STATE OF OHIO v. VICTOR D. MILLIGAN
No. 98140
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 6, 2012
2012-Ohio-5736
Case No. CR-556563; Criminal Appeal from the Cuyahoga County Court of Common Pleas
RELEASED AND JOURNALIZED: December 6, 2012
ATTORNEY FOR APPELLANT
Rick L. Ferrara
2077 East 4th Street, Second Floor
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Kevin R. Filiatraut
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
MELODY J. STEWART, P.J.:
{¶1} The court found defendant Victor Milligan guilty of abduction (a lesser included offense of the original charge of kidnapping) and domestic violence in connection with an incident in which Milligan threw the victim, with whom he shared a house, on a bed and choked her because he suspected her of having an affair. The contested issues in this appeal are whether the
I
{¶2} Milligan argues that his convictions for domestic violence and abduction were against the manifest weight of evidence because his case was more credible than the state‘s case. He bases this argument on the court‘s decision to find him not guilty of two other charged offenses: rape and gross sexual imposition. In essence, he complains that having refused to believe the victim‘s allegation that he committed rape or gross sexual imposition, the court had no basis for finding her credible on the abduction and domestic violence counts.
A
{¶3} The manifest weight of the evidence standard of review requires us to review 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. State v. Otten, 33 Ohio App.3d 339, 340, 515 N.E.2d 1009 (9th Dist.1986). The use of the word “manifest” means that the trier of fact‘s decision must be plainly or obviously contrary to all of the
B
{¶4} We can quickly dispose of Milligan‘s argument that his conviction for domestic violence was against the manifest weight of the evidence. As charged under
{¶5} The evidence of choking that the court found credible was likewise credible on the abduction count. The court found Milligan guilty of abduction under
D
{¶6} Finally, Milligan purports to contest the sufficiency of evidence for both the abduction and domestic violence counts, but he does not independently argue that there was insufficient evidence of his guilt. He simply asks us to “incorporate” his weight of the evidence arguments to find insufficient evidence. We have repeatedly rejected this kind of incorporation argument as being in violation of
II
{¶7} Milligan next argues that the court abused its discretion by allowing the victim‘s mother to testify to other acts by him that “concerned” the mother. Milligan argues that this was inadmissible other acts evidence and barred by
{¶8} We need not analyze whether the court erred by admitting any of the challenged evidence or whether defense counsel was ineffective for failing to object because we find that error, if any, would have been harmless beyond a reasonable doubt.
{¶9} An error in admitting or excluding evidence in a criminal trial is considered harmless if “there is no reasonable probability that the evidence, or the exclusion of evidence, may have contributed to the accused‘s conviction.” State v. Bayless, 48 Ohio St.2d 73, 106, 357 N.E.2d 1035 (1976), vacated on other grounds, Bayless v. Ohio, 438 U.S. 911, 98 S.Ct. 3135, 57 L.Ed.2d 1155 (1978).
{¶10} As noted in our discussion of the weight of the evidence supporting the conviction for domestic violence, the photographs of the
{¶11} For the same reasons noted above, we reject Milligan‘s argument that defense counsel was ineffective because he failed to object to the victim‘s testimony about other acts of violence that Milligan committed against her. An ineffective assistance of counsel claim will lie only when it is shown both that (1) the performance of defense counsel was seriously flawed and deficient, and (2) the result of the defendant‘s trial or legal proceeding would have been different had defense counsel provided proper representation. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Even if we assume that counsel should have objected to the victim‘s other acts testimony, the outcome of trial would not have been different given the compelling photographic evidence showing that the victim had been choked.
III
{¶12} Finally, Milligan complains that the court failed to inform him at sentencing about the imposition of court costs, despite imposing them in its sentencing entry. The state concedes the error, and we agree. See State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278. We sustain this
{¶13} Judgment affirmed in part, reversed in part, and remanded to the trial court 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 Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MELODY J. STEWART, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., CONCURS;
COLLEEN CONWAY COONEY, J., CONCURS IN JUDGMENT ONLY