Defense lays out arguments in appeal of Caden Cox menacing case

ATHENS, Ohio — In an appeal over the alleged menacing of former Hocking College football player Caden Cox, the defense filed a brief earlier this month explaining why the defendant’s conviction should be overturned.

Matthew Kmosko, convicted in January, supervised Cox at the Hocking College Student Center when he allegedly pointed a knife at Cox while yelling at him, causing him to fear for his life.

Cox made national headlines in 2021 when he became the first college football player with Down Syndrome to score a point in an official game. The incident with Kmosko is at the heart of an ongoing federal lawsuit against Hocking College, which Cox’s family brought in May. 

That lawsuit alleges harassment, discriminatory conduct and assault by Kmosko as well as retaliation and lack of follow-up from the school. Both the Ohio Attorney General’s Office and Cox’s attorney declined to comment on how Kmosko’s appeal of his criminal conviction would affect the ongoing civil suit.

Related reading: Former Hocking College athletic director claims he was not made aware of complaints against him

In his appeal, filed in the Athens County Court of Common Pleas, Kmosko argues that the court committed two errors in his January 2023 trial: First, he says that the original jury reached a “compromise verdict” inconsistent with the evidence. Additionally, the jury was unfairly biased by arguments that Kmosko was a “liar,” although his honesty was not a core issue in the case, he argues.

Nelsonville City Prosecutor Jamarcus Macartney said the prosecution is “still in review and preparing a response to the brief.” Macartney declined to comment further.

Kmosko was ordered to pay a $250 fine and spend 30 days in jail, with 27 days of jail time suspended for a two-year probation. Kmosko also was ordered to have no contact with Cox and to complete an anger management course.

“Compromise verdict”

When the criminal case was initially brought against Kmosko in the Athens County Municipal Court, he faced just one charge: aggravated menacing. When someone commits aggravated menacing, they “knowingly cause another to believe that the offender will cause serious physical harm to the person or property of the other person.”

Two days before trial, however, the court granted the prosecution’s oral motion that the jury be instructed to also consider the lesser charge of menacing, according to Kmosko’s appeal. 

That crime differs from aggravated menacing in that the offender causes someone to believe they will commit physical harm, but not serious physical harm. Serious physical harm includes harm that “carries a substantial risk of death” or permanent or severe incapacity or disfigurement.

At the time, the defense objected to the jury instruction on the grounds that Kmosko would present an “all or none” defense: either Kmosko knowingly caused Cox to believe he would cause serious physical harm, or he did not. “No facts would support the argument that Appellant knowingly caused the victim to fear physical harm but not serious physical harm,” the appeal states.

The court overruled the defense’s objection, however. Ultimately, the jury found Kmosko guilty of menacing and not guilty of aggravated menacing. 

Kmosko’s appeal argues that the decision reflects a “compromise verdict,” in which jurors vote against their true views on the case to avoid a deadlock.

At the trial, Athens County Prosecutor’s Office attorney Ashley Johnson argued Kmosko “trapped Caden in a bathroom” at Hocking’s student center while “screaming at him at the top of his lungs” to do his job, “using profanity, while holding a blade in his hand.” 

Cox testified that he was scared Kmosko would try “to kill me, something like that.”

The defense disputed Cox’s version of events and argued that “one person saying to another person, even a potentially vulnerable person, do your job, while holding a knife,” does not constitute aggravated menacing. 

“If somebody wanted to cause somebody serious physical harm, I can think of a lot worse things to say,” Kmosko’s defense attorney Ian Chaves said.

Chaves also argued, “There is no evidence … of Caden being in fear.” He cited the limited time Kmosko was in the bathroom with Cox — 17 seconds — and Cox’s actions after leaving the bathroom, when he returned to work. 

“Wouldn’t the more reasonable reaction be crying in terror, or running in horror, or calling the police?” Chaves asked.

Johnson said that, regardless of the length of the bathroom encounter, “it changed Caden’s life forever.” Further, she said that, after leaving the bathroom, Cox “did the only thing he could think at that time” — he returned to work and attempted to contact his mom. 

In his appeal, Kmosko argues that the jury only heard arguments that Cox feared for his life and that Cox didn’t fear physical harm at all — without any middle ground. The prosecution did not present any legal theory “to support menacing rather than aggravated menacing,” Kmosko says. 

Allowing the jury to consider the lesser charge, then, was a critical error of the court.

Kmosko’s (dis)honesty

In her closing argument, Johnson referred to “all of the lies Defendant told today,” prompting an objection from Chaves. Kmosko did not testify during the trial, choosing to remain silent, a right protected by the Fifth Amendment. 

Johnson corrected herself: “All of the lies that the Defendant told during this case.”

Johnson pointed to discrepancies in statements made by Kmosko, as described in testimony from the police officer who investigated the incident, Zayne Preston.

“First he had no weapons, then he had a small handle knife, but he never really carried it,” Johnson said. “Then he maybe had it that day, then he definitely had it that day. So one, two, three, four, five different versions of if he did or did not have a weapon.”

Chaves sought to demonstrate at trial that Kmosko may not have been holding a knife, but instead a metal tool used to open the paper towel dispenser in the bathroom. 

However, Johnson rebutted, “Nobody was messing with the paper towels” so “there would be no reason for that alleged tool to be in there.”

Surveillance footage introduced at trial did not clearly show the metal object Kmosko held, attorneys agreed.

Despite the discrepancies in Kmosko’s statements, Chaves said in his closing argument, “There is just not enough to convict him from a blurry photo, to no knife ever being recovered.”

Johnson, in contrast, argued, “He had a knife, or even if you believed him, a screwdriver in his hand and he was gesturing it towards Caden as if he was going to stab him while he said it. That’s way more than just saying, hey, do your job.”

In Kmosko’s appeal, he argues it is “improper for the State to unfairly suggest that the defenses case was predicated on dishonesty” when “according to the State, it matters not whether the object was a knife or a screwdriver.”

Because of the minimal relevance of the knife question, this increased “the prejudicial effect of the prosecutors’ statements,” Kmosko argues.

After the guilty verdict was announced at trial, Chaves motioned for a mistrial as a result of Johnson’s comment about the defendants ‘lies.’ Athens County Municipal Court acting Judge Robert Rittenhouse overruled the motion because “The Court did tell the jury, I think on three occasions that counsel’s arguments aren’t evidence.”

However, in his appeal, Kmosko argues Rittenhouse’s decision was mistaken.

Ultimately, Johnson’s comments “transformed the issue from a legal one to a personal one,” Kmosko argues.

Kmosko’s attorney Scott Petroff declined to comment for this story at Kmosko’s request.