[Cite as State v. Miller,
2025-Ohio-5192.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 24AP-454
v. : (C.P.C. No. 23CR-4898)
Darrell A. Miller, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on November 18, 2025
On brief: Shayla D. Favor, Prosecuting Attorney, and
Seth L. Gilbert, for appellee.
On brief: Chima R. Ekeh, for appellant.
APPEAL from the Franklin County Court of Common Pleas
BEATTY BLUNT, J.
{¶ 1} Defendant-appellant, Darrell A. Miller, appeals the July 18, 2024 judgment
of the Franklin County Court of Common Pleas, following a jury trial and verdicts of guilt
as to three second-degree felony counts of illegal use of a minor in a nudity-oriented
material or performance, and one third-degree felony count of gross sexual imposition. The
trial court sentenced each count separately and ran the imposed terms consecutive,
imposing an aggregate sentence of 29 to 33 years incarceration. This timely appeal
followed.
{¶ 2} Miller was indicted in September 2023, based on videos that were discovered
on a phone ostensibly belonging to Miller on July 17, 2023, and which had apparently been
No. 24AP-454 2
created some 11 days earlier. Officer Makenna Hemming responded to a call on July 17,
2023, at 1473 Hildreth Avenue. (July 17 & 18, 2024 Tr. at 186.) Officer Hemming testified
that at that time, she viewed three videos that showed a male “masturbating on a young
woman’s vagina and ejaculating at one point.” Id. at 187. Detective Joshua Martin then
responded to the residence, took possession of the phone, obtained a warrant to perform a
“data dump” on the phone, and found four videos relevant to this case. Id. at 218-219.
{¶ 3} M.H., the mother of the victim, testified that she and five of her children lived
together, and that Miller was her “off and on” boyfriend and occasionally spent the night in
their home. Id. at 197-198. She testified that on July 17, 2023, she went through Miller’s
phone because she believed he was unfaithful, and while doing so discovered videos on
Miller’s phone showing the exposed body of her seven-year-old daughter N.H., one of which
showed Miller ejaculating onto N.H. Id. at 199. At trial, Miller recalled seeing two videos,
but also stated she would not have been surprised if there were three such videos. Id. at
200. At trial, Miller described the videos as follows:
A: Yeah. One of the videos, he was ejaculating into my
daughter, on her. And then the other video, he was kind of just
moving her leg a little bit, and he was like, I can’t wait until you
get a little older because I’m going to tear that up.
Q: Okay.
A: And then I seen another video. He must have just kind of
stepped in the room, because they was up, and my daughter
was playing with his sister. And he was like -- the camera was
kind of focused in between her legs.
Id. at 199-200. M.H. identified her seven-year-old daughter N.H. by her “Scooby-Doo” t-
shirt, bed cover, and N.H.’s private area, which she was familiar with from having given her
baths and having seen her naked. Id. at 200-208. She identified three videos in court,
stated that the voice heard in the first two videos was Miller’s, id. at 202, and identified him
No. 24AP-454 3
in the third video by the shorts he was wearing and by his penis, which she was able to
identify from having had sex with him. Id. at 203. In a fourth video, she identified her
daughter N.H. by her face and confirmed that she was the child wearing the “Scooby-Doo”
t-shirt. Id. at 203-204.
{¶ 4} The jury found Miller guilty of all counts. After a review of memoranda on
the question, the court concluded that the R.C. 2907.323 offenses could not be merged for
sentencing purposes:
The Court finds that Counts One, Two, and Three do not merge
for purposes of sentencing. Under Revised Code Section
2941.25(B), if the defendant’s conduct constitutes two or more
offenses of dissimilar import, or where the conduct results in
two or more offenses of the same or similar kind committed
separately or with a separate animus as to each, the defendant
may be convicted and sentenced as to all of those offenses.
The Court finds that the three videos that were created by Mr.
Miller constitute distinct and separate acts. Mr. Miller has been
convicted of illegal use of a minor in a nudity-oriented material
or performance, and each act of recording and stopping, and
recording and stopping, and recording and stopping causes a
new and distinct harm because there are three videos that exist
of the offense that took place here.
. . . [I]n other cases that this Court sees, where there’s
pandering and downloading child pornography, the argument
is always, Well, it’s a passive activity. It’s a passive offense. It’s
just downloading. I think creating what amounts to child
pornography is far worse. And that’s what the evidence showed
at trial, is that Mr. Miller was not just downloading child
pornography. He was not just possessing it. He was creating it
for his own use at a later time or to potentially share to other
child -- other pedophiles.
Given that these are three distinct videos that show three
separate types of conduct, one in which Mr. Miller indicates
he’s going to continually -- to continually sexually assault the
victim here when she grows up as she ages is disturbing. But it
[also] indicates that each video was recorded with a separate
and distinct animus. That even though it may have only been a
12-minute span in time, these are three distinct videos that
No. 24AP-454 4
were created. And the Court finds that they do not merge under
State versus Ruff.
(July 8, 2024 Tr. at 9-10.) The court imposed a total aggregate sentence of 29 to 33 years
incarceration. This timely appeal followed, and Miller asserts four assignments of error
with the trial court’s judgment.
Assignment of Error I: Appellant’s convictions were not
support [sic] by sufficient evidence.
{¶ 5} Pursuant to State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the
syllabus, to determine whether a conviction is supported by sufficient evidence of guilt,
“[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.”
Id. following Jackson v. Virginia,
443 U.S. 307
(1979).
{¶ 6} R.C. 2907.05(A)(4) provides that “[n]o person shall have sexual contact with
another; cause another to have sexual contact with the offender; or cause two or more other
persons to have sexual contact when . . . [t]he other person, or one of the other persons, is
less than thirteen years of age, whether or not the offender knows the age of that person.”
{¶ 7} Miller’s argument on appeal is that there is insufficient evidence to convict
on any of the charges, because the videos in question did not “show the face of the individual
making the recording or touching the victim, nor show any unique characteristics of the
individual sufficient to make an identification. . . . [And also because] the videos did not
show the face of the alleged child, and it is impossible to determine that the person shown
was a minor or less than thirteen years of age.” (Brief of Appellant at 11.) But M.H.’s
testimony regarding the videos—that the phone was Miller’s; that she found the videos on
his phone; that she recognized Miller by voice, clothing, and anatomy; and that she was
No. 24AP-454 5
able to identify of her own seven-year-old daughter by face, body, and clothing—is sufficient
evidence regarding each element of the offenses of conviction to sustain Miller’s conviction.
We therefore overrule this assignment of error, which wholly lacks merit.
Assignment of Error II: Appellant’s convictions were
against the manifest weight of the evidence.
{¶ 8} Determinations of credibility and weight of the testimony are primarily for
the trier of fact. State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus.
The factfinder may take note of inconsistencies at trial and resolve them accordingly,
“believ[ing] all, part, or none of a witness’s testimony.” State v. Raver,
2003-Ohio-958,
¶ 21 (10th Dist.), citing State v. Antill,
176 Ohio St. 61, 67 (1964). And therefore, “[w]hen a
court of appeals reverses a judgment of a trial court on the basis that the verdict is against
the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with
the factfinder’s resolution of the conflicting testimony.” State v. Thompkins,
78 Ohio St.3d
380, 387 (1997), superseded by constitutional amendment on other grounds and quoting
Tibbs v. Florida,
457 U.S. 31, 42 (1982). An appellate court considering a manifest weight
challenge “may not merely substitute its view for that of the trier of fact, but 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. Harris,
2014-Ohio-2501, ¶ 22 (10th
Dist.), citing Thompkins at 387. Appellate courts should reverse a conviction as being
against the manifest weight of the evidence only in the most “ ‘exceptional case in which the
evidence weighs heavily against the conviction.’ ” Thompkins at 387, quoting State v.
Martin,
20 Ohio App.3d 172, 175 (1st Dist. 1983).
No. 24AP-454 6
{¶ 9} Miller contends that M.H. fabricated the case against him. Such an argument
can only prevail on appeal if the uncontroverted evidence clearly demonstrates such
fabrication. This record contains no such evidence, and Miller does not point to any—
rather, he simply argues that M.H. was not a credible witness because she did not testify to
any specific distinguishing characteristics regarding his identity in the video. But this is an
inaccurate characterization of the record—M.H. testified that she was able to identify his
voice, his clothing, and his anatomy. Moreover, M.H. has failed to point to anything in the
record negating her identification of him.
{¶ 10} Miller also argues that there was only one video split into three parts, and
thus he could not be found guilty of three separate counts of illegal use of a minor in a
nudity-oriented material. But Detective Martin testified the digital forensics unit found two
relevant videos on the phone, that he himself found an additional two relevant videos on
the phone. (Tr. at 219-222.) Three of those four videos form the basis of the charged
offenses. The factfinder was free to believe M.H. and Martin, and Miller has not provided
any evidence or other compelling basis for this court to disregard the testimony of either.
Miller’s second assignment of error lacks merit and is overruled.
Assignment of Error III: Appellant was denied effective
assistance of counsel.
{¶ 11} In his third assignment of error, Miller claims that his trial counsel was
constitutionally ineffective. In general, claims of ineffective assistance of counsel are
subject to the two-pronged analysis enunciated in Strickland v. Washington, 466 U.S. 668
(1984). Under Strickland, an appellant must show that (1) counsel’s performance was
objectively unreasonable,
id. at 687, and (2) that there is “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different,”
No. 24AP-454 7
id. at 694. See Smith v. Robbins,
528 U.S. 259, 285-286 (2000). “A reasonable probability
is a probability sufficient to undermine confidence in the outcome.”
Strickland at 694.
{¶ 12} Miller argues that his trial counsel was ineffective by failing to call an expert
witness to testify on “whether it was just one video recording that split into three separate
files due to Android phone software or storage limitations . . . .” (Brief of Appellant at 19.)
But Miller cannot demonstrate he was prejudiced by this alleged failure because he cannot
point to any evidence in the record tending to prove that this is how the phone software
operates, that the phone had any such file storage limitations, or even that a single video
had been split into three parts by his phone. Rather, Miller simply speculates that one of
these alleged errors might have occurred. His argument requires evidence from outside the
record to be successful, and therefore Miller cannot show a reasonable probability that the
factfinder should have reached a different outcome. Accordingly, we overrule Miller’s third
assignment of error.
Assignment of Error IV: The trial court erred by failing to
merge counts one, two, and three.
{¶ 13} Finally, in his fourth assignment of error Miller argues that his three
sentences for violations of R.C. 2907.323(A)(1) should have been merged for sentencing.
R.C. 2941.25 provides:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such
offenses, but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in
two or more offenses of the same or similar kind committed
separately or with a separate animus as to each, the indictment
or information may contain counts for all such offenses, and
the defendant may be convicted of all of them.
No. 24AP-454 8
In State v. Ruff, 2015-Ohio-995, syllabus, the Supreme Court of Ohio stated:
1. In determining whether offenses are allied offenses of similar
import within the meaning of R.C. 2941.25, courts must
evaluate three separate factors—the conduct, the animus, and
the import.
2. Two or more offenses of dissimilar import exist within the
meaning of R.C. 2941.25(B) when the defendant’s conduct
constitutes offenses involving separate victims or if the harm
that results from each offense is separate and identifiable.
3. Under R.C. 2941.25(B), a defendant whose conduct supports
multiple offenses may be convicted of all the offenses if any one
of the following is true: (1) the conduct constitutes offenses of
dissimilar import, (2) the conduct shows that the offenses were
committed separately, or (3) the conduct shows that the
offenses were committed with separate animus.
Here, the trial court specifically concluded that “each act of recording and stopping, and
recording and stopping, and recording and stopping causes a new and distinct harm
because there are three videos that exist of the offense,” that the three videos showed “three
different types of conduct,” and that “each video was recorded with a separate and distinct
animus.” (July 8, 2024 Tr. at 9-10.)
{¶ 14} As this court held in State v. Eal, 2012-Ohio-1373 (10th Dist.), the “mere fact
that the crimes occurred in quick succession … does not mean that they were not
committed separately or with separate animus.” (Internal quotation omitted.) Id. at ¶ 93.
In a similar case, the Second District held that the trial court “did not err by declining to
merge . . . two counts of illegal use of a minor in nudity-oriented material or performance,”
and observed that even though the same victim appeared in both recordings, “by capturing
two separate video recordings, D.K. committed two separate violations of R.C.
2907.323(A)(1).” In re D.K.,
2020-Ohio-4156, ¶ 17 (2d Dist.). Given the record evidence
No. 24AP-454 9
here, this court must reach the same conclusion, and we therefore overrule Miller’s fourth
assignment of error as well.
{¶ 15} For all the foregoing reasons, Miller’s four assignments of error are overruled,
and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
JAMISON, P.J., and DINGUS, J., concur.
