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Attorney aims to appeal conviction by arguing for a more serious charge
By: Donovan Varney
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ATHENS, Ohio (WOUB) — A defense attorney trying to overturn his client’s conviction found himself in the unusual position last week of arguing the evidence at trial pointed to a more serious crime.
Matthew Kmosko, a former Hocking College supervisor, was convicted of menacing last year after threatening an employee with a sharp object. He was sentenced to 30 days in jail.
Kmosko was charged with aggravated menacing, but the trial jury was given the option to consider the lesser charge of menacing.
On Thursday a state appeals court heard oral arguments on the case.
Kmosko’s attorney on appeal, Scott Petroff, asked for the conviction to be vacated because the evidence at trial didn’t support convicting his client of the lesser charge.
One of the most substantial pieces of evidence was surveillance footage of moments before the incident occurred. The footage showed Kmosko, holding a large object, entering a bathroom where an employee was doing maintenance.
That employee was Hocking College student-athlete Caden Cox.
Cox made history in 2021 after he became the first individual with Down syndrome to score a point in an NCAA football game.
According to Cox, the object Kmosko had was a knife, but it also was described as possibly a screwdriver during the trial.
Petroff argued in court last week that it doesn’t matter whether the object was a knife or a screwdriver. Both can inflict serious harm.
“I haven’t heard a theory where being stabbed with a screwdriver is not serious physical harm,” Petroff said in court.
The legal difference between aggravated menacing and menacing is determined by threat level. Kmosko’s conviction of menacing means the jury found he threatened Cox with physical harm.
But Petroff argued the threat posed by a knife or screwdriver supported the more serious charge of aggravated menacing.
He noted that Cox testified during the trial that he feared for his life.
In other words, Petroff was essentially arguing that the jury should have convicted Kmosko of the more serious crime. But the jury instead acquitted him on that charge.
Jamarcus McCartney, the attorney representing the state on appeal, argued the evidence presented was enough to convict Kmosko of the lesser offense because it’s not certain he was going to stab or otherwise seriously harm Cox.
Ohio’s Fourth District Appellate Court will issue its decision on the appeal in the coming weeks.