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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

DOMESTIC VIOLENCE (077)

Also see Assault; Menacing.

 

Arrest, bail and protective orders

Pleading and procedural issues

Trial issues

Defenses

Family or household member

Sufficiency of proof

Sentencing issues

Other issues

 

R.C. 2919.25 -- Domestic violence.

R.C. 2919.251 -- Considerations for setting bail in certain domestic violence cases; schedule.

R.C. 2919.26 -- Motion for temporary protection order; form.

R.C. 2919.27 -- Violating protection order or consent agreement.

R.C. 2919.271 -- Evaluation of defendant's mental condition.

R.C. 2933.16 -- Treatment as a condition of probation after conviction of certain domestic offenses.

RR.C. 2937.23(B) -- Court may order psych. exam. before setting bail on violation of TPO.

Arrest, bail and protective orders

State v. Price, 118 Ohio St. 3d 144, 2008-Ohio-1974 – Civil protection order barred proximity and made no provision for father to visit. Divorce decree made visitation at the discretion of the mother. Language in CPO made it subordinate to some terms of a decree, including visitation. Father was charged with violation of the CPO based on attempts to arrange visitation. Since visitation was contemplated, non-harassing contact was impliedly permitted.

Toledo v. Hughes, 174 Ohio App. 3d 598, 2007-Ohio-7098 – Protection order directed defendant have no contact with the named protected person, including "telephone, fax, e-mail, voicemail, delivery service, writings, or communications by any other means." After losing a suit against the protected person in small claims court he followed instructions from that court that a copy of his objections be mailed the protected party. This led to him serving six months for violation of the order. Reversed as against the manifest weight of the evidence.

State v. Hamlett, 191 Ohio App. 3d 397, 2010-Ohio-6605 – A civil protection order is effective when filed. Incident that lead to conviction for violation of a CPO took place between the date the entry was signed and the date it was filed. Conviction was not supported by the evidence.

State v. Cooper, 163 Ohio Misc. 2d 27, 2010-Ohio-6697 – Defendant charged with violation of a civil protection order found not guilty. While there was evidence order was mailed to the jail, there was no evidence of delivery to defendant. Also see State v. Mohabir, 5th Dist. No. 04CA17, 2005-Ohio-78.

State v. Finley, 146 Ohio App. 3d 548, 2001-Ohio-4347 -- A temporary protection order is ineffective unless the defendant is afforded the required hearing. This included orders issued sua sponte by a judge as a condition of bail. If the order is invalid, the subject may not be found guilty of recklessly violating its terms.

State v. Lucas, 100 Ohio St. 3d 1, 2003-Ohio-4778 -- Syllabus: "An individual who is the protected subject of a temporary protection order may not be prosecuted for aiding and abetting the restrainee under the protection order in violating said order." State v. Lucas 147 Ohio App. 3d 297, 2002-Ohio-2514, reversed. Gebradi v. United States (1932), 287 U.S. 112, followed. Accord: City of North Olmstead v. Bullington (2000), 139 Ohio App. 3d 565, holding a complicity charge was properly dismissed as wife was in a protected class and could not be punished under the complicity statute.

Bach v. Crawford, Montgomery App. No. 19531, 2003-Ohio-1255 -- Warren County denied application for domestic violence protection order. Res judicata bars consideration of those same events in a subsequent application in Montgomery County. (But shouldn't the court be able to weigh such prior events in determining whether the entire course of conduct warrants issuance of a protection order?)

State v. Blaine, Highland App. No. 03CA9, 2004-Ohio-1241 -- (1) Minister was prosecuted for violation of civil protection order issued after an ex parte hearing. Full hearing was continued for more than two months without explanation. This was unreasonable and rendered the order invalid. (2) Jury was told the order was stipulated, but it was unclear whether this meant a copy could be admitted as an exhibit, or that the parties stipulated the validity of the order. Defendant claimed this amounted to improper judicial notice. Ambiguity in the record must be resolved in favor of the defendant. Since the order was not in the same proceedings, judicial notice was improper.

State v. Holmes, 129 Ohio Misc. 2d 38, 2004-Ohio-7334 -- Probation officer found children with the defendant despite a protection order. Children were there with the consent of their mother who was a work. Necessity was not proven as the act compelling violation of the order was not or physical or natural origin. State v. Spingola (2001), 144 Ohio App. 3d 75, followed.

City of North Olmstead v. Bullington (2000), 139 Ohio App. 3d 565 -- TPO prohibited husband from having any contact with wife. When police found her in the passenger seat of a car driven by her husband she was arrested and charged with complicity in his violation of the TPO. Charge was properly dismissed as wife was in a protected class and could not be punished under the complicity statute. Compare State v. Lucas, 147 Ohio App. 3d 297, 2002-Ohio-2514.

State v. Applegate (1994), 68 Ohio St. 3d 348 -- Syllabus: "Exigent circumstances justify a warrantless entry into a residence when police are there pursuant to an emergency call reporting domestic violence, and where the officers hear sounds coming from inside the residence which are indicative of violence."

State v. Samarghandi (1997), 84 Ohio Misc. 2d 6 -- 911 call was made, then report cancelled by a second call. Consent to enter house was withdrawn. There were no signs an offense had been committed. Suppression motion granted.

State ex. rel Mormile v. Garfield Heights Municipal Court (1992), 79 Ohio App. 3d 539 -- In setting bail in a domestic violence case, a judge may sua sponte order the defendant vacate the marital home, even though such an order is not requested by either the victim or the police.

United States v. Dixon (1993), 509 U.S. 688 -- In one of two cases under consideration, the terms of the defendant's release included an order that he not commit or threaten an interfamily offense. Violation of this order was punished as criminal contempt. The government also sought to prosecute the defendant for the substantive crimes. Held that double jeopardy bars prosecution for criminal acts already punished as criminal contempt if, applying the same elements test of Blockburger v. United States (1932), 284 U.S. 299, proof of the contempt incorporated the elements of the alleged crime. Same may apply under Ohio law if the defendant is first prosecuted for violation of protective orders based on the commission of a subsequent offense.

State v. Vanselow (1991), 61 Ohio Misc. 2d 1 -- Paragraph one of the syllabus: "A defendant having been found guilty of contempt of court for violating a temporary protection order under R.C. 3113.31, may not subsequently be prosecuted under R.C. 2919.27 for the exact same act as such prosecution would violate the Double Jeopardy Clause of the Fifth Amendment..."

Cleveland v. Hogan (1998), 92 Ohio Misc. 2d 34 -- Wife didn't prevail when she sought a protection order in domestic relations court. Husband claimed domestic violence prosecution was barred by double jeopardy and collateral estoppel. Held that there was no bar as wife and city were not in privity. Also see State v. Ohm (2000), 107 Ohio Misc. 2d 19.

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Pleading and procedural issues

State v. Landers, 188 Ohio App. 3d 786, 2010-Ohio-3709 – Trial courts possess the inherent power to dismiss the cases on their dockets. Wife who filed domestic violence charge failed to appear for trial. Prosecutor indicated she was in prison. Defense moved to dismiss. Court did so, without prejudice. Court declines following State v. Spitzer (1995), 107 Ohio App. 3d 707.

Akron v. Hockman (2001), 144 Ohio App. 3d 262 -- A court may not quash the subpoena of a wife reluctant to testify against her husband because it would jeopardize their marriage and his job as a police officer. Crim. R. 17(C) only provides for motions to quash subpoenas for documentary evidence. State v. Busch (1996), 76 Ohio St. 3d 613 has been overruled by the General Assembly. State v. Antill (1964), 176 Ohio St. 61 permits courts to compel a competent spouse to testify.

State v. Ferguson, Franklin App. No. 660, 2003-Ohio-665 -- Couple were both charged with domestic violence. Neither wished to proceed and judge dismissed charged. Strictly speaking, R.C. 1901.20(A)(2) doesn't apply as the complaints were signed by a police officer. Reversed anyway, since the statute indicates a legislative intent the prosecutor have the final say on dismissal and court failed to articulate on the record any of the factors set forth in State v. Busch (1996), 76 Ohio St. 3d 613. Companion case: State v. Watkins, Franklin App. No. 02AP-659, 2003-Ohio-668.

State v. Adkins (2001), 144 Ohio App. 3d 633 -- (1) Fourteen day continuance after ex-wife failed to appear, despite prosecutor's due diligence in issuing subpoena, tolled speedy trial count. (2) No Sixth Amendment violation found in directing the son of the defendant and the prosecuting witness to leave the courtroom during his mother's testimony. (3) Court erroneously failed to consider defendant's ability to pay before imposing a fine.

State v. Busch (1996), 76 Ohio St. 3d 613 -- Syllabus: "A trial court has the discretion to sua sponte dismiss a criminal case over the objection of the prosecution where the complaining witness does not wish the case to proceed." Girlfriend did not wish to proceed on domestic violence complaints.

State v. Lewis (1998), 125 Ohio App. 3d 352 -- Following State v. Busch (1996), 76 Ohio St. 3d 613 the trial court dismissed a felony domestic violence charge because the victim did not wish to testify. Court distinguishes Busch based on victim's statement she would testify truthfully, the existence of independent witnesses, and because the defendant was not a first offender. Remanded to trial court for consideration on the merits.

State v. Mintz (1991), 74 Ohio App. 3d 62 -- Defendant was placed in a diversion program for those charged with domestic violence. This entailed entering a no contest plea, waiving his right to a speedy trial and agreeing to have finding entered at a later date. Court found entry of no contest plea alone did not amount to waiver of speedy trial rights and waiver of speedy trial was void when defendant was removed from program.

State v. Monk (1994), 64 Ohio Misc. 2d 1 -- After the defendant completed a diversion program, and a domestic violence charge was dismissed, the state could not later indict him for felonious assault based on the same conduct. Decision rests in part of Grady v. Corbin, but same result should still follow under other cases cited.

State v. Rihm (1995), 101 Ohio App. 3d 626 -- Amendment of the complaint to reflect a menacing violation of the domestic violence statute [R.C. 2919.25(C)] rather than an assault violation [R.C. 2919.25(A)] erroneously changed the identity of the offense. Nor is a menacing violation of the statute a lesser included offense of an assault violation. Also see State v. Corrill (1999), 133 Ohio App. 3d 550.

State v. Robinette (1997), 118 Ohio App. 3d 450 -- (1) Amendments to complaint changing who signed which line and adding "knowingly" did not mean the complaint as first filed was insufficient to invoke the jurisdiction of the court. (2) It was erroneous to instruct the jury that with respect to knowledge, it was to consider the mental state of the victim.

State v. Day (1994), 99 Ohio App. 3d 514 -- It was not error to deny defendant's request to have element of prior conviction for domestic violence determined out of the hearing of the jury. Nor was it error to exclude evidence of possible bias arising from custody action. See dissent. For a case comparing the trial of a prior offense element to the jury to throwing a skunk into the jury box, see State v. Rivera (1994), 99 Ohio App. 3d 325, 331.

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Trial issues

State v. Sims, 191 Ohio App. 3d 622, 2010-Ohio-6228 – Defendant thumped semi-estranged wife when he learned she was having an affair. Trial court admitted as similar acts evidence testimony regarding four prior acts of domestic violence, claiming they went to the victim’s state of mind, relying upon State v. Kelly (1993), 89 Ohio App. 3d 320. In Kelly the rationale was that the prior incidents of domestic violence went to the victim’s state of mind, explaining why she did not try to escape. Reversed. The court is critical of the rationale followed in Kelly, which amounted to stacked inferences. Here, the defendant did try to escape. Moreover, the testimony did not go to any of the matters enumerated in Evid. R. 404(B).

Toledo v. Sailes, 180 Ohio App. 3d 56, 2008-Ohio-6400 – Domestic violence victim‘s statements to an officer were made after the scene had been secured and not in response to questions calculated to meet an ongoing emergency. They were testimonial as the primary purpose was to record her version of past events. Thus they should have been excluded.

State v. Mosely, 178 Ohio App. 3d 631, 2008-Ohio-5483 – (1) Restraint during a scuffle leading to domestic violence charges was sufficient to support a kidnapping conviction. Defendant held the victim on the floor. (2) Allied offense of similar import analysis begins with comparison of the elements in accordance with Rance and Cabrales. Since this two-part test sometimes produces erroneous results, the court must then assess whether the legislature intended to permit cumulative sentencing by determining whether the legislature manifested an intention to serve two different interests in enacting the two statutes. State v. Brown, 119 Ohio St. 3d 447, 2008-Ohio-4569, applied. As to the elements of domestic violence and kidnapping, the commission of one offense doesn‘t necessarily result in the commission of the other. Not are the societal interests protected by the two statutes the same.

State v. Travis, 165 Ohio App. 3d 626, 2006-Ohio-787 -- Wife wrote out an account of an alleged incident of domestic violence shortly after the fact. It was (harmless) error to allow use of this statement to impeach her testimony, as prior to calling the witness the prosecutor had reason to believe she would change her account. Statement was admissible during the arresting officer's testimony under the present sense impression exception to the hearsay rule. But see Crawford v. Washington (2004), 124 S.Ct. 1354 and Davis v. Washington (2006), 126 S.Ct. 2266.

State v. Husseln, 152 Ohio App. 3d 67, 2003-Ohio-1369 -- Trial court erroneously barred questioning concerning prior false domestic violence charges. Under Evid. R. 608(B) a defendant is permitted, in the court's discretion, to cross-examine a victim about false prior accusations if they are clearly probative of truthfulness or untruthfulness. Also see State v. Fredrick, 2d Dist. App. No. 18996, 2002-Ohio-1195.

Farris v. Kihm, Miami App. No. 201-CA-39, 2002-Ohio-2277 -- Petitioner seeking a civil protection order also sought protection on behalf of his wife, who did not petition separately. Wife qualifies as a party, and is not subject to separation order.

State v. Smith, Seneca App. No. 13-03-25, 2003-Ohio-5461 -- Wife was not incompetent as a witness as she was the victim of the offense charged. Upon her assertion of spousal privilege and privilege against self-incrimination, court did not abuse its discretion in granting the prosecution's motion she be granted immunity.

State v. Thomas, Montgomery App. No. 19435, 2003-Ohio-5746 -- Court approves the state calling an expert concerning the behavioral characteristics of victims of domestic violence to explain why they sometimes recant prior accusations, but the use of statistical evidence in this regard is irrelevant to the guilt or innocence of the accused. Such evidence is permissible to impeach the testimony of the witness, permissible here as the alleged victim was called as a court's witness.

State v. Denis (1997), 117 Ohio App. 3d 442 -- Domestic violence defendant wished to introduce court records pertaining to complaints filed against him by ex-wife and her current husband. Court quashed subpoenas. Held to violate defendant's right to compulsory process. Records were relevant to establish bias, and also bore on credibility of the testimony of alleged victim.

State v. Warren (1995), 106 Ohio App. 3d 753 -- Denial of Sixth Amendment right to confrontation not to permit cross-examination of complainant concerning possible bias arising from pending custody action.

State v. Cornell (1998), 129 Ohio App. 3d 106 -- Court admitted domestic violence victim's statements to officers as excited utterances. Court improperly prevented defense from questioning officer about declarant's prior "misuse of 911" conviction.

State v. Pargeon 1991), 64 Ohio App. 3d 679 -- It was error to introduce expert testimony concerning battered woman syndrome at the trial of a man for domestic violence. While such testimony is appropriate when the battered wife syndrome is advanced as an affirmative defense, admission by the prosecution is improper because it relates to other wrongful acts of the defendant and because probative value is outweighed by potential prejudice.

State v. Burgess (1992), 79 Ohio App. 3d 584 -- Disorderly conduct as a fourth degree misdemeanor is not a lesser included offense of domestic violence because of the added element of failure to desist. Disorderly conduct as a minor misdemeanor is a lesser included to domestic violence as it is a lesser included offense to the comparable offense of assault.

State v. Stuber (1991), 71 Ohio App. 3d 86 -- Disorderly conduct may be a lesser included offense to domestic violence premised on causing or attempting to cause physical harm to a family member. May reverse or limit holding by the same Court of Appeals in Bucyrus v. Fawley (1988), 50 Ohio App. 3d 25.

State v. Daniel (January 11, 1996), Franklin Co. App. No. 95APA05-657, unreported (1996 Opinions 10) -- Domestic violence premised on assault is not a lesser included offense to felonious assault. Jury was instructed on lesser offenses of assault and aggravated assault and found the defendant guilty of the aggravated assault.

State v. Kelly (1993), 89 Ohio App. 3d 320 -- In a rape prosecution, testimony concerning prior acts of domestic violence was not admissible under Evid. R. 404(B), but was admissible to show rape victim's state of mind, explaining why she may have acquiesced to a degree to conduct of estranged husband.

State v. Grubb (1996), 111 Ohio App. 3d 277 -- Prosecutor used response on cross-examination as point of departure for calling defendant's ex wife to rebut his claim he had never assaulted her. (1) The prosecutor could not use cross to place the defendant's character in issue by its own questions. (2) In view of self-defense claim, doubtful that such testimony would generally be admissible as similar acts evidence. However, since defense also asserted injuries were accidental, Evid. R. 404(B) did allow testimony.

State v. Talbott (1988), 45 Ohio Misc. 2d 2 -- A prior uncounselled conviction for domestic violence may not be used to enhance a subsequent offense, making it a felony. State v. Adams (1988), 37 Ohio St. 3d 295, applied.

State v. Ireson (1991), 72 Ohio App. 3d 235 -- Where a prior domestic violence conviction is relied upon in the indictment both to increase the degree of the offense and as the basis for a specification requiring the imposition of an indefinite sentence, a defendant is not entitled to a bifurcated trial on the matter of the prior conviction. Also see State v. Allen (1987), 29 Ohio St. 3d 53.

State v. Blonski (1997), 125 Ohio App. 3d 103 -- In a felony prosecution, proof of prior convictions should not reveal the facts of those cases. Where there was no claim of accident, the specifics were not admissible as similar acts evidence, but they were admissible on the question of intent according to the majority.

Cleveland v. Shaffer (1996), 112 Ohio App. 3d 631 -- Denial of fundamental due process and a fair trial found where the judge made disparaging comments about the victim's recantation before hearing a bench trial.

State v. Wood (1996), 114 Ohio App. 3d 395 -- Mistrial was declared when victim's testimony made reference to other instances of domestic violence. No double jeopardy bar to retrial where prosecutorial negligence instead of intentional misconduct led to mistrial being declared. Also see State v. Loza (1994), 71 Ohio St. 3d 61, 70.

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Defenses

State v. Pepin-McCaffrey, 186 Ohio App. 3d 548, 2010-Ohio-617 -- Intoxicated wife punched husband in the groin after he kicked their dog. At a bench trial the judge agreed with the prosecutor that self-defense required the filing of advance notice the defense will be raised. The judge blundered through self-defense in other ways. A dog may not be “another”, but it is personal property, and Ohio law recognizes defense of property. The judge also expressed the view the defense would ultimately be unable to meet its burden of proof on the defense and erroneously excluded evidence during the state’s case.

State v. Blevins (1999), 133 Ohio App. 3d 196 -- The affirmative defense of reasonable parental discipline through the use of corporal punishment does not apply to adult children.

State v. Craun, 158 Ohio App. 3d 389, 2004-Ohio-4403 -- Reasonable parental discipline is an affirmative defense on which the defendant bears the burden of proof. Defendant was not entitled to an instruction that the state must prove the discipline was unreasonable.

State v. Adaranijo, 153 Ohio App. 3d 266, 2003-Ohio-3822 -- Dubious but mild physical discipline of unruly daughter, with no injury, did not amount to domestic violence. Nor did unfulfilled threat to beat her. Were such threats criminal, "Ralph Kramden, who was never known to hit anyone, would be in jail forever."

State v. Miller (1999), 134 Ohio App. 3d 649 -- Eighteen is the threshold at which the affirmative defense of reasonable parental discipline ceases to apply. Dissent would make defense coextensive with the duty to provide support.

State v. Jones (2000), 140 Ohio App. 3d 422 -- Children who had posed repeated discipline problems were disciplined with a belt, leaving marks. This constituted physical harm. Conviction affirmed following State v. Suchmoski (1991), 58 Ohio St. 3d 74. Choice of punishment was inappropriate and mother was lacking in reason at the time it was applied. See dissent on why expert witnesses (licensed social workers) should have been permitted to testify in defense of the appropriateness of the discipline.

Bucyrus v. Frawley (1988), 50 Ohio App. 3d 25 -- Verbal harassment alone is not enough to require an instruction on self-defense in a domestic violence prosecution. Nothing in language quoted would have caused the defendant to fear for his own safety. For the general rule on when the use of non deadly force is justified , see State v. McLeod (1948), 82 Ohio App. 155, 157; State v. Fox (1987), 36 Ohio App. 3d 78; Akron v. Dokes (1986), 31 Ohio App. 3d 24.

State v. Suchomski (1991), 58 Ohio St. 3d 74, 75 -- R.C. 2919.25 does not reach proper discipline of children, but does apply to invasion of child's legally protects interests: "Nothing in R.C. 2919.25(A) prevents a parent from properly disciplining his or her child. The only prohibition is that a parent may not cause 'physical harm' as that term is defined in R.C. 2901.01(C). 'Physical harm' is described as 'any injury.' 'Injury' is defined in Black's Law Dictionary 96 Ed. (1990) 785, as '***[t]he invasion of any legally protected interest of another.' (Emphasis added.) A child does not have any legally protected interest which is invaded by proper and reasonable parental discipline."

State v. Hicks (1993), 88 Ohio App. 3d 515 -- (1) Proper and reasonable parental discipline is an affirmative defense to domestic violence. A proper instruction is as follows: "The defendant has asserted an affirmative defense that she (he) was engaged in properly disciplining her (his) child at the time alleged. Nothing in the domestic violence statute prevents a parent from properly disciplining her (his) child. If you find by a preponderance of the evidence that the defendant was engaged in proper and reasonable parental discipline at the time, then you shall find the defendant not guilty. 'Proper,' for purposes of this defense, means suitable or appropriate. 'Reasonable,' for purposes of this defense, means not extreme or excessive." (2) Police officer was not properly qualified to express opinion that case involved abuse and not proper parental discipline. Also see State v. Hart (1996), 110 Ohio App. 3d 250.

State v. Hauenstein (1997), 121 Ohio App. 3d 511 -- Altercation between father and seventeen year old daughter was part of an argument over her use of a car. Court discusses parental discipline as an affirmative defense and finds it was established by the facts presented. Though original charge was domestic violence, it was reduced to disorderly conduct for trial to the bench. Court questions whether a charge of disorderly conduct is ever appropriate in a parent-child domestic violence situation, though finding father's acts in dealing with daughter's tantrum amounted to turbulent behavior.

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Family or household member

State v. Carswell, 114 Ohio St. 3d 210, 2007-Ohio-3723 -- Syllabus: "The term 'person living as a spouse' as defined in R.C. 2919.25 merely identifies a particular class of persons for the purposes of the domestic-violence statutes. It does not create or recognize a legal relationship that approximates the designs, qualities, of significance of marriage, as prohibited by Section 11, Article XV of the Ohio Constitution." Status is equated with standing before the law. The domestic violence statute does not create special or additional legal benefits for family or household members. See dissent.

State v. Cobb, 153 Ohio App. 3d 541, 2003-Ohio-3821 -- Cohabitation not proven where the defendant had a key and frequently spent the night, but maintained his own apartment and the victim remained married to someone else. Conviction reduced to disorderly conduct. But separate conviction for violation of a protective order stands as the issue of cohabitation had not been adjudicated at the time the order was issued.

State v. Humbarger, 149 Ohio App. 3d 30, 2002-Ohio-4160 -- Three-day visitor did not qualify as a family or household member.

State v. Jorden (1999), 134 Ohio App. 3d 131 -- In a case where neither prosecuting witness testified, court finds 911 calls and statements to responding officers were properly admitted as excited utterances, and accepts in court ID by officer whose only contact with the defendant was at the police station, but can't quite stretch far enough to get past lack of evidence that daughter had ever resided with him, qualifying her as a family or household member. Conviction is reduced to disorderly conduct as to daughter.

State v. Harris, 163 Ohio App. 3d 286, 2005-Ohio-4696 -- Victim did not testify. At the station, while she was still somewhat upset, an officer asked "who was that and what happened?" She responded that the defendant was her boyfriend and the father of her child. Statement did not qualify as an excited utterance as it was the product of reflective thought. Concurring judge would further find a Crawford confrontation violation. Accord: Davis v. Washington (2006), 126 S.Ct. 2266.

State v. Alvey, Belmont App. No. 03 BE 24, 2003-Ohio-7006 -- Regular visits and shared meals did not establish defendant and his niece, who lived next door, shared a residence. Consanguinity is not enough. State v. Scott, (February 22, 1999), 7th Dist No. 96BA14, overruled.

State v. Williams (1997), 79 Ohio St. 3d 459 -- Syllabus: "(1) The offense of domestic violence, as expressed in R.C. 2919.25(E)(1)(a) and related statutes, arises out of the relationship of the parties rather than their exact living circumstances. (2) The essential elements of 'cohabitation' are (1) sharing of familial or financial responsibilities and (2) consortium. (R.C. 2919.25[E][2] and related statutes, construed.)" At p. 465 said that the first may be shown by "provisions for shelter, clothing, utilities, and/or commingled assets" and the second by "mutual respect, fidelity, affection, society, cooperation, solace, comfort, aid of each other, friendship, and conjugal relations."

State v. Harris (1996), 109 Ohio App. 3d 873 -- Victim had raised defendant from the time he was three days old, but was not a natural or adoptive parent and was not related to the defendant, thus not meeting the definition of "family or household member." Conviction reduced to disorderly conduct.

State v. Mrus (1991), 71 Ohio App. 3d 828 -- Where the victim of domestic violence is the defendant's child, whether or not they have lived together is not an element of the offense. Though defendant had not lived with his daughter since before the effective date of the statute, prosecution did not violate the prohibition against ex post facto laws.

State v. Miller (1995), 105 Ohio App. 3d 679 -- Jury could find victim cohabited with defendant, though they did not have a permanent residence, where they shared a room at her house and that of a friend, engaged in sexual relations, travelled together, and she acted as payee of his disability benefits.

State v. Hadinger (1991), 61 Ohio App. 3d 820 -- The domestic violence statute applies to persons of the same sex living together in an intimate relationship. Also see State v. Yaden (1997), 118 Ohio App. 3d 410, 417 finding subsequent amendments to R.C. 2919.25 tacitly endorse Hadinger.

State v. Linner (1996), 77 Ohio Misc. 2d 22 -- Court rejects a written opinion of the local prosecuting attorney, delivered to the presiding judge of common pleas court, to the effect that domestic violence laws do not apply to same sex couples. A court is not an ecclesiastical tribunal empowered to enforce moral standards not codified by statute. Fundamental principles of constitutional law would preclude application of the domestic violence laws only to heterosexuals.

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Sufficiency of proof

State v. Birr, 192 Ohio App. 3d 514, 2011-Ohio-796 – Aggravated menacing and domestic violence convictions were adequately supported by the evidence where wife claimed her estranged but cohabiting husband threatened to kill the family horses following an argument, got his gun from the house, and fired three shots into the ground in her vicinity.

State v. Hohenberger, 189 Ohio App. 3d 346, 2010-Ohio-4053 – Speedy trial waiver on original charge of aggravated vehicular assault based on driving under the influence did not carry over to subsequently indicted count of vehicular assault based on recklessness, though both charges arose from the same incident. The initial charge was dismissed at trial and the second charge was not a lesser included offense to the initial charge. Defendant discharged on the vehicular assault count and awarded new trial on a domestic violence count tried at the same time because of the prejudicial effect of the testimony on the vehicular assault charge. Messy facts. Couple is out celebrating an anniversary. Intoxicated wife is seen “adjusting” her clothing after being in a ladies room stall with another man. Husband may have accidentally hit wife with the family Lincoln.

Newburgh Heights v. Cole, 166 Ohio App. 3d 826, 2006-Ohio-2463 -- In an assault and domestic violence case without a transcript, the only representation in the App. R. 9(C) statement supporting the harm element were inadmissible hearsay statements by the children. Reversed.

State v. Frazier, 158 Ohio App. 3d 407, 2004-Ohio-4506 -- Domestic violence defendant wrote the family cat from jail, saying how much he missed his kids. Violation of criminal protection order conviction affirmed. But two charges of violating the superseding civil protection order are reversed as the state failed to introduce that order. Dissent believes the terms of the protection order were too broad.

State v. Hancock, Hamilton App. No. C-030459, 2004-Ohio-1492 -- After the prosecuting witness testified she was struck accidentally, the prosecutor properly impeached using prior inconsistent statements. Since those statements did not meet any exception to the hearsay rule, they could not be received as substantive evidence of guilt. Regardless of which version of the facts was more believable, the conviction was not supported by the evidence. Defendant discharged. Trial judge also criticized for intimidation of the prosecuting witness. Also see State v. Parsons, Wood App. No. WD-03-051, 2004-Ohio-2216.

State v. Compton, 153 Ohio App. 3d 512, 2003-Ohio-4080 -- Disorderly conduct is not a lesser included offense to domestic violence premised on menacing. Nor does the evidence support a disorderly conduct conviction. Ex-wife's call for help during an argument over life vests for children being taken boating is not a violent response, nor is her standing behind car to prevent it from backing out of driveway.

State v. Drake (199), 135 Ohio App. 3d 507 -- Menacing based domestic violence conviction affirmed where defendant told wife "I'm going to burn you alive," then forty-five minutes later that he would make her a part of the river if she didn't leave Tombstone Sand and Gravel, which was his place of business. Testimony that he had previously put her arm in a cast was admissible to show her state of mind. Prior statements that he had "dug enough holes in his life and could put her in one and no one would ever know it," and mentioning his access to heavy equipment and the river are said to have been directly relevant to the second threat.

State v. Kersey, Jackson App. No. 02CA-15, 2004-Ohio-274 -- Father had custody. Mother had a civil protection order barring him from initiating any contact. Without his encouragement, father's wife called mother to see if child could be taken to an ice show during the hours of visitation. Violation of CPO order conviction was not supported by the evidence.

State v. Asher (1996), 112 Ohio App. 3d 646 -- The state's coercive treatment of the complaining witness denied the defendant his due process right to a fair trial. Wife didn't want to file charges in the first place and took the Fifth when called to the stand. The prosecutor called her before a grand jury and incorrectly tried to grant immunity. In addition, the facts alleged did not amount to a violation. (Before leaving house, husband suggested wife do so as well, as he might be tempted to hit her if she was there when he returned.)

State v. Collie (1996), 108 Ohio App. 3d 580 -- Defendant told wife "If I had a gun, I would shoot you." Though finding conviction was not supported by the evidence, as the defendant's conditional threat was not shown to have created a belief that he would imminently cause physical harm to a family member, trial courts are encouraged to in the future to receive similar acts evidence on this issue. For applications of Collie see Cincinnati v. Baarlaer (1996), 115 Ohio App. 3d 521; State v. Taylor (1996), 79 Ohio Misc. 2d 82; Cleveland v. Earnhart (2000), 110 Ohio Misc. 2d 41.

Hamilton v. Cameron (1997), 121 Ohio App. 3d 445 -- The statement "I'd probably have to blow your head off to get you to shut up" did not constitute domestic violence premised on menacing.

State v. Attaway (1996), 111 Ohio App. 3d 488 -- At time of arrest, both defendant and victim appeared injured. Victim claimed defendant struck her, but at trial recanted and said she had been injured in a fight with another woman, and defendant intervened to get her off the street and away from alcohol. Evidence was insufficient to support conviction. Analogy drawn to the risks posed by the excited utterance exception to the hearsay rule.

Youngstown v. Osso (1996), 115 Ohio App. 3d 416 -- Defendant kicked at the door of the marital residence, then left. Evidence insufficient to show he caused or attempted to cause physical harm to a family or household member.

Cleveland Heights v. Brewer (1996), 109 Ohio App. 3d 838 -- Wife denied being touched, but was impeached by prior statement to arresting officer. Neighbor described noises coming from apartment before police were called. Circumstantial evidence was sufficient to support conviction.

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Sentencing issues

State v. Woullard, 158 Ohio App. 3d 31, 2004-Ohio-3395 -- The jury was instructed that prior conviction elevated the offense to a felony, but the verdict form did not include a finding as to the prior. Defendant stood convicted of a misdemeanor.

State v. Sturgeon (2000), 138 Ohio App. 3d 882 -- Community control sanction that defendant have no contact with his children for four years is invalid, amounting to a termination of parental rights without due process. Also see State v. Burton, Hamilton App. Nos. C-020014, C-020203, 2002-Ohio-6653. Compare State v. McClure, Hamilton App. No. C-040099, 2005-Ohio-777 where a mother included her children in her attempt to commit suicide.

Disciplinary Counsel v. Mestemaker (1997), 78 Ohio St. 3d 92 -- Public reprimand to former judge who made marriage a condition of probation in several domestic violence cases, and who made derogatory remarks, such as asking a victim: "Ever think about going home...Why is America being punished?...Did they send you here to get even with us for something? Montezuma's revenge."

State v. Mueller (1997), 122 Ohio App. 3d 482 -- A court may not make it a condition of probation that the defendant execute a quit claim deed turning over to the victim his interest in jointly owned real estate.

State v. Conkle (1998), 129 Ohio App. 3d 177 -- Husband convicted of domestic violence was ordered to have no contact with wife, her residence or property during the term of probation. Affirmed. Also see State v. Brillhart (1998), 129 Ohio App. 3d 180, decided by the same panel. -- Same condition upheld with respect to wife, but not as to children, even though one child saw the assault.

State v. Kidwell (February 16, 1995), Franklin Co. App. No. 94APA06-883, unreported (1995 Opinions 558) -- (1) A court may not make it a condition of probation that there be no further arrests for domestic violence. (2) A defendant is not required to immediately appeal imposition of such a condition. The doctrine of res judicata does not bar litigation of the validity of the condition following probation revocation proceedings.

State v. Krug (1993), 89 Ohio App. 3d 595 -- It was improper to suspend the operator's license of a defendant convicted of domestic violence who, in the course of the offense, had driven his wife from a convenience store to their home. (1) Suspension was not authorized under R.C. 4507.16(A)(2) allowing suspension when an auto is used in the commission of a felony as that section only applies where an auto has been used as a weapon, to transport contraband, or is the subject of the crime charged. The section does not apply to mere use for transportation. (2) The suspension could not be justified as a special condition of probation pursuant to R.C. 2951.01(C).

In re Miller (1992), 82 Ohio App. 3d 81 -- Juvenile was found guilty of domestic violence following an altercation with his brother. Terms of probation that the defendant not dress as a female, not associate with Joe Wicks, and not go to Caesar's were invalid because they bore no relationship to the original charge, did not relate to conduct in itself criminal, did not serve the statutory ends of probation and infringed upon First Amendment freedoms.

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Other issues

State v. Daugherty, 166 Ohio App. 3d 551, 2006-Ohio-1133 -- Assault is not a lesser-included offense to misdemeanor domestic violence. Though the elements are congruent for purposes of steps two and three of Deem analysis, assault does not carry a lesser penalty. Additional consequences with respect to bail and expungement are not a part of the penalty.

Shaker Heights v. Mosley, 113 Ohio St. 3d 329, 2007-Ohio-2072 -- Applying State v. Deem the court holds disorderly conduct premised on recklessly causing inconvenience, annoyance or alarm is a lesser included offense to domestic violence premised on menacing.

State v. Stewart, Montgomery App. No. C.A. 19309, 2003-Ohio-214 -- Disorderly conduct is a lesser included offense to domestic violence by threat.

State v. Blasdell, 155 Ohio App. 3d 423, 2003-Ohio-6392 -- Disorderly conduct is not a lesser included offense to domestic violence premised on assault.

Akron v. Sutton (2000), 106 Ohio Misc. 46 -- Trial court refuses to construe police department's preferred arrest policy as rendering custodial questioning by officer responding to a domestic violence situation.

Cleveland v. Bergman (2001), 111 Ohio Misc. 2d 16 -- "This court is persuaded that the Supreme Court of Ohio's definition of 'cohabitation' in Williams [State v. Williams (1997), 79 Ohio St. 3d 459, 465] - that the essential elements of 'cohabitation,' for purposes of an domestic violence charge, are the sharing of familial responsibilities and consortium - fairly informs a reasonable person of what is prohibited, is not unconstitutionally vague, and, most importantly, is controlling here." Accord: Cleveland v. Schill 147 Ohio App. 3d 239, 2002-Ohio-1263.

Disciplinary Counsel v. Allen (2002), 94 Ohio St. 3d 129 -- Attorney landed in prison for perjury after having a client execute a false affidavit contending that the father of her children had threatened her and was armed and dangerous. Father was charged with, and arrested for, domestic violence. Attorney given an indefinite suspension.

McCowan v. McCowan (2001), 145 Ohio App. 3d 170 -- If objections to a magistrate's decision issuing a civil protection order are pending there is no final appealable order.

Cleveland v. Carpenter, Cuyahoga App. No. 82786, 2003-Ohio-6923 -- Though the defendant was found guilty of assault after initially being charged with DV, court properly refused to return his firearms. 18 U.S.C. Sec. 921(a)(33)(A)((I) still qualifies the offense as a "misdemeanor crime of domestic violence." Also see Cleveland v. Carpenter, Cleveland Municipal Court No. 2001 CRB 05664, 2003-Ohio-7349: State v. Majka, Summit App. No. 20587, 2002-Ohio-1378.

State v. Kvasne, 169 Ohio App. 3d 167, 2006-Ohio-5235 -- At the close of the state's case the trial court "dismissed" the domestic violence count on constitutional grounds. Looking to the language used at the time, and the fact the ruling came before the verdict on the other count, this actually was a dismissal and not an acquittal.

State v. Rogers, 131 Ohio Misc. 2d 1, 2005-Ohio-1730 -- The domestic violence statute is not in violation of the defense of marriage amendment. Also see State v. Burk, 164 Ohio App. 3d 740, 2005-Ohio-6727; State v. Nixon, 165 Ohio App. 3d 178, 2006-Ohio-72; State v. Rodgers, 166 Ohio App. 3d 218, 2006-Ohio-1528. Compare State v. Ward, 166 Ohio App. 3d 188 focusing on the phrase "living as a spouse" in the domestic violence statute as a proscribed quasi-marital relationship within the ban of the amendment. It does not matter that children and former spouses remain protected under the statute.

Toledo v. Easterling (1985), 26 Ohio App. 3d 59 -- When a motion for new trial is based on the recantation of testimony, court may overrule the motion if it concludes the recantation is false. Victim of domestic violence had signed affidavit to the effect that her testimony at trial had been false, but at the hearing on the motion for a new trial repudiated the affidavit saying it was merely an attempt to reconcile differences with her husband.

State v. Craig (1998), 130 Ohio App. 3d 639 -- Community control may be revoked though new domestic violence charges were dismissed when victim failed to appear for trial. But revocation is reversed because the defendant was denied his right to confrontation. Victim of new domestic violence charge did not appear, court made no finding of good cause for not allowing confrontation and arresting officer's testimony did not fall within exceptions to the hearsay rule or otherwise carry indicia of reliability.

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