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Murray v. State

Defense counsel was not deficient for failing to raise a futile objection to the prosecutor's remarks in opening that the aggravated sexual battery victims were seeking justice, safety and protection.

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Following a jury trial, Timothy Lee Murray appeals his conviction on two counts of aggravated sexual battery,1 arguing that the trial court erred in denying his motion for new trial in which he asserted a claim of ineffective assistance of counsel. Because evidence supported the trial court’s finding that the ineffective assistance claim lacked merit, we affirm. Construed in favor of the verdict, Short v. State ,2 the evidence shows that while staying at a friend’s house, Murray entered a bedroom where two pre-teen girls were sleeping and put his hand or fingers into each of the girl’s vaginas. He threatened both girls with violence if they told others of this incident. Some weeks later, the girls finally told others of the incident, resulting in medical examinations and interviews with police investigators.

Indicted for rape and two counts of aggravated sexual battery,3 Murray denied all charges. The jury acquitted him of the rape charge but found him guilty on the two counts of aggravated sexual battery. He moved for a new trial, asserting ineffective assistance of counsel. Following an evidentiary hearing in which Murray’s trial counsel testified, the court denied the motion. Murray appeals.

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