State v. Miller, 2018 Ohio 3481

In August 2016, twelve‑year‑old T.A. alleged sexual abuse by her step‑grandfather, Shawn M. Miller; police interviewed witnesses and arrested Miller.
Miller was indicted on multiple sexual‑offense counts involving several victims; after two mistrials on some counts, a third trial proceeded on two rape counts relating to T.A.
At the third trial T.A. became unavailable for cross‑examination on the charged acts; portions of her prior trial testimony were read to the jury under Evid.R. 804(A)(2).
The trial court, sua sponte at the close of the State’s case, required the State to elect which specific act supported Count One and limited Count One to digital (finger) penetration; Count Two alleged cunnilingus.
The jury convicted Miller on both rape counts; the court imposed consecutive indefinite sentences of 25 years to life on each count.
Miller appealed asserting ineffective assistance and that convictions were against the manifest weight of the evidence; the State cross‑appealed arguing the trial court erred by dismissing the penile‑penetration theory within Count One (duplicitous count issue).

Issue	State's Argument	Miller's Argument	Held
Ineffective assistance of counsel for failure to object to testimony and interview excerpts	State: Counsel’s cross/examination was tactical and did not fall below Strickland standard	Miller: Counsel should have objected to opinion/credibility‑bolstering testimony and redacted police statements	Court: No ineffective assistance — defense tactics were reasonable and not prejudicial
Manifest weight of evidence that Miller raped a child under 13	State: Jury saw witnesses, evaluated demeanor, medical and circumstantial evidence supported convictions	Miller: Inconsistencies and witness behavior undermined verdicts	Court: Convictions not against manifest weight; jury did not lose its way
Trial court’s limitation of Count One to digital penetration (duplicitous indictment)	State: Count may encompass multiple means; unanimity on means not required — jury may agree on different underlying means	Cross‑Appellant (State): Court should not have dismissed a theory; remedy is severance or unanimity instruction, not exclusion	Court: Trial court erred in dismissing the penile‑penetration theory as duplicative; State should not have been precluded from arguing multiple acts under Count One

Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong ineffective assistance test)
Lockhart v. Fretwell, 506 U.S. 364 (1993) (prejudice inquiry in ineffective assistance analysis)
State v. Thompkins, 78 Ohio St.3d 380 (1997) (manifest‑weight standard)
State v. Thompson, 33 Ohio St.3d 1 (1987) (holding jury need not specify type of rape when statute covers multiple means)
State v. Gardner, 118 Ohio St.3d 420 (2008) (juror unanimity on elements does not require agreement on a single means)
Richardson v. United States, 526 U.S. 813 (1999) (interpreting unanimity requirement for alternative means)
State v. Boston, 46 Ohio St.3d 108 (1989) (expert cannot opine on child declarant veracity)
State v. Stowers, 81 Ohio St.3d 260 (1998) (expert testimony that assists juror in assessing child’s veracity is permissible)