[Cite as State v. McRae, 2020-Ohio-773.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-180669 TRIAL NO. B-1701630 Plaintiff-Appellee, :
vs. : O P I N I O N.
DAMION MCRAE, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 4, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Timothy J. McKenna, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} In the aftermath of a domestic violence altercation, the defendant-
appellant Damion McRae shot at the two responding police officers who arrived to
investigate the incident. Mr. McRae managed to get one shot off before being
disabled, and this shot struck one of the officers, seriously injuring him. In the wake
of convictions for attempted murder and other charges, Mr. McRae presents various
challenges to his convictions and sentences on appeal. For the reasons we discuss
below, we ultimately affirm the trial court’s judgment.
I.
{¶2} Shortly after the clock struck midnight on March 12, 2017, Cincinnati
police officers Kenneth Grubbs and William Keuper responded to a call concerning
an incident at a nearby apartment complex. One of the complex’s residents, Ebony
Berry, reported a domestic violence altercation perpetrated by her boyfriend, Mr.
McRae. Upon arriving at the complex, the officers parked their vehicle and then split
up, with Officer Grubbs proceeding directly through the complex’s central courtyard,
while Officer Keuper ventured around the complex before entering the courtyard
from the side.
{¶3} As they converged in the courtyard, Officer Grubbs noticed an
individual matching the suspect’s description on the far side of the courtyard; and
indeed this proved to be Mr. McRae. Approaching Mr. McRae, Officer Grubbs
experienced a growing sense of unease, noticing that one of Mr. McRae’s hands was
hidden in his jacket pocket with the other hand angled behind his back, obscuring it
from view. As this scene unfolded, Officer Keuper had fallen in a few steps behind
Officer Grubbs. Officer Grubbs, glimpsing a gun’s magazine behind Mr. McRae,
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ordered him to show his hands. Instead of complying, however, Mr. McRae
verbalized, “I don’t have nothing on me,” but then yanked out a 9 mm Kel-Tec rifle
from behind his back. Raising the gun to hip level, Mr. McRae managed to fire off a
single shot before the gun (miraculously) jammed.
{¶4} The bullet struck Officer Grubbs in the groin, causing him to backpedal
away from Mr. McRae as he discharged his own weapon, eventually falling to the
ground. Officer Keuper likewise fired at Mr. McRae, who can be seen in body-worn-
camera footage fumbling on the ground, ignoring the officers’ commands to put his
hands up. Eventually, Mr. McRae placed his hands in the air and back-up arrived at
the scene. Both Officer Grubbs and Mr. McRae were whisked away to the hospital to
receive treatment for their respective gunshot wounds.
{¶5} In the wake of this incident, Mr. McRae was indicted on nine counts,
including two counts of attempted murder, three counts of felonious assault, two
counts of having a weapon while under a disability, one count of carrying a concealed
weapon, and an assault charge for the initial domestic violence incident with Ms.
Berry. Mr. McRae would later proceed to a bench trial, with the court finding him
guilty of all charges. At sentencing, the court merged several of the counts,
ultimately sentencing him for the two attempted murders, the two counts for having
a weapon while under a disability, the concealed weapon charge, and the assault
charge. Mr. McRae received an aggregate sentence of 43-and-a-half years in prison.
{¶6} Mr. McRae now appeals and raises five assignments of error. His first
two assignments of error challenge the weight and sufficiency of the evidence
underlying his attempted murder convictions. His other three assignments of error
allege ineffective assistance of counsel, failure of the trial court to properly merge
3 OHIO FIRST DISTRICT COURT OF APPEALS
allied offenses, and cruel and unusual punishment for the trial court’s imposition of
consecutive sentences.
II.
A.
{¶7} In two interrelated assignments of error, Mr. McRae challenges both
the sufficiency and weight of the evidence underlying his convictions for attempted
murder. While Mr. McRae also challenges the weight and sufficiency of the evidence
with respect to his three felonious assault charges, he was never sentenced on those
as they merged with the attempted murder counts at sentencing. Thus, there are no
judgments of conviction on those charges for purposes of appellate review. See State
v. Hendrix, 1st Dist. Hamilton Nos. C-150194 and C-150200, 2016-Ohio-2697, ¶ 42
(“[Defendant] was never sentenced on the felonious-assault charges, because they
were merged with the attempted-murder charges, so [the defendant] cannot appeal
the jury’s findings with respect to the felonious-assault charges.”). Nor do we see
where Mr. McRae challenges the weight and sufficiency of his other remaining
convictions or the peace-officer specifications. See State v. Sanders, 1st Dist.
Hamilton Nos. C-140579 and C-140580, 2015-Ohio-5232, ¶ 41 (“Errors not argued in
a brief will be regarded as having been abandoned.”). We accordingly address Mr.
McRae’s weight and sufficiency challenges as limited to the two convictions of
attempted murder.
{¶8} Examining the legal sufficiency of the evidence underlying Mr.
McRae’s convictions requires us to “examine the evidence admitted at trial in the
light most favorable to the prosecution and determine whether the evidence could
have convinced any rational trier of fact that the essential elements of the crime were
proven beyond a reasonable doubt.” Sanders at ¶ 39. By contrast, a weight of the
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evidence challenge requires consideration of the entire record to determine whether,
in resolving conflicts in the evidence, the trier of fact clearly lost its way, resulting in
a manifest miscarriage of justice warranting reversal. Id. at ¶ 34.
{¶9} The trial court convicted Mr. McRae on two counts of attempted
murder, one relating to each officer. Attempt under R.C. 2923.02(A) proscribes
purposely or knowingly engaging in an act, which if successful, would constitute or
result in the offense. Relatedly, the murder statute prohibits the purposeful killing of
another. See R.C. 2903.02(A). Therefore, in order to sustain Mr. McRae’s
convictions, the state needed to prove that Mr. McRae acted with a purpose to kill the
officers that night in the courtyard. See State v. Dean, 146 Ohio St.3d 106, 2015-
Ohio-4347, 54 N.E.3d 80, ¶ 147 (“Attempted murder, like murder, requires a purpose
to kill.”).
{¶10} Mr. McRae essentially vacillates between two contradictory positions
in an effort to defeat the requisite mens rea of “purposefully” with respect to Officer
Grubbs, suggesting on the one hand that he accidentally discharged the firearm,
while on the other hand insisting that the location of Officer Grubbs’s wound
confirms the lack of an intent to kill. Mr. McRae also takes issue with his attempted
murder conviction as to Officer Keuper, professing a lack of awareness as to the
officer’s presence and emphasizing the fact that he was not actually struck by the
bullet.
{¶11} We have recognized that a person acts purposefully when he
specifically intends to cause a certain result. See State v. Phillips, 1st Dist. Hamilton
Nos. C-150376 and C-150378, 2016-Ohio-4672, ¶ 16; R.C. 2901.22(A). Furthermore,
a defendant’s intent may be inferred from all the surrounding facts and
circumstances of the crime. See State v. Were, 1st Dist. Hamilton No. C-030485,
5 OHIO FIRST DISTRICT COURT OF APPEALS
2005-Ohio-376, ¶ 180, quoting State v. Herring, 94 Ohio St.3d 246, 266, 762 N.E.2d
940 (2002) (“Intent may be inferred from the circumstances surrounding the
crime.”). Particularly relevant here, “in an attempted-murder prosecution, a
defendant’s specific intent to kill another can be inferred from the defendant’s
shooting in the victim’s direction” and is strongly corroborative of criminal purpose.
State v. MacDonald, 1st Dist. Hamilton No. C-180310, 2019-Ohio-3595, ¶ 17-18;
Hendrix, 1st Dist. Hamilton Nos. C-150194 and C-150200, 2016-Ohio-2697, at ¶ 44
(same). This flows from the fact that a gun is considered a “deadly weapon,” and
therefore its discharge in another’s direction supports an inference that the shooter
harbored the specific intent to kill. See State v. Widner, 69 Ohio St.2d 267, 270, 431
N.E.2d 1025 (1982) (noting that because a gun is an “inherently dangerous
instrumentality” and its use is likely to produce death, a jury could conclude that the
defendant formed specific intent to kill); State v. Wilson, 8th Dist. Cuyahoga No.
96098, 2011-Ohio-5653, ¶ 6 (same).
{¶12} Here, the state presented evidence that Mr. McRae discharged a gun in
the officers’ direction while both officers were in close proximity to him and within
his line of fire. The bullet actually struck Officer Grubbs, and Officer Keuper testified
that he initially believed he was shot. Moreover, the bullet traveled through Officer
Grubbs, and thus it carried the potential to strike Officer Keuper, who was positioned
immediately behind him. Indeed, footage from the officers’ body-worn cameras
confirms this positioning, with Officer Grubbs standing directly in front of Mr.
McRae and Officer Keuper only steps behind him. This evidence strongly
corroborates Mr. McRae’s intent to kill and constitutes sufficient evidence for the
trier of fact to conclude that he acted with the requisite purpose to kill. See Hendrix
at ¶ 44 (evidence of attempted murder existed given proximity of victims to shots
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fired at them); State v. Bell, 8th Dist. Cuyahoga No. 87769, 2006-Ohio-6592, ¶ 65
(sufficient evidence supported attempted murder conviction when testimony
demonstrated that victims were in defendant’s line of fire though not actually
struck).
{¶13} For the same reasons, we reject Mr. McRae’s claim that his convictions
cannot be sustained because the bullet struck Officer Grubbs below the waist and
Officer Keuper remained uninjured. In essence, he insists that he shot Officer
Grubbs in a part of the body that was highly unlikely to be fatal. Leaving aside this
commentary on Mr. McRae’s marksmanship, to state this proposition is to refute it
as the statute does not require a near-fatal injury to qualify. See State v. Byrd, 1st
Dist. Hamilton No. C-050490, 2007-Ohio-3787, ¶ 39 (noting that attempt statute
does not require that the victim sustain an injury from the attempted act of murder);
State v. Locklear, 10th Dist. Franklin No. 06AP-259, 2006-Ohio-5949, ¶ 17 (same);
R.C. 2923.02(A).
{¶14} As to the weight of the evidence, Mr. McRae relies heavily on his
accident and “suicide by cop” theories to support this challenge. But the credibility
of these theories was an issue for the trier of fact to determine in light of the evidence
before it. See State v. Salaam, 2015-Ohio-4552, 47 N.E.3d 495, ¶ 14 (1st Dist.)
(noting that the trial court is in the best position to make credibility determinations);
Hendrix, 1st Dist. Hamilton Nos. C-150194 and C-150200, 2016-Ohio-2697, at ¶ 46
(same). While the state’s witness, firearm examiner John Heile, conceded that an
accidental discharge while raising the rifle might be possible, the trier of fact could
find such a theory implausible based on the other testimony and evidence presented
surrounding the circumstances of the crime. See State v. Baron, 1st Dist. Hamilton
No. C-100474, 2011-Ohio-3204, ¶ 12 (trier of fact is free to reject defendant’s theory
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by finding state’s witnesses more credible). And the credibility of Mr. McRae’s
explanation of the events suffered in light of other conflicting evidence in the record.
{¶15} Officer Grubbs’s testimony indicated that Mr. McRae approached him
in such a way as to conceal the rifle behind his back, that he repeatedly ignored the
officer, and then affirmatively misrepresented his possession of two firearms to the
officer in the moments before the shooting. Officer Grubbs’s body-worn camera
corroborates this, as Mr. McRae can be seen pulling the rifle out from behind his
back and firing on the officer. Officer Keuper’s body-worn camera captures the
exchange between Mr. McRae and Officer Grubbs and the moment when Mr. McRae
states that “I don’t have nothing on me.” As to Mr. McRae’s contention that he
simply never saw Officer Keuper, the officer’s body-worn camera and other
testimony established that the two were standing in close proximity in the complex’s
well-lit courtyard.
{¶16} Mr. McRae’s girlfriend, Ms. Berry, whose 911 call precipitated these
events, also told investigating officers that when she informed Mr. McRae that she
planned to call the police, he responded “call whoever you wanna call, I’ll shoot
whoever, I wanna shoot, I don’t care[.]” And when interviewed by police after the
shooting, Mr. McRae at first claimed he remembered nothing about that evening, but
then asked the officers to return the following day only to inform them that he
remembered he wanted the officers to kill him, but he did not intend to kill them.
Based on the foregoing, ample credible evidence existed from which the trier of fact
could have rejected Mr. McRae’s explanation of events, disregarding his claim that
the gun went off accidently and that he only wanted to die.
{¶17} Simply because the trier of fact, here the judge, declined to view the
evidence as Mr. McRae wished did not render the judgment against the manifest
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weight of the evidence. See State v. Carmen, 1st Dist. Hamilton No. C-120692,
2013-Ohio-3325, ¶ 14-17 (court’s rejection of defendant’s affirmative defense was not
against the manifest weight of the evidence). Ultimately, based on the record before
us, we are unpersuaded that this is one of the rare instances in which the trier of fact
lost its way, resulting in a manifest miscarriage of justice. Mr. McRae’s convictions
for attempted murder were supported by both the weight and sufficiency of the
evidence.
B.
{¶18} In his third assignment of error, Mr. McRae posits that his trial
counsel was constitutionally ineffective, principally because defense counsel failed to
present expert testimony regarding his theory of accidental discharge of the rifle or
expert testimony regarding his state of mind at the time of the shooting. To succeed
on an ineffective assistance of counsel theory, Mr. McRae must demonstrate that (1)
trial counsel’s performance fell below an objective standard of reasonableness, and
(2) that the deficient performance prejudiced him. See Strickland v. Washington,
466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio
St.3d 136, 141-142, 538 N.E.2d 373 (1989).
{¶19} Particularly on direct review, we are generally reluctant to second-
guess counsel’s tactical decisions that could form part of a sound trial strategy.
Strickland at 689. Because the decision not to bring expert testimony may be
tactical, the decision of trial counsel to instead to rely on cross-examination of the
state’s expert does not equate to ineffective assistance of counsel on the record before
us. See State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶
244, citing State v. Nicholas, 66 Ohio St.3d 431, 436, 613 N.E.2d 225 (1993) (“[W]e
have recognized that ineffective assistance does not occur when counsel decides to
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rely on cross-examination of the state’s expert rather than calling a separate defense
expert.”). And here, trial counsel elected such a path, cross-examining Mr. Heile
regarding accidental discharge of the Kel-Tec rifle at trial, thus arguably falling
within the broad spectrum of reasonable assistance. Id. Moreover, Mr. McRae
cannot demonstrate any prejudice from this decision. On cross-examination, Mr.
Heile conceded that accidental discharge of the rifle was possible by raising the gun
with one’s finger on the trigger, ultimately lending credence to Mr. McRae’s theory
and undermining any claim of prejudice. Thompson at ¶ 245 (no prejudice where
cross-examination of the state’s expert did not contradict the defendant’s theory).
{¶20} As to trial counsel’s alleged failure to call an “expert on the defendant’s
mental health state,” Mr. McRae suggests that the trial court needed to hear from an
expert about his mental health and thought patterns that night, but fails to indicate
what the expert would have testified to or how that testimony would have assisted
him. See State v. Stevens, 2016-Ohio-446, 58 N.E.3d 584, ¶ 49-50 (3d Dist.) (no
ineffective assistance for not calling defense expert when no indication of how that
evidence would have affected the outcome of trial); State v. Gann, 154 Ohio App.3d
170, 2003-Ohio-4000, 796 N.E.2d 942, ¶ 58 (12th Dist.) (No ineffective assistance
where “[t]he record not only fails to show what such an expert’s testimony would
have been but also that any such expert could have been called who would have been
willing to testify favorably on [the defendant’s] behalf.”) (Emphasis sic.) Without any
further precision on the contours of any such testimony, “resolving this issue in [Mr.
McRae’s] favor would be purely speculative.” See State v. Madrigal, 87 Ohio St.3d
378, 390, 721 N.E.2d 52 (2000). Mr. McRae accordingly fails to demonstrate a
reasonable probability that “but for” this purported error, the outcome of his trial
would have differed. Strickland at 694.
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C.
{¶21} Under his fourth assignment of error, Mr. McRae insists that the trial
court erred by failing to merge the two attempted murder convictions pursuant to
R.C. 2941.25 as allied offenses of similar import. R.C. 2941.25(A) explains “[w]here
the same conduct by defendant can be construed to constitute two or more allied
offenses of similar import, the indictment or information may contain counts for all
such offenses, but the defendant may be convicted of only one.” Conversely, R.C.
2941.25(B) allows a defendant to be convicted of all counts in an indictment where
the defendant’s conduct constitutes offenses of dissimilar import, or offenses of the
same or similar kind committed separately or with separate animus. Mr. McRae
maintains the record fails to demonstrate that the offenses here—the two attempted
murders—were committed separately or with a separate animus, thus warranting
merger. We apply de novo review to the trial court’s determinations regarding
merger under R.C. 2941.25. See State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-
5699, 983 N.E.2d 1245, ¶ 1, 28.
{¶22} The application of merger prevents a defendant from being convicted
and punished more than once for the same offense, but offenses cannot merge
where: “(1) the offenses are dissimilar in import or significance—in other words, each
offense caused separate, identifiable harm, (2) the offenses were committed
separately, or (3) the offenses were committed with separate animus or motivation.”
State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 25. And “[w]hen
a defendant’s conduct victimizes more than one person, the harm for each person is
separate and distinct, and therefore, the defendant can be convicted of multiple
counts.” Id. at ¶ 26. In other words, when the conduct involves multiple victims,
merger of the offenses would be improper. See State v. Smith, 1st Dist. Hamilton No.
11 OHIO FIRST DISTRICT COURT OF APPEALS
C-180151, 2019-Ohio-5264, ¶ 85 (finding merger inappropriate where counts
involved two separate victims). Because Mr. McRae’s conduct victimized both
Officer Grubbs and Officer Keuper, merger of the offenses would have been improper
because the harm to each officer was separate and distinct. Therefore, the trial court
did not err in sentencing Mr. McRae separately for each attempted murder charge.
D.
{¶23} In his final assignment of error, Mr. McRae challenges the trial court’s
imposition of consecutive sentences for an aggregate sentence of 43-and-a-half years.
He submits that this subjects him to cruel and unusual punishment, violating the
Eighth Amendment to the United States Constitution, which provides “[e]xcessive
bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” The Ohio Constitution provides a corollary protection. See
Ohio Constitution, Article 1, Section 9.
{¶24} Invalidation of a sentence as cruel and unusual punishment, however,
requires a showing that the sentence is “grossly disproportionate” to the crime, i.e.,
shocking to a reasonable person and the community’s sense of justice. State v.
Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶ 13-14, citing
State v. Weitbrecht, 86 Ohio St.3d 368, 371, 715 N.E.2d 167 (1999). In addressing
proportionality of a sentence for constitutional purposes, the Ohio Supreme Court
emphasized that the focus remains on each individual term rather than the
cumulative effect of imposing multiple sentences consecutively. Hairston at ¶ 20
(“[W]e conclude that for purposes of the Eighth Amendment and Section 9, Article I
of the Ohio Constitution, proportionality review should focus on individual sentences
rather than on the cumulative impact of multiple sentences imposed consecutively.”).
Thus, the fact that the trial court sentenced Mr. McRae to consecutive sentences does
12 OHIO FIRST DISTRICT COURT OF APPEALS
not in itself constitute cruel and unusual punishment. See State v. Williams, 2017-
Ohio-8898, 101 N.E.3d 547, ¶ 31 (1st Dist.) (“[T]he Eighth Amendment
proportionality review does not apply to consecutive sentences.”).
{¶25} And as to Mr. McRae’s individual sentences, we do not see, nor does he
challenge, that the imposition of any individual sentence was “grossly
disproportionate” to the crime so as to constitute cruel and unusual punishment. To
the contrary, each sentence imposed on Mr. McRae falls within the allowable terms
provided by a valid statute enacted by the legislature, which carries a presumption
that the punishment fits the crime. See Williams at ¶ 30 (noting that sentences
falling within the term ranges allowed by a valid statute are not grossly
disproportionate to the crime). Ultimately, because proportionality review turns
upon review of each individual sentence, Mr. McRae’s resulting 43-and-a-half-year
sentence from imposition of consecutive sentences does not constitute cruel and
unusual punishment.
{¶26} Having thoroughly considered each of Mr. McRae’s assignments of
error in light of the law and the record on appeal and based on the foregoing
analysis, we overrule each of Mr. McRae’s five assignments of error and affirm the
judgment of the trial court.
Judgment affirmed.
MOCK, P.J., and ZAYAS, J., concur.
Please note: The court has recorded its own entry this date.