Miller test in Ohio

2017Penetration, however slight, is sufficient to complete vaginal or anal intercourse. {¶22} The Ohio Supreme Court has addressed how R.C. 2907.01(A) and the Miller test interact in Newlin, 43 Ohio St.3d 115 , 539 N.E.2d 140 (1989), and State v. Burgun, 56 Ohio St.2d 354 , 384 N.E.2d 255 (1978).

2017Penetration, however slight, is sufficient to complete vaginal or anal intercourse. {¶22} The Ohio Supreme Court has addressed how R.C. 2907.01(A) and the Miller test interact in Newlin, 43 Ohio St.3d 115 , 539 N.E.2d 140 (1989), and State v. Burgun, 56 Ohio St.2d 354 , 384 N.E.2d 255 (1978).

2003It opined that the Miller standard, "like all general definitions of what may be banned as obscene, does not reflect the State's particular and more compelling interest in prosecuting those who promote the sexual exploitation of children." Ferber, 458 U.S. at 761 . {¶ 63} Accordingly, I submit that even if Radey and Ward are viewed as viable interpretation of Ohio obscenity law when viewed in pari materia with Miller (an interpretation I reject), such an interpretation cannot survive Ferber .

2003It opined that the Miller standard, "like all general definitions of what may be banned as obscene, does not reflect the State's particular and more compelling interest in prosecuting those who promote the sexual exploitation of children." Ferber, 458 U.S. at 761 . {¶ 63} Accordingly, I submit that even if Radey and Ward are viewed as viable interpretation of Ohio obscenity law when viewed in pari materia with Miller (an interpretation I reject), such an interpretation cannot survive Ferber .

2025Co. v. Whittington, 71 Ohio St.3d 150 , syllabus (1994).

2023When considering Miller’s claim that a conviction is against the manifest weight of the evidence, the appellate court functions as a “thirteenth juror” and may disagree “with the factfinder’s resolution of * * * conflicting testimony.” Thompkins at 387 , citing Tibbs v. Florida, 457 U.S. 31, 42 , 102 S.Ct. 2211 , 72 L.Ed.2d 652 (1982).

2023When considering Miller’s claim that a conviction is against the manifest weight of the evidence, the appellate court functions as a “thirteenth juror” and may disagree “with the factfinder’s resolution of * * * conflicting testimony.” Thompkins at 387 , citing Tibbs v. Florida, 457 U.S. 31, 42 , 102 S.Ct. 2211 , 72 L.Ed.2d 652 (1982).

2023The appellate court examines the entire record, weighs the evidence and all reasonable inferences that may be drawn therefrom, considers the witnesses’ credibility and determines 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.’” Thompkins at 387 , quoting State v. Martin, 20 Ohio App.3d 172, 175 , 485 N.E.2d 717 (1st Dist.1983).

2023The appellate court examines the entire record, weighs the evidence and all reasonable inferences that may be drawn therefrom, considers the witnesses’ credibility and determines 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.’” Thompkins at 387 , quoting State v. Martin, 20 Ohio App.3d 172, 175 , 485 N.E.2d 717 (1st Dist.1983).

2021“A court abuses its discretion when a legal rule entrusts a decision to a judge’s discretion and the judge’s exercise of that discretion is outside of the legally permissible range of choices.” State v. Hackett, Slip Opinion No. 2020-Ohio-6699, ¶ 19 .

2021Miller cited to the rule of lenity and to State v. Polus, 145 Ohio St.3d 266 , 2016-Ohio-655 , 48 N.E.3d 553 , which held that the trial court did not have authority under R.C. 2929.41(B)(1) to order a misdemeanor jail sentence to be served consecutively to a felony prison sentence. {¶ 17} The State responded to Miller’s motion, noting that R.C. 2929.41 has been amended since Miller’s 1986 conviction and that, in 1986, the statute allowed a sentence -7- of imprisonment to be served consecutively to another sentence of imprisonment “[w]hen the trial court specifies that it is to be served conse

2021Miller cited to the rule of lenity and to State v. Polus, 145 Ohio St.3d 266 , 2016-Ohio-655 , 48 N.E.3d 553 , which held that the trial court did not have authority under R.C. 2929.41(B)(1) to order a misdemeanor jail sentence to be served consecutively to a felony prison sentence. {¶ 17} The State responded to Miller’s motion, noting that R.C. 2929.41 has been amended since Miller’s 1986 conviction and that, in 1986, the statute allowed a sentence -7- of imprisonment to be served consecutively to another sentence of imprisonment “[w]hen the trial court specifies that it is to be served conse

2021Specifically, Miller claims there is no evidence of compliance with several provisions of the OAC and therefore, the state failed to carry its burden to prove the test result is admissible. {¶24} Pursuant to Crim.R. 47, in filing a motion to suppress in a criminal proceeding, a defendant "shall state with particularity the grounds upon which it is made and shall set forth the relief or order sought." This requires a defendant to "state the motion's legal and factual bases with sufficient particularity to place the prosecutor and the court on notice of the issues to be decided." State v. Shindl

2021Miller’s claim of a speedy trial violation, therefore, rests on the time between when Miller filed his pro se motions and on January 4, 2019 when Miller agreed to move the trial date in order to retain new counsel. “[T]he time within which an accused must be brought to trial is tolled from the date the accused files a motion challenging his or her competency to stand trial.” State v. Palmer, 84 Ohio St.3d 103, 103 , 702 N.E.2d 72 (1998).

2021That tolling “continues until the trial court makes a competency determination[.]” Palmer, 84 Ohio St.3d at 103 .

2021“Decisions to grant or deny a motion to dismiss on grounds of preindictment delay are reviewed for an abuse of discretion.” State v. Darmond, 135 Ohio St.3d 343 , 2013-Ohio-966 , 986 N.E.2d 971, ¶ 33 .

2021“Decisions to grant or deny a motion to dismiss on grounds of preindictment delay are reviewed for an abuse of discretion.” State v. Darmond, 135 Ohio St.3d 343 , 2013-Ohio-966 , 986 N.E.2d 971, ¶ 33 .

2020Franklin No. 11AP-680, 2012-Ohio-4829 , ¶ 8. {¶ 16} Omni Manor argues that that in Griffith, 87 Ohio St.3d 154 , 718 N.E.2d 423 , we essentially altered or augmented the Miller test for cases involving contributing nonallowed conditions, requiring claimants in those cases to show that the requested medical treatment would be required even in the absence of the nonallowed condition, and that we reiterated this new test in Jackson Tube, 99 Ohio St.3d 1 , 2003-Ohio-2259 , 788 N.E.2d 625 .

2020Franklin No. 11AP-680, 2012-Ohio-4829 , ¶ 8. {¶ 16} Omni Manor argues that that in Griffith, 87 Ohio St.3d 154 , 718 N.E.2d 423 , we essentially altered or augmented the Miller test for cases involving contributing nonallowed conditions, requiring claimants in those cases to show that the requested medical treatment would be required even in the absence of the nonallowed condition, and that we reiterated this new test in Jackson Tube, 99 Ohio St.3d 1 , 2003-Ohio-2259 , 788 N.E.2d 625 .

2020Lake No. 2012-L-034, 2013-Ohio-1290, ¶ 24 . {¶32} As an initial matter, the State argues that a plain error standard of review should apply because Miller’s objection to allowing Frost’s interview to be played was made pursuant to an Evid.R. 612 error, which relates to the circumstances under which a writing may be used to refresh a witness’ recollection, not a constitutional violation.

2018The Ohio Supreme Court thereafter denied Miller's motion to file a delayed appeal in State v. Miller, 150 Ohio St.3d 1450 , 2017-Ohio-8136 . {¶ 7} On June 19, 2017, Miller, still appearing pro se, filed a memorandum with the trial court entitled "Notice of Personal Status and Demand for Dismissal" requesting the trial court to dismiss his conviction and mandatory seven-year prison sentence.

2018The Ohio Supreme Court thereafter denied Miller's motion to file a delayed appeal in State v. Miller, 150 Ohio St.3d 1450 , 2017-Ohio-8136 . {¶ 7} On June 19, 2017, Miller, still appearing pro se, filed a memorandum with the trial court entitled "Notice of Personal Status and Demand for Dismissal" requesting the trial court to dismiss his conviction and mandatory seven-year prison sentence.

2018It is equally clear that Miller, regardless of whether he presented himself as the man "born on the soil" in West Virginia or as the trade name "Todd Emerson Miller," an unincorporated business entity operating in the state of Ohio since March 2, 1977, waived any challenge to the trial court's personal jurisdiction well before he appeared before the trial court and entered his guilty plea.3 State v. Mbodji, 129 Ohio St.3d 325 , 2011-Ohio- 2880, ¶ 10 ("a challenge to personal jurisdiction or jurisdiction over the person is waivable by the defendant's voluntary submission at an initial appearanc

2017Regarding the roadway on which Miller was traveling, there is no evidence, nor does Miller claim, that the roadway was unsafe in any way. {¶29} The instant matter is more akin to Stanfield, 146 Ohio St. 583 , 67 N.E.2d 446 than Nelson.

2017Regarding the roadway on which Miller was traveling, there is no evidence, nor does Miller claim, that the roadway was unsafe in any way. {¶29} The instant matter is more akin to Stanfield, 146 Ohio St. 583 , 67 N.E.2d 446 than Nelson.

2016Fourth Assignment of Error {¶ 20} In his fourth assignment of error, Washburn contends the trial court erred when it granted Miller’s motion to determine Ohio an “inconvenient forum” under the UCCJEA. 10. {¶ 21} “Generally, ‘[t]he court in which a decree of divorce is originally rendered retains continuing jurisdiction over matters relating to the custody, care, and support of the minor children of the parties.’” Justis v. Justis, 81 Ohio St.3d 312, 314 , 691 N.E.2d 264 (1998), quoting Loetz v. Loetz, 63 Ohio St.2d 1, 2 , 406 N.E.2d 1093 (1980).

2016Fourth Assignment of Error {¶ 20} In his fourth assignment of error, Washburn contends the trial court erred when it granted Miller’s motion to determine Ohio an “inconvenient forum” under the UCCJEA. 10. {¶ 21} “Generally, ‘[t]he court in which a decree of divorce is originally rendered retains continuing jurisdiction over matters relating to the custody, care, and support of the minor children of the parties.’” Justis v. Justis, 81 Ohio St.3d 312, 314 , 691 N.E.2d 264 (1998), quoting Loetz v. Loetz, 63 Ohio St.2d 1, 2 , 406 N.E.2d 1093 (1980).

2016Fourth Assignment of Error {¶ 20} In his fourth assignment of error, Washburn contends the trial court erred when it granted Miller’s motion to determine Ohio an “inconvenient forum” under the UCCJEA. 10. {¶ 21} “Generally, ‘[t]he court in which a decree of divorce is originally rendered retains continuing jurisdiction over matters relating to the custody, care, and support of the minor children of the parties.’” Justis v. Justis, 81 Ohio St.3d 312, 314 , 691 N.E.2d 264 (1998), quoting Loetz v. Loetz, 63 Ohio St.2d 1, 2 , 406 N.E.2d 1093 (1980).

2016Fourth Assignment of Error {¶ 20} In his fourth assignment of error, Washburn contends the trial court erred when it granted Miller’s motion to determine Ohio an “inconvenient forum” under the UCCJEA. 10. {¶ 21} “Generally, ‘[t]he court in which a decree of divorce is originally rendered retains continuing jurisdiction over matters relating to the custody, care, and support of the minor children of the parties.’” Justis v. Justis, 81 Ohio St.3d 312, 314 , 691 N.E.2d 264 (1998), quoting Loetz v. Loetz, 63 Ohio St.2d 1, 2 , 406 N.E.2d 1093 (1980).