[Cite as State v. Murphy, 2023-Ohio-3276.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

MONTGOMERY COUNTY

STATE OF OHIO 

 Appellee

v. 

JEREMY MURPHY

 Appellant

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C.A. No. 29559

Trial Court Case No. 2020 CR 03798

(Criminal Appeal from Common Pleas 

Court)

. . . . . . . . . . .

O P I N I O N

Rendered on September 15, 2023

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by RICKY L. MURRAY, Attorney for Appellee

 

ADAM J. ARNOLD, Attorney for Appellant

 . . . . . . . . . . . . .

WELBAUM, P.J.

{¶ 1} Appellant, Jeremy Murphy, appeals from his convictions for felony murder 

with a firearm specification, tampering with evidence, and having weapons while under 

disability following a jury trial in the Montgomery County Court of Common Pleas. In 

support of his appeal, Murphy contends that the trial court should have suppressed 

evidence pertaining to a witness’s pretrial identification of him on grounds that the 
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identification process was unduly suggestive and unreliable. Murphy also contends that 

his convictions were not supported by sufficient evidence and were against the manifest 

weight of the evidence. For the reasons outlined below, we disagree with Murphy’s 

claims and will affirm the judgment of the trial court.

Facts and Course of Proceedings

{¶ 2} On December 14, 2020, a Montgomery County grand jury returned an 11-

count indictment charging Murphy with four counts of felony murder, two counts of 

felonious assault, two counts of aggravated robbery, one count of tampering with 

evidence, and two counts of having weapons while under disability. The counts for 

felony murder, felonious assault, and aggravated robbery all included three-year firearm 

specifications. The counts were broken down as follows:

Felony Murder - 4 counts (unclassified felonies)

1. R.C. 2903.02(B): proximate cause/felonious assault/serious physical harm

2. R.C. 2903.02(B): proximate cause/felonious assault /deadly weapon

3. R.C. 2903.02(B): proximate cause/agg. robbery/serious physical harm

4. R.C. 2903.02(B): proximate cause/agg. robbery/deadly weapon

Felonious Assault - 2 counts (second-degree felonies)

1. R.C. 2903.11(A)(1): serious physical harm

2. R.C. 2903.11(A)(2): deadly weapon

Aggravated Robbery - 2 counts (first-degree felonies)
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1. R.C. 2911.01(A)(1): deadly weapon

2. R.C. 2911.01(A)(3): serious physical harm

Tampering with Evidence - 1 count (third-degree felony)

1. R.C. 2921.12(A)(1) 

Having Weapons While Under Disability - 2 counts (third-degree felonies)

1. R.C. 2923.13(A)(2): felony offense of violence 

2. R.C. 2923.13(A)(3): felony drug offense

{¶ 3} The indicted charges and specifications stemmed from allegations that,

during the early morning hours of December 4, 2020, Murphy shot and killed William 

Bruce inside a Dayton residence after Murphy demanded all of Bruce’s money. It was 

also alleged that Murphy ran to his residence after the shooting, concealed the firearm in 

his basement, and bleached the clothing that he had been wearing. Murphy pled not 

guilty to all the indicted charges and specifications and thereafter filed a motion to 

suppress. 

{¶ 4} In his motion to suppress, Murphy argued, among other things, that due 

process required the suppression of all evidence pertaining to an eyewitness’s pretrial 

identification of him. Murphy claimed that suppression of the pretrial identification was 

necessary because the identification process had been unduly suggestive and unreliable. 

Specifically, Murphy took issue with the fact that the police had presented the eyewitness 

with only his photograph and not a photospread of various individuals. On May 12, 2021, 

and August 20 and 21, 2021, the trial court held evidentiary hearings on Murphy’s motion 
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to suppress. Following these hearings, the trial court issued a decision overruling the 

motion.

{¶ 5} After the trial court overruled Murphy’s motion to suppress, the matter 

proceeded to a three-day jury trial. During trial, the State presented testimony from 

several witnesses, including the eyewitness who had identified Murphy as Bruce’s killer, 

Tiffany Miser. The State also presented testimony from multiple investigating police 

officers, the coroner who examined Bruce’s body, a forensic firearms expert, and a 

forensic DNA expert. In his defense, Murphy presented the testimony of his live-in 

girlfriend, Helen Wingeier. The following is a summary of the testimony that was 

presented at trial.

{¶ 6} At approximately two or three in the morning on December 4, 2020, Murphy, 

Bruce, and a third individual named Dave Kenny arrived at Miser’s residence on Noel 

Court in the city of Dayton, Montgomery County, Ohio, in order to get warm and use

methamphetamine. Miser knew Murphy and Kenny from the neighborhood and had 

been acquainted with them for a few years. Miser had previously purchased drugs from 

Murphy and had been to his house a couple of times. Miser, however, did not know 

Murphy’s real name; she only knew him as “Fox.” Before that morning, Miser had never 

met the third individual, Bruce, who went by the name “Red.”

{¶ 7} After Miser allowed Murphy, Kenny, and Bruce inside her residence, the 

three men began using methamphetamine in her living room. Miser did not partake in 

the drug use because she preferred heroin. After the three men entered her residence, 

Miser immediately went to her bathroom to get ready to go out and meet a “friend” for 
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whom she was going to perform sexual favors in exchange for money.

{¶ 8} No more than ten minutes after Murphy, Bruce, and Kenny arrived, Bruce ran 

into the bathroom with Miser, locked the door, and told Miser that “Fox” (Murphy) was 

going to shoot and kill him if he did not give Murphy all of his money. During that time, 

Miser saw Murphy running at Bruce and Bruce slam the bathroom door just before Murphy 

could get in. Immediately thereafter, Miser heard Murphy kicking at the bathroom door. 

{¶ 9} Frightened by what was happening, Miser jumped out of her bathroom 

window onto an enclosed back porch. From the back porch, Miser ran and hid next to 

her neighbor’s garage. While hiding next to the garage, Miser heard a gunshot and then 

saw Murphy run out of the back of her house and toward Fillmore and Nassau Streets, 

the area where she knew Murphy lived. Miser did not know where Kenny went after the 

incident.

{¶ 10} After Miser saw Murphy running away, she ran and found someone in the 

neighborhood that she knew and used their cell phone to call 9-1-1. Shortly thereafter, 

Officer Bradon Halley of the Dayton Police Department responded to Miser’s location. 

When Ofc. Halley made contact with Miser, Miser frantically told him what had occurred 

at her residence. Halley then went to Miser’s residence to look for a victim. 

{¶ 11} Upon entering Miser’s residence, Ofc. Halley observed that the paneling on 

Miser’s bathroom door had been broken out. Halley also observed a male, later 

identified as Bruce, lying on the bathroom floor. As other officers conducted a protective 

sweep of the residence, Halley checked on Bruce’s condition; Halley determined that 

Bruce had no pulse and there were gunshot wounds to his upper right torso and lower 
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left torso. Halley then moved Bruce to the living room so that medics could have more 

space to treat him. Upon doing so, a spent shell casing fell on the ground from Bruce’s 

person. The shell casing was collected as evidence and sent to the Miami Valley 

Regional Crime Lab (“MVRCL”) for analysis. Later in the investigation, another officer 

discovered a single bullet lodged in the bathroom wall between the toilet and the bathtub. 

The bullet, however, could not be recovered. 

{¶ 12} While officers were searching Miser’s residence on the morning of the 

shooting, Miser assisted the investigation by providing officers with a physical description 

of Murphy and the name by which she knew him, i.e., “Fox.” As part of her description, 

Miser told the officers that Murphy had been wearing black Carhartt coveralls and purplerimmed eyeglasses. Miser also told the officers that Murphy lived near her residence in 

the area of Fillmore and Nassau Streets. 

{¶ 13} As Miser was being interviewed in the back of a police cruiser, Officer Sarah 

Weidner of the Dayton Police Department was seated in the front of the same cruiser 

using the computer to research information on the suspect that Miser was describing. 

While doing so, Ofc. Weidner received a message on the computer from another officer. 

The message contained a photograph of a possible suspect that went by the alias “Fox.” 

The person depicted in the photograph was Murphy. When Weidner opened the 

message, the photograph of Murphy popped up on the computer screen. Weidner did 

not intend for Miser to see the photograph, but Miser saw it from where she was seated 

in the back of the police cruiser. When Miser saw the photograph, she immediately 

pointed to it and identified the suspect in the photograph as “Fox.” 
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{¶ 14} Miser was thereafter taken to the Dayton Police Department’s Safety 

Building for a full interview with Detective Sergeant Walt Steele. During the interview, 

Steele showed Miser the same photograph of Murphy that she had seen in the back of 

the police cruiser. Upon seeing the photograph a second time, Miser once again 

identified Murphy’s photograph as depicting the suspect, “Fox.” Miser signed and dated 

the photograph and notated that she was 100% sure that the photograph depicted the 

person she knew as “Fox.” See State’s Exhibit 56. 

{¶ 15} After Miser positively identified Murphy as the suspect, several police 

officers responded to Murphy’s residence on Hulbert Street on the morning of the 

shooting. Murphy’s residence was located just one-half mile from Miser’s residence on 

Noel Court. Officers surrounded Murphy’s residence and gave exit commands over a 

public address system. Murphy’s live-in girlfriend, Helen Wingeier, and her two children 

eventually exited the residence and were placed in the back of a police cruiser. Murphy, 

however, refused to exit, which resulted in a Dayton SWAT team being called out to 

Murphy’s residence.

{¶ 16} Officer Stephen Lloyd, a Dayton SWAT team member, testified that noise 

flash diversion devices and gas munition rounds were deployed in an effort to get Murphy 

to exit his residence. Murphy, however, barricaded himself in his residence for over 2.5 

hours before coming out. When Murphy eventually came out, he was apprehended by 

Ofc. Lloyd, who observed insulation on the shoulders and back of the sweatshirt Murphy 

was wearing.

{¶ 17} Det. Sgt. Steele also observed insulation on Murphy’s clothing and hair 
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when he interviewed Murphy following his apprehension. Steele additionally observed 

that Murphy was wearing purple-rimmed eyeglasses. During his interview, Murphy

initially stated that he did not know Miser and had never been to Miser’s residence. 

However, later in the interview, Murphy acknowledged that he knew Miser and stated that 

he had been to her residence three days earlier. 

{¶ 18} Following the issuance of a search warrant, officers searched Murphy’s 

residence and found a pair of black Carhartt coveralls in a washing machine located in 

the basement. The coveralls were discolored from bleach and there was an 

overwhelming smell of bleach coming from the washing machine. A container of bleach 

was discovered in the residence’s bathtub. In addition to some other items, the washing 

machine contained a pair of gloves and a single nine-millimeter live round of ammunition.

{¶ 19} The search of the basement also yielded an unloaded Smith and Wesson 

M&P nine-millimeter semiautomatic handgun. The handgun was found tucked in an area 

between the basement’s wall and ceiling. The handgun had been shoved into some 

insulation in the ceiling area. On the second floor of the residence, insulation was also 

found on a closet floor underneath an attic access.

{¶ 20} Aaron Davies, a firearms expert with the Miami Valley Regional Crime Lab 

(MVRCL), examined the handgun and testified that it was operable and in good working 

condition. Davies also testified that the live round of ammunition discovered in Murphy’s 

washing machine could be fired from the handgun. More significantly, after comparing 

test fires from the handgun, Davies testified to a reasonable degree of scientific certainty 

that the shell casing that had fallen from Bruce’s person at the crime scene had been fired 
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from the handgun discovered in Murphy’s basement. 

{¶ 21} Mary Barger, a forensic DNA expert with the MVRCL, performed DNA 

analysis on the handgun and other items of evidence collected at the crime scene. With 

respect to a majority of the evidence, Barger testified that there had not been enough 

DNA present for her to analyze. However, there had been sufficient DNA detected on 

the handgun. Barger testified that the results of the DNA analysis on the handgun 

excluded both Muphy and Bruce as possible DNA contributors. Nevertheless, Barger 

testified that a person’s DNA is not always left on an item that the person touches. 

Barger explained that this can be due to the person’s not leaving enough skin cells behind 

or due to the person’s wearing gloves or wiping the item clean. Significantly, Barger 

testified that bleach completely destroys DNA. 

{¶ 22} The coroner who examined Bruce’s body testified that Bruce’s death was a 

homicide caused by a gunshot wound to the chest. Specifically, the coroner testified that 

Bruce had a through-and-through gunshot wound in which the bullet entered through his 

right upper chest and exited through his left lower back. The coroner also testified that 

Bruce’s blood tested positive for fentanyl, cocaine, marijuana, and methamphetamine but 

confirmed that Bruce’s cause of death was not drug-related. 

{¶ 23} Following its presentation of the foregoing testimony, the State rested its 

case. Murphy moved for an acquittal pursuant to Crim.R. 29(C), which the trial court 

overruled. Murphy then called his live-in girlfriend, Wingeier, to testify on his behalf. 

During her testimony, Wingeier confirmed that Murphy went by the nickname “Fox.” 

Wingeier also confirmed that Murphy owned a pair of coveralls and lived with her at the 
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Hulbert Street residence. Wingeier testified that she did not use bleach on colored 

clothing and that she was unaware of any firearm being inside her residence. Wingeier 

also testified that on December 4, 2020, she and Murphy had gone to bed at 

approximately two in the morning and she had woken up to the police yelling for Murphy 

to come out with his hands up. Wingeier admitted that she had been asleep between 

two in the morning and the time that the police had arrived, and thus had no idea what 

had gone on during that period of time.

{¶ 24} Based on the testimony and evidence presented at trial, the jury found 

Murphy guilty of all the felony murder counts, felonious assault counts, aggravated 

robbery counts, and the count of tampering with evidence. The jury also found Murphy 

guilty of all the attendant firearm specifications. Because Murphy stipulated to having a 

prior conviction for a felony offense of violence and a prior conviction for a felony drug 

offense, the trial court also found Murphy guilty of the two counts of having weapons while

under disability. 

{¶ 25} At sentencing, the trial court merged all of the felony murder, felonious 

assault, and aggravated robbery counts and their attendant firearm specifications. 

Following the merger, the State elected to have Murphy sentenced for the count of felony 

murder that alleged a predicate of offense of felonious assault with a deadly weapon. 

The trial court imposed 15 years to life in prison for that offense plus a consecutive threeyear prison term for the firearm specification. The trial court also merged the two counts 

of having weapons while under disability, and the State elected to have Murphy 

sentenced on the count alleging a prior felony offense of violence. Thereafter, the trial 
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court imposed a concurrent three-year prison term for having weapons while under 

disability and a consecutive three-year prison term for tampering with evidence. 

Accordingly, the trial court imposed a total, aggregate term of 21 years to life in prison for 

Murphy’s offenses. 

{¶ 26} Murphy appeals from his convictions, raising three assignments of error for 

this court’s review.

First Assignment of Error

{¶ 27} Under his first assignment of error, Murphy challenges the trial court’s 

decision overruling his motion to suppress Miser’s pretrial identification of him. Murphy 

claims that Miser’s pretrial identification should have been suppressed because the 

identification process utilized by the investigating officers was unduly suggestive and 

unreliable. 

Standard of Review

{¶ 28} “Appellate review of a motion to suppress presents a mixed question of law 

and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. 

When ruling on a motion to suppress, “the trial court assumes the role of trier of fact and 

is therefore in the best position to resolve factual questions and evaluate the credibility of 

witnesses.” Id., citing State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). 

“Consequently, an appellate court must accept the trial court’s findings of fact if they are 

supported by competent, credible evidence.” Id., citing State v. Fanning, 1 Ohio St.3d 
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19, 437 N.E.2d 583 (1982). “Accepting these facts as true, the appellate court must then 

independently determine, without deference to the conclusion of the trial court, whether 

the facts satisfy the applicable legal standard.” Id., citing State v. McNamara, 124 Ohio 

App.3d 706, 707 N.E.2d 539 (4th Dist.1997).

Pretrial Identification

{¶ 29} “ ‘When a witness has been confronted with a suspect before trial, due 

process requires a court to suppress her identification of the suspect if the confrontation 

was unnecessarily suggestive of the suspect’s guilt and the identification was unreliable 

under all the circumstances.’ ” (Emphasis sic.) State v. Beckham, 2d Dist. Montgomery 

No. 19544, 2003-Ohio-3837, ¶ 10, quoting State v. Murphy, 91 Ohio St.3d 516, 534, 747 

N.E.2d 765 (2001). Therefore, courts apply a two-step test when determining whether 

suppression of a challenged identification is warranted. State v. Kelly, 2d Dist. Clark No. 

2020-CA-8, 2021-Ohio-325, ¶ 12. First, courts must determine whether the defendant 

showed “that the identification procedure was unduly suggestive.” Beckham at ¶ 10. “If 

the defendant meets that burden, the court must then consider whether the identification, 

viewed under the totality of the circumstances, is reliable despite the suggestive 

procedure.” (Citation omitted.) Id.

{¶ 30} In this case, the State does not dispute that the first prong of the 

aforementioned test has been satisfied, i.e., that the identification procedure was unduly 

suggestive. This is because the investigating officers only presented Miser with a 

photograph of Murphy. “The United States Supreme Court has acknowledged that the 
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danger of an incorrect identification is increased where only one photograph is displayed 

to a witness.” State v. Padgett, 2d Dist. Greene No. 1999-CA-87, 2000 WL 873218, *2

(June 30, 2000), citing Simmons v. United States, 390 U.S. 377, 383, 88 S.Ct. 967, 19 

L.Ed.2d 1247 (1968). Therefore, “[c]ourts generally find the use of a single photograph 

for identification purposes impermissibly suggestive absent extraordinary circumstances.” 

(Citation omitted.) State v. Bates, 110 Ohio St.3d 1230, 2006-Ohio-3667, 850 N.E.2d 

1208, ¶ 8. See, e.g., Padgett at *3 (using a single photograph in the identification 

procedure was inherently suggestive and was unnecessary since there were no exigent 

circumstances and a photo array could easily have been prepared); State v. Henderson, 

2d Dist. Montgomery No. 28241, 2020-Ohio-6, ¶ 20 (an “identification procedure, which 

involves showing just one individual to an eyewitness, as opposed to a lineup of different 

individuals, is inherently suggestive”). 

{¶ 31} Despite the unduly suggestive identification procedure used in this case, 

Miser’s identification of Murphy may nevertheless survive constitutional challenge if there 

was evidence establishing that her identification was sufficiently reliable under the totality 

of the circumstances. Henderson at ¶ 20, citing State v. Martin, 127 Ohio App.3d 272, 

277, 712 N.E.2d 795 (2d Dist.1998). “So long as the identification possesses sufficient 

aspects of reliability, there is no violation of due process.” State v. Sherls, 2d Dist. 

Montgomery No. 18599, 2002 WL 254144, *3 (Feb. 22, 2002).

{¶ 32} “Five factors establish reliability: (1) the opportunity of the witness to view 

the defendant at the time of the crime, (2) the witness’s degree of attention, (3) the 

accuracy of any prior description of the defendant given by the witness, (4) the level of 
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certainty demonstrated by the witness as to the identification, and (5) the length of time 

between the crime and the identification.” Bates at ¶ 9, citing Neil v. Biggers, 409 U.S. 

188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). 

{¶ 33} In this case, following the suppression hearing, the trial court found that 

Miser had testified that Murphy entered her home during the early morning hours of 

December 4, 2020, wearing black coveralls and purple-rimmed eyeglasses. The trial 

court also found that Miser had testified to knowing Murphy as “Fox,” knowing the area

where Murphy lived, and knowing Murphy’s live-in girlfriend, Wingeier. In addition, the 

trial court found that Miser had testified that she had not seen Murphy for a year and a 

half before December 4, 2020, but that she had previously seen Murphy every day for a 

couple of years because Murphy had been her drug dealer. The trial court further found 

that Miser had testified to recognizing Murphy’s voice as the voice yelling at Bruce just 

before she jumped out of the bathroom window and to observing Murphy running from 

her house after she heard gunshots.

1

 The trial court also found that Miser had 

spontaneously identified Murphy as Bruce’s assailant when Miser saw Murphy’s picture 

in the police cruiser and that Miser’s identification of Murphy was made shortly after the 

police responded to the crime scene. In addition, the trial court found that Murphy had 

been wearing purple-rimmed glasses when he was apprehended on the morning of the 

shooting. 

1 During the suppression hearing, Miser testified that she had heard two gunshots, but 

during trial, Miser testified to hearing only one gunshot. At trial, Miser acknowledged that 

she had previously indicated that she had heard two gunshots, but explained that she 

was unsure, and knew that she had heard at least one gunshot. Trial Tr. Vol. I, p. 183; 

Suppression Hearing Tr., p. 22.
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{¶ 34} Although the trial court recognized that there were some inconsistencies 

between Miser’s suppression hearing testimony and what Miser had told police officers

at the scene, the trial court found that Miser’s testimony was credible and applied it to the 

identification-reliability analysis. The trial court found that Miser had admitted to having 

trouble remembering what she told each police officer because she had spoken to so 

many officers on the night of the shooting. The trial court also attributed Miser’s 

inconsistencies to potential fear of retaliation from Murphy and initial shock. In addition, 

the trial court determined that the inconsistencies in Miser’s testimony did not affect the

key facts in the identification-reliability analysis. 

{¶ 35} Upon review, we find that the trial court’s findings were supported by 

competent, credible evidence in the record. When applying those findings to the 

applicable legal standard, we find that the totality of the circumstances established that 

Miser’s identification of Murphy was reliable; Miser’s testimony established that she had 

known Murphy for a couple of years and had been able to provide reliable details about 

Murphy’s appearance, i.e., his purple-rimmed eyeglasses and black coveralls. Miser’s

testimony also indicated that she had had the opportunity to view Murphy near the time 

of the crime and that she had paid a high degree of attention to Murphy’s appearance. It 

was also significant that Miser’s description of Murphy was accurate, as the record 

established that Murphy had been wearing purple-rimmed eyeglasses when he was 

apprehended by the police. 

{¶ 36} Furthermore, the length of time between the shooting and Miser’s 

identification of Murphy was not long; Miser identified Murphy’s photograph in the police 
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cruiser shortly after the police responded to her 9-1-1 call. In addition, the video 

evidence from the police cruiser established that Miser had immediately identified Murphy 

when she saw his photograph and that she had exhibited certainty when identifying him. 

See State’s Suppression Hearing Exhibit 1 at 17:21. Also, Miser signed and dated 

Murphy’s photograph and noted that she was 100% certain that the photograph depicted 

the person she knew as “Fox.” See State’s Suppression Hearing Exhibit 2.

{¶ 37} When viewing the totality of these facts and circumstances, we conclude 

that, despite the suggestiveness inherent in using only Murphy’s photograph in the 

identification process, Miser’s identification of Murphy was reliable and thus admissible 

at trial. Therefore, the trial court did not err when it overruled Murphy’s motion to 

suppress Miser’s pretrial identification of him. 

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

Second and Third Assignments of Error

{¶ 39} Under his second assignment of error, Murphy contends that the trial court 

erred by overruling his Crim.R. 29(C) motion for acquittal on grounds that his convictions 

were not supported by sufficient evidence. Under his third assignment of error, Murphy 

contends that his convictions were against the manifest weight of the evidence. Upon 

review, we disagree with both of Murphy’s claims.

Standards of Review

{¶ 40} “A sufficiency of the evidence argument disputes whether the State has 
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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). “When reviewing a claim as to sufficiency of evidence, the relevant 

inquiry is whether any rational factfinder viewing the evidence in a light most favorable to 

the state could have found the essential elements of the crime proven beyond a 

reasonable doubt.” (Citations omitted.) State v. Dennis, 79 Ohio St.3d 421, 430, 683 

N.E.2d 1096 (1997). “The verdict will not be disturbed unless the appellate court finds 

that reasonable minds could not reach the conclusion reached by the trier-of-fact.” 

(Citations omitted.) Id.

{¶ 41} In contrast, “[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. When evaluating 

whether a conviction is against the manifest weight of the evidence, the appellate court 

must review the entire record, weigh the evidence and all reasonable inferences, consider 

witness credibility, 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.” Thompkins at 387, quoting State 

v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “The fact that the 

evidence is subject to different interpretations does not render the conviction against the 

manifest weight of the evidence.” State v. Adams, 2d Dist. Greene Nos. 2013-CA-61, 

2013-CA-62, 2014-Ohio-3432, ¶ 24, citing Wilson at ¶ 14.
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{¶ 42} Because the trier of fact sees and hears the witnesses at trial, we must defer 

to the factfinder’s decisions whether, and to what extent, to credit the testimony of 

particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 

476684, *4 (Aug. 22, 1997). Therefore, “[t]he credibility of the witnesses and the weight 

to be given to their testimony are matters for the trier of fac[t] to resolve.” State v. 

Hammad, 2d Dist. Montgomery No. 26057, 2014-Ohio-3638, ¶ 13, citing State v. DeHass, 

10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). “This court will not substitute its 

judgment for that of the trier of fac[t] on the issue of witness credibility unless it is patently 

apparent that the factfinder lost its way.” (Citation omitted.) State v. Bradley, 2d Dist. 

Champaign No. 1997-CA-3, 1997 WL 691510, *4 (Oct. 24, 1997).

{¶ 43} In this case, Murphy was convicted of one count of felony murder in violation 

of R.C. 2903.02(B), one count of tampering with evidence in violation of R.C. 

2921.12(A)(1), and one count of having weapons while under disability in violation of R.C. 

2923.13(A)(2). Murphy was also convicted of a three-year firearm specification that was 

attached to the count of felony murder. Each of the charges and the firearm specification 

are addressed separately below.

Felony Murder

{¶ 44} R.C. 2903.02(B), the statute governing the offense of felony murder, 

provides that: “No person shall cause the death of another as a proximate result of the 

offender’s committing or attempting to commit an offense of violence that is a felony of 

the first or second degree[.]” Pursuant to that provision, the “commission of another 
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felony offense is a necessary predicate to an R.C. 2903.02(B) offense, and the predicate 

felony must be a proximate cause of the death R.C. 2903.02(B) prohibits.” (Citation 

omitted.) State v. Cook, 2d Dist. Montgomery No. 23721, 2010-Ohio-6222, ¶ 49.

{¶ 45} In this case, the predicate felony offense at issue is felonious assault in 

violation of R.C. 2903.11(A)(2), which provides that: “No person shall knowingly * * * 

[c]ause or attempt to cause physical harm to another * * * by means of a deadly weapon 

or dangerous ordnance.” The term “deadly weapon” is defined as “any instrument, 

device, or thing capable of inflicting death, and designed or specially adapted for use as 

a weapon, or possessed, carried, or used as a weapon.” R.C. 2903.11; R.C. 2923.11(A). 

It is well established that a firearm is a “deadly weapon.” See State v. Wilson, 2d Dist. 

Clark No. 2021-CA-68, 2022-Ohio-3763, ¶ 68; State v. Reese, 2d Dist. Montgomery No. 

22907, 2009-Ohio-5046, ¶ 37; State v. Hazley, 2d Dist. Montgomery No. 10496, 1988 WL 

95901, *3, (Sept. 15, 1988).

{¶ 46} As part of its case-in-chief, the State presented testimony from Miser, who 

identified Murphy as the individual who shot Bruce. Murphy claims that there was 

insufficient evidence to convict him of felony murder because Miser’s identification of him 

was unreliable and inadmissible. However, under Murphy’s first assignment of error, we 

have already determined that Miser’s identification of Murphy was reliable and therefore 

admissible at trial.

{¶ 47} Miser’s trial testimony established that Murphy, Bruce, and Kenny entered 

Miser’s residence during the early morning hours of December 4, 2020, to use drugs and 

keep warm. Miser’s testimony also established that within ten minutes of their arrival, 
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Bruce ran into Miser’s bathroom where Miser had been getting ready, locked the 

bathroom door, and told Miser that Murphy had said that he was going to shoot and kill 

him if he did not give Murphy all of his money. In addition, Miser’s testimony established 

that Miser saw Murphy run at Bruce2just before Bruce slammed the bathroom door and

then heard Murphy kicking the bathroom door. Miser’s testimony further established 

that, after jumping out of her bathroom window and hiding by her neighbor’s garage, Miser 

heard a gunshot and then saw Murphy run out of her backdoor and in the direction of his

residence.

{¶ 48} In addition to Miser’s eyewitness testimony, the State presented evidence 

establishing that responding police officers discovered Bruce’s dead body in Miser’s 

bathroom after Miser called 9-1-1. The testimony of the coroner who examined Bruce’s 

body established that Bruce’s death was a homicide caused by a through-and-through 

gunshot wound. Although the bullet that struck Bruce could not be recovered, the 

evidence established that a shell casing was recovered from the area of Bruce’s body. 

The testimony of the State’s firearms expert established that the shell casing had been

fired from the Smith and Wesson M&P nine-millimeter handgun discovered in Murphy’s 

basement ceiling. The State also presented evidence establishing that the handgun was 

tucked into some insulation in the ceiling and that Murphy had insulation on his clothing 

and in his hair when he was apprehended by the police. 

{¶ 49} The State’s evidence further established that Miser had observed Murphy 

wearing black Carhartt coveralls at the time of the shooting, and that on the morning of 

2 We note that during the motion to suppress hearing, Miser did not testify to seeing 

Murphy run at Bruce; instead, Miser testified to hearing Murphy’s voice yelling at Bruce.
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the shooting, the police discovered black Carhartt coveralls covered in bleach in Murphy’s 

basement washing machine. The police also discovered a single 9-millimeter live round 

of ammunition in the washing machine, which the firearms expert testified was capable 

of being fired from the handgun in Murphy’s basement. The evidence also established 

that Murphy’s live-in girlfriend was sleeping at the time of the shooting and could not 

account for Miser’s whereabouts. The State further presented evidence establishing that 

Murphy barricaded himself in his residence for over two and a half hours before he 

complied with the demands of the police and SWAT team for him to exit, which suggested

that Murphy had something to hide and was guilty of wrongdoing.

{¶ 50} When viewed in a light most favorable to the State, we find that the 

aforementioned evidence would permit a reasonable jury to conclude that Murphy had 

been the individual who fired the gunshot that killed Bruce. Therefore, we find that there 

was sufficient evidence to convict Murphy of felony murder via felonious assault, as the 

evidence sufficiently established that Murphy had caused physical harm to Bruce by 

shooting him with a deadly weapon and that the shooting had been the proximate cause 

of Bruce’s death.

{¶ 51} After weighing all the evidence and reasonable inferences, we do not find 

that the jury clearly lost its way and created a manifest miscarriage of justice in finding 

Murphy guilty of felony murder. The weight of the evidence, particularly Miser’s 

eyewitness testimony and the evidence concerning the firearm, overwhelmingly 

supported the jury’s guilty verdict. Accordingly, Murphy’s conviction for felony murder

was not against the manifest weight of the evidence.
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Firearm Specification

{¶ 52} Murphy was also convicted of the three-year firearm specification that was 

attached to the felony murder count. To be convicted of this specification, the evidence 

had to establish that Murphy “had a firearm on or about [his] person or under [his] control 

while committing the offense and displayed the firearm, brandished the firearm, indicated 

that [he] possessed the firearm, or used it to facilitate the offense.” R.C. 2941.145(A); 

R.C. 2929.14(B)(1)(a)(ii). Because a reasonable jury could have concluded from the 

evidence that Murphy committed felony murder by shooting Bruce with a firearm, we find 

that Murphy’s conviction for the three-year firearm specification was supported by 

sufficient evidence. Because the weight of the evidence supported the jury’s finding that 

Murphy committed felony murder in such a manner, we also find that Murphy’s conviction 

for the firearm specification was not against the manifest weight of the evidence.

Tampering with Evidence

{¶ 53} Next, Murphy was convicted of tampering with evidence in violation of R.C. 

2921.12(A)(1), which provides that: “No person, knowing that an official proceeding or 

investigation is in progress, or is about to be or likely to be instituted, shall * * * [a]lter, 

destroy, conceal, or remove any record, document, or thing, with purpose to impair its 

value or availability as evidence in such proceeding or investigation[.]” Accordingly, 

“[t]here are three elements of this offense: (1) knowledge of an official proceeding or 

investigation in progress or likely to be instituted, (2) the alteration, destruction, 
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concealment, or removal of the potential evidence, (3) the purpose of impairing the 

potential evidence’s availability or value in such proceeding or investigation.” State v. 

Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175, ¶ 11.

{¶ 54} “[K]nowledge of a likely investigation may be inferred when the defendant 

commits a crime that is likely to be reported.” State v. Martin, 151 Ohio St.3d 470, 2017-

Ohio-7556, 90 N.E.3d 857, ¶ 118. Accord State v. Bonaparte, 2d Dist. Clark No. 2018-

CA-61, 2019-Ohio-2030, ¶ 40-41. For example, “[h]omicides are highly likely to be 

discovered and investigated.” Martin at ¶ 118. In Bonaparte, we held that a jury could 

have reasonably inferred that the defendant knew his offenses were likely to be 

investigated where the defendant shot the victim numerous times at close range and was 

aware that there was at least one witness to the shooting. Bonaparte at ¶ 41. 

{¶ 55} In this case, the State presented evidence establishing that Murphy shot 

Bruce and then ran from the scene all while knowing that Miser (and possibly Kenny) had 

witnessed their confrontation. In addition, the evidence established that, not long after 

the shooting, Murphy was confronted with multiple police officers and a SWAT team at 

his residence. From this evidence, a reasonable jury could infer that Murphy had had 

knowledge that an official investigation would likely be instituted or was already in 

progress. Therefore, the first element of tampering with evidence was sufficiently 

established by the evidence.

{¶ 56} The second and third elements, i.e., alteration, destruction, concealment, or 

removal of potential evidence for the purpose of impairing the potential evidence’s 

availability or value in an investigation, were also sufficiently established, because the 
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evidence established that Murphy had concealed the handgun used to shoot Bruce in 

some insulation in his basement ceiling. A reasonable jury could have concluded that 

Murphy was the one who concealed the handgun because his live-in girlfriend testified to 

being unaware of any firearm in the residence and because Murphy was observed with 

insulation on his clothing and hair when he was apprehended. Because the handgun

was positively identified as the weapon that fired the shell casing that fell from Bruce’s 

body, and because Murphy was confronted by police officers and a SWAT team at his 

residence just prior to the firearm’s being found, a reasonable jury could have inferred

that Murphy concealed the firearm in his basement ceiling in order to impair its availability 

in the ensuing investigation.

{¶ 57} The State’s evidence also established that Miser had observed Murphy 

wearing black Carhartt coveralls during the shooting incident and that police officers 

discovered black Carhartt coveralls covered in bleach in Murphy’s washing machine. 

The testimony from the State’s forensic DNA expert established that bleach completely 

destroys DNA. Because DNA is an investigative tool, and because Murphy was faced 

with police officers and a SWAT team at his residence on the morning of the shooting, a 

reasonable jury could have inferred that Murphy bleached his black coveralls as a means 

to destroy any possible DNA evidence that may have implicated him in Bruce’s shooting 

so as to impede the ensuing investigation.

{¶ 58} In addition, the evidence established that Murphy had barricaded himself in 

his residence for over two and a half hours before complying with the police and SWAT 

team’s demands for him to exit. From that evidence, a reasonable jury could have 
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concluded that Murphy was using that time to conceal and destroy evidence. 

{¶ 59} When viewed in a light most favorable to the State, we find that all of the 

aforementioned evidence permitted a reasonable jury to conclude that Murphy was guilty 

of tampering with evidence. Furthermore, after weighing all the evidence and 

reasonable inferences, we do not find that the jury clearly lost its way and created a 

manifest miscarriage of justice when it found Murphy guilty of tampering with evidence. 

Accordingly, Murphy’s conviction for tampering with evidence was supported by sufficient 

evidence and was not against the manifest weight of the evidence.

Having Weapons While Under Disability

{¶ 60} Lastly, Murphy was convicted of having weapons while under disability in 

violation of R.C. 2923.13(A)(2), which provides, in pertinent part, that unless relieved from 

disability, “no person shall knowingly acquire, have, carry, or use any firearm or 

dangerous ordnance, if * * * [t]he person * * * has been convicted of any felony offense of 

violence[.]” In this case, Murphy stipulated to having a prior felony conviction of violence 

in Hamilton County Common Pleas Court Case No. B 0900795. See Trial Tr. Vol. III, p. 

537-538. Based on this stipulation and the evidence regarding the handgun discovered 

in Murphy’s basement ceiling, we find that there was sufficient evidence to support

Murphy’s conviction for having weapons while under disability and that the conviction was 

not against the manifest weight of the evidence.

{¶ 61} Because Murphy’s convictions for felony murder with a firearm 

specification, tampering with evidence, and having weapons while under disability were 
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supported by sufficient evidence and were not against the manifest weight of the 

evidence, Murphy’s second and third assignments of error are overruled.

Conclusion

{¶ 62} Having overruled all three of Murphy’s assignments of error, the judgment 

of the trial court is affirmed.

. . . . . . . . . . . . .

EPLEY, J., concurs.

TUCKER, J., concurs:

{¶ 63} Though I concur in the majority opinion’s conclusions, I write separately to 

suggest that where, as here, the witness, based upon previous contact with the suspect, 

knows the suspect being identified, the identification procedure cannot, as a matter of 

common sense, be unnecessarily suggestive. And, in this circumstance, even if the 

identification procedure is assumed to be unnecessarily suggestive, the reliability of the 

identification cannot credibly be questioned because a person will not misidentify 

someone she knows. State v. Huff, 145 Ohio App.3d 555, 564-565, 763 N.E.2d 695 (1st 

Dist.2001); State v. Levingston, 1st Dist. Hamilton No. C-090235, 2011-Ohio-1665, ¶ 9.