on either prong is fatal to an ineffective assistance of counsel claim. Madrigal at ¶ 49. {¶ 30} The record shows that throughout the proceedings appellant did not timely provide medical records to his trial counsel and generally did so in a piecemeal fashion. On the morning of the jury trial, June 5, 2025, trial counsel informed the trial court that although he had discussed medical records with appellant around April 2025 and that appellant indicated he would provide the records to trial counsel, appellant did not do so until the day before trial. Trial counsel provided a copy of the records to the State on the morning of the trial. As pertinent here, one of the documents was an after-visit summary from appellant's July 29, 2023 emergency room visit following his traffic stop. The document states, "Today's visit - Reason for visit: panic attack, Diagnosis: panic attack." The trial court found that the late disclosure of the records violated Crim.R. 16(L) and was done willfully and in bad faith by appellant, but nevertheless granted trial counsel's request for a continuance as the least severe sanction. The trial court advised the parties that any Crim.R. 16(K) expert reports were to be provided on or before July 10, 2025. {¶ 31} A July 8, 2025 formal pretrial was continued to July 15, 2025, when the trial court learned that medical records had not been fully exchanged between the parties. On July 15, 2025, the parties informed the trial court that trial counsel had provided the State three sets of medical records, including medical records from a hospital visit on April 9, 2023, and medical records from a hospital visit on August 9, 2023. However, no Crim.R. - 10 -  Clermont CA2025-09-067 CA2025-09-068 16(K) expert reports were provided by either party. {¶ 32} The State filed a motion in limine seeking to exclude the April 9, 2023 and August 9, 2023 medical records and any testimony related to these records. At a hearing on the motion in limine on July 22, 2025, the parties informed the trial court that additional medical records were supplemented or contemplated by trial counsel, to wit, medical records regarding treatment appellant had received in 2018 and 2022. The 2022 records were described as an after-visit summary for medical treatment received in June 2022 where appellant received a diagnosis of anxiety. Upon questioning, trial counsel indicated that less than a week prior, appellant had informed him of additional possible medical records from 2018, and that in the process of looking for the 2018 records, trial counsel had encountered the 2022 records. The 2022 records were provided to the State the day before the hearing. The record suggests that trial counsel did not have the 2018 medical records. {¶ 33} During the hearing, trial counsel indicated he no longer sought to present the April 9, 2023 and August 9, 2023 medical records during trial. Arguments then turned to the records relating to appellant's emergency room visit on July 29, 2023, to wit, the complete medical record from his emergency room visit to Bethesda North on July 29, 2023, and the July 29, 2023 after-visit summary. These records differ in that the hospital records do not list a diagnosis for appellant and do not list any physician that made a diagnosis on July 29, 2023. By contrast, the after-visit summary lists a diagnosis of panic attack but does not identify who may have made such diagnosis. {¶ 34} On July 24, 2025, the trial court granted the State's motion in limine. The trial court ordered the exclusion of the 2018 and 2022 medical record and any testimony related to these records during the course of the upcoming trial. Once again, the trial court - 11 -  Clermont CA2025-09-067 CA2025-09-068 found that the late disclosure of these records was done willfully and in bad faith by appellant and violated Crim.R. 16(L). The court observed that "Defendant's acts of not providing his counsel with the documents or information he needed to disclose medical records through the discovery process is a conscious choice on Defendant's part," and that this was "the exact type of gamesmanship that the discovery rules intend to prevent." {¶ 35} Regarding the medical records from the July 29, 2023 emergency room visit, the trial court prohibited expert and lay testimony regarding any diagnosis appellant may or may not have had on July 29, 2023, because no Crim.R. 16(K) expert report had been disclosed. The trial court ordered that the July 29, 2023 after-visit summary, later proffered as Defense Exhibit B, be redacted to exclude the portion indicating a "panic attack" diagnosis. The trial court, however, allowed trial counsel the opportunity to voir dire any potential medical professional who may have information about the exhibit to resolve issues of the document's authentication, potential hearsay, and relevance before a final decision was made about its admissibility. The trial court did not exclude the complete medical record from appellant's emergency room visit to Bethesda North on July 29, 2023, and those records were later admitted at trial as Defense Exhibit A. {¶ 36} At trial, the trial court allowed trial counsel and the State to voir dire Nurse outside the presence of the jury to determine the authenticity and admissibility of Defense Exhibit B. During voir dire, Nurse identified the document as an after-visit summary that was automatically generated and likely printed off by appellant. Nurse testified that appellant was not seen by a doctor that morning and therefore there was no formal diagnosis. She explained that the portion labeled diagnosis was likely a reflection of appellant's chief complaint upon admission at the hospital. The trial court found that the July 29, 2023 after-visit summary had not been authenticated and it did not allow its - 12 -  Clermont CA2025-09-067 CA2025-09-068 admission into evidence. {¶ 37} In arguing that his trial counsel was ineffective, appellant both refers to unidentified "medical records" and to Exhibit B, the July 29, 2023 after-visit summary. Appellant ostensibly argues that trial counsel's performance was deficient as evidenced by his late disclosure of medical records in violation of Crim.R. 16(L). We note, however, that the language used by the trial court both during the hearings above and in its July 24, 2025 decision specifically differentiates appellant from trial counsel and clearly shows that the Crim.R. 16(L) violations were the direct result of appellant's "act of waiting until the last possible moment to disclose the existence of additional medical records" and his "tendency to engage in gamesmanship and intentionally delay the disclosure of what he claims to be pertinent medical records," rather than a dilatory performance by trial counsel. Because appellant only identifies Exhibit B under this assignment of error, we will limit our analysis to this document. The burden of affirmatively demonstrating error on appeal and substantiating one's arguments in support falls upon the appellant. State v. Fields, 2009-Ohio-6921, ¶ 7 (12th Dist.). Once again, it is not this court's duty to "root out" or develop an argument that can support an assigned error, even if one exists. Crawford, 2024-Ohio-691, at ¶ 15 (12th Dist.). Nor is it our obligation to search the record for evidence supporting an appellant's argument as to alleged error. Id. {¶ 38} We find no ineffective assistance of trial counsel regarding the July 9, 2023 after-visit summary. Generally, the decision not to call an expert witness does not constitute ineffective assistance of counsel because that decision is solely a matter of trial strategy. State v. Patton, 2021-Ohio-295, ¶ 30 (1st Dist.). Here, the record is clear that appellant was never treated by a doctor during his July 29, 2023 emergency room visit, Nurse testified she was not qualified to make a diagnosis of panic attack, and therefore, - 13 -  Clermont CA2025-09-067 CA2025-09-068 no expert could have opined as to appellant's diagnosis on July 29, 2023. {¶ 39} Additionally, the exclusion of the July 29, 2023 after-visit summary did not impact the ultimate outcome of the trial. With respect to prejudice, it is not enough "to show that the errors had some conceivable effect on the outcome of the proceeding." Strickland, 466 U.S. at 693. Whether appellant had a panic attack during the traffic stop, the record shows he was driving as though he were intoxicated, he displayed physical indicia of intoxication before he claimed he had a panic attack, and his vomit smelled of alcohol. In fact, appellant emitted a strong odor of an alcoholic beverage throughout the traffic stop and inside the ambulance. Moreover, the after-visit summary is inconsistent with the complete medical record from appellant's emergency room visit to Bethesda North on July 29, 2023, which was admitted into evidence as Defense Exhibit A, and with Nurse's testimony that appellant left the hospital before he was seen by a doctor or received treatment. As Nurse's testimony and Exhibit A support the fact that no doctor treated appellant during his July 29, 2023 emergency room visit, there could be no diagnosis of a panic attack by a Bethesda North physician on that date. Appellant was therefore not prejudiced by trial counsel's performance. {¶ 40} Appellant's third assignment of error is overruled. E. Sentencing Challenge {¶ 41} Assignment of Error No. 4: THE TRIAL COURT ERRED TO THE PREJUDICE OF RASHON CHEATHAM WHEN IT SENTENCED HIM TO SERVE THREE-HUNDRED-ONE DAYS IN THE CLERMONT COUNTY JAIL. {¶ 42} Appellant challenges his aggregate jail sentence, raising three issues for review. {¶ 43} In his first issue for review, appellant's argument consists solely of the - 14 -  Clermont CA2025-09-067 CA2025-09-068 conclusory sentence that "[i]t was improper for [the trial judge] to order such a lengthy sentence and for her to make the sentences run consecutively." Appellant's argument fails to satisfy the requirements of App.R. 16(A)(7) and we decline to address it. App.R. 12(A)(2). Crawford, 2024-Ohio-691, at ¶ 15 (12th Dist.). {¶ 44} In his second and third issues for review, appellant argues that the trial court committed plain error when it failed to merge the two endangering children counts and the two OVI counts as allied offenses of similar import. {¶ 45} As stated above, the trial court merged the R.C. 4511.19(A)(1)(a) OVI count into the R.C. 4511.19(A)(2) OVI refusal count, and appellant was only sentenced on the latter. Appellant did not request merger at sentencing, or otherwise object to the court's decision to impose sentence on each count of endangering children. Accordingly, appellant must demonstrate plain error. State v. Rogers, 2015-Ohio-2459, ¶ 3; State v. Barron, 2022-Ohio-102, ¶ 42 (12th Dist.). {¶ 46} "[A] forfeited error is not reversible error unless it affected the outcome of the proceeding and reversal is necessary to correct a manifest miscarriage of justice." Rogers at ¶ 3. Accordingly, appellant "has the burden to demonstrate a reasonable probability that the convictions are for allied offenses of similar import committed with the same conduct and without a separate animus; absent that showing, [he] cannot demonstrate that the trial court's failure to inquire whether the convictions merge for purposes of sentencing was plain error." Id. Under the allied offense analysis utilized by the Ohio Supreme Court and our court, offenses cannot merge and a defendant may be convicted and sentenced for multiple offenses if: "(1) the offenses are dissimilar in import or significance—in other words, each offense caused separate, identifiable harm, (2) the offenses were committed separately, or (3) the offenses were committed with separate - 15 -  Clermont CA2025-09-067 CA2025-09-068 animus or motivation." State v. Ruff, 2015-Ohio-995, ¶ 25; State v. Morris, 2020-Ohio- 4103, ¶ 14 (12th Dist.). "An affirmative answer to any of the above will permit separate convictions." Ruff at ¶ 31. {¶ 47} The trial court did not err when it did not merge the endangering children counts because "allied offenses are not offenses of similar import if the offender's conduct constitutes offenses against different victims." Rogers, 2015-Ohio-2459 at ¶ 4. Here, it is undisputed that each endangering children count involved a separate victim. Additionally, the trial court did not err when it did not merge the endangering children counts and the OVI refusal count because the harm that results from these offenses is separate and identifiable. Id. The OVI offense placed the public at large and any other pedestrian or vehicle with which appellant came into contact at a risk of harm whereas the harm identified in the endangering children counts is specific to the two individual children in the vehicle. Appellant's claim that the trial court committed plain error therefore fails. {¶ 48} Appellant's fourth assignment of error is overruled. III. CONCLUSION {¶ 49} We have overruled each of the assignments of error presented. The municipal court's judgment is affirmed. PIPER, P.J., and SIEBERT, J., concur. - 16 -  Clermont CA2025-09-067 CA2025-09-068 JUDGMENT ENTRY The assignments of error properly before this court having been ruled upon, it is the order of this court that the judgment or final order appealed from be, and the same hereby is, affirmed. It is further ordered that a mandate be sent to the Clermont County Municipal Court for execution upon this judgment and that a certified copy of this Opinion and Judgment Entry shall constitute the mandate pursuant to App.R. 27. Costs to be taxed in compliance with App.R. 24. /s/ Robin N. Piper, Presiding Judge /s/ Mike Powell, Judge /s/ Melena S. Siebert, Judge - 17 -