An Ohio Court of Appeals has reversed a domestic violence felony conviction for a woman in Greene County.
J. A. Engel and Mary Martin from Michael K. Allen & Associates represented the defendant.
The case is available to read here: State v. Zumwalde, 2014-ohio-1285
In January, 2013, the defendant was arrested on a charge of domestic violence after an incident with her husband. She did not dispute that her conduct constituted the offense of domestic violence, but she challenged whether the State could prove that this was a felony offense. In Ohio, a second or subsequent offense of domestic violence is a felony. A first offense is a misdemeanor.
The Defendant had a prior conviction for attempted assault, but the indictment did not identify the victim of her previous conviction for attempted assault as a family or household member. The court said that she could not have been convicted of a felony:
Upon review, we conclude that by pleading no contest to “domestic violence,” as charged in the indictment, Zumwalde essentially admitted to nothing more than a misdemeanor of the first degree absent the essential element that the prior conviction involved a family or household member. Although the indictment charges Zumwalde with having previously been convicted of Attempted Assault, it does not charge that the offense resulting in that conviction involved a victim who was a family or household member at the time of the offense; therefore, the allegations set forth in the indictment in the case before us state, at most, a misdemeanor offense.