[Cite as State v. Miller,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 8-19-02

v.

PAUL F. MILLER, OPINION

DEFENDANT-APPELLANT.

Appeal from Logan County Common Pleas Court Trial Court No. CR 18 02 0037

Judgment Affirmed

Date of Decision: October 7, 2019

APPEARANCES:

Joel M. Spitzer for Appellant

Alice Robinson-Bond for Appellee Case No. 8-19-02

ZIMMERMAN, P.J.

{¶1} Defendant-appellant, Paul F. Miller (“Miller”), appeals the December

19, 2018 judgment entry of sentence of the Logan County Court of Common Pleas.

For the reasons that follow, we affirm.

{¶2} 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,

(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,

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,

; 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,

(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.”

“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,

,

citing State v. Williams,

,

(1st Dist.).

See also State v. Berry, 3d Dist. Defiance No. 4-12-03,

(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight

of the evidence.”), citing

.

{¶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.’”

,

quoting State v. Martin,

(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,

(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,

, quoting State v.

Hunter,

,

.

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,

, citing State

v. Croom, 7th Dist. Mahoning No. 12 MA 54,

, ¶ 60-61 and State

v. Zimmer, 8th Dist. Cuyahoga No. 104946,

, quoting State v.

Ramos, 8th Dist. Cuyahoga No. 103596,

. “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,

(1990), superseded by

state constitutional amendment on other grounds, Smith,

, fn.

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4.3 See State v. Henderson, 7th Dist. Mahoning No. 15 MA 0137,

,

¶ 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

(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

, and citing

State v. Washington, 10th Dist. Franklin No. 09AP-424,

, ¶ 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,

. 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,

, Ramos at ¶ 14, and State v. Franks, 8th Dist.

Cuyahoga No. 103682,

, ¶ 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,

,

. 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,

. 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,

(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,

, citing State v. Wimmer, 3d Dist. Marion No. 9-98-46,

, *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,

, 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.’”

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,

, 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.’”

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,

. 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,

(“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,

, ¶ 36 and App.R. 16(A)(7). See State v. Tabassum,

9th Dist. Summit No. 25568,

(“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,

(noting that

“sufficiency of the evidence and manifest weight of the evidence are different legal

concepts”), citing Thompkins,

.

{¶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,

. 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,

; In re T.N.,

3d Dist. Marion No. 9-15-36,

.

{¶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,

(3d Dist. 1994), citing State v. Bailey,

(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,

, 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,

. 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,

(2001), citing Strickland v. Washington,

,

(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.

.

Counsel is entitled to a strong presumption that all decisions fall within the wide

range of reasonable professional assistance. State v. Sallie,

(1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally

constitute ineffective assistance. State v. Carter,

(1995).

Rather, the errors complained of must amount to a substantial violation of counsel’s

essential duties to his client. See State v. Bradley,

(1989), quoting State v. Lytle,

(1976), vacated in part on

other grounds,

,

(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,

, quoting

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, citing

. “‘A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’”

quoting Bradley at 142

and citing

.

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,

; 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,

.

“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,

, citing State

v. Bridgeman,

(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,

, citing Carter,

, 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,

(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,

.

{¶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,

(“‘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,

, ¶ 30, citing State v. Brown, 8th Dist.

Cuyahoga No. 86577,

. 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,

(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,

(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,

(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,

. 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,

, quoting In re Forbess, 3d Dist. Auglaize

No. 2-09-20,

, citing State v. Heft, 3d Dist. Logan No. 8-09-

08,

, citing State v. Eskridge,

(1988).

See id. at ¶ 21, quoting State v. Runyons, 3d Dist. Union No. 14-91-30,

, *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

. See also

(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,

.

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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,

(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,

;

(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,

(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,

.

{¶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

,

citing Eskridge at 58-59 and

;

(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

, citing State v.

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Graves, 8th Dist. Cuyahoga No. 88845,

, State v. Wright, 9th

Dist. Medina No. 03CA0057-M,

, and State v. H.H., 10th Dist.

Franklin No. 10AP-1126,

, ¶ 10. See also State v. Anderson, 6th

Dist. Wood No. WD-04-035,

, ¶ 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,

, citing State v. Schlosser, 3d Dist.

Union No. 14-10-30,

, citing In re Smith, 3d Dist. Hancock

No. 5-01-34,

, *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.’”

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.

citing State v.

Raber,

,

, ¶ 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,

, quoting State v. Johnson,

,

, ¶ 139, citing State v. Holloway,

, 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.”

, citing Lytle, 48 Ohio St.3d at 396-397 and Strickland,

.

“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,

(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,

, citing State v. Lewis,

(1970). “One such situation is when an out-of-court statement is introduced to

explain the subsequent actions taken by witnesses * * *.”

citing State v. Thomas,

(1980).

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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,

,

, ¶ 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,

, *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

. 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.

{¶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,

, citing State

v. Conway,

,

, ¶ 101, citing State v. Hoffner,

,

, ¶ 45; State v. Campbell,

(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

-30- Case No. 8-19-02

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

{¶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,

, citing State v. Powell,

, 2012-Ohio-

2577, ¶ 222-224 and State v. Garner,

(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,

, quoting In re J.M., 3d. Dist.

Putnam No. 12-11-06,

.

Analysis

{¶49} 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,

.

{¶50} Miller’s fourth assignment of error is overruled.

{¶51} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr

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