State v. McComb , 2022 Ohio 1423 ( 2022 )

[Cite as State v. McComb, 2022-Ohio-1423.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29111
:
v. : Trial Court Case No. 2020-CR-3663
:
DAMITREE MCCOMB : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 29th day of April, 2022.
...........
MATHIAS H. HECK, JR. by ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
JEFFREY T. GRAMZA, Atty. Reg. No. 0053392, 101 Southmoor Circle NW, Kettering,
Ohio 45429
Attorney for Defendant-Appellant
.............
EPLEY, J.
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{¶ 1} Defendant-Appellant Damitree McComb was convicted after a jury trial in the
Montgomery County Court of Common Pleas of two counts of felonious assault, 14 counts
of violating a protection order, and one count of intimidation of a victim. McComb
appeals, claiming that his convictions for felonious assault were based on insufficient
evidence and against the manifest weight of the evidence. For the following reasons,
the trial court’s judgment will be affirmed.
I. Facts and Procedural History
{¶ 2} McComb and Yountay Pullen were in a romantic relationship, intermittently,
for seven years. By September 2020, though, the relationship had deteriorated
appreciably. Pullen sought and received a domestic violence civil protection order
(DVCPO) against McComb. She told McComb about the order, which angered him. He
was not immediately served with the order, and McComb continued to contact Pullen; the
two had frequent arguments.
{¶ 3} At approximately 9:15 a.m. on November 19, 2020, Pullen drove with her
eight-year-old son to the Kroger gas station at the corner of West Siebenthaler and
Klepinger Avenues in Dayton. While stopped at a pump, Pullen saw McComb’s vehicle
at the intersection, and she left the Kroger to avoid him. McComb saw her and chased
after her in his vehicle. As Pullen sped along Siebenthaler, McComb caught up to her
and rammed the back of her SUV with his Trailblazer, causing Pullen to swerve into
oncoming traffic. When Pullen stopped at a tire store at the intersection of West
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Siebenthaler Avenue and North Main Street, McComb got out of his vehicle, went over to
Pullen’s SUV, and kicked the side of it. He left before the police arrived.
{¶ 4} On December 1, 2020, McComb was indicted on two counts of felonious
assault with a deadly weapon (motor vehicle), felonies of the second degree. One
charge identified the victim as Pullen, and the other identified the victim as her son. The
police arrested McComb on December 3, 2020, and he was served with the DVCPO the
next day.
{¶ 5} Following his arrest, McComb contacted Pullen 308 times from the
Montgomery County Jail. In some calls, McComb attempted to dissuade Pullen from
coming to court and pursuing the charges against him. On February 19, 2021, a grand
jury indicted McComb on 15 additional charges: 14 counts of violating a protection order,
all felonies of the fifth degree (because McComb had a prior conviction for violating a
protection order), and one count of intimidation of a victim, a felony of the third degree.
{¶ 6} The matter proceeded to a jury trial, at the conclusion of which the jury found
McComb guilty of all charges. At sentencing, the trial court imposed an aggregate term
of a minimum of seven years and a maximum of nine and a half years in prison. McComb
appeals from his convictions, raising one assignment of error.
II. Sufficiency and Manifest Weight of the Evidence
{¶ 7} In his sole assignment of error, McComb claims that his convictions for
felonious assault were based on insufficient evidence and were against the manifest
weight of the evidence.
A. Relevant Legal Standards
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{¶ 8} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to
the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery
No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678
N.E.2d 541 (1997). The relevant inquiry is whether any rational finder of fact, viewing
the evidence in a light most favorable to the State, could have found the essential
elements of the crime proven beyond a reasonable doubt. State v. Dennis, 79 Ohio
St.3d 421, 430, 683 N.E.2d 1096 (1997). A guilty verdict will not be disturbed on appeal
unless “reasonable minds could not reach the conclusion reached by the trier-of-fact.” Id.{¶ 9} In contrast, “[a] weight of the evidence argument challenges the believability
of the evidence and asks which of the competing inferences suggested by the evidence
is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12; see Eastley v.
Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19. When reviewing
an argument challenging the weight of the evidence, an appellate court may not substitute
its view for that of the trier of fact. Rather, we review the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses, and
determine whether, in resolving conflicts in the evidence, the finder of fact clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered. Thompkins at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 10} Because the trier of fact sees and hears the witnesses at trial, we must defer
to the factfinder’s decisions whether, and to what extent, to credit the testimony of
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particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL
476684, *4 (Aug. 22, 1997). The fact that the evidence is subject to different
interpretations does not render the conviction against the manifest weight of the evidence.
Wilson at ¶ 14. A judgment of conviction should be reversed as being against the
manifest weight of the evidence only in exceptional circumstances. Martin at 175.
{¶ 11} “The legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different.” Thompkins at 386.
However, where an appellate court determines that a conviction is not against the
manifest weight of the evidence, the conviction is necessarily based on legally sufficient
evidence. State v. McLoughlin, 2d Dist. Champaign No. 2017-CA-22, 2018-Ohio-2426,
¶ 8; State v. Million, 2d Dist. Montgomery No. 24744, 2012-Ohio-1774, ¶ 23.
{¶ 12} In this case, McComb was charged with two counts of felonious assault in
violation of R.C. 2903.11(A)(2). That statute provides that “[n]o person shall knowingly
* * * [c]ause or attempt to cause physical harm to another * * * by means of a deadly
weapon or dangerous ordnance.” R.C. 2903.11(A)(2). A deadly weapon is “any
instrument, device, or thing capable of inflicting death, and designed or specially adapted
for use as a weapon, or possessed, carried, or used as a weapon.” R.C. 2903.11(E)(1);
R.C. 2923.11(A). A motor vehicle can constitute a deadly weapon. See, e.g., R.C.
2903.11(D)(4); State v. Morrow, 2d Dist. Clark No. 2002-CA-37, 2002-Ohio-6527. “A
careless or negligent use of a vehicle, however, does not equal use of the vehicle as a
deadly weapon without evidence that the driver actually used or possessed the vehicle
as a weapon as opposed to a conveyance.” State v. Nastal, 6th Dist. Wood No. WD-21-
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042, 2022-Ohio-970, ¶ 20.
{¶ 13} “A person acts knowingly, regardless of his [or her] purpose, when he [or
she] is aware that his [or her] conduct will probably cause a certain result or will probably
be of a certain nature. A person has knowledge of circumstances when he [or she] is
aware that such circumstances probably exist.” R.C. 2901.22(B).
{¶ 14} “Culpable mental states are frequently demonstrated through circumstantial
evidence.” State v. Hypes, 2d Dist. Clark No. 2018-CA-110, 2019-Ohio-4096, ¶ 21,
quoting State v. Fox, 2018-Ohio-501, 106 N.E.3d 224, ¶ 14 (10th Dist.). Circumstantial
evidence has the same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d
259, 272, 574 N.E.2d 482 (1991), citing State v. Nicely, 39 Ohio St.3d 147, 529 N.E.2d
1236 (1988); State v. St. John, 2d Dist. Montgomery No. 27988, 2019-Ohio-650, ¶ 49.
In some cases, “circumstantial evidence may be more certain, satisfying, and persuasive
than direct evidence.” State v. Jackson, 57 Ohio St.3d 29, 38, 565 N.E.2d 549 (1991).
A defendant’s state of mind may be inferred from the totality of the circumstances. State
v. Murphy, 2d Dist. Montgomery No. 27802, 2018-Ohio-3506, ¶ 16.
B. Evidence Presented at Trial
{¶ 15} At trial, the State presented the testimony of Pullen, Ronnye Gilkey (Pullen’s
sister), and three law enforcement officers, and it introduced several exhibits. Because
McComb has not challenged his convictions for violating a protection order or intimidation
of a victim, we focus on the evidence related to the felonious assault charges.
{¶ 16} According to Pullen, she and McComb dated on and off for seven years and
were together for the year preceding November 19, 2020. She described their
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relationship during their last year as “toxic.” On September 21, 2020, Pullen petitioned
for a DVCPO, which was granted after an ex parte hearing. Pullen stated that she sought
the protection order because when she did not want to be with McComb, he would “pop
up, threatening,” and she was afraid of him. Pullen informed McComb about the
DVCPO, and he was “mad.”
{¶ 17} In November 2020, Pullen’s sister, Gilkey, took care of Pullen’s minor
children while Pullen worked an overnight shift. On the morning of November 19, 2020,
Pullen drove to her sister’s Centerville home in her 2012 black Ford Explorer to pick up
her children. As Pullen started to drive off, Gilkey ran out of her home to provide a folder
that one of the children had left behind. Gilkey testified that she went around Pullen’s
vehicle, and the SUV had no visible damage to the trunk area. Pullen also testified that
her SUV was not damaged at that time.
{¶ 18} Pullen made a brief stop at her mother’s home to drop off her daughters
there. Gilkey testified that she had another opportunity to view Pullen’s SUV at their
mother’s home. At that time, Gilkey still did not see any damage to Pullen’s SUV. Soon
after, Pullen left with her eight-year-old son, T.P, in the back seat.
{¶ 19} At 9:17 a.m., Pullen stopped at the Kroger at the corner of Klepinger and
West Sieberthaler Avenues to buy gas. When she got to the gas station, she saw
McComb in his burgundy Trailblazer stopped at the light on Klepinger Avenue. Pullen
left the gas station without buying fuel in the hopes that McComb would not see her.
Pullen stated that she wanted to avoid McComb, because he had tried to contact her
several times that morning; Pullen had answered the phone once and knew they would
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“be feuding.” Surveillance video from the Kroger showed McComb’s arrival and
departure without buying gas. It also showed McComb quickly driving through the
Kroger parking lot to follow Pullen. (State’s Ex. 6.)
{¶ 20} Pullen testified that McComb drove around cars to catch up with her. She
estimated that she was driving at least 65-70 mph on Siebenthaler (the posted speed limit
was 35 mph), but McComb gained on her. When McComb caught up, he “rammed” her
SUV and “kept hitting it.” The contact caused her swerve into oncoming traffic, and a
small green car had to move out of the way to avoid a collision. Rather than braking,
Pullen tried to speed up. When Pullen reached the intersection with North Main Street,
she pulled into the tire shop and asked two women there to call the police. (Pullen’s
phone had fallen from the seat beside her and was temporarily inaccessible.)
{¶ 21} According to Pullen, McComb stopped in the roadway, got out of his vehicle,
came over to her SUV in the tire shop parking lot, and started kicking the back driver’s
side of her vehicle. McComb then returned to his car and headed toward downtown
Dayton on North Main Street. Pullen called the police on her cell phone and began to
follow McComb so she could tell the police where he was heading. When Pullen lost
sight of McComb, she returned to the tire store to wait for law enforcement to arrive.
{¶ 22} At 10:20 a.m., Dayton Police Officer Cayce Cantrell went to 1901 North
Main Street, the tire store located at the corner of Main Street and Siebenthaler Avenue,
on a report of a domestic disturbance. When the officer arrived, she made contact with
Pullen, who was there with her 8-year-old son. Cantrell noticed that Pullen was “visibly
shaken, scared, frightened, [and] upset.” Pullen told the officer what had occurred. At
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trial, the officer recounted what Pullen had said, which was consistent with Pullen’s
testimony at trial. Officer Cantrell described Siebenthaler Avenue as a two-lane “very
high-traffic” area.
{¶ 23} Officer Cantrell observed and took photographs of Pullen’s vehicle. She
saw “damage to the back hatch of the car where it was dented as well as the driver’s side
rear quarter panel was dented along with a visible footprint mark.” (Trial Tr. 60.) The
State introduced Cantrell’s photographs of the vehicle. According to Cantrell, Exhibit 1A
showed that “the whole left side [of the trunk] was concaved in.” Exhibit 1B showed the
dent in the driver’s side rear quarter panel and the footprint. Pullen also identified the
damage to the bumper and driver’s side of her car and testified that McComb had caused
the damage.
{¶ 24} Officer Cantrell testified that two witnesses were present at the tire center.
She spoke with both witnesses, and their statements were consistent with Pullen’s
information. The officer also investigated whether there were any tire marks or other
indications that a vehicle had swerved on Siebenthaler, but she did not see anything.
{¶ 25} During her testimony, Pullen stated that McComb again chased her with his
vehicle on November 22, 2020, three days after the incident. This time, Pullen was
involved in a collision with another vehicle, and she went to the hospital due to shoulder
pain.
{¶ 26} Detective Daniel O’Neill conducted a follow-up investigation of the
November 19 incident. He spoke with Pullen, who provided a statement similar to her
trial testimony. O’Neill also looked at Pullen’s SUV and observed a two-by-two foot large
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dent in the rear gate, damage to the rear bumper, and damage to the left rear. (See
State’s Exs. 17A-E.) The detective located McComb’s vehicle and saw damage to the
fog lamps on the front bumper. (State’s Exs. 12.) He noted that two circles that he
found on Pullen’s rear bumper appeared to match up with the front bumper of McComb’s
vehicle.
{¶ 27} McComb made numerous phone calls to Pullen following the November 19
encounter and left SnapChat messages on Pullen’s phone. In one SnapChat message,
McComb said he was going to “dog her” and would hurt her when he caught her. In
another message, McComb stated, “I want to catch you on the highway because I’m going
to spin that bitch all the way out.” (State’s Ex. 11; see Trial Tr. 184.) Pullen also testified
that between November 19 and December 3, 2020, she spoke with McComb several
times and had asked him why he had done it, particularly with her child in the car.
McComb responded to her that he had not known her son was in the SUV.
{¶ 28} McComb was arrested on December 3, 2020. According to Captain Brad
Daugherty of the Montgomery County Sheriff’s Office, 308 telephone calls were made
from the Montgomery County Jail to two cell phone numbers – which Pullen identified as
hers – between December 3, 2020 and February 18, 2021. (See State’s Ex. 2.) All but
two of the calls were made from McComb’s account; the other two were made from the
account of another inmate who was housed in the same location in the jail as McComb.
McComb repeatedly threatened Pullen or attempted to dissuade her from pursuing the
charges.
{¶ 29} Testifying in his own defense, McComb stated that he and Pullen had been
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separated for a few days when the Siebenthaler incident occurred. He indicated that he
had been upset and frustrated that he could not talk with her, and he had wanted to talk
with her face-to-face about the situation. McComb admitted that he had followed her in
his vehicle, but he denied hitting her with his car, even accidentally, or trying to scare or
hurt her. McComb explained that he had just wanted to talk with Pullen, and his plan
was to follow her until she stopped. McComb stated that he was driving two car-lengths
behind her, and he asserted that Pullen’s speeding and erratic driving “was on her” and
not his fault.
{¶ 30} McComb admitted that he kicked Pullen’s car at the tire shop and said that
he did so because of the irresponsible way she had been driving. He acknowledged that
he had not talked with Pullen there. McComb further testified that he had not been aware
that T.P. was in the car with Pullen until after he had kicked Pullen’s vehicle, but he
admitted on cross-examination that he had known there was “75 percent of the chances”
that T.P. would be there.
{¶ 31} McComb testified that when he was arrested after the incident, he was
again staying with Pullen, and he claimed that they had been in bed together when the
police arrived. McComb described his relationship with Pullen as up and down and
unhealthy, with each accusing the other of cheating, and he said that he had never “put
his hands on” Pullen. He indicated that he was aware that his jail phone calls had been
recorded, and he asserted that he never would have made them if he had known a
protection order was in place; McComb stated that he believed the DVCPO that he had
received on December 4, 2020 had expired. He denied trying to threaten or intimidate
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Pullen during the phone calls and explained that he had made statements out of anger
and had not meant them.
{¶ 32} On appeal, McComb argues that Pullen was the only person who witnessed
the alleged ramming of her SUV with his Trailblazer, and thus the State failed to prove
that a collision occurred. He further asserts that, even if the collision were proven, the
State failed to establish that he knowingly attempted to cause her physical harm.
McComb emphasizes that merely following Pullen’s car did not “create a risk of serious
physical harm” and that she could not know “with any level of certainty” what his intent
had been that day. McComb states that the alleged contact between the vehicles could
have been completely accidental and that the jury lost its way when it determined that
McComb had had an intent to harm or cause a significant risk of harm to Pullen.
{¶ 33} At the outset, the State was not required to prove that McComb
“intentionally” or “recklessly” attempted to cause “serious physical harm” to Pullen and
her son. The felonious assault statute requires the defendant to act knowingly, not
purposefully (with a specific intent) or recklessly. In addition, under R.C. 2903.11(A)(2)
(the deadly weapon provision), the defendant need only cause or attempt to cause
“physical harm,” not “serious physical harm,” to another. Upon review of the evidence
as a whole, the State presented substantial evidence that McComb knowingly attempted
to cause physical harm to Pullen and T.P. when he hit Pullen’s SUV with his own vehicle.
{¶ 34} First, there was substantial evidence that a collision occurred. Pullen
testified that McComb had chased after her vehicle on Siebenthaler at a high rate of speed
(at least in excess of 70 mph), passing other cars to catch up, and then rammed the back
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of her SUV with his vehicle, causing her to swerve into oncoming traffic. While McComb
argues that no one witnessed the collision, Pullen’s testimony, if believed, was sufficient
to prove that McComb had hit Pullen’s SUV with his own vehicle. See State v. Page, 2d
Dist. Montgomery No. 26670, 2017-Ohio-568, ¶ 30 (victim’s testimony, if believed, was
sufficient to prove offense); State v. Burns, 2d Dist. Montgomery No. 24174, 2012-Ohio-
2536, ¶ 32.
{¶ 35} Moreover, the State presented substantial circumstantial evidence to
corroborate Pullen’s testimony regarding McComb’s conduct. Surveillance video from
the Kroger showed McComb racing through the Kroger parking lot after Pullen left the
fuel center. Gilkey’s testimony supported Pullen’s statements that her vehicle had not
bbeen damaged prior to the Siebenthaler encounter with McComb on November 19,
2020. Officer Cantrell’s testimony, as well as her photographs of Pullen’s vehicle,
substantiated that the trunk area as well as the driver’s side of Pullen’s SUV had been
damaged. Detective O’Neill also observed damage to the rear of Pullen’s SUV when he
saw it several days later, as well as damage to the front of McComb’s vehicle, which
appeared to match up. The State did not present witnesses from the tire store, but Office
Cantrell further testified that two witnesses provided statements which supported Pullen’s
recounting of what had occurred there. The jury reasonably concluded that McComb
had hit Pullen’s vehicle with his own vehicle.
{¶ 36} The jury also reasonably concluded that McComb had knowingly attempted
to cause physical harm to Pullen and T.P. Pullen described her tumultuous relationship
with McComb and his anger when she avoided communication with him, as she had on
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the morning of November 19, 2020. The manner and speed with which McComb caught
up to Pullen on Siebenthaler reasonably demonstrated that McComb was not merely
using his vehicle for transportation, but instead was using it to act aggressively toward
Pullen. Pullen stated that she accelerated in response to the chase and the contact
between the vehicles, and that McComb had to catch up with Pullen’s SUV to hit her.
McComb’s decision to stop at the tire shop and kick Pullen’s SUV further supported a
conclusion that he had knowingly hit her SUV with his Trailblazer moments earlier.
McComb also made statements following the incident that indicated that the contact
between the vehicles was not accidental, and he engaged in similar conduct three days
later, which further supported a conclusion that the collision was done knowingly and not
accidentally.
{¶ 37} McComb testified that he had been unaware of T.P.’s presence when the
Siebenthaler incident occurred, however the doctrine of transferred intent applied to
protect T.P., an unintended victim of McComb’s conduct, as well as Pullen, the intended
victim. “The doctrine of transferred intent indicates that where an individual is attempting
to harm one person and as a result accidentally harms another, the intent to harm the first
person is transferred to the second person and the individual attempting harm is held
criminally liable as if he both intended to harm and did harm the same person.” State v.
Free, 2d Dist. Montgomery No. 15901, 1998 WL 57373, *10 (Feb. 13, 1998), quoting
State v. Mullins, 76 Ohio App.3d 633, 636, 602 N.E.2d 769 (10th Dist.1992).
{¶ 38} In short, based on the evidence at trial, the jury reasonably found McComb
guilty of felonious assault with a deadly weapon (motor vehicle) as to both Pullen and
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T.P. Although McComb denied chasing Pullen with his vehicle and colliding with her
SUV, the jury was free to disbelieve his testimony and credit the State’s version of events.
McComb’s convictions for felonious assault were neither based on insufficient evidence
nor against the manifest weight of the evidence. Accordingly, his sole assignment of
error is overruled.
III. Conclusion
{¶ 39} The trial court’s judgment will be affirmed.
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DONOVAN, J. and WELBAUM, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Elizabeth A. Ellis
Jeffrey T. Gramza
Hon. Mary E. Montgomery