STATE OF OHIO v. DONTE MURPHY
Appellate Case Nos. 27801 and 27802; Trial Court Case Nos. 2016-CR-1547 and 2016-CR-2363
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
August 31, 2018
[Cite as State v. Murphy, 2018-Ohio-3506.]
TUCKER, J.
Criminal Appeal from Common Pleas Court
Rendered on the 31st day of August, 2018.
MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
BROCK A. SCHOENLEIN, Atty. Reg. No. 0084707, 371 West First Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant
TUCKER, J.
{¶ 2} We conclude that there was evidence in the record from which a reasonable finder of fact could conclude that Murphy was guilty оf the charged offenses. We further conclude that the convictions were not against the manifest weight of the evidence, and that the statute is not unconstitutional. Accordingly, the judgment of the trial court is affirmed.
I. Facts and Procedural History
{¶ 3} Murphy was the men‘s varsity track coach for Ponitz Career Technology Center (hereinafter “Ponitz“), a high school under the administration of the Dayton Public Schools (hereinafter “DPS“) and thе Dayton School Board (hereinafter “Board“). He also helped coach select members of the Ponitz women‘s track team. Of relevance hereto, in 2016, he coached D.M., who was a member of the Ponitz women‘s track team.
{¶ 4} In seeking to continue as track coach for 2016, Murphy submitted an application to the DPS Office of Human Resources along with a “3 year Pupil Activity Pеrmit” which purported to have been issued on August 8, 2014. On March 18, 2016, Judith Spurlock, the Executive Director of the Office of Human Resources for DPS sent Murphy a letter informing him that his employment was terminated because he did not
{¶ 5} On March 22, 2016, Murphy and D.M. engaged in consensual sexual intercourse in Murphy‘s vehicle.1 On April 14, 2016, they engaged in consensual intercourse and fellatio in his car. Both incidents occurred near D.M.‘s home in Dayton.
{¶ 6} On May 4, 2016, Murphy was conducting track practice at Ponitz when he was summoned to a conference regarding allegations that D.M. and he had engaged in sexual conduct. Murphy denied the sexual relationship and stated that he was merely D.M.‘s coach, that they had a coach-athlete relationship and that he was acting as a parent to D.M. due to the fact that her father had recently died. Eventually however, Murphy did admit to engaging in sexual relations with D.M. Murphy was then trespassed from all DPS properties.
{¶ 7} On July 7, 2016, Murphy wаs indicted, in Montgomery C.P. No. 2016-CR-1547, on three counts of Sexual Battery in violation of
{¶ 8} Murphy asserts the following two assignments of error:
THE TRIAL COURT ERRED IN OVERRULING APPELLANT‘S RULE 29 MOTION AS TO EACH COUNT IN THE INDICTMENT.
APPELLANT‘S CONVICTIONS WERE ENTERED AGAINST THE WEIGHT OF THE EVIDENCE.
{¶ 9} Murphy argues that the trial court erred in overruling his Crim.R. 29(A) motion, because the State failed to provide evidence sufficient to support the convictions.2 He further argues that the convictions were against the weight of the evidence.
{¶ 10} “A sufficiency of the evidencе argument disputes 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. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “The relevant inquiry is whether any rational finder of fact, after viewing the evidence in a light most favorable to the State, could have found the essential elements of the crime prоven beyond a reasonable doubt.” State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560, (1979); State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. A guilty verdict will not be disturbed on appeal unless “reasonable minds could not reach the conclusion reached by the trier-of-fact.”
{¶ 11} “A weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. A court reviews “‘the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.‘” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 12} Further, while “sufficiency and manifest weight are different legal concepts, manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that a conviction is supported by the manifest weight of the evidence necessarily includes a finding of sufficiency.” (Citations omitted.) State v. McCrary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, ¶ 11. Accord State v. Robinson, 2d Dist. Montgomery No. 26441, 2015-Ohio-1167, ¶ 17; State v. Braxton, 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15.
{¶ 13} Murphy first argues that the convictions for tampering with records and forgery were not supported by the evidence. He makes several arguments relating to this assignment of error, including claims that the State failed to submit evidence to prove that (1) the pupil activity permit was altered; (2) he acted purposefully or with knowledge; (3) the permit was kept by, or belonged, to а governmental entity; and (4) the offense was
{¶ 14} We begin with the issue of whether the pupil activity permit purporting to have an issue date of August 8, 2014, was altered. At trial, the parties submitted Joint Exhibit II, which was a copy of Murphy‘s pupil activity permit issued on August 8, 2011 with an expiration date of June 30, 2014. There was no dispute that this permit was a valid and authentic document issued by the Ohio Department of Education (hereinafter “ODE“). The parties also submitted Joint Exhibit III, which they stipulated was a copy of the pupil activity permit submitted by Murphy, along with his application to continue as track coach at Ponitz, to the DPS Office of Human Resources.
{¶ 15} A comparison of the two permits reveals that they are identical except for the issuance dates and the dates for which the permits were valid. The permits hаve the same form number at the bottom of the permit. However, the parties stipulated that the form numbers would not be identical if the 2014 form had been validly issued, because the permits are issued with sequential numbers that do not repeat. Further, both permits were signed by two persons who, on the dates set forth on Exhibit III, were no longer in the signatory positions listed on the permits. Additionally, the issuance date оf Exhibit III slopes downward. The parties also stipulated that the ODE did not issue a pupil activity permit with the issuance date of August 8, 2014, and that Murphy‘s application for a new permit was listed with the ODE as “pending” on that date. Based upon this evidence, we conclude that the trial court could have found beyond a reasonable doubt that the permit submitted by Murphy with his 2016 application was not valid and had bеen subject to alteration.
{¶ 16} Next, Murphy argues that, because there was no direct evidence of his
“Commonly, there is no direct evidence of a defendant‘s state of mind so the state must rely on circumstantial evidence to satisfy this element of its case. A defendant‘s statе of mind may be inferred from the totality of the surrounding circumstances.” State v. Rodano, 2017-Ohio-1034, 86 N.E.3d 1032, ¶ 43 (8th Dist.), quoting In re Horton, 4th Dist. Adams No. 04CA794, 2005-Ohio-3502, ¶ 23. In Ohio, it is well-established that “a defendant may be convicted solely on the basis of circumstantial evidence.” State v. Nicely, 39 Ohio St.3d 147, 151, 529 N.E.2d 1236 (1988). “Circumstantial evidence and direct evidence inherently possess the same probative value.” [State v.] Jenks, [61 Ohio St.3d 259, 574 N.E.2d 492 (1991),] paragraph one of the syllabus. “Circumstantial evidence is defined as ‘[t]estimony not based on actual pеrsonal knowledge or observation of the facts in controversy, but of other facts from which deductions are drawn, showing indirectly the facts sought to be proved. * * *‘” Nicely, at 150, quoting Black‘s Law Dictionary (5 Ed. 1979) 221.
Id. at ¶ 17.
{¶ 17} Murphy was convicted of tampering with records in violation of
{¶ 18} The unrebutted evidence presented at trial demonstrated that the permit submitted by Murphy had at least four identifiable errors on its face. The evidence further demonstrated that ODE had previously issued a valid permit to Murphy. However, ODE had not issued a new permit to Murphy, and his application for such permit was pending. Nonetheless, he was in possession of a permit purporting to be issued by ODE in 2014. The new permit was identical to his prior, valid permit except for the dates. Finally, Murphy submitted the 2014 permit with his coaching application. Based upon this record, we conclude that there was sufficient evidence of intent, and that the trial court‘s
{¶ 19} Next, Murphy contends that the State failed to prove that the permit was kept by, or belonged to, a “local, state, or federal governmental entity,” as required by
{¶ 20} “Kept” is the past tense of “keep.” Webster‘s Ninth New Collegiate Dictionary 659 (1988). “Keep” is defined as “to have or to retain in one‘s power or possession.” Black‘s Law Dictionary 449 (5th Ed. 1983). The record establishes that Murphy submitted the altered 2014 pupil activity permit to the Bоard, and that, thereafter, the Board retained (that is, kept) the permit for some period of time. Otherwise, the Board would not have discovered that Murphy was subject to termination because he did not have an approved Ohio pupil activity permit. Therefore, since a local school board is a governmental entity, there was sufficient evidence that the altered permit was kept by a governmental entity, and, further, this determination was not against the manifest
{¶ 21} Finally, Murphy contends that the State failed to establish venue for the charge of tampering with records. “Venue is not a material element of any crime, but is a fact that must be proven beyond a reasonable doubt unless the defendant waives it.” State v. Singleton, 10th Dist. Franklin No. 01AP-632, 2002 WL 264588, *3 (Feb. 26, 2002).
{¶ 22} In this case, Murphy lived and worked in Montgomery County. The permit was altered for the purpose of obtaining work in Montgomery County. There was no evidence that the offense took place in any other county. Thus, the trial court could reasonably infer that the offense took place in that county.
{¶ 23} Next, Murphy contends that the convictions for sexual battery were not supported by the evidence. Murphy argues that, because he had been terminated at the time of the offenses, he was not authorized to act as a coach and thus, could not be deemed, as the trial court found, a person serving in a school.
{¶ 24} Sexual battery, as relevant hereto, is proscribed by
{¶ 25} “Serving” is not defined in
{¶ 26} The record in this case demonstrates that, despite his termination, Murphy continued to perform the duties of a coach up to the day he was trespassed from school property. The evidence supported a finding that he was attending daily practices and instructing the athletes, and that hе also continued to travel to track meets with the teams.
{¶ 27} Finally, Murphy raises the claim that the sexual battery statute,
{¶ 28} It is well-settled that “an enactment of the General Assembly is presumed to be constitutional, and before a court may declare it unconstitutional it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.” State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus. Thus, “any doubt as to the constitutionality of a statute will be resоlved in favor of its validity.” Id. at 149. Further, the party challenging the statute bears the burden of demonstrating the unconstitutionality of the statute beyond a reasonable doubt. State v. Burke, 2016-Ohio-8185, 69 N.E.3d 774, ¶ 17 (2d Dist.), citing State v. Brownfield, 12th Dist. Butler No. CA2012-03-065, 2013-Ohio-1947, ¶ 8.
{¶ 29} “Statutes that make classifications based upon a suspect class are subject to strict scrutiny, as are statutes involving fundamental constitutional rights. Additionally, a statute that makes a classification based on sex or illegitimacy is subjeсt to heightened or intermediate scrutiny. Statutes that are not subject to either strict or heightened
{¶ 30} Murphy cites Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) to argue that consensual sex between adults is a constitutionally protected right. We note that Lawrence used a rational basis review in determining the constitutionality of a statute that affected the rights of two adult men to engage in consensual sexual relations with each other. Id. at 578. The court further differentiated this type of consensual adult sex from cases that involve minors or “persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused.” Id. Thus, it can be inferred that the case before us should be reviewed under a rational basis standard.
{¶ 31}
{¶ 32} We conclude that there is a clear rational basis for the statute and that Murphy has failed to demonstrate that the strong presumption of constitutionality afforded to statutes has been overcome in this case. We therefore find that this argumеnt lacks merit.
{¶ 33} Both of Murphy‘s assignments of error are overruled.
III. Conclusion
{¶ 34} Murphy‘s assignments of error being overruled, the judgment of the trial court is affirmed.
WELBAUM, P.J. and FROELICH, J., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Heather N. Jans
Brock A. Schoenlein
Hon. Steven K. Dankof