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Court of Appeals Reverses Felony Domestic Violence Conviction. Engel represented Defendant.

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.

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Ohio Supreme Court Suggests That People Living Together Are Couples for Purposes of Domestic Violence Statute

The Ohio Supreme Court has held that a boyfriend can be convicted of domestic violence for an assault on his live-in girlfriend, even where the state did not prove they shared living expenses.

The case is State v. McGlothan,  Slip Opinion No. 2014-Ohio-85.

In 2011, the defendant had been living in his girlfriend in her apartment for “about a year.” He slept overnight at her apartment every night and helped her put things up on the wall when he moved into the apartment.

The Defendant’s charges arose after an argument about where he had been earlier in the day. The Defendant pushed his girlfriend and grabbed her by the shirt, detaching a permanent tracheostomy tube which enabled her to breathe. They called 911 and the tube was re-inserted without surgery.  The girlfriend told the medical staff that “her boyfriend purposely pulled her trach out.”

The Defendant was found guilty of attempted felonious assault and domestic violence.  He was sentenced to two years in prison.

The issue in this case involved whether the state was required to prove that the couple shared any living expenses, such as rent and utilities, which would demonstrate shared familial or financial responsibilities in order for the domestic violence statute to apply.

The domestic violence statute provides, “No person shall knowingly cause or attempt to cause physical harm to a family or household member.”   A “family or household member” is defined to include spouses and “person living as a spouse,” which means someone who is cohabiting with a partner.

In a prior decision, the Ohio Supreme Court had explained that the offense of domestic violence “arises out of the relationship of the parties rather than their exact living circumstances,” State v. William. The domestic violence statute applied in this case because the defendant and his girlfriend “were not strangers but rather lived together and were in a relationship from which the domestic violence arose.”

Justice Lanzinger  dissented.  The Justice warned that “merely living in the same residence will satisfy the element of cohabitation for the domestic-violence statute.”  Justice French, joined by Justice O’Neill, also dissented.  Justice French suggested that “cohabitation requires proof that the offender and victim shared in either the ‘familial or financial’ responsibilities of the household.”

 

 

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Domestic Violence Conviction for “Shove” Overturned

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.

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OH SCT Sets Rules for Use of Court Records to Prove Prior Conviction for Domestic Violence

The Ohio Supreme Court has held that a state may prove a prior conviction for domestic violence by submitting a judgment entry of the conviction.  However, this is not the exclusive method the state may use.

The case is State v. Gwen, Slip Opinion No. 2012-Ohio-5046.

In Ohio, domestic violence offenses can be elevated – including up to a felony – if the State proves that the defendant has a prior conviction for domestic violence.  This case involved how the state proves this conviction.

In this case, the defendant was arrested in 2009 after his girlfriend called 9-1-1 alleging an incident of domestic violence.  He was charged with domestic violence, as a third-degree felony under the statute applicable to third-time offenders.

At trial, in order to prove the prior convictions, the state introduced a certified journal entry from a court showing that the defendant pled guilty to domestic violence.  The state also introduced a “series of documents relating to a charge of domestic violence prosecuted against [the defendant] in another court” including a docket statement, a police incident report and other records.  The court’s journal entry was incomplete, however.

Ohio law, R.C. 2945.75(B), provides that:

(1) Whenever in any case it is necessary to prove a prior conviction, a certified copy of the entry of judgment in such prior conviction  together with evidence sufficient to identify the defendant named in the entry as the offender in the case at bar, is sufficient to prove such prior conviction.

The court held that this statute “sets forth one way” for the state to prove the prior conviction.  But the statute is not the exclusive way.  For example, other proof may be offered, including a stipulation or prior testimony from court officials.

However, the court noted that when the state chooses to use a certified copy of an entry from a court, the certified entry must contain the elements required by the Rules of Criminal Procedure.  The court explained that simply a finding of guilty is not enough; the entry must show that a sentence was imposed.  “A judgment of conviction does not exist without a sentence,” the court said.  In order to be valid, the entry must contain:  (1) the fact of the conviction, (2) the sentence, (3) the judge’s signature, and (4) the time stamp indicating the entry upon the journal by the clerk.

 

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