State v. Miller

[Cite as State v. Miller, 2023-Ohio-1466.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 30335
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MARCELLARS S. MILLER, JR. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 21 03 1046
DECISION AND JOURNAL ENTRY
Dated: May 3, 2023
FLAGG LANZINGER, Judge.
{¶1} Marcellars Sinua Miller, Jr. appeals his convictions and sentence from the Summit
County Court of Common Pleas. For the following reasons, this Court affirms.
I.
{¶2} This appeal involves the non-fatal shooting of two victims: A.W. and T.L. As a
result of the shooting, a grand jury indicted Mr. Miller on several counts. Relevant to this appeal,
a grand jury indicted Mr. Miller on two counts of felonious assault (one related to A.W. and one
related to T.L., both with accompanying firearm specifications), attempted murder (related to A.W.
and also with an accompanying firearm specification), and having a weapon while under a
disability. The matter proceeded to a multi-day jury trial wherein the following evidence was
adduced.
{¶3} One of the victims, T.L., is Mr. Miller’s sister. At the time of the underlying
incident, T.L. was close friends with A.W. According to A.W.’s testimony at trial, in the early
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morning hours of March 21, 2021, she, T.L., and K.L. (T.L. and Mr. Miller’s mother) decided to
go to an after-hours house on Greenwood Avenue in Akron. A.W. explained that an after-hours
house is a house that people go to after the bars have closed where you can buy and drink alcohol.
Because everyone besides Mr. Miller had been drinking alcohol, Mr. Miller drove everyone to the
after-hours house in A.W.’s car. Upon arriving, A.W. and T.L. drank more alcohol, listened to
music, and danced in the basement until around 5:00 a.m. At some point, Mr. Miller and K.L. (his
mother) got into a verbal argument and a physical fight. A.W. and T.L. briefly broke up the fight,
but Mr. Miller and K.L. started fighting again. At that point, A.W. decided that she wanted to leave
and invited T.L. to leave with her.
{¶4} A.W. testified that when she and T.L. started to walk up the basement steps, Mr.
Miller called them “bitches” and threatened to shoot them. According to A.W., Mr. Miller had a
gun and said: “If you all leave me, I’m going to shoot y’all. I’m going to shoot that bitch up.” A.W.
testified that once they got outside, Mr. Miller said: “If you leave me I’m going to shoot you in
your head.” A.W. and T.L. then ran toward A.W.’s car. A.W. got into the driver’s seat and started
the car while T.L. got into the passenger’s seat. A.W. testified that before she put the car into drive,
she looked in her rear-view mirror and saw Mr. Miller standing behind her car holding a gun. A.W.
testified that she did not remember getting shot, but that T.L. started screaming and called 911.
A.W. then drove her car a short distance to her grandmother’s house on Courtland Avenue.
{¶5} The State played a recording of T.L.’s 911 call at trial. In it, T.L., who was crying
and screaming, informed the 911 dispatcher that her friend had been shot and that she thought she
(T.L.) had been grazed. The 911 dispatcher then asked T.L. who the shooter was, and T.L.
responded that it was her brother, Marcellars Miller. T.L. explained during the 911 call that the
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shooting occurred while they were leaving a party. T.L. then gave the 911 dispatcher a physical
description of Mr. Miller.
{¶6} Officers located A.W. and T.L. in A.W.’s car on Courtland Avenue. The officers
observed that A.W.’s car was “riddled with bullet holes” and that A.W. had been shot. T.L. had
suffered grazing wounds. T.L. told the officers that Mr. Miller was the shooter and gave the officers
a description of Mr. Miller’s clothing. The State played the bodycam video from one of the officers
who responded to Courtland Avenue at trial. In it, T.L. is seen crying and telling the officers that
her brother, Marcellars Miller, got mad at an after-hours party and shot her and A.W.
{¶7} Officers located Mr. Miller a short distance away on a porch on Hardesty
Boulevard. K.L. (T.L. and Mr. Miller’s mother) was also on the porch. Officers located a gun
wedged between the railings on the porch, which K.L. claimed was her gun. Officers secured the
gun, arrested Mr. Miller, and transported him to the police station for questioning. During his
interview with a detective, Mr. Miller denied being with A.W. and T.L. at the time of the shooting.
Instead, Mr. Miller claimed that he had gone to a bar with his mother, and that he had just arrived
at the house on Hardesty Boulevard when the police arrived and arrested him.
{¶8} Officers discovered several shell casings in and around the driveway of the after-
hours house on Greenwood Avenue. A forensic scientist who specializes in firearms examined the
gun and testified that the shell casings located on Greenwood Avenue were consistent with having
been fired from the gun located on Hardesty Boulevard. A forensic scientist who specializes in
DNA testified that there was not enough DNA present on the shell casings to perform a DNA
comparison. That forensic scientist also testified, in simple terms, that there was too much DNA
on the gun to perform a DNA comparison. As a result, that expert could not testify within a
reasonable degree of scientific certainty whether Mr. Miller had handled the shell casings or the
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gun. A forensic scientist who performed a gunshot residue (“GSR”) test, however, testified that
both of Mr. Miller’s hands tested positive for GSR.
{¶9} A.W. received treatment for a gunshot wound to her lung, and T.L. received
treatment for grazing wounds. According to the treating trauma surgeon, the doctors made the
decision not to remove the bullet from A.W.’s lung because the risks of removing it outweighed
the risks of not removing it. The trauma surgeon explained that they inserted a tube into A.W.’s
chest to drain the excess air and fluid, and that A.W. remained hospitalized for five days.
{¶10} Officers interviewed T.L. and A.W. while they were at the hospital. The State
played the bodycam video of those interviews at trial without any objection from Mr. Miller’s trial
counsel. During the officers’ interview with T.L., T.L. explained that she, A.W., K.L., and Mr.
Miller went to an after-hours house together. T.L. explained that Mr. Miller became aggressive
and started pushing them around, so A.W. decided she wanted to leave. T.L. stated that Mr. Miller
threatened that he would shoot her and A.W. if they left, and that Mr. Miller started shooting at
them when they got into A.W.’s car. T.L. stated that she saw Mr. Miller with the gun, and that
there was no one else outside at the time of the shooting.
{¶11} During the officers’ interview with A.W., A.W. explained that Mr. Miller drove
them to the after-hours house, and that Mr. Miller threatened to shoot her and T.L. if they left.
A.W. stated that she thought Mr. Miller might have been upset because T.L. was talking to a man
at the after-hours house. A.W. explained that she decided to leave after Mr. Miller threatened to
shoot her, and that Mr. Miller followed her and T.L. outside. A.W. stated that she and T.L. got into
the car, and that she looked back and saw Mr. Miller standing behind her car pointing a gun at
them. A.W. explained that everything happened very quickly, and that the rest of the night was a
blur.
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{¶12} After the close of the State’s case-in-chief, Mr. Miller’s trial counsel moved for
acquittal under Crim.R. 29, which the trial court denied. Mr. Miller did not present any evidence
on his own behalf. The jury ultimately found Mr. Miller guilty of two counts of felonious assault
and the two accompanying firearm specifications, having a weapon while under a disability, and
attempted murder with the accompanying firearm specification.
{¶13} At sentencing, the trial court concluded that one of the felonious-assault counts
merged with the attempted-murder count because those counts involved the same victim: A.W.
The State elected to proceed with sentencing on the attempted-murder count. The trial court then
sentenced Mr. Miller to an indefinite prison term of five to seven and one-half years for the
remaining felonious-assault count, an indefinite prison term of six to nine years for the aggravated-
murder count, and a prison term of two years for the weapon-while-under-a-disability count, all of
which the trial court ran concurrently. The trial court also sentenced Mr. Miller to two consecutive
three-year prison terms for the remaining firearm specifications, for a total prison term of a
minimum of 12 years and a maximum of 15 years. Mr. Miller now appeals his convictions and
sentence, raising five assignments of error for this Court’s review.
II.
ASSIGNMENT OF ERROR I
IT IS PLAIN ERROR FOR THE COURT TO ALLOW TO BE PLAYED TO THE
JURY, AND TO ADMIT INTO EVIDENCE, THE TESTIMONIAL VIDEO
STATEMENT OF VICTIM TL WHO WAS INTERVIEWED BY THE POLICE
IN THE HOSPITAL AS IT WAS A DENIAL OF CONFRONTATION FOR
MARCELLARS MILLER, JR. AND THUS A VIOLATION OF HIS
CONSTITUTIONAL RIGHTS TO CONFRONT HIS WITNESSES AGAINST
HIM.
{¶14} In his first assignment of error, Mr. Miller argues that the trial court committed
plain error by admitting the six-minute bodycam video of T.L.’s hospital interview into evidence
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when T.L. did not testify at trial. Mr. Miller argues that the statements T.L. made in the video were
inadmissible hearsay that were testimonial in nature, and that they corroborated A.W.’s version of
the events. Mr. Miller argues that the admission of the video violated his rights under the
Confrontation Clause.
{¶15} Crim.R. 52(B) permits this Court to notice plain errors or defects that affected a
substantial right in the absence of an objection in the trial court. Under Crim.R. 52(B), “the
defendant bears the burden of demonstrating that a plain error affected his substantial rights.”
(Emphasis in original.) State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, ¶ 14; see also State v.
LaRosa, 165 Ohio St.3d 346, 2021-Ohio-4060, ¶ 40. This Court can only notice plain error when
there has been a deviation from a legal rule that constitutes an obvious defect in the trial
proceedings that affected the outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27 (2002).
This Court notices plain error only in exceptional circumstances to prevent a manifest miscarriage
of justice. State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.
{¶16} The Sixth Amendment to the United States Constitution guarantees an accused the
right to confront witnesses against him. Crawford v. Washington, 541 U.S. 36, 54 (2004). The
Confrontation Clause is implicated by the admission of out-of-court statements that are testimonial
in nature when the declarant does not testify in the proceeding. See Melendez–Diaz v.
Massachusetts, 557 U.S. 305, 309-310 (2009). Only testimonial statements make a declarant a
“witness” for purposes of the Confrontation Clause, and “[i]t is the testimonial character of the
statement that separates it from other hearsay that, while subject to traditional limitations upon
hearsay evidence, is not subject to the Confrontation Clause.” Davis v. Washington, 547 U.S. 813,
821 (2006).
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{¶17} Initially, this Court notes that Mr. Miller has not identified any specific statements
that T.L. made in the bodycam video in support of his assignment of error. Instead, he generally
asserts that T.L.’s statements were “much more detailed and expansive to the statements made of
AW[,]” and that they corroborated A.W.’s version of the events. Additionally, instead of
identifying any specific statements from T.L., Mr. Miller cites the interviewing officer’s testimony
at trial wherein the officer testified that T.L. told him that Mr. Miller “got mad with people inside
[the after-hours house]. He started pushing us around, like he always does. So just being aggressive
with her and her mom.” Mr. Miller acknowledges that the record reflects that the State only played
a portion of the video, and that the record does not make clear which portion the State played. He
argues, however, that since it is unclear which portion the State played, the trial court should not
have admitted the entire bodycam video into evidence.
{¶18} Having reviewed the record, this Court concludes that Mr. Miller has failed to
establish that the trial court committed plain error. This Court’s review of the bodycam video from
T.L.’s hospital interview indicates that T.L. identified Mr. Miller as the shooter and explained that
they had been to a party that evening. T.L. explained that Mr. Miller became upset at the party and
started pushing people around, which–according to T.L.–Mr. Miller had done in the past. T.L. also
explained that A.W. decided to leave the party, and that Mr. Miller threatened to shoot her and
A.W. T.L. further explained that she got into the car with A.W., that Mr. Miller was behind the
car, and that Mr. Miller started shooting at them.
{¶19} Even assuming that a Confrontation-Clause violation occurred, any error in the
admission of the bodycam video from T.L.’s hospital interview was harmless because “‘the
probable impact’ of the statements ‘on the minds of an average jury’ was negligible.” State v.
McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, ¶ 192, quoting Harrington v. California, 395
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U.S. 250, 254 (1969). Other evidence presented at trial (including T.L.’s 911 call and an officer’s
bodycam video from Courtland Avenue containing T.L.’s statements to the officers almost
immediately after the shooting) also indicated that T.L. identified Mr. Miller as the shooter. The
statements T.L. made during the hospital interview were cumulative of that evidence. See State v.
Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, ¶ 130 (recognizing that the admission of evidence
that is “merely cumulative” of other evidence, the admissibility of which was not challenged, does
not amount to plain error). Additionally, A.W. identified Mr. Miller as the shooter and testified
that he became aggressive at the after-hours house. See id.{¶20} While T.L. did mention during the hospital interview that Mr. Miller pushed her
and A.W. around at the after-hours house and that Mr. Miller had done so in the past, Mr. Miller
has not established that, but for the admission of those statements, the result of the trial would have
been different, and that reversal is necessary to prevent a manifest miscarriage of justice. In re
Z.S., 9th Dist. Summit No. 29887, 2021-Ohio-2022, ¶ 8, quoting In re S.G., 9th Dist. Summit No.
27428, 2015-Ohio-2503, ¶ 11 (“In the criminal context, plain error does not exist unless it can be
said that but for the error, the outcome of the trial would have been different and that reversal is
necessary to prevent a manifest miscarriage of justice.”). Accordingly, Mr. Miller has failed to
establish plain error. Mr. Miller’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT
APPELLANT MILLER WAS THE SHOOTER OF A GUN AND OR
KNOWINGLY CAUSED OR ATTEMPTED TO CAUSE PHYSICAL HARM
AND OR THAT HE USED A GUN AS ALLEGED IN THE GUN
SPECIFICATIONS AND THUS THERE IS INSUFFICIENT EVIDENCE FOR
THE JURY VERDICTS AND THE COURT ERRED IN DENYING THE
DEFENDANT’S RULE 29 MOTION.
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{¶21} In his second assignment of error, Mr. Miller argues that the State failed to present
sufficient evidence to support his convictions because the State failed to prove beyond a reasonable
doubt that he was the shooter, that he knowingly caused or attempted to cause physical harm to
the victims, or that he used a gun on the night of the incident. This Court notes that Mr. Miller’s
second assignment of error challenges, in part, the weight of the evidence presented at trial. Mr.
Miller’s captioned assignment of error, however, is limited to the sufficiency of the evidence. This
Court will limit its review accordingly. State v. Williams, 9th Dist. Summit No. 29547, 2021-Ohio-
2491, ¶ 15 (declining to address arguments that fall outside the scope the appellant’s captioned
assignment of error).
{¶22} “Whether a conviction is supported by sufficient evidence is a question of law that
this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009-Ohio-6955, ¶
18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The relevant inquiry is whether the
prosecution has met its burden of production by presenting sufficient evidence to sustain a
conviction. Thompkins at 390 (Cook, J., concurring). For purposes of a sufficiency analysis, this
Court must view the evidence in the light most favorable to the State. Jackson v. Virginia, 443
U.S. 307, 319 (1979). We do not evaluate credibility, and we make all reasonable inferences in
favor of the State. State v. Jenks, 61 Ohio St.3d 259, 273 (1991). The evidence is sufficient if it
allows the trier of fact to reasonably conclude that the essential elements of the crime were proven
beyond a reasonable doubt. Id. The trier of fact is entitled to rely on direct, as well as circumstantial
evidence. See id.{¶23} Relevant to the arguments raised in this assignment of error, the jury found Mr.
Miller guilty of felonious assault under R.C. 2903.11(A)(2) and attempted murder under R.C.
2923.02 (attempt) and R.C. 2903.02(B) (murder). Regarding felonious assault, R.C. 2903.11(A)(2)
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provides that “[n]o person shall knowingly * * * [c]ause serious physical harm to another[.]”
Regarding attempt, R.C. 2923.02(A) provides that “[n]o person, purposely or knowingly, and
when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage
in conduct that, if successful, would constitute or result in the offense.” Regarding murder, R.C.
2903.02(B) provides that “[n]o person shall cause the death of another as a proximate result of the
offender’s committing or attempting to commit an offense of violence * * *.”
{¶24} As noted, Mr. Miller argues that the State failed to present sufficient evidence to
establish that he was the shooter, that he knowingly caused or attempted to cause physical harm to
the victims, or that he used a gun on the night of the incident. He argues, in part, that without the
admission of T.L.’s hospital interview into evidence, the testimony of A.W. alone was insufficient
to sustain his convictions. In evaluating the sufficiency of the evidence, however, this Court
considers all of the evidence that the State presented, regardless of any alleged error in its
admission. State v. Meinke, 9th Dist. Lorain No. 15CA010738, 2017-Ohio-7787, ¶ 10, quoting
State v. Vanni, 182 Ohio App.3d 505, 2009-Ohio-2295, ¶ 15 (9th Dist.) (“Because the State cannot
retry a defendant following a reversal on the sufficiency of the evidence, ‘the interest in the
administration of justice dictates that the appellate court review the issue of sufficiency in
consideration of all evidence presented by the [S]tate in its case in chief, whether such evidence
was properly admitted or not.’”). Moreover, as the Ohio Supreme Court has recognized, the
testimony of one witness, if believed, is sufficient to prove a fact. State v. Dean, 146 Ohio St.3d
106, 2015-Ohio-4347, ¶ 177.
{¶25} Regarding the State’s evidence establishing that Mr. Miller used a gun and shot at
A.W. and T.L., the State presented: (1) testimony from A.W., who testified that she saw Mr. Miller
with a gun, that Mr. Miller shot her, and that she sustained a bullet wound to her lung; (2) T.L.’s
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911 call wherein T.L. identified Mr. Miller as the shooter; (3) bodycam video from the officers
who responded to Courtland Avenue (i.e., where T.L. and A.W. were still in A.W.’s car almost
immediately after the shooting) wherein T.L. identified Mr. Miller as the shooter; (4) evidence
indicating that A.W. received treatment for a bullet wound to her lung and that T.L. received
treatment for grazing wounds; (5) the results of the GSR test indicating that Mr. Miller had GSR
on both of his hands; and (6) testimony from a forensic scientist indicating that the shell casings
discovered at the scene of the shooting were consistent with having been fired from the gun located
on the porch of the house on Hardesty Avenue (i.e., where the police found and arrested Mr.
Miller). Viewing this evidence in a light most favorable to the State, this evidence allowed the jury
to reasonably conclude that Mr. Miller used a gun on the night of the incident and that he shot at
A.W. and T.L. See Jackson, 443 U.S. at 319; Jenks, 61 Ohio St.3d at 273.
{¶26} Regarding Mr. Miller’s argument that the State failed to present sufficient evidence
to prove that he knowingly caused or attempted to cause physical harm to the victims, 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.” R.C. 2901.22(B).
{¶27} Here, the State presented evidence indicating that Mr. Miller fired several shots at
A.W.’s car, striking A.W. and grazing T.L. As this Court has acknowledged, “[e]vidence that a
defendant fired a gun in a person’s direction is sufficient evidence that the defendant acted
knowingly for the purpose of a felonious assault conviction.” (Alteration sic.) State v. Ivery, 9th
Dist. Summit No. 28551, 2020-Ohio-3349, ¶ 13, quoting State v. Fox, 10th Dist. Franklin No.
17AP-295, 2018-Ohio-501, ¶ 14. That evidence is also sufficient for a jury to infer that the
defendant intended to cause death. See Ivery at ¶ 15; State v. Guice, 9th Dist. Lorain No.
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16CA011054, 2017-Ohio-9295, ¶ 31 (holding that the defendant’s conviction for attempted
murder was supported by sufficient evidence because the evidence indicated that the defendant
fired several shots in the direction of a police cruiser, knowing that there was an officer behind the
wheel); In re F.D., 8th Dist. Cuyahoga No. 102135, 2015-Ohio-2405, ¶ 25 (“Ohio courts have
consistently held that shooting a gun in a place where there is a risk of injury to one or more
persons supports the inference that the offender acted knowingly.”). Mr. Miller’s argument,
therefore, lacks merit.
{¶28} In light of the foregoing, Mr. Miller’s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE COURT ERRED IN ORDERING CONSECUTIVE SENTENCES ON THE
GUN SPECIFICATION WHEN IT ORDERED CONCURRENT TIME ON THE
UNDERLYING FELONIES.
{¶29} In his third assignment of error, Mr. Miller argues that the trial court erred by
imposing consecutive sentences on the firearm specifications when the trial court imposed
concurrent sentences on the underlying offenses. This Court disagrees.
{¶30} In reviewing a felony sentence, “[t]he * * * standard for review is not whether the
sentencing court abused its discretion.” R.C. 2953.08(G)(2). “[A]n appellate court may vacate or
modify a felony sentence on appeal only if it determines by clear and convincing evidence” that:
(1) “the record does not support the trial court’s findings under relevant statutes[,]” or (2) “the
sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶
1. Clear and convincing evidence is that “which will produce in the mind of the trier of facts a firm
belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469(1954), paragraph three of the syllabus.
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{¶31} As this Court has explained, “[i]n the instance of multiple firearm specifications, a
defendant generally will be subject to only one three-year sentence ‘for felonies committed as part
of the same act or transaction.’” State v. Ross, 9th Dist. Lorain No. 21CA011729, 2023-Ohio-1185,
¶ 63, quoting State v. Rouse, 9th Dist. Summit No. 28301, 2018-Ohio-3266, ¶ 10. “The general
rule does not apply, however, when R.C. 2929.14(B)(1)(g) controls.” Id. R.C. 2929.14(B)(1)(g)
provides:
If an offender is convicted of * * * two or more felonies, if one or more of those
felonies are * * * attempted murder [or] * * * felonious assault * * *, and if the
offender is convicted of * * * a [firearm] specification * * * in connection with two
or more of the felonies, the sentencing court shall impose on the offender the prison
term specified under division (B)(1)(a) of this section for each of the two most
serious specifications of which the offender is convicted * * * and, in its discretion,
also may impose on the offender the prison term specified under that division for
any or all of the remaining specifications.
“Thus, under R.C. 2929.14(B)(1)(g), a trial court is required to order consecutive service of a
defendant’s specifications.” Ross at ¶ 63, quoting Rouse at ¶ 10.
{¶32} Here, the jury found Mr. Miller guilty of a firearm specification in connection with
his conviction of attempted murder. The jury also jury found Mr. Miller guilty of a firearm
specification in connection with his conviction of felonious assault. Under R.C. 2929.14(B)(1)(g),
the trial court properly imposed a three-year prison term on each specification, and properly
ordered those three-year terms to run consecutively. Ross at ¶ 64. The fact that the trial court
imposed concurrent sentences on the convictions for attempted murder and felonious assault does
not affect that conclusion. See State v. Bollar, Slip Opinion No. 2022-Ohio-4370, ¶ 13, 25 (holding
that R.C. 2929.14(B)(1)(g) allows a trial court to impose sentences for multiple firearm
specifications for felonies that were committed as part of the same act or transaction when the
underlying offenses have been merged). Mr. Miller’s third assignment of error is overruled.
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ASSIGNMENT OF ERROR IV
THE VERDICT AND CONVICTION IS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE AS THE JURY CLEARLY LOST ITS WAY AND THUS
CREATED A MANIFEST MISCARRIAGE OF JUSTICE.
{¶33} In his fourth assignment of error, Mr. Miller challenges the manifest weight of the
evidence. When considering whether a conviction is against the manifest weight of the evidence,
this 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). A reversal on this basis is reserved for
the exceptional case in which the evidence weighs heavily against the conviction. Id., citing State
v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{¶34} Initially, this Court notes that aside from providing the standard of review for the
manifest weight of the evidence, Mr. Miller has not supported his assignment of error with citations
to legal authority, nor has he provided any citations to the record. See App.R. 16(A)(7). Instead,
he summarily asserts that without the admission of the bodycam video of T.L.’s hospital interview,
the jury would not have found him guilty. Mr. Miller also summarily asserts that A.W.’s testimony
and the physical evidence do not support his convictions. Regarding the latter, Mr. Miller asserts
that without DNA evidence or fingerprints on the gun, there can be no proof beyond a reasonable
doubt.
{¶35} Having reviewed the record, this Court concludes that Mr. Miller’s challenge to the
manifest weight of the evidence lacks merit. As summarized in this Court’s recitation of the
evidence presented at trial, A.W. testified that Mr. Miller threatened to shoot her and T.L. A.W.
also testified that she saw Mr. Miller standing behind her car with a gun immediately prior to the
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shooting. Additionally, the State played T.L.’s 911 call for the jury. In it, T.L., who was screaming
and crying, identified Mr. Miller as the shooter. The State also played the bodycam video of an
officer who responded to Courtland Avenue wherein T.L., almost immediately after the shooting,
identified Mr. Miller as the shooter. The State also presented evidence indicating that A.W.’s car
was shot several times, and that the shell casings located at the scene were consistent with having
been fired from the gun found on the porch of the house where officers located and arrested Mr.
Miller. The State also presented the results of the GSR test, which indicated that Mr. Miller tested
positive for GSR.
{¶36} Here, the jury chose to believe the State’s version of the events, which is not a basis
for reversal. State v. Bersch, 9th Dist. Wayne No. 20AP0018, 2021-Ohio-3957, ¶ 16. Having
reviewed the record, this Court concludes that this is not the exceptional case in which the evidence
weighs heavily against Mr. Miller’s convictions. Id. Mr. Miller’s fourth assignment of error is
overruled.
ASSIGNMENT OF ERROR V
MARCELLARS MILLER WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE U.S. CONSTITUTION AND ARTICLE I, SECTION
10, OF THE OHIO CONSTITUTION.
{¶37} In his fifth assignment of error, Mr. Miller argues that his trial counsel rendered
ineffective assistance. This Court disagrees.
{¶38} “[I]n Ohio, a properly licensed attorney is presumed competent.” State v. Gondor,
112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 62. To prevail on a claim of ineffective assistance of
counsel, Mr. Miller must establish: (1) that his counsel’s performance was deficient to the extent
that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment[;]” and (2) that “the deficient performance prejudiced the defense.” Strickland v.
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Washington, 466 U.S. 668, 687 (1984). A deficient performance is one that falls below an objective
standard of reasonable representation. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two
of the syllabus. To establish prejudice, Mr. Miller must show that there existed a reasonable
probability that, but for his counsel’s errors, the outcome of the proceeding would have been
different. State v. Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, ¶ 138. As the Ohio Supreme Court
has acknowledged, “[a] defendant’s failure to satisfy one prong of the Strickland test negates a
court’s need to consider the other.” State v. Madrigal, 87 Ohio St.3d 378, 389 (2000), citing
Strickland at 697.
{¶39} In support of his assignment of error, Mr. Miller first asserts that his trial counsel
rendered ineffective assistance by not objecting to the admission of T.L.’s hospital interview. This
Court, however, has already determined in our resolution of Mr. Miller’s first assignment of error
that any error in that regard did not affect the outcome of the trial. Mr. Miller, therefore, cannot
establish prejudice.
{¶40} Next, Mr. Miller asserts that his trial counsel rendered ineffective assistance by
failing to support his Rule 29 motion for acquittal with specific arguments. Mr. Miller, however,
has not explained what argument(s) his trial counsel should have made. “[T]his Court will not
‘guess at undeveloped claims on appeal’ or construct arguments to support an assignment of error.”
State v. Meyerson, 9th Dist. Summit No. 30260, 2023-Ohio-708, ¶ 43, quoting State v. Beverly,
9th Dist. Summit No. 28627, 2019-Ohio-957, ¶ 6. This Court, therefore, rejects Mr. Miller’s
argument in this regard.
{¶41} Lastly, Mr. Miller asserts that his trial counsel rendered ineffective assistance by
failing to “scrutinize the gun specification statute so as to make argument for consecutive
mandatory gun spec terms[.]” This Court, however, has already determined in our resolution of
17
Mr. Miller’s third assignment of error that the trial court did not err when it imposed consecutive
sentences for the firearm specifications. As a result, Mr. Miller’s argument in this regard lacks
merit.
{¶42} In light of the foregoing, Mr. Miller’s fifth assignment of error is overruled.
III.
{¶43} Mr. 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.
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.
JILL FLAGG LANZINGER
FOR THE COURT
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SUTTON, P. J.
STEVENSON, J.
CONCUR.
APPEARANCES:
RICHARD P. KUTUCHIEF, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.