State v. McComb

2021 Ohio 3251

• Court: Ohio Court of Appeals
• Decided: September 17, 2021
• Docket: 28946
• Status: Published

Opinion

[Cite as State v. McComb, 2021-Ohio-3251.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28946 : v. : Trial Court Case No. 2020-CRB-1131 : MATTHEW J. MCCOMB : (Criminal Appeal from Municipal Court) : Defendant-Appellant : :

...........

OPINION

Rendered on the 17th day of September, 2021.

STEPHANIE L. COOK, Atty. Reg. No. 0067101 and ANDREW SEXTON, Atty. Reg. No. 0070892, City of Dayton Prosecuting Attorneys, 335 West Third Street, Room 372, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellee

BENJAMIN W. ELLIS, Atty. Reg. No. 0092449, 817-B Patterson Road, Dayton, Ohio 45419 Attorney for Defendant-Appellant

.............

WELBAUM, J. -2-

{¶ 1} Defendant-appellant, Matthew J. McComb, appeals from his convictions in

the Dayton Municipal Court after the trial court held a bench trial and found him guilty of

one count of criminal damaging and two counts of menacing. In support of his appeal,

McComb argues that his conviction for criminal damaging was against the manifest

weight of the evidence. For the reasons outlined below, McComb’s conviction will be

affirmed.

Facts and Course of Proceedings

{¶ 2} On March 30, 2020, McComb was charged with one count of criminal

damaging in violation of R.C. 2909.06(A)(1), a misdemeanor of the second degree, and

two counts of menacing in violation of R.C. 2903.22, both misdemeanors of the fourth

degree. The charges stemmed from allegations that on the night of March 26, 2020,

McComb shouted threats of physical harm at his half-brother, Anthony Weidenborner,

and Weidenborner’s fiancé, Breyana Estle, as Weidenborner and Estle were walking into

their apartment building and entering their apartment. It was also alleged that McComb

damaged Weidenborner and Estle’s apartment door. McComb pled not guilty to the

charges, and the matter proceeded to a bench trial. The following is a summary of the

testimony and evidence that was presented at trial.

{¶ 3} McComb and Weidenborner are half-brothers who share the same father.

They reunited approximately two years ago and initially had a good relationship with one

another. For five months, McComb resided in the same Dayton apartment building as

Weidenborner and Weidenborner’s fiancé, Estle. During that time, McComb and -3-

Weidenborner’s relationship began to deteriorate due to McComb’s having a problem with

another tenant in their apartment building. Weidenborner had no problem with the tenant

at issue, and this bothered McComb. The resulting tension led to the exchange of rude

text messages between McComb and Weidenborner, which ultimately ruined their

relationship.

{¶ 4} Around 11:00 p.m. on March 26, 2020, Weidenborner and Estle were visiting

Weidenborner’s father. During this visit, Weidenborner received a phone call that

prompted him and Estle to return home to their apartment immediately. As

Weidenborner and Estle walked into the main entrance of their apartment building, they

saw McComb standing outside of his first-floor apartment. Once Weidenborner and

Estle were inside the building, McComb began shouting obscenities and threats of

physical harm at them as they walked by. Weidenborner and Estle ignored McComb

and went upstairs to their second-floor apartment. When Weidenborner and Estle

arrived at the entrance to their apartment, they noticed that the wooden front door to their

apartment had been damaged.

{¶ 5} Weidenborner described the damage to the door as “miniscule.” Trial Trans.

(Oct. 8, 2020), p. 35. More specifically, Weidenborner testified that there was a “little bit”

of a “gap where the door was supposed to be flush * * * on the door frame.” Id. at 12.

Weidenborner also testified that when he “put the key in to unlock the deadbolt it was like

really hard to turn” and almost became stuck. Id. at 12-13.

{¶ 6} Estle, on the other hand, described the damage to the door as “substantial.”

Id. at 48-49. Estle testified that the locks to the door were damaged as they were “no

longer attached to the wood.” Id. at 42. Estle also testified that the door was open a -4-

few “centimeters” or “inches” and could easily be pushed open. Id. at 41, 49. Estle

further testified that the door frame was detached and broken and that the door could not

be locked. Id. at 50-51.

{¶ 7} Although Weidenborner and Estle provided conflicting testimony as to the

severity of the damage to their apartment door, they nevertheless both testified that the

door was not damaged when they had left their apartment to visit Weidenborner’s father

45 minutes earlier. They also both testified that Weidenborner called the police

immediately after observing the damage. The Dayton Police officer to whom

Weidenborner spoke over the phone, Officer Kenneth Webster, testified that

Weidenborner reported that the door frame was cracked, the latch was bent, and the

damage prevented the door from being locked and secured.

{¶ 8} Weidenborner testified that after he called the police, he heard McComb

standing outside his and Estle’s apartment door screaming more obscenities and threats

of physical harm. During that time, Weidenborner testified that he heard a “loud thud”

on the door and felt “a shake” in the apartment. Trial Trans. (Oct. 8, 2020), p. 16-17.

Weidenborner also testified that he looked through the door’s peephole and saw McComb

pounding on the door with his fists at least ten times. Although he could not see

McComb’s feet, Weidenborner testified that he heard what he believed to be McComb

kicking the door five to ten times.

{¶ 9} Estle similarly testified to hearing McComb yelling obscenities and threats of

physical harm outside the apartment door after Weidenborner called the police. Estle

also testified that McComb began banging and pushing on the apartment door, and she

noted that she could see the door move as McComb was banging on it. Estle further -5-

testified that Weidenborner had to hold the door shut in order to keep McComb from

entering their apartment.

{¶ 10} Because of McComb’s actions, Weidenborner testified that he called the

police a second time to report an attempted break in. When Weidenborner advised

McComb that he had called the police, McComb stopped banging on the door and left

Weidenborner and Estle alone. Officer Webster and several other police officers arrived

at the scene shortly thereafter.

{¶ 11} Officer Webster testified that, while at the scene, he made contact with

Weidenborner and Estle and observed the damage to their apartment door. Both the

police and Weidenborner took pictures of the damage. The prosecution presented

Weidenborner’s pictures at trial, which were admitted into evidence as State’s Exhibit 1.

Both Weidenborner and Estle testified that McComb caused additional damage to their

door that went beyond the damage that they had initially observed when they arrived

home from visiting Weidenborner’s father.

{¶ 12} Following the presentation of evidence, the trial court found McComb guilty

of one count of criminal damaging and two counts of menacing. The trial court

sentenced McComb to a 90-day jail term for criminal damaging, all of which was

suspended, and placed McComb on a period of supervised probation not to exceed one

year. The trial court also ordered McComb to pay a $50 fine and court costs. The trial

court further ordered McComb to complete an anger management program, to undergo

a mental health assessment, and to have no contact with Weidenborner or Estle. For

each count of menacing, the trial court imposed a 30-day jail term, all of which was

suspended, and placed McComb on a period of supervised probation not to exceed one -6-

year. The trial court did not impose any fines or court costs, but it did order McComb to

complete an anger management program, to undergo a mental health assessment, and

to have no contact with Weidenborner or Estle.

{¶ 13} McComb now appeals from his convictions, raising a single assignment of

error for review.

Assignment of Error

{¶ 14} Under his assignment of error, McComb only challenges his conviction for

criminal damaging. Specifically, McComb contends that his conviction for criminal

damaging was against the manifest weight of the evidence. We disagree.

{¶ 15} “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.) State v. Wilson, 2d Dist. Montgomery No.

22581, 2009-Ohio-525, ¶ 12. When evaluating whether a conviction was against the

manifest weight of the evidence, the appellate court must review the entire record, weigh

the evidence and all reasonable inferences, consider witness credibility, 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, 678 N.E.2d 541

(1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

A judgment of conviction should be reversed as being against the manifest weight of the

evidence only in exceptional circumstances. Martin at 175.

{¶ 16} Because the trier of fact sees and hears the witnesses at trial, we must defer -7-

to the factfinder’s decisions whether, and to what extent, to credit the testimony of

particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL

476684, *4 (Aug. 22, 1997). “However, we may determine which of several competing

inferences suggested by the evidence should be preferred.” State v. Moore, 2d Dist.

Montgomery No. 26304, 2016-Ohio-5267, ¶ 8, citing Lawson at *4. “Consequently, we

defer more to decisions on what testimony should be credited, than we do to decisions

on the logical force to be assigned to inferences suggested by evidence, no matter how

persuasive the evidence may be.” State v. Brooks, 2d Dist. Montgomery No. 21531,

2007-Ohio-1029, ¶ 28, citing Lawson at *4.

{¶ 17} As previously noted, McComb is only challenging his conviction for criminal

damaging in violation of R.C. 2909.06(A)(1). Pursuant to that statute no person shall, by

any means, knowingly “cause, or create a substantial risk of physical harm to any property

of another without the other person’s consent[.]” R.C. 2909.06(A)(1). The phrase

“physical harm to property” is defined as “any tangible or intangible damage to property

that, in any degree, results in loss to its value or interferes with its use or enjoyment.”

R.C. 2901.01(A)(4). “[L]oss in value can generally be inferred from observable damage

and when the damage interferes with the use or enjoyment.” (Emphasis and citations

omitted.) State v. Reams, 3d Dist. Auglaize No. 2-04-28, 2005-Ohio-1085, ¶ 15.

“ ‘Physical harm to property’ does not include wear and tear occasioned by normal use.”

R.C. 2901.01(A)(4).

{¶ 18} In support of his appeal, McComb argues that the weight of the evidence

presented at trial did not establish that he caused “physical harm to any property of

another.” Specifically, McComb claims that the conflicting witness testimony presented -8-

at trial established that the physical damage to the apartment door in question existed

prior to him pounding on the door. Thus, McComb asserts that the weight of the

evidence simply established that he was pounding on an already damaged door, not that

he caused the damage. We disagree.

{¶ 19} Although the witness testimony in this case conflicted on the issue of how

severely Weidenborner and Estle’s apartment door was damaged prior to McComb

pounding on it, there was no conflict in the testimony as it related to McComb’s causing

additional damage to the door. Both Weidenborner and Estle testified that they observed

the door sustain additional damage as a result of McComb’s actions. See Trial Trans.

(Oct. 8, 2020), p. 21, 24-25, and 50-51. Weidenborner testified that he observed the

door being damaged as McComb was pounding on it and noted that he “was watching

the door cracking and flex every time [McComb] would hit it.” Id. at 25. Weidenborner

also testified that the “inside [door] frame didn’t even have a crack or anything” when he

initially came home, but he later saw the frame crack as McComb was pounding on the

door. Id. at 25-26. Estle similarly testified that the apartment door sustained additional

damage as a result of McComb’s pounding on the door, and she noted that the additional

damage she observed was “on the inside door frame [which] got cracked when [McComb]

was trying to push through.” Id. at 51.

{¶ 20} After weighing all the evidence and reasonable inferences, we find that the

weight of the evidence established that additional, observable damage was done to

Weidenborner and Estle’s apartment door as a result of McComb’s pounding on it.

Contrast Reams, 3d Dist. Auglaize No. 2-04-28, 2005-Ohio-1085, at ¶ 14-16 (conviction

for criminal damaging was held to be against the manifest weight of the evidence where -9-

the evidence was greatly conflicting on whether there was any new damage to the

property). Therefore, we cannot say that the trial court lost its way and created a

manifest miscarriage of justice by finding McComb guilty of criminal damaging, as the

weight of the evidence established that McComb knowingly caused physical harm to the

property of another without consent. Accordingly, McComb’s conviction for criminal

damaging was not against the manifest weight of the evidence.

{¶ 21} For the reasons outlined above, McComb’s sole assignment of error is

overruled.

Conclusion

{¶ 22} Having overruled McComb’s sole assignment of error, the judgment of the

trial court is affirmed.

DONOVAN, J. and HALL, J., concur.

Copies sent to:

Stephanie L. Cook Andrew Sexton Benjamin W. Ellis Hon. Daniel G. Gehres