[Cite as State v. Miller, 2019-Ohio-4121.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

LOGAN COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 8-19-02 

 v. 

PAUL F. MILLER, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Logan County Common Pleas Court 

Trial Court No. CR 18 02 0037 

Judgment Affirmed 

Date of Decision: October 7, 2019 

 

APPEARANCES: 

 

Joel M. Spitzer for Appellant 

 Alice Robinson-Bond for Appellee 
Case No. 8-19-02 

-2- 

ZIMMERMAN, P.J. 

{¶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 R.C. 2907.05(A)(4), (C)(2), third-degree felonies; Count 

Six of gross sexual imposition in violation of R.C. 2907.05(A)(1), (C)(1), a fourthdegree felony; and Count Seven of gross sexual imposition in violation of 

2907.05(A)(5), (C)(1), a fourth-degree felony. (Doc. No. 1). Miller appeared for 

arraignment and entered pleas of not guilty to all counts of the indictment on 

February 16, 2018. (Doc. No. 11). 

{¶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 R.C. 2907.05(A)(4), (C)(2), third-degree felonies; Counts 
Case No. 8-19-02 

-3- 

Three, Five, Seven, and Nine of rape in violation of R.C. 2907.02(A)(1)(b), (B), 

first-degree felonies; Count Ten of gross sexual imposition in violation of R.C. 

2907.05(A)(1), (C)(1), a fourth-degree felony; and Count Eleven of rape in violation 

of R.C. 2907.02(A)(1)(c), (B), a first-degree felony. (Doc. No. 49). Counts Three, 

Five, Seven, and Nine included the specification that “the victim was less than ten 

years of age.” (Id.). Miller appeared for arraignment on July 13, 2018 and entered 

pleas of not guilty to the new indictment. (Doc. No. 57). 

{¶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 
Case No. 8-19-02 

-4- 

Eleven. (Id.). The trial court ordered Miller to serve consecutively the prison terms 

imposed under Counts Three, Five, and Seven. (Id.) Further, the prison terms 

imposed as to Counts One, Nine, and Eleven were ordered to be served concurrently

to the consecutive terms imposed as to Counts Three, Five, and Seven for an 

aggregate sentence of life in prison with the possibility of parole after serving 45 

years. (Id.). The trial court also classified Miller as a Tier III sex offender. (Doc. 

Nos. 111, 112). The trial court filed its judgment entries of sentence and sexoffender classification on December 19, 2018. (Id.); (Id.). 

{¶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 
Case No. 8-19-02 

-5- 

of the evidence.1

 In particular, in his first assignment of error, Miller contends that 

his gross-sexual-imposition and rape convictions as to Counts Ten and Eleven 

(involving the victim, A.W.) are based on insufficient evidence.2

 In his second 

assignment of error, Miller specifically argues that his rape convictions under 

Counts Three, Five, Seven, Nine, and Eleven are against the manifest weight of the 

evidence. 

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 

 

1

 Notwithstanding the captions of Miller’s first and second assignments of error, Miller includes arguments 

relative to only his rape and gross-sexual-imposition convictions as to Counts Ten and Eleven, respectively, 

under his first assignment of error and to only his rape convictions under his second assignment of error. 

Because Miller failed to articulate his reasons (with citations to the authorities, statutes, or parts of the record 

on which he relies) in support of the contention that his rape and gross-sexual-imposition convictions under 

Counts One through Nine, respectively, are based on insufficient evidence or in support of contention that 

his gross-sexual-imposition convictions under Counts One, Two, Four, Six, Eight, and Ten are against the 

manifest weight of the evidence, we decline to address those arguments. See State v. Carpenter, 3d Dist. No. 

13-18-16, 2019-Ohio-58, ¶ 31, fn. 5; App.R. 12(A)(2) and 16(A)(7). 

2

 Although Miller states (under his first assignment of error) that “no evidence was presented indicating and 

meeting the time frame alleged in the indictment as to either victim,” the balance of Miller’s argument 

challenges the sufficiency of the evidence presented concerning only A.W. (Appellant’s Brief at 4). Because 

Miller failed to include reasons, including citations to the authorities, statutes, or parts of the record on which 

he contends supports his challenge to the sufficiency of the evidence presented concerning C.C., we decline 

to address those arguments. See Carpenter at ¶ 31, fn. 5; App.R. 12(A)(2) and 16(A)(7). 
Case No. 8-19-02 

-6- 

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 
Case No. 8-19-02 

-7- 

to the weight of the evidence and the credibility of the witnesses. State v. DeHass, 

10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard, 

“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the 

conviction,’ should an appellate court overturn the trial court’s judgment.” State v. 

Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. 

Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119. 

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. 
Case No. 8-19-02 

-8- 

4.3

 See State v. Henderson, 7th Dist. Mahoning No. 15 MA 0137, 2018-Ohio-5123, 

¶ 9 (“Courts have held, in merged offense cases, where there is sufficient evidence 

supporting the conviction of the state’s elected offense for sentencing, it is harmless 

error if there was insufficient evidence to support the offenses that merged with the 

elected offense.”), citing State v. Worley, 8th Dist. Cuyahoga No. 103105, 2016-

Ohio-2722, ¶ 23, citing Powell at 263 (concluding that “[e]ven if evidence of 

kidnapping by restraint was insufficient to support conviction, the fact that the 

kidnapping by removal was based on sufficient evidence and merged with the 

kidnapping by restraint count means any error with the conviction was harmless 

beyond a reasonable doubt”), and citing Croom at ¶ 60-61 (“The Supreme Court has 

concluded that, even if there is insufficient evidence to support one count, where 

that count has been merged with another count, the error in rendering a verdict on 

that count is harmless beyond a reasonable doubt.”), citing Powell at 263, and citing 

State v. Washington, 10th Dist. Franklin No. 09AP-424, 2009-Ohio-6665, ¶ 18. See 

also Henderson at ¶ 9 (applying this rationale to manifest-weight-, jury-instruction-

, and indictment-related arguments), citing State v. Springer, 8th Dist. Cuyahoga 

 

3

 The Eighth District Court of Appeals expressed concern with the blind application of this principle and 

hypothesized that there could be a circumstance under which a challenge to an offense that is merged for 

purposes of sentencing would not be harmless beyond a reasonable doubt. See State v. Ramos, 8th Dist. 

Cuyahoga No. 103596, 2016-Ohio-7685, ¶ 17. However, the Eighth District ultimately determined that it 

need not reach that issue in Ramos after reasoning that, “[f]or purposes of this appeal, our conclusion that the 

state offered legally sufficient evidence to prove the aggravated murder conviction renders our hypothetical 

moot.” Id. at ¶ 18. Similarly, because we ultimately conclude that Miller’s rape convictions under Counts 

Three, Five, Seven, Nine, and Eleven are based on sufficient evidence, we need not reach that issue in this 

case. 
Case No. 8-19-02 

-9- 

No. 104649, 2017-Ohio-8861, ¶ 15, Ramos at ¶ 14, and State v. Franks, 8th Dist. 

Cuyahoga No. 103682, 2016-Ohio-5241, ¶ 18. 

{¶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 
Case No. 8-19-02 

-10- 

sufficiency of the evidence supporting Millers gross-sexual-imposition charge 

under Count Ten. See Ramos at ¶ 13, 18. 

{¶13} Therefore, we begin by addressing Miller’s sufficiency-of-theevidence 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-sexualimposition 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 

 

4

 Miller was convicted of rape under R.C. 2907.02(A)(1)(c)—the “substantial-impairment” subsection—and 

gross sexual imposition under R.C. 2907.05(A)(1)—the “force-or-threat-of-force” subsection. 

5

 Miller also references Ohio’s sexual-battery statute in the body of his argument. (See Appellant’s Brief at 

5). However, because Miller was not convicted of sexual battery, we will disregard any reference to that 

statute. 
Case No. 8-19-02 

-11- 

is better than that of Mr. Miller’s does not mean the State established proof beyond 

a reasonable doubt that Mr. Miller committed gross sexual imposition.” (Emphasis 

added.) (Id. at 6). In other words, Miller failed to present any argument as to how 

his rape conviction under Count Eleven is based on insufficient evidence. 

{¶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-Ohio2646, ¶ 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. “App.R. 

12(A)(2) provides that an appellate court ‘may disregard an assignment of error 

presented for review if the party raising it fails to identify in the record the error on 

which the assignment of error is based or fails to argue the assignment separately in 

the brief, as required under App.R. 16(A).’” State v. Jackson, 10th Dist. Franklin 

No. 14AP-670, 2015-Ohio-3322, ¶ 11, quoting App.R. 12(A)(2). “Additionally, 

App.R. 16(A)(7) requires that an appellant’s brief include ‘[a]n argument containing 

the contentions of the appellant with respect to each assignment of error presented 

for review and the reasons in support of the contentions, with citations to the 

authorities, statutes, and parts of the record on which appellant relies.’” Id., quoting 

App.R. 16(A)(7). Not only did Miller fail to include an argument under his first 

assignment of error regarding how his rape conviction under Count Eleven is based 
Case No. 8-19-02 

-12- 

on insufficient evidence, but he failed to provide citations to the authorities, statutes, 

and parts of the record that support his argument. Accordingly, we decline to 

address the sufficiency-of-the-evidence argument raised by Miller under his first 

assignment of error.6

 See State v. Carpenter, 3d Dist. Seneca No. 13-18-16, 2019-

Ohio-58, ¶ 31, fn. 5. 

{¶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 

 

6

 Nevertheless, we address the “substantial-impairment” and “sexual-conduct” elements of Miller’s rape 

conviction under R.C. 2907.02(A)(1)(c)—as alleged in Count Eleven—in Miller’s second and third 

assignments of error. There, we ultimately conclude that Miller’s rape conviction under R.C. 

2907.02(A)(1)(c) is based on sufficient evidence. 
Case No. 8-19-02 

-13- 

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 App.R. 16(A)(7). See State v. Tabassum, 

9th Dist. Summit No. 25568, 2011-Ohio-6790, ¶ 5 (“Although, in the statement of 

his first assignment of error, Tabassum raises the issue of manifest weight, his 

arguments pertain only to the sufficiency of the evidence, and we limit our 

discussion accordingly.”), citing App.R. 12(A)(2) and 16(A)(7). See also State v. 

Dahms, 3d Dist. Seneca No. 13-16-16, 2017-Ohio-4221, ¶ 78 (noting that 

“sufficiency of the evidence and manifest weight of the evidence are different legal 

concepts”), citing Thompkins, 78 Ohio St.3d at 389. 

{¶18} Miller was convicted of three counts of rape in violation of R.C. 

2907.02(A)(1)(b) and one count of rape in violation of 2907.02(A)(1)(c). The 

offense of rape is codified under R.C. 2907.02, which provides, in its pertinent part: 

(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 
Case No. 8-19-02 

-14- 

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 * * *. 

R.C. 2907.02(A)(1)(b), (c).7

 

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. 

R.C. 2901.22(B). 

{¶19} In order to prove rape under R.C. 2907.02(A)(1)(b), the State was 

required to prove that: (1) Miller engaged in sexual conduct with C.C.; (2) that C.C. 

is not his spouse; and (3) that C.C. was less than thirteen years of age, whether or 

not Miller knew C.C.’s age at the time of the offense. See State v. Jones, 2d Dist. 

Montgomery No. 26289, 2015-Ohio-4116, ¶ 42. And, the relevant inquiries 

regarding Miller’s rape conviction under R.C. 2907.01(A)(1)(c) are whether the 

evidence, when viewed in a light most favorable to the prosecution, is such that any 

trier of fact could have found that: (1) Miller engaged in sexual conduct with A.W.; 

(2) Miller and A.W. are not married to each other; and (3) A.W.’s ability to resist or 

consent was substantially impaired because of a mental or physical condition, and 

 

7

 We are applying the version of the Revised Code in effect at the time Miller committed the offenses. 
Case No. 8-19-02 

-15- 

Miller knew or had reasonable cause to believe that A.W.’s ability to resist or 

consent was substantially impaired because of that mental or physical condition. 

See State v. Stevens, 3d Dist. Allen No. 1-14-58, 2016-Ohio-446, ¶ 11; In re T.N., 

3d Dist. Marion No. 9-15-36, 2016-Ohio-5774, ¶ 55. 

{¶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 * * *.” R.C. 2907.01(A). 

{¶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-Ohio2284, ¶ 86. 
Case No. 8-19-02 

-16- 

{¶22} In this case, C.C. testified that (from 2012-2016) Miller performed (on 

multiple occasions) the act of cunnilingus. (Nov. 13, 2018 Tr., Vol. II, at 243-248). 

That is, she specifically testified that Miller placed his mouth on her vagina. (See 

id.). Similarly, A.W. testified that Miller performed the act of cunnilingus. (Nov. 

14, 2018 Tr., Vol. III, at 305). She specified that she “passed out on the couch” and 

woke up to Miller “licking [her] on [her] vagina.” (Id.). Therefore, we conclude 

that the State presented sufficient evidence that Miller engaged in sexual conduct. 

See State v. Coleman, 6th Dist. Lucas No. L-15-1056, 2016-Ohio-7335, ¶ 63. Thus, 

Miller’s rape convictions under R.C. 2907.02(A)(1)(b) and (c) are based on 

sufficient evidence. 

{¶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. 
Case No. 8-19-02 

-17- 

Standard of Review 

{¶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 
Case No. 8-19-02 

-18- 

Bradley at 142, citing Strickland at 691. “‘A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.’” Id., quoting Bradley at 142 

and citing Strickland at 694. 

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

 

 

8

 Miller offers no argument (as he is required to do) in support of his contention that his Crim.R. 29 motion 

for acquittal would have been successful as to his gross-sexual-imposition and rape convictions under Counts 

One, Two, Three, Four, Five, Six, Seven, Eight, or Nine of the superseding indictment. See State v. Fluttrow, 

3d Dist. Putnam No. 12-18-03, 2018-Ohio-3613, ¶ 30; App.R. 16. Because Miller failed to satisfy his burden 

of demonstrating that he was prejudiced by his trial counsel’s alleged failure to articulate an argument in 

support of his Crim.R. 29 motion as to those convictions, we decline to root out any possible argument for 

him. Id.; Id.; App.R. 12. 
Case No. 8-19-02 

-19- 

{¶28} “Crim.R. 29 provides for an entry of a judgment of acquittal if the 

evidence is insufficient to sustain a conviction.” State v. Cunningham, 6th Dist. 

Lucas No. L-16-1248, 2018-Ohio-663, ¶ 34. 

“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 (1987), 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-trialcounsel 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 
Case No. 8-19-02 

-20- 

because the State did not present sufficient evidence in support of his gross-sexualimposition conviction. 

{¶30} R.C. 2907.05 sets forth the offense of gross sexual imposition and 

provides, in relevant part: 

(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. 

R.C. 2907.05(A)(1). To prove the offense of gross sexual imposition under R.C. 

2907.05(A)(1), the State must prove that the defendant had sexual contact with a 

person, not the defendant’s spouse, and that the offender purposely compelled the 

victim to submit to the sexual contact by force or threat of force. See State v. Wine, 

3d Dist. Auglaize No. 2-12-01, 2012-Ohio-2837, ¶ 39-40. 

{¶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
Case No. 8-19-02 

-21- 

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 Ohio’s rape statute, 

[t]he Supreme Court of Ohio has further clarified that “[a] defendant 

purposely compels another to submit to sexual conduct by force or 
Case No. 8-19-02 

-22- 

threat of force if the defendant uses physical force against that person, 

or creates the belief that physical force will be used if the victim does 

not submit. A threat of force can be inferred from the circumstances 

surrounding sexual conduct[.]” 

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 

Ohio’s gross-sexual-imposition statute), quoting State v. Schaim, 65 Ohio St.3d 51 

(1992), paragraph one of the syllabus. Indeed, “‘[f]orce’ is defined as ‘any violence, 

compulsion, or constraint physically exerted by any means upon or against a person 

or thing.’” (Emphasis sic.) Euton, 2007-Ohio-6704, at ¶ 60 (Preston, J., concurring 

in part and dissenting in part), quoting R.C. 2901.01(A)(1). See State v. Stevens, 3d 

Dist. No. 1-14-58, 2016-Ohio-446, ¶ 18. See also R.C. 2907.05(D) (“A victim need 

not prove physical resistance” for the offender to be guilty of gross sexual 

imposition). “‘[T]he key inquiry for determining whether the State presented 

sufficient evidence [of] the element of force is whether (based on the totality of the 

circumstances) the “victim’s will was overcome by fear or duress.”’” Stevens at ¶ 

20, quoting Wine, 2012-Ohio-2837, at ¶ 40, quoting In re Forbess, 3d Dist. Auglaize 

No. 2-09-20, 2010-Ohio-2826, ¶ 40, citing State v. Heft, 3d Dist. Logan No. 8-09-

08, 2009-Ohio-5908, ¶ 88, citing State v. Eskridge, 38 Ohio St.3d 56, 58-59 (1988). 

See id. at ¶ 21, quoting State v. Runyons, 3d Dist. Union No. 14-91-30, 1992 WL 

136196, *2 (June 9, 1992). 
Case No. 8-19-02 

-23- 

{¶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 

 

9

 Although this court has declined to adopt a “reduced level of force for sleeping victims” standard, the 

evidence presented by the State in this case exceeds that standard. See State v. Wine, 3d Dist. Auglaize No. 

2-12-01, 2012-Ohio-2837, ¶ 49. 
Case No. 8-19-02 

-24- 

requires that some amount of force must be proven beyond the force inherent in the 

crime itself’”), quoting State v. Dye, 82 Ohio St.3d 323, 327 (1998). Disoriented 

and searching for her friend, Miller then took A.W.’s hand and placed it on his penis. 

See State v. Kushlan, 8th Dist. Cuyahoga No. 91383, 2009-Ohio-2253, ¶ 25; Euton

at ¶ 60 (Preston, J., dissenting) (concluding that the trial court properly denied 

Euton’s Crim.R. 29 motion because “reasonable minds [could] differ on whether 

[the victim’s] fear [was] ‘any’ compulsion under R.C. 2901.01(A)(1)” since the 

victim “was frightened and froze up for a few moments before leaving the room”), 

citing State v. Bridgeman, 55 Ohio St.2d 261 (1978), syllabus. Likewise, the jury 

could infer from A.W.’s testimony that, because she requested Miller to “stop,” 

Miller was compelling A.W. to submit to sexual contact. See State v. Glover, 8th 

Dist. Cuyahoga No. 83341, 2004-Ohio-4482, ¶ 22. 

{¶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 Crim.R. 29 motion as to Count Ten), it would have had 

a reasonable likelihood of success. 
Case No. 8-19-02 

-25- 

{¶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 Crim.R. 29 motion as to Count Eleven), the Crim.R. 29 motion 

would have been granted because there was insufficient evidence that Miller knew 

that A.W.’s “ability to appraise the nature of or control her own conduct was 

substantially impaired.” (Appellant’s Brief at 10). 

{¶37} As we previously noted, Miller was convicted of rape in violation of 

R.C. 2907.02(A)(1)(c) under Count Eleven of the superseding indictment. R.C. 

2907.02(A)(1)(c) provides, in its relevant part, that 

[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 

R.C. 2907.02(A)(1)(c).” Stevens at ¶ 13, quoting Wine at ¶ 50, citing State v. 
Case No. 8-19-02 

-26- 

Graves, 8th Dist. Cuyahoga No. 88845, 2007-Ohio-5430, ¶ 22, State v. Wright, 9th 

Dist. Medina No. 03CA0057-M, 2004-Ohio-603, ¶ 6, and State v. H.H., 10th Dist. 

Franklin No. 10AP-1126, 2011-Ohio-6660, ¶ 10. See also State v. Anderson, 6th 

Dist. Wood No. WD-04-035, 2005-Ohio-534, ¶ 41 (“A jury can reasonably 

conclude that the defendant knew the victim was substantially impaired and unable 

to object to the defendant’s conduct if there was evidence that the victim was in a 

state of deep sleep or drunkenness.”). 

{¶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 Crim.R. 29 motion as to Count Eleven 

would not have had a reasonable probability of success. Thus, Miller’s trial counsel 

was not ineffective for failing to articulate an argument in support of his Crim.R. 29 

motion as to Counts Ten and Eleven. 

{¶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 
Case No. 8-19-02 

-27- 

indictment or a motion to suppress the video interview of C.C. “The failure to file 

a motion is not per se ineffective assistance of counsel.” State v. Costell, 3d Dist. 

Union No. 14-15-11, 2016-Ohio-3386, ¶ 161, citing State v. Schlosser, 3d Dist. 

Union No. 14-10-30, 2011-Ohio-4183, ¶ 34, citing In re Smith, 3d Dist. Hancock 

No. 5-01-34, 2002 WL 255126, *6 (Feb. 22, 2002). “‘Without proving that trial 

counsel was deficient for failing to make certain motions and that those motions had 

a reasonable probability of success, the ineffective assistance of counsel claim 

fails.’” Id., quoting Schlosser at ¶ 34. However, Miller failed to demonstrate how 

his trial counsel was deficient for failing to file either of those pretrial motions or 

that such motions would have been successful. Indeed, Miller made no argument 

relative to whether either of those motions would have had a reasonable probability 

of success, and we decline to root out any possible argument. Id., citing State v. 

Raber, 189 Ohio App.3d 396, 2010-Ohio-4066, ¶ 30 (“[I]f an argument exists that 

can support [an] assignment of error, it is not this [c]ourt’s duty to root it out.”). See 

also App.R. 12(A)(2) and 16(A)(7). 

{¶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 
Case No. 8-19-02 

-28- 

(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.” Evid.R. 801(C). “The hearsay 

rule does not apply, however, when an out-of-court statement is offered for a 

purpose other than the truth of the matter * * * asserted.” State v. Smith, 9th Dist. 

Summit No. 26159, 2012-Ohio-4436, ¶ 13, citing State v. Lewis, 22 Ohio St.2d 125, 

132 (1970). “One such situation is when an out-of-court statement is introduced to 

explain the subsequent actions taken by witnesses * * *.” Id., citing State v. Thomas, 

61 Ohio St.2d 223, 232 (1980). 
Case No. 8-19-02 

-29- 

{¶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 
Case No. 8-19-02 

-30- 

establish that Miller was the one who committed the acts against C.C. See Smith at 

¶ 14. Accordingly, because Tabitha’s identification of Miller was not offered for 

the truth of the matter asserted, the hearsay rule does not apply, and Miller’s trial 

counsel was not ineffective for failing to object to it. Id.

{¶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” crossexamining 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 
Case No. 8-19-02 

-31- 

story,” Miller advanced no argument (as he is required to do) that there is a 

reasonable probability that the outcome of his trial would have been different based 

on that argument. Thus, we conclude that Miller’s trial counsel’s considerations are 

trial strategy and do not constitute ineffective assistance of counsel. See id.

{¶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-Ohio2577, ¶ 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 
Case No. 8-19-02 

-32- 

determine that there is a reasonable probability that the outcome below would have 

been different but for the combination of the harmless errors.” State v. Stober, 3d 

Dist. Putnam No. 12-13-13, 2014-Ohio-5629, ¶ 15, quoting In re J.M., 3d. Dist. 

Putnam No. 12-11-06, 2012-Ohio-1467, ¶ 36. 

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. 

/jlr