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State v. McComb

Court of Appeals of Ohio, Second District, Montgomery

May 26, 2017

STATE OF OHIO Plaintiff-Appellee
DAVION R. MCCOMB Defendant-Appellant

         Criminal Appeal from Common Pleas Court Trial Court Case No. 2015-CR-1152/1

          MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Attorney for Plaintiff-Appellee

          ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, Attorney for Defendant-Appellant


          WELBAUM, J.

         {¶ 1} Defendant-appellant, Davion R. McComb, appeals from his conviction in the Montgomery County Court of Common Pleas after he was found guilty of multiple counts of aggravated robbery, felonious assault, grand theft of a firearm, and having a weapon while under disability. In support of his appeal, McComb challenges the trial court's decision overruling his motion to suppress and his motion for separate trials. McComb also contends that all of his convictions were against the manifest weight of the evidence and that his conviction for grand theft of a firearm was not supported by sufficient evidence. As a supplemental argument, McComb contends that in light of the Supreme Court of Ohio's recent decision in State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E. 3d 448, the trial court erred in imposing mandatory prison terms for a portion of his offenses. McComb further contends that the holding in Hand renders R.C. 2923.13(A)(2), the statute governing the offense of having weapons while under disability, unconstitutional. For the reasons outlined below, the judgment of the trial court will be affirmed in part, reversed in part, and the matter will be remanded for resentencing.

         Facts and Course of Proceedings

         {¶ 2} On May 13, 2015, the Montgomery County Grand Jury returned an indictment alleging that on April 7, 2015, McComb committed single counts of aggravated robbery, felonious assault, grand theft of an automobile, grand theft of a firearm, and having a weapon while under disability. The indictment further alleged that on April 16, 2015, McComb committed two additional counts of aggravated robbery and one count of having a weapon while under disability. All of McComb's charges included a three-year firearm specification, with the exception of the two charges for having a weapon while under disability.

         {¶ 3} After pleading not guilty to all the charges, McComb filed a motion to suppress two eyewitness' photographic identification of him as one of the individuals who committed the April 7, 2015 offenses. McComb also filed a motion to have the April 7, 2015 charges tried separately from the April 16, 2015 charges. The trial court overruled both motions.

         {¶ 4} Thereafter, the matter proceeded to a jury trial on all charges, except for the two charges alleging that McComb had a weapon while under disability. McComb waived a jury trial for the weapons under disability charges, as it was agreed that the trial court would render a verdict based on the evidence presented to the jury. The following is a summary of the evidence presented at trial.

         Events Leading to April 7, 2015 Charges

         {¶ 5} At 2:00 a.m. on the morning of April 7, 2015, McComb and his codefendant, Londell Johnson, approached Tyree Martin, who was standing on the front porch of a residence located at 927 West Riverview Terrace in Dayton, Ohio. Martin was at the residence to pick up his roommate, Joshua Jones, who was visiting his girlfriend, Rolonda Reiter. It is undisputed that Reiter is Johnson's sister. While Martin was waiting for Jones to come outside, McComb and Johnson came from the right side of the residence and asked what Martin wanted. Johnson then patted Martin down and asked what was in his pockets.

         {¶ 6} When Jones came outside on the porch with Reiter, he saw McComb and Johnson approach Martin. McComb then searched Jones and took Jones's I.D., money, and cellphone. While on the porch, both Martin and Jones noticed that McComb had a gun in his hand.

         {¶ 7} During the encounter, Martin was able to discretely dial 9-1-1 on his cellphone. However, Johnson heard the 9-1-1 operator on the cellphone ask if there was an emergency, and upon hearing the operator, Johnson told McComb to shoot Martin in the face. Martin then pushed Johnson and took off running toward his car. Johnson and McComb chased Martin, and Martin retrieved a gun that was in the car's console. When Johnson reached Martin's car, Johnson reached in the vehicle through the driver's side door and attempted to take the gun from Martin. After a struggle, Martin managed to get the gun away from Johnson and turned to fire it at McComb who was firing shots at him. However, Martin could not get his gun to fire in the midst of McComb's shooting, so Martin dropped the gun in the street and fled from the scene.

         {¶ 8} Jones was standing on the front porch with Reiter as the shots were being fired. From the porch, Jones saw Johnson pick up Martin's gun and drive off in Martin's car while McComb went back toward the porch. When Jones saw that McComb was coming back toward the porch, Jones ran through the house and out the back door as McComb chased him. As he was being chased, Jones heard another gunshot.

         {¶ 9} After fleeing from the scene, Martin and Jones went to a nearby park and flagged down two police cruisers. When they returned to the scene with the police, Martin's car and gun were both missing. However, the investigating officers discovered two shell casings in the street where Martin claimed shots were fired at him.

         {¶ 10} Two days later, on April 9, 2015, Martin and Jones were approached by McComb and Johnson while they were eating at a Buffalo Wild Wings restaurant in Dayton. During the encounter, Martin and Jones recognized McComb as the individual who had fired shots at Martin two days earlier. At the restaurant, McComb showed that he had a gun underneath his sweatshirt and threatened Martin. In addition, both McComb and Johnson told Martin that he could have his car back for $500 or both his car and his gun for $700. The following day, Martin called the lead detective investigating his case, Detective Deborah Ritchey, to report what had happened at the restaurant. However, at the time, Martin did not know McComb's name.

         {¶ 11} On April 16, 2015, Martin saw McComb and Johnson's photographs on a televised newscast regarding their arrest for a different, unrelated robbery. After seeing their photographs, Martin immediately recognized McComb as the individual who fired shots at him on April 7th and who approached him at Buffalo Wild Wings on April 9th. The day after the newscast, Martin contacted Detective Ritchey again and informed her of the newscast and identified McComb as the individual who fired shots at him. After receiving this call, Detective Ritchey arranged for Martin and Jones to come to the police station on April 20, 2015, and review a photospread of suspects. After the photospread was administered, both Martin and Jones positively identified McComb as the April 7th shooter. The photograph of McComb used in the photospread was the same photograph that Martin saw on the newscast.

         Events leading to April 16, 2015 Charges

         {¶ 12} On the morning of April 16, 2015, McComb and Johnson were parked outside Precision Auto Tune, a body shop located in Dayton, Ohio, when Robbie Deaton and his stepfather, Joshua Howard, pulled up next to them and asked if they were interested in purchasing a home theater system. Deaton and Howard are in the business of selling home theater equipment for Queen City Theater Design and they travel to various locations in Ohio and Kentucky to make sales.

         {¶ 13} After speaking with Howard, Johnson and McComb agreed to purchase two surround sound speakers for $150 each. Upon making their selection, Johnson told Howard and Deaton that he needed go to his house to get money to pay for the speakers. Deaton and Howard then followed McComb and Johnson as they drove to an apartment complex approximately 10 minutes away located on Dayview Circle.

         {¶ 14} When they reached the apartment complex, Deaton remained in the driver's seat of their vehicle while Howard walked to the back of the vehicle to grab the box of equipment that McComb and Johnson had agreed to purchase. McComb and Johnson then got out of their white SUV and walked up to Howard, who opened the box of equipment to show it to McComb and Johnson. McComb then came up to Deaton at the driver's side of the vehicle, pointed a gun at his face, and said: "Turn the car off and give me the key or I'm going to kill you." Trial Trans. Vol. II (Sept. 22, 2015), p. 334. After Deaton complied with McComb's demand, McComb opened the driver's side door, pressed his gun against Deaton's chest, searched Deaton's pockets, and took his cellphone. McComb repeatedly asked Deaton "where's the money at?" Id. at p. 336. In response, Deaton told McComb he had no money.

         {¶ 15} Meanwhile, Howard was struggling with Johnson who had also pulled out a gun. Johnson fired a warning shot at Howard to stop him from struggling as he tried to search his pockets. Upon hearing the gunshot and Johnson's request for help, McComb ran back to assist Johnson in taking $300 from Howard. McComb then held Howard by his shirt collar, with his gun in his other hand, while Johnson loaded the home theater equipment into their SUV. Johnson and McComb then placed Howard in the vehicle with Deaton, threw the vehicle's keys in a field, and told Deaton and Howard to never return to Dayton. As McComb and Johnson drove away, Johnson fired two gunshots at their vehicle. When McComb and Johnson were gone, Howard went to a nearby house to call 9-1-1.

         {¶ 16} After the robbery was reported, police officers went to Precision Auto Tune to review the store's surveillance video. As the police officers were leaving the store, they saw McComb and Johnson drive by in their white SUV. One of the officers attempted to initiate a traffic stop, but McComb and Johnson did not comply. A 30-minute-high-speed chase then ensued.

         {¶ 17} During the chase, McComb jumped out of the vehicle and took off running, but was ultimately apprehended. The officer who apprehended McComb found Deaton's cell phone in his pocket and $356 in cash. Shortly thereafter, Johnson was also apprehended and taken into custody. When the police searched the white SUV that Johnson and McComb were riding in, they discovered the keys to Tyree Martin's vehicle in the glove compartment. The police also recovered two shell casings and a bullet on the ground where the shots were fired at Dayview Circle.

         {¶ 18} After trial, the jury found McComb guilty on all counts and specifications. The trial court also found McComb guilty on both counts of having a weapon while under disability. Following the verdicts, McComb moved for a Crim.R. 29 acquittal for all of his convictions, primarily focusing on the charges for grand theft of an automobile and grand theft of a firearm. After considering the matter, the trial court granted an acquittal on the grand theft of an automobile charge. McComb was then sentenced to an aggregate prison term of ten years.

         {¶ 19} Thereafter, McComb filed a notice of appeal from his conviction and subsequently filed an appellate brief on June 15, 2016, raising four assignments of error for this court's review. After the State filed its appellate brief, on January 26, 2017, this court issued a briefing order that invited the parties to file simultaneous, supplemental briefs discussing the impact of the Supreme Court of Ohio's recent decision in State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E. 3d 448, if any, on McComb's appeal. In response, McComb filed a supplemental brief raising two additional assignments of error. The State then filed a brief addressing McComb's supplemental assignments of error. For purposes of clarity, we will address McComb's supplemental assignments of error first and then proceed to discuss his original four assignments of error.

         Supplemental Assignments of Error

         {¶ 20} McComb's Supplemental Assignments of Error are as follows:


         {¶ 21} Under his supplemental assignments of error, McComb contends that in light of the Supreme Court of Ohio's holding in Hand, the trial court erred in imposing mandatory prison terms for his three counts of aggravated robbery and his single count of felonious assault. McComb also contends that Hand renders R.C. 2923.13(A)(2), the statute governing the offense of having weapons while under disability, unconstitutional because it violates his due process rights.

         {¶ 22} In Hand, the Supreme Court of Ohio held that it is unconstitutional to use a juvenile adjudication as the equivalent of an adult conviction to enhance a penalty for a later crime, because, unlike an adult conviction, a juvenile adjudication does not involve the right to a trial by jury. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E. 3d 448, ¶ 38. In so holding, the court struck down R.C. 2901.08(A), a statute which specifically provided that a prior "adjudication as a delinquent child or as a juvenile traffic offender is a conviction for a violation of the law or ordinance for purposes of determining the offense with which the person should be charged and, if the person is convicted of or pleads guilty to an offense, the sentence to be imposed[.]" Id. at paragraph one of the syllabus and ¶ 9. Therefore, the Supreme Court of Ohio made it clear in Hand that "a juvenile adjudication is not a conviction of a crime and should not be treated as one." Id. at ¶ 38.

         {¶ 23} The State concedes, and we agree, that pursuant to Hand, the trial court erred in imposing mandatory prison terms for McComb's three first-degree-felony counts of aggravated robbery and for his second-degree-felony count of felonious assault. The record indicates that the trial court imposed mandatory prison terms for these offenses pursuant to R.C. 2929.13(F)(6), which provides for a mandatory sentence when a defendant is convicted of a first-or second-degree felony and "previously was convicted of or pleaded guilty to * * * any first or second degree felony[.]"

         {¶ 24} Prior to trial, the parties stipulated that McComb had been adjudicated a delinquent child for the commission of an offense that would have been a felony if committed by an adult, i.e., aggravated robbery, a first-degree felony. The State concedes that the trial court treated McComb's juvenile adjudication for aggravated robbery as a previous conviction for purposes of applying mandatory prison terms under R.C. 2929.13(F)(6), as McComb had no other prior criminal history. Because the trial court treated McComb's juvenile adjudication as a prior conviction to enhance his prison sentence under R.C. 2929.13(F)(6), we agree that the imposition of mandatory prison terms for the offenses at issue run afoul of Hand. Accordingly, McComb's first supplemental assignment of error is sustained.

         {¶ 25} We do not, however, find that the Supreme Court of Ohio's holding in Hand renders the weapons under disability statute McComb was convicted under, R.C. 2923.13(A)(2), unconstitutional on due process grounds. R.C. 2923.13(A)(2) provides, in relevant part, that:

[N]o person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if * * * the person is under indictment for or has been convicted of any felony offense of violence or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense of violence.

(Emphasis added.)

         {¶ 26} Pursuant to the statute, a violation of R.C. 2923.13(A)(2) requires an offender to either have a prior conviction or a prior juvenile adjudication. Unlike the statute that was struck down in Hand, the statute at issue, R.C. 2923.13(A)(2), does not treat a prior juvenile adjudication as a conviction. Rather, a prior juvenile adjudication and conviction are treated as alternative elements necessary to establish the offense of having weapons while under disability. Hand does not ban the use of a prior juvenile adjudication as an element of an offense; rather, Hand bans the use of a juvenile adjudication to enhance a penalty by treating the adjudication as an adult conviction. Hand at ¶ 37 (holding "it is fundamentally unfair to treat a juvenile adjudication as a previous conviction that enhances either the degree of or the sentence for a subsequent offense committed as an adult").

         {¶ 27} In State v. Hudson, 7th Dist. Mahoning No. 15 MA 0134, 2017-Ohio-645, the Seventh District Court of Appeals addressed the same due process argument raised by McComb with respect to R.C. 2923.13(A)(2), and declined to extend the holding in Hand to R.C. 2923.13(A)(2) based on the following reasoning:

There is no indication the Supreme Court would extend the holding in Hand to the statute defining [the having weapons while under disability] offense, and this court refuses to do so. The case at bar does not involve increasing the degree of an offense or enhancing a penalty for an offense. Rather, a juvenile with a prior adjudication for an offense that would be a felony of violence if committed by an adult is prohibited from carrying a firearm until the disability is removed by operation of law or legal process. Applying Hand in such a case ...

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