State v. Miller , 2015 Ohio 279 ( 2015 )

[Cite as State v. Miller, 2015-Ohio-279.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27048
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CARLOS E. MILLER COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 13 03 0861
DECISION AND JOURNAL ENTRY
Dated: January 28, 2015
CARR, Judge.
{¶1} Defendant-Appellant, Carlos Miller, appeals from his conviction in the Summit
County Court of Common Pleas. This Court affirms.
I.
{¶2} On the evening of December 28, 2012, Alana W. was at the hospital with a friend.
After speaking with the father of her children on the phone, Alana agreed that she would get the
children from him and take them to her home. Because her car had been damaged, however,
Alana needed a ride from the hospital. She accepted a ride from Miller, who was an
acquaintance of hers and a friend of her children’s father.
{¶3} According to Alana, Miller touched her buttocks as soon as she got into his car
and, as they drove, spoke to her about having feelings for her. According to Miller, Alana
hugged him when she got into the car and the two only spoke about their mutual interests. The
two also gave different accounts of the number of stops they made when they were together in
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the car. In any event, both agreed that Miller eventually brought Alana to her friend’s house so
that she could retrieve the car seats that she had left there earlier in the day.
{¶4} At some point after Miller brought Alana to her friend’s house, the two engaged
in vaginal intercourse in the passenger’s seat of the car. According to Alana, Miller made
several advances that she resisted before he climbed over the seat and forced her to engage in
intercourse. According to Miller, Alana initiated their encounter after smoking crack cocaine
and the two had consensual intercourse. After Alana exited the car, she went directly to her
friend’s house. There was testimony that Alana banged on the door and, once she was allowed
inside, turned off the lights, hid under the dining room table, and told her friend that she had
been raped. Her friend and his brother contacted the police shortly thereafter.
{¶5} A grand jury indicted Miller on one count of rape, in violation of R.C.
2907.02(A)(2). A jury trial took place, at the conclusion of which the jury found Miller guilty.
The court sentenced Miller to nine years in prison and classified him as a tier III sex offender.
{¶6} Miller now appeals from his conviction and raises five assignments of error for
our review. For ease of analysis, we rearrange and combine several of the assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED STRUCTURAL ERROR BY REMOVING
MILLER’S RETAINED, ATTORNEY-OF-CHOICE IN VIOLATION OF HIS
SIXTH AMENDMENT RIGHT TO COUNSEL.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED STRUCTURAL ERROR BY
INDEPENDENTLY INVESTIGATING AND THEREAFTER REVIEWING
EVIDENCE THAT WAS OUTSIDE THE RECORD IN DECIDING A
SUBSTANTIVE ISSUE.
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{¶7} In his first assignment of error, Miller argues that the court committed structural
error by not allowing him to proceed to trial with his counsel of choice. In his second
assignment of error, Miller argues that the court committed structural error when it relied on
evidence outside of the record to refuse him his counsel of choice. We disagree with both
propositions.
{¶8} The Sixth Amendment to the United States Constitution guarantees a criminal
defendant the right to counsel for his defense. Accord Ohio Constitution, Article I, Section 10.
“[A]n element of this right is the right of a defendant who does not require appointed counsel to
choose who will represent him.” United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006).
“[T]he Sixth Amendment guarantees a defendant the right to be represented by an otherwise
qualified attorney whom that defendant can afford to hire, or who is willing to represent the
defendant even though he is without funds.” Caplin & Drysdale, Chartered v. United States,
491 U.S. 617, 625 (1989). A court commits structural error when it wrongfully denies a
defendant his counsel of choice, so a defendant need not demonstrate further prejudice.
Gonzalez-Lopez at 150. “[T]he erroneous deprivation of a defendant’s choice of counsel entitles
him to an automatic reversal of his conviction.” State v. Chambliss, 128 Ohio St. 3d 507, 2011-
Ohio-1785, ¶ 18. Accordingly, the issue before this Court is whether the trial court violated
Miller’s constitutional right to counsel.
{¶9} Although a criminal defendant has a constitutional right to his choice of counsel,
that right is not unqualified. State v. Keenan, 81 Ohio St. 3d 133, 137 (1998). Instead, the “right
to choose one’s own counsel is circumscribed in several important respects.” Wheat v. United
States, 486 U.S. 153, 159 (1988). “A defendant does not have the right to be represented by (1)
an attorney he cannot afford; (2) an attorney who is not willing to represent the defendant; (3) an
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attorney with a conflict of interest; or (4) an advocate (other than himself) who is not a member
of the bar.” State v. Howard, 5th Dist. Stark No. 2012CA00061, 2013-Ohio-2884, ¶ 39, citing
Wheat at 159. Moreover, “the courts have recognized that [the defendant’s] right is balanced
against the need for efficient and effective administration of criminal justice.” (Internal
quotations and citations omitted.) Lorain v. Pavlich, 9th Dist. Lorain No. 06CA008919, 2006-
Ohio-6193, ¶ 8. “[A] trial court[] [possesses] wide latitude in balancing the right to counsel of
choice against the needs of fairness * * * and against the demands of its calendar.” (Internal
citations omitted.) Gonzalez-Lopez at 152.
{¶10} After Miller’s arrest in March 2013, the Akron Municipal Court appointed
Attorney Don Hicks to represent him. The case was later transferred to the Summit County
Court of Common Pleas, but Attorney Hicks continued to represent Miller throughout the
discovery and pretrial process. Five days before Miller’s scheduled trial date, Attorney Charles
Quinn filed a notice of appearance as counsel on behalf of Miller. Attorney Quinn also appeared
at the final pretrial, which took place on the same day that he filed his notice of appearance.
{¶11} At the final pretrial, Attorney Hicks indicated that he would withdraw as counsel
if Miller wished to have Attorney Quinn represent him. The trial judge, however, expressed her
concern about substituting defense counsel five days before trial, particularly when Attorney
Hicks was well-qualified and she had not been made aware of any breakdown in the attorney-
client relationship. The trial judge noted that she was “highly concerned” that the substitution
had been posed as “some sort of tactic or strategy” to delay the trial and that, while she would
permit Attorney Quinn to appear on behalf of Miller, she still intended to go forward with the
scheduled trial. The judge then asked Attorney Quinn about his involvement in the case.
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{¶12} Attorney Quinn indicated that he had “some contact” with Miller even before his
arrest, but had not agreed to act as counsel because Miller had not paid him his retainer. He
further indicated that he had just agreed to take the case because a family member of Miller’s
had stepped forward and had promised to pay his fees. The trial court then indicated that it
would take the matter under advisement and scheduled a hearing for the following day.
{¶13} The following day, the trial judge informed the parties that she had looked at
Miller’s municipal court file and had noted that Attorney Quinn’s name had been written on the
file and crossed off. Attorney Quinn explained that the clerk’s office had recorded his name in
error and had removed it once he clarified that he was not, in fact, representing Miller at that
time. Attorney Quinn specified that he did not know anything about the substance of the case
and had not reviewed any of the discovery materials. He stated that his contact was limited to
speaking with Miller early on about his arrest warrant. He further stated that, due to his past
dealings with Miller and his family, he would be willing to act as counsel even if it later turned
out that he did not receive his entire fee.
{¶14} Although Miller indicated that it was his desire to have Attorney Quinn represent
him, Attorney Quinn informed the court that he would not be prepared to go forward with the
trial as scheduled. He indicated that he had explained that fact to Miller and advised him that, if
there was no continuance, he should rely on Attorney Hicks to represent him. Attorney Quinn
stated that Miller “would prefer to have me as his attorney but not under the circumstances of
trial being Monday.” Accordingly, Attorney Quinn suggested that Attorney Hicks remain on the
case if the court was not willing to grant a continuance. The trial court accepted that resolution,
noting that there had been no evidence presented of a breakdown in the relationship between
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Attorney Hicks and Miller and that both the court and the State were prepared to go forward with
the scheduled trial.
{¶15} In his second assignment of error, Miller argues that the trial court committed
structural error when, in considering whether to allow Attorney Quinn to act as Miller’s counsel,
it consulted evidence outside the record. The evidence to which Miller refers is his file from the
Akron Municipal Court. He argues that the court deprived him of a fair trial when it conducted
its own investigation and “became intimate with highly probative evidence” in the municipal
court file days before his jury trial.
{¶16} To the extent Miller argues that the trial court reviewed “highly probative
evidence” in his municipal court file, that argument is purely speculative. The court indicated
that it pulled Miller’s municipal court file for the purpose of determining the level of Attorney
Quinn’s involvement in the matter. The court noted that Attorney Quinn’s name had been
marked on the file, but crossed off, and asked Attorney Quinn for an explanation. The court did
not indicate that it had looked at any other part of the file. Moreover, while the court stated that
it had pulled Miller’s municipal court file, copies of items from Miller’s municipal court file
were already on file in this case. Specifically, on April 16, 2013, copies of the following items
from Miller’s municipal court file were filed in this case: (1) the front cover of his file; (2) the
affidavit in support of his arrest; (3) the sworn complaint and warrant for his arrest; and (4) an
order for testing for HIV and/or venereal disease. On the front cover of Miller’s municipal court
file, the name “Chuck Quinn” is crossed out in the space marked “Attorney,” and the name “Don
Hicks” is written in. Accordingly, the information that the trial court referenced was already a
part of its file in this case.
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{¶17} “It is well established that a trial court may take judicial notice of prior
proceedings in the immediate case before it.” State v. Brown, 9th Dist. Summit No. 24119,
2008-Ohio-5846, ¶ 16. Because the material the court referenced was already a part of its file,
Miller has not shown that the court relied upon evidence outside of the record in deciding
whether Attorney Quinn should act as defense counsel. Consequently, his second assignment of
error is overruled. We next consider his first assignment of error.
{¶18} Initially, we note that Miller has not argued that the trial court erred by refusing to
grant him a continuance of his trial in order to secure new counsel. Miller’s captioned
assignment of error is limited to the issue of whether the court violated his constitutional right to
counsel, and thus, committed structural error. Accordingly, our review is limited to that issue
alone. See State v. Pleban, 9th Dist. Lorain No. 10CA009789, 2011-Ohio-3254, ¶ 41, quoting
State v. Marzolf, 9th Dist. Summit No. 24459, 2009-Ohio-3001, ¶ 16 (“An appellant’s captioned
assignment of error ‘provides this Court with a roadmap on appeal and directs this Court’s
analysis.’”). The issue of whether the trial court erred by not continuing Miller’s scheduled trial
is beyond the scope of Miller’s captioned assignment of error. Thus, we decline to address it.
See id.; App.R. 16(A)(7).
{¶19} Upon review of the record, we do not agree that the trial court committed
structural error by not replacing Attorney Hicks with Attorney Quinn. Miller did not seek to
have Attorney Quinn step in as his counsel until five days before his scheduled trial date. While
Attorney Hicks and the prosecutor indicated that they were prepared for trial, Attorney Quinn
informed the court that he would not be prepared to go forward with the trial as scheduled. He
freely admitted that he was not familiar with the substance of the case and had not reviewed any
discovery. He stated that he had discussed that issue with Miller and that Miller “would prefer to
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have me as his attorney but not under the circumstances of trial being Monday.” (Emphasis
added.) He suggested that, if the trial remained as scheduled, Attorney Hicks continue to
represent Miller. In not removing Attorney Hicks from the case, the court simply followed
Attorney Quinn’s suggestion.
{¶20} Miller never gave any indication that he was dissatisfied with Attorney Hicks’
representation. On the first day of trial, Miller stated that he was “very comfortable with
[Attorney Hicks]” and prepared to go forward with the trial. At the conclusion of the trial, Miller
even asked the court to appoint Attorney Hicks as his appellate counsel because he felt that
Attorney Hicks “did a great job.” The record does not bear out Miller’s assertion that the court
violated his right to counsel. Instead, the record reflects that the trial court balanced Miller’s
right to counsel “against the needs of fairness * * * and against the demands of its calendar.”
(Internal citations omitted.) Gonzalez-Lopez, 548 U.S. at 152. While Attorney Quinn may have
been Miller’s first counsel of choice, it was Attorney Hicks who was prepared to go forward with
the scheduled trial. Under these specific facts and circumstances, we cannot conclude that the
court violated Miller’s right to counsel. Accordingly, Miller’s first assignment of error is
overruled.
ASSIGNMENT OF ERROR III
THE PROSECUTOR COMMITTED MISCONDUCT BY BROADCASTING
TO THE JURY FROM HIS PERSONAL CELL PHONE A PREJUDICIAL,
IRRELEVANT, PREVIOUSLY UNDISCLOSED INTERNET WEBSITE
DURING CROSS-EXAMINATION OF THE APPELLANT.
{¶21} In his third assignment of error, Miller argues that his conviction must be
overturned on the basis of prosecutorial misconduct. We disagree.
{¶22} In deciding whether a prosecutor’s conduct rises to the level of prosecutorial
misconduct, a court determines if the prosecutor’s actions were improper, and, if so, whether the
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defendant’s substantial rights were actually prejudiced. State v. Smith, 14 Ohio St. 3d 13, 14
(1984). “[A] judgment may only be reversed for prosecutorial misconduct when the improper
conduct deprives the defendant of a fair trial.” State v. Knight, 9th Dist. Lorain No.
03CA008239, 2004-Ohio-1227, ¶ 6, citing State v. Carter, 72 Ohio St. 3d 545, 557 (1995). The
defendant must show that, but for the prosecutor’s misconduct, the trier of fact would not have
convicted him. State v. Lollis, 9th Dist. Summit No. 24826, 2010-Ohio-4457, ¶ 24. “The
touchstone of the analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’”
State v. Diar, 120 Ohio St. 3d 460, 2008-Ohio-6266, ¶ 140, quoting Phillips, 455 U.S. at 219.
{¶23} Miller testified on his own behalf. During direct examination, he testified about
his career in music and the type of music that he liked to create. He testified that he had worked
with a lot of major artists and that his music was available for purchase in the iTunes Store. On
cross-examination, the prosecutor asked Miller whether he had a collection of songs on iTunes.
When Miller responded affirmatively, the prosecutor asked Miller for the name of his collection.
Miller stated that his song collection was entitled “Life’s Good.” The prosecutor then asked
whether the song collection was not, in fact, titled “The Weed.” Miller denied that he had a
collection of songs entitled “The Weed,” and defense counsel objected “to the line of
questioning.” The prosecutor then moved on to another topic. Later in his cross-examination,
however, the prosecutor returned to the topic of Miller’s music.
{¶24} Because Miller had indicated that he did not have a collection of songs entitled
“The Weed,” the prosecutor used his cell phone to search iTunes and displayed the results of the
search to the jury on the courtroom projector. The prosecutor asked Miller to read the title of the
first album listed on iTunes, which was “The Weed.” The prosecutor then asked several more
10
questions about the album, and Miller eventually stated that the album must have been produced
by some other artist with the same name. Defense counsel then stated:
Judge, I would like to indicate an objection to this line of questioning. There is no
substantiation to it. He has responded. It is just completely inappropriate.
The judge overruled the objection, and the prosecutor ended his cross-examination and rested his
case.
{¶25} The following day, defense counsel renewed his objection outside the presence of
the jury. Defense counsel argued that the prosecutor’s introduction of “extraneous evidence”
from “outside of this court” without first disclosing the evidence to him and memorializing it for
purposes of the record violated the Rules of Evidence. The trial court noted that the evidence
had been introduced strictly for impeachment purposes and had not been submitted to the jury.
Consequently, the court once again overruled the objection.
{¶26} Miller first argues that the prosecutor improperly questioned him during cross-
examination by attempting to impeach him with extrinsic evidence in contravention of Evid.R.
608. “In so doing, he effectively challenges the trial court’s admission of certain evidence rather
than the fairness of the trial from the perspective of prosecutorial misconduct.” Pleban, 2011-
Ohio-3254, at ¶ 40. Because Miller’s captioned assignment of error only alleges prosecutorial
misconduct, “[t]he issue of the trial court’s admission of certain evidence is beyond the scope of
this captioned assignment of error.” Id. at ¶ 41. This Court, therefore, will not address the
question of whether the trial court erred by allowing the prosecutor to introduce evidence he
obtained from his cell phone during the trial. Instead, we limit our review to the specific issue
raised in Miller’s captioned assignment of error. See id.
{¶27} Miller argues that the prosecutor’s conduct on cross-examination deprived him of
a fair trial because it improperly brought his character into question. He further argues that he
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was prejudiced because the prosecutor deprived him of the opportunity to examine the evidence
with which he was questioned in advance of trial.
{¶28} Given the nature of the objections that defense counsel entered, it is questionable
whether Miller has preserved the foregoing issues for appeal. “To preserve an alleged error for
appeal, a party must timely object and state the specific grounds for the objection.” State v.
Rowland, 9th Dist. Medina No. 07CA0085-M, 2008-Ohio-3213, ¶ 7. Defense counsel did not
immediately object when the prosecutor initially began asking Miller about the title of his music
collection. Likewise, defense counsel did not immediately object when the prosecutor published
the screen shot from iTunes to the jury. When defense counsel ultimately objected on both
occasions, he merely cast the prosecutor’s line of questioning as improper or inappropriate. He
did not enter a more specific objection until after the State rested its case. Consequently, defense
counsel’s objections were neither as timely, nor as specific as they should have been. See id.
Even assuming that Miller’s arguments have been preserved, however, he has not shown how the
prosecutor’s alleged misconduct prejudiced him.
{¶29} To prevail on a prosecutorial misconduct argument, “the appellant must show that
there is a reasonable probability that but for the prosecutor’s misconduct the result of the
proceeding would have been different.” State v. Penix, 9th Dist. Summit No. 23699, 2008-Ohio-
1051, ¶ 25. The true title of Miller’s iTunes collection was, at best, a point of minor relevance in
these proceedings. As set forth below, Alana testified in detail how Miller forced her to engage
in sexual intercourse. The jury heard testimony that, immediately after the incident, Alana ran
into her friend’s house, turned off all the lights, hid under the table, and stated that Miller had
raped her. They also heard Miller testify that, after agreeing to drive Alana to her children and
being in the car with her for a significant period of time, he left within 10 to 15 minutes of her
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exiting the car because it was getting late. Miller has not demonstrated that, in the absence of the
evidence about the name of his song collection, the jury would not have convicted him. See id.
Under the facts and circumstances of this case, we cannot conclude that Miller was deprived of a
fair trial. See Knight, 2004-Ohio-1227, at ¶ 6. Accordingly, Miller’s third assignment of error is
overruled.
ASSIGNMENT OF ERROR V
MILLER’S CONVICTION IS NOT SUPPORTED BY SUFFICIENT
EVIDENCE AND IS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE[.]
{¶30} In his fifth assignment of error, Miller argues that his conviction is based on
insufficient evidence and is against the manifest weight of the evidence. We address each
argument separately.
Sufficiency
{¶31} “Raising the question of whether the evidence is legally sufficient to support the
jury verdict as a matter of law invokes a due process concern.” State v. Diar, 120 Ohio St. 3d
460, 2008-Ohio-6266, ¶ 113, citing State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997).
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. The 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.
State v. Jenks, 61 Ohio St. 3d 259 (1991), paragraph two of the syllabus. “The test for sufficiency
requires a determination of whether the State has met its burden of production at trial.” State v.
Edwards, 9th Dist. Summit No. 25679, 2012-Ohio-901, ¶ 7.
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{¶32} R.C. 2907.02(A)(2) provides that “[n]o person shall engage in sexual conduct
with another when the offender purposely compels the other person to submit by force or threat
of force.” “‘Force’ means any violence, compulsion, or constraint physically exerted by any
means upon or against a person * * *.” R.C. 2901.01(A)(1). Whoever commits the foregoing
offense is guilty of rape. R.C. 2907.02(B).
{¶33} Miller argues that his rape conviction is based on insufficient evidence because
the State failed to set forth any evidence of force or the threat of force. He notes that the nurse
who examined Alana after the alleged rape testified that the results of her physical examination
were unremarkable. Consequently, he argues that there was no evidence that he used force or the
threat of force to engage in sexual intercourse with Alana.
{¶34} Alana W., the victim in this matter, testified that she knew Miller through the
father of her two children. She testified that, before the incident giving rise to this appeal, she
had known Miller for about four years, but limited her contact with him because she disliked
him. Sometime during the early evening hours of December 28, 2012, however, Alana and a few
of her friends were involved in a car accident. The accident totaled the car Alana had been
driving and injured one of her friends. Alana accompanied her injured friend to the hospital, but
soon received word from J.T., her children’s father, that she needed to come get the children
from him. Alana testified that Miller was with J.T. at the time and volunteered to give her a ride
from the hospital.
{¶35} Alana testified that the passenger’s seat of Miller’s car was already reclined when
he picked her up at the hospital. She further testified that, when she went to sit down in the car,
Miller placed his hand on her seat “so that he could be touching [her] butt when [she] sat down.”
She testified that she moved Miller’s hand away and the two began to drive. She directed Miller
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to a drive-thru where she purchased one Black and Mild to smoke because she was under a lot of
stress from the accident. According to Alana, she and Miller spoke the entire time they drove
and Miller asked her about the status of her relationship with J.T. She testified that Miller
admitted he had been attracted to her for years, but had not wanted to say anything if she and J.T.
were still involved with one another.
{¶36} Alana stated that she asked Miller to drive her to her friend’s house before taking
her to J.T.’s because she needed to pick up her children’s car seats. Earlier in the day, Alana had
left the car seats on her friend’s porch so that there would be more room in her car for her
friends. Alana testified that Miller parked his car on the street across from her friend’s house and
the two spoke some more. She stated that Miller once again declared his feelings for her and
asked whether she also found him attractive. When she started to shake her head no, Alana
testified that Miller told her: “Say no and I’ll punch your gut.” She then stopped shaking her
head and fell silent. Alana testified that the two spoke a little longer before Miller “started
getting grabby, touchy feely again.”
{¶37} Alana stated that Miller tried to kiss her several times and kept leaning over to
touch her. She testified that she repeatedly told Miller to stop touching her and shoved him
away, but that she was laughing at first because she believed he was just teasing her. At some
point, however, Miller began climbing over the seat. Alana testified that Miller got on top of her
and grabbed a hold of her pants while she put her hands on his chest and tried to shove him
away. The two then struggled over her pants, and Miller was eventually able to pull them down.
Alana testified that she kept trying to push Miller back towards the dashboard and telling him to
stop, but that Miller vaginally penetrated her with his penis. Alana continued to push Miller and
told him to stop, but Miller told her that he did not want to stop because it felt too good.
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Eventually, however, Miller stopped and sat back down in his own seat. Alana testified that she
then quickly pulled her pants back up and fled the car. Alana went inside her friend’s house and
told him she had just been raped. Miller left the scene in his car at some point after Alana
entered her friend’s house.
{¶38} Yvonne Demyan, a sexual assault nurse examiner in the DOVE Unit of St.
Thomas Hospital, testified that she examined Alana within several hours of the incident.
Demyan testified that she took a history from Alana and that Alana reported having been raped.
Although Demyan noted that the results of Alana’s physical examination were unremarkable, she
testified that it is common for rape victims not to display any signs of physical trauma. She took
multiple swabs from Alana and submitted them for further testing. There was testimony that the
swabs Demyan collected from Alana’s vagina contained semen and that Miller could not be
excluded as the source of the semen.
{¶39} Although the results of Alana’s physical examination were unremarkable, “this
and other courts have consistently held that the testimony of the victim, if believed, is sufficient
to support a conviction, even without further corroboration.” State v. Sparks, 9th Dist. Summit
No. 22111, 2005-Ohio-2154, ¶ 11. Alana testified that Miller threatened to punch her if she said
she did not find him attractive and that he climbed on top of her and proceeded to have vaginal
intercourse with her while she tried to resist him. She testified that she pushed Miller in the
chest and told him to stop, but that he would not. Viewing the evidence in a light most favorable
to the State, we must conclude that the State presented evidence from which a rational trier of
fact could conclude that Miller used force to compel Alana to submit to sexual conduct. See
R.C. 2907.02(A)(2). See also R.C. 2901.01(A)(1) (force defined). Consequently, his rape
conviction is not based on insufficient evidence.
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Manifest Weight
{¶40} A conviction that is supported by sufficient evidence may still be found to be
against the manifest weight of the evidence. Thompkins, 78 Ohio St. 3d at 387.
In determining whether a criminal conviction is against the manifest weight of the
evidence, an appellate court must 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 (9th Dist.1986). “When a court of appeals reverses a
judgment of a trial court on the basis that the verdict is against the weight of the evidence, the
appellate court sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder’s resolution of the
conflicting testimony.” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982).
This discretionary power should be exercised only in exceptional cases where the evidence
presented weighs heavily in favor of the defendant and against conviction. Thompkins, 78 Ohio
St.3d at 387. Accord Otten at 340.
{¶41} Miller argues that his rape conviction is against the manifest weight of the
evidence because he and Alana engaged in consensual sexual intercourse, which Alana initiated.
He once again argues that the lack of any evidence of physical harm to Alana proves that he did
not rape her.
{¶42} Miller testified that he was visiting with J.T. and drinking with him when J.T.
learned that Alana was at the hospital. Miller testified that he ultimately agreed to pick up Alana
from the hospital because she did not have a car and J.T. was angry with her for not being there
to take care of their children. According to Miller, Alana hugged him when she got into his car
and immediately “said she needed to smoke.” Miller testified that Alana then directed him to a
house on Grant Street where she purchased crack cocaine while he waited in the car. Once
17
Alana got back into the car, she asked Miller to take her to a drive-thru to purchase a Black and
Mild. Miller also stated that he took Alana to the drive-thru at McDonald’s, where the two
ordered food and ate it in the parking lot.
{¶43} Miller testified that he subsequently brought Alana to her friend’s house so that
she could retrieve the car seats for her children. Miller indicated that he had never been to the
house before, so he parked where Alana told him to park. He testified that he and Alana
remained in the parked car talking about music and other mutual interests. He testified that, at
some point, Alana brought out the crack cocaine she had purchased and lined the inside of the
Black and Mild with it. According to Miller, he asked Alana to stand outside the car to smoke
the Black and Mild because he did not like the smell of crack cocaine. Alana complied and
climbed back into the car when she was finished.
{¶44} Miller testified that Alana was “more energetic” when she reentered the car and
began touching him and kissing him. Miller testified that Alana then unbuttoned her pants and
showed him that she was not wearing underwear. The two began kissing again and, according to
Miller, engaged in consensual, vaginal intercourse. Once they were finished, Miller testified that
they talked a while longer before Alana got out of the car and walked over to her friend’s house.
It was Miller’s testimony that Alana sat on her friend’s porch for several minutes before going
inside. Miller testified that he waited 10 or 15 minutes for Alana to emerge and tried to call her
cell phone, but ultimately left when she did not return to the car or answer her phone because it
was late.
{¶45} DeWayne Peace testified that he was a friend of Alana’s and that she had left the
car seats for her children at his house earlier that day. Peace testified that it was after midnight
when he heard a banging at the door and found Alana on his porch. He testified that Alana
18
rushed inside, began turning off the lights, hid under the dining room table, and told him that she
had just been raped. Peace indicated that Alana looked frightened and scared. Not long after
Alana arrived, Peace testified that he and his brother called 911 to report the rape.
{¶46} J.T. testified that he was at home drinking with Miller when he learned that Alana
was at the hospital and would not be picking up their children from daycare. J.T. admitted that
he was angry with Alana for not picking up the children and that, once he had done so, he told
her to leave the hospital and come get the children from his house. J.T. testified that he asked
Miller to pick up Alana because she did not have a ride from the hospital. He testified that he
knew Alana did not like Miller because she considered him to be arrogant.
{¶47} J.T. stated that he instructed Miller to bring Alana straight back to his house and
not to make any other stops. When a significant amount of time had passed and the two still had
not returned, J.T. testified that he borrowed his brother’s car and began driving around looking
for Alana. J.T. stated that he eventually received a phone call in which he learned that Alana had
been raped by Miller. He then went looking for Miller. Although he was not able to find Miller,
he later spoke with Miller on his cell phone. According to J.T., Miller admitted the he had
engaged in sexual intercourse with Alana, but described the encounter as consensual. According
to J.T., Miller told him: “when it’s something I wanted, I had to take it[.] * * * I couldn’t help
myself.”
{¶48} Miller denied that J.T. told him to come straight back to the house once he had
picked up Alana. He also testified that J.T. was lying about his having said he just “had to take
it” because he could not help himself. When asked why he left Peace’s house without Alana
after only 10 or 15 minutes, Miller testified that he left because it was late.
19
{¶49} Detective John Ross testified that he responded to DeWayne Peace’s house after
receiving a call about a possible rape and interviewed Peace on the scene. He testified that Peace
described how Alana had banged on the door, run into the house, turned off the lights, hid under
the dining room table, and told him she had been raped. Detective Ross also testified that he
interviewed Alana at the hospital. He described Alana as very quiet during her interview and
indicated that she spoke to him with a hospital sheet pulled over her body and her knees brought
up to her chest. He then related her description of the events, which was consistent with her
testimony at trial. Detective Ross also testified that he later processed Miller’s car in the police
department’s secure holding facility. He stated that he discovered a Black and Mild wrapper in
the car along with a bag containing some of Alana’s personal belongings. Detective Ross
testified that, while he attempted to contact Miller several times before his arrest, his attempts
were unsuccessful.
{¶50} Having reviewed the entire record, we cannot conclude that Miller’s rape
conviction is against the manifest weight of the evidence. Miller and Alana essentially presented
the jury with two different versions of the same event. While Miller testified that they had
consensual sex, Alana testified in detail about how Miller forced her to have sex with him. “The
jury was in the best position to observe their demeanor and ascertain their credibility.” State v.
Roper, 9th Dist. Summit No. 27025, 2014-Ohio-4786, ¶ 28. “This Court will not overturn the
[jury]’s verdict on a manifest weight of the evidence challenge only because [it] chose to believe
certain witnesses’ testimony over the testimony of others.” (Alterations sic.) Id., quoting State
v. Shank, 9th Dist. Medina No. 12CA0104-M, 2013-Ohio-5368, ¶ 29. This Court has carefully
reviewed the record and it is our conclusion that this is not the exceptional case where the jury
20
lost its way in reaching a guilty verdict. See Thompkins, 78 Ohio St. 3d at 387; Otten, 33 Ohio
App.3d at 340. As such, Miller’s fifth assignment of error is overruled.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED BY IMPOSING A “NO CONTACT” ORDER
BETWEEN MILLER AND THE PROSECUTING WITNESS.
{¶51} In his fourth assignment of error, Miller argues that the trial court erred when it
ordered him not to have any contact with the victim. Specifically, he argues that the trial court
lacked authority to issue a no contact order once it imposed his prison term. See State v. Holly,
8th Dist. Cuyahoga No. 95454, 2011-Ohio-2284. This Court has already held, however, that “a
trial court may impose a no contact order as part of its sentence.” State v. Anderson, 9th Dist.
Summit No. 26640, 2014-Ohio-1206, ¶ 39. This Court has certified our decision in Anderson as
being in conflict with the Eighth District’s decision in Holly, and the Supreme Court has
accepted the issue for consideration. At present, the Supreme Court has not yet issued a
decision. We decline to reconsider our precedent at this time. Because we have already
determined that a trial court may impose a no contact order as part of its sentence, Miller’s
argument lacks merit. See Anderson at ¶ 39. His fourth assignment of error is overruled.
III.
{¶52} Miller’s assignments of error are overruled. The judgment of the Summit County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
21
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
WHITMORE, J.
CONCURS.
BELFANCE, P. J.
CONCURRING IN JUDGMENT ONLY.
{¶53} I concur in the majority’s judgment. With respect to Mr. Miller’s fourth
assignment of error, I concur out of deference to this Court’s precedent. See State v. Campbell,
9th Dist. Summit Nos. 27300, 27301, 2014-Ohio-4780, ¶ 22 (Belfance, P.J., concurring). But
see State v. Anderson, 9th Dist. Summit No. 26640, 2014-Ohio-1206, ¶ 46-58 (Belfance, P.J.,
concurring in part, and dissenting in part).
APPEARANCES:
SARAH MARGARET HULBURT, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.