State v. Milligan, 2021 Ohio 1071

Background

Third-grade student L.G. reported sexual abuse by her step-grandfather, Daymond Milligan, immediately after a classroom lesson on safe/unsafe touch; report led to investigation by school, police, and Children Services.
Milligan was indicted for multiple counts of rape and gross sexual imposition; two rape counts and two GSI counts were later dismissed, and the case proceeded on two rape counts and one GSI count arising in 2018–2019.
Victim L.G. testified that Milligan inserted his finger and tongue into her vagina repeatedly and once made her touch his penis; mother A.L. testified about similar prior abuse by Milligan when she was a child and admitted at trial she had forgiven him and allowed contact between L.G. and Milligan.
Children Services investigator testified about indicators of grooming and identified anatomical drawings L.G. completed; during that testimony the investigator volunteered that Milligan had "been to prison," prompting a defense mistrial motion that the court denied and cured with a limiting instruction.
Defense rested without Milligan testifying; the court denied a requested lesser-included instruction on GSI for the rape charges; jury convicted on two counts of rape and one count of GSI; trial court sentenced Milligan to concurrent life-without-parole terms on the rape convictions and five years on the GSI, and designated him a Tier III sex offender.
Milligan appealed, raising (1) mistrial denial over the prison reference, (2) denial of lesser-included instruction for GSI, and (3) ineffective assistance for counsel’s decision to preclude him from testifying.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether denial of mistrial after witness mentioned defendant had "been to prison" was error	State: stray, spontaneous comment cured by limiting instruction and did not prejudice jury	Milligan: mention of prison and other-acts evidence was inflammatory and required mistrial	Court: No abuse of discretion; curative limiting instruction sufficient given isolated reference and overwhelming admissible evidence
Whether court erred by refusing lesser-included instruction of gross sexual imposition for rape charges	State: testimony established penetration (finger and tongue), so rape elements proven	Milligan: lack of physical evidence and absence of disrobing left reasonable doubt about penetration, so GSI instruction required	Court: No. Victim’s testimony affirmatively described insertion; jury could not consistently disbelieve penetration and still convict on mere touching, so no lesser-included instruction required
Whether trial counsel was ineffective by preventing defendant from testifying	State: counsel’s tactical decision to avoid placing prior conviction/prison in evidence was reasonable and not coerced	Milligan: counsel’s strategy deprived him of his right to testify and of a chance to deny allegations after prison reference	Court: No. Tactical decision presumed reasonable; no evidence of coercion or deficient performance under Strickland

Key Cases Cited

State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (discretionary standard for mistrial denial)
State v. Trimble, 122 Ohio St.3d 297, 911 N.E.2d 242 (curative instruction can remedy isolated references to incarceration)
State v. Zuern, 32 Ohio St.3d 56, 512 N.E.2d 585 (presumption of effectiveness of curative jury instructions)
State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (test for lesser-included offense)
State v. Johnson, 36 Ohio St.3d 224, 522 N.E.2d 1082 (GSI is lesser-included offense of rape; jury cannot reasonably disbelieve penetration while accepting alternate theory)
State v. Wine, 140 Ohio St.3d 409, 18 N.E.3d 1207 (when to give lesser-included instruction; view evidence favorably to defendant)
Strickland v. Washington, 466 U.S. 668 (two-prong ineffective-assistance test)
State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (Ohio application of Strickland test)
Beck v. Alabama, 447 U.S. 625 (right to have jury consider lesser included offenses)