[Cite as State v. Woodum , 2013-Ohio-3287.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO : : Appellate Case No. 25217 Plaintiff-Appellee : : Trial Court Ca se No. 2011-CR-2995 v. : : DOMINIQUE B. WOODUM : (Criminal Appeal from : ( Common Pleas Court) Defendant-Appellant : :

. . . . . . . . . . . O P I N I O N Rendered on the 26th day of July, 2013.

. . . . . . . . . . . MATHIAS H. HECK, JR., by APRIL F. CAMPBELL, Atty. Reg. #0089541, Montgomery County Prosecutor’s Office, Appe llate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee LUCAS W. WILDER, Atty. Reg. 30074057, 120 West Second Street, Suite 400, Dayton, Ohio 45402 Attorney for Defendant-Appellant

. . . . . . . . . . . . . HALL, J., {¶ 1} Dominique B. Woodum appeals from hi s conviction and sentence following a guilty plea to three counts of feloni ous assault and one count of discharging a firearm at or into ahabitation. {¶ 2} In his sole assignment of error, Woodum contends the trial court erred in failing to merge the discharging-a-firearm and felonious-a ssault convictions as allie d offenses of similar import. {¶ 3} Woodum pled guilty to the foregoing ch arges and related fi rearm specifications in exchange for dismissal of a drive-by-shootin g specification and the imposition of an agreed five-year prison sentence. Although the record c ontains few facts, a pr e-sentence investigation report indicates that the charge s involved Woodum’s act of drivin g up to a residence and firing shots into it. There were three people inside the home at the time. The victims called the police and reported that their house had been “shot up” with shots “all through the residence.” Woodum allegedly fired the shots in retaliation for a dis pute over his girlfriend. After his plea, the trial court imposed the agreed-upon sentence. It consis ted of four, two-year concurrent prison terms (one for each of the four substantive counts) a nd a consecutive three-year term on merged firearm specifications. {¶ 4} On appeal, Woodum argues that the tria l court should have me rged discharging a firearm at or into a habitation with felonious assault as allied offenses of similar import. 1 Although he did not raise this issue below a nd such merger would not impact his agreed-upon aggregate sentence, failure to merge allied offenses of similar import constitutes plain error even when concurrent se ntences are involved. State v. McGhee , 2d Dist. Montgomery No. 23226, 2010-Ohio-977, ¶ 87. On the record before us, however, we find no plain error.

1 We raised this potential merger issue in a Novemb er 9, 2012 decision and entry setting aside an Anders brief. {¶ 5} Under the now-familiar test set forth in State v. Johnson , 128 Ohio St.3d 153, 3

 2010-Ohio-6314, 942 N.E.2d 1061, discharging a firearm at or into a habitation and felonious assault can be allied offenses of similar import. The “same conduc t” can be used to prove both offenses where, as here, a defendant fires multiple shots into an occupied residence. See , e.g. , State v. Lavender , 1st Dist. Hamilton No. C-120508, 2013-Ohio-2508, ¶8-9. We can envision a scenario where a defendant fires shots into a residence at loca tions where he knows or expects particular people to be, and also fires indiscriminately into the residence in the same burst of gunfire. However, in the absence of specific in formation to separate the conduct of targeting specific persons from the conduct of shooting at the residence itself, the o ffenses also typically are not committed “separately” wh ere a defendant fires the multip le shots in rapid succession. Id. at ¶10. The real question here is whether Woodum committed his offens es with a separate “animus,” which refers to his purpose or immediate motive which may be inferred from the circumstances. Id . at ¶11. {¶ 6} The State argues that Woodum had a purpose to “shoot up” the house that was distinct from his purpose to shoot at the occupants. The State points out that he shot “all through the residence” and argues that he was not in sufficient proximity to an y particular victim to determine that he had a singular motive to shoot a person. For his part, Woodum argues that he acted with a single animus when he fired into the house. He acknowledges, however, that because “the facts are little known” on the r ecord, “it is difficult to deter mine if the facts of this case support merger or not.” (A ppellant’s brief at 6). {¶ 7} In their respective briefs, both parties r ecognize that with f act-specific inquiries courts have reached different conclusions as to whether discharging a firearm at or into a habitation and felonious assa ult merge under R.C. 2941.25 post- Johnson

. See , e.g. , Lavender at 4

 ¶15 (finding no separate animus); State v. Kelly , 5th Dist. Stark No. 2012CA00067, 2012-Ohio-5875, ¶26 (finding a separate animus); State v. Whipple , 2012-Ohio-2938, 972 N.E.2d 1141, ¶37 (1st Dist.) (findi ng a separate animus); State v. Hodges , 1st Dist. Hamilton No. C-110630, 2013-Ohio-1195, ¶17 (finding no separate animus). Generally speaking, evidence that a defendant fired a large number of shots or “shot up” a residence tends to support a finding of a separate animus. Kelly at ¶26; Whipple at ¶40-42. {¶ 8} Here Woodum admits the absence of evid ence as to the speci fic number of shots he fired into the house. The occupants reporte d, however, that he had “shot up” the house and fired “all through the residence.” Based on these f acts, we find no plain error in the trial court’s failure to merge discharging a firearm at or into a habitation and felonious assault. The limited record reasonably supports a finding that W oodum acted with a separate animus when he committed the discharging-a-firearm offense and the felonious assaults. Moreover, “[i]n the plain-error context, we will not presume that offenses are subject to merger where the record contains no facts to support such a conclusion.” State v. Cox , 2d Dist. Montgomery No. 25143, 2013-Ohio-301, ¶7, citing State v. Adams , 2d Dist. Montgomery No. 22493, 2009-Ohio-2056, ¶15-16. “‘[T]o the extent that a ppellate review requires application of the plain error doctrine, it is an oxymoron to find plain error [where] there are insufficient facts in the record necessary to determine whether error occurred at all. If we cannot determine whether error exists because of the absence of facts in the record on appeal, if follows that there is no plain error that is obvious.’” Id. at ¶9, quoting State v. Barrett , 2012-Ohio-3948, 974 N.E.2d 185, ¶10 (8th Dist.); see Adams at ¶16 (“Simply put, there is nothing in the record demonstrating that any of the counts should be treated as allied offenses of similar import, nece ssitating merger. No facts were 5

 placed on the record suggesting the same animus fo r multiple counts, nor are there facts in the record suggesting anything less than distinct counts.”). {¶ 9} On occasion, we have remanded a case for a trial court to make a finding with regard to allied offenses where the record contai ns “insufficient facts” to make a determination.
See , e.g. , State v. Adams , 197 Ohio App.3d 491, 2011-Ohio-6305, 968 N.E.2d 16 (2d Dist.). We decline Woodum’s request to do so here, howev er, where the record does contain sufficient facts to demonstrate the absence of plain error, which is the narrow issue before us. Because Woodum has not met his burden of demonstrating plain error, we cannot say the tr ial court erred in failing to merge discharging a firearm at or into a habitation with felonious assault. 2 Accordingly, the judgment of the Montgome ry County Common Pleas Court is affirmed.

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

FAIN, P.J., and WELBAUM, J., concur.
Copies mailed to: Mathias H. Heck April F. Campbell Lucas W. Wilder Hon. Gregory F. Singer

2 In its appellate brief, the State also argues that Woodum’s thr ee felonious assault convictions were not subject to merger with one another because three victims exist. We need not address this issu e, however, as Woodum has not raised it on appeal. He argues only that the discharging-a-firearm conviction should have merged with the felonious assaults.