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State v. Thundercloud

Court of Appeals of Ohio, Fifth District, Muskingum

June 20, 2019

STATE OF OHIO Plaintiff-Appellee

          Appeal from the Muskingum County Court of Common Pleas, Case No. CR2018-0052



          JUDGES: Hon. William B. Hoffman, P.J. Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J.


          DELANEY, J.

         {¶1} Appellant Michael S. Thundercloud appeals from the June 12, 2018 Entry of the Muskingum County Court of Common Pleas. Appellee is the state of Ohio.


         {¶2} This case arose in October 2017 when Jane Doe was beaten, hog-tied, and terrorized by a group of people at her drug dealer's residence on Grace Avenue in Muskingum County. The following facts are adduced from the record of the trial of co-defendants Thundercloud and Ross.[1]

         Doe is beaten because she is a "snitch"

         {¶3} Jane Doe is an admitted chronic illegal drug user. She has had periods of sobriety, but was heavily addicted in October 2017. She lost custody of both of her children. Her husband, the father of the eldest child, died of a drug overdose. "Josh" is the father of her youngest child and is also a long-term drug abuser. Doe has numerous criminal convictions and has frequently violated probation due to "dirty" drug screens.

         {¶4} In October 2017, Doe's drugs of choice were heroin and methamphetamine. She would alternate the two, using meth to stay awake and sustain the high from the heroin. Doe freely admits that during this period of her life, she spent all of her time getting high, or finding money to get high, and drugs were her only priority.

         {¶5} Her dealer was Darnell Vann, known on the street and referred to at trial as "Smoke." Smoke had a house on Grace Avenue and Doe went there several times a day, every day. The house was usually full of people using heroin, methamphetamine, crack, and cocaine. Sometimes Josh accompanied Doe to Smoke's house to get high. Doe admittedly stole from family members to get money for drugs. Smoke would also give her lists of items to "boost," or steal from stores, which she would exchange for drugs.

         {¶6} The instant case relates back to an incident in 2014. In May 2014, Doe was at a house in Crooksville when a drug bust occurred, resulting in the arrest of a dealer named T.J. Murphy. Doe was a witness against Murphy at his ensuing trial. In the wake of the trial, Doe and Josh occasionally heard rumors that Murphy had "put a hit out" on Doe.

         {¶7} Life continued to spiral downward for Doe in the fall of 2017. She tested positive for fentanyl abuse and was arrested for receiving stolen property. She violated probation and lost custody of her children yet again. She was hospitalized for six weeks due to a hole in her spleen from chronic drug abuse. Nevertheless, upon her release from the hospital, she immediately sought out Smoke to get high. Doe bounced between living at Smoke's residence and with her parents in their one-bedroom apartment.

         {¶8} Once while Doe was at Smoke's, a woman recognized her and told everyone in the house Doe "was the boys," meaning Doe was a police informant. Around this time Doe learned Smoke knew T.J. Murphy and had communicated with him about her whereabouts.

         {¶9} Doe still constantly went to Smoke's residence despite Josh's renewed warnings that there was a "hit" out on her. At one point, she talked to Smoke about the threats and he told her there was nothing to worry about. He suggested they could "stage" something where it would appear Doe got "jumped." Everyone would benefit because Murphy would pay Smoke and Doe "would have the target off [her] back." Doe thought the staging sounded like a good idea, but no plan was formulated and Doe told Smoke they would have to discuss it further to figure out the details.

         {¶10} On October 27 and 28, 2017, Doe went to Smoke's residence to get high. There were several other people present. Among these were Smoke; Thundercloud, known as "Cherokee;" Ross, known as "Boone;" and Heather Chandler. Also present was Byron Goodrich, who died of an overdose before trial of the instant case.

         {¶11} Doe intended to spend the night at Smoke's because she and Josh had fought. She used drugs and nodded off on the couch in the living room. She awoke to someone punching her in the face. At first Doe thought she was dreaming but became terrified as she realized she was being beaten. She was repeatedly punched and kicked, and was pulled off the couch onto the floor. At first one person was beating her, then it was several people. She felt a foot in her face. She tried to cover herself and urinated on herself as the assault continued. Finally the beating stopped and someone told her to stop screaming.

         {¶12} A gun was placed to the back of her head as she lay on the floor, and she was told to crawl into the kitchen on her hands and knees. Doe complied because she had no choice and thought she was going to die. She was crying and in pain from the beating, and heard people talking around her. Some threatened to kill her; someone threatened to take her into the basement to sodomize her. In the kitchen, she was instructed to lay flat with her arms and legs outstretched, and she was hog-tied with a spool of phone cord.

         {¶13} Appellee's Exhibit 1 is a cell phone video of the attack as described by Doe.[2]Heather Chandler approaches Doe as she is asleep on the couch, and starts pummeling her. She drags Doe onto the floor and the men join in, kicking Doe. Boone places a gun to the back of Doe's head. Byron Goodrich films the beating and can be heard repeatedly stating, "What a beautiful day. Isn't it a beautiful day?" as Doe screams and the others make threats. Smoke directs the action and instructs Doe to crawl to the kitchen. Cherokee hog-ties her with phone cord. Doe visibly urinates upon herself during the course of the ordeal. The video stops after Doe is hog-tied.

         {¶14} Doe didn't know the assault was filmed until afterward. Smoke untied her, gave her clean clothes, and told her to clean herself up. He also gave her some "dope." Doe followed his instructions and didn't leave the house because she was afraid and because she wanted to get high.

         {¶15} After the assault, Doe was terrified and in pain. Her face and sides were throbbing, her lips were split, and she could barely speak. Her glasses were broken. She had blood on her clothing. She didn't call the police or seek medical attention because, as she testified, she learned her lesson about talking. Doe unequivocally testified that she did not agree to be assaulted or terrorized during this incident, nor did she plan to be. She was hurt and terrified throughout the assault and was not acting. She still suffers from ongoing nightmares and constant fear.

         {¶16} Despite Doe's failure to report the incident, eventually police sought her out. Police executed a search warrant on Byron Goodrich's cell phone in an unrelated case and found the video of the assault. Officers recognized the interior of Smoke's residence and some of the people on the video. Police tracked down Doe to find out what happened. During the course of the investigation, Doe was threatened repeatedly and police "put her somewhere safe," but she willingly left the safe place to get high.

         Accomplice testimony of Smoke and Chandler

         {¶17} Smoke and Chandler testified for appellee as part of plea bargains in their own cases. Their versions of the attack largely ...

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