Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court Trial Court Case No.
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No.
0069384, Assistant Prosecuting Attorney, Montgomery County
Prosecutor's Office, Appellate Division, Attorney for
ALAN BRENNER, Atty. Reg. No. 0067714, Attorney for
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
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
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.
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
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.
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
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.
Assignments of Error
20} McComb's Supplemental Assignments of Error
are as follows:
I. THE TRIAL COURT ERRED WHEN IT SENTENCED MCCOMB TO
MANDATORY PRISON TERMS ON COUNTS I, II, VI, AND VIII
[aggravated robbery and felonious assault].
II. MCCOMB'S CONVICTIONS FOR COUNTS III AND X [having
weapons while under disability] MUST BE REVERSED BECAUSE THEY
ARE BASED UPON R.C. 2923.13(A)(2) WHICH IS UNCONSTITUTIONAL
BECAUSE IT VIOLATES THE DUE PROCESS CLAUSES OF ARTICLE I,
SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION.
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
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.
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 ...