BUCYRUS—Shortly after the State of Ohio rested its case against Timothy Montgomery, Defense Attorney Terry Hitchman moved for the case against his client to be dismissed.

Hitchman made his case for dismissal to Crawford County Common Pleas Court Judge Sean Leuthold.

Hitchman’s main argument was that the state did not prove its case beyond a reasonable doubt, and there was not sufficient evidence against his client. He told the court the state also failed to prove prior calculation and design.

Assistant prosecutor Dan Stanley argued that when Montgomery went back to an unconscious Benedict, he did so with the intention to finish the job.

Based on his review of the coroner’s and other evidence, Judge Leuthold ruled against Hitchman’s motion to acquit and dismiss.

“The corner’s report that summarized the injuries to Benedict shows that they were extensive injuries in nature. Also, a video shows the aftermath of the beating he had taken. This gives proof that the incident occurred. Cameron Davis was an accomplice. He (Montgomery) got into the fight, allegedly, for all intents and purposes, when Mr. Benedict was helpless. Alleged punches were thrown. Mr. Davis testified that Mr. Montgomery saw the victim lying on the ground, crawled up on top of him, and proceeded to hit him at 12/6 Position, striking him 12 to 20 times in the face. Blood on Mr. Montgomery’s shirt and pants supports the allegation that he mounted the victim. An eyewitness saw it. Two men and a female were all involved. The witness described punching and kicking. The allegation of prior calculation Is supported by the defendant’s own words,” he said, “If you don’t arrest him and take care of this, I will.”

The defendant said he would take matters into his own hands and said:

“You know what that means,” Leuthold explained.

Leuthold told the court he also took into consideration the fact that Montgomery was furious at the victim and angry because the victim had allegedly hit his wife. Leuthold said Mr. Benedict was helpless after Davis beat him, and Mr. Montgomery (allegedly) waited until Mr. Benedict was helpless and then joined in.

“The jury will have to decide if he (Montgomery) waited too, at that point, commit a homicide.” Leuthold said.