Kennewick nightclub bouncer found guilty of assault (VIDEO)

Kristin M. Kraemer, Tri-City HeraldFebruary 1, 2013 

After two full days of testimony, a jury needed only 45 minutes Thursday to decide the general manager of a Kennewick nightclub caused the brain trauma that will long plague a Richland man.

Matthew Thomas Hibbard, 41, was convicted of third-degree assault for dropping Ben Ensign head first on the sidewalk in front of the Jack Didley's last July.

"In my heart and my soul, I just believe the evidence was there. The video proved everything and so we honestly felt that a guilty verdict would come back," Ensign's stepmother Sheila Barichello said after the verdict was announced. "I'm so grateful to the jury for the job they've done. ... It just re-instills the faith in the criminal system in my book, so I'm just so appreciative of that."

Hibbard, who's in charge of the club's security, told the jury he never intended to hurt Ensign and was sick to his stomach when he later learned the severity of his injuries.

Hibbard said he believed the intoxicated Ensign was about to punch him in the face, so he released his grasp around the man's chest and backed off to protect himself. Hibbard also claimed he didn't know another bouncer was holding up Ensign's feet, and said when he let go he expected Ensign to roll down his side to the ground.

Hibbard testified that he was holding Ensign at chest height, estimated to be about 41/2 to 5 feet off the ground.

Jurors were instructed that intent was not at issue in the Benton County Superior Court case.

The question before them was if Hibbard acted with criminal negligence by using more force than necessary while trying to keep Ensign out of the nightclub.

The jury also returned a special verdict for the aggravating circumstance that Hibbard caused bodily harm accompanied by substantial pain and considerable suffering for an extended time.

Ensign, 32, suffered a fractured skull and a subdural hematoma, and required emergency brain surgery. He would have died if he had not been treated, prosecutors said.

He spent a month on life support, then in August was moved to a Spokane rehabilitation center where he continues to be treated.

Prosecutor Andy Miller admitted it was a difficult case because criminal negligence is a concept they typically don't deal with in criminal matters.

"I felt good for Ben's family because Ben's still affected by the injuries he suffered that night, though he is certainly doing a lot better than the month after it happened," Miller told the Herald. "I think the jury sent a message about the need for people to be careful with other people's safety in situations like this."

Sentencing is set for Feb. 27. The standard range for third-degree assault is one to three months.

However, the special verdict allows Judge Vic VanderSchoor to go above the range. The highest VanderSchoor could go is the statutory maximum of five years, though judges often don't go close to that.

Miller didn't say if he will push for jail time or a prison term.

"I don't really think about the sentencing recommendations when I'm in trial until I've had time to meet with the family and look at things," he said.

After working on the Fourth of July, Ensign watched the fireworks show with friends and hit the bars for a night out. He was told to leave Jack Didley's after security saw him kick over chairs, sneak into the off-limits VIP lounge, drink a stranger's drink and take off his shirt while dancing around.

Hibbard described Ensign as aggressive, and said he tried to run back into the bar after twice being asked to leave.

That's when Hibbard grabbed him from behind in what prosecutors described as a chokehold. Hibbard said he didn't know Raymond Anderson had scooped up Ensign's ankles, but prosecutors questioned how Hibbard could move a few feet back on the sidewalk over 13 seconds without noticing that Ensign wasn't dragging.

Hibbard said he repeatedly asked Ensign if he was done, telling him to relax and that he'd let him go if he just stopped. He said Ensign was squirming and became combative, and Hibbard feared that one of Ensign's clenched fists was about to hit him.

Ensign's feet still were being held by Anderson when his head hit the ground.

Prosecutor Andy Miller argued that still pictures taken from the security video show six seconds passed between when Ensign had his arms raised and when he was dropped. The pictures showing Ensign's arms down just before he fell to the ground don't justify him being dropped, Miller said.

Miller also pointed out to jurors that Hibbard gave no warning before letting go so Ensign could attempt to break his fall with his hands.

"The defense described this as a fight. This may be one of the most one-sided fights in history," Deputy Prosecutor Brendan Siefken told the jury.

Defense attorney John Jensen reminded jurors that his client has a legal duty to keep belligerent people out of Jack Didley's.

Jensen asked what options Hibbard had: do nothing; choke him out; or continue to hold on to Ensign and get hit in the face.

"The fact of the matter is there isn't a good option here, not a single one," Jensen argued. "Mr. Ensign is the one who puts everything into motion that causes Mr. Hibbard to make a choice between a whole lot of bad options."

"Nobody is saying (Ensign) deserved what he got. Nobody would say that obviously. No, he didn't deserve the injuries, but he did set this in motion," he added.

Jensen argued that if jurors were to ignore Ensign's injuries -- if Ensign had gotten up and walked away that night -- Hibbard wouldn't be guilty of anything. He didn't do anything wrong that night and was just doing his job, he said.

"I think the only reason we're here is because he got a head injury and it's serious," Jensen said.

After the verdict hearing, Barichello said the family is focusing on Ensign's health, the details of which she said are being kept "extremely private" for now. He is "in very good hands," and the verdict is a definite step forward in the healing process, she said.

"I know it's going to be a very difficult time for (Hibbard). I feel bad for his parents, his family, siblings ...," Barichello said. "The whole thing is so tragic all the way around, tragic. But again, justice has to be done and we need to get laws into place that will prevent this from happening again."

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