[Cite as State v. Murphy, 2011-Ohio-3686.]




         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                   No. 95705



                                    STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                               JAYSON S. MURPHY
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-530815

        BEFORE:              Boyle, J., Blackmon, P.J., and Celebrezze, J.
                                              2

       RELEASED AND JOURNALIZED:                            July 28, 2011

ATTORNEY FOR APPELLANT

Ruth Fischbein-Cohen
3552 Severn Road
Suite 613
Cleveland Heights, Ohio 44118


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Anna M. Faraglia
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY J. BOYLE, J.:

       {¶ 1} Defendant-appellant, Jayson Murphy, appeals his four sexual battery

convictions.   He raises three assignments of error for our review:

       {¶ 2} “[1.] Jason [sic] Murphy was deprived of effective assistance of counsel,

thereby being deprived of a fair trial.

       {¶ 3} “[2.] The verdict was against the manifest weight of the evidence, thereby

creating a manifest miscarriage of justice.
                                               3

       {¶ 4} “[3.] It was error to convict Jason [sic] Murphy for more than one count of

sexual battery where the evidence adduced one uninterrupted episode of sexual acts.”

       {¶ 5} Finding no merit to the appeal, we affirm.

                                          Procedural History

       {¶ 6} In November 2009, the grand jury indicted Murphy on ten counts: four counts

of rape, in violation of R.C. 2907.02(A)(1)(c),with sexually violent predator specifications;

four counts of sexual battery, in violation of R.C. 2907.03(A)(2); kidnapping, in violation of

R.C. 2905.01(A)(4), with a sexual motivation specification; and intimidation of a crime victim

or witness, in violation of R.C. 2921.04(B).

       {¶ 7} The matter was tried to a jury who found Murphy guilty of the four counts of

sexual battery, but not guilty of the remaining counts.

       {¶ 8} The trial court sentenced Murphy to five years on each count of sexual battery

and ordered that they be served consecutive to one another, for an aggregate term of 20 years

in prison.   The trial court also notified Murphy that he was subject to five years of mandatory

postrelease control upon his release from prison and was labeled a Tier III sex offender.

                                               Jury Trial

       {¶ 9} The events that led to the indictment took place on October 4, 2009.           The

victim testified that she and Murphy had been in a relationship since June or July of 2009.

Until October of that year, they had a consensual sexual relationship.    During the course of
                                               4

their sexual relationship, they “role-play[ed],” had “sex toys,” took pictures of themselves

having sexual intercourse, and took “sexy” pictures of each other.    The victim testified that at

some point their relationship changed and Murphy became more controlling.

       {¶ 10} On the night of October 4, the victim and Murphy had arrived at the victim’s

home around 9:30 p.m.       The victim testified that she told Murphy that she was going to take

Ambien, which is a sleeping pill, because she was exhausted and had school in the morning.

But she testified that the real reason she took the Ambien was that she was tired of Murphy

and just wanted to sleep.

       {¶ 11} The victim went upstairs to her bedroom, put her “night clothes on,” and took

one Ambien pill.    It was approximately 9:45 p.m. when she took it.        About five minutes

after she took it, she said that she felt “real dizzy,” and her “knees buckle[d].”   She made it

to her bed, and that is all she remembered until 8:00 the next morning, when her alarm went

off.

       {¶ 12} The victim explained that before she left her house that next morning, Murphy

approached her and said, “I want to show you somethin’.”        He showed her his cell phone,

which had sexual photos of her on it that he had taken the night before when she was sleeping.

 She asked Murphy why he did it, and he replied, “if you stay, you got nothin’ to worry

about, but if you leave I’m puttin’ these pictures on the Internet, I show everybody.”       The
                                                5

victim testified that she later found more sexual photos of herself on her cell phone that

Murphy had taken of her while she was sleeping.

          {¶ 13} The victim identified 21 photos that Murphy had taken of her with his cell

phone, and seven photos he had taken with her cell phone.       She identified several photos that

showed her sleeping, and photos where he had pulled down her “panties” and exposed her

breasts and posed her in different positions.    There were photos of Murphy’s fingers in the

victim’s anus and vagina at the same time, and a photo where his three fingers were in her

vagina.     There were also photos of Murphy using the victim’s sex toys, a “purple dildo” and

a “glass dildo,” on her while she was sleeping, including pictures of both “dildos” in her anus

and in her mouth.

          {¶ 14} The victim also identified several sexual photos that she and Murphy had taken

of themselves.      In these particular photos, the victim stressed that she was awake and

consented to the photos, unlike the ones where she was asleep.

          {¶ 15} The victim did not report the incidents until October 23, 2009, after Murphy

had broken down her door and threatened her.

          {¶ 16} Murphy testified on his own behalf.    He admitted to taking the photos of the

victim, but claimed she consented to it, just as she had in the past.

                                    Ineffective Assistance of Counsel
                                              6

       {¶ 17} In his first assignment of error, Murphy claims that his trial counsel was

ineffective for failing to object when the prosecutor was cross-examining him.   Specifically,

Murphy contends that his trial counsel should have objected when the prosecutor questioned

him (1) about his prior drug trafficking conviction; (2) about his prior attempted domestic

violence conviction; and (3) about his drinking habits.

       {¶ 18} In Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674, the United States Supreme Court set forth the two-pronged

test for ineffective assistance of counsel. It requires that the defendant show

(1) counsel’s performance was deficient; and (2) the deficient performance

prejudiced the defense. The first prong “requires showing that counsel made

errors so serious that counsel was not functioning as the ‘counsel’ guaranteed

the defendant by the Sixth Amendment.”                    Id. at 687.   The second prong

“requires showing that counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is unreliable.” Id.

       {¶ 19} When Murphy testified on direct-examination, he testified to his

prior drug trafficking and attempted domestic violence convictions. He also

testified that he did not drink very much, while he painted a picture of the victim as being

constantly intoxicated or high on drugs.
                                               7

        {¶ 20} In light of Murphy’s direct-examination, we cannot say that the prosecutor’s

questions on cross-examination were improper.        The prosecutor questioned Murphy about his

prior convictions only after Murphy testified to them first.    See State v. Pollard, 8th Dist. No.

84555, 2005-Ohio-1505 (where a defendant “opens the door” to his prior criminal record, he

cannot then complain about the prosecutor questioning him on it).            Further, evidence of

criminal convictions may be used to impeach the credibility of a defendant.      Evid.R. 609.

        {¶ 21} The prosecutor also questioned Murphy about his drinking habits because

Murphy made it an issue when he testified; Murphy put his credibility and that of the victim’s

at issue.   Murphy testified that he only drinks “a little, but not too much,” but stated that the

victim was high or drunk most of the time (“she got wasted, as usual”).           In this instance,

where Murphy put his credibility at issue, the prosecutor’s questions about Murphy’s drinking

habits were certainly permissible.

        {¶ 22} Accordingly, since the prosecutor’s questions were not improper, Murphy’s trial

counsel was not ineffective for failing to object to them.     Murphy’s first assignment of error

is overruled.

                                     Manifest Weight of the Evidence

        {¶ 23} In his second assignment of error, Murphy claims that his convictions were

against the manifest weight of the evidence.    We disagree.
                                            8

       {¶ 24} In reviewing a claim challenging the manifest weight of the

evidence, “[t]he question to be answered is whether there is substantial

evidence upon which a jury could reasonably conclude that all the elements

have been proved beyond a reasonable doubt. In conducting this review, we

must examine the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of the witnesses, and determine whether

the jury clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered.”                    (Internal

quotes and citations omitted.)             State v. Leonard, 104 Ohio St.3d 54,

2004-Ohio-6235, 818 N.E.2d 229, ¶81.

       {¶ 25} Murphy contends that the “alleged” victim in this case was “a

person whose credibility [was] greatly suspect.”                  He asserts that she

contradicted herself several times while testifying. He further claims that

although the victim had closed eyes in the photos, “she could have been

resting,” claiming that she consented to the acts as she had regularly done in

the past.

       {¶ 26} First, we disagree that the victim contradicted herself.            She was

clear and consistent throughout her testimony.                 Second, even if the victim

consented to similar acts in the past when she was awake does not mean she did so on this

occasion.   The victim testified that she was sleeping when Murphy committed the acts against
                                                 9

her.   The jury certainly believed the victim.    And after independently reviewing the photos,

we also believe that the victim was sleeping.      The pictures strongly indicate that the victim

was sleeping based upon the positions she was in and the placement of her arms.            She was

clearly “dead weight.”

       {¶ 27} Further, while a reviewing court considers the credibility of the witnesses in a

weight of the evidence review, “that review must nevertheless be tempered by the principle

that weight and credibility are primarily for the trier of fact,” in this case the jury, as they are

in “the best position to view the witnesses and observe their demeanor, gestures and voice

inflections, and use these observations in weighing the credibility of the proffered testimony.”

 State v. Kash, 1st Dist. No. CA2002-10-247, 2002-Ohio-415, ¶25, citing State v. DeHass

(1967), 10 Ohio St.2d 230, 227 N.E.2d 212.

       {¶ 28} Murphy further contends that the victim’s “story,” and the state’s theory, that

Murphy drugged the victim by putting something in her water, is not credible.         We disagree.

But also, the state did not have to prove that Murphy drugged the victim.       To establish that a

person is guilty of sexual battery under R.C. 2907.03(A)(2), the state had to prove that

Murphy engaged in sexual conduct with the victim, knowing the victim’s “ability to appraise

the nature of or control [her] own conduct [was] substantially impaired.”          Thus, the state

simply had to prove that the victim was substantially impaired such that her ability to resist or
                                              10

consent to sexual conduct was diminished, and that Murphy was aware of the victim’s

substantial impairment.   The state did so in this case.

       {¶ 29} Accordingly, after reviewing the entire record, we conclude that this case is not

the “exceptional case in which the evidence weighs heavily against the conviction.”    State v.

Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.             Murphy’s second

assignment of error is overruled.

                                            Allied Offenses

       {¶ 30} In his third assignment of error, Murphy contends that his four acts of sexual

battery were allied offenses of similar import and should have been merged for purposes of

sentencing.   We disagree.

       {¶ 31} We review the issue of whether two offenses are allied under a de novo

standard of review.   See State v. Young, 2d Dist. No. 23438, 2010-Ohio-5157.

       {¶ 32} “The double jeopardy clauses of both the United States and Ohio Constitutions

protect ‘an individual against successive punishments as well as successive prosecutions for

the same offense.’    State v. Moore (1996), 110 Ohio App.3d 649, 652, 675 N.E.2d 13

(citations omitted). ‘Ohio’s allied offenses statute, R.C. 2941.25, protects against multiple

punishments for the same criminal conduct in violation of the Double Jeopardy Clauses of the

United States and Ohio Constitutions.’     Id. at 653, 675 N.E.2d 13.”   State v. Lowery, 11th
                                              11

Dist. No. 2007-T-0085, 2008-Ohio-1896, ¶11.         In the committee comment to R.C. 2941.25,

the drafters explained that “the basic thrust of the section is to prevent ‘shotgun’ convictions.”

       {¶ 33} R.C. 2941.25 provides:

       {¶ 34} “(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.

       {¶ 35} “(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.”

       {¶ 36} In the recent Ohio Supreme Court case, State v. Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314, 942 N.E.2d 1061, the court thoroughly reviewed its “difficult ***

jurisprudence on allied offenses” from 1971 to the present.       See id. at ¶7 - 40.    But most

notably, in Johnson, the Supreme Court finally overruled State v. Rance, 85 Ohio St.3d 632,

1999-Ohio-291, 710 N.E.2d 699, where it had held that courts should compare the statutory

elements in the abstract.    Johnson at paragraph one of the syllabus.       The Supreme Court

explained that Rance had ignored the mandates of R.C. 2941.25, “which expressly instructs

courts to consider the offenses at issue in light of the defendant’s conduct.”   Johnson at ¶46.
                                              12

       {¶ 37} In Johnson, the Supreme Court explained that “whether offenses are allied

offenses of similar import under R.C. 2941.25(A) *** is whether it is possible to commit one

offense and commit the other with the same conduct, not whether it is possible to commit one

without committing the other.     ***     If the offenses correspond to such a degree that the

conduct of the defendant constituting commission of one offense constitutes commission of the

other, then the offenses are of similar import.”   (Internal citations omitted.)   Id. at ¶48.

       {¶ 38} Then, “[i]f the multiple offenses can be committed by the same conduct, then

the court must determine whether the offenses were committed by the same conduct, i.e., ‘a

single act, committed with a single state of mind.’”    Id. at ¶49, quoting State v. Brown, 119

Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶50 (Lanzinger, J., dissenting).

       {¶ 39} “If the answer to both questions is yes, then the offenses are allied offenses of

similar import and will be merged.”     Id. at ¶50.

       {¶ 40} “Conversely, if the court determines that the commission of one offense will

never result in the commission of the other, or if the offenses are committed separately, or if

the defendant has separate animus for each offense, then, according to R.C. 2941.25(B), the

offenses will not merge.”   Id. at ¶51.

       {¶ 41} Here, there were four separate acts of sexual battery.     There was one act where

Murphy placed his fingers inside the victim’s vagina and anus at the same time.            He then

stopped and took a photo.     There was a separate and distinct act where he only placed his
                                              13

fingers in her vagina.   He then stopped and took a photo.     And there were two separate acts,

where he stopped and took photos in between, when Murphy inserted a purple dildo and a

glass one into the victim’s anus.     The facts establish that these acts were not a single,

continuous sexual act.    Accordingly, the trial court was correct when it found that the four

counts of sexual battery were not allied offenses of similar import.

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

       Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.         The defendant’s conviction having been

affirmed, any bail pending appeal is terminated.        Case remanded to the trial court for

execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE

PATRICIA ANN BLACKMON, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
