[Cite as State v. Holcomb, 2020-Ohio-561.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                COLUMBIANA COUNTY

                                         STATE OF OHIO,

                                             Plaintiff-Appellee,

                                                     v.

                                CHARLES P. HOLCOMB, JR.,

                                       Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                        Case No. 18 CO 0039


                                 Criminal Appeal from the
                     Court of Common Pleas of Columbiana County, Ohio
                                  Case No. 2018-CR-300

                                         BEFORE:
                David A. D’Apolito, Cheryl L. Waite, Carol Ann Robb, Judges.


                                                JUDGMENT:
                                                  Affirmed.


 Atty. Robert Herron, Columbiana County Prosecutor and Atty. Ryan P. Weikart,
 Assistant Prosecuting Attorney, 105 South Market Street, Lisbon, Ohio 44432, for
 Plaintiff-Appellee and

 Atty. Scott Essad, 721 Boardman-Poland Road, Suite 201, Youngstown, Ohio 44512,
 for Defendant- Appellant.
                                                                                       –2–


                                  Dated: February 13, 2020


 D’APOLITO, J.

          {¶1}   Appellant, Charles P. Holcomb, Jr., appeals from the November 26, 2018
judgment of the Columbiana County Court of Common Pleas convicting him for felonious
assault following a jury trial and sentencing him to five years in prison. On appeal,
Appellant argues that Appellee, the State of Ohio, presented insufficient evidence and his
conviction is against the manifest weight of the evidence. Appellant further contends he
received ineffective assistance of counsel due to his trial attorney’s failure to request an
instruction on an inferior degree offense or on a lesser included offense. Finding no
reversible error, we affirm.

                           FACTS AND PROCEDURAL HISTORY

          {¶2}   On September 14, 2018, Appellant was indicted by the Columbiana County
Grand Jury on one count of felonious assault, a felony of the second degree, in violation
of R.C. 2903.11(A)(1). Appellant was appointed counsel and pleaded not guilty at his
arraignment.
          {¶3}   A jury trial commenced on November 19, 2018.
          {¶4}   The State presented three witnesses: Jessica Taylor, an eyewitness;
Captain Fred Flati, with the East Liverpool Police Department; and Albert Fullerton, the
victim.
          {¶5}   An altercation took place on July 25, 2018, just after midnight. Taylor and
Fullerton lived on opposite sides of a duplex. The building has separate front porches
divided by a railing. The porches are accessed by several steps and are approximately
four feet above a concrete sidewalk. Appellant was staying across the street at his
mother’s home.
          {¶6}   Appellant was outside smoking with a 16-year-old neighborhood friend.
Taylor was also outside. Knowing that the minor’s mother would disapprove of her son’s
behavior, Taylor told him, “‘You better get * * * home. Your mom’s gonna be mad.’”
(11/19/18 Jury Trial T.p. 157). Taylor testified that Appellant was “very mean,” was



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“yelling” at her, crossed the street, went onto her front porch, and placed his hands on
her face. (T.p. 160). Taylor yelled for her boyfriend, who was inside, to call the police.
       {¶7}   Fullerton heard the commotion and went onto his front porch. Fullerton told
Appellant, “‘If you have a problem with [Taylor], you have a problem with me.’” (T.p. 177).
According to Taylor, Appellant then ran onto Fullerton’s porch, grabbed Fullerton’s arm
with his left hand, grabbed Fullerton by the back of the neck with his right hand, and threw
him, face-first, down the stairs onto the concrete sidewalk below. (T.p. 162-163, 178-179,
State’s Exhibit 1).
       {¶8}   Fullerton was transported via ambulance to the hospital with “life
threatening” injuries. (T.p. 190). He was placed on life support and was treated for
multiple skull fractures, cheekbone fractures, broken ribs, and a collapsed lung. At the
time of trial, Fullerton was still receiving medical treatment and suffered from memory,
hearing, and vision loss. Fullerton has no recollection of the July 25, 2018 assault.
       {¶9}   Appellant was arrested by the East Liverpool Police Department. Captain
Flati testified that Appellant was “intoxicated,” “very, very aggressive,” “uncooperative,”
“very, very angry,” “irate,” “very belligerent,” and “uncontrollable” at the police station.
(T.p. 195-196). In the booking area, Captain Flati indicated that Appellant acknowledged
throwing Fullerton down the steps. Police officers also recovered a home surveillance
video from across the street where the incident took place. The video shows the assault
as described by Taylor. (State’s Exhibit 1).
       {¶10} At the close of the State’s case, defense counsel moved for an acquittal
pursuant to Crim.R. 29, which was overruled by the trial court.
       {¶11} Appellant testified that he and Fullerton were friends. Appellant claimed
that Fullerton wanted to fight him and that he hurt Fullerton “on accident.” (T.p. 237).
Appellant testified, “I admit, I did hurt him. I hurt him real bad.” (T.p. 239). Regarding
the crime at issue, Appellant stated, “I did it. I slammed [Fullerton].” (T.p. 241). Appellant
claimed, however, that it was not his intent to hurt Fullerton. Appellant stated that Taylor
never liked him and that she was not telling the truth.
       {¶12} At the conclusion of all of the evidence, Defense counsel renewed the
Crim.R. 29 motion for acquittal, which was overruled by the trial court.




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      {¶13} The jury found Appellant guilty of felonious assault as charged in the
indictment.
      {¶14} On November 26, 2018, the trial court sentenced Appellant to five years in
prison, with 116 days of credit for time served. The court further advised Appellant that
post-release control is mandatory for three years. Appellant filed a timely appeal and
raises three assignments of error.

                           ASSIGNMENT OF ERROR NO. 1

      THE STATE FAILED TO PROVE THE ELEMENTS OF FELONIOUS
      ASSAULT.        ALTHOUGH THE CONSEQUENCES OF THE EVENTS
      WERE SERIOUS, THERE WAS NO “KNOWING” INTENT TO DO
      “SERIOUS PHYSICAL HARM” AS REQUIRED BY THE STATUTE. THE
      VERDICT WAS BOTH LEGALLY INSUFFICIENT AND AGAINST THE
      MANIFEST WEIGHT OF THE EVIDENCE.

      “When a court reviews a record for sufficiency, ‘(t)he relevant inquiry is
      whether, after viewing the evidence in a light most favorable to the
      prosecution, any rational trier of fact could have found the essential
      elements of the crime proven beyond a reasonable doubt.’             State v.
      Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 146, quoting
      State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two
      of the syllabus; Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
      560 (1979).

      In determining whether a criminal conviction is against the manifest weight
      of the evidence, an Appellate court must 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 trier of fact clearly lost its way and created such a manifest miscarriage
      of justice that the conviction must be reversed. State v. Thompkins, 78 Ohio
      St.3d 380, 387, 678 N.E.2d 541 (1997); State v. Hunter, 131 Ohio St.3d 67,
      2011-Ohio-6524, 960 N.E.2d 955, ¶ 119.* * *


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       The weight to be given to the evidence and the credibility of the witnesses
       are nonetheless issues for the trier of fact. State v. DeHass, 10 Ohio St.2d
       230, 227 N.E.2d 212 (1967). The trier of fact “has the best opportunity to
       view the demeanor, attitude, and credibility of each witness, something that
       does not translate well on the written page.” Davis v. Flickinger, 77 Ohio
       St.3d 415, 418, 674 N.E.2d 1159 (1997).

State v. T.D.J., 7th Dist. Mahoning No. 16 MA 0104, 2018-Ohio-2766, ¶ 46-48.

       {¶15} “‘(C)ircumstantial evidence and direct evidence inherently possess the
same probative value.’” State v. Biros, 78 Ohio St.3d 426, 447 (1997), quoting Jenks,
supra, paragraph one of the syllabus.
       {¶16} For the reasons addressed below, we determine the judgment is not against
the manifest weight of the evidence and further conclude it is supported by sufficient
evidence.
       {¶17} Appellant takes issue with the guilty finding for felonious assault, a felony of
the second degree, in violation of R.C. 2903.11(A)(1), which states: “[n]o person shall
knowingly * * * [c]ause serious physical harm to another[.]”
       {¶18} “A person acts knowingly, regardless of purpose, when the person is aware
that the person’s conduct will probably cause a certain result or will probably be of a
certain nature. A person has knowledge of circumstances when the person is aware that
such circumstances probably exist.” R.C. 2901.22(B).
       {¶19} This court’s review of the record establishes there was ample proof that
Appellant knowingly caused serious physical harm to Fullerton.
       {¶20} Appellant mistakenly claims that Fullerton testified that this assault
consisted of drinking which led to Appellant becoming mad, following him inside the
house, and swinging at him. The transcript reveals that Fullerton was describing another
incident that occurred about two years prior. That previous incident will not be confused
with the incident at issue here.
       {¶21} As stated, on July 25, 2018, just after midnight, Appellant was outside
smoking with a 16-year-old neighborhood friend. Taylor was also outside. Knowing that
the minor’s mother would disapprove of her son’s behavior, Taylor told him, “‘You better



Case No. 18 CO 0039
                                                                                       –6–


get * * * home. Your mom’s gonna be mad.’” (11/19/18 Jury Trial T.p. 157). Taylor
testified that Appellant was “very mean,” was “yelling” at her, crossed the street, went
onto her front porch, and placed his hands on her face. (T.p. 160). Taylor yelled for her
boyfriend, who was inside, to call the police.
       {¶22} Fullerton, Taylor’s next door neighbor, heard the commotion and went onto
his front porch. Fullerton told Appellant, “‘If you have a problem with [Taylor], you have a
problem with me.’” (T.p. 177). According to Taylor, Appellant then ran onto Fullerton’s
porch, grabbed Fullerton’s arm with his left hand, grabbed Fullerton by the back of the
neck with his right hand, and threw him, face-first, down the stairs onto the concrete
sidewalk below. (T.p. 162-163, 178-179, State’s Exhibit 1). Fullerton sustained “life
threatening” injuries. (T.p. 190). At the time of trial, Fullerton still received medical
treatment. He had no recollection of the assault.
       {¶23} Appellant was arrested.        Captain Flati testified that Appellant was
“intoxicated,” “very, very aggressive,” “uncooperative,” “very, very angry,” “irate,” “very
belligerent,” and “uncontrollable” at the police station. (T.p. 195-196). Captain Flati
indicated that Appellant acknowledged throwing Fullerton down the steps. Police officers
also recovered a home surveillance video from across the street where the assault took
place. The video, played for the jury and viewed by this court, shows the assault as
described by Taylor. (State’s Exhibit 1).
       {¶24} Appellant took the stand and testified in his own defense.           Appellant
admitted that he “hurt” and “slammed” Fullerton but claimed it was all “on accident.” (T.p.
237-241).
       {¶25} Pursuant to Jenks, supra, there is sufficient evidence upon which the jury
could reasonably conclude beyond a reasonable doubt that the elements of felonious
assault were proven. Thus, the trial court did not err in overruling Appellant’s Crim.R. 29
motion.
       {¶26} Also, the jury chose to believe the State’s witnesses. DeHass, supra, at
paragraph one of the syllabus. Based on the evidence presented, as previously stated,
the jury did not clearly lose its way in finding Appellant guilty of felonious assault.
Thompkins, supra, at 387.
       {¶27} Appellant’s first assignment of error is without merit.



Case No. 18 CO 0039
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                          ASSIGNMENT OF ERROR NO. 2

      THERE SHOULD HAVE BEEN AN INSTRUCTION ON AGGRAVATED
      ASSAULT AS AN INFERIOR DEGREE OF FELONIOUS ASSAULT. THE
      EVIDENCE SUPPORTED THAT.                 HOLCOMB’S COUNSEL WAS
      INEFFECTIVE FOR NOT ASKING FOR SUCH A CHARGE, AND THE
      TRIAL COURT ERRED BY NOT INCLUDING ONE.

                           ASSIGNMENT OF ERROR NO. 3

      THERE SHOULD HAVE BEEN AN INSTRUCTION ON THE LESSER-
      INCLUDED OFFENSE OF RECKLESS ASSAULT. THE EVIDENCE WAS
      SUFFICIENT TO SUPPORT THAT.               HOLCOMB’S COUNSEL WAS
      INEFFECTIVE FOR NOT ASKING FOR SUCH A CHARGE, AND THE
      TRIAL COURT ERRED BY NOT INCLUDING ONE.

      {¶28} Because Appellant’s second and third assignments of error call into
question whether his counsel was ineffective for not requesting an instruction on an
inferior degree offense or on a lesser included offense, we will address them in a
consolidated fashion.

      In order to demonstrate ineffective assistance of counsel, Appellant must
      show that trial counsel’s performance fell below an objective standard of
      reasonable representation, and prejudice arose from the deficient
      performance. State v. Bradley, 42 Ohio St.3d 136, 141-143, 538 N.E.2d 373
      (1989), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
      L.Ed.2d 674 (1984). Both prongs must be established: If counsel’s
      performance was not deficient, then there is no need to review for prejudice.
      Likewise, without prejudice, counsel’s performance need not be
      considered. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52
      (2000).

      In Ohio, a licensed attorney is presumed to be competent. State v. Calhoun,
      86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In evaluating trial counsel’s


Case No. 18 CO 0039
                                                                                      –8–


      performance, appellate review is highly deferential as there is a strong
      presumption that counsel’s conduct fell within the wide range of reasonable
      professional assistance.      Bradley at 142-143, citing Strickland at 689.
      Appellate courts are not permitted to second-guess the strategic decisions
      of trial counsel. State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965
      (1995).

      Even      instances      of      debatable      strategy     very      rarely
      constitute ineffective assistance of counsel. See State v. Thompson, 33
      Ohio St.3d 1, 10, 514 N.E.2d 407 (1987). The United States Supreme Court
      has recognized that there are “countless ways to provide effective
      assistance in any given case.” Bradley at 142, citing Strickland at 689.

      To show prejudice, a defendant must prove his lawyer’s deficient
      performance was so serious that there is a reasonable probability the result
      of the proceeding would have been different. Carter at 558. “It is not enough
      for the defendant to show that the errors had some conceivable effect on
      the outcome of the proceeding.” Bradley, 42 Ohio St.3d 136 at fn. 1, 538
      N.E.2d    373,   quoting Strickland at   693.   Prejudice   from    defective
      representation justifies reversal only where the results were unreliable or
      the proceeding was fundamentally unfair as a result of the performance of
      trial counsel. Carter, 72 Ohio St.3d at 558, 651 N.E.2d 965, citing Lockhart
      v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).

      ***

      [A]n ineffective assistance of counsel claim cannot be predicated upon
      supposition. State v. Watkins, 7th Dist. Jefferson No. 07 JE 54, 2008-Ohio-
      6634, ¶ 15. Likewise, proof of ineffective assistance of counsel requires
      more than vague speculations of prejudice. Id. ¶ 55, citing State v. Otte, 74
      Ohio St.3d 555, 565, 1996-Ohio-108, 660 N.E.2d 711.

State v. Rivers, 7th Dist. Mahoning No. 17 MA 0078, 2019-Ohio-2375, ¶ 20-23, 27.



Case No. 18 CO 0039
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      {¶29} Appellant specifically contends that his trial counsel was ineffective for
failing to request jury instructions on an inferior degree offense (aggravated assault) or
on a lesser included offense (reckless assault).

      The test utilized to determine if an instruction should have been given on an
      inferior degree offense is the same test used to determine if an instruction
      should have been given on [a] lesser included offense. State v. Shane, 63
      Ohio St.3d 630, 632, 590 N.E.2d 272 (1992).

      The Ohio Supreme Court has explained:

       “(A) charge on a lesser included offense is required when the facts warrant
      it and improper when the facts do not warrant it: ‘If the trier of fact
      could reasonably find against the state and for the accused upon one or
      more of the elements of the crime charged and for the state on the
      remaining elements, which by themselves would sustain a conviction on a
      lesser-included offense, then a charge on the lesser-included offense is
      required. Conversely, if the jury could not reasonably find against the state
      on an element of the crime, then a charge on a lesser-included offense is
      not only not required, but is also improper.’”

      State v. Wine, 140 Ohio St.3d 409, 2014-Ohio-3948, 18 N.E.3d 1207, ¶ 20.

      Lesser included and/or inferior degree offense instructions are not
      warranted every time “some evidence” is offered to support the lesser
      offense. Shane, 63 Ohio St.3d at 632.

      Furthermore, a trial counsel’s failure to request instructions on lesser
      included offenses is often a matter of trial strategy and does not per se
      establish ineffective assistance of counsel. State v. Griffie, 74 Ohio St.3d
      332, 658 N.E.2d 764 (1996), citing State v. Clayton, 62 Ohio St.2d 45, 402
      N.E.2d 1189 (1980). Defense counsel’s decision to forego an instruction on
      lesser included offenses, and instead seek an acquittal rather than inviting
      conviction on a lesser offense, can constitute trial strategy. Debatable


Case No. 18 CO 0039
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       strategic and tactical decisions may not form the basis of a claim for
       ineffective assistance of counsel, even if, in hindsight, it looks as if a better
       strategy had been available. State v. Cook, 65 Ohio St.3d 516, 524, 605
       N.E.2d 70 (1992).

State v. Henderson, 7th Dist. Mahoning No. 15 MA 0137, 2018-Ohio-2816, ¶ 68-71.

       {¶30} Aggravated assault is an inferior degree offense of felonious assault
because the elements of the two crimes are identical except that aggravated assault
contains the additional mitigating element of serious provocation. State v. Deem, 40 Ohio
St.3d 205, 210-211, 533 N.E.2d 294 (1988). To be serious, the provocation must bring
on extreme stress and be reasonably sufficient to incite the defendant into using deadly
force. Id. at paragraph five of the syllabus. Here, Appellant failed to provide sufficient
evidence of serious provocation to support an instruction on aggravated assault, as it is
the defense’s position that the victim fell by accident.
       {¶31} Reckless assault, in violation of R.C. 2903.13(B), is a lesser included
offense of felonious assault, in violation of R.C. 2903.11(A)(1). State v. Tolle, 12th Dist.
Clermont No. CA2014-06-042, 2015-Ohio-1414, ¶ 10. Upon reviewing the evidence
presented at trial, we find that the jury could not have reasonably concluded that Appellant
was guilty only of the lesser included offense of reckless assault, but not of the greater
offense of felonious assault.     Again, Appellant’s entire defense revolves around an
accident. As addressed, the evidence shows Appellant acted knowingly, that is, he was
aware his “conduct [would] probably cause a certain result or [would] probably be of a
certain nature.” R.C. 2901.22(B).
       {¶32} Furthermore, it appears it was trial strategy for counsel to not request an
instruction on the lesser included/inferior degree offenses. It appears Appellant was
seeking acquittal, not a conviction on a lesser offense. Appellant fails to demonstrate
ineffective assistance of counsel. See Strickland, supra. Based on the facts presented,
the trial court acted properly in not instructing the jury on aggravated assault or reckless
assault.
       {¶33} Appellant’s second and third assignments of error are without merit.




Case No. 18 CO 0039
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                                    CONCLUSION

      {¶34} For the foregoing reasons, Appellant’s assignments of error are not well-
taken. The judgment of the Columbiana County Court of Common Pleas convicting
Appellant for felonious assault following a jury trial and sentencing him to a five-year
sentence is affirmed.




Waite, P.J., concurs.

Robb, J., concurs.




Case No. 18 CO 0039
[Cite as State v. Holcomb, 2020-Ohio-561.]




         For the reasons stated in the Opinion rendered herein, the assignments of error
 are overruled and it is the final judgment and order of this Court that the judgment of
 the Court of Common Pleas of Columbiana County, Ohio, is affirmed. Costs to be
 waived.
         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.




                                       NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
