State v. McMurray , 2021 Ohio 3562 ( 2021 )

[Cite as State v. McMurray, 2021-Ohio-3562.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
PREBLE COUNTY
STATE OF OHIO, : CASE NO. CA2020-08-013
Appellee, : OPINION
10/4/2021
:
- vs -
:
JEREMIAH J. McMURRAY, :
Appellant. :
CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
Case No. 2019-CR-013070
Martin P. Votel, Preble County Prosecuting Attorney, and Gractia S. Manning, Assistant
Prosecuting Attorney, for appellee.
The Hobbs Law Office, and H. Steven Hobbs, for appellant.
M. POWELL, J.
{¶ 1} Appellant, Jeremiah McMurray, appeals his conviction in the Preble County
Court of Common Pleas for felonious assault. He asserts that the evidence presented by
the state was insufficient to support his conviction and that his conviction was against the
manifest weight of the evidence.
{¶ 2} In the fall of 2018, appellant was employed as an actor in a part-time, seasonal
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capacity at the Lewisburg Haunted Cave. The Lewisburg Haunted Cave operates as a
"haunted" attraction within an underground limestone cave and is open certain evenings
during September and October. Patrons pay to tour the cave, which is furnished to produce
fright, features effects such as strobe lighting and artificial fog, and is staffed by actors
instructed to frighten patrons. Patrons are strictly prohibited from touching actors, and
actors are instructed to make an "X" by crossing their arms toward the security cameras
installed in the cave to signal if there is a problem in the cave.
{¶ 3} Shortly before midnight on October 27, 2018, Matthew Reaver and Teirra
Brady, along with Zackary Thompson and Tabitha Thompson (née Irwin) entered the
haunted cave. The two couples were friends and had spent most of the evening together
consuming alcoholic beverages and celebrating Brady's birthday. During their tour of the
cave, the group entered a portion known as the "Light Maze," a disorienting labyrinth staffed
that evening by Justin Ginter, William Collins, and appellant. While in the maze, one or
more members of the group made some form of contact with the cave employees.
Appellant signaled the security cameras multiple times, while Ginter angrily confronted the
group and told them not to touch the employees.
{¶ 4} Shortly thereafter, appellant, Ginter, and Collins approached the group and
demanded they leave the maze. During this confrontation, Ginter and Reaver were arguing
when Ginter put his forearm up and made contact with Reaver's face. Reaver shoved Ginter
backwards, then Ginter and Reaver began to grapple with one another before appellant
lunged at Reaver, and all three fell to the ground. Brady joined the fray and put appellant
in a headlock. Appellant himself had Reaver in a headlock. At this point, the trial testimony
diverged about what transpired. Reaver and Brady testified that after they and appellant
separated, appellant got up and tackled Reaver from behind. Conversely, appellant
maintained that his initial tackle of Reaver was the only contact between the two. Appellant
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asserts that he grabbed Reaver's shoulders and neck as Ginter twisted Reaver's arm, the
combination of which led to Reaver's injuries. None of the other witnesses saw what caused
Reaver's injuries, and the cave's surveillance video recording captured only the beginning
of the altercation.
{¶ 5} Following Reaver's injuries, appellant approached Zackary Thompson and
yelled, "I'm gonna fuck you up like I fucked your friend up." Appellant was visibly upset
about the situation, attempted to reapproach Reaver and Brady, and had to be restrained
by another employee. Eventually, Reaver was assisted in leaving the cave, and was
transported to the Kettering Health Emergency Center in Eaton and ultimately to Grandview
Medical Center in Dayton. Reaver suffered a fractured fibula, displaced tibia, skin
penetration by the bone, and significant bleeding. He underwent surgery that morning and
later required a second surgery.
{¶ 6} Appellant was indicted in August 2020 for one count of felonious assault and
one count of aggravated assault. The matter proceeded to a bench trial. Reaver, Brady,
both Zachary and Tabitha Thompson, Ginter, Collins, Lewisburg Haunted Cave manager
Jarred Huist, and Preble County Sheriff's Deputy Stephen Bratton testified for the state.
Lewisburg Haunted Cave owner Mark Schaefer testified for appellant, and appellant
testified on his own behalf. The court found appellant guilty of felonious assault in violation
of R.C. 2903.11(A)(1). Appellant was sentenced to three years of community control.
{¶ 7} Appellant now appeals his conviction for assault, raising one assignment of
error:
{¶ 8} THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO
CONVICT THE DEFENDANT AND HIS CONVICTION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶ 9} Appellant argues that his conviction for felonious assault is not supported by
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sufficient evidence and is against the manifest weight of the evidence because the state
failed to prove that he acted "knowingly" or that his actions "caused" the victim's serious
physical harm.
{¶ 10} Whether the evidence presented at trial is legally sufficient to sustain a verdict
is a question of law. State v. Billingsley, 12th Dist. Butler Nos. CA2019-05-075 and
CA2019-05-076, 2020-Ohio-2673, ¶ 14, citing State v. Thompkins, 78 Ohio St.3d 380, 386,
1997-Ohio-52. When reviewing the sufficiency of the evidence underlying a criminal
conviction, an appellate court examines the evidence in order to determine whether such
evidence, if believed, would convince the average mind of the defendant's guilt beyond a
reasonable doubt. State v. Paul, 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-3205,
¶ 9. Therefore, "[t]he 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." State v. Jenks, 61 Ohio St.3d
259 (1991), paragraph two of the syllabus.
{¶ 11} Conversely, a manifest weight of the evidence challenge examines the
"inclination of the greater amount of credible evidence, offered at a trial, to support one side
of the issue rather than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177,
2012-Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest weight
of the evidence, the reviewing court must look at the entire record, weigh the evidence and
all reasonable inferences, consider the credibility of the witnesses, and determine whether
in resolving the 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. State v. Graham, 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66.
"While appellate review includes the responsibility to consider the credibility of witnesses
and weight given to the evidence, 'these issues are primarily matters for the trier of fact to
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decide.'" State v. Barnes, 12th Dist. Brown No. CA2010-06-009, 2011-Ohio-5226, ¶ 81,
quoting State v. Walker, 12th Dist. Butler No. CA2006-04-085, 2007-Ohio-911, ¶ 26. An
appellate court, therefore, will overturn a conviction due to the manifest weight of the
evidence only in extraordinary circumstances when the evidence presented at trial weighs
heavily in favor of acquittal. Barnes at ¶ 81, citing Thompkins at 387.
{¶ 12} "The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different." Thompkins, 78 Ohio St.3d at 386.
Nevertheless, "[a] determination that a conviction is supported by the manifest weight of the
evidence will also be dispositive of the issue of sufficiency." State v. Billingsley, 12th Dist.
Butler No. CA2019-05-075 and CA2019-05-076, 2020-Ohio-2673, ¶ 15.
{¶ 13} R.C. 2903.11(A)(1) states in part, "No person shall knowingly * * * [c]ause
serious physical harm to another." Felonious assault thus requires proof of a knowing
mental state and a causation element of serious physical harm. State v. Harris, 12th Dist.
Butler No. CA2018-02-037, 2018-Ohio-5292, ¶ 10. "A person acts knowingly, regardless
of purpose, when the person is aware that the person's conduct will probably cause a certain
result or will probably be of a certain nature." R.C. 2901.22(B).
{¶ 14} It is clear that Reaver suffered "serious physical harm." Where injuries to the
victim are serious enough to cause him to seek medical treatment, the finder of fact may
reasonably infer that the force exerted on the victim caused serious physical harm as
defined by R.C. 2901.01(A)(5). State v. Tolle, 12th Dist. Clermont No. CA2014–06–042,
2015-Ohio-1414, ¶ 12. Additionally, where the assault causes a bone fracture, the element
of serious physical harm is met. Id. Here, as the trial court noted, Reaver had a bone
fracture, among other injuries, and required two surgeries and missed four months of work
to recuperate.
{¶ 15} Appellant contends that his actions were not "knowing," but reckless. Further,
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he argues that the evidence presented was inadequate to show that his actions caused
Reaver's injuries.
{¶ 16} "It is a fundamental principle that a person is presumed to intend the natural,
reasonable and probable consequences of his voluntary acts." State v. Magee, 12th Dist.
Clermont No. CA2019-11-083, 2020-Ohio-4351, ¶ 47, quoting State v. Conway, 108 Ohio
St.3d 214, 2006-Ohio-791, ¶ 143. An accused need not foresee the precise consequences
of his conduct. Id., citing State v. Taylor, 12th Dist. Fayette No. CA2018-11-021, 2019-
Ohio-3437, ¶ 46. "To be actionable it is only necessary that the result is within the natural
and logical scope of risk created by the conduct." Id.{¶ 17} Appellant knowingly tackled Reaver. The surveillance video shows and the
testimony at trial corroborates that there was an aggressive verbal argument, as appellant,
Ginter, and Collins confronted the two couples. When Ginter made contact with Reaver,
the argument turned into a physical struggle, into which appellant readily inserted himself.
Appellant pushed his way past Brady and leapt at Reaver. Based on these circumstances,
it is more than reasonable to believe that appellant was aware that his conduct would
probably cause harm to Reaver. See R.C. 2901.22(B). Indeed, by all accounts that was
his intention.
{¶ 18} Appellant's actions caused Reaver's injuries. Though there is a factual
dispute as to how many times he did so, it is undisputed that appellant tackled Reaver at
least once and was a participant in an altercation in which Reaver sustained injury. The
"natural, reasonable, and probable" consequence of tackling someone is to injure him.
Magee at ¶ 47. Tackling someone in a dark cave with an uneven floor, disorienting strobe
lights, thick artificial fog, and a maze of wire fences presents an even greater risk of serious
injury to the person being tackled than ordinary conditions. A broken leg, though by no
means the only foreseeable consequence, is well within the scope of risk created by tackling
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someone under these circumstances. Id.{¶ 19} After reviewing the record, we find that appellant's conviction for felonious
assault is supported by sufficient evidence and is not against the manifest weight of the
evidence. The state presented testimony and evidence from which the trial court judge,
acting as the trier of fact, could have found all the essential elements of the offense proven
beyond a reasonable doubt. See State v. Byrd, 12th Dist. Warren No. CA2019-07-073,
2020-Ohio-3073, ¶ 21. Additionally, the evidence does not weigh heavily in favor of
acquittal.
{¶ 20} Appellant's assignment of error is overruled.
{¶ 21} Judgment affirmed.
PIPER, P.J., and BYRNE, JJ., concur.
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