State v. Clay , 181 Ohio App. 3d 563 ( 2009 )

{¶ 62} I respectfully dissent. I would find appellant's second assignment of error dispositive of the case and vacate his conviction.

{¶ 63} In his second assignment of error, appellant argues that there is insufficient evidence that he knowingly caused physical harm to Hamann or that Hamann was a family or household member for purposes of R.C. 2919.25 and, therefore, that he cannot be convicted of domestic violence. Although I agree with the majority that when the evidence is viewed in a light most favorable to the state, there was sufficient evidence that appellant knowingly caused Hamann physical harm, I am not convinced that there was sufficient evidence that Hamann was appellant's family or household member, as defined by R.C. 2919.25(F).

{¶ 64} A victim's status as a "family or household member" is a required element of the offense of domestic violence. State v. Hannon, 4th Dist. No. 04CA20, 2005-Ohio-874, 2005 WL 477858. Since appellant is not Hamann's spouse or former spouse, the only remaining possibility under the definition in R.C. 2919.25(F) is that Hamann is "a person living as a spouse" with appellant. "A person living as a spouse" is defined as "a person who is living or has lived with the offender in a common law marital relationship, who otherwise is cohabiting with the offender, or who otherwise has cohabited with the offender within one year prior to the date of the alleged commission of the act in question." R.C. 2919.25(F)(2). The state must prove that the offender and victim are "family" or "household members" through evidence that they are living together as spouses, i.e., "cohabiting." See State v. Williams (1997),79 Ohio St.3d 459, 683 N.E.2d 1126.

{¶ 65} In her dissent in State v.Carswell, 114 Ohio St.3d 210, 2007-Ohio-3723,871 N.E.2d 547, Justice Lanzinger acknowledged that the domestic-violence statute is specifically designed to protect two people who are more than merely roommates. "The General Assembly's classification of `person living as a spouse' is arecognition by law of the relationship of unmarried and cohabiting individuals based solely on the similarity of that relationship to marriage. It is a status that enables a victim of assault the additional protection offered by the domestic violence statutes. Domestic violence is a crime quite different from a general assault, precisely because of the special intimacy of the parties." (Emphasis sic.) Id. at ¶ 50 (Lanzinger, J., dissenting).

{¶ 66} Had the General Assembly wanted to extend the protection of R.C. 2919.25 to those living in a familial relationship, it was "not prevented from expanding the statutes to others, such as `all those living together in a domicile,'" which it chose not to do. Id. at ¶ 52.

{¶ 67} A criminal statute must be strictly construed against the state. State v. Jordan (2000),89 Ohio St.3d 488, 492, 733 N.E.2d 601. I do not agree that the state presented sufficient evidence that Hamann was cohabiting with appellant. Instead, the evidence suggests that appellant and Hamann were more akin to roommates. Hamann's testimony was that she and appellant kept separate bank accounts and that although they resided in the same household, they did not have a physically intimate relationship and were not "living together" as the term is commonly used. At most, the evidence shows that Hamann was staying at the Biddulph Road apartment with appellant while she looked for employment in Cleveland. Thus, I do not believe that the evidence establishes cohabiting, as defined in Williams, supra.

{¶ 68} The state's failure to present sufficient evidence that Hamann was living as appellant's spouse is fatal to the charge of domestic violence, and I would sustain appellant's second assignment of error and reverse his conviction.