BY JOHN A. DARNELL JR.
      associate editor
      A decision of the Seventh District Court of Appeals has upheld the conviction and seven year jail sentence of a 55-year-old Youngstown man in a brutal assault that happened at Home Depot, 7001 Southern Blvd., on July 14, 2016.
      Brian D. Murray, 59, of 2204 Canfield Rd., found guilty of assaulting Gabriel Mathews, now 60-years-old, on Feb. 26, 2018 in the courtroom of Judge John Durkin.
      According to records of the Boardman Police Department and the court, Murray pummeled Mathews into unconsciousness.
      Murray admitted to the assault, but claimed he had acted in self defense.
      According to a transcript filed by Assistant Mahoning County Prosecutor Ralph Rivera, about 4:30 p.m. on July 14, 2006, Murray and Mathews were both at Home Depot.
      Mathews, who said he is a self-employed general contractor who specializes in bathroom remodeling, said he was working on a job in Youngstown when he and a man, Lee Otagah, went to Home Depot to get some supplies.
      Mathews said he walked into the store and saw Murray, and claimed when he attempted to “shake hands” with Murray, he was assaulted.
      Otagah told the court that Murray was “very aggressive towards Mathews, hitting him with a closed fist.”
      “You know, it was very aggressive, very violent...It wasn’t really a fight. I would say more or less, it was just [Murray] hitting [Mathews] and it escalated,” Otegah said. He said the confrontation ended outside the store where Murray struck Mathews “one last time and Gabriel fell down and went into an unconscious state.”
      Dr. Amanda Mason, an emergency room physician at St. Elizabeth Hospital in Youngstown, said when Mathews arrived at the hospital, “he was very confused. His face was very bloody...We immediately treated him as what we call a trauma patient. I think he sustained enough injuries for us to call out all the bells and whistles.” The doctors said that Mathews sustained multiple areas of bleeding inside the brain, we well as skull fractures. He was directly admitted to the surgical intensive care unit.”
      Dr. Donald Tamulonis, a neurologist, told the court that “with the initial assault, [Mathews] had a seizure, which is very common in blunt head trauma. Dr. Tamulonis concluded that Mathews had a skull fracture and bilateral subdural hematoma and intracranial bleeding.
      “It was a life-threatening disorder,” Dr. Tamulonis said, adding that Mathews required prolonged hospitalization based on his injuries.
      “Mathews intracranial hemorrhaging was the major concern, which resulted in a permanent injury,” Dr. Tamulonis told the court, noting that six days after the confrontation, “Mathews was more awake and talking...but he did not remember his name. He was still confused, he thought he was at Wick Park, he thought the month was March.”
      Murray told the court he and Mathews had previously worked together and sometime in Oct., 2015, the two got into an argument where Mathews supposedly told Murray, he would ‘burn his house down and kick his ass.”’ Murray claimed that Mathews had “bragged about a couple of altercations he was in.”
      Murray told the court when he saw Mathews at Home Depot, he thought “this guy is about to hurt me” and “I feared for my life.”
      A witness at the trial in Judge Durkin’s court, identified as David Asher, told the court he saw Murray at a laundromat in Cornersburg, sometime before the confrontation at Home Depot.
      During a conversation between the two men, Asher said that Murray told him “Mathews owed him money and he wants it.”
      Asher claimed Murray told him “If Gabriel don’t pay, he’s going to beat him down.”
      Murray denied ever having that conversation, the court record reflects.
      Murray’s conviction was appealed to the Seventh District Court by his counsel, Atty. Lou DeFabio.
      His appeal was based on claims of three errors at law---That Asher should not have been allowed to testify because the nature of his testimony had not been disclosed prior to trial; that jury instructions were improper; and the jury’s verdict of guilty was against the manifest weight of evidence.
      Seventh District Judges Carol Ann Robb, Gene Donofrio and Cheryl Waite rejected DeFabio’s claims.
      “It is difficult to conclude...that the trial court abused its discretion in allowing David Asher to testify,” the Seventh District decision, authored by Judge Robb said, noting the Murray’s then counsel, Atty. Mike Kivlighan, “clearly had the opportunity to interview Asher and knew the content of his testimony before he testified.”
      Atty. DeFabio argued the semantics of the jury instruction in Judge Durkin’s court, as well as concerns over “trial counsel’s failure to request instruction on aggravated assault, an inferior degree offense to felonious assault.”
      Judge Robb quoted the jury instruction given as “Words alone do not justify the use of force. Resort to force is not justified by abusive language, verbal threats or other words, no matter how provocative.”
      Judge Robb also said that Murray’s trial counsel’s conduct “fell within the wide range of professional assistance” and his failure to request instructions on lesser included offenses “constituted a matter of trial strategy.”
      In rejecting Atty. DeFabio’s claim the jury’s verdict of guilty on a felonious assault charge was against the manifest weight of evidence, Judge Robb said that Murray was convicted of “knowingly causing serious physical harm to another...
      “Considering [the] evidence, we cannot find the jury clearly lost its way when it rejected [Murray’s] claim of self defense...Considering the evidence, whether [Murray] acted in self defense when he repeatedly punched Mathews was a question of fact for the jury to decide.”
      Following the appellate court’s ruling, Atty. DeFabio has filed a request indicating he would like to appeal the Seventh District Court’s decision to the Ohio Supreme Court, saying that Murray is indigent and he will represent Murray as a court-appointed counsel (at public cost).