[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. 
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Case No. 18 CO 0039

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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Case No. 18 CO 0039

“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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Case No. 18 CO 0039

{¶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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Case No. 18 CO 0039

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 
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Case No. 18 CO 0039

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. 
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Case No. 18 CO 0039

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 LESSERINCLUDED 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 
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Case No. 18 CO 0039

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-Ohio6634, ¶ 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. 
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Case No. 18 CO 0039

{¶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 
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Case No. 18 CO 0039

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. 
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Case No. 18 CO 0039

CONCLUSION

{¶34} For the foregoing reasons, Appellant’s assignments of error are not welltaken. 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. 
[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.