[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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                    OHIO FIRST DISTRICT COURT OF APPEALS


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




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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,



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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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                     OHIO FIRST DISTRICT COURT OF APPEALS


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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                      OHIO FIRST DISTRICT COURT OF APPEALS


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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                    OHIO FIRST DISTRICT COURT OF APPEALS


                                               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.



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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



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                     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.




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