[Cite as State v. Murphy, 2019-Ohio-290.]


STATE OF OHIO                    )                  IN THE COURT OF APPEALS
                                 )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO                                       C.A. No.      28808

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
CEDRIC MURPHY                                       COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR-2017-01-0069

                                 DECISION AND JOURNAL ENTRY

Dated: January 30, 2019



        CARR, Judge.

        {¶1}    Defendant-Appellant Cedric Murphy appeals from his convictions in the Summit

County Court of Common Pleas. This Court affirms.

                                               I.

        {¶2}    Late in the evening of November 5, 2016, then eighteen year old M.P. went to an

Akron nightclub with three other women. When they returned to her one friend’s home in the

early morning hours of November 6, 2016, M.P. found herself without a ride back to her dorm at

the University of Akron. She contacted a friend for a ride, however, that friend failed to show

up. Ultimately, M.P. decided to attempt to find her way home on foot. She met a man who gave

her mace and a flashlight. That man told her she could follow him back to the university.

However, when the man saw a vehicle in the area, he told M.P. that she should see if that person

could give her a ride since that person had a car. That person would later be identified as

Murphy. M.P. got into the vehicle with Murphy and as soon as he began driving, he began to
                                                    2


sexually assault her. M.P. was able to unlock the doors, jump out of the vehicle, and scream for

help.

        {¶3}   As a result, in January 2017, Murphy was indicted on one count of kidnapping in

violation of R.C. 2905.01(A)(4) with a sexual motivation specification and a sexually violent

predator specification, one count of abduction in violation of R.C. 2905.02(A)(2), and two counts

of gross sexual imposition in violation of R.C. 2907.05(A)(1). Murphy waived his right to a jury

trial, and the matter proceeded to a bench trial.

        {¶4}   At the beginning of the second day of trial, after M.P had already testified,

Murphy’s counsel moved for a mistrial explaining that, after the first day of trial, the prosecutor

had disclosed a detective’s report about a witness statement and a recorded witness statement

that had not been in the discovery packet. That witness, C.C., had been with M.P. on the night of

the attack. The State responded that it was only made aware of the evidence shortly before it

disclosed it to the defense. The trial court denied the motion for a mistrial but ordered that the

statement be played as part of the State’s case and that the defense be granted a continuance to

try to locate and subpoena the witness. The trial court also indicated it would allow the defense

to recall M.P. to the stand.

        {¶5}   The witness was located and the defense called her to the stand in its case.

Additionally, the defense recalled M.P. and her mother to the stand. Thereafter, the trial court

denied the defense’s renewed motion for a mistrial. The trial court issued a written decision

finding Murphy guilty of the charges. A separate hearing was held on the sexually violent

predator specification, after which the trial court found the defendant guilty of that specification.

Murphy was sentenced to ten years to life imprisonment with parole eligibility after ten years for

kidnapping and one year on each of the two counts of gross sexual imposition, which were to run
                                                      3


concurrent to the kidnapping sentence. The trial court found that the crime of abduction and

kidnapping were allied offenses and thus did not impose a sentence on the abduction charge.

        {¶6}    Murphy has appealed, raising three assignments of error for our review.

                                                  II.

                                  ASSIGNMENT OF ERROR I

        THE TRIAL COURT ABUSED ITS DISCRETION                                IN    DENYING
        DEFENDANT[’]S MOTION FOR MISTRIAL[.]

        {¶7}    Murphy argues in his first assignment of error that the trial court erred in denying

his motion for a mistrial. Murphy maintains that the trial court cited the wrong portion of

Crim.R. 16 in denying the motion, thereby supporting that the trial court abused its discretion.

        {¶8}    As discussed above, Murphy’s counsel moved for a mistrial after the prosecution

failed to disclose a detective’s report concerning a witness statement by C.C. and the recorded

statement of that witness. Notably, the prosecution asserted that it did not possess that evidence

until shortly before it provided it to the defense.

        {¶9}    “[A] trial court has discretion in determining a sanction for a discovery violation.

This Court, therefore, reviews the trial court’s decision in that regard for an abuse of discretion.”

(Internal quotations and citations omitted.) State v. Huguley, 9th Dist. Summit No. 28322, 2017-

Ohio-8300, ¶ 15. “Criminal Rule 16 governs discovery in a criminal case. The purpose of the

discovery rule is ‘to provide all parties in a criminal case with the information necessary for a

full and fair adjudication of the facts, to protect the integrity of the judicial system and the rights

of defendants, and to protect the well-being of witnesses, victims, and society at large.’” Id. at ¶

16, quoting Crim.R. 16(A).

        {¶10} Crim.R. 16(L)(1) states that, “[i]f at any time during the course of the proceedings

it is brought to the attention of the court that a party has failed to comply with this rule or with an
                                                   4


order issued pursuant to this rule, the court may order such party to permit the discovery or

inspection, grant a continuance, or prohibit the party from introducing in evidence the material

not disclosed, or it may make such other order as it deems just under the circumstances.” “A

mistrial is a severe sanction used in those cases where a fair trial is no longer possible.” (Internal

quotations and citations omitted.) Huguley at ¶ 17.

           {¶11} “[A] trial court must inquire into the circumstances surrounding a discovery rule

violation and, when deciding whether to impose a sanction, must impose the least severe

sanction that is consistent with the purpose of the rules of discovery * * * .” State v. Darmond,

135 Ohio St.3d 343, 2013-Ohio-966, syllabus, quoting Lakewood v. Papadelis, 32 Ohio St.3d 1

(1987), paragraph two of the syllabus. “[T]hree factors that should govern a trial court’s exercise

of discretion in imposing a sanction for a discovery violation committed by the prosecution[ are

:] * * * (1) whether the failure to disclose was a willful violation of Crim.R. 16, (2) whether

foreknowledge of the undisclosed material would have benefited the accused in the preparation

of a defense, and (3) whether the accused was prejudiced.” Darmond at ¶ 35; see also Huguley

at ¶ 18.

           {¶12} While it is true that the trial court referenced Crim.R. 16(B)(1) and (E)(3) in its

discussion denying the renewed motion for a mistrial, from the context it is apparent that the trial

court was referring to a prior version of the rule. Notably, “Crim.R. 16(L)(1) is identical to

former Crim.R. 16(E)(3) in detailing a trial court’s authority to issue orders in the wake of a

party’s failure to comply with discovery obligations, and in particular provides that the trial court

may issue any order it deems just under the circumstances.” (Internal quotations and citations

omitted.) Darmond at ¶ 33. Thus, we cannot say that the trial court’s citation to the prior

version of the rule inherently indicates an abuse of discretion.
                                                5


       {¶13} Instead, we can only conclude that the trial court did not abuse its discretion in

denying Murphy’s motion for a mistrial.        It is apparent that the trial court believed the

prosecution’s explanation for the delay in the disclosure of the evidence as it found no willful

discovery violation by the State. Nonetheless, as a sanction, the trial court ordered the State to

play the newly discovered recorded statement at trial as part of its case and also granted the

defense what amounted to a nearly three week continuance so the defense could locate the

witness and subpoena her. The defense was able to locate the witness, who testified in the

defense’s case. In addition, the defense recalled M.P. and her mother to the stand to address the

areas in which M.P.’s testimony was inconsistent with that of the new witness. In light of the

foregoing, the trial court concluded that the defense had not suffered prejudice from its delayed

receipt of the evidence and that the continuance had been the appropriate sanction. We conclude

that the trial court’s sanction was not an abuse of discretion. The trial court thoughtfully

considered the issue and the rights of both sides. Under the circumstances, we cannot say that

denying the motion for a mistrial and instead providing the defense with a continuance was an

unreasonable sanction.      See Darmond at ¶ 40 (approving of a continuance as “feasible

alternative” to a dismissal).

       {¶14} Murphy’s first assignment of error is overruled.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT’S CONVICTION OF APPELLANT OF KIDNAPPING,
       AS CONTAINED IN COUNT 1 OF THE INDICTMENT WITH SEXUAL
       MOTIVATION SPECIFICATION ONE TO COUNT ONE; GUILTY OF THE
       CRIME OF ABDUCTION, AS CONTAINED IN COUNT 2 OF THE
       INDICTMENT; AND GUILTY OF THE CRIME OF GROSS SEXUAL
       IMPOSITION, AS CONTAINED IN COUNTS 3 AND 4 OF THE
       INDICTMENT IS AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE[.]
                                                 6


                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT’S CONVICTION OF APPELLANT OF KIDNAPPING,
       AS CONTAINED IN COUNT I OF THE INDICTMENT WITH SEXUAL
       MOTIVATION SPECIFICATION ONE TO COUNT ONE; GUILTY OF THE
       CRIME OF ABDUCTION, AS CONTAINED IN COUNT 2 OF THE
       INDICTMENT; AND GUILTY OF THE CRIME OF GROSS SEXUAL
       IMPOSITION, AS CONTAINED IN COUNTS 3 AND 4 OF THE
       INDICTMENT IS BASED ON INSUFFICIENT EVIDENCE.

       {¶15} Murphy argues in his second and third assignments of error, in a combined

discussion, that the guilty verdicts are based on insufficient evidence and are against the manifest

weight of the evidence. It does not appear that Murphy challenges the trial court’s finding with

respect to the sexually violent predator specification, so the same will not be addressed in this

appeal. In support of his argument, Murphy points to facts that he maintains the trial court failed

to mention in its decision as well as evidence that contradicted some parts of M.P.’s version of

events. However, Murphy has not articulated how those points lead to the conclusion that the

verdicts were based on insufficient evidence or were against the manifest weight of the evidence.

We note that Murphy’s argument is somewhat difficult to follow and seems to focus more on

credibility determinations, which would relate to weight, as opposed to the sufficiency of the

evidence.

Sufficiency of the Evidence

       {¶16} A review of the sufficiency of the evidence and the manifest weight of the

evidence adduced at trial are separate and legally distinct determinations. State v. Gulley, 9th

Dist. Summit No. 19600, 2000 WL 277908, *1 (Mar. 15, 2000). When reviewing the sufficiency

of the evidence, this Court must review the evidence in a light most favorable to the prosecution

to determine whether the evidence before the trial court was sufficient to sustain a conviction.

State v. Jenks, 61 Ohio St.3d 259, 279 (1991).
                                                  7


       An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, would convince the average mind
       of the defendant’s guilt beyond a reasonable doubt. The 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. at paragraph two of the syllabus.

       {¶17} Murphy was convicted of one count of kidnapping in violation of R.C.

2905.01(A)(4), with an accompanying sexual motivation specification, one count of abduction in

violation of R.C. 2905.02(A)(2), and two counts of gross sexual imposition in violation of R.C.

2907.05(A)(1).

       {¶18} R.C. 2905.01(A)(4), the statute prohibiting kidnapping, states that “No person, by

force, threat, or deception * * * shall remove another from the place where the other person is

found or restrain the liberty of the other person * * * [t]o engage in sexual activity, as defined in

section 2907.01 of the Revised Code, with the victim against the victim’s will[.]” “‘Sexual

activity’ means sexual conduct or sexual contact, or both.” R.C. 2907.01(C). “‘Sexual conduct’

means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus

between persons regardless of sex; and, without privilege to do so, 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.” R.C. 2907.01(A). “‘Sexual contact’ means any touching of an erogenous zone of

another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is

a female, a breast, for the purpose of sexually arousing or gratifying either person.” R.C.

2907.01(B).
                                                 8


       {¶19} R.C. 2905.02(A)(2), which prohibits the crime of abduction, provides that “[n]o

person, without privilege to do so, shall knowingly * * * [b]y force or threat, restrain the liberty

of another person under circumstances that create a risk of physical harm to the victim or place

the other person in fear[.]”    R.C. 2907.05(A)(1), which prohibits gross sexual imposition,

provides that “[n]o person shall have sexual contact with another, not the spouse of the offender;

cause another, not the spouse of the offender, to have sexual contact with the offender; or cause

two or more other persons to have sexual contact when * * * [t]he offender purposely compels

the other person, or one of the other persons, to submit by force or threat of force.” R.C.

2901.01(A)(1) defines force as “any violence, compulsion, or constraint physically exerted by

any means upon or against a person or thing.”

       {¶20} In November 2016, M.P. was an 18 year old college student at the University of

Akron living on campus. Late in the evening of November 5, 2016, M.P.’s friend D.R. picked

her up and brought her back to D.R.’s home, where C.C. also was. M.P., D.R., C.C. got ready

and then picked up C.E. They all then went to Zar nightclub. They arrived around 11:30 p.m. or

12 a.m. M.P. denied consuming any alcohol that evening; however, she indicated that the other

women did drink at the club. C.C. claimed that M.P. also had two alcoholic drinks at the club.

       {¶21} While at the club, shortly after M.P. began talking to one of her friends, C.C.

texted M.P. and told M.P. not to talk to C.C. for the rest of the night. At the time M.P. did not

understand what the problem was. When the club closed, C.C., who drove, dropped C.E. off.

M.P. repeatedly asked C.C. to take M.P. home but C.C. told M.P. that she would have to wait

until the morning and drove back to D.R.’s home. When they arrived back at D.R.’s home, C.C.

began to argue with M.P. M.P. maintained that C.C. was angry because the person M.P. was

talking to at the club was C.C.’s ex-boyfriend. M.P. did not realize that that person was C.C.’s
                                                9


ex-boyfriend. C.C., however, asserted that the argument was over M.P. owing C.C. money.

M.P. admitted that she owed C.C. money but maintained that the argument was over the ex-

boyfriend. C.C. then began to get in M.P.’s face. Partly because of the argument and partly

because M.P. had concerns about the cleanliness of D.R.’s house, M.P. did not feel comfortable

staying at D.R.’s house.

       {¶22} M.P. contacted a friend who indicated he would be over in about 30 minutes to

pick her up. M.P. waited outside, with a bag containing some clothing, for the person to arrive

but the person did not come. While M.P. was waiting for the person to pick her up, the battery in

her phone died.

       {¶23} M.P. approached a house that had lights on and knocked on the door but no one

answered. M.P. became afraid, started to panic, and began to cry. M.P. was not familiar with

that part of Akron and had never been to D.R.’s house before. M.P. began to walk down a street

to a stop sign. There she encountered a man walking who asked if she was alright. M.P. was

nervous and walked into the street away from the man and told him to leave her alone. The man

handed her a flashlight and a bottle of mace. M.P. told the man where she was trying to go and

he told her that he could follow her there. She hesitantly allowed him to do so.

       {¶24} While they were in front of a closed drive-thru, M.P. noticed a car, which she

asserted drove back and forth and honked each time it drove by. Surveillance video from the

drive-thru depicts the car, but it does not appear to drive by multiple times. The man she was

with asked if M.P. knew the person in the car and she said she did not. The man told her maybe

the person in the car could help her anyway since the person had a car and the man did not. The

man then waved the car over and the car pulled into the area by the drive-thru. The man began

talking to the person in the car, who was later determined to be Murphy. Murphy then pulled
                                                10


into the drive-thru. M.P. proceeded to tell Murphy where she needed to go and showed him her

student identification. M.P. was nervous, upset, and was crying.

       {¶25} The man brought M.P. her bag and phone that she had set on the ground;

however, in the process, the man dropped her phone and the screen cracked. The man asked if

M.P. wanted him to go with her, but Murphy told the man no. The man then asked for his

flashlight back, which M.P. gave him.

       {¶26} M.P. got in the front passenger seat. She plugged her phone into an outlet in the

car, but the phone would not turn on. Murphy pulled out of the drive-thru and, as soon as he got

across the street, he put his hand on M.P.’s leg and began touching her. M.P. just kept telling

him no over and over again. M.P. told him that she would not tell anyone if he let her go but

Murphy did not say anything.       After a little while, Murphy told her, “Listen, I’m doing

something for you, so you’re going to have to do something for me[.]” M.P. was crying and

continued to tell him to stop. Murphy put his hand under her jacket and touched her breast. He

also put his hands in her pants under her underwear and touched her vagina. M.P. was afraid to

move but continued asking him to stop. Murphy then unbuttoned his pants and took out his

penis. He told her to touch it and she did not. Murphy then grabbed her hand and put it on his

penis. At one point, Murphy told her that if he did not do what he said, “he would slap the sh[*]t

out of [her]” and raised his fist at her. He then stopped the car and told M.P. to kiss him and

made her kiss him. He put his tongue in her mouth. At that point, M.P.’s hand was still on his

penis; she thought that he would hurt her if she moved it.

       {¶27} Murphy then continued driving. As they were driving, M.P. saw a car pulling out

of a driveway and thought that that was someone who might help her. At that point, Murphy was

driving slow enough that she thought she might be able to jump out. She manually unlocked the
                                                   11


door, which had locked automatically, but Murphy saw her do it and told her not to do that again.

He then locked the doors and started driving a little faster. However, when Murphy was not

looking, she unlocked the door again and jumped out of the moving car. She left her belongings

in the car.

        {¶28} M.P. hit her head on the concrete and hurt her tailbone and so could not move

initially.    However, once she was able to, she got up and began running down the street

screaming that she needed help and had been raped. Some women heard M.P. screaming and

called the police and also called M.P.’s mom.

        {¶29} M.P. was taken to the hospital and examined. She also underwent a sexual assault

examination.      Samples from the examination were sent to the Ohio Bureau of Criminal

Investigation (“BCI”) for further testing.

        {¶30} M.P. provided a description of the perpetrator and the vehicle to the police. She

described her assailant as a black male in his 40’s or 50’s who was a little heavyset with some

moles or marks on his face. She indicated that he was balding on the top. M.P. had a difficult

time describing the type of vehicle, but noted that it was silver and the passenger window was

broken and had plastic over it. Ultimately, it was determined that the vehicle was a Chevy HHR.

        {¶31} Police proceeded to gather suspects and presented M.P. with a photo array. That

array did not include Murphy. M.P. picked one person out but was only 40 to 50% certain that

was the person responsible. That individual submitted a swab for DNA comparison; however, he

was excluded as a contributor to the sample taken from M.P. Police continued to develop

suspects and presented M.P. with a second array that included Murphy. M.P. identified the

photo of Murphy as that of her assailant and indicated that she was 90% certain it was him. M.P.

also identified Murphy in court as her attacker.
                                               12


       {¶32} Through the use of an app, police were able to locate M.P.’s cell phone in a trash

can at a gas station a couple miles from where Murphy was living. However, it was even more

broken than when M.P. last saw it.

       {¶33} Police brought Murphy in for questioning and he provided a statement and a DNA

sample. During the interview, when asked why he thought he was there, Murphy stated that a

prostitute he was with a few nights before had told him that police were looking for him about a

girl who said that Murphy raped her. Murphy then acknowledged that he did have an incident

with a girl he picked up. He stated that he had picked up a girl when he was driving through the

neighborhood after leaving a bar. Murphy did not think the girl was a prostitute. He saw the girl

in front of a drive-thru and it looked like she was arguing with a man. The girl appeared frantic.

Murphy stopped and picked her up and she said she needed to go to the University of Akron.

Murphy started driving but had to take a detour. When he turned, the girl became panicked and

jumped out of the car. Murphy did not stop to see if she was alright. Murphy denied touching

M.P. and stated he was 100% certain that his DNA was not on her. Murphy acknowledged

finding a bag of her property. He said he dumped it but did not remember where he did so.

       {¶34} At the BCI, DNA was extracted from the perioral swabs and a mixture was

obtained consisting of DNA consistent with that of M.P. and DNA of an unknown male. The

DNA profile obtained was compared to Murphy’s DNA profile, and his profile was consistent

with the profile of the unknown male profile. It was estimated that the traditional DNA profile

obtained from the perioral swab would occur once in 500,000 unrelated individuals.

Additionally, Y-STR testing, which is male specific DNA testing, was performed. The Y-STR

profile obtained from the perioral sample was likewise consistent with Murphy’s DNA profile.

The frequency of that profile was 1 in 621 individuals.
                                                  13


       {¶35} Murphy also testified in his defense at trial. During his testimony, he admitted to

prior convictions for rape, attempted rape, and sexual battery from the 1970’s and 1980’s. At

trial, he told the court that he was coming from a bar and was intoxicated. Murphy testified he

was in the area looking to solicit a prostitute. He claimed he thought M.P. and the man she was

with were a prostitute and a pimp having an argument. Murphy pulled over and M.P. said she

needed a ride to the University of Akron. M.P. willingly got into the car. Murphy described

M.P. as erratic and thought maybe she was just trying to get him to give her money. He began

driving but soon discovered that he would have to turn because of a detour. When he began to

turn, M.P. became upset and panicked. Murphy tried to explain why he was turning. Murphy

then asked if M.P. would kiss him for taking her home. Murphy testified that M.P. leaned over

and he kissed her. After that, M.P. was angry and when they got to a stop sign, M.P. stated she

wanted to get out. Murphy told her that was fine but he wanted to pull up a little farther because

there was a car behind him. Murphy said that, as they were still driving, she then jumped out of

the car. He denied trying to stop her from getting out of the vehicle. And, aside from kissing

her, Murphy denied touching M.P. and denied threatening her. Murphy claimed that, at the time

of the police interview, he forgot he asked her for a kiss in the car.

       {¶36} Viewing the evidence in a light most favorable to the prosecution, and in light of

Murphy’s limited argument on appeal, in which he does not appear to contest any specific

element of any of the offenses, we conclude that Murphy’s convictions for kidnapping with a

sexual motivation specification, abduction, and gross sexual imposition were based on sufficient

evidence. From the evidence, it can be reasonably inferred that Murphy invited M.P. into the

car, not to drive her back to school, but in order to engage in sexual activity with her. There was

evidence that Murphy touched M.P.’s breast and vagina and grabbed her hand and made her
                                                 14


touch his penis. All the while, M.P. begged Murphy to stop and was upset and crying. M.P.

testified that Murphy threatened her and also relocked the door locks when she first tried to

escape. M.P. averred that she thought Murphy would hurt her if she did not comply.

       {¶37} Murphy’s third assignment of error is overruled.

Weight of the Evidence

       {¶38} A conviction that is supported by sufficient evidence may still be found to be

against the manifest weight of the evidence. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997);

Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12.

       In determining whether a criminal conviction is against the manifest weight of the
       evidence, an appellate court 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).

       {¶39} To the extent Murphy has pointed out that the trial court failed to mention certain

facts, we note that the trial court stated in its decision that it would “only focus on significant

portions of the evidence.” Murphy has not explained why the facts he has pointed to would be

significant in light of the facts that the trial court did discuss. For instance, Murphy faults the

trial court for failing to mention that M.P. voluntarily got into the car. However, while the trial

court did not use the word voluntarily when it stated that M.P. “got into the vehicle[,]” later in

the decision, the trial court noted that M.P. “accepted a ride from a stranger[.]” Murphy has not

pointed to anything in the trial court’s decision that would tend to indicate that the trial court

believed M.P.’s initial entry into the car was forced.

       {¶40} Further, to the extent Murphy raises inconsistencies between M.P.’s testimony

and C.C.’s, the trial court mentioned them, but nonetheless found them to be “inconsequential to
                                               15


the material issues in th[e] case.”   The trial court found M.P.’s testimony to be credible

concerning the salient details of events. The trial court also found Murphy’s testimony to be

untruthful. In so doing, the trial court pointed out that, in his statement to police, Murphy

indicated he was certain that his DNA would not be found on M.P. and denied kissing her.

However, at trial, after there was testimony about the DNA evidence, Murphy testified that he

later remembered that he asked her to kiss him and he did kiss her. “This Court has repeatedly

held that the trier of fact is in the best position to determine the credibility of witnesses and

evaluate their testimony accordingly.” State v. McQuistan, 9th Dist. Medina No. 17CA0007-M,

2018-Ohio-539, ¶ 40, quoting State v. Johnson, 9th Dist. Summit No. 25161, 2011-Ohio-3296, ¶

15. “Moreover, ‘[a] verdict is not against the manifest weight of the evidence because the finder

of fact chooses to believe the State’s witnesses rather than the defendant’s version of the

events.’” McQuistan at ¶ 40, quoting State v. Martinez, 9th Dist. Wayne No. 12CA0054, 2013-

Ohio-3189, ¶ 16. Murphy has not demonstrated that this is the exceptional case where the

evidence weighs heavily against his convictions. See Otten at 340.

       {¶41} Murphy’s second assignment of error is overruled.

                                              III.

       {¶42} Murphy’s assignments of error are overruled.        The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                             Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                16


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     DONNA J. CARR
                                                     FOR THE COURT



TEODOSIO, P. J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

RUSSELL A. BUZZELLI, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
