[Cite as State v. Miller, 2018-Ohio-4648.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 1-18-17

        v.

CURTIS M. MILLER,                                          OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR2016 0480

                                       Judgment Affirmed

                           Date of Decision: November 19, 2018




APPEARANCES:

        F. Stephen Chamberlain for Appellant

        Jana E. Emerick for Appellee
Case No. 1-18-17


PRESTON, J.

       {¶1} Defendant-appellant, Curtis M. Miller (“Miller”), appeals the March

14, 2018 judgment entry of sentence of the Allen County Court of Common Pleas.

For the reasons that follow, we affirm.

       {¶2} This case arises from a November 24, 2016 incident in which Miller

struck and severely injured a pedestrian with his automobile after spending the

evening drinking alcoholic beverages at a restaurant in Lima, Ohio. (Jan. 11, 2018

Tr. at 20-22). On January 12, 2017, the Allen County Grand Jury indicted Miller

on four counts, including: Count One of aggravated vehicular assault in violation

of R.C. 2903.08(A)(1)(a), (B)(1), a third-degree felony; Count Two of failure to

stop after an accident in violation of R.C. 4549.02(A)(1)(a), (B)(2)(a), a fifth-degree

felony; Count Three of operating a vehicle under the influence of alcohol in

violation of R.C. 4511.19(A)(1)(a), (G)(1)(a), a first-degree misdemeanor; and

Count Four of operating a vehicle under the influence of alcohol in violation of R.C.

4511.19(A)(1)(b), (G)(1)(a), a first-degree misdemeanor. (Doc. No. 2). On January

23, 2017, Miller entered written pleas of not guilty to the counts of the indictment.

(Doc. No. 10).

       {¶3} On November 2, 2017, the State filed a motion in limine seeking to

prohibit Miller from presenting at trial: (1) an automobile crash reconstruction

report; (2) any testimony or evidence relating to the contents of the crash


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reconstruction report; and (3) any other evidence of the victim’s conduct that the

jury could consider as contributing to her injuries, including evidence of the victim’s

possible intoxication at the time of the incident. (Doc. No. 105). On November 20,

2017, Miller filed a memorandum in opposition to the State’s motion in limine.

(Doc. No. 107). Following a hearing on November 27, 2017, the trial court granted

the State’s motion in limine on November 28, 2017. (Doc. No. 110). (See Nov. 27,

2017 Tr. at 1).

       {¶4} On January 11, 2018, under a negotiated plea agreement, Miller

withdrew his not guilty pleas and pleaded no contest to Counts One and Three.

(Doc. No. 114). (See Jan. 11, 2018 Tr. at 19). In exchange, the State agreed to

dismiss Counts Two and Four. (See Doc. No. 115). Thereafter, the trial court

accepted Miller’s no contest pleas, found him guilty as to Counts One and Three,

and ordered a presentence investigation. (Id.). The trial court also dismissed Counts

Two and Four. (Id.). The trial court filed its judgment entry of conviction on

January 11, 2018. (Id.).

       {¶5} On March 14, 2018, the trial court sentenced Miller to 30 months in

prison on Count One and 180 days in jail on Count Three. (Doc. No. 122). The

trial court ordered that the sentences for Counts One and Three be served

concurrently for an aggregate sentence of 30-months imprisonment. (Id.). The trial

court filed its judgment entry of sentence on March 14, 2018. (Id.).


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       {¶6} On April 11, 2018, Miller filed a notice of appeal. (Doc. No. 127). He

raises two assignments of error.

                            Assignment of Error No. I

       The trial court committed error prejudicial to the Defendant by
       granting the State of Ohio’s motion in limine and ordering that
       the defense was precluded from presenting evidence of the
       victim’s actions that were the sole cause of her injury.

       {¶7} In his first assignment of error, Miller argues that the trial court erred

by granting the State’s motion in limine. In particular, Miller argues that the trial

court erred by prohibiting him from using the challenged evidence in his defense

because “[i]f believed, this evidence would mean that [the victim’s] actions alone

were the substantial factor in her injury” and that Miller “driving with a prohibited

[blood alcohol content] was [not] the proximate cause of the injury to the victim.”

(Appellant’s Brief at 15). However, we need not consider whether the trial court

erred by granting the State’s motion in limine because, by pleading no contest,

Miller did not preserve his argument for appellate review.

       {¶8} “‘A motion in limine is defined as “[a] pretrial motion requesting [the]

court to prohibit opposing counsel from referring to or offering evidence on matters

so highly prejudicial to [the] moving party that curative instructions cannot prevent

[a] predispositional effect on [the] jury.”’” State v. Wild, 2d Dist. Clark No. 2009

CA 83, 2010-Ohio-4751, ¶ 27, quoting State v. French, 72 Ohio St.3d 446, 449

(1995), quoting Black’s Law Dictionary 1013 (6th Ed.1990). “A ruling on a motion

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in limine reflects the court’s anticipated treatment of an evidentiary issue at trial

and, as such, is a tentative, interlocutory, precautionary ruling.” French at 450.

“The established rule in Ohio is that the grant or denial of a motion in limine is not

a ruling on the evidence.” State v. Thompson, 3d Dist. Union Nos. 14-04-34 and

14-04-35, 2005-Ohio-2053, ¶ 26, citing State v. Grubb, 28 Ohio St.3d 199, 200-201

(1986). “In deciding such motions, the trial court is at liberty to change its ruling

on the disputed evidence in its actual context at trial.” Defiance v. Kretz, 60 Ohio

St.3d 1, 4 (1991). Accordingly, “[f]inality does not attach when [a motion in limine]

is granted.” Id., citing Grubb at 201-202.

       {¶9} In order to preserve for appeal any error in the trial court’s resolution

of a motion in limine, the objecting party must “seek the introduction of the evidence

by proffer or otherwise” at trial “to enable the court to make a final determination

as to its admissibility.” Grubb at paragraph two of the syllabus. See State v. Brown,

38 Ohio St.3d 305 (1988), paragraph three of the syllabus (“A denial of a motion in

limine does not preserve error for review. A proper objection must be raised at trial

to preserve error.”). Then, “[a]n appellate court will * * * review the correctness of

the trial court’s ruling on the objection rather than the ruling on the motion in

limine.” Wild at ¶ 29, citing State v. White, 4th Dist. Gallia No. 95CA08, 1996 WL

614190, *3 (Oct. 21, 1996) and Wray v. Herrell, 4th Dist. Lawrence No. 93CA08,

1994 WL 64293, *6 (Feb. 24, 1994).


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           {¶10} In this case, rather than proceeding to trial and seeking introduction of

the disputed evidence in order to preserve for appeal any error in the trial court’s

ruling on the admissibility of that evidence, Miller pleaded no contest to Counts One

and Three of the indictment. (Doc. No. 114). (See Jan. 11, 2018 Tr. at 19). “By

entering a plea of no contest * * *, the defendant voluntarily waives the right to

appeal the ruling on the motion [in limine].” State v. Engle, 74 Ohio St.3d 525, 529

(1996) (Resnick, J., concurring).1 See also State v. Guth, 11th Dist. Portage No.

2015-P-0083, 2016-Ohio-8221, ¶ 15; State v. Felts, 4th Dist. Ross No. 13CA3407,

2014-Ohio-2378, ¶ 16, citing Engle at 528-529 (Resnick, J., concurring) and State

v. Hershner, 4th Dist. Athens No. 99CA58, 2000 WL 781094, *3 (June 8, 2000);

State v. Monticue, 2d Dist. Miami No. 06-CA-33, 2007-Ohio-4615, ¶ 16, citing State

v. Lewis, 164 Ohio App.3d 318, 2005-Ohio-5921, ¶ 6 (10th Dist.) and Engle at 529

(Resnick, J., concurring); State v. Oshodin, 6th Dist. Lucas No. L-03-1169, 2004-

Ohio-1186, ¶ 5-6; State v. Lamb, 3d Dist. Hardin No. 6-02-03, 2002-Ohio-4692, ¶

6, citing State v. Kerr, 9th Dist. Medina No. 3205-M, 2002-Ohio-2095, ¶ 7-8 and

State v. Schubert, 3d Dist. Seneca No. 13-85-22, 1986 WL 14413, *1 (Dec. 22,

1986). Therefore, by entering pleas of no contest, Miller waived his right to appeal

the trial court’s ruling on the State’s motion in limine. See Lamb at ¶ 6.

           {¶11} Miller’s first assignment of error is overruled.



1
    A majority of the court joined Justice Resnick’s concurrence.

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                            Assignment of Error No. II

       The trial counsel for the defendant was ineffective and therefore
       violated the defendant’s right to effective assistance of counsel
       pursuant to the Sixth and Fourteenth Amendments of the United
       States Constitution and Article One Section Ten of the Ohio
       Constitution.

       {¶12} In his second assignment of error, Miller argues that he received the

ineffective assistance of counsel. Specifically, Miller argues that his trial counsel

“knew or should have known that the trial court’s ruling on the State’s Motion in

Limine was preliminary only” and that his “trial counsel’s error was such that [he]

* * * would not have entered a plea and this matter would have proceeded to trial

on the merits.” (Appellant’s Brief at 16).

       {¶13} A defendant asserting a claim of ineffective assistance of counsel must

establish: (1) the counsel’s performance was deficient or unreasonable under the

circumstances; and (2) the deficient performance prejudiced the defendant. State v.

Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052 (1984). In order to show that counsel’s conduct was deficient

or unreasonable, the defendant must overcome the presumption that counsel

provided competent representation and must show that counsel’s actions were not

trial strategies prompted by reasonable professional judgment. Strickland at 689.

Counsel is entitled to a strong presumption that all decisions fall within the wide

range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675


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(1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally

constitute ineffective assistance. State v. Frazier, 61 Ohio St.3d 247, 255 (1991).

Rather, the errors complained of must amount to a substantial violation of counsel’s

essential duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-142

(1989), citing State v. Lytle, 48 Ohio St.2d 391, 396 (1976).

       {¶14} Prejudice results when “‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.’” Bradley at 142, quoting Strickland at 694. “‘Where a conviction is

based on * * * [a] no contest plea[], the prejudice element requires the defendant to

show that there is a reasonable probability that, but for counsel’s errors, he would

not have entered [the] plea.’” State v. Miller, 6th Dist. Lucas No. L-16-1029, 2017-

Ohio-670, ¶ 7, quoting State v. Luciano, 6th Dist. Wood No. WD-14-023, 2015-

Ohio-1264, ¶ 24, quoting State v. Trevino, 6th Dist. Lucas No. L-08-1394, 2009-

Ohio-6983, ¶ 16. See State v. Lett, 7th Dist. Mahoning No. 08-MA-84, 2010-Ohio-

4188, ¶ 32; State v. Francis, 11th Dist. Trumbull No. 2009-T-0015, 2010-Ohio-

2686, ¶ 91 (“[I]n the context of a no contest plea, in asserting a claim of ineffective

assistance of counsel, the defendant must demonstrate that, but for his attorney’s

error, he would not have entered his no contest plea and instead would have insisted

on going to trial.”), citing State v. Barnett, 11th Dist. Portage No. 2006-P-0117,




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2007-Ohio-4954, ¶ 52. “‘A reasonable probability is a probability sufficient to

undermine confidence in the outcome.’” Bradley at 142, quoting Strickland at 694.

       {¶15} In this case, there is no evidence in the record demonstrating that

Miller’s trial counsel’s performance was objectively unreasonable or deficient; thus,

Miller has not established that his trial counsel was ineffective. According to Miller,

his trial counsel’s performance was deficient and unreasonable because his trial

counsel failed to appreciate that the trial court’s ruling on the State’s motion in

limine was merely tentative. (See Appellant’s Brief at 16). Therefore, Miller

argues, his trial counsel “was ineffective in that he proceeded to a plea instead of

proceeding to trial and creating context for the introduction of [the] disputed

evidence” at issue in the State’s motion in limine. (Id.). Yet, the record contains no

evidence whatsoever suggesting that Miller’s trial counsel did not understand the

interlocutory nature of motions in limine or that Miller’s trial counsel gave Miller

inaccurate information about how the trial court’s decision to grant the State’s

motion in limine would affect Miller’s trial or a potential appeal. Furthermore, the

record does not indicate whether Miller “proceeded to a plea instead of proceeding

to trial” at the urging of his trial counsel or whether Miller’s decision to plead no

contest and avoid trial was entirely independent from, or even contrary to, his trial

counsel’s recommendation. Finally, even assuming that Miller pleaded no contest

on the advice of his trial counsel, the record is silent as to why Miller’s trial counsel


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may have suggested entering the pleas. Thus, there is no way to determine whether

Miller pleaded no contest because his trial counsel recommended doing so after a

thorough evaluation of the evidence against Miller and on the basis of sound strategy

or whether Miller pleaded no contest after having received faulty legal advice.

          {¶16} In assessing the reasonableness of Miller’s trial counsel’s performance

under the circumstances, “we must indulge in the strong presumption that counsel’s

conduct was not improper.” State v. Mayberry, 2d Dist. Montgomery No. 26025,

2014-Ohio-4706, ¶ 24, citing State v. Reid, 2d Dist. Montgomery No. 23409, 2010-

Ohio-1686, ¶ 24. As there is no evidence in the record rebutting this strong

presumption, we conclude that Miller has failed to establish that his trial counsel’s

performance was defective or unreasonable. Because we conclude that Miller has

failed to establish that his trial counsel’s performance was defective or

unreasonable, we need not consider whether Miller can demonstrate prejudice. See

Bradley, 42 Ohio St.3d at 143 (“‘[T]here is no reason for a court deciding an

ineffective assistance claim to * * * address both components of the inquiry if the

defendant makes an insufficient showing on one.’”), quoting Strickland, 466 U.S.

at 697.

          {¶17} Miller’s second assignment of error is overruled.




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       {¶18} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.

/jlr




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