[Cite as State v. Murrell, 2012-Ohio-2108.]




         IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                     :

        Plaintiff-Appellee                        :   C.A. CASE NO. 24717

vs.                                               :   T.C. CASE NO. 10CR3241

DARRYL L. MURRELL                                 :   (Criminal Appeal from
                                                       Common Pleas Court)
        Defendant-Appellant                       :

                                              .........

                                              OPINION

                              Rendered on the 11th day of May, 2012.

                                              .........

Mathias H. Heck, Jr., Pros. Attorney; R. Lynn Nothstine, Asst. Pros. Attorney, Atty.
Reg. No. 0061560, P.O. Box 972, Dayton, OH 45422
      Attorneys for Plaintiff-Appellee

David R. Miles, Atty. Reg. No. 0013841, 125 W. Main Street, Suite 201, Fairborn, OH
45324
      Attorney for Defendant-Appellant

                                              .........

GRADY, P.J.:

        {¶ 1} Defendant, Darryl Murrell, appeals from his conviction and sentence for rape

of a child under thirteen years of age.

        {¶ 2} On October 8, 2010, after school was over, eleven year old E.K. returned to his

home in Dayton, Ohio. E.K. went to the basement and asked Defendant, a friend of the
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family who lives at the home and has a bedroom in the basement, if he wanted to watch a

movie. Defendant told E.K. to change his clothes. When E.K. put on a pair of jeans and a

tee shirt, Defendant told him to change into something else. E.K. then put on boxer shorts

and pajama pants, and sat down next to Defendant on the couch in the basement to watch a

movie. E.K. fell asleep during the movie.

       {¶ 3} When E.K.’s brother, T.K., went down to the basement,               he observed

Defendant performing fellatio on E.K. while E.K. was sleeping. T.K. tried to awaken E.K. by

whispering his name, and then went back upstairs.

       {¶ 4} E.K. woke up and discovered that his pajama pants and boxer shorts had been

pulled down, and that Defendant had his mouth on E.K.’s “private part.” E.K. went upstairs

and told his brother, T.K., what had happened. T.K. said he saw what Defendant had done.

The two boys then reported the incident to Ci-Ci, an adult female who lived in the home.

Ci-Ci called E.K.’s mother, who came home and called E.K.’s father. Police were called to

the home. After talking to E.K. and T.K., police transported Defendant to the police station

for questioning. Defendant confessed to performing “oral sex” on E.K. Defendant later

wrote a letter to E.K. apologizing for what he had done.

       {¶ 5} Defendant was indicted on one count of rape of a child under thirteen years of

age, R.C. 2907.02(A)(1)(b). Following a jury trial, Defendant was found guilty as charged.

The trial court sentenced Defendant to ten years to life, and classified him as a Tier III sex

offender.

       {¶ 6} Defendant timely appealed to this court from his conviction and sentence.
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       FIRST ASSIGNMENT OF ERROR

       {¶ 7} “THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S OHIO

CRIMINAL RULE 29 MOTION FOR ACQUITTAL.”

       {¶ 8} Defendant argues that his conviction for rape is not supported by legally

sufficient evidence because the State failed to prove that Defendant engaged in sexual conduct

in the form of fellatio with his child victim.

       {¶ 9} In State v. Haggerty, 2d Dist. Montgomery No. 24405, 2011-Ohio-6705 at ¶

19-21, we wrote:

               When considering a Crim.R. 29 motion for acquittal, the trial court

       must construe the evidence in a light most favorable to the State and determine

       whether reasonable minds could reach different conclusions on whether the

       evidence proves each element of the offense charged beyond a reasonable

       doubt. State v. Bridgeman (1978), 55 Ohio St.2d 261. The motion will be

       granted only when reasonable minds could only conclude that the evidence

       fails to prove all of the elements of the offense. State v. Miles (1996), 114 Ohio

       App.3d 738.

               A Crim.R. 29 motion challenges the legal sufficiency of the evidence.

       A sufficiency of the evidence argument challenges whether the State has

       presented adequate evidence on each element of the offense to allow the case

       to go to the jury or sustain the verdict as a matter of law. State v. Thompkins,

       (1997), 78 Ohio St.3d 380. The proper test to apply to such an inquiry is the

       one set forth in paragraph two of the syllabus of State v. Jenks (1991), 61 Ohio
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       St.3d 259:

               “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.”

       {¶ 10} Defendant was found guilty of rape in violation of R.C. 2907.02(A)(1)(b),

which 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:

               The other person is less than thirteen years of age, whether or not the

       offender knows the age of the other person.

       {¶ 11} “Sexual conduct” includes fellatio. R.C. 2907.01(A). As we noted in State v.

Smith, 2d Dist. Clark No. 2003CA23, 2004-Ohio-665 at ¶ 25, fellatio has been defined as “a

sexual act in which the mouth or lips come in contact with the penis.”            Black’s Law

Dictionary (6th Ed. 1990) 616; State v. Long, 64 Ohio App.3d 615, 618, 582 N.E.2d 626 (9th

Dist. 1989).

       {¶ 12} In this case the evidence that Defendant performed fellatio on E.K. is

overwhelming. E.K.’s brother T.K., observed Defendant’s mouth on E.K.’s “private part.”
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When E.K. awoke, he discovered Defendant’s mouth was on his “private part.” Furthermore,

Defendant admitted to police that he had performed oral sex on E.K.

        {¶ 13} Viewing this evidence in a light most favorable to the State, a rational trier of

facts could find all of the essential elements of rape, including that Defendant engaged in

sexual conduct in the form of fellatio with his child victim, proven beyond a reasonable doubt.

 Defendant’s conviction is supported by legally sufficient evidence. The trial court properly

overruled Defendant’s Crim.R. 29 motion for acquittal.

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

        SECOND ASSIGNMENT OF ERROR

        {¶ 15} “THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON THE

DEFINITION OF FELLATIO.”

        {¶ 16} Relying upon State v. Shondrick, 9th Dist. Medina No. 3216-M,

2002-Ohio-2439, Defendant argues that the trial court erred in instructing the jury on the

definition of “fellatio” in accordance with the standard instruction found in Ohio Jury

Instructions, Criminal,    Section 507.02(A)(1) as follows: “Fellatio means a sexual act

committed with the penis and the mouth.”

        {¶ 17} As discussed in the previous assignment of error, we have recognized that

fellatio is “a sexual act in which the mouth or lips come in contact with the penis,” Smith,

supra. The evidence presented overwhelmingly demonstrates that is what occurred in this

case.

        {¶ 18} During a discussion about the jury instructions, defense counsel indicated a

general dissatisfaction with the court’s proposed definition of fellatio, but failed to identify
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what changes needed to be made or how the definition should read. The trial court overruled

Defendant’s general objection and indicated that the definition of fellatio, which is consistent

with Ohio Jury Instructions, would remain.

       {¶ 19} Defendant’s reliance upon Shondrick to support his claim that the trial court’s

definition of fellatio in this case was erroneous is misplaced because that case is factually

distinguishable. Shondrick does not stand for the proposition that the definition of fellatio in

Ohio Jury Instructions is deficient. Rather, in that case the trial court instructed the jury on

the definition of fellatio in accordance with Ohio Jury Instructions. During deliberations, the

jury asked if that definition meant that the penis and the mouth are in contact?            Over

Defendant’s objection, the court responded to the jury’s inquiry by saying that the definition

doesn’t require contact or touching. The Court of Appeals reversed, concluding that fellatio

requires the mouth or lips to come in contact with the penis. Id., at ¶ 29.

       {¶ 20} In the present case, the trial court did not instruct the jury that no contact

between the mouth or the lips and the penis was required in order to commit fellatio. The

court simply gave the standard O.J.I. instruction defining fellatio, which indicates that fellatio

is a sexual act committed with the penis and the mouth. The jury did not request additional

instructions or submit any questions on that issue. The standard O.J.I. instruction defining

fellatio has been upheld. State v. Clark, 106 Ohio App.3d 426, 429, 666 N.E.2d 308 (3rd

Dist. 1995). Defendant has failed to demonstrate that the trial court’s definition of fellatio in

this case was erroneous.

       {¶ 21} Defendant’s second assignment of error is overruled.

       THIRD ASSIGNMENT OF ERROR
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       {¶ 22} “THE TRIAL COURT ERRED IN NOT INSTRUCTING THE JURY ON

THE LESSER INCLUDED OFFENSES OF ATTEMPTED RAPE AND GROSS SEXUAL

IMPOSITION.”

       {¶ 23} Defendant argues that the trial court committed error by refusing to give his

requested jury instructions on the lesser included offenses of attempted rape and gross sexual

imposition, which requires proof of sexual contact rather than sexual conduct.

       {¶ 24} The decision whether to give a requested jury instruction is a matter left to the

sound discretion of the trial court, and its decision will not be disturbed on appeal absent an

abuse of discretion. State v. Davis, 2d Dist. Montgomery No. 21904, 2007-Ohio-6680, at ¶

14. An abuse of discretion implies an arbitrary, unreasonable, unconscionable attitude on the

part of the court. State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980).

       {¶ 25} An offense may be a lesser included offense of another only if (i) the offense is

a crime of lesser degree than the other, (ii) the offense of the greater degree cannot be

committed without the offense of the lesser degree also being committed and (iii) some

element of the greater offense is not required to prove the commission of the lesser offense.

State v. Wilkins, 64 Ohio St.2d 382, 415 N.E.2d 303 (1980). The mere fact that an offense

can be a lesser included offense of another offense does not mean that a court must instruct on

both offenses whenever the greater offense is charged. Id. It is well settled that a charge on

a lesser included offense is required only when the evidence presented at trial would

reasonably support both an acquittal on the crime charged and a conviction on the lesser

included offense. State v. Thomas, 40 Ohio St. 3d 213, 533 N.E.2d 286 (1988); State v.

Reese, 2d Dist. Montgomery No. 22907, 2009-Ohio-5046.
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       {¶ 26} Contrary to Defendant’s argument that the facts in this case support only

attempted sexual conduct or sexual contact rather than sexual conduct, T.K. testified that he

observed Defendant sucking on E.K.’s penis and that Defendant’s head was going up and

down, E.K. testified that Defendant’s mouth was on his penis, and Defendant admitted to

police that he performed oral sex on E.K. That conduct clearly constitutes fellatio, Smith,

which is sexual conduct and not just sexual contact per R.C. 2907.01(A). Therefore, a jury

could not reasonably acquit Defendant of rape, yet convict him of attempted rape or gross

sexual imposition. As the trial court correctly noted, on these facts Defendant is either

guilty or not guilty of rape. There are no available lesser included offenses. The trial court

did not abuse its discretion in declining to give instructions on lesser included offenses

because the evidence did not warrant such instructions.

       {¶ 27} Defendant’s third assignment of error is overruled.

       FOURTH ASSIGNMENT OF ERROR

       {¶ 28} “THE TRIAL COURT ERRED IN IMPOSING A SENTENCE OF TEN

YEARS TO LIFE.”

       {¶ 29} The trial court sentenced Defendant to a prison term of ten years to life.

Defendant argues that the court was not required to impose life imprisonment as part of the

sentence in this case.     In support of that claim, Defendant points to language in R.C.

2907.02(B) which indicates that for a violation of R.C. 2907.02(A)(1)(b), a person shall be

sentenced to either a prison term or life imprisonment under R.C. 2971.03. Defendant claims

that R.C. 2971.03, which governs sentencing of sexually violent offenders with predator

specifications, does not apply to this case.
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       {¶ 30} Defendant is correct in his contention that R.C. 2971.03(A) applies to

sentencing of sexually violent offenders with predator specifications, and that the provision

has no application to this case. However, R.C. 2971.03(B)(1)(a) does apply to Defendant’s

case. That section requires that for a violation of R.C. 2907.02(A)(1)(b) committed on or

after January 2, 2007, the offense of which Defendant was convicted, the trial court must

impose an indefinite prison term consisting of a “minimum term of ten years and a maximum

term of life imprisonment,” when R.C. 2971.03(A) does not apply and the trial court did not

impose a sentence of life without parole under R.C. 2907.02(B). That is the case here. The

trial court imposed the specific sentence required by law in this case.

       {¶ 31} Defendant’s fourth assignment of error is overruled.

       FIFTH ASSIGNMENT OF ERROR

       {¶ 32} “AN IMPOSITION OF LIFE SENTENCE FOR A CONVICTION UNDER

R.C. 2907.02(A)(1)(b) CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT.”

       {¶ 33} Defendant argues that a sentence of life imprisonment for engaging in sexual

conduct with a child under thirteen years of age in violation of R.C. 2907.02(A)(1)(b) violates

the constitutional prohibition against cruel and unusual punishment. We have previously

addressed this argument in cases involving engaging in sexual conduct with children ages ten

and twelve and found that it lacks merit. State v. McConnell, 2d Dist Montgomery No.

19993, 2004-Ohio-4263; State v. O’Dell, 2d Dist Montgomery No. 22691, 2009-Ohio-1040.

See also: State v. Warren, 168 Ohio App.3d 288, 2006-Ohio-4104, 859 N.E.2d 998. We

decline Defendant’s invitation to reconsider our decisions.

       {¶ 34} Defendant’s fifth assignment of error is overruled. The judgment of the trial
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court will be affirmed.




FAIN, J., And DONOVAN, J., concur.



Copies mailed to:

R. Lynn Nothstine, Esq.
David R. Miles, Esq.
Hon. Barbara P. Gorman
