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State v. Miller

Court of Appeals of Ohio, Sixth District, Sandusky

June 28, 2019

State of Ohio Appellee
Herman C. Miller Appellant

          Trial Court No. 17CR1071

          Timothy Braun, Sandusky County Prosecuting Attorney, and Mark E. Mulligan, Assistant Prosecuting Attorney, for appellee.

          Russell V. Leffler, for appellant.


          MAYLE, J.


         {¶ 1} Following a jury trial in the Sandusky County Court of Common Pleas, the defendant, Herman Miller, was convicted of rape and kidnapping, and the trial court sentenced him to serve 8 years in prison. On appeal, Miller alleges that he received ineffective assistance of trial counsel and that the trial court erred in failing to instruct the jury on the lesser included offenses of sexual battery and abduction/unlawful restraint. For the reasons that follow, Miller's assignments of error are not well-taken, and the lower court's August 1, 2018 judgment is affirmed.

         Facts and Procedural History

         {¶ 2} The victim in this matter, J.R., alleged that she was sexually assaulted and kidnapped by two offenders: Miller and his friend, Dearlo Hardin. Because the allegations against each perpetrator are inexorably intertwined, we begin with the victim's testimony describing Hardin's alleged assault. Hardin was tried separately.

         {¶ 3} The victim is a 28-year-old mother of two, who lives with her mother and step-father. Although now sober, the victim testified that she used crack cocaine and heroin on a daily basis between 2015 and November of 2017. During much of that time, the victim had a relationship with Hardin. While the two "weren't committed to each other," they did "mess[] around a few times." Through Hardin, the victim met Miller and Miller's girlfriend, Julie Pinell. The victim testified that the three of them (i.e. she, Miller and Pinell) "smok[ed] crack and [had] sexual relations with each other * * * a few times."

         {¶ 4} On April 8, 2017, Hardin asked the victim to come over to Pinell and Miller's apartment, located on Dickerson Street in Fremont, Ohio. According to the victim, Hardin "didn't tell me why, but [he kept] bugging me to come over so I was just curious to see what he wanted." The victim arrived at 12:40 p.m. Hardin and Miller were both there; Pinell was out doing errands. About 40 minutes after arriving, the victim asked Hardin if she could "take a hit" from his crack pipe. Hardin agreed, and the victim took "one hit," and returned the pipe. Hardin asked the victim if she "want[ed] to take a shower," and the victim said, "sure." Before they reached the shower, Hardin accused the victim of taking his crack pipe, and they soon began to argue. The victim testified that she felt she had been "set up." Hardin made the victim go upstairs and look for "the pipe that was never missing," and he began "yelling" and "threatening * * * to kill" her over the pipe.

         {¶ 5} Miller then brought Hardin a "Taser," and Hardin threatened to use it if she didn't tell him where the pipe was. As the victim described it, "[Hardin] put the Taser to my neck for about five seconds, and then he put it back on my neck," sending two "extremely painful" shock waves through her body. Miller watched while the victim was "kicking and screaming and yelling." Hardin then "came up with another proposition * * * that if [the victim had] sex with him," he would let her go. The victim testified that, although she was not "feeling sexy at all," she agreed, and the two had sex.

         {¶ 6} Afterward, the victim got dressed and walked downstairs as if to leave. Despite his promise, Hardin refused to let her leave, and he took the victim's phone. Julie Pinell, who had returned to the apartment, also prevented the victim from leaving. The victim testified, {¶ 7} [Pinell] said where do you think you're going * * * you're not going anywhere * * * and then she yelled for [Miller] and they both came upstairs, and [Miller] said, you're going to have sex with me, and I said, no I'm not; why, and then [Pinell] said, shut the fuck up and do what I say or else there's going to be more problems * * *.

         {¶ 8} The victim testified that she "laid down" on a mattress that was on a bedroom floor, and Miller held one of her legs, and he told [Pinell] "to hold my [other] leg up." Miller then "put it [his penis] inside me and started having sex with me." The victim testified that when she resisted a little, "then he just went harder, and then when he was finished, [Pinell] held my head up, and he ejaculated in my mouth, and then that was it." The victim estimated that Miller's assault lasted about seven minutes.

         {¶ 9} The victim then endured a new round of beatings by Hardin and Pinell, over the whereabouts of the crack pipe. According to the victim, Pinell punched the victim in the face "a couple of times," and Hardin choked her. The victim testified that Miller "sat there and watched me while I reached out to him for help because [Hardin] was choking me, and I thought I was going to die." Miller told her, "just tell them where it's at so they can let you go * * * we know you have it."

         {¶ 10} The victim tried to escape from the apartment, but the door was tied shut with a rope. Without her phone and inability to open the door, the victim "had no way of getting help," so she started screaming. Miller told her that it would do no good because he "made sure [the neighbors] weren't home." Miller said to the victim, "you can kick and scream all you want, no one's going to hear you * * * I made sure the neighbors are not at home." In all, the victim testified that she tried to leave three times, and that "none of them [i.e. Miller, Hardin, or Pinell] would let me leave."

         {¶ 11} About 10:20 a.m. the next day, April 9, 2017, almost 22 hours since arriving, the victim was finally allowed to leave. The victim called her stepdad who picked her up. The victim "cried and cried" as she told him what she had endured. Her stepfather, and later her mother, both of whom testified, encouraged the victim to go to the police. Later that day, the victim went to the Fremont Police Department and reported what had occurred.

         {¶ 12} At trial, Pinell testified on behalf of the state. As to Miller's sexual assault of the victim, Pinell corroborated the victim's testimony that Miller "told [the victim] to lay down, * * * [and] told [Pinell] to hold her leg up." Pinell admitted that she held up the victim's leg while Miller had sex with her. Pinell claimed that she never heard the victim say "no" while having sex with Miller.

         {¶ 13} Fremont Police Detective Roger Oddo testified at trial that he took the victim home from the police station and retrieved from her the clothes she had been wearing at the apartment. Det. Oddo also helped to conduct a search of Miller and Pinell's apartment where police confiscated the taser.

         {¶ 14} On November 21, 2017, Miller was indicted on charges of rape (vaginal), in violation of R.C. 2907.02(A)(2) and (B), a felony of the first degree (Count 1); rape (fellatio), in violation of R.C. 2907.02 (A)(2) and (B), a felony of the first degree (Count 2); and kidnapping, in violation of R.C. 2905.01(A)(3) and (4), a felony of the first degree (Count 3). Miller pled not guilty at his December 11, 2017 arraignment.

         {¶ 15} The case was tried before a jury on July 26, 2018, and the jury returned a verdict of guilty, as to Counts 1 and 3, and not-guilty, as to Count 2. At the sentencing hearing, the prosecution took the position that the kidnaping and rape convictions merged for purposes of sentencing and elected to have Miller sentenced as to the rape conviction. By order dated August 1, 2018, the court sentenced Miller to a mandatory term of 96 months in prison for rape and a mandatory five year period of post release control. The court also imposed various costs and ...

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