Case Information
*1
[Cite as
State v. Miller
,
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111785 v. :
ROBERT MILLER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
RELEASED AND JOURNALIZED: April 6, 2023 Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-20-652565-A
Appearances:
Michael C. O’Malley, Cuyahoga Cou nty Prosecuting Attorney, and Megan Helton, Assistant Prosecuting Attorney, for appellee .
Charles A. Koenig, for appellant .
EILEEN T. GALLAGHER, J.:
Defendant- appellant, Robert Miller (“Miller”), appeals from his convictions and sentence following a bifurcated trial. He raises the following assignments of error for review:
1. Miller’s convictions for child endangering were not supported by sufficient evidence in violation of his rights under the due process clauses of the Fifth and Fourteenth Amendments to the United States
Constitution and Article I, Sections 10 and 16 of the Ohio Constitution. 2. Miller’s conviction for gross sexual imposition was not supported by the manifest weight of the evidence in violation of his rights under the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution.
3. Miller was deprived of his constitutional rights to an impartial jury, a fair trial and due process in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution, as a consequence of the failure to sever the charges against him and allowing inadmissible prior acts evidence.
4. Miller was deprived of his constitutional rights to due process in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution, as a consequence of ineffective assistance of counsel.
5. Miller’s rights under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution, and Article I, Sections 9 and 16 of the Ohio Constitution were violated by the trial court imposing a sentence that was contrary to law and unsupported by the record and by imposing sentences disproportionate to those same or similarly situated as Miller.
After careful review of the record and relevant case law, we affirm in part, reverse in part, and remand for resentencing on the allied offense of similar import.
I. Procedural and Factual History
On December 28, 2020, Miller was named in a six-count indictment, charging him with rape in violation of R.C. 2907.02(A)(1)(b), with a sexually violent predator specification (Count 1); gross sexual imposition in violation of R.C. *3 2907.05(A)(4), with a sexually violent predator specification (Count 2); gross sexual
imposition in violation of R.C. 2907.05(A)(4), with a sexually-violent-predator specification (Count 3); endangering children in violation of R.C. 2919.22(B)(3) (Count 4); endangering children in violation of R.C. 2919.22(B)(1), with a furthermore specification that “the violation resulted in serious physical harm” (Count 5); and rape in violation of R.C. 2907.02(A)(2) (Count 6). Counts 1, 2, and 3
of the indictment stemmed from allegations that Miller sexually assaulted his eldest daughter, R.M., born January 13, 1991. Counts 4 and 5 stemmed from allegations that Miller physically assaulted his youngest daughter, H.M., born June, 8, 1998. Finally, Count 6 stemmed from allegations that Miller sexually assaulted his sister-
in-law, H.D.
The matter proceeded to a bifurcated trial on June 1, 2022. Upon the agreement of the parties, the underlying offenses were tried to a jury and the sexually violent predator specifications were tried to the bench. Relevant to this appeal, the following facts were adduced at trial.
Miller and his wife, Mary Miller (“Mary”) , were married on June 3, 1989. They have four children together: R.M., H.M., Ra.M., and J.M. At trial, the state elicited substantial testimony regarding Miller’s home life, including allegations that he perpetrated physical and sexual abuse against members of his family through fear, isolation, and manipulation.
Miller’s eldest daughter, R.M. testified that Miller was “extremely violent” and had “extreme anger control issues.” (Tr. 129 -130.) She explained that *4 Miller was very strict and believed discipline was necessary to correct his children’s misbehavior. Rather than grounding his children, Miller would “line [them] up and beat [them] until someone admitted to whatever it was he thought [they] did.” (Tr.
122.) R.M. testified that Miller used various objects to facilitate his discipline, including wooden paddles, leather straps, hangers, and cords. R.M. opined that Miller’s “spare the rod, spoil the child” philosophy of parenting was premised on “[his] interpretation of the Bible and what he thought was the correct way to do things.” (Tr. 122.)
R.M. testified that Miller also engaged in a pattern of sexual abuse that began when she was a child. R.M. was frequently isolated from her siblings and forced to sleep in Miller’s bed at night when Mary was travelling for work. When R.M. was in elementary school, she awoke in the middle of the night to the feeling of Miller’s bare hand touching her vagina. (Tr. 138.) R.M. testified that she
understood Miller’s conduct was “really bad and wrong,” so she would “pretend like [she] was sleeping until it wa s over.” (Tr. 139.) R.M. stated that she never spoke to Miller about the inappropriate touching because she was “very confused” and “really scared.” (Tr. 138.) R.M. estimated that Miller touched her vagina on more than ten separate occasions. (Tr. 139.)
In addition to the foregoing incidents, R.M. testified that one night she awoke to Miller perf orming cunnilingus on her. Thereafter, Miller took R.M.’s hand and placed it on his erect penis. (Tr. 139.) The following morning, Miller “made a facial ges ture where he was sticking his tongue out and licking the air.” (Tr. 144.) *5 R.M. estimated that she was a seventh- or eighth-grade middle schooler when this incident took place.
R.M. did not understand the significance of her father’s conduct until she was much older. She first disclosed the sexual abuse to her mother when she was 17 years old. However, R.M. pleaded with Mary to not tell anyone about the abuse because R.M. “was really scared he would hurt [her] if it got out.” (Tr. 147.) R.M. testifie d that Mary “didn’t even seem to, like, react” to the disclosure. In the years that followed, R.M. told several other individuals about her sexual abuse, including her youngest sister, H.M., her childhood friend, her boyfriend, and her
youth pastor. The rest of R.M.’s family learned of Miller’s conduct during a family meeting held in 2015. Ultimately, however, R.M. did not report Miller’s conduct to the police until November 2019.
H.M. corroborated much of R.M.’s testimony regarding their father’s anger and disciplinary practices, stating that his “beatings” and “verbal abuse” w ere premised on his strict religious practices. (Tr. 213.) When H.M. was 17-years old, Miller learned that she had lied about her whereabouts and had visited a boy without permission. When H.M. arrived home later that day, Miller “took her inside and pulled out an extension cord and beat [H.M.] again and again until [her] legs were so bruised and swollen that * * * for the rest of the month [she] couldn’t wear shor ts
no matter how hot it was.” (Tr. 214.) H.M. explained that the extension cord was approximately 6 to 12 feet long and that Miller “wrapped it up” and struck her repeatedly on her lower back, legs, and middle back. (Tr. 214.) H.M. testified that *6 the i ncident “was painful” and “seemed like it went on forever.” (Tr. 214.) When asked if she observed any additional injuries as a result of the incident, H.M. responded, “ No. I guess just the embarrassment [of] thinking in was my fault having to cover the bruises no matter how hot the day was. ” (Tr. 215.)
H.M. photographed her injuries and showed them to her older sister, R.M. Although H.M. was unable to recover the images for the purposes of trial, she
expressed that the “picture of [her] legs all black and blue * * * was enough to have [R.M.] reach out to her and ask if [she] wanted to take legal action.” (Tr. 215.) R.M. corroborated much of H.M.’s testimony, stating “[H.M.] was extremely upset” and shared “pictures of the bruises all the way down * * * her butt, her legs.” (Tr. 151.) H.M. did not disclose the incident of abuse to the police until 2019. H.M. was reluctant to file a police report against Miller because she “wanted to move on with [her] life.” (Tr. 218.) Years later, however, H.M. dec ided to cooperate with the investigation against Miller because “[he] proved he is still a threat to society.” (Tr. 218-219.)
Miller’s middle daughter, Ra.M., reiterated much of the testimony of her sisters, R.M. and H.M. She confirmed that Miller often forced her oldest sister,
R.M., to sleep in his bed without any of the other children. She further testified that Miller was quick to anger and very strict. Ra.M. summarized Miller’s manner of discipline as follows:
So discipline was whenever anything happened, usually it was, like, immediate, in the moment. Like, everybody would be laughing and having a good time and something would happen and all of a sudden *7 the face of my dad would change and it would turn into him hitting us and screaming. Or if, like, he found something that was — he wanted
to know who did it, he would line us up and pick up the nearest object, whether there was a board, a stick, a hanger, whatever it was that was the closest object and start hitting us with it until someone fessed up to doing it. So we would take turns with punishment, but either it was, like, a smack in the face, a backhand or hitting just, like, with an object.
(Tr. 273-274.)
Miller’s sister -in-law, H.D., testified that she lived with Miller and Mary in 1989 and served as a live-in nanny for several years. At some point in 1996, Miller contacted H.D. at her place of employment and asked her to accompany him to lunch. H.D. agreed, stating “usually you do everything [Miller] tells you to do.” (Tr. 70.) When Miller picked H.D. up from work, he drove to his home and asked H.D. to come inside while he retrieved an item he had forgotten. H.D. testified that once she entered the home, Miller immediately “pinned her to the floor and started to take [her] clothes of f.” (Tr. 72.) Miller then forced H.D. to engage in vaginal intercourse. She explained the encounter as follows:
He started to tear my clothes off. He forced himself to have sex with me. He ripped my clothes off and I kept pushing him as hard as I could push him off of me, told him to stop and leave me alone, to get off of
me. And he just blank – blank face. He kept going. (Tr. 72.) Forensic testing performed in October 2021, confirmed that Miller is the biological father of H.D.’s eldest daughter, S.W., born July 10, 1997. H.D. maintained that S.W. was conceived during the sexual assault in 1996.
Years later, H.D. became troubled by the nature of Miller’s relationship with his daughter, R.M. H.D. was so concerned that she confronted *8 R.M., who was 14 or 15 years old at the time, and asked whether Miller had ever touched her inappropriately. R.M. “completely denied” being touched inappropriately by her father. However, H.D. believed R.M. was “lying.” (Tr. 81.) At trial, R.M. confirmed that she di d not tell H.D. about Miller’s conduct when she had the opportunity to do so. R.M. maintained that she denied H.D.’s accusation because she was young, “extremely scared,” and believed Miller was capable of
harming H.D. (Tr. 149.) Detective Richard Durst (“Det. Durst”) of the Cleveland Police Department was assigned to investigate the allegations levied against Miller. In the course of his investigation, Det. Durst interviewed R.M., H.M., Ra.M., and H.D. Det. Durst then executed a search warrant at Mille r’s home and generated a written report. Det. Durst also spoke with H.D.’s daughter, S.W., and obtained a DNA sample that confirmed that Miller was her biological father. At the conclusion of the state’s case, defense counsel moved for a dismissal of all counts pursuant to Crim.R. 29, which the trial court denied.
Miller’s nieces, Kayla Kowalski (“Kayla”) and Kimberly Kowalski (“Kimberly”) , testified on behalf of Miller. Each described their fondness for Miller and the important role he played in their childhood. Kayla and Kimberly spent significant time in Miller’s home and often observed him administer discipline to his children. They stated that Miller used a wooden paddle to whip the children, but “the rule was three swats, three whooping not hard enough to leave a mark[.]” (Tr. 350.) Kayla, in particular, was very close with R.M. during their “preteen and *9 teenage years.” (Tr. 315.). Kayla testified that she and R.M. were “together every single day” and told each other everything. (Tr. 311.) Whe n asked whether R.M. ever disclosed that she was sexually abused by her father when she and R.M. were 12 to 16 years old, Kayla responded “absolutely not.” (Tr. 317.) Kimberly similarly testified that R.M. never disclosed to her that she was sexually abused by her father. (Tr. 354.)
Mary also testified on behalf of the defense. Mary did not dispute the nature of Miller’s discipline practices or his use of objects to “administer spankings.” (Tr. 420.) However, Mary denied ever seeing Miller spank his child with a cord. Mary testified that she had private conversations with Miller when his discipline crossed the line, but that it was her duty to “submit and respect [her] husband.” (Tr. 421.) Regarding the incident when H.M. was 17-years old, Mary testified that Miller “started whipping her for not telling the truth about where she was or who she was with.” (Tr. 431.) Mary stated that H.M. sustained bruises on her legs and had a difficult time wearing pants as a result of her injuries.
Mary was aware of R.M.’s allegations of sexual abuse against Miller well before a police report was filed in 2019. Mary explained that R.M. first disclosed Miller’s inappropriate behavior when she was 16 years old. However, Mary did not report the alleged conduct beca use R.M. “begged and pleaded with [her] over and over again to * * * not say anything.” (Tr. 434.) Ultimately, Mary did not contact the authorities or otherwise disclose the allegations to anyone else out of fear of “embarrassing [R.M.] and, you know, the family[.]” (Tr. 434.)
Miller testified on his own behalf. Throughout his direct examination, Miller described his perspectives on parenting, including his duty as “the head of the household” to “correct” his children’s behavior when necessary. (Tr. 455-456.)
Miller conceded that he was strict with his children and would “spank or whoop” them with a paddle, his hand, or a belt. Miller further confirmed that there were specific occasions where he has “gotten out of hand in spanking [his] children.” (Tr. 461.) For instance, Miller testified that when H.M. was 17-years old, he believed that H.M. had been lying about her whereabouts one day, so he “whipped her” with a leather belt until she admitted that she had been with a boy from work. Miller did
n ot dispute that he was angry and went “overboard.” (Tr. 422.) However, he denied using an extension cord, and further minimized the degree of harm caused to H.M., stating that she was able to go into work later that same day.
With respect to the allega tions of sexual abuse, Miller “unequivocally” denied touching R.M. inappropriately. (Tr. 474.) He testified that he did allow his children to sleep in his bed occasionally, but that he never touched R.M.’s vagina, never performed oral sex on R.M., and never required R.M. to touch his penis. Finally, Miller conceded that he had sexual intercourse with H.D. in 1996. However, he maintained that it was a consensual encounter.
At the conclusion of trial, Miller was found guilty of gross sexual imposition, a felony of the third degree, as charged in Count 2 of the indictment; child endangering, a felony of the third degree, as charged in Counts 4 of the
indictment; and child endangering, a felony of the second degree, as charged in *11 Count 5 of the indictment. Miller was found not guilty of rape and gross sexual imposition as charged in Counts 1, 3, and 6 of the indictment. Thereafter, the trial court found Miller not guilty of the sexually violent predator specification attached to Count 2 of the indictment.
At sentencing, the trial court imposed a five-year term of imprisonment on Count 2. The trial court found the child endangering offenses
were allied offenses of similar import that merged for the purposes of sentencing. The state elected to proceed with sentencing on the second-degree felony offense charged in Count 5. The trial court, however, imposed an eight-year term of
imprisonment on the third-degree felony offense charged in Count 4. The prison terms imposed on Counts 2 and 4 were ordered to run consecutively to each other, for an aggregate 13-year prison term.
Miller now appeals from his convictions and sentence.
II. Law and Analysis A. Sufficiency of the Evidence In the first assignment of error, Miller argues his convictions for child endangering are not supported by sufficient evidence.
A sufficiency challenge requires a court to determine whether the state
has met its burden of production at trial and to consider not the credibility of the
evidence but whether, if credible, the evidence presented would sustain a conviction.
State v. Thompkins
,
Ordinarily, “[w]hen a court merges one offense into another, an
appellate court has no obligation to consider whether the merged count is supported
by the sufficiency of the evidence.”
State v. Johnson
, 8th Dist. Cuyahoga No. 106141,
limited circumstances, we deem it necessary to review the evidence supporting each child-endangering conviction.
1. Count 4 — R.C. 2919.22(B)(3)
Parents have the right to use reasonable physical discipline, or
corporal punishment, to prevent and punish a child’s misconduct.
State v. Ford
,
8th Dist. Cuyahoga No. 109087,
punishment. See State v. Liggett , 84 Ohio App. 225, 83 N.E.2d 663 (12th Dist.1948).
Pursuant to R.C. 2919.22(B)(3): No person shall do any of the following to a child under eighteen years of age * * * [a]dminister corporal punishment or other physical disciplinary measure, or physically restrain the child in a cruel manner or for a prolonged period, which punishment, discipline, or restraint is excessive under the circumstances and creates a substantial risk of serious physical harm to the child[.]
The culpable mental state for endangering children is recklessness.
State v. Adams
,
with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person’s conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist.
R.C. 2901.22(C).
R.C. 2919.22(B)(3) does not require the state to prove that the child suffered serious physical harm. Instead, the statute requires the state to prove that the conduct at issue created “a substantial risk of serious physical harm to the child.” Thus, to obtain a conviction on Count 4, the state was not required to prove that Miller’s conduct in fact caused the child to suffer serious physical harm, but only to
show that Miller’s conduct created a substantial risk of serious physical harm.
In re
Kristen V
., 6th Dist. Ottawa No. OT-07-031,
No. 78241, 2001 Ohio App. LEXIS 2562 (June 7, 2001) (stating that “the jury’s finding that [defendant] committed the offense of endangering children is not inconsistent with its further finding that [defendant] did not cause serious physical harm to [the child]. ”).
A “substantial risk” is defined as “a strong possibility, as contrasted with a remote or significant possibility, that a certain result may occur or that certain circumstanc es may exist.” R.C. 2901.01(A)(8). In turn, “serious physical harm to persons” is defined to include any of the following:
(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment; (b) Any physical harm that carries a substantial risk of death; (c) Any physical harm that involves some permanent incapacity whether partial or total, or that involves some temporary, substantial incapacity;
(d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement; (e) Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.
R.C. 2901.01(A)(5).
The reasonableness of corporal punishment in each case must be
evaluated in light of all the relevant facts and circumstances, including “the child’s
age, the child’s behavior that led to the parent’s action, the child’s response to
*16
noncorporal punishment, and the location and severity of the punishment,” as well
as “the parent’s state of mind while administering the discipline.”
Ford
, 8th Dist.
Cuyahoga No. 109087,
Viewing the evidence in a light most favorable to the prosecution, we find a rational trier of fact could have found the essential elements of R.C.
2919.22(B)(3) proven beyond a reasonable doubt. In this case, H.M. testified that when she was 17-years old, Miller struck her repeatedly with an extension cord after he learned that she had lied about spending time with a boy. H.M. testified that her father’s method of discipline “seemed like it went on forever” and caused extensive bruising on her lower body. H.M. testified that her legs “were so b ruised and swollen” that she could not wear shorts for a month and had trouble sitting. R.M. corroborated the extent of H.M.’s injuries, stating that H.M. had “very dark bruises all the way down * * * her butt, her legs.” (Tr. 151.) Miller himself admit ted that he went “overboard” by “whipping” H.M. until she “broke down” and told him the truth. (Tr. 470.) Miller further confirmed that he left markings on H.M. and was not proud of his conduct. (Tr. 471, 487.)
Under the foregoing circumstances, we find the jury could have reasonably concluded that Miller’s discipline of H.M. was violent, unreasonable, and
excessive, in that Miller created a substantial risk of serious physical harm to H.M.
by disregarding the unjustifiable risk associated with striking a teenage girl
repeatedly with an extension cord.
See State v. Jackson
, 8th Dist. Cuyahoga No.
82724,
2. Count 5 — R.C. 2919.22(B)(1)
Pursuant to R.C. 2919.22(B)(1), “[n]o person shall do any of the
following to a child under eighteen years of age * * * abuse the child.” Thus, to
support a conviction under R .C. 2919.22(B)(1), ‘“the state must prove, beyond a
reasonable doubt: (1) that the child is under eighteen years of age * * *, (2) an
affirmative act of abuse, and (3) which was reckless, that is perpetrated with
heedless indifference to the consequences o f the action.’”
State v. Hickman
, 8th
Dist. Cuyahoga No. 99442,
child.” R.C. 2919.22(E)(2)(d).
The word “abuse” is not defined by the criminal statutes.
State v.
Litton
, 12th Dist. Preble No. CA2016-04-005,
105521,
In this case, there is no dispute that H.M. was under 18 years of age at the time of the incident. Moreover, we reiterate that H.M.’s testimony, if believed, permitted the jury to reasonably conclude that Miller abused his 17-year-old daughter by engaging in a method of discipline that was excessive under the circumstances and recklessly created, at the very least, a substantial risk of serious
harm to the physical health or safety of H.M. Thus, the evidence was sufficient to satisfy the elements of R.C. 2919.22(B)(1).
Regarding the furthermore clause, however, Miller argues that “the results of the whipping he administered did not cau se ‘serious physical harm’ to H.M.” Miller states that there is no evidence that H.M. sustained (1) some permanent or temporary incapacity; (2) some permanent disfigurement or temporary, serious disfigurement; or (3) acute pain of such duration as to result in substantial suffering or prolonged or intractable pain.
When an element of a statute raises the degree of an offense, that
element becomes an essential element of the offense.
See State v. Allen
, 29 Ohio
St.3d 53, 54,
the effect of a prior OVI conviction, concluded that “the fact of a prior conviction did not simply enhance the penalty. It transformed the crime itself by increasing its degree. In such a case, the prior conviction is an essential element of the crime and must be proved by the state.” Id . In this case, the furthermore clause attached to Count 5 elevated the degree of the offense from a misdemeanor of the first degree to a felony of the second degree. R.C. 2919.22(E)(2)(a) and (d). Thus, the furthermore clause was an essential element of the crime that required the state to prove beyond a reasonable doubt that Miller’s violation of R.C. 2919.22(B)(1) “result[ed] in serious physical harm to the child involve d.” R.C. 2919.22(E)(2)(d). As previously discussed, to demonstrate serious physical harm, the state must establish one of the factors in R.C. 2901.01(A)(5)(a)-(e), such as permanent incapacity, temporary substantial incapacity, permanent disfigurement, temporary, serious disfigurement, acute pain of such duration as to result in substantial suffering, or any harm that results in prolonged pain.
Relevant to this appeal, Ohio courts have found the following evidence sufficient to constitute temporary, substantial incapacity under R.C. 2901.01(A)(5)(c): the loss of consciousness; the inability to work; diminished vision;
the need for two knee surgeries, a knee immobilizer, and physical therapy; and a *20 five-day hospital stay. See, e.g., State v. Chambers , 8th Dist. Cuyahoga No. 99864,
Regarding R.C. 2901.01(A)(5)(d), courts have recognized that
“[u]nder certain circumstances, bruising can constitute serious physical harm
because a bruise may satisfy the statutory requirement for temporary serious
disfigurement.”
State v. Crossty
, 1st Dist. Hamilton No. C-170085, 2017-Ohio-
8382, ¶ 23, citing
State v. Jarrell
, 4th Dist. Scioto No. 08CA3250,
Finally, regarding the type of pain contemplated by R.C.
2901.01(A)(5)(e), this court has looked to the Committee Comment of the statute for
*21
clarity.
See In re D.C
., 8th Dist. Cuyahoga No. 111418,
to relieve, though not as keen.”
State v. Sharp
, 8th Dist. Cuyahoga No. 87709, 2006-
Ohio- 6413, ¶ 25. “Hence, the definition of ‘serious physical harm’ can be said to
encompass either int ense pain of short duration or prolonged, dull pain.”
State v.
White
, 8th Dist. Cuyahoga No. 92972,
In challenging the evidence supporting the finding of serious physical harm in this case, Miller relies on this court’s decisions in State v. Ivey , 98 Ohio
App.3d 249, 257, 648 N.E.2d 519 (8th Dist.1994),
State v. Snyder
, 8th Dist.
Cuyahoga No. 94755,
In Ivey , a father whipped his ten-year-old son with a belt for not telling him about a detention at school and the child suffered bruises and welts on
his buttocks and legs. The father was convicted of multiple counts of endangering children. This court reversed, concluding that the state failed to prove by sufficient evidence that the parent’s whipping resulted in serious physical harm or created a substantial risk of serious physical harm to the child.
In Snyder , this court found that significant bruising on a two-year- old’s body was not sufficient evid ence of serious physical harm. The toddler was disciplined for a potty-training accident; her father hit her on the rear multiple times, enough to cause “excessive bruising.” Id . at ¶ 19. The toddler was taken to *22 the hospital but released without any treatment. While this court referred to the father’s actions in this case as “excessive punishment,” it was determined that serious physical harm did not result from the incident. Id . at ¶ 20.
In Crenshaw , the defendant was charged and convicted of endangering children in violation of R.C. 2919.22(B)(1), following an incident where the defendant disciplined her nine-year-old daughter, D.T., for using the defendant’s hair dye without permission and making a mess with slime. The defendant “became enraged” an d hit D.T. in the head with a kitchen spoon, pushed her head into a wall, and struck her legs with an extension cord three times. Id . at
¶ 2. D.T. sustained multiple bruises on her upper right arm and both legs. D.T. also had a bruise and a five-centimeter bump on her forehead. D.T. complained of pain the following day at school and was unable to sleep because of the pain.
While recogniz ing that the defendant “clearly lost control and struck D.T. out of anger,” this court vacated the defendant’s endangering children conviction, finding the state did not present sufficient evidence to prove that D.T. suffered serious physical harm. Id . at ¶ 42. This court explained, in pertinent part:
Here, a child suffered bruising and a bump on her head. We do not seek to minimize the pain that D.T. suffered, but the fact remains that her injuries only amounted to bruising and a bump. She did complain
of not being able to sleep as a result of the pain the night after the incident. However, a few days later, she only described the pain as a two out of ten. The doctor only administered Tylenol, an over-the- counter pain medication. She did not require any follow-up care. D.T.’s father did not even give her any Tylenol in the days after the hospital visit. While this is certainly evidence of physical harm, the state did not present sufficient evidence of serious physical harm such that we can uphold a conviction under R.C. 2919.22(B)(1).
Id . at ¶ 50.
In contrast, the state argues that this case is more analogous to the
decisions reached by this court in
State v. Wright
, 8th Dist. Cuyahoga No. 92594,
Plemmons-Greene
, 8th Dist. Cuyahoga No. 92267,
In Wright , the defendant whipped his girlfriend’s eight -year-old daughter, V.W., with an extension cord as punishment for her misbehavior at school. The child had bruising and numerous welts on her legs, arms, back, and chest. V.W. reported being in pain the day after the incident and had visible scars at the time of trial. Viewing this evidence in a light most favorable to the state, this
court affirmed the defendant’s child -endangering convictions, finding the evidence was “sufficient to establish that the offense resulted in serious physical harm.” Id . at ¶ 46.
In Kurtz , the victim was attacked at her place of employment by the defendant. The victim testified that the defendant “punched her ‘really hard in t he vagina,’ ‘tried to bite her nipples off,’ and ‘took his belt off and whipped [her] butt with it.’” Kurtz , 8th Dist. Cuyahoga No. 99103, 2013-Ohio- 2999, at ¶ 6. The victim’s
injuries were photographed and extensively documented by medical personnel. The pictures entered into evidence at trial showed extensive welts across the majority of *24 the victim’s buttocks and back, bite marks on her chest and buttock, redness across her chest, and bruising. Based on this evidence, this court affirmed the defendant ’s felonious assault conviction, finding “the victim’s injuries amounted to a substantial, temporary disfigurement and, therefore, met the element of serious physical harm.”
Id . at ¶ 21.
In
Sandridge
, the defendant physically assaulted his then girlfriend by
grabbing her, choking her, and sticking his fingers down her throat. As a result of
the incident, the victim “suffered a laceration to her lip,” “her neck was swollen and
bruised,” “she had a sore throat,” and “she was unable to eat solid foods for th ree
weeks.”
Id
., 8th Dist. Cuyahoga No. 87321,
result of the defendant’s assault.” Id .
In
Plemmons-Greene
, the defendant physically attacked her
granddaughter. The victim testified that the defendant pushed her on the bed,
punched her, kneed her, choked her with her necklace, and punched her in the eye.
As a result of the defendant’ s attack, the victim suffered a black eye, the entire right
side of her face was swollen and bruised, her neck was scratched and sore, and she
*25
had bruises all over her thighs and buttocks. The victim also sustained a potentially
permanent injury to her right eye and was prescribed medication for her pain. This
court affirmed the defendant’s domestic -abuse convictions, finding that the
defendant recklessly caused the victim serious physical harm.
Id
., 8th Dist.
Cuyahoga No. 92267,
In
Simmons
, the defendant physically assaulted his girlfriend. The
defendant struck the victim in the face, knocked her down, then dragged her into
their apartment where he beat and choked her until she became unconscious. As a
result of the altercation, the victim suffered “ severe swelling and bruising in and
around [her] left eye.”
Id
. at 8th Dist. Cuyahoga No. 96208,
Finally, in Barbee , the victim was robbed and struck in the head by the defendant’s accomplice. The victim went to the hospital the next day because of pain and tenderness in the area where she had been hit. She sustained a bruise on the back of her neck that was “approximately three to four inches in length and approximately, maybe two inches in width ***.” Barbee , 8th Dist. Cuyahoga No. 82868, 2004-Ohio- 3126, at ¶ 60. The bruise was visible approximately four days *26 after the assault. This court affirmed the defendant’s aggravated robbery conviction, finding “the state proved [the victim] suffered serious physical harm.” Id .
The foregoing discussion illustrates th at although the term “serious
physical harm” is defined by statute, “[t]he degree of harm that rises to the level of
‘serious’ physical harm is not an exact science, particularly when the definition
includes such terms as ‘substantial,’ ‘temporary,’ ‘acute,’ and ‘prolonged.’”
State v.
Irwin
, 7th Dist. Mahoning No. 06MA20,
medical attention or counseling after the altercation. Additionally, there is no
evidence that H.M. was substantially restricted by her injuries or associated pain.
To the contrary, H.M. was able to work shortly after being disciplined without
*27
incident. Consistent with the circumstances presented in
Ivey
,
Snyder
, and
Crenshaw
, H.M.’s injuries, while troubling, did not result in temporary substantial
incapacity, temporary serious disfigurement, or intense pain. Thus, we are
unpersuaded by the cases relied on by the state, which involved substantial and
lasting physical injuries that are well beyond the bruising described in this case.
We do not intend to diminish the significance of Miller’s conduct, or
the consequences associated with his reckless behavior. As discu ssed, Miller’s
discipline of H.M. was reckless, excessive, and subjected H.M. to a substantial risk
of serious physical harm. He was rightfully charged and convicted for this conduct.
Nevertheless, under the specific facts of this case, we are compelled to follow the
precedent of this court and find H.M.’s “ bruising” did not constitute serious physical
harm. In many aspects, the nature of the incident and the degree of the harm caused
were not as significant as those presented in
Ivey
,
endangering in violation of R.C. 2919.22(B)(1) must be modified to reflect the lesser
degree on which conviction was appropriate, i.e., a misdemeanor of the first degree.
R.C. 2945.79(D).
See also State v. Goins
, 8th Dist. Cuyahoga No. 109497, 2021-
Ohio-1299, ¶ 28
; State v. Mallory
, 8th Dist. Cuyahoga No. 111115,
The first assignment of error is overruled in part, sustained in part. B. Manifest Weight of the Evidence In the second assignment of error, Miller argues his conviction for gross sexual imposition is against the manifest weight of the evidence. While acknowledging that “the instant case poses a difficult hurdle for [him] to prevail on
a manifest weight of the evidence error,” Miller nonetheless contends that “ the lack of evidence corroborating [R.M.]’s accusations with respect to Count 2 must create the same level of reasonable doubt the jurors found with respect to Counts 1 and 3.” Miller does not challenge the weight of the evidence supporting his child endangering convictions.
In contrast to a sufficiency argument, a manifest weight challenge
questions whether the state met its burden of persuasion.
State v. Bowden
, 8th Dist.
Cuyahoga No. 92266,
N.E.2d 717 (1st Dist.1983). Reversal on manifest weight grounds is reserved for the “‘exceptional case in which the evidence weighs heavily against the conviction.’” Id . at 387, quoting Martin at 175.
In addition, a trier of fact is free to believe all, some, or none of the
testimony of each witness testifying at trial.
State v. Jones
, 8th Dist. Cuyahoga No.
108371,
such inconsistencies do not render defendant’s conviction against the manifest
weight or sufficiency of the evidence.”’ ), quoting
State v. Nivens
, 10th Dist. Franklin
No. 95APA09-1236,
As stated, Miller was convicted of gross sexual imposition in violation of R.C. 2907.05(A)(4). The statute provides that “[n]o person shall have sexual contact with another, not the spouse of the offender” when the other person “is less than thirteen years of age, whether or not the offender knows the age of that person.”
“‘Sexual contact’ means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either
person.” R.C. 2907.01(B). In determining whether sexual contact occurred, “‘there
is no requirement that there be direct testimony regarding sexual arousal or
gratification.’”
In re D.W
., 8th Dist. Cuyahoga No. 110960,
purpose of the contact may be inferred from the type, nature, and circumstances of
the contact.’”
In re D.W
. at ¶ 23, quoting
State v. Fears
, 8th Dist. Cuyahoga No.
104868,
In thi s case, Count 2 of the indictment stemmed from R.M.’s allegation that Miller touched her vagina with his bare hand in the middle of the night when she was in elementary school. In challenging the state’s burden of persuasion, Miller *31 first suggests that his gross-sexual-imposition conviction is against the manifest weight because the jury found him not guilty of the rape and gross-sexual- imposition offenses charged in Counts 1 and 3 of the indictment. Miller “respectfully submits that the lack of any evidence corroborating [R.M.’s] accusations with respect to Count 2 must create the same level of reasonable doubt the jurors found with res pect to Counts 1 and 3.”
We find no merit to Miller’s position. As this court has explained: Juries can reach inconsistent verdicts for any number of reasons, including mistake, compromise, and leniency. * * * [I]t would be incongruous for a defendant to accept the benefits of an inconsistent verdict without also being required to accept the burden of such verdicts.
State v. Wells
, 8th Dist. Cuyahoga No. 109787,
Norman
, 10th Dist. Franklin No. 10AP-680,
We further reject Miller ’ s assertion that his conviction is against the
manifest weight of the evidence due to the lack of corroborating physical evidence
or eyewitness testimony. It is well- settled that a “conviction may rest solely on the
testimony of a single witness, if belie ved, and there is no requirement that a witness’
testimony be corroborated to be believed.”
See, e.g., State v. Flores-Santiago
, 8th
Dist. Cuyahoga No. 108458,
sleep in his bed when their mother was away from the household.
Viewing the record in its entirety, we find no basis to conclude that 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. In this case, R.M.’s testimony concerning Miller’s conduct was consistent and sufficiently detailed. R.M., who was under the age of 13 at the time of the incidents, testified that Miller intentionally touched the outside of her vagina with his hand on numerous occasions in the middle of the night. She clarified that “[Miller’s] hand would be inside of [her] underwear rubbing and moving around the outside” of her vagina. (Tr. 138.) R .M. further recalled her emotional reaction to Miller’s conduct, stating that she was “scared,” and “very confused.” R.M. explained that she knew it “was
really, really bad and wrong,” and that she would pretend to be asleep in an effort to dissuade Mille r’s conduct.
Although R.M. was reluctant to make a formal complaint against Miller until 2019, she explained that she did not fully comprehend the nature of Miller’s conduct until she was much older. By that time, R.M. was embarrassed to share her experiences publicly and was worried Miller would cause her further harm if she went to the authorities. R.M. further addressed her reluctance to tell H.D. the
truth about Miller’s conduct when provided an opportunity to do so. The jury was presented with all pertinent information regarding R.M.’s delayed police report and
was in the best position to weigh the credibility of her testimony and her accounting of Miller’s conduct. Under these circumstances, we find Miller’s conviction for gross sexual imposition is not against the manifest weight of the evidence.
The second assignment of error is overruled.
C. Joinder of Charges
In the third assignment of error, Miller argues the trial court committed reversible error by failing to sever the charges against him and by admitting evidence of prior bad acts. Miller contends that he was unduly prejudiced by the state’s decision to indict him “on separate and disparate offenses in one charging instrument and joining those offenses in one trial.”
Under Crim.R. 8(A ), “[t]wo or more offenses may be charged in the
same indictment * * * if the offenses charged * * * are based on two or more acts or
transactions connected together or constituting parts of a common scheme or plan,
*34
or are part of a course of criminal cond uct.” The Ohio Supreme Court has held that
joinder “is liberally permitted to conserve judicial resources, reduce the chance of
incongruous results in successive trials, and diminish the inconvenience to the
witnesses.”
State v. Schaim
,
Crim.R. 14 allows for severance of properly joined offenses if the defendant can show prejudice. “If it appears that a defendant * * * is prejudiced by * * * joinder for trial together of indictments * * *, the court shall order * * * separate
trial[s] of [the] counts * * *.”
Id
. “The defendant * * * bears the burden of proving
prejudice and of proving that the trial court abused its discretion in denying
severance.”
State v. Brinkley
,
The state can refute a defendant’s claim of prejudice by joinder of multiple offenses in two ways (1) a showing that the evidence of each crime is simple and direct (the “joinder test”) , or (2) evidence of the other crimes would be
admissible even if the counts were severed (the “other acts” test).
State v. Lott
, 51
Ohio St.3d 160, 163, 555 N.E.2d 293 (1990). When the evidence is “simple and
direct,” an accused is not prejudiced by joinder regardl ess of the nonadmissibility of
evidence of the crimes as other acts under Evid.R. 404(B).
Id.
Thus, if the state can
meet the requirements of the “joinder test,” it need not meet the requirements of the
*35
stricter “other acts test.”
State v. Peterson
, 8th Dist. Cuyahoga Nos. 100897 and
100899,
“Simple and direct” evidence means the evidence of each crime is “so
clearly separate and distinct as to prevent the jury from considering evidence of [one
crime] as corroborative as the other.”
State v. Belle
, 8th Dist. Cuyahoga Nos. 107046
and 107300,
Dist.).
The object of the “simple and direct” test is to p revent the jury from
improperly considering evidence of various crimes as corroborative of each other.
State v. Echols
,
fashion as to the separate offenses or victims without significant overlap or
conflation of proof.”
State v. Echols
, 8th Dist. Cuyahoga No. 102504, 2015-Ohio-
5138, ¶ 16, citing
State v. Lewis
, 6th Dist. Lucas Nos. L-09-1224 and L-09-1225,
Generally, “[w]e review the trial court’s ruling on joinder for an abuse
of discretion.”
State v. Lee
, 8th Dist. Cuyahoga No. 104682,
affects substantial rights only if it ‘affected the outcome of the trial.’”
Id
., quoting
State v. Barnes
,
After careful consideration, we find the allegations levied against Miller relied on evidence that was sufficiently simple and direct. In this case, there is nothing in the record to suggest the jury was confused by the evidence or was improperly influenced by the cumulative effect of the joinder. Although the victims named in the indictment were members of Miller’s family, the alleged conduct was separated in time and involved unrelated facts and circumstances. The evidence supporting each offense was distinct and uncomplicated, and the state’s witnesses discussed the evidence relating to each victim separately, succinctly, and without
significant overlap or conflation of proof. Viewed in its entirety, there was little *37 danger that the jury would confuse the evidence or improperly consider the evidence of each victim’s accusations as corroborative of the others. Indeed, the jury found
Miller not guilty of Counts 1, 3, and 6, thereby demonstrating their ability to consider
the offenses independently and readily segregate the evidence supporting each
charge.
See State v. Bonneau
, 8th Dist. Cuyahoga No. 97565,
Pursuant to Evid.R. 404(B), “[e]vidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show action in
conformity therewith.” In general, “[e]vidence that [a defendant] committed a
*38
crime other than the one for which he is on trial is not admissible when its sole
purpose is to show the accused’s propensity or inclination to commit crime or that
he acted in conformity with bad character.”
State v. Williams
,
wrongs, or acts may be admissible “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Evid.R. 404(B).
To determine whether other-acts evidence is admissible, the court conducts a three-step analysis (1) the court considers whether the other-acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence (Evid.R. 401); (2) the court considers whether evidence of the other crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other acts evidence is presented for a legitimate
purpose, such as those stated in Evid.R. 404(B); and (3) finally, the court considers whether the probative value of the other-acts evidence is substantially outweighed by the danger of unfair prejudice. Williams at ¶ 20.
The admissibility of other-acts evidence pursuant to Evid.R. 404(B) is
a question of law.
State v. Hartman
, 161 Ohio St.3d 214,
In this case, the state asked R.M., H.M., and Ra.M. to explain the nature of Miller’s parenting philosoph y, including his personal beliefs about discipline, his methods of punishment, and his potential triggers. In doing so, R.M., H.M., and Ra.M. were each questioned about Miller’s temper and specific instances of discipline in the household. For example, R.M. described an incident where Miller “beat” her and Ra.M. after he learned that R.M. was dating a boy behind her parents ’ back. They further described separate instances where Miller had beaten
them over “little things,” including an incident where Ra.M . placed a sticker on a desk, an incident where a piece of tile was broken, and an incident where a child had taken a doughnut without asking. (Tr. 125-126, 210.)
Viewing the record in its entirety, we cannot say the trial court committed plain error by p ermitting the state to explore Miller’s parenting philosophy and examples of his strict discipline during its case-in-chief. In this case, Miller was questioned extensively about his relationship with his children and his perspectives on parenting. Miller openly discussed his methods of discipline and his use of a belt or paddle to whip his children. He further admitted to going overboard with his discipline in the past. Thus, even if this court were to construe
the testimony about uncharged acts of discipline as inadmissible other-acts evidence, we are unable to conclude that, but for the challenged testimony, the outcome of Miller’s trial clearly would have been different.
We further note that the jury, as the trier of fact, was “entitled to know
the ‘setting’ of a case. It cannot be expected to make its decision in a void — without
knowledge of the time, place and circumstances of the acts which form the basis of
the charge.’”
State v. Wilkinson
,
The third assignment of error is overruled.
D. Ineffective Assistance of Counsel In the fourth assignment of error, Miller argues defense counsel rendered ineffective assistance of counsel by (1) failing to move for a severance of the charges, and (2) failing to object to the state’s introduction of impermissible evidence in violation of Evid.R. 404(B).
To establish ineffective assistance of counsel, the defendant must
demonstrate that counsel’s performance fell below an objective standard of
reasonable representation and that he or she was prejudiced by that deficient
performance.
Strickland v. Washington
,
L.Ed.2d 674 (1984). Prejudice is established when the defendant demonstrates “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id . at 694.
Based on our resolution of the previous assignments of error, Miller cannot establish a claim for ineffective assistance of counsel. Had defense counsel filed a motion to sever pursuant to Crim.R. 14 or raised a timely objection to the alleged other-acts evidence, the motion to sever would have been denied and the
evidentiary objection would have been overruled. Moreover, we cannot say the outcome of Miller’s trial would have been different had defense counsel raised the issue of joinder or otherwise challenged the allegedly inadmissible testimony. Miller, therefore, has failed to establish counsel’s deficient performance or resulting
prejudice.
The fourth assignment of error is overruled.
E. Felony Sentencing
In the fifth assignment of error, Miller argues the trial court erred by imposing a sentence that was contrary to law on Count 4 “as it exceeded the term permitted by statute. ” Miller further argues the trial court failed to make the necessary findings to impose consecutive sentences pursuant to R.C. 2929.14(C)(4).
When reviewing felony sentences, appellate courts must apply the
standard of review set forth in R.C. 2953.08(G)(2).
State v. Marcum
, 146 Ohio St.3d
516,
A criminal “sentence is a penalty or combination of penalties
imposed on a defendant as punishment for the offense he or she is found guilty of
committing.”
State v. Harris
,
Burns
,
Ohio-1878,
In this case, the trial court sentenced Miller to terms of imprisonment on the third-degree felony offenses of gross sexual imposition (Count 2) and child endangering (Count 4). Miller does not challenge the five-year prison sentence imposed on Count 2. Miller limits his sentencing argument to the eight- year term of imprisonment imposed on Count 4. He contends that the sentence
exceeded the applicable statutory range for third-degree felonies.
R.C. 2929.14(A)(3) sets forth the applicable sentencing ranges for third-degree felony offenses. The statute provides, in pertinent part:
For a felony of the third degree that is not an offense for which division (A)(3)(a) of this section applies, the prison term shall be a definite term of nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.
R.C. 2929.14(A)(3)(b). In this case, the child-endangering offense charged in Count 4 is not an offense for which R.C. 2929.14(A)(3)(a) applies. Accordingly, the maximum term of imprisonment Miller faced on Count 4 was 36 months.
After careful consideration, we agree with Miller’s contention that the sentence imposed on Count 4 is clearly and convincingly contrary to law. The eight-year prison term is well beyond the permissible statutory range for third-
degree felony offenses. In reaching this conclusion, we are cognizant that the trial court’s failure to comply with the mand ates of R.C. 2929.14(A)(3) was not premised on a misinterpretation of the statute or the applicable sentencing range for third- degree felonies. Rather, the sentencing error was associated with the court’s decision to proceed with sentencing on Count 4 as opposed to Count 5.
It is well settled that “if the defendant has been found guilty of allied
offenses, the trial court must direct the prosecutor to elect an offense to pursue for
sentencing, and then impose a sentence that is appropriate for the state’s chosen
offense.”
State v. Berry
, 6th Dist. Lucas No. L-19-1275,
intent of R.C. 2945.21 is “clear that it is the state that chooses which of th e allied offenses to pursue at sentencing * * *”; “[w]hen the state elects which of the two allied offenses to seek sentencing for, the court must accept the state’s choice and merge the crimes into a single conviction for sentencing * * * and impose a sentence that is appropriate for the merged offense.” (Internal citation omitted.)).
In this case, the trial court determined that the child-endangering offenses were allied offenses of similar import and the state elected to proceed with sentencing on the higher felony offense charged in Count 5 of the indictment.
Despite the state’s request, however, the trial court unambiguously sentenced M iller
*45
to eight years in prison on Count 4 and incorporated its sentence on the third-degree
felony offense into the sentencing journal entry. Because the trial court was required
to accept the state’s election to proceed with sentencing on Count 5, we fin d the trial
court committed reversible error by imposing a sentence on the lesser-degree felony
offense in Count 4.
See State v. Workman
, 8th Dist. Cuyahoga No. 93998, 2010-
Ohio-4891, ¶ 23- 27 (rejecting the defendant’s assertion that the trial court has t he
discretion to “override the state’s election” on which allied offense to pursue at
sentencing);
State v. Martin
, 9th Dist. Summit No. 28563,
supported the elevation of Count 5 to a felony of the second degree.
The fifth assignment of error is sustained. Miller’s arguments concerning the court’s compliance with R.C. 2929.14(C)(4) are rendered moot by our resolution of this assigned error. Judgment affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share the costs herein taxed. The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
ANITA LASTER MAYS, A.J., and
MICHELLE J. SHEEHAN, J., CONCUR