An Ohio Court of Appeals has overturned a conviction for domestic violence where the defendant only “shoved” the alleged victim.
The case is State v. Kemper, 2012-Ohio-5958.
The defendant was in a romantic relationship with his girlfriend for approximately two years. They lived together until they broke up in October 2009. The next month, the Defendant returned to the home he once shared with his girlfriend to retrieve his clothes and television. He believed that he had her permission to return, and asked his friend to accompany him.
The girlfriend did not permit entry so the Defendant shoved open the door, also perhaps shoving his girlfriend. She called 911. The two then struggled over the television.
The girlfriend obtained a protection order against the defendant.
Several months later, the girlfriend reported to police that the defendant had come by her home. She also believed that the defendant had arranged for someone to break into her home and was harassing her on the telephone.
The defendant was convicted to assault and violating the protection order.
The conviction for assault was based on the girlfirend’s testimony about a “shove.” The court noted that “a shove may satisfy the physical harm element of assault.” However, a shove must be combined with some intent to cause harm. In this case, the court felt that there was insufficient evidence to establish that the defendant was aware that shoving his girlfriend would probably cause physical harm. Significantly, the evidence at trial did not include anything to indicate that the girlfriend “suffered any physical harm.”
In regards to the protection order violation, the court found the testimony of the ex-girlfriend to be credible that the Defendant was within two blocks of her and that he made contact with her, thus violating the protection order.
Our view, based on handling some of the most difficult and important domestic violence cases in Ohio, is that this may be a unique case. Courts often “side” with the victim on the belief that domestic violence is characterized by an abuser’s effort to maintain control in the relationship.