State v. Murphy
| Decision Date | 24 October 2019 |
| Docket Number | No. 107836,107836 |
| Citation | 2019 Ohio 4347 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. ALLEN D. MURPHY, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Ronnie Ducoff, Assistant Prosecuting Attorney, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and Paul A. Kuzmins, Assistant Public Defender, for appellant.
I. Background and Facts
{¶ 1} Defendant-appellant Allen D. Murphy ("Murphy") appeals his jury convictions for Counts 1 and 2, rape, R.C. 2907.02(A)(1)(b), a first-degree felony; Count 3, rape, R.C. 2907.02(A)(1)(b), a first-degree felony; Count 4, kidnapping, R.C. 2905.01(A)(4), a first-degree felony, with a sexual motivation specification, R.C. 2941.147; and Count 5, disseminating matter harmful to juveniles, R.C. 2907.31(A)(1), a fourth-degree felony.
{¶ 2} The victim of the offenses, Murphy's stepdaughter Jane Doe ("Doe"), was nine years old at the time of the October 2016 incident and 11 years old at the time of the August 27, 2018 trial. Doe did not tell anyone about the interaction until visiting family in April 2017.
{¶ 3} The trial court denied Murphy's motion for judgment of acquittal under Crim.R. 29 proffered at the close of the evidence, and a guilty verdict was rendered on September 5, 2018. On September 27, 2018, Murphy was sentenced to a 25-year-to-life term of imprisonment with up to three years of discretionary postrelease control and was designated a Tier III child victim sex offender. Murphy also received jail-time credit for 23 days.
II. Assignments of Error
{¶ 4} Appellant presents nine assigned errors:
III. Discussion
{¶ 5} The indictment filed on February 1, 2018, charged Murphy with performing cunnilingus, anal penetration, and vaginal penetration of Doe at the time of the incident which the indictment listed as occurring between October 1, 2016, and December 1, 2016. The sexual activity was accompanied by a kidnapping charge due to the restraint of liberty and a charge for exhibiting obscene material to Doe.
{¶ 6} The question of whether the evidence is sufficient as a matter of law to support a conviction involves a determination of whether the state has met its burden of production at trial. State v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41, citing State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997). An appellate court does not weigh the evidence but determines "'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.'" State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 7} Murphy was convicted of rape under R.C. 2907.02(A)(1)(b), kidnapping pursuant to R.C. 2905.01(A)(4) with a sexual motivation specification (R.C. 2941.147), and disseminating matter harmful to juveniles under R.C. 2907.31(A)(1). R.C. 2907.02(A)(1)(b) provides:
No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies: * * * (b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person.
{¶ 8} R.C. 2907.01(A) defines sexual conduct to include:
the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.
{¶ 9} Kidnapping under R.C. 2905.01(A)(4) states that:
(A) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes: * * * (4) [t]o engage in sexual activity, as defined in section 2907.01 of the Revised Code, with the victim against the victim's will.
{¶ 10} R.C. 2907.31(A)(1) prohibits disseminating matter harmful to juveniles:
{¶ 11} Murphy claims that the evidence is insufficient to support the convictions as a matter of law because Doe does not really know whether the incident really occurred and that there is little to no evidence that corroborates Doe's memory. Murphy offers that the conviction is insufficient as a matter of law. We disagree with Murphy's conclusion.
{¶ 12} The testimony reflects that Doe lived with her mother, sisters, and "Daddy Murph," as she referred to Murphy. (Tr. 401.) In April 2017, Doe was visiting the home of her paternal grandmother where her natural father resided with his girlfriend and several of Doe's half-siblings. It was at that time that Doe stated that she had been molested by Murphy in October 2016, about the time of her sister's birthday.
{¶ 13} The paternal grandmother reported the incident to 696-KIDS. Doe said that she was afraid to tell anyone because her mother would be upset and Murphy would take her cell phone away. At that time, Doe had moved from Cleveland to Portage County where her mother was caring for the maternal grandfather. Social workers and police in Portage County and in Cleveland became involved and Murphy was instructed to leave the home.
{¶ 14} Murphy cites Doe's August 2017 statement to her mother that the incident seemed like a dream broached during cross-examination:
(Tr. 417-419.)
{¶ 15} During redirect examination, Doe recounted a situation that occurred when she was much younger where she thought that she recalled going to boot camp with her biological parents but she later learned that it did not happen. Doe said the situation was "I like had a like dream." (Tr. 418.)
(Tr. 418.)
{¶ 16} Doe then explained:
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