State v. Lewis

The majority correctly declines the state's invitation to "revisit" the Ohio Supreme Court's decision in State v. Busch (1996), 76 Ohio St.3d 613, 669 N.E.2d 1125. Whether this court agrees or disagrees with the Supreme Court in that case is of no moment. Clearly we do not have the authority to disregard it.

Nevertheless, the majority proceeds to reverse the decision of the lower. court based on what it perceives to be important, factual distinctions between this case and Busch. However, it is not the duty or privilege of this court to simply substitute its opinion for that of the trial judge. As the Busch court noted, "An abuse of discretion implies that the trial court's attitude, as evidenced by its decision, was unreasonable, arbitrary, or unconscionable." Id. at 616, 669 N.E.2d at 1128. The standard of review in this case, then, is not whether we like the outcome in the lower court but, rather, whether the lower court abused its discretion in reaching that outcome. I submit that it did not.

The majority bases its reversal on what it perceives to be factual differences between Busch and our case. No two domestic violence cases will ever be identical. The majority, understandably but mistakenly, places great emphasis on the belief that the complaining witness in Busch refused to testify. While the word "refuses" is used in the body of the opinion, nowhere in the factual statement by the court is there anything about the complaining witness refusing to testify. The witness only stated that she did "not wish for the case to proceed." Id. at syllabus. This is the language of the syllabus, which is, of course, the law of the case. The opinion of the court of appeals in Busch likewise does not say that the complaining witness refused to testify, but only that the dismissal "was based upon the reluctance of the prosecuting witness to testify." State v. Busch (June 30, 1995), Franklin App. Nos. 94APC11-1670 and 94APC11-1671, unreported, 1995 WL 390932. Justice Cook recognized this when she observed in her dissent that "there is no apparent reason why [the victim] could not be compelled to testify." Busch, 76 Ohio St.3d at 618,669 N.E.2d at 1129.

The majority in our case cites the five factors mentioned inBusch that a trial judge should consider when determining whether to dismiss a domestic-violence case, over the state's objection, where the complaining witness wishes to have the charges dropped. They single out factors two and five, on which they distinguish this case. There are, however, three additional factors the trial judge was required to consider. The first of these factors is the seriousness of the injuries sustained by the victim. In this case, although there was testimony suggesting some sort of violence had occurred, there was no evidence that the victim had ever sustained serious physical injury. She herself testified that she had not suffered any physical injury on the occasions underlying the two indictments. The officer who responded to the domestic-violence call on August 17, 1996, testified that at that time, he observed no marks or bruises on Mrs. Lewis. Similarly, on August 8, although there was testimony that Mr. Lewis produced a belt on this occasion, the responding officer testified that Mrs. Lewis never indicated he had struck her with it. To the contrary, although the officer observed some bruises on her knees, he testified that he "didn't see any marks on her back or face or neck or anything," and that, he "couldn't see anything with the belt marks." The alleged injuries are less serious than those in Busch. In that case, the complaining witness testified that the defendant broke, her jaw as well as burning her face with a lighted cigarette.

The third factor the lower court was required to consider was the status of counseling efforts. The hearing in this case was conducted on January 27, 1997. Mrs. Lewis testified at that time that she and her husband had been involved in counseling since October 1996. She testified that for approximately four months he had participated in biweekly marital and family counseling sessions. She also testified that Lewis had spent over a month in an inpatient drug-rehabilitation program and that he continued to attend weekly, Monday night sessions in this regard. When asked about the results of these counseling efforts, Mrs. Lewis testified, "He's, well, I know he's not taking drugs any more, his attitude, he's a better husband, he's a better father, and he's actually better than when I married him." Likewise, Mr. Lewis's boss testified:

"[D]uring the time since he's come back [to work] I've seen a 180 degree turn. He attends church regular, he's involved in the church. He attends a Monday night, some type of an a [sic] meeting at the Lake Avenue Congregational Church. He goes every Tuesday night to Bible studies at Mount Olivet. * * * He and his wife are involved in church. The kids have calmed down, the family gets along. It's a 180 degree turn, no problems whatsoever, and everything is going great as far as I can see."

The fourth factor the lower court was required to consider was whether Mrs. Lewis's "refusal to testify" was coerced. Id. at 616, 669 N.E.2d at 1128. The first indication in this case that Mrs. Lewis was not coerced is that she did not refuse to testify. She stated, in fact, that she would testify, but preferred not to. Further, Mrs. Lewis testified that she did not want the charges filed against her husband in the first place. She stated that when she appeared before the grand jury she made it known she wanted the charges dropped. When asked at the hearing on the motion to dismiss, Mrs. Lewis again testified that she wanted the charges dismissed. The Busch court found it significant that the lower court in that case did not dismiss the charges until it had "methodically over a period of at least a month determined that [the victim] was not being coerced and truly did not wish to testify." Id. In this case, apparently from August 1996 through January 1997, a period of approximately five months, Mrs. Lewis had remained consistent in her desire that her husband not be charged with domestic violence.

In addition and as further evidence she was not coerced, the lower court inquired of Mrs. Lewis at the hearing whether she had discussed with the prosecution and the women's assistance program the possible ramifications of dismissing the charges against her husband. She stated that she had been advised that the abuse might recur in the future. The judge further inquired:

"THE COURT: Has he coerced you or talked to you or threatened you to come here to dismiss these charges?

"THE WITNESS: No.

"THE COURT: Do you have a fear of any repeat of his behavior to you?

"THE WITNESS: I don't, Your Honor."

The Supreme Court in explaining Busch told us, "Trial judges are at the front lines of the administration of justice in our judicial system, dealing with the realities and practicalities of managing a caseload and responding to the rights and interests of the prosecution, the accused, and the victims. * * * Trial courts deserve the discretion to be able to craft a solution that works in a given case. Certainly a court's resources in a domestic violence case are better used by encouraging a couple to receive counseling and ultimately issuing a dismissal than by going forward with a trial * * *." Id. at 615-616, 669 N.E.2d at 1128. In reversing the court of appeals which in turn had reversed the trial court, the Supreme Court held, "In this case, the trial court used its judicial power to do its best with a matter which no longer seemed to fit the court system. Trial judges have the discretion to determine when the court has ceased to be useful in a given case. The trial judge made a permissible determination here." Id. at 616, 669 N.E.2d at 1128.

I do not believe that this court can justify a reversal here on the basis of abuse of discretion. The trial judge carefully followed the law as set forth in Busch. Whether or not we agree with Busch or like its application in the current case, I do not believe, based on the facts and testimony outlined above, that we can conclude that the lower court's decision was "unreasonable, arbitrary, or unconscionable." For this reason, I would affirm.