STATE OF OHIO, PLAINTIFF-APPELLEE, v. PAUL F. MILLER, DEFENDANT-APPELLANT.
CASE NO. 8-19-02
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
October 7, 2019
[Cite as State v. Miller, 2019-Ohio-4121.]
Appeal from Logan County Common Pleas Court Trial Court No. CR 18 02 0037 Judgment Affirmed
Joel M. Spitzer for Appellant
Alice Robinson-Bond for Appellee
{¶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
{¶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
{¶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
{¶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
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 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
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.
{¶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
{¶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
{¶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. ”
{¶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 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
{¶18} Miller was convicted of three counts of rape in violation of
(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
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 * * *.
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.
{¶19} In order to prove rape under
{¶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 * * *.”
{¶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.
{¶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.
{¶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
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
“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 (1978), 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
{¶30}
(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.
{¶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
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
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
{¶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
{¶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
{¶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
{¶37} As we previously noted, Miller was convicted of rape in violation of
[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
{¶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
{¶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
{¶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 (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.”
{¶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
{¶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
{¶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
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, 2014-Ohio-5093, ¶ 110.
{¶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.
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