State v. MillerState v. Miller
Michael A. Partlow, Morganstern, MacAdams & DeVito Co., L.P.A., 623 West St. Clair Avenue, Cleveland, OH 44113-1204 (For Defendant-Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, William R. Miller, appeals from the judgment of the Trumbull County Court of Common Pleas affirming the jury‘s guilty verdict of rape and kidnapping, each carrying a repeat violent offender specification. Appellant was sentenced to a 30-year term of imprisonment.
{¶3} L.B. testified that she was crying, and, sensing a way to escape, she informed appellant that she would go to a hotel with him. L.B. stated that appellant agreed and said, “let‘s get out of here.” L.B. got dressed and attempted to drive away; however, her car became stuck in the snow. A passing motorist, Nathan McCracken, noticed L.B.‘s car and stopped to see if she needed assistance.
{¶4} McCracken indicated that as he approached the vehicle, both L.B. and appellant were standing outside the vehicle. McCracken testified that L.B. came around the back of his vehicle, squeezed his hand, and whispered, “get me out of here.”
{¶5} L.B. stated that she remained seated in the vehicle and mouthed the words, “please help me.” Nevertheless, both L.B. and McCracken maintained that when
{¶6} Upon fleeing the scene, L.B. called 9-1-1. Before driving to the Niles Police Department, L.B. testified that she stopped at a gas station to purchase a soda and cigarettes. At the police station, the police determined that the rape occurred in Weathersfield Township. Therefore, the Weathersfield Police Department was contacted and Patrolman Todd Garlow was sent to the Niles station to take a report. Patrolman Garlow observed L.B., who was upset and crying. Together, they drove to the location of the incident; however, Patrolman Garlow was unable to recover any evidence. While L.B. allowed the police to search her vehicle, she did not allow them to impound it, as she had just started a new job and needed the car for transportation. L.B. also testified that if her vehicle was impounded, she would have to inform her elderly father of the incident. A search of the vehicle revealed a cigarette butt behind the passenger‘s seat. At trial, Brenda Gerardi, a forensic scientist, testified that the DNA on the cigarette butt matched appellant‘s profile by a ratio of 3.8 quintillion to one.
{¶7} The jury found appellant guilty of rape, a violation of {¶9} Appellant filed a timely notice of appeal and asserts the following assignments of error: {¶10} “[1.] The trial court erred by denying appellant‘s {¶11} “[2.] The trial court abused its discretion by denying appellant‘s motion for a mistrial. {¶12} “[3.] The trial court erred by denying the appellant‘s motion to dismiss when the record reveals that more than ninety days had passed between the appellant‘s initial incarceration and the day that the trial began. {¶13} “[4.] The trial court abused its discretion by sentencing appellant to maximum and consecutive terms of incarceration, where the record reveals that such terms are unreasonable. {¶14} “[5.] The appellant‘s conviction is against the manifest weight of the evidence.” {¶16} In determining whether a verdict is against the manifest weight of the evidence, the Supreme Court of Ohio has adopted the following language as a guide: {¶17} “‘The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.‘” State v. Thompkins (1997), 78 Ohio St.3d 380, 387. (Citations omitted.) {¶18} Appellant argues that the testimony of L.B. was inconsistent with that of Beach and McCracken. The weight to be given to the evidence and the credibility of witnesses, however, are primarily matters for the jury to decide. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. In assessing the witnesses’ credibility, the trial court, as the trier of fact, had the opportunity to observe the witnesses’ demeanor, body language, and voice inflections. State v. Miller (Sept. 2, 1993), 8th Dist. No. 63431, 1993 Ohio App. LEXIS 4240, at *5-6. Thus, in this matter, the trial court was “clearly in a much better position to evaluate the credibility of witnesses than [this] court.” Id. at *6. {¶19} Appellant further complains that, unlike L.B., he cooperated fully with the police investigation. Appellant argues that after calling 9-1-1, L.B. was instructed to report immediately to the police station; however, she instead stopped at a gas station {¶20} The jury, after having the opportunity to listen to the witnesses and judge their credibility, was free to believe that appellant was guilty of the crimes charged. We defer to the judgment of the jury and find that their verdict did not create such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Appellant‘s fifth assignment of error is without merit. {¶21} In his second assignment of error, appellant argues that the trial court erred in overruling his motion to dismiss based on the prosecutor‘s eliciting of his prior bad acts. {¶22} “[T]he granting or denial of a motion for mistrial rests in the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.” State v. Iacona (2001), 93 Ohio St.3d 83, 100, citing State v. Sage (1987), 31 Ohio St.3d 173, 182. {¶23} {¶25} Appellant‘s attorney filed a motion in limine precluding the state from admitting the prior convictions. {¶26} In a December 10, 2009 judgment entry, the trial court stated: {¶27} “The Court acknowledges that the prior criminal acts appear to be only minimally related in time (over 25 years). However the Court takes into consideration the fact that the Defendant has been incarcerated or on parole for 25 years. Therefore, this alleged criminal event is within 5 years of when the Defendant was released from supervision for the prior 1980 conviction. {¶28} “Furthermore the alleged circumstances in regard to the opportunity, preparation, plan, and knowledge are very similar. Therefore taking into consideration the short time in which the Defendant was not under supervision and similarities of the acts, the Court finds that the prior acts are related for purposes of the exceptions under Evidence Rule 404(B).” {¶29} Appellant does not assign error to the admissibility of such evidence under {¶30} “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or acts.” {¶31} Instead, appellant assigns error to the following question posed by the prosecutor to L.B.: {¶32} “Q: Before you talked to the police, did you know that the defendant had kidnapped two girls back in 1980 at knife point? {¶33} “A: No.” {¶34} The trial court sustained an objection and the following side bar discussion occurred: {¶35} “THE COURT: Don‘t you dare try to get into the facts of that 1980 offense through this witness. Don‘t. {¶36} “[Prosecutor]: I‘m not going to try to get into the facts. But I can‘t say that she didn‘t know how any of that happened. So I can‘t say that she didn‘t – {¶37} “THE COURT: She doesn‘t know how it happened. Go to the next question.” {¶38} The trial court sustained appellant‘s objection, and, during the course of the trial, the jury was instructed that one “must not speculate as to why the court sustained an objection to a question or what the answer to that question might have been. You must not draw any inference or speculate upon the truth of any suggestions included in a question that was not answered.” “A jury is presumed to follow the {¶39} Furthermore, as noted, the jury heard the testimony of S.T., who outlined the 1980 rape in detail. While the prosecutor‘s question was objectionable, the failure to grant a mistrial was harmless error, as appellant was not denied a fair trial. Appellant‘s second assignment of error is without merit. {¶40} In his third assignment of error, appellant alleges the trial court erred in overruling his motion to dismiss for violation of speedy trial rights. The Sixth Amendment of the United States Constitution and Article I, Section 10 of the Ohio Constitution guarantee the right to a speedy trial. {¶41} “The standard of review of a speedy trial issue is to count the days of delay chargeable to either side, and determine whether the case was tried within the time limits set by R.C. 2945.71. *** {¶42} “Speedy trial issues present mixed questions of law and fact. *** We accept the facts as found by the trial court on some competent, credible evidence, but freely review the application of the law to the facts. ***.” State v. Kist, 173 Ohio App.3d 158, 2007-Ohio-4773, at ¶17-18. (Internal citations omitted.) {¶43} Since appellant was charged with a felony, he had to be brought to trial within 270 days of his arrest. {¶44} In the instant case, appellant was arrested on February 27, 2009. It appears from the record that appellant did not post bond. Due to the triple-count provision of {¶45} Appellant‘s trial, however, did not begin until December 18, 2009. The time within which appellant must be brought to trial may be tolled as specified in {¶46} “The time within which an accused must be brought to trial, or, in the case of felony, to preliminary hearing and trial, may be extended only by the following: {¶47} “*** {¶48} “(E) Any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused; {¶49} “*** {¶50} “(H) The period of any continuance granted on the accused‘s own motion, and the period of any reasonable continuance granted other than upon the accused‘s own motion[.]” {¶51} We must, therefore, address appellant‘s tolling events under {¶52} Also, on March 17, 2009, the state of Ohio filed reciprocal discovery requests. Appellant failed to respond. Not receiving discovery from appellant, the state of Ohio again filed its reciprocal discovery requests on December 1, 2009. Appellant again failed to respond to the discovery requests. In fact, when appellant filed his motion on December 14, 2009, also the date his trial commenced, he had still failed to respond to the state‘s reciprocal discovery request. {¶53} {¶54} A criminal defendant “can hardly ignore a lawful request for information, and then claim that [he] was not timely tried caused by [his] own motions and neglect.” Chagrin Falls v. Vartola (Apr. 2, 1987), 8th Dist. Nos. 51571 and 51572, 1987 Ohio App. LEXIS 6926, at *4. {¶55} This court, in State v. Jackson, 11th Dist. No. 2007-A-0079, 2008-Ohio-6976, at ¶117, stated: {¶56} “‘(A) defendant‘s failure to respond within a reasonable time to a prosecution request for reciprocal discovery constitutes neglect that tolls the running of {¶57} Appellant has failed to allege a prima facie speedy trial violation, as he did not respond to the state‘s reciprocal discovery request. Appellant cannot ignore the state‘s request for reciprocal discovery and then allege that he was tried in an untimely manner. {¶58} In denying appellant‘s motion to dismiss for violation of his right to a speedy trial, however, the trial court failed to “determine the date by which the defendant should reasonably have responded to a reciprocal discovery request based on the totality of facts and circumstances of the case[.]” Palmer, supra, at ¶24. This court has affirmed a trial court‘s ruling that 30 days is a reasonable amount of time to respond to such a request. Jackson, supra, at ¶116. {¶59} Speedy trial time was, therefore, tolled on April 17, 2009, which is 30 days after the state filed its request for discovery on March 17, 2009. {¶60} Taking the above into account, appellant was tried within the 90-day period as prescribed by statute. Therefore, appellant‘s third assignment of error is without merit. {¶61} Under his first assignment of error, appellant argues that the kidnapping conviction pursuant to {¶62} Rape, {¶63} “(A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender *** when any of the following applies: {¶64} “(2) [T]he offender purposely compels the other person to submit by force or threat of force.” {¶65} Kidnapping, {¶66} “(A) No person, by force, threat, or deception *** shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes: {¶67} “(4) To engage in sexual activity, as defined in section 2907.01 of the Revised Code, with the victim against the victim‘s will[.]” {¶68} In addressing a claim that two or more offenses are allied offenses, trial courts are guided by Ohio‘s multiple-count statute, {¶69} “(A) Where the same conduct by [the] defendant can be construed to constitute two or more allied offenses of similar import, the indictment *** may contain counts for all such offenses, but the defendant may be convicted of only one. {¶70} “(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment *** may contain counts for all such offenses, and the defendant may be convicted of all of them.” {¶72} “In determining whether offenses are allied offenses of similar import under {¶73} In State v. Price (1979), 60 Ohio St.2d 136, at paragraph five of the syllabus, the Supreme Court of Ohio held: {¶74} “A rape conviction, pursuant to {¶75} In determining whether a separate kidnapping and rape are committed with a separate animus so as to permit punishment under {¶77} In Price, supra, the Supreme Court of Ohio determined that “the restraint and asportation of the victim necessary to substantiate the kidnapping offense were not distinct from the rape, either in time or function[.]” State v. Ware (1980), 63 Ohio St.2d 84, 86, citing Price, supra, at 143. In Price, the appellant asked the victim if she wanted to engage in sexual intercourse. Price, supra, at 136. The victim refused and returned to the car. Id. The appellant pulled the victim from the backseat of the vehicle to a nearby area where the appellant raped the victim. Id. “The force by which [the] appellant removed [the victim] from the car to behind a nearby bush to engage in sexual conduct, as required under the rape statute, is indistinguishable from the force by which [the] appellant restrained [the victim] of her liberty, as required under the kidnapping statute.” Id. at 143. {¶79} Similarly, in State v. DePina (Jan. 25, 1984), 9th Dist. No. 1283, 21 Ohio App.3d 91, the court concluded that the conduct of the appellant resulted in the commission of two separate offenses where the appellant told the victim, who he met in a bar, to accompany him outside to his vehicle so that he could retrieve money from his vehicle. Once outside, the appellant informed the victim that his vehicle was across the street. Id. at 91. Upon crossing the street, the appellant threatened her with a knife, drug her into a wooded area, and raped her vaginally. Id. The court stated, “[t]he victim was induced out of the bar by deception, then forcibly removed to a secluded area where she was raped. Under these facts there was an asportation by deception which constituted a kidnapping and which was significantly independent from the asportation incidental to the rape itself.” Id. at 92-93. {¶81} Further, appellant‘s movement of L.B. was substantial so as to demonstrate a significant event independent of the other offense. From the testimony and evidence at trial, appellant directed L.B. south and west of his home, which is located on the north side of Niles. McCracken testified that it was approximately nine miles from Cherry Street, the location of appellant‘s residence, to where he dropped off appellant after assisting them at the scene. The distance from Old Salt Springs Road is even further. {¶82} As in Ware and DePina, this case involved an act of asportation by deception which constituted kidnapping, and which was significantly independent from the asportation incidental to the rape itself. {¶83} Based on the record before us, we conclude that the offense of kidnapping was not merely incidental to the rape but, rather, was committed separately or with a separate animus. {¶84} Appellant‘s first assignment of error is without merit. {¶86} Appellant was convicted of count one, rape, a first-degree felony. Under {¶87} Appellant‘s sole argument with regard to the imposition of sentence is that it is “unreasonable in light of the factors set forth in {¶89} Appellant‘s fourth assignment of error is without merit. {¶90} For the reasons stated in this opinion, the judgment of the Trumbull County Court of Common Pleas is affirmed. DIANE V. GRENDELL, J., CYNTHIA WESTCOTT RICE, J., concur.