[Cite as State v. Halcomb, 2013-Ohio-1301.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SENECA COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 13-12-13

        v.

ODIA HALCOMB, JR.,                                        OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Seneca County Common Pleas Court
                           Trial Court No. 11-CR-0228

                                     Judgment Affirmed

                             Date of Decision:   April 1, 2013




APPEARANCES:

        Jonathan G. Stotzer for Appellant

        Derek W. DeVine and Rhonda L. Best for Appellee
Case No. 13-12-13


SHAW, J.

      {¶1} Defendant-appellant, Odia Halcomb, Jr. (“Halcomb”), appeals the

judgment of the Seneca County Court of Common Pleas journalizing his

conviction by a jury for aggravated burglary and ordering him to pay restitution.

      {¶2} On March 7, 2011, Halcomb’s step-mother, Donna Halcomb

(“Donna”), received multiple phone calls from her brother-in-law, Dominic

Buccione (“Dominic”), concerning a letter his wife, Cheryl Buccione (“Cheryl”) ,

received regarding one of Donna’s student loans. The letter indicated that Donna

had listed Cheryl as a reference and could not be located. The letter sought

Cheryl’s assistance in obtaining Donna’s forwarding information.         Cheryl is

Donna’s sister and by all accounts Donna and Cheryl do not get along. The record

indicates that the conversations between Dominic and Donna led to a heated

exchange of words.

      {¶3} After her conversations with Dominic, Donna picked up Halcomb and

drove to the Buccione’s home to retrieve the letter. Upon answering the door,

Cheryl and Dominic told Donna and Halcomb to leave. Nevertheless, a physical

altercation ensued between the parties on the front porch, which resulted in Cheryl

being thrown from the porch. Dominic went back into his home to get a baseball

bat. Halcomb entered the home and seized the bat from Dominic. The scuffle




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between Dominic and Halcomb continued into the home.             Then, at Donna’s

direction, Halcomb took a piece of mail from a table inside the home and left.

       {¶4} Cheryl and Dominic each suffered injuries as a result of the incident.

Cheryl was transported to the hospital by ambulance and was treated for a massive

tissue contusion on her thigh. Dominic initially declined to go to the hospital for

his injuries, but changed his mind after experiencing a great deal of pain. There,

Dominic was treated for multiple minor injuries and a broken rib.

       {¶5} On October 20, 2011, the Seneca County Grand Jury indicted

Halcomb on one count of aggravated burglary in violation of R.C. 2911.11(A)(1),

(B), a first degree felony; one count of felonious assault in violation of R.C.

2903.11(A)(2), (D)(1)(a), a second degree felony; and one count of assault in

violation of R.C. 2903.13(A), (C), a misdemeanor of the first degree. A jury trial

was held on January 26, 27, and 30, 2012. At the end of the trial, the jury returned

verdicts of not guilty on the felonious assault and assault charges. However, the

jury also returned a verdict of guilty on the aggravated burglary charge and

specifically found that Halcomb did not act in self-defense when he committed the

aggravated burglary.

       {¶6} The trial court held a sentencing hearing on February 10, 2012. The

trial court sentenced Halcomb to serve six years in prison and ordered Halcomb to

pay restitution in the amount of $7,015.94, which included compensating Cheryl


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and Dominic for the economic loss resulting from their injuries. Halcomb appeals

from this judgment and raises the following assignments of error.

                        ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT ERRED IN ORDERING RESTITUTION
       FOR EXPENSES RELATED TO PHYSICAL HARM CAUSED
       AS [HALCOMB] WAS SPECIFICALLY FOUND NOT
       GUILTY OF A PHYSICAL HARM TO EACH VICTIM, BY
       BEING FOUND NOT GUILTY OF COUNT TWO
       (FELONIOUS ASSAULT) & NOT GUILTY OF COUNT
       THREE (ASSAULT).

                       ASSIGNMENT OF ERROR NO. II

       THE VERDICT OF GUILTY TO AGGRAVATED
       BURGLARY BY THE JURY IS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE AND MUST BE REVERSED.

       {¶7} For ease of discussion, we elect to discuss Halcomb’s assignments of

error out of order.

       {¶8} In the second assignment of error, Halcomb claims that his conviction

for aggravated burglary is against the manifest weight of the evidence.              In

determining whether a conviction is against the manifest weight of the evidence, a

reviewing court must examine 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 and a new trial ordered.’ ” State v. Thompkins, 78 Ohio St.3d 380, 387


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(1997), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A

reviewing court must, however, allow the trier of fact appropriate discretion on

matters relating to the weight of the evidence and the credibility of the witnesses.

State v. DeHass, 10 Ohio St.2d 230, 231 (1967).

       {¶9} The jury convicted Halcomb of aggravated burglary in violation of

R.C. 2911.11(A)(1), (B), which states in pertinent part:

       (A) No person, by force, stealth, or deception, shall trespass in
       an occupied structure or in a separately secured or separately
       occupied portion of an occupied structure, when another person
       other than an accomplice of the offender is present, with purpose
       to commit in the structure or in the separately secured or
       separately occupied portion of the structure any criminal
       offense, if any of the following apply:

       (1) The offender inflicts, or attempts or threatens to inflict
       physical harm on another;

       (B) Whoever violates this section is guilty of aggravated
       burglary, a felony of the first degree.

       {¶10} The following testimony relative to Halcomb’s conviction for

aggravated burglary was elicited before the jury at trial.

       {¶11} In the prosecution’s case-in-chief, Dominic testified that not long

after he spoke to Donna on the phone, Donna and Halcomb arrived at his home

around 7:00 p.m. Dominic recalled that when he answered the door he noticed

that Donna was irate, but that Halcomb remained quiet. Dominic maintained that

he stood in the doorway and told Donna and Halcomb to leave. When they failed


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to do so, Cheryl came to the front door to confront her sister. Dominic testified

that Halcomb grabbed Cheryl, threw her off the front porch, and forced his way

into the home. Dominic testified that, in an act of self-defense, he grabbed a

baseball bat from a room adjacent to the front door. Dominic recalled seeing

Halcomb come after him in the house and then he “went down.” (Trans. at 123).

       {¶12} Dominic explained that he momentarily passed out and that when he

regained consciousness he saw Halcomb in the kitchen with his bat. Dominic

recalled that he tried to grab the bat from Halcomb, but Halcomb “started

jamming” the bat at him. (Id.). Dominic stated that he was crouched down near

the couch and attempted to pick up his phone from the coffee table to call 9-1-1,

but Halcomb tried to wrestle the phone away from him.

       {¶13} Dominic stated he then yelled to Cheryl, who was now in the

kitchen, to call 9-1-1. He recalled Halcomb approaching Cheryl and attempting to

wrestle the phone from her.        Dominic remembered hearing Donna yell to

Halcomb, “Get the mail. Get the mail.” Dominic testified he saw Halcomb take

mail from the kitchen table and then leave the house with his bat. Dominic

testified that as a result of Halcomb’s conduct that night he received multiple

bruises on his arms and on the side of his head, and that his rib was also broken.

       {¶14} Cheryl also provided testimony for the prosecution. Cheryl testified

that after Dominic answered the door, she approached the doorway, and observed


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Donna screaming at Dominic. Cheryl stated that she told Donna to get off of her

property. Cheryl recalled that she went to step forward and Halcomb grabbed her

leg and threw her off the front porch.1 Cheryl maintained that she did nothing to

provoke Halcomb’s conduct.

        {¶15} Cheryl testified that after getting up from the ground, she went into

the house to call 9-1-1 and observed Dominic kneeling by the couch.                                   She

remembered seeing Dominic’s bat in Halcomb’s hand. Cheryl testified that she

saw Halcomb hit Dominic with the bat and then try to take his phone. She

testified that Halcomb then approached her and tried to grab the phone from her.

Cheryl recalled hearing Donna yell “Get the mail,” “Get the mail,” while she

struggled with Halcomb. She stated that after Halcomb was unsuccessful in taking

her phone, he took some mail and left. Cheryl testified she suffered massive tissue

damage as a result of Halcomb throwing her from the front porch.

        {¶16} Another witness for the prosecution was Lt. Aaron Russell of the

Tiffin Police Department. He testified that on the night of March 7, 2011, he

received a call from dispatch stating that a man had thrown a woman off of a

porch. After responding to the call, Lt. Russell testified that he spoke to both

Dominic and Cheryl, who relayed their versions of the events to him. Lt. Russell

recalled that Dominic was confused that night and could not remember the details


1
 Testimony at trial indicated that the porch sat approximately a foot and a half off the ground and did not
have railings.

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of the incident2 and, contrary to her testimony on the stand, Cheryl stated to Lt.

Russell that night that she never actually saw Halcomb hit Dominic with the bat.

        {¶17} Lt. Russell testified that he took several pictures that night, which

included images of scratches and bruises on Dominic’s body and images of the

Buccione home in complete disarray with several pieces of furniture overturned.

These pictures were admitted at trial and submitted to the jury.

        {¶18} Lt. Russell also testified that when he first confronted Donna she told

him that she witnessed a neighbor barge into the Buccione home and knock

Dominic down. She also claimed not to know the neighbor. When Lt. Russell

spoke to Halcomb, Halcomb told Lt. Russell that he did not know about the

incident, was never at the Buccione home, and that he had been home all day on

the date in question except for going to lunch with Donna and his father. Both

Donna and Halcomb later admitted on the stand that they lied to Lt. Russell when

they made these statements.

        {¶19} Donna provided testimony for the defense.                          She testified that

Dominic was harassing her over the phone that afternoon. Donna testified that she

went to the Buccione home to retrieve the letter because she needed to give it to

her Bankruptcy attorney. She explained that Halcomb accompanied her because

she was taking him to pick up his laundry across town.


2
 There was medical testimony at trial which indicated that Dominic had a blood-alcohol content of .178.
Dominic admitted to drinking three and a half beers and taking some pain medication earlier that evening.

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       {¶20} Donna recalled knocking on the door multiple times before Dominic

answered and rudely inquired who they were and why they were there. Donna

testified that Cheryl came “flying to the door” and yelled at them to leave. (Trans.

at 387). Donna testified that Cheryl attempted to kick Halcomb in the “private

area” when Halcomb grabbed her leg and tried to stop her. (Id.). Donna recalled

Cheryl then jumped on Halcomb’s back. Donna grabbed Cheryl and pulled her off

of Halcomb, which resulted in Cheryl falling off of the front porch.

       {¶21} Donna remained on the front porch while Halcomb was inside the

home. She claimed that she did not see what happened inside the home because

she was with Cheryl on the front porch. She admitted to screaming “give me my

F’ing letter.” (Trans. at 388). She remembered seeing Dominic with the bat

initially, but then Halcomb performed a “wrestling move—[l]ike a take-down” to

get the bat away from Dominic. (Trans. at 391). Donna recalled Halcomb was

still holding the bat when he exited the Buccione home. At that time, Donna

remembered Halcomb stating to her “no idiot needs a bat.” (Trans. at 390). She

testified that she and Halcomb simply left the house and went to pick up his

laundry.

       {¶22} Halcomb also testified in his defense. He recalled Donna knocking

on the Bucciones’ front door multiple times before Dominic answered. Halcomb

remembered introducing himself to Dominic and Donna asking for her mail.


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Halcomb testified “and that’s when Cheryl, out of nowhere, tries to field goal kick

me in the balls.” (Trans. at 440). Halcomb recalled grabbing Cheryl by the ankle

with both hands and pulling her down on the porch. Halcomb testified that

Dominic then stated “you done fucked up” and pulled Halcomb inside the

doorway. (Trans. at 441). Halcomb explained that he and Dominic engaged in a

little tussle and he wrestled Dominic down to the ground. Halcomb admitted to

hitting Dominic with his hands in self-defense.

           {¶23} Halcomb testified he attempted to leave the house when he saw

Dominic with a baseball bat ready to swing at him. Halcomb explained that he

then did a “Double A take-down” wrestling move on Dominic to take the bat away

from him. (Trans. at 443). Halcomb denied entering the house past more than a

few feet from inside the threshold.                     Halcomb also denied hitting or jabbing

Dominic with the bat. Halcomb testified that while Dominic was still on the

ground, he grabbed an envelope off a table next to the front door. Halcomb stated

he then walked out the door, threw the baseball bat in the yard and left.3

           {¶24} On appeal, Halcomb argues that he cannot be found guilty of

committing aggravated burglary, without also being found guilty of committing

assault and felonious assault. Thus, Halcomb contends that the disparate verdicts




3
    Notably, Lt. Russell testified that the baseball bat was never recovered.

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demonstrate that the jury clearly lost its way and that his conviction for aggravated

burglary was against the manifest weight of the evidence.

       {¶25} The Second District aptly stated the following regarding the

legislative intent in broadening the offense of aggravated burglary from its

common law roots:

       Since 1974, when the breaking-and-entering offenses were
       rewritten, there have been three burglary-type offenses:
       breaking and entering, burglary, and aggravated burglary. R.C.
       2911.11; 2911.12; 2911.13. Breaking and entering concerns the
       trespass of an unoccupied structure; burglary concerns
       trespassing in an occupied structure when someone other than
       an accomplice is likely to be present; and, as stated above,
       aggravated burglary adds the element that the offender inflicts
       or attempts to inflict physical harm or has a deadly weapon.
       The distinguishing factor among these offenses is “the relative
       potential for harm to persons,” with aggravated burglary
       carrying the greatest risk of harm. 1973 Legislative Service
       Commission Notes to R.C. 2911.11.

       In enacting the statutes proscribing these three offenses, the
       General Assembly removed distinctions between daytime and
       nighttime break-ins, the type of property entered, and the
       motive for entering. State v. Gardner, 118 Ohio St.3d 420, 2008-
       Ohio-2787, ¶ 66. The Supreme Court of Ohio has determined
       that “the General Assembly’s intent * * * was to broaden the
       concept of burglary from an offense against the security of the
       home to one against the security of persons who may be inside.”
       Gardner at ¶ 31.

State v. Marriott, 189 Ohio App.3d 98, 2010-Ohio-3115, ¶¶ 27-28 (2d Dist.)

(emphasis added).




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       {¶26} Halcomb’s argument on appeal runs contrary to the underlying

principles of the aggravated burglary offense, which are that aggravated burglary

is an offense against the security of the persons who may be inside a home and it

is elevated from the other burglary offenses due to the high potential of harm to

persons inside a home as a consequence of the defendant’s actions. Moreover, a

comparison of the elements demonstrates that the aggravated burglary charged in

this case was not predicated upon whether Halcomb knowingly caused or

attempted to cause Cheryl physical harm or whether he knowingly caused or

attempted to cause Dominic serious physical harm—which are each essential to

proving the assault and felonious assault charges respectively.

       {¶27} In the instant case, the evidence establishes that Halcomb entered the

Buccione home without permission and took personal property from a table inside

of their home. The evidence also establishes that during Halcomb’s commission

of this act, Cheryl and Dominic suffered physical harm.           Notably, the jury

specifically found that Halcomb did not act in self-defense when he committed the

aggravated burglary.

       {¶28} In sum, there was ample evidence presented at trial for the jury to

conclude beyond a reasonable doubt that Halcomb committed the offense of

aggravated burglary. Furthermore, the jury’s verdict finding Halcomb committed

aggravated burglary was not dependent on the jury also finding Halcomb


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committed assault and felonious assault. Therefore, we conclude that the jury’s

verdict convicting Halcomb of aggravated burglary is not against the manifest

weight of the evidence. Halcomb’s second assignment of error is overruled.

                             First Assignment of Error

       {¶29} Halcomb argues in the first assignment of error that the trial court

erred in imposing restitution for the economic loss sustained by Dominic and

Cheryl as a result of Halcomb’s commission of the aggravated burglary. Halcomb

again argues that the jury verdicts finding him not guilty of assault and felonious

assault prevent the trial court from ordering him to pay restitution for Cheryl’s and

Dominic’s injuries.

       {¶30} Despite Halcomb’s contentions on appeal, we find that the jury

verdict convicting Halcomb of aggravated burglary provided the trial court with an

independent basis—regardless of whether separate assault and felonious assault

charges were ever filed—to order Halcomb to pay restitution to Cheryl and

Dominic for the economic loss stemming from the injuries they received as a

result of Halcomb’s conduct constituting the aggravated burglary offense.

       {¶31} Revised Code Section 2929.18(A)(1) permits a trial court to order a

convicted felon to make restitution to the victims of his crime “in an amount based

on the victim’s economic loss.” Economic loss is defined by R.C. 2929.01(L) as,

“any economic detriment suffered by a victim as a direct and proximate result of


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the commission of an offense and includes any loss of income due to lost time at

work because of any injury caused to the victim, and any property loss, medical

cost, or funeral expense incurred as a result of the commission of the offense.”

Here, the prosecution presented competent credible evidence, by way of testimony

and exhibits, of the actual economic loss suffered by Cheryl and Dominic as a

result of Halcomb committing the aggravated burglary. Thus, restitution for their

medical expenses and the loss of income due to lost time at work incurred as a

consequence of the aggravated burglary is expressly authorized by R.C.

2929.18(A)(1). Therefore, we find no error in the trial court’s restitution order.

Halcomb’s first assignment of error is overruled.

       {¶32} Based on the foregoing, the judgment of the Seneca County Court of

Common Pleas is affirmed.

                                                             Judgment Affirmed

PRESTON, P.J. concurs.

WILLAMOWSKI, J., concurs in Judgment Only.

/jlr




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