Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office
Also see Assault;
Arrest, bail and protective orders
Pleading and procedural issues
Family or household member
Sufficiency of proof
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
R.C. 2919.271 -- Evaluation of defendant's
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.
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. 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.
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.
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
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,
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
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
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
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
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Pleading and procedural issues
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,
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,
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
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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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
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,
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.
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
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
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
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
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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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
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
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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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
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
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
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
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,
State v. Williams (1997), 79 Ohio St. 3d
459 -- Syllabus: "(1) The offense of domestic violence, as expressed in
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] 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
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
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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Newburgh Heights v. Cole, 166 Ohio App.
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.
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,
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
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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.
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
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
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
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
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
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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.
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.
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
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,
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.
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,
State v. Majka, Summit App. No. 20587,
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
2005-Ohio-6727; State v. Nixon, 165 Ohio App. 3d 178,
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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