As Chris Kraus lay on the sidewalk, an Ohio University football player outweighing him by more than 50 pounds repeatedly kicked him in the head.
When Kraus finally managed to get up, another man pushed him headlong into a parking meter, leaving the 26-year-old bar manager with a concussion and a dent in the side of his head.
Kraus, a former OU football player himself, was satisfied when his attacker, OU offensive lineman Paul Johnson, was convicted of misdemeanor assault and sentenced to 10 days in jail. What he didn't know is that assailants involved in similar incidents around Ohio have been charged with felonious assault, which carries a maximum sentence of eight years.
I think (Johnson wasn't charged with felonious assault) because he's a football player
Kraus said. Six or seven of them were kicking me in my head when I was on my back G? Not too many people are lucky enough to get kicked in the head 30 times and still be talking about it.
But it might be the fact that Johnson is talking at all that prevented the more serious charge. Felonious assault is legally defined as causing serious physical harm and misdemeanor assault is defined as causing physical harm. Local lawyers said the word serious is open to interpretation based on the victim's injuries, but a former Athens County prosecutor said Johnson could have been charged with a felony.
Concussion I would say would probably fall to the serious side said Bill Biddlestone, a former Athens County prosecutor. You'd want to really talk to the victim and find out what the level of pain and suffering and the effects were.
There have been similar cases in Ohio where the assailants have been convicted of felonious assault. In a 2005 case in Akron, a man was convicted of felonious assault for breaking a man's nose and chipping his tooth. In a 2006 case in Union County, a man was convicted of felonious assault for bruising a woman's face and breaking her nose. Kraus' concussion is on par with those injuries, Biddlestone said.
Athens Police Department Officer Chuck Haegele made the decision to charge Johnson with misdemeanor assault. He said the incident did not warrant more serious charges, and he has seen similar cases where the victim did not pursue any charges at all.
Kraus said he initially was satisfied with Haegele's prompt handling of the incident and Johnson's 10-day sentence, but Haegele and City Prosecutor Lisa Eliason never told him felonious assault was an option. That option was something he would have liked to pursue.
Eliason said she could have increased the misdemeanor charge but chose not to do so because Kraus was not shot or stabbed, and he had no severe permanent injuries. She said she wanted to prosecute the assailant in a similar case in 2003 for felonious assault but was advised by County Prosecutor C. David Warren that it was more of a fight than an assault. In that case, the assailant was convicted and sentenced to 30 days in jail for punching a man in the back of the head, knocking him unconscious.
Warren said he did not remember the 2003 incident, and a felonious assault charge would require something more than an emergency room visit.
Johnson could not be reached for comment. His attorney, Melissa Luna, said he is considering an appeal.
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Matt Zapotosky
