[Cite as State v. Miller, 2018-Ohio-3433.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MARION COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 9-18-02

        v.

JACQUELINE R. MILLER,                                      OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Marion County Common Pleas Court
                             Trial Court No. 17-CR-249

                                       Judgment Affirmed

                             Date of Decision: August 27, 2018




APPEARANCES:

        Nathan Witkin for Appellant

        Kevin P. Collins for Appellee
Case No. 9-18-02


SHAW, J.

       {¶1} Defendant-appellant, Jacqueline R. Miller (“Miller”), brings this appeal

from the December 21, 2017, judgment of the Marion County Common Pleas Court

sentencing her to 15 years to life in prison after Miller was convicted in a jury trial

of Murder in violation of R.C. 2903.02(A), an unclassified felony, and Possession

of Cocaine in violation of R.C. 2925.11(A), a felony of the fifth degree. On appeal,

Miller argues that her conviction for Murder was against the manifest weight of the

evidence, that the trial court should have declared a mistrial based on prosecutorial

misconduct, and that she received ineffective assistance of trial counsel.

                      Relevant Facts and Procedural History

       {¶2} On June 14, 2017, Miller was indicted for one count of Murder in

violation of R.C. 2903.02(A), an unclassified felony, and one count of Possession

of Cocaine in violation of R.C. 2925.11(A)/(C)(4), a felony of the fifth degree. It

was alleged that Miller beat 81-year old Howard Biederman to death with a pair of

vise grips, striking him at least 18 times, including 14 times in the head.

       {¶3} Howard lived several houses down from Miller and had loaned her

money in the past. Miller was living in a tent behind her old house at the time of

the incident because her water and electric had been shut off. Miller was a crack-

cocaine user, and allegedly went to purchase crack after beating Howard to death,




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and taking $20 out of his shirt pocket. When she was located later on the evening

of Howard’s death, she was found in possession of crack cocaine.

       {¶4} Miller pled not guilty to the charges and her case proceeded to a jury

trial, which was held December 12-15, 2017. The State presented the testimony of

a dozen witnesses, introduced various stipulations regarding forensic evidence, and

entered numerous exhibits. Miller then took the stand on her own behalf, and

testified that Howard had actually made a sexual advance on her, indicating that she

could “pay him back” money that he had loaned her through other means, which

she took to be sexual. Miller testified that she then flashed-back to other incidents

wherein she had been raped in her youth, and she struck Miller with vise grips that

were nearby on a table.      Miller claimed she only recalled striking Howard

approximately 3 times, but the evidence indicated, conservatively, 18 separate

strikes, including defensive wounds on Howard’s arms. Miller also presented the

testimony of a psychologist, who diagnosed her with PTSD.

       {¶5} The jury was instructed on Murder, the lesser-included offense of

Voluntary Manslaughter, and the lesser-included offense of Reckless Homicide.

The jury was also instructed on self-defense. Ultimately, the jury returned guilty

verdicts on the original Murder charge and the Possession of Cocaine charge as

indicted.




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         {¶6} On December 21, 2017, Miller’s case proceeded to sentencing. She was

ordered to serve 15 years to life in prison on the Murder charge, and a concurrent 9-

month prison term on the Possession of Cocaine charge. It is from this judgment

that Miller appeals, asserting the following assignments of error for our review.

                            Assignment of Error No. 1
         Defendant-appellant’s conviction of Murder was against the
         manifest weight of the evidence.

                           Assignment of Error No. 2
         The court should have declared a mistrial based on prosecutorial
         misconduct.

                            Assignment of Error No. 3
         Counsel for the defense provided ineffective assistance of counsel.

                                     First Assignment of Error

         {¶7} In her first assignment of error, Miller argues that her conviction for

Murder was against the manifest weight of the evidence.1 Specifically, she contends

that the jury’s determination that Miller had the “purpose” to commit murder was

against the manifest weight of the evidence. She also argues that the jury’s failure

to find self-defense in this case was against the manifest weight of the evidence.

                                         Standard of Review

         {¶8} In reviewing whether a verdict was against the manifest weight of the

evidence, the appellate court sits as a “thirteenth juror” and examines the conflicting


1
  Miller makes no argument with regard to her conviction for Possession of Cocaine, and does not mention
it in the assignment of error, therefore we will not address it. She seemed to largely concede the possession
charge at trial.

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testimony. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). In doing so, this

Court must review the entire record, weigh the evidence and all of the reasonable

inferences, consider the credibility of witnesses and determine whether in resolving

conflicts in the evidence, the factfinder “clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered.” Id. Furthermore, “[t]o reverse a judgment of a trial court on the weight

of the evidence, when the judgment results from a trial by jury, a unanimous

concurrence of all three judges on the court of appeals panel reviewing the case is

required. Thompkins at paragraph 4 of the syllabus, citing Ohio Constitution,

Article IV, Section 3(B)(3).

                                Relevant Authority

       {¶9} In this case, Miller was convicted of Murder in violation of R.C.

2903.02(A), which reads, “No person shall purposely cause the death of another[.]”

       {¶10} Miller claims that the jury’s finding that she had the specific purpose

to kill Howard was against the manifest weight of the evidence. Purpose is defined

in R.C. 2901.22 as follows.

       A person acts purposely when it is the person’s specific intention
       to cause a certain result, or, when the gist of the offense is a
       prohibition against conduct of a certain nature, regardless of
       what the offender intends to accomplish thereby, it is the
       offender’s specific intention to engage in conduct of that nature.




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       {¶11} Purpose can be established by circumstantial evidence. State v. Nicely,

39 Ohio St.3d 147, 529 N.E.2d 1236 (1988). “The element of purpose required by

R.C. 2903.02 may be presumed where the natural and probable consequences of a

wrongful act are to produce death. State v. Shue, 97 Ohio App.3d 459, 466 (9th

Dist. 1994), citing State v. Robinson, 161 Ohio St. 213, 118 N.E.2d 517 (1954),

paragraph five of the syllabus.

       {¶12} Miller also claimed self-defense in this case, and she argues that the

jury’s failure to find self-defense was against the manifest weight of the evidence.

In order to establish self-defense, the defendant must establish that

       (1) the slayer was not at fault in creating the situation giving rise
       to the affray; (2) the slayer has a bona fide belief that [she] was in
       imminent danger of death or great bodily harm and that [her]
       only means of escape from such danger was in the use of such
       force; and (3) the slayer must not have violated any duty to retreat
       or avoid the danger.

(Internal citations omitted). State v. Robbins, 58 Ohio St.2d 74, 388 N.E.2d 755

(1979). If the defendant fails to prove any of the elements of self-defense by a

preponderance of the evidence, she has failed to demonstrate that she acted in self-

defense. State v. Jackson, 22 Ohio St.3d 281, 284 (1986).

                                  Evidence Presented

       {¶13} At trial, the State presented evidence that the victim, Howard

Biederman, was 81 years old and that he lived alone at 303 Uncapher Street in

Marion, Ohio. According to Howard’s daughter-in-law, Karla Biederman, Howard

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had colon cancer, had recently had surgery for it, and was still recovering on June

7, 2017. Karla and/or her husband went to Howard’s home daily to check on him

and take him leftovers to eat.

       {¶14} Karla indicated that Howard was a creature of habit, that he always sat

in the same chair, that he kept his house very warm and that he would often sit with

his shirt off. Karla testified that when Howard was wearing a shirt at home, it was

always a button-up shirt with a front pocket, and he kept his money in that front

pocket. Karla testified that at one point Howard had cashed his son’s social security

check and had around $1,000 on him.

       {¶15} Karla testified that Howard had mentioned Miller to her before,

indicating that Miller had borrowed money from him but had not paid any of it back.

Karla testified that in the weeks prior to Howard’s June 7, 2017, death, Howard had

said he was “fixing to cut [Miller] off because she won’t pay me back.” (Tr. at 218).

       {¶16} Miller lived at 327 Uncapher Street, a few houses down from Howard,

but her electric and water had been turned off so she was staying in a tent behind

the residence. On June 7, 2017, Miller was seen going to Howard’s residence by

Rhonda Bollinger, who lived across the street from Howard, at approximately 4:00

p.m. Bollinger saw Miller enter Howard’s residence, but she did not see her leave.

       {¶17} Karla Biederman testified that she went over to Howard’s residence

near 7:00 p.m. to check on him because he was not answering his phone. Karla had


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dropped off new medications for cholesterol and blood pressure earlier in the day,

and she wanted to make sure Howard knew how to take them. Karla testified that

since Howard was not answering his phone, she went to his residence. She testified

that when she walked in the front door, she saw Howard sitting in the chair he

usually sat in, covered in blood, and she called 911.

       {¶18} Police and firefighters responded, and Howard was pronounced dead

at the scene. An autopsy revealed that Howard was approximately 5’6” and

weighed 117 pounds. Dr. John Daniels of the Franklin County Coroner’s Office

testified that Howard died of blunt force injuries to the head.

       {¶19} Dr. Daniels testified that, estimating conservatively, Howard had been

struck 17 to 18 times, including at least 14 times in the head. At least one of the

injuries depressed Howard’s skull a quarter-inch. A number of lacerations were

present to Howard’s head ranging from three-quarters of an inch in length to a

quarter-inch in depth. Dr. Daniels testified that the lacerations on Howard were

consistent in size with each other, but he did not know what caused the blunt force

damage. He did indicate, however, that he felt some of the wounds on Howard’s

extremities were defensive, and that the blow to the skull that caused a rectangular

fracture would have led to unconsciousness fairly quickly, from instantaneously to

a minute later.




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        {¶20} Howard was covered in blood when he was found on June 7, 2017. A

piece of his skull was located on the floor and his blood was on the, floor, walls,

and ceiling of his residence.             After speaking with Karla and Rhonda, police

identified Miller as a person of interest and sought to track her down. Miller was

located later that evening at the home of Troy Gallagher.

        {¶21} Gallagher testified that prior to the police arriving at his residence

Miller had been there for 45 minutes to an hour. Gallagher testified that Miller had

some blood on her, and that she had said that she thought she killed someone.

Gallagher testified that he did not ask her more about that statement.

        {¶22} Gallagher testified that Miller brought crack-cocaine with her to his

residence in 3 bags, totaling potentially as much as $180 worth.2 Gallagher testified

that they smoked “a $20 piece” at his residence. Gallagher indicated that when the

police knocked on his door, Miller told him to tell the police that she was not present.

However, Gallagher allowed the police into his residence.

        {¶23} Body camera footage of police entering Gallagher’s residence was

introduced into evidence. When the police entered Gallagher’s room, Miller was

present with multiple $20 bills and baggies that were later determined to contain

crack cocaine. Miller could be seen on the body camera being concerned about




2
 Gallagher testified that Miller had brought three bags with her, one with approximately $40 of crack, one
with approximately $60 of crack, and one with approximately $80.

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Case No. 9-18-02


retrieving her money at the time, which was on the floor. Miller was arrested and

taken for questioning.

       {¶24} An interview with Miller was played for the jury in its entirety. At the

beginning of the interview, Miller noted that she had been at Howard’s house earlier

that day, thinking it was around 2 p.m., but she stated that nothing had happened

there. During the interview the detective noted that Miller had what appeared to be

blood on her clothes, on multiple layers, including her shoes. Blood on the outer

shirt was later tested and found to be consistent with Howard’s DNA.

       {¶25} Miller accounted for her whereabouts after leaving Howard’s by

indicating that she had gone to purchase crack cocaine, that she went to a Family

Dollar store and purchased cat food and laundry detergent, and that she then went

to Troy’s.

       {¶26} Much later in the interview, Miller admitted to killing Howard,

indicating that she used a pair of vise grips that were on Howard’s table. When the

detectives pressed her for a reason as to why she killed Howard, asking if Howard

hurt her, or if Howard did something to her, Miller told the detectives that she had

been raped multiple times previously when she was younger, and that Howard made

a sexual advance on her, by putting his hand on her leg and indicating there were

other ways she could pay him back money that she owed him.




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       {¶27} Miller indicated in the interview that she wiped the blood off the vise

grips on her shirt before she left Howard’s residence, and that she only remembered

striking him a few times. The vise grips were located at Howard’s residence on the

table. They had DNA consistent with Howard’s on them, but no blood, and no DNA

consistent with Miller’s.

       {¶28} At trial, Miller testified in her own defense, elaborating on the issues

that were discussed in her interview. She detailed three separate instances of rape

that had purportedly occurred to her in her youth, the first by a family friend when

she was 13. Miller testified that her parents did not want to ruin the man’s family

or reputation, so nothing was done about it.

       {¶29} Miller testified that the second incident happened when she was 15.

She indicated that two guys in a van pulled up and grabbed her, forced her to

perform oral sex on them both for 2-3 hours. Miller indicated that she did not know

the men, that they looked “like hippies,” and that she never told anyone about the

second incident.

       {¶30} Miller testified that the third incident occurred a few months before

her 17th birthday, when 4-5 guys pulled up in a car, grabbed her and took her to an

abandoned garage. Miller stated that she was sexually assaulted by all of them, and

sodomized, and that it lasted 4 to 5 hours. Miller testified that she did not know any




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of them, but the guys seemed to know her family, and threatened to hurt them if

Miller told anyone.

       {¶31} As to her relationship with Howard, Miller testified that she had

known Howard since she was young, and that she thought of him like a father figure.

She testified that she had borrowed money from him in the past, but often tried to

work it off by cleaning his dishes or his basement.

       {¶32} Miller testified that on June 7, 2017, she got a letter about taxes that

indicated she needed to call and she did not have a working phone so she went to

Howard’s residence to use his. Miller testified that she chatted with Howard and

Howard stated at one point that he would give her $20. Miller testified that

eventually Howard got up and sat by her on the couch, put his hand on her thigh and

said that there were other ways she could pay him back.

       {¶33} Miller testified that Howard’s hand was close to her crotch and that he

was grabbing her breasts, that he twisted her shirt and tried to pull her. Miller

testified that she started recalling the prior sexual assaults, and when she could not

get loose she picked up a tool on the table and hit Howard in the head with it 2 or 3

times to get away. Miller testified that she did not remember the incident well, and

that Howard was still moaning on the floor when she wiped the tool off on her shirt.

Miller testified that she took $20 out of Howard’s shirt pocket before she left,

because he had said she could have it.


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       {¶34} Miller testified that she did then go to purchase crack, that she also

purchased laundry detergent at Family Dollar, and that she did go to Troy

Gallagher’s residence. Miller denied telling Troy that she thought she had killed

someone earlier that day.

       {¶35} Miller also presented the testimony of Dr. James Reardon, a

psychologist and expert in forensic psychology. Dr. Reardon testified that he

evaluated Miller, that he conducted multiple tests on her, and that he ultimately

diagnosed Miller with moderate to severe PTSD.

                                      Analysis

       {¶36} On appeal, Miller argues that her conviction for Murder was against

the manifest weight of the evidence. She first claims that the jury clearly lost its

way by finding that Miller acted with the “purpose” to cause Howard’s death.

       {¶37} Contrary to Miller’s argument, the jury was presented with testimony

that Howard was struck with a pair of vise grips, conservatively, 18 times, 14 of

those times in the head. The jury was shown pictures of how Howard was found,

and of his various wounds. The numerous wounds were explained by the coroner

who conducted the autopsy.

       {¶38} The Supreme Court of Ohio has held that “[t]he severe, protracted

nature of [a] beating [can indicate] the purpose to kill.” State v. Phillips, 74 Ohio

St.3d 72, 82, 1995-Ohio-171. Here, the sheer amount of blows to Howard’s head


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could certainly be circumstantial evidence of a purpose to kill, particularly given

Howard’s age and relative size. The corner described how one of the blows caved-

in a portion of Howard’s skull. Blood was all over Howard, in various parts of the

room, including the ceiling, and on Miller’s clothing. These facts are all indicative

of a severe beating, especially given that the beating was executed with a metal tool.

       {¶39} Moreover, although Miller claims that Howard was alive and moaning

as she was leaving, even if we assumed that was true, she left him in a horrid state

and did not call the police. This makes her version far less credible, and the jury

was free to disbelieve her testimony.

       {¶40} Given the brutal nature of the injuries here, we cannot find that the

jury clearly lost its way in finding that Miller acted with the requisite mental

culpability in this case. Therefore, her argument related to the jury’s determination

of “purpose” is not well-taken.

       {¶41} Miller next argues that the jury erred by failing to find that she acted

in self-defense even though the jury was instructed on self-defense. Notably,

Miller’s self-defense claim rested essentially entirely on her own self-serving

testimony. The jury was able to hear her initial interview with the police, and her

testimony in the courtroom and evaluate her version of events. The jury could have

found that Miller’s version of events was not credible.




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       {¶42} Similarly, the jury could have found that Miller failed to establish any

of the elements of self-defense by a preponderance of the evidence. The jury could

have concluded that Miller did not have a bona fide belief that she was in imminent

danger of death or great bodily harm or the jury could have determined that Miller

could have successfully retreated rather than resorting to deadly force. Again, the

severe nature of the beating would support a finding that Miller violated a duty to

retreat. Regardless, a finding regarding either one of these elements of self-defense

would negate finding self-defense, and the evidence could support the jury

determining not to find self-defense based on either of those two elements.

       {¶43} Moreover, if evidence is susceptible to more than one construction, a

reviewing court is bound to give it the interpretation consistent with the verdict and

judgment. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, quoting

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984), fn. 3, quoting 5

Ohio Jurisprudence 3d Appellate Review, Section 60, at 191-192 (1978); see also

State v. Johnson, 5th Dist. Stark No. 2014CA00189, 2015-Ohio-3113, ¶ 44. Given

our standard of review, we cannot find that the jury clearly lost its way on the self-

defense issue.

       {¶44} After reviewing the trial transcript and all of the submitted exhibits,

we cannot find that the jury clearly lost its way or created a manifest miscarriage of

justice in this case. Therefore, Miller’s first assignment of error is overruled.


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                             Second Assignment of Error

       {¶45} In Miller’s second assignment of error she argues that the trial court

erred by failing to declare a mistrial based on prosecutorial misconduct.

Specifically, Miller argues that the prosecutor improperly showed a gruesome

photograph to the jury that had not been introduced into evidence, and that the State

made improper statements in closing arguments.

                                 Standard of Review

       {¶46} Prosecutorial misconduct is generally not grounds for reversal unless

it so taints the proceedings as to deprive the defendant of a fair trial. State v. Johns,

3d. Dist. Seneca No. 13-04-23, 13-04-24, 13-04-25, 2005-Ohio-1694, ¶ 25. Where

it is clear beyond a reasonable doubt that the jury would have found the defendant

guilty, even absent the alleged misconduct, the defendant has not been prejudiced,

and her conviction will not be reversed.         See State v. Underwood, 2d Dist.

Montgomery No. 24186, 2011-Ohio-5418, ¶ 21.                We review allegations of

prosecutorial misconduct in the context of the entire trial. State v. Stevenson, 2d

Dist. Greene No. 2007-CA-51, 2008-Ohio-2900, ¶ 42, citing Darden v. Wainwright,

477 U.S. 168, 106 S.Ct. 2464 (1986). “In making this determination, an appellate

court should consider several factors: (1) the nature of the remarks, (2) whether an

objection was made by counsel, (3) whether corrective instructions were given by




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the court, and (4) the strength of the evidence against the defendant.” State v.

Braxton, 102 Ohio App.3d 28, 41 (8th Dist.1995).

      {¶47} Furthermore, as to prosecutorial misconduct allegations related to

closing arguments, “[p]arties have wide latitude in their closing statements,

particularly ‘latitude as to what the evidence has shown and what inferences can be

drawn from the evidence.’ ” State v. Wolff, 7th Dist. Mahoning No. 07MA166,

2009-Ohio-7085, at ¶ 13, quoting State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-

6266, at ¶ 213. A prosecutor may comment upon the testimony of witnesses and

suggest the conclusions to be drawn. State v. Hand, 107 Ohio St.3d 378, 2006-

Ohio-18, at ¶ 116.

                        Alleged Impropriety During Trial

      {¶48} Miller contends that the prosecutor committed misconduct by

“violating” a motion in limine regarding the publication of certain photographic

evidence to the jury. Miller’s claim refers to an incident that apparently occurred

while Lieutenant Chris Adkins of the Marion Police Department was testifying on

the third day of the trial. During the testimony, defense counsel asked to approach

the bench for a sidebar and the following discussion was held.

      [DEFENSE COUNSEL]: I’m going to ask for a mistrial.

      THE COURT: Let’s let everybody get up here.

      [DEFENSE COUNSEL]: I want to note for the record, I’m going
      to request a mistrial.

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Case No. 9-18-02



           Mr. Grogan [the prosecutor] – a photograph taken by the
      coroner, hasn’t even been introduced into evidence, he picked that
      photograph that shows a very gruesome depiction of the brain
      cavity of the decedent. It was visible, plain and visible. I think it
      warrants a mistrial, Judge. That hasn’t been introduced into
      evidence yet.

      THE COURT: I mean, he’s apparently working with the exhibits
      over there. I’m not sure they’ve been labeled. They were
      supposed to be labeled a week ago, before the pretrial last
      Tuesday.

      [DEFENSE COUNSEL]: I mean, if I could see it –

      THE COURT: I didn’t observe that.

      [DEFENSE COUNSEL]: I do want to –

      THE COURT: You know, I’m not going to grant the mistrial at
      this point.

      [DEFENSE COUNSEL]: Okay. I want to note for the record, I
      would ask that the Court – ask the State to very kindly – they
      should have organized their exhibits beforehand.

      THE COURT: Sure.

      [DEFENSE COUNSEL]:           So if they can be very careful, be
      sensitive, I’d—

      THE COURT: When you’re handling those exhibits, Mr. –

      [PROSECUTOR]: I’m being very careful.

      THE COURT: [Defense Counsel] indicates that the picture of the
      brain cavity, which is one that’s highly unlikely to get into
      evidence, as you’re making it is visible to the jury. I did not
      observe that myself. What I’m suggesting is, let’s be careful as


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      we’re handling those. In fact, it probably wouldn’t be bad to just
      put them in the folder.

      [PROSECUTOR]: They were upside down. How are you going
      to accuse me of –

      [DEFENSE COUNSEL]: Okay. You smirked as I noted my
      objection and as I was making my way up to the bench to address
      my concern. That, I observed as well.

      THE COURT: I didn’t—I didn’t observe it. I don’t know, you
      know, that it has – I don’t think there was any intentional effort
      to do that, but I didn’t observe it happen either. Just –

      [PROSECUTOR]: Just to defend myself, I – there was a couple
      of things. Yes, I marked a couple of pictures. I have made very
      careful consideration not to show them to the jury. I’m the one
      who suggested they not be published to the jury.

           So to stand there and have you say, [Defense Counsel], of all
      people, that I am doing something to pass – to the jury, in my –
      we can talk about that later. But that is highly improper. I
      absolutely did not publish anything to the jury.

      [DEFENSE COUNSEL]: I didn’t say you published it.

      [PROSECUTOR]: You said, “Let me see it.”

      [DEFENSE COUNSEL]: You’re not – you’re being –

      THE COURT: Okay. I think I’ve got everybody’s position.

      DEFENSE COUNSEL]: Yes.

      THE COURT. I denied your request for a mistrial. I’ve asked
      the prosecutor to keep them out of the presence of the jury. So
      let’s proceed. Okay.

(Tr. at 511-514).


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       {¶49} Miller argues that the preceding incident established that the State had

improperly shown a gruesome photograph to the jury.

       {¶50} Miller argues that the State acted improperly again regarding

photographs while Dr. Reardon was on the stand for the defense. During Dr.

Reardon’s testimony, defense counsel asked to approach the bench for a sidebar and

he indicated that a “photograph” was “sticking up” from the prosecutor’s files. (Tr.

at 852). It is not clear what the photograph was or how visible it was to the jury,

but it was promptly covered at the direction of the trial court.

       {¶51} Miller contends that the State had been prevented from introducing a

number of photographs at trial that were determined to be too gruesome and thus

the prosecutor was potentially subverting the trial court’s ruling to limit the amount

of gruesome photographs to the jury by letting them by seen from counsel table.

       {¶52} However, we would note that shortly after the initial incident, the

prosecutor stated that he was not opposed to a jury instruction indicating that if the

jury saw any photographs at counsel table, they were not evidence. The jury was

specifically instructed in closing arguments that if it observed documents,

photographs or other items at counsel table, they were not evidence and “must be

disregarded.” (Tr. at 861).

       {¶53} In addition, defense counsel later stated, regarding the incident, “I

want to comment for the record, first, I wasn’t saying that you submitted the exhibit


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or any misconduct, but kind of like the cards in Texas hold ‘em, you protect your

cards. You don’t show them.” (Tr. at 526).

                                     Analysis

      {¶54} At the outset of our analysis, we note that there is no indication in the

record that the jury ever actually saw any photographs that the prosecutor had at

counsel table. There is only defense counsel’s indication that while the prosecutor

was marking exhibits, the jury could possibly have seen a potentially inadmissible

photograph. This mere possibility would not be sufficient to sustain a claim of

prosecutorial misconduct.

      {¶55} Nevertheless, even assuming that the jury did see a photograph, that it

was inadmissible, and that it was “gruesome,” we cannot find any prejudicial error

here where the jury was instructed as to what evidence and exhibits to consider and

the evidence was so strong against Miller. There is simply no indication here that

the potential errant showing of a photograph was so prejudicial that it tainted the

entire trial. Moreover, a specific instruction was given addressing this situation,

remedying it. Therefore, Miller’s argument is not well-taken.

                     Alleged Improper Statements in Closing
                            Arguments and Analysis

      {¶56} Miller next argues that the prosecutor committed misconduct in

closing arguments. Specifically, she contends that the State improperly indicated



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that the jury could ignore Dr. Reardon’s expert testimony at its discretion in the

following segment of the State’s closing argument.

          Now, that testimony from Dr. Reardon is not for purposes of – of
          testifying to support a self-defense claim. You have to decide what
          relevance that testimony has; and as Judge Slagle has already
          explained to you, as an expert, you can ignore any part of an
          expert’s testimony that you wish to.

    (Tr. at 885-886).

          {¶57} While the prosecutor’s statement here is perhaps carelessly worded, it

is correct that the jury was free to believe or disbelieve the expert’s testimony, and

to determine what relevance it had to the trial.                     Thus we cannot find any

prosecutorial misconduct here, even if it could have been better phrased.

          {¶58} Regardless, the jury was instructed on what evidence to consider and

the jury was specifically told multiple times that opening and closing arguments

were not evidence. There is no indication here that the jury failed to abide by those

instructions. For all of these reasons we can find no prosecutorial misconduct here

that impacted the outcome of the trial.3 Therefore, Miller’s second assignment of

error is overruled.




3
 In one sentence Miller argues that the prosecutor made improper statements in rebuttal closing argument
by making a “striking” motion eighteen times to indicate the number of times Howard was hit. Miller does
not cite to any authority as to how this is error, and we will not further address it.

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Case No. 9-18-02


                            Third Assignment of Error

       {¶59} In Miller’s third assignment of error, she argues that she received

ineffective assistance of counsel. Specifically, she contends that defense counsel

was deficient for failure to object to statements that the prosecutor made in closing

arguments, and that defense counsel was deficient for failing to introduce Dr.

Reardon’s report into evidence.

                                  Standard of Review

       {¶60} To establish an ineffective assistance of counsel claim on appeal,

Miller must show that trial counsel’s performance was deficient and that counsel’s

deficient performance prejudiced her. State v. Jackson, 107 Ohio St.3d 53, 2005–

Ohio–5981, ¶ 133, citing Strickland v. Washington, 466 U.S. 668, 687 (1984). The

failure to make either showing defeats a claim of ineffective assistance of counsel.

State v. Bradley, 42 Ohio St.3d 136, 143 (1989), quoting Strickland at 697 (“[T]here

is no reason for a court deciding an ineffective assistance claim to approach the

inquiry in the same order or even to address both components of the inquiry if the

defendant makes an insufficient showing on one.”).

                   Purported Ineffective Assistance and Analysis

       {¶61} We have already determined that any statements made by the

prosecutor during closing argument did not impact the outcome of the trial. Thus

after a thorough review of the closing arguments, we cannot find that defense


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Case No. 9-18-02


counsel was deficient for any failure to object. In any event, we could not find that

any purported deficiency prejudiced Miller, therefore she could not establish either

prong of ineffective assistance of counsel on this issue.

         {¶62} As to Miller’s claim that her counsel was deficient for failing to

introduce Dr. Reardon’s report into evidence, the State had filed a motion in limine

seeking to limit Dr. Reardon’s testimony and report prior to trial. Miller’s counsel

opposed this motion. The trial court granted the State’s motion in limine in part,

and overruled it in part. The trial court determined that Dr. Reardon’s report

rendered a number of opinions that appeared to be his conclusions as to what

happened at the time of the homicide based on his assessment of Miller’s credibility.

The trial court found that this determination of credibility was not a matter for Dr.

Reardon to opine about to the jury. Thus the trial court limited Dr. Reardon’s

testimony by restricting Dr. Reardon from testifying to such things as, “The veracity

of the Defendant’s account of the offense which led up to the death of Mr.

Biederman.” (Doc. No. 105). However, Dr. Reardon was permitted to testify to his

diagnosis that Miller suffered from PTSD, and the results of various psychological

tests.

         {¶63} On appeal, Miller contends that her counsel was ineffective for failing

to introduce Dr. Reardon’s report into evidence, but the motion in limine limited

what Miller could present from Dr. Reardon’s report.           Dr. Reardon’s report


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Case No. 9-18-02


evidently contained material that the court found inadmissible. Miller’s counsel

argued against the State’s motion in limine, and lost. We fail to see how there was

any instance of ineffective assistance of counsel here given that defense counsel

pushed to have more of Dr. Reardon’s testimony introduced and was not permitted

to do so. For all of these reasons, Miller’s third assignment of error is overruled.

                                     Conclusion

       {¶64} For the foregoing reasons Miller’s assignments of error are overruled

and the judgment of the Marion County Common Pleas Court is affirmed.

                                                                 Judgment Affirmed

ZIMMERMAN and PRESTON, J.J., concur.

/jlr




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