State v. Pash ( 2010 )

[Cite as State v. Pash, 2010-Ohio-1267.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MERCER COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 10-09-13
v.
JOHN M. PASH, OPINION
DEFENDANT-APPELLANT.
Appeal from Celina Municipal Court
Trial Court No. 09CRB00198
Judgment Affirmed
Date of Decision: March 29, 2010
APPEARANCES:
Donna M. Post for Appellant
Kevin M. McKirnan for Appellee
Case No. 10-09-13
SHAW, J.
{¶1} Defendant-Appellant John M. Pash (“Pash”) appeals the August 3,
2009 Judgment Entry of the Celina Municipal Court convicting and sentencing
him for a charge of Domestic Violence in violation of R.C. 2919.25(C).
{¶2} Pash and Paula Ybarra (“Paula”) began their relationship shortly
before Thanksgiving of 2008. Around Christmas of that year, Pash moved into
Paula’s home located in Coldwater, Ohio. Pash continued to live with Paula until
early March of 2009. On March 4, 2009, Paula filed a complaint with the
Coldwater Police Department alleging that Pash told Paula “I will kill you.” Paula
alleged that Pash made this threat on March 3, 20091 in response to Paula’s
demand that Pash move out. The complaint further alleged that Pash’s statement
caused Paula to believe that Pash would commit imminent physical harm to her.
{¶3} The case proceeded to trial on July 24, 2009. During the
proceedings, Paula testified that she and Pash had maintained a sexual relationship
and that Pash had made repeated promises to marry her. Paula further testified
that Pash quit his job two weeks after they met and as a result, she supported Pash
during the three months that he lived in her home. Paula stated that in addition to
1
The complaint states that the incident occurred on March 4, 2009. However, the testimony elicited at trial
stated that Pash moved out prior to this date. Further testimony revealed that the incident in question
occurred either on March 2 or March 3, 2009. In its Judgment Entry, the trial court found that the
testimony concerning the date of the incident was “close enough to permit the State to proceed and not []
detrimental to Mr. Pash in his defense.”
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paying all the household bills, she also paid Pash’s child support to prevent him
from going to jail.
{¶4} Paula further testified that during the incident in question, she and
Pash were in the midst of an argument when Pash stated to Paula that she would
be “very sorry” if she forced him to move out. Paula stated that during this
incident Pash repeatedly threatened that he would kill her if she made him leave.
Paula testified that Pash’s threat caused her to fear for her life and prompted her to
file the complaint in this case. Pash also testified admitting that he lived with
Paula, but denying that they maintained a sexual relationship or that he ever made
any threats to Paula.
{¶5} Based on the testimony elicited at trial, the trial court found Pash
guilty of Domestic Violence in violation of R.C. 2919.25(C) which states, in
pertinent part:
No person, by threat of force, shall knowingly cause a family or
household member to believe that the offender will cause
imminent physical harm to the family or household member.
{¶6} Pash appeals now appeals to this Court asserting two assignments of
error.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED IN FINDING APPELLANT
GUILTY OF DOMESTIC VIOLENCE PURSUANT TO
SECTION 2919.25(C) AS THE CONVICTION WAS NOT
SUPPORTED BY SUFFICIENT EVIDENCE
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ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED IN FINDING APPELLANT
GUILTY OF DOMESTIC VIOLENCE PURSUANT TO
SECTION 2919.25(C) AS THE APPELLANT DID NOT
COHABITATE WITH THE VICTIM
{¶7} For ease of discussion, we elect to discuss the assignments of error
out of order.
The Second Assignment of Error
{¶8} In his second assignment of error, Pash asserts that the trial court
erred in finding him guilty of Domestic Violence in violation of R.C. 2919.25(C)
because Paula was not a family or household member which is an essential
element of the offense. Specifically, Pash argues that he and Paula did not
cohabitate and therefore, Pash cannot be convicted under the statute.
{¶9} Revised Code Section 2919.25 defines family or household member
as “a person living as a spouse * * * who otherwise has cohabited with the
offender within five years prior to the date of the alleged commission of the act in
question.” See R.C. 2919.25(F)(1)(a)(i), (2). Although the statute does not define
“cohabitation,” the Supreme Court of Ohio has construed the statutory term to be
comprised of two essential elements “(1) [the] sharing of familial or financial
responsibilities and (2) consortium.” See State v. Carswell, 114 Ohio St.3d 210,
216, 2007-Ohio-3723, 871 N.E.2d 547 quoting State v. Williams, 79 Ohio St.3d
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459, 683 N.E.2d 1126, paragraph two of the syllabus. The Williams Court further
elaborated on possible factors establishing each essential element. (1) Shared
familial or financial responsibilities may include: provisions for shelter, food,
clothing, utilities, and/or commingled assets; (2) consortium may include: mutual
respect, fidelity, affection, society, cooperation, solace, comfort, aid of each other,
friendship, and conjugal relations. Williams, 79 Ohio St.3d at 465.
{¶10} A trial court’s determination of whether two people cohabitated
under R.C. 2919.25 is a question of fact. State v. Miller (1995), 105 Ohio App.3d
679, 686, 664 N.E.2d 1309. Therefore, we must assess whether the testimony
elicited during the proceedings supports the trial court’s finding that Pash and
Paula were cohabitating within the purview of the statute.
{¶11} Initially, it is undisputed by the parties that Pash moved into Paula’s
home around Christmas of 2008 and that the two lived together in Paula’s home
until March 3, 2009, when the incident occurred. As for the first Williams element
of sharing familial or financial responsibilities, it is also undisputed by the parties
that Paula fully supported Pash during the three months that they lived together in
Paula’s home. Pash testified that he quit his job shortly after beginning his
relationship with Paula. Since Pash had no income, Paula paid for all the
household expenses, such as food, shelter and utilities in addition to Pash’s
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personal expenses. Paula testified that she paid both Pash’s current and back child
support payments to prevent him from going to jail.
{¶12} As for the second Williams element of consortium, Pash testified that
he slept in the recliner each night and that he and Paula only had sex once—an
event that took place prior to them living together. Although Paula testified that
she and Pash only occasionally slept in the same bed, she also testified that Pash
slept in the recliner because he was uncomfortable sleeping flat. Paula further
testified that most nights she slept on the couch in the living room where Pash
slept, despite having her own bed, because Pash asked her to stay with him when
he did not feel well. Moreover, Paula testified that she and Pash were “boyfriend
and girlfriend” and that the two were involved in a sexual relationship while Pash
lived in Paula’s home. Paula also stated that only a couple days prior to the
incident, Pash had promised to marry her.
{¶13} Based on the testimony from both the parties at trial, it is apparent
that elicited facts provided ample support for the trial court to find that the parties
were cohabitating within the meaning of the statute. Therefore, we find no err in
the trial court’s determination that Pash and Paula were cohabitating under both
the elements set forth by the Williams Court and R.C. 2919.25. Accordingly,
Pash’s second assignment of error is overruled.
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The First Assignment of Error
{¶14} In his first assignment of error, Pash argues that the trial court erred
in finding him guilty because his conviction was not supported by sufficient
evidence. When determining whether there is sufficient evidence presented to
sustain a conviction, “[t]he relevant inquiry is whether, after viewing the evidence
in a light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt.”
State v. Jenks (1991), 61 Ohio St.3d 259, 260, 574 N.E.2d 492, paragraph two of
the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781,
61 L.Ed.2d 560.
{¶15} In the instant case, Pash was charged with domestic violence, in
violation of R.C. 2919.25(C). Under this section, the state must prove as an
essential element of the crime the belief of the household member that the
offender will cause imminent physical harm. We note that the relevant inquiry is
not whether the state can prove the ability of the accused to carry out the threat
imminently and/or movement toward carrying it out. Instead, the essential inquiry
is whether “the proof fully evidences a reasonable belief by the victim that the
accused will cause imminent physical harm.” See State v. Taylor (1996), 79 Ohio
Misc.2d 82, 85, 671 N.E.2d 343 citing State v. Collie (1996), 108 Ohio App.3d
580, 583, 671 N.E.2d 338.
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{¶16} As discussed above, the record supported the trial court’s
determination that Pash and Paula were cohabitating at the time of the incident.
Therefore, Paula is considered a household member within the meaning of R.C.
2919.25. Next, we must discern whether the evidence in the record demonstrated
a reasonable belief by Paula that Pash would cause imminent physical harm to her
when the threat was made.
{¶17} Paula testified that on March 3, 2009, when Pash returned to the
home, an argument between she and Pash ensued and Paula demanded that Pash
move out of her home. Paula testified that in response to this demand, Pash told
her “you don’t want me to leave” and then repeatedly stated “I will kill you” if she
made any attempt to force him to leave her home. Paula further testified that she
felt intimidated by Pash’s statements and feared for her life. Paula stated that
Pash’s threat prompted her to change the locks on her house and file a complaint
because Pash told her that he would return and “sooner or later, he will get” her.
{¶18} Thus, after viewing all the evidence in a light most favorable to the
prosecution, a rational trier of fact could have found beyond a reasonable doubt
that Paula had a reasonable belief that Pash was going to cause her imminent
physical harm. Therefore, we conclude that all the essential elements of the
offense were supported by the testimony elicited at trial and thus, we find no error
in the trial court’s conviction of Pash for a charge of Domestic Violence in
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violation of R.C. 2919.25(C). As such, Pash’s first assignment of error is
overruled.
{¶19} For these reasons the Judgment Entry of the Celina Municipal Court
is affirmed.
Judgment Affirmed
ROGERS and PRESTON, J.J., concur.
/jlr
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