[Cite as State v. McMurray , 2021-Ohio-3562.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE D ISTRICT OF OHIO

PREBLE COUNTY

STATE OF OHIO, Appellee,

- vs -

JEREMIAH J. McMURRAY, Appellant. :

:

:

:

:

: CASE NO. CA2020-08-013

O P I N I O N

10/4/2021

CRIMINAL APPEAL FROM PREBLE CO UNTY COURT OF COMMON PLEAS Case No. 2019-CR-013070

Martin P. Votel, Preble County Prosecuting Attorney, and Gracti a 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 Pre ble County

Court of Common Pleas for felonious assault. He asserts that t he evidence presented by the state was insufficient to support his conviction and that h is conviction was against the manifest weight of the evidence. {¶ 2} In the fall of 2018, appellant was employed as an actor in a pa rt-time, seasonalPreble CA2020-08-013

- 2 - capacity at the Lewisburg Haunted Cave. The Lewisburg Haunted Cave operates as a "haunted" attraction within an underground limestone cave and i s open certain evenings during September and October. Patrons pay to tour the cave, wh ich 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 prohibite d from touching actors, and actors are instructed to make an "X" by crossing their arms tow ard the security cameras installed in the cave to signal if there is a problem in the ca ve. {¶ 3} Shortly before midnight on October 27, 2018, Matthew Reaver and Teirra Brady, along with Zackary Thompson and Tabitha Thompson (née Ir win) 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 ca ve employees. Appellant signaled the security cameras multiple times, while G inter angrily confronted the group and told them not to touch the employees. {¶ 4} Shortly thereafter, appellan t, Ginter, and Collins approached t he group and demanded they leave the maze. During this confrontation, Ginte r and Reaver were arguing when Ginter put his forearm up and made contact with Reaver's f ace. Reaver shoved Ginter backwards, then Ginter and Reaver began to grapple with one ano ther before appellant lunged at Reaver, and all three fell to the ground. Brady join ed 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 tha t after they and appellant separated, appellant got up and tackled Reaver from behind. Co nversely, appellant maintained that his initial tackle of Reaver was the only conta ct between the two. AppellantPreble CA2020-08-013

- 3 - asserts that he grabbed Reaver's shoulders and neck as Ginter t wisted Reaver's arm, the combination of which led to Reaver's injuries. None of the oth er 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 Thomp son 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 leavin g the cave, and was transported to the Kettering Health Emergency Center in Eaton a nd ultimately to Grandview Medical Center in Dayton. Reaver suffered a fractured fibula, displaced tibia, skin penetration by the bone, and significant bleeding. He underwen t surgery that morning and later required a second surgery. {¶ 6} Appellant was indicted in August 2020 for one count of feloniou s assault and one count of aggravated assault. The matter proceeded to a ben ch trial. Reaver, Brady, both Zachary and Tabitha Thompson, Ginter, Collins, Lewisburg H aunted Cave manager Jarred Huist, and Preble County Sheriff's Deputy Stephen Bratto n testified for the state. Lewisburg Haunted Cave owner Mark Schaefer testified for appell ant, 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 a ssignment of

error: {¶ 8} THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO

CONVICT THE DEFENDANT AND HIS CONVICTION WAS AGAINST THE MANIFE ST

WEIGHT OF THE EVIDENCE. {¶ 9} Appellant argues that his conviction for felonious assault is n ot supported byPreble CA2020-08-013

- 4 - sufficient evidence and is against the manifest weight of the e vidence 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 t o 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 u nderlying a criminal conviction, an appellate court examines the evidence in order t o determine whether such evidence, if believed, would convince the average mind of the d efendant'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 view ing 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 examine s the "inclination of the greater amount of credible evidence, offere d 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 aga inst the manifest weight of the evidence, the reviewing court must look at the entire re cord, weigh the evidence and all reasonable inferences, consider the credibility of the witn esses, and determine whether in resolving the conflicts in the evidence, the trier of fact c learly 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 m atters for the trier of fact toPreble CA2020-08-013

- 5 - 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 t he 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 o f 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, ¶ 1 5. {¶ 13} R.C. 2903.11(A)(1) states in part, "No person shall knowingly * * * [c]ause serious physical harm to another." Felonious assault thus requ ires 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." Wher e injuries to the victim are serious enough to cause him to seek medical treatmen t, the finder of fact may reasonably infer that the force exerted on the victim caused se rious 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 rec kless. Further,Preble CA2020-08-013

- 6 - he argues that the evidence presented was inadequate to show th at his actions caused Reaver's injuries. {¶ 16} "It is a fundamental principle that a person is presumed to int end 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 t he 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 t he result is within the natural and logical scope of risk created by the conduct." Id. {¶ 17} Appellant knowingly tackled Reaver. The surveillance video sho ws and the testimony at trial corroborates that there was an aggressive ve rbal argument, as appellant, Ginter, and Collins confronted the two couples. When Ginter ma de contact with Reaver, the argument turned into a physical struggle, into which appell ant 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 a ppellant tackled Reaver at least once and was a participant in an altercation in which Rea ver sustained injury. The "natural, reasonable, and probable" consequence of tackling som eone 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 present s 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 scop e of risk created by tacklingPreble CA2020-08-013

- 7 - 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 weig h heavily in favor of acquittal. {¶ 20} Appellant's assignment of error is overruled. {¶ 21} Judgment affirmed.

PIPER, P.J., and BYRNE, JJ., concur.