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Date: 10-09-2019
Case Style:
STATE OF OHIO v. PAUL F. MILLER
Case Number: 8-19-02
Judge: William R. Zimmerman
Court: COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
Plaintiff's Attorney: Alice Robinson-Bond
Defendant's Attorney:
Description:
Call 888-354-4529 if you need a Criminal Defense Attorney in Ohio.
This case stems from allegations that Miller sexually abused his
granddaughter, C.C., from 2013 through 2016, when C.C. was less than 10 years of
age, and A.W., an adult friend of Miller’s daughter, when A.W. was 20 or 21 years
old. (See Doc. No. 62). On February 13, 2018, the Logan County Grand Jury
indicted Miller as follows: Counts One, Two, Three, Four, and Five of gross sexual
imposition in violation of R.C. 2907.05(A)(4), (C)(2), third-degree felonies; Count
Six of gross sexual imposition in violation of R.C. 2907.05(A)(1), (C)(1), a fourth
degree felony; and Count Seven of gross sexual imposition in violation of
2907.05(A)(5), (C)(1), a fourth-degree felony. (Doc. No. 1). Miller appeared for
arraignment and entered pleas of not guilty to all counts of the indictment on
February 16, 2018. (Doc. No. 11).
{¶3} On June 18, 2018, the State filed a motion to dismiss the indictment
because “additional charges appear[ed] to be in order,” which the trial court granted
on June 20, 2018. (Doc. Nos. 46, 47). On July 10, 2018, Miller was indicted under
a superseding indictment on: Counts One, Two, Four, Six, and Eight of gross sexual
imposition in violation of R.C. 2907.05(A)(4), (C)(2), third-degree felonies; Counts
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Three, Five, Seven, and Nine of rape in violation of R.C. 2907.02(A)(1)(b), (B),
first-degree felonies; Count Ten of gross sexual imposition in violation of R.C.
2907.05(A)(1), (C)(1), a fourth-degree felony; and Count Eleven of rape in violation
of R.C. 2907.02(A)(1)(c), (B), a first-degree felony. (Doc. No. 49). Counts Three,
Five, Seven, and Nine included the specification that “the victim was less than ten
years of age.” (Id.). Miller appeared for arraignment on July 13, 2018 and entered
pleas of not guilty to the new indictment. (Doc. No. 57).
{¶4} The case proceeded to a jury trial on November 13 and 14, 2018. (Nov.
13, 2018 Tr., Vol. I, at 1); (November 14, 2018 Tr., Vol. III, at 295). On November
14, 2018, the jury found Miller guilty of all of the counts and specifications of the
superseding indictment. (Nov. 14, 2018 Tr., Vol. III, at 444-451); (Doc. Nos. 95,
96, 97, 98, 99, 100, 101, 102, 103, 104, 105). The trial court filed its judgment entry
of conviction on November 27, 2018. (Doc. No. 109).
{¶5} The trial court held a sentencing and a sex-offender-registration hearing
on December 13, 2018 and sentenced Miller to: life in prison with the possibility
of parole after serving 15 years as to Counts Three, Five, and Seven, respectively;
8 years in prison as to Counts Nine and Eleven, respectively; and 18 months in
prison as to Count One. (Doc. No. 111); (Dec. 13, 2018 Tr. at 4, 20-21). For
purposes of sentencing, the trial court merged Counts Two and Three; Counts Four
and Five; Counts Six and Seven; Counts Eight and Nine; and Counts Ten and
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Eleven. (Id.). The trial court ordered Miller to serve consecutively the prison terms
imposed under Counts Three, Five, and Seven. (Id.) Further, the prison terms
imposed as to Counts One, Nine, and Eleven were ordered to be served concurrently
to the consecutive terms imposed as to Counts Three, Five, and Seven for an
aggregate sentence of life in prison with the possibility of parole after serving 45
years. (Id.). The trial court also classified Miller as a Tier III sex offender. (Doc.
Nos. 111, 112). The trial court filed its judgment entries of sentence and sex
offender classification on December 19, 2018. (Id.); (Id.).
{¶6} Miller filed a notice of appeal on January 2, 2019 and raises four
assignments of error for our review. (Doc. No. 19). For ease of our discussion, we
will address Miller’s first and second assignments of error together, followed by his
third and fourth assignments of error.
Assignment of Error No. I
Defendant-Appellant’s conviction for six counts of gross sexual imposition and five counts of rape was not supported by sufficient, credible evidence.
Assignment of Error No. II
Defendant-Appellant’s conviction for six counts of gross sexual imposition and five counts of rape was against the manifest weight of the evidence
{¶7} In his first and second assignments of error, Miller argues that his
convictions are based on insufficient evidence and are against the manifest weight
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of the evidence.1 In particular, in his first assignment of error, Miller contends that
his gross-sexual-imposition and rape convictions as to Counts Ten and Eleven
(involving the victim, A.W.) are based on insufficient evidence.2 In his second
assignment of error, Miller specifically argues that his rape convictions under
Counts Three, Five, Seven, Nine, and Eleven are against the manifest weight of the
evidence.
Standard of Review
{¶8} Manifest “weight of the evidence and sufficiency of the evidence are
clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389
(1997). As such, we address each legal concept individually.
{¶9} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio
1 Notwithstanding the captions of Miller’s first and second assignments of error, Miller includes arguments relative to only his rape and gross-sexual-imposition convictions as to Counts Ten and Eleven, respectively, under his first assignment of error and to only his rape convictions under his second assignment of error. Because Miller failed to articulate his reasons (with citations to the authorities, statutes, or parts of the record on which he relies) in support of the contention that his rape and gross-sexual-imposition convictions under Counts One through Nine, respectively, are based on insufficient evidence or in support of contention that his gross-sexual-imposition convictions under Counts One, Two, Four, Six, Eight, and Ten are against the manifest weight of the evidence, we decline to address those arguments. See State v. Carpenter, 3d Dist. No. 13-18-16, 2019-Ohio-58, ¶ 31, fn. 5; App.R. 12(A)(2) and 16(A)(7). 2 Although Miller states (under his first assignment of error) that “no evidence was presented indicating and meeting the time frame alleged in the indictment as to either victim,” the balance of Miller’s argument challenges the sufficiency of the evidence presented concerning only A.W. (Appellant’s Brief at 4). Because Miller failed to include reasons, including citations to the authorities, statutes, or parts of the record on which he contends supports his challenge to the sufficiency of the evidence presented concerning C.C., we decline to address those arguments. See Carpenter at ¶ 31, fn. 5; App.R. 12(A)(2) and 16(A)(7).
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St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89 (1997).
Accordingly, “[t]he 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.” Id. “In deciding
if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the
credibility of witnesses, as both are functions reserved for the trier of fact.” State v.
Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33,
citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.).
See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19
(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight
of the evidence.”), citing Thompkins at 386.
{¶10} On the other hand, in determining whether a conviction is against the
manifest weight of the evidence, a reviewing court must examine the entire record,
“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of
witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier
of fact] clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered.’” Thompkins at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing
court must, however, allow the trier of fact appropriate discretion on matters relating
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to the weight of the evidence and the credibility of the witnesses. State v. DeHass,
10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard,
“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the
conviction,’ should an appellate court overturn the trial court’s judgment.” State v.
Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v.
Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
Analysis
{¶11} As an initial matter, although Miller challenges the sufficiency of the
evidence supporting the jury’s findings of guilt as to the gross-sexual-imposition
count under Count Ten of the indictment, we need not address that argument. See
State v. Turner, 2d Dist. Clark No. 2017-CA-78, 2019-Ohio-144, ¶ 22, citing State
v. Croom, 7th Dist. Mahoning No. 12 MA 54, 2013-Ohio-5682, ¶ 60-61 and State
v. Zimmer, 8th Dist. Cuyahoga No. 104946, 2017-Ohio-4440, ¶ 9, quoting State v.
Ramos, 8th Dist. Cuyahoga No. 103596, 2016-Ohio-7685, ¶ 14. “When counts in
an indictment are allied offenses, and there is sufficient evidence to support the
offense on which the state elects to have the defendant sentenced, the appellate court
need not consider the sufficiency [or weight] of the evidence on the count that is
subject to merger because any error would be harmless” beyond a reasonable doubt.
Ramos at ¶ 14, citing State v. Powell, 49 Ohio St.3d 255, 263 (1990), superseded by
state constitutional amendment on other grounds, Smith, 80 Ohio St.3d at 102, fn.
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4.3 See State v. Henderson, 7th Dist. Mahoning No. 15 MA 0137, 2018-Ohio-5123,
¶ 9 (“Courts have held, in merged offense cases, where there is sufficient evidence
supporting the conviction of the state’s elected offense for sentencing, it is harmless
error if there was insufficient evidence to support the offenses that merged with the
elected offense.”), citing State v. Worley, 8th Dist. Cuyahoga No. 103105, 2016
Ohio-2722, ¶ 23, citing Powell at 263 (concluding that “[e]ven if evidence of
kidnapping by restraint was insufficient to support conviction, the fact that the
kidnapping by removal was based on sufficient evidence and merged with the
kidnapping by restraint count means any error with the conviction was harmless
beyond a reasonable doubt”), and citing Croom at ¶ 60-61 (“The Supreme Court has
concluded that, even if there is insufficient evidence to support one count, where
that count has been merged with another count, the error in rendering a verdict on
that count is harmless beyond a reasonable doubt.”), citing Powell at 263, and citing
State v. Washington, 10th Dist. Franklin No. 09AP-424, 2009-Ohio-6665, ¶ 18. See
also Henderson at ¶ 9 (applying this rationale to manifest-weight-, jury-instruction
, and indictment-related arguments), citing State v. Springer, 8th Dist. Cuyahoga
3 The Eighth District Court of Appeals expressed concern with the blind application of this principle and hypothesized that there could be a circumstance under which a challenge to an offense that is merged for purposes of sentencing would not be harmless beyond a reasonable doubt. See State v. Ramos, 8th Dist. Cuyahoga No. 103596, 2016-Ohio-7685, ¶ 17. However, the Eighth District ultimately determined that it need not reach that issue in Ramos after reasoning that, “[f]or purposes of this appeal, our conclusion that the state offered legally sufficient evidence to prove the aggravated murder conviction renders our hypothetical moot.” Id. at ¶ 18. Similarly, because we ultimately conclude that Miller’s rape convictions under Counts Three, Five, Seven, Nine, and Eleven are based on sufficient evidence, we need not reach that issue in this case.
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No. 104649, 2017-Ohio-8861, ¶ 15, Ramos at ¶ 14, and State v. Franks, 8th Dist.
Cuyahoga No. 103682, 2016-Ohio-5241, ¶ 18.
{¶12} In this case, error, if any, with respect to the sufficiency or weight of
the evidence as to Miller’s gross-sexual-imposition charge under Counts Ten is
harmless beyond a reasonable doubt because that count was merged with Count
Eleven. See Ramos at ¶ 13 (“Error, if any, with respect to the sufficiency of the
evidence on the felonious assault, domestic violence, and kidnapping counts is
harmless because those counts were merged into the life sentence imposed for
aggravated murder under Count 2.”). More specifically, Miller was not convicted
of gross sexual imposition as to Count Ten because the trial court merged that
offense for purposes of sentencing. See Turner at ¶ 22 (“A conviction does not exist
where there has been a guilty verdict * * * but no sentence.”), quoting Croom at ¶
59, citing State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶ 12. See also Ramos
at ¶ 16 (noting that “a second line of thought has developed” suggesting that “if a
sentence for an allied offense was merged into another sentence, the defendant was
not actually ‘convicted’ of the allied offense”), citing State v. Obsaint, 1st Dist.
Hamilton No. C-060629, 2007-Ohio-2661, ¶ 24. Indeed, the Supreme Court of Ohio
has explicitly stated that a “conviction” requires both a finding of guilt and a
sentence. Ramos at ¶ 16, citing State v. Henderson, 58 Ohio St.2d 171, 178 (1979).
For these reasons, we will not and do not address any arguments challenging the
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sufficiency of the evidence supporting Millers gross-sexual-imposition charge
under Count Ten. See Ramos at ¶ 13, 18.
{¶13} Therefore, we begin by addressing Miller’s sufficiency-of-the
evidence argument as it relates to his rape conviction under Count Eleven of the
indictment. See State v. Velez, 3d Dist. Putnam No. 12-13-10, 2014-Ohio-1788, ¶
68, citing State v. Wimmer, 3d Dist. Marion No. 9-98-46, 1999 WL 355190, *1
(Mar. 26, 1999).
{¶14} Under his first assignment of error, Miller challenges only the
sufficiency of the evidence supporting his gross-sexual-imposition conviction under
Count Ten. Although Miller contends that the State did not present sufficient
evidence that A.W. was substantially impaired or that Miller knew that she was
substantially impaired, Miller applies his argument to just his gross-sexual
imposition conviction.4 Importantly, in presenting his argument, Miller references
only Ohio’s gross-sexual-imposition statute and argues that “Mr. Miller’s
knowledge of [A.W.’s] mental state is an essential element of the offense of gross
sexual imposition.”5 (Emphasis added.) (Appellant’s Brief at 3-4). Moreover, in
sum, Miller contends, “Simply because [A.W.’s] recollection of the night’s events
4 Miller was convicted of rape under R.C. 2907.02(A)(1)(c)—the “substantial-impairment” subsection—and gross sexual imposition under R.C. 2907.05(A)(1)—the “force-or-threat-of-force” subsection. 5 Miller also references Ohio’s sexual-battery statute in the body of his argument. (See Appellant’s Brief at 5). However, because Miller was not convicted of sexual battery, we will disregard any reference to that statute.
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is better than that of Mr. Miller’s does not mean the State established proof beyond
a reasonable doubt that Mr. Miller committed gross sexual imposition.” (Emphasis
added.) (Id. at 6). In other words, Miller failed to present any argument as to how
his rape conviction under Count Eleven is based on insufficient evidence.
{¶15} “[A] defendant has the burden of affirmatively demonstrating the error
of the trial court on appeal.” State v. Stelzer, 9th Dist. Summit No. 23174,
2006-Ohio-6912, ¶ 7, citing State v. Cook, 9th Dist. Summit No. 20675, 2002-Ohio
2646, ¶ 27. “Moreover, ‘[i]f an argument exists that can support this assignment of
error, it is not this court’s duty to root it out.’” Id., quoting Cook at ¶ 27. “App.R.
12(A)(2) provides that an appellate court ‘may disregard an assignment of error
presented for review if the party raising it fails to identify in the record the error on
which the assignment of error is based or fails to argue the assignment separately in
the brief, as required under App.R. 16(A).’” State v. Jackson, 10th Dist. Franklin
No. 14AP-670, 2015-Ohio-3322, ¶ 11, quoting App.R. 12(A)(2). “Additionally,
App.R. 16(A)(7) requires that an appellant’s brief 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.’” Id., quoting
App.R. 16(A)(7). Not only did Miller fail to include an argument under his first
assignment of error regarding how his rape conviction under Count Eleven is based
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on insufficient evidence, but he failed to provide citations to the authorities, statutes,
and parts of the record that support his argument. Accordingly, we decline to
address the sufficiency-of-the-evidence argument raised by Miller under his first
assignment of error.6 See State v. Carpenter, 3d Dist. Seneca No. 13-18-16, 2019
Ohio-58, ¶ 31, fn. 5.
{¶16} Thus, we turn to Miller’s argument that his rape convictions under
Counts Three, Five, Seven, Nine, and Eleven are against the manifest weight of the
evidence. See Velez, 2014-Ohio-1788, at ¶ 76. On appeal, Miller argues that his
rape convictions under Counts Three, Five, Seven, Nine, and Eleven are against the
manifest weight of the evidence because “the evidence did not establish that
cunnilingus (rape) had actually occurred with [C.C.]” and because A.W. “only
briefly says Mr. Miller was licking her vagina but did not elaborate if it was inside
of her vagina or simply around the vagina.” (Appellant’s Brief at 8).
{¶17} Even though Miller asserts that he is challenging the weight of the
evidence supporting his convictions as pronounced in his second assignment of
error, his argument pertains only to the sufficiency of the evidence supporting those
convictions. Therefore, our discussion is limited to addressing the sufficiency of
the evidence supporting those convictions. Accord State v. Yoder, 9th Dist. Wayne
6 Nevertheless, we address the “substantial-impairment” and “sexual-conduct” elements of Miller’s rape conviction under R.C. 2907.02(A)(1)(c)—as alleged in Count Eleven—in Miller’s second and third assignments of error. There, we ultimately conclude that Miller’s rape conviction under R.C. 2907.02(A)(1)(c) is based on sufficient evidence.
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No. 15AP0017, 2016-Ohio-7428, ¶ 23 (“Because Mr. Yoder only presented a
sufficiency argument, we decline to conduct a manifest weight analysis on his
behalf.”), citing State v. Schmitz, 9th Dist. Lorain Nos. 11CA010043 and
11CA010044, 2012-Ohio-2979, ¶ 36 and App.R. 16(A)(7). See State v. Tabassum,
9th Dist. Summit No. 25568, 2011-Ohio-6790, ¶ 5 (“Although, in the statement of
his first assignment of error, Tabassum raises the issue of manifest weight, his
arguments pertain only to the sufficiency of the evidence, and we limit our
discussion accordingly.”), citing App.R. 12(A)(2) and 16(A)(7). See also State v.
Dahms, 3d Dist. Seneca No. 13-16-16, 2017-Ohio-4221, ¶ 78 (noting that
“sufficiency of the evidence and manifest weight of the evidence are different legal
concepts”), citing Thompkins, 78 Ohio St.3d at 389.
{¶18} Miller was convicted of three counts of rape in violation of R.C.
2907.02(A)(1)(b) and one count of rape in violation of 2907.02(A)(1)(c). The
offense of rape is codified under R.C. 2907.02, which provides, in its pertinent part:
(A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies:
* * *
(b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person.
(c) The other person’s ability to resist or consent is substantially impaired because of a mental or physical condition * * *, and the
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offender knows or has reasonable cause to believe that the other person’s ability to resist or consent is substantially impaired because of a mental or physical condition * * *.
R.C. 2907.02(A)(1)(b), (c).7
A person acts knowingly, regardless of purpose, when the person is aware that the person’s conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.
R.C. 2901.22(B).
{¶19} In order to prove rape under R.C. 2907.02(A)(1)(b), the State was
required to prove that: (1) Miller engaged in sexual conduct with C.C.; (2) that C.C.
is not his spouse; and (3) that C.C. was less than thirteen years of age, whether or
not Miller knew C.C.’s age at the time of the offense. See State v. Jones, 2d Dist.
Montgomery No. 26289, 2015-Ohio-4116, ¶ 42. And, the relevant inquiries
regarding Miller’s rape conviction under R.C. 2907.01(A)(1)(c) are whether the
evidence, when viewed in a light most favorable to the prosecution, is such that any
trier of fact could have found that: (1) Miller engaged in sexual conduct with A.W.;
(2) Miller and A.W. are not married to each other; and (3) A.W.’s ability to resist or
consent was substantially impaired because of a mental or physical condition, and
7 We are applying the version of the Revised Code in effect at the time Miller committed the offenses.
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Miller knew or had reasonable cause to believe that A.W.’s ability to resist or
consent was substantially impaired because of that mental or physical condition.
See State v. Stevens, 3d Dist. Allen No. 1-14-58, 2016-Ohio-446, ¶ 11; In re T.N.,
3d Dist. Marion No. 9-15-36, 2016-Ohio-5774, ¶ 55.
{¶20} On appeal, Miller argues only that there is insufficient evidence that
he engaged in sexual conduct with C.C. and A.W. Because it is the sole element
that Miller challenges on appeal, we will review the sufficiency of the evidence
supporting only whether he engaged in sexual conduct with C.C. and A.W. “Sexual
conduct,” is defined, in relevant part, as “cunnilingus between persons regardless of
sex * * *.” R.C. 2907.01(A).
{¶21} Miller contends that he did not engage in cunnilingus with either
victim because the State did not present any evidence that he “licked * * * the actual
inside of the vagina.” (Appellant’s Brief at 8). Miller’s argument lacks merit. The
statute does not define cunnilingus. However, this court has defined cunnilingus as
“a sexual act committed with the mouth and the female sexual organ.” State v.
Ramirez, 98 Ohio App.3d 388, 393 (3d Dist.1994), citing State v. Bailey, 78 Ohio
App.3d 394, 395 (1st Dist.1992). “Penetration is not required to commit
cunnilingus. Rather, the act of cunnilingus is completed by the placing of one’s
mouth on the female’s genitals.” State v. Lynch, 98 Ohio St.3d 514, 2003-Ohio
2284, ¶ 86.
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{¶22} In this case, C.C. testified that (from 2012-2016) Miller performed (on
multiple occasions) the act of cunnilingus. (Nov. 13, 2018 Tr., Vol. II, at 243-248).
That is, she specifically testified that Miller placed his mouth on her vagina. (See
id.). Similarly, A.W. testified that Miller performed the act of cunnilingus. (Nov.
14, 2018 Tr., Vol. III, at 305). She specified that she “passed out on the couch” and
woke up to Miller “licking [her] on [her] vagina.” (Id.). Therefore, we conclude
that the State presented sufficient evidence that Miller engaged in sexual conduct.
See State v. Coleman, 6th Dist. Lucas No. L-15-1056, 2016-Ohio-7335, ¶ 63. Thus,
Miller’s rape convictions under R.C. 2907.02(A)(1)(b) and (c) are based on
sufficient evidence.
{¶23} Miller’s first and second assignments of error are overruled.
Assignment of Error No. III
Defendant-Appellant was denied the right to effective assistance of counsel and a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution and the Ohio Constitution, Article I, Section 10.
{¶24} In his third assignment of error, Miller argues that his trial counsel was
ineffective. In particular, he contends that his trial counsel was ineffective for
failing to: (1) move for acquittal at the close of the State’s evidence; (2) file any
pretrial motions—namely a motion to sever the superseding indictment or a motion
to suppress the video interview of C.C.; (3) object to testimony; and (4) vigorously
cross-examine the State’s expert witnesses.
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Standard of Review
{¶25} A defendant asserting a claim of ineffective assistance of counsel must
establish: (1) the counsel’s performance was deficient or unreasonable under the
circumstances; and (2) the deficient performance prejudiced the defendant. State v.
Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052 (1984). In order to show counsel’s conduct was deficient or
unreasonable, the defendant must overcome the presumption that counsel provided
competent representation and must show that counsel’s actions were not trial
strategies prompted by reasonable professional judgment. Strickland at 687.
Counsel is entitled to a strong presumption that all decisions fall within the wide
range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675
(1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally
constitute ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558 (1995).
Rather, the errors complained of must amount to a substantial violation of counsel’s
essential duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-142
(1989), quoting State v. Lytle, 48 Ohio St.2d 391, 396 (1976), vacated in part on
other grounds, 438 U.S. 910, 98 S.Ct. 3135 (1978).
{¶26} “Prejudice results when ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” State v. Liles, 3d Dist. Allen No. 1-13-04, 2014-Ohio-259, ¶ 48, quoting
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Bradley at 142, citing Strickland at 691. “‘A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’” Id., quoting Bradley at 142
and citing Strickland at 694.
Analysis
{¶27} First, Miller contends that his trial counsel was ineffective for failing
to move for a Crim.R. 29 judgment of acquittal. Miller’s argument is without merit
because Miller’s trial counsel sought a judgment of acquittal at the close of the
State’s evidence (and he renewed that motion at the close of all evidence), which
the trial court denied. (See Nov. 14, 2018 Tr., Vol. III, at 333-342, 380). Even if
we frame Miller’s argument to reflect an argument that his trial counsel was
ineffective for failing to articulate an argument in support of his Crim.R. 29 motion
for acquittal, the result is the same. Reframed, Miller argues that (had his trial
counsel articulated an argument in support of his Crim.R. 29(A) motion) he would
not have been convicted of gross sexual imposition under Count Ten or rape under
Count Eleven of the superseding indictment.8
8 Miller offers no argument (as he is required to do) in support of his contention that his Crim.R. 29 motion for acquittal would have been successful as to his gross-sexual-imposition and rape convictions under Counts One, Two, Three, Four, Five, Six, Seven, Eight, or Nine of the superseding indictment. See State v. Fluttrow, 3d Dist. Putnam No. 12-18-03, 2018-Ohio-3613, ¶ 30; App.R. 16. Because Miller failed to satisfy his burden of demonstrating that he was prejudiced by his trial counsel’s alleged failure to articulate an argument in support of his Crim.R. 29 motion as to those convictions, we decline to root out any possible argument for him. Id.; Id.; App.R. 12.
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{¶28} “Crim.R. 29 provides for an entry of a judgment of acquittal if the
evidence is insufficient to sustain a conviction.” State v. Cunningham, 6th Dist.
Lucas No. L-16-1248, 2018-Ohio-663, ¶ 34.
“However, a court shall not order an entry of judgment of acquittal under Crim.R. 29(A) if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt.”
State v. Euton, 3d Dist. Auglaize No. 2-06-35, 2007-Ohio-6704, ¶ 32, citing State
v. Bridgeman, 55 Ohio St.2d 261 (1987), syllabus. “‘An appellate court reviews a
denial of a Crim.R. 29 motion for acquittal using the same standard that is used to
review a sufficiency of the evidence claim.’” Cunningham at ¶ 34, quoting State v.
Reyes, 6th Dist. Wood No. WD-03-059, 2005-Ohio-2100, ¶ 21, citing Carter, 72
Ohio St.3d at 553, and citing State v. Jones, 6th Dist. Lucas No. L-08-1001, 2009
Ohio-6501, ¶ 32. See also Euton at ¶ 32 (“A motion for acquittal tests the
sufficiency of the evidence.”), citing State v. Miley, 114 Ohio App.3d 738, 742 (4th
Dist.1996).
{¶29} Accordingly, to resolve Miller’s ineffective-assistance-of-trial
counsel argument, we must apply the sufficiency-of-the-evidence analysis that we
discussed under Miller’s first and second assignments of error to determine whether
he was prejudiced by his trial counsel’s failure to articulate an argument in support
of his Crim.R. 29 judgment of acquittal as to Counts Ten and Eleven. As to Count
Ten, Miller contends that his Crim.R. 29 motion would have been successful
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because the State did not present sufficient evidence in support of his gross-sexual
imposition conviction.
{¶30} R.C. 2907.05 sets forth the offense of gross sexual imposition and
provides, in relevant part:
(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies:
(1) The offender purposely compels the other person, or one of the other persons, to submit by force or threat of force.
R.C. 2907.05(A)(1). To prove the offense of gross sexual imposition under R.C.
2907.05(A)(1), the State must prove that the defendant had sexual contact with a
person, not the defendant’s spouse, and that the offender purposely compelled the
victim to submit to the sexual contact by force or threat of force. See State v. Wine,
3d Dist. Auglaize No. 2-12-01, 2012-Ohio-2837, ¶ 39-40.
{¶31} Because they are the only elements that Miller contends were
insufficient (and thus that his Crim.R. 29 motion would have been successful), we
will address solely whether the State presented sufficient evidence that (1) A.W.
was not Miller’s spouse and (2) that Miller purposely compelled A.W. to submit to
sexual contact by force or threat of force. Notwithstanding the State’s failure to
affirmatively ask the victim whether she was the spouse of Miller, the State
nevertheless presented sufficient evidence that A.W. was not Miller’s spouse. See
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State v. Muller, 3d Dist. Defiance No. 4-11-09, 2012-Ohio-3530, ¶ 82 (“‘When the
state fails to affirmatively ask the victim whether she was the spouse of the offender,
[a trier of fact may] infer from the testimony or circumstances, if sufficient, that a
defendant and his victim are not married.’”), quoting State v. Rainey, 2d Dist.
Montgomery No. 23070, 2009-Ohio-5873, ¶ 30, citing State v. Brown, 8th Dist.
Cuyahoga No. 86577, 2006-Ohio-4584, ¶ 13. A.W. testified that Miller is her
friend’s dad, but she did not “know him well or anything * * *.” (Nov. 14, 2018
Tr., Vol. III, at 317). Further, Detective Dwight Salyer (“Detective Salyer”) of the
Bellefontaine Police Department testified that he investigated A.W.’s allegations.
(Nov. 14, 2018 Tr., Vol. III, at 327). According to Detective Salyer, when he spoke
with Miller “about that incident, he told [Detective Salyer] he didn’t know who
[A.W.] was * * *.” (Id.). On rebuttal, Detective Salyer confirmed that Miller told
him that he did not know A.W. (Id. at 376). Based on this evidence, reasonable
minds could reach different conclusions as to whether the State proved beyond a
reasonable doubt that A.W. and Miller were not married to each other. See Muller
at ¶ 82.
{¶32} The State also presented sufficient evidence that Miller purposely
compelled A.W. to submit to the sexual contact by force or threat of force. In
addressing the force-or-threat-of-force language under Ohio’s rape statute,
[t]he Supreme Court of Ohio has further clarified that “[a] defendant purposely compels another to submit to sexual conduct by force or
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threat of force if the defendant uses physical force against that person, or creates the belief that physical force will be used if the victim does not submit. A threat of force can be inferred from the circumstances surrounding sexual conduct[.]”
State v. Henry, 3d Dist. Seneca No. 13-08-10, 2009-Ohio-3535, ¶ 26 (applying the
Supreme Court of Ohio’s discussion of the force-or-threat-of-force element to
Ohio’s gross-sexual-imposition statute), quoting State v. Schaim, 65 Ohio St.3d 51
(1992), paragraph one of the syllabus. Indeed, “‘[f]orce’ is defined as ‘any violence,
compulsion, or constraint physically exerted by any means upon or against a person
or thing.’” (Emphasis sic.) Euton, 2007-Ohio-6704, at ¶ 60 (Preston, J., concurring
in part and dissenting in part), quoting R.C. 2901.01(A)(1). See State v. Stevens, 3d
Dist. No. 1-14-58, 2016-Ohio-446, ¶ 18. See also R.C. 2907.05(D) (“A victim need
not prove physical resistance” for the offender to be guilty of gross sexual
imposition). “‘[T]he key inquiry for determining whether the State presented
sufficient evidence [of] the element of force is whether (based on the totality of the
circumstances) the “victim’s will was overcome by fear or duress.”’” Stevens at ¶
20, quoting Wine, 2012-Ohio-2837, at ¶ 40, quoting In re Forbess, 3d Dist. Auglaize
No. 2-09-20, 2010-Ohio-2826, ¶ 40, citing State v. Heft, 3d Dist. Logan No. 8-09
08, 2009-Ohio-5908, ¶ 88, citing State v. Eskridge, 38 Ohio St.3d 56, 58-59 (1988).
See id. at ¶ 21, quoting State v. Runyons, 3d Dist. Union No. 14-91-30, 1992 WL
136196, *2 (June 9, 1992).
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{¶33} In this case, (as we previously outlined) A.W. testified that she “passed
out on the couch,” woke up, and saw Miller “in between [her] legs and [her] pants
and underwear down and him licking [her] on [her] vagina.” (Nov. 14, 2018 Tr.,
Vol. III, at 305). She testified that, when she awoke, she “was confused,” “was
thinking * * * what the heck,” and was “looking around to see if [she] saw [her
friend] or anything [but she] didn’t see anybody” because “[t]he room was dark.”
(Id.). She sat up and Miller “sat beside [her] and pulled out his penis and * * * put
[her] hand on it.” (Id. at 305-306). She further testified that she could not recall “if
he * * * said it or just gestured it, but he wanted [her] to put it in [her] mouth.” (Id.
at 306). At that point, A.W. asked Miller to stop, and he did. (Id.).
{¶34} Based on our review of the totality of the circumstances of this case,
the State presented evidence beyond a subtle or psychological force—that is, the
State presented evidence such that reasonable minds could reach different
conclusions as to whether the force element was proven beyond a reasonable doubt.
Specifically, A.W. testified that Miller removed her pants and underwear.9 See
Stevens at ¶ 23 (noting that removing a victim’s pants and underwear constitutes an
act of compulsion and constraint, which is independent of the force inherent in the
crime itself), citing Eskridge at 58. See also Wine at ¶ 48 (noting that “‘the statute
9 Although this court has declined to adopt a “reduced level of force for sleeping victims” standard, the evidence presented by the State in this case exceeds that standard. See State v. Wine, 3d Dist. Auglaize No. 2-12-01, 2012-Ohio-2837, ¶ 49.
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requires that some amount of force must be proven beyond the force inherent in the
crime itself’”), quoting State v. Dye, 82 Ohio St.3d 323, 327 (1998). Disoriented
and searching for her friend, Miller then took A.W.’s hand and placed it on his penis.
See State v. Kushlan, 8th Dist. Cuyahoga No. 91383, 2009-Ohio-2253, ¶ 25; Euton
at ¶ 60 (Preston, J., dissenting) (concluding that the trial court properly denied
Euton’s Crim.R. 29 motion because “reasonable minds [could] differ on whether
[the victim’s] fear [was] ‘any’ compulsion under R.C. 2901.01(A)(1)” since the
victim “was frightened and froze up for a few moments before leaving the room”),
citing State v. Bridgeman, 55 Ohio St.2d 261 (1978), syllabus. Likewise, the jury
could infer from A.W.’s testimony that, because she requested Miller to “stop,”
Miller was compelling A.W. to submit to sexual contact. See State v. Glover, 8th
Dist. Cuyahoga No. 83341, 2004-Ohio-4482, ¶ 22.
{¶35} Accordingly, based on the totality of the circumstances, we conclude
that the evidence presented by the State was enough for a reasonable trier of fact to
find that “any” compulsion was exerted. See Stevens at ¶ 23, citing Wine at ¶ 47,
citing Eskridge at 58-59 and Schaim at 55; Euton at ¶ 60 (Preston, J., dissenting).
Therefore, Miller cannot demonstrate that (had his trial counsel articulated an
argument in support of his Crim.R. 29 motion as to Count Ten), it would have had
a reasonable likelihood of success.
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{¶36} As to Count Eleven, despite our conclusion under Miller’s first and
second assignments of error (that his rape conviction under that count is based on
sufficient evidence), Miller now challenges the sufficiency of the evidence of a
different element of that offense. In particular, Miller argues that there was a
reasonable probability of success that (had his trial counsel articulated an argument
in support of his Crim.R. 29 motion as to Count Eleven), the Crim.R. 29 motion
would have been granted because there was insufficient evidence that Miller knew
that A.W.’s “ability to appraise the nature of or control her own conduct was
substantially impaired.” (Appellant’s Brief at 10).
{¶37} As we previously noted, Miller was convicted of rape in violation of
R.C. 2907.02(A)(1)(c) under Count Eleven of the superseding indictment. R.C.
2907.02(A)(1)(c) provides, in its relevant part, that
[n]o person shall engage in sexual conduct with another who is not the spouse of the offender * * * when * * * “[t]he other person’s ability to resist or consent is substantially impaired because of a mental or physical condition * * * and the offender knows or has reasonable cause to believe that the other person’s ability to resist or consent is substantially impaired because of a mental or physical condition * * *.
Although Ohio’s criminal code does not define “substantial impairment,” “the
courts of appeals have ‘concluded that sleeping is a “physical condition” that
substantially impairs a victim’s ability to resist for purposes of rape in violation of
R.C. 2907.02(A)(1)(c).” Stevens at ¶ 13, quoting Wine at ¶ 50, citing State v.
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Graves, 8th Dist. Cuyahoga No. 88845, 2007-Ohio-5430, ¶ 22, State v. Wright, 9th
Dist. Medina No. 03CA0057-M, 2004-Ohio-603, ¶ 6, and State v. H.H., 10th Dist.
Franklin No. 10AP-1126, 2011-Ohio-6660, ¶ 10. See also State v. Anderson, 6th
Dist. Wood No. WD-04-035, 2005-Ohio-534, ¶ 41 (“A jury can reasonably
conclude that the defendant knew the victim was substantially impaired and unable
to object to the defendant’s conduct if there was evidence that the victim was in a
state of deep sleep or drunkenness.”).
{¶38} As we previously addressed, A.W. unequivocally testified that she
“passed out” and awoke to Miller “in between [her] legs and [her] pants and
underwear down and him licking [her] on [her] vagina.” (Nov. 14, 2018 Tr., Vol.
III, at 305). Accordingly, that evidence is such that reasonable minds could reach a
different conclusion as to whether the State proved beyond a reasonable doubt that
Miller knew or had reasonable cause to believe that A.W.’s ability to resist or
consent was substantially impaired because of a physical condition. See Stevens at
¶ 13. Therefore, a more artfully articulated Crim.R. 29 motion as to Count Eleven
would not have had a reasonable probability of success. Thus, Miller’s trial counsel
was not ineffective for failing to articulate an argument in support of his Crim.R. 29
motion as to Counts Ten and Eleven.
{¶39} Miller further argues under his third assignment of error that his trial
counsel was ineffective for failing to file a motion to sever the superseding
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indictment or a motion to suppress the video interview of C.C. “The failure to file
a motion is not per se ineffective assistance of counsel.” State v. Costell, 3d Dist.
Union No. 14-15-11, 2016-Ohio-3386, ¶ 161, citing State v. Schlosser, 3d Dist.
Union No. 14-10-30, 2011-Ohio-4183, ¶ 34, citing In re Smith, 3d Dist. Hancock
No. 5-01-34, 2002 WL 255126, *6 (Feb. 22, 2002). “‘Without proving that trial
counsel was deficient for failing to make certain motions and that those motions had
a reasonable probability of success, the ineffective assistance of counsel claim
fails.’” Id., quoting Schlosser at ¶ 34. However, Miller failed to demonstrate how
his trial counsel was deficient for failing to file either of those pretrial motions or
that such motions would have been successful. Indeed, Miller made no argument
relative to whether either of those motions would have had a reasonable probability
of success, and we decline to root out any possible argument. Id., citing State v.
Raber, 189 Ohio App.3d 396, 2010-Ohio-4066, ¶ 30 (“[I]f an argument exists that
can support [an] assignment of error, it is not this [c]ourt’s duty to root it out.”). See
also App.R. 12(A)(2) and 16(A)(7).
{¶40} Next, Miller contends that his trial counsel was ineffective for not
objecting to testimony to the testimony of Tabitha C. (“Tabitha”). “The ‘failure to
object to error, alone, is not enough to sustain a claim of ineffective assistance of
counsel.’” Liles, 2014-Ohio-259, at ¶ 49, quoting State v. Johnson, 112 Ohio St.3d
210, 2006-Ohio-6404, ¶ 139, citing State v. Holloway, 38 Ohio St.3d 239, 244
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(1988). “To prevail on such a claim, a defendant must first show that there was a
substantial violation of any of defense counsel’s essential duties to his client and,
second, that he was materially prejudiced by counsel’s ineffectiveness.” Holloway
at 244, citing Lytle, 48 Ohio St.3d at 396-397 and Strickland, 466 U.S. at 668.
“Because ‘objections tend to disrupt the flow of a trial, and are considered technical
and bothersome by the fact-finder,’ competent counsel may reasonably hesitate to
object in the jury’s presence.” State v. Campbell, 69 Ohio St.3d 38, 53 (1994),
quoting Jacobs, Ohio Evidence, at iii-iv (1989).
{¶41} In particular, Miller takes issue with Tabitha’s testimony on the basis
that it was impermissible hearsay because “the witness [was] relaying what the
minor child had told her.” (Appellant’s Brief at 10-11). “‘Hearsay’ is a statement,
other than one made by the declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted.” Evid.R. 801(C). “The hearsay
rule does not apply, however, when an out-of-court statement is offered for a
purpose other than the truth of the matter * * * asserted.” State v. Smith, 9th Dist.
Summit No. 26159, 2012-Ohio-4436, ¶ 13, citing State v. Lewis, 22 Ohio St.2d 125,
132 (1970). “One such situation is when an out-of-court statement is introduced to
explain the subsequent actions taken by witnesses * * *.” Id., citing State v. Thomas,
61 Ohio St.2d 223, 232 (1980).
Case No. 8-19-02
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{¶42} After reviewing the totality of Tabitha’s testimony, we see no
testimony conveying a hearsay statement. Tabitha’s testimony does not concern
any specific statement made by C.C.; rather, her testimony reflects that C.C. made
a statement to her, when the statement was made, and the steps that Tabitha took as
a result of the statement. See State v. Hoseclaw, 3d Dist. Allen No. 1-12-31, 2013
Ohio-3486, ¶ 39. Thus, because Tabitha’s testimony does not reflect any hearsay
statements, Miller’s trial counsel was not deficient for failing to object to any of her
testimony.
{¶43} Similarly, Miller contends that his trial counsel should have objected
to Tabitha’s in-court identification of Miller because Tabitha did not have “first
hand knowledge of the allegations.” (Appellant’s Brief at 11). Miller’s argument
is without merit. Tabitha was asked how she knows of Miller’s identity and whether
she knew what “Miller looks like,” to which she responded that she did. (Nov. 13,
2018 Tr., Vol. II, at 173, 176-177). See State v. Drummond, 111 Ohio St.3d 14,
2006-Ohio-5084, ¶ 39 (concluding that the identification of an individual based on
the witness’s “personal knowledge and experience” is not hearsay); State v.
Robertson, 5th Dist. Delaware No. 95CAA05036, 1996 WL 251825, *2 (Apr. 15,
1996) (concluding that the witness’s in-court identification of Robertson was
admissible because it was “merely a response to his personal knowledge and ability
to identify [Robertson]”). In other words, Tabitha’s statement was not offered to
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establish that Miller was the one who committed the acts against C.C. See Smith at
¶ 14. Accordingly, because Tabitha’s identification of Miller was not offered for
the truth of the matter asserted, the hearsay rule does not apply, and Miller’s trial
counsel was not ineffective for failing to object to it. Id.
{¶44} Finally, Miller contends that his trial counsel was ineffective for
failing to “vigorously” cross-examine the State’s expert witnesses. Specifically,
Miller contends that his trial counsel “merely asked seven insignificant questions of
the nurse where there was an opportune moment to cast doubt on the victim’s story”
“and the same exact line of insignificant questioning of the second ‘expert’ witness.”
(Appellant’s Brief at 11, citing Nov. 13, 2018 Tr., Vol. II, at 222-224, 232-233).
{¶45} “It is well settled that the scope of cross-examination is considered a
trial strategy, and debatable trial tactics do not establish ineffective assistance.”
State v. Alvarez, 3d Dist. Defiance No. 4-08-02, 2008-Ohio-5189, ¶ 32, citing State
v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 101, citing State v. Hoffner, 102
Ohio St.3d 358, 2004-Ohio-3430, ¶ 45; State v. Campbell, 90 Ohio St.3d 320, 339
(2000). Miller’s trial counsel may have decided to refrain from “vigorously” cross
examining the State’s witnesses because such cross-examination might have
reemphasized C.C.’s allegations and bolstered the State’s argument. Accord
Alvarez at ¶ 32. Likewise, aside from his blanket statement that a more “vigorous”
cross-examination of the State’s witnesses would have “cast doubt on the victim’s
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story,” Miller advanced no argument (as he is required to do) that there is a
reasonable probability that the outcome of his trial would have been different based
on that argument. Thus, we conclude that Miller’s trial counsel’s considerations are
trial strategy and do not constitute ineffective assistance of counsel. See id.
{¶46} For these reasons, Miller’s third assignment of error is overruled.
Assignment of Error No. IV
Defendant-Appellant was deprived of his rights to due process and a fair trial under the federal and state constitutions by the cumulative effect of the numerous errors in this case.
{¶47} In his fourth assignment of error, Miller argues that the cumulative
effect of the trial court’s errors denied him a fair trial. Specifically, Miller argues
that the cumulative effect of the errors that he alleged in his first, second, and third
assignments of error deprived him of a fair trial.
Standard of Review
{¶48} “Under [the] doctrine of cumulative error, a conviction will be
reversed when the cumulative effect of errors in a trial deprives a defendant of a fair
trial even though each of the numerous instances of trial court error does not
individually constitute cause for reversal.” State v. Spencer, 3d Dist. Marion No. 9
13-50, 2015-Ohio-52, ¶ 83, citing State v. Powell, 132 Ohio St.3d 233, 2012-Ohio
2577, ¶ 222-224 and State v. Garner, 74 Ohio St.3d 49, 64 (1995). “To find
cumulative error, a court must first find multiple errors committed at trial and
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determine that there is a reasonable probability that the outcome below would have
been different but for the combination of the harmless errors.” State v. Stober, 3d
Dist. Putnam No. 12-13-13, 2014-Ohio-5629, ¶ 15, quoting In re J.M., 3d. Dist.
Putnam No. 12-11-06, 2012-Ohio-1467, ¶ 36.
Outcome: Because we found no error as alleged by Miller in his first, second, or
third assignments of error, the doctrine of cumulative error does not apply. State v. Bertuzzi, 3d Dist. Marion No. 9-13-12, 2014-Ohio-5093, ¶ 110.
Miller’s fourth assignment of error is overruled.
Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Plaintiff's Experts:
Defendant's Experts:
Comments: