State v. McComb

[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 :
:

...........

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
 -4-

{¶ 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
 -5-

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-
 -6-

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
 -8-

“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
 -10-

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
 -12-

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
 -13-

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
 -14-

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
 -15-

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