State v. Devore

[Cite as State v. Devore, 2018-Ohio-4189.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. William B. Hoffman, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
ADAM M. DEVORE : Case No. 18-COA-011
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County
Court of Common Pleas, Case No.
17-CRI-002
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 15, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER R. TUNNELL MATTHEW J. MALONE
Ashland County Prosecuting Attorney The Law Offices of Matthew J. Malone, LLC
10 East Main Street
By: VICTOR R. PEREZ Ashland, Ohio 44805
Assistant Prosecuting Attorney
110 Cottage Street
Ashland, Ohio 44805
Ashland County, Case No. 18-COA-011 2
Baldwin, J.
{¶1} Defendant-appellant Adam M. Devore appeals his conviction and sentence
from the Ashland County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On January 12, 2017, the Ashland County Grand Jury indicted appellant on
one count of rape in violation of R.C. 2907.02(A)(2), a felony of the first degree, one count
of abduction in violation of R.C. 2905.02(A)(2), a felony of the third degree, and one count
of domestic violence in violation of R.C. 2919.25(A), a felony of the third degree. At his
arraignment on January 13, 2017, appellant entered a plea of not guilty to the charges.
{¶3} On March 6, 2017, appellant’s counsel filed a written plea of not guilty by
reason of insanity. On August 14, 2017, appellant’s counsel withdrew the same and the
matter was scheduled for trial.
{¶4} Appellant, on October 30, 2017, filed a pro se motion seeking to remove his
court-appointed counsel and represent himself. The trial court held a hearing on the
motion on November 13, 2017 and, at the hearing, advised appellant about the
consequences of proceeding without counsel. Appellant executed a written Waiver of
Counsel that was filed on November 13, 2017. The trial court appointed appellant’s former
attorney as stand by counsel and the matter proceeded to a jury trial on January 9, 2018.
{¶5} At the trial, the alleged victim testified. The victim testified that she had been
living at 194 Sharon Avenue in Ashland, Ohio with her two children for about five or six
years. The victim had a ten year old daughter and an eight year old son. She testified that
she knew appellant because she had played in a band with him and started dating him
when they were both 17 years old. The two reconnected a few year ago when they started
Ashland County, Case No. 18-COA-011 3
playing in a band together and started dating again. According to the victim, the two of
them were getting “closer and closer” and, in April of 2016, began having sexual relations.
Trial Transcript at 281.
{¶6} The victim testified that in early May of 2016, appellant started staying with
her every night at her house on Sharon Avenue. Appellant had his clothes, drum sets and
a record player there and while the victim washed his clothes, appellant helped with
cooking and making sure that the house was tidy. Appellant also gave the victim money
for cigarettes, beer and groceries. For the most part, appellant took care of the household
while the victim worked.
{¶7} The victim testified that she started noticing how racist appellant was and
that while they were at a bar, appellant became irate with a group of African-Americans
who were playing rap music on the jukebox. The victim testified that she “thought that shit
would hit the fan” and talked appellant into leaving. Transcript at 31. On the way home,
appellant started screaming at the victim and called her a “nigger lover” because she had
stood up to him. Transcript at 31. According to her, appellant knew that before dating
appellant she had “messed around” with a biracial individual. Transcript at 31. Appellant
then hit her. The following testimony was adduced when the victim was asked what
happened after appellant hit her:
{¶8} A: He kept saying that you are a nigger lover, say it, and he said that I will
give you one more fucking time, and I better fucking answer him, and he held my face
and stood there, and I kept walking on home, and I don’t know if was cold out, but when
we got home, it was large argument. Him telling me that I was worthless, no white man
1 References to the transcript, unless otherwise indicated, are to the copy of the trial court trial transcript
in the court file.
Ashland County, Case No. 18-COA-011 4
would ever fucking want me, and I was a disgrace to the white nation, and he told me that
night if I did not message this guy and tell him what a disgrace I am for what I had done,
that he would leave.
And I did not care if he left, so he went on a good amount of time about it and kept
looking at me and through gritted teeth telling me how gross I was.
What else do I need to talk about?
{¶9} Q: When was that?
{¶10} A: October.
{¶11} Q: What happened after that incident?
{¶12} A: He left the next day, because I was not talking to him, so he kind of got
- - he just left.
{¶13} Transcript at 32-33.
{¶14} The victim had appellant’s property removed from the house.
{¶15} Shortly after the incident, appellant told the victim that he was in Mansfield
and needed money for cigarettes. When the victim then went to put money into the
mailbox for appellant, appellant was standing up against her front porch and came into
the house. The victim testified that she was scared of him at that point and that appellant
denied hitting her and said that “I could do it the easy way or hard way, and it doesn’t
matter if I break up with him or not, he get what he wants when he wants it.” Transcript at
34. Appellant told the victim that women are property and that once they were his, they
were his. Appellant moved back into the victim’s house, but never brought his clothes or
drums back. She testified that he stayed every night and that they played music, watched
movies and regularly had sexual relations. The victim again was paying the bills while
Ashland County, Case No. 18-COA-011 5
appellant cleaned and cooked. The two slept on the couch in the living room and her
children each slept in their own rooms. The bedrooms were close to her couch. The victim
testified that appellant became very controlling and possessive of her.
{¶16} The victim testified that on or about January 6, 2017, she had testified on
appellant’s behalf in Ashland Municipal Court and that and appellant was found guilty of
assaulting his wife’s boyfriend in such case. Appellant was upset and tense and the victim
tried to make him feel better by listening to music and playing music while she was doing
laundry in the basement. Both appellant and the victim were drinking and had had four
beers. Appellant then put in a movie, “12 Years a Slave”, and appellant “went off a
tangent again just about how disgusting black people are and disgusting niggers.”
Transcript at 46-47. The victim was concerned because her children were home and
warned appellant to stop talking in such a manner. She told appellant to leave and that
she did not want to see him again, but appellant refused to leave because he had been
drinking. The victim decided to go to sleep on the couch.
{¶17} The victim testified that, on January 8, 2017, she woke up not being able to
breathe very well while appellant was strangling or hitting her and yelling at her. He was
holding her by the neck. The victim testified that she was trying to push appellant off of
her and that he had his hand around her throat and his arm was up on her throat and he
was hitting her with his fists all over. She testified that appellant was trying to tire her out
by hitting her and that he got off of her and he sat on the other end of the couch while
screaming at her. She testified that whenever she tried to speak, appellant would go off
on her and that he held her hair down and “said that I am not going to look at any more
Ashland County, Case No. 18-COA-011 6
niggers, and he poked his finger down in my eye socket.” Transcript at 49. The victim
testified as follows when asked what else appellant did to her:
{¶18} A: Okay, at one point, I asked what he was doing, and he said - - and I said,
why are you doing that, and he said after I went to sleep I got madder and madder thinking
about it, and you told me to leave because you would rather fuck a nigger than someone
that acts like you, I told him at one point, I would rather fuck a nigger and that is what
stoked him up thinking about it.
{¶19} Q: And how was he acting at that point, Heather [the victim]?
What was he doing to you?
{¶20} A: At one point he kept saying, you like nigger dicks and I’ll show you what
it’s like, and he pulled my pants down and I was getting my arm lose and I was trying to
pull them up, and he was trying to pull them down, and he started punching my vagina
and hitting it and pushing his fist in it, and he said I will show you what a nigger dick feels
like. And he put his fingers up in me and was pushing hard, and I don’t know if he was
trying to get a bunch of his fingers in there, I could not tell, but it hurt and I was pushing
him off.
{¶21} Q: Was that through your pants?
{¶22} A: No, my pants were down and I got them up once, and he got them down.
{¶23} Q: He pulled your pants down?
{¶24} A: Yes.
{¶25} Q: And that is when he started punching you in the vagina?
{¶26} A: Uh-huh.
{¶27} Transcript at 49-50.
Ashland County, Case No. 18-COA-011 7
{¶28} According to the victim, appellant said that he had lost his kids and lost the
assault case and that he had nothing else to lose and that the victim was going to die.
The victim testified that she believed appellant and that she felt like appellant was trying
to put his whole fist up her vagina and “grabbed it like he was trying to rip my vagina.”
Transcript at 51. The victim asked appellant to stop and told him that she loved him and
did not want him to leave in order to trick him to stop. However, appellant said that she
was lying and that he did not want her back. Appellant held her down by her hair or neck
and was on top of her part of the time. Appellant, according to the victim, would also for
a minute sit at the edge of the couch and stare at the victim while shaking his head and
telling her that she was gross and disgusting. When appellant asked her why she would
tell him to leave and get out of the house if she wasn’t lying, the victim told him that she
was insecure and afraid that appellant was going to leave her first. The victim testified
that she begged appellant to lay down with her because she was scared and was afraid
that he was going to kill her. After the two laid down on the couch, appellant told her that
she could not get off of the couch. She testified that appellant “eventually put his arm
around my neck and head when I sleep, and he did that, and he said, I am sorry, honey,
I am the devil sometimes.” Transcript at 55. Since appellant did not fall asleep, the victim
was unable to get out of the house.
{¶29} The victim testified that the next morning, one of her kids was sick and
puked and that appellant did not allow her to take care of her sick child, but told her that
he would take care of the child and the victim. Appellant asked the victim if they were all
right and she indicated that they were. Shortly thereafter, appellant picked the victim up
and put her in the shower. She testified that he washed her from top to bottom while telling
Ashland County, Case No. 18-COA-011 8
her that he loved her. After the victim did not respond, appellant became aggressive again
and the victim became scared. She testified that, in order to prove that she loved him,
she had sex with appellant in the shower although she did not want to do so. After the
shower, appellant let the victim get clothes from the basement for herself and get dressed.
She testified, when asked if she tried to get help, that she was scared to touch her phone
and that it was not in the basement, but was behind the couch on a table the whole time.
Appellant told her that she needed to stay on the couch and that he was going to take
care of her. She testified that she told her children that she was sick and that the only
time that she was allowed to get off the couch was to go to the bathroom.
{¶30} On January 9, 2017, appellant ran out of cigarettes and told the victim that
he was going to quit smoking. The victim was scared because appellant smoked a lot and
she thought that if he quit smoking, then she was not going to live. She testified that he
told her that “He had nothing to lose, his killing spree was going to get started.” Transcript
at 60. The victim stayed on the couch and appellant proceeded to have sex with her.
{¶31} On January 9, 2017, appellant left the victim’s home to get cigarettes. Once
appellant was gone and she could not hear his truck engine anymore, the victim and her
two children left the residence and went to her parents’ home a few doors down and called
911. The victim testified that she went to her parents’ house through back yards in case
appellant came back early. After the police arrived, the victim went to the police station
where photographs were taken and then her ex-husband drove her to the hospital. The
victim testified that as a result of the attack on January 7, 2017, she was bruised under
her eye and on the top of her head and her sides and had a busted lip. She also had
bruising on her neck and broken blood vessels and her tooth went through her lip. The
Ashland County, Case No. 18-COA-011 9
victim testified that, at the hospital, she complained because her vagina was sore and
tender and that she had a scratch on her back and bruising on her arm and on her breast.
When she returned home, the victim gathered up appellant’s belongings, including clean
clothes, records, and pictures, and put them in his car.
{¶32} L.H., the victim’s daughter, testified at trial for the State. She tested that
appellant was staying with her mother, brother and herself in January of 2017 and that he
stayed there “[a]ll of the time.” Transcript at 169. She testified that appellant stayed
overnight, did “fun” stuff with them and used to wake her up in the morning.
{¶33} L.H. testified that on the night her mother asked her to run to her
grandparents’ house, her mother, the victim, was “really, really scared.” Transcript at 171.
She further testified that they went through the backyard, which was not normal. On cross-
examination, L.H. admitted that she never saw appellant harm or yell at her mother.
{¶34} Teresa Schneider, a certified nurse practitioner at University Hospital
Medical Center, testified that she examined the victim on January 9, 2017. She testified
that the victim was very tearful and upset and she recalled that the victim had bruises on
her head and face, but did not have tenderness, swelling, bruising or marks to her groin
area. Schneider testified that the victim had tenderness in the opening of the vagina, to
the left side labia and on her inner left thigh. She testified that the victim did not display
any swelling, inflammation or tenderness to the uterus and did not have any trauma or
tears between the vagina and rectum. The victim had reported being hit with a fist and
having fingers in her vagina. On cross-examination, Schneider testified that she did not
view any sexual trauma that would make her want to initiate a colposope, which is a
Ashland County, Case No. 18-COA-011 10
microscope used to look at the cervix, and that they did not have one. She testified that
the victim stated to her that there was no penis in her vagina.
{¶35} The next witness to testify was Elaine Siewert, the SAFE (Sexual Assault
Forensic Examining) nurse at University Hospital in Ashland. Siewert testified that, on
January 9, 2017, she examined the victim and the victim had a “sad appearance, flat
affect and [was] calm, no smiles during the entire exam.” Transcript at 193. The victim
had bruising on her face and complained of soreness on the right hip. Siewert testified
that she did not observe any injuries or major trauma to the patient. On cross-
examination, she testified that she did not observe any bruising, scratches or abrasions
in the vaginal area or any bruising to the legs. She testified that the victim had soreness
to her buttocks.
{¶36} Officer Abraham Neumann of the City of Ashland Police Department
testified that, on January 9, 2017, he responded to a domestic violence complaint at 224
Sharon Avenue along with Sergeant Darcy Baker. He testified that he observed appellant
leaving 194 Sharon Avenue in a truck and proceeded to make a traffic stop of the truck.
When he asked appellant if there had been any arguments between appellant and the
victim, appellant said that there had not been any verbal or physical arguments and that
he was leaving to get cigarettes. Appellant, who did not appear to be upset, was arrested.
On cross-examination, Officer Neumann testified that he did not notice any injuries to the
victim and that none were mentioned in his report. He testified that the victim did not say
anything directly to him. On redirect, he testified that his conversation with the victim was
maybe 30 seconds, that he did not stand there and examine the victim from head-to-toe
and that they were redirected to 194 Sharon Avenue.
Ashland County, Case No. 18-COA-011 11
{¶37} Sergeant Darcy Baker testified next. He tested that when he arrived at 224
Sharon Avenue on January 9, 2017, he spoke with the victim who told him that appellant
was at 194 Sharon Avenue. He tested that the victim was “wide-eyed and pacing and
frantically pointing toward that area,” Transcript at 221. He then walked on foot to 194
Sharon Avenue where Officer Neumann had detained appellant and then returned to 224
Sharon Avenue to meet with the victim to discuss what had happened. He testified that
she was “highly upset”. Transcript at 222. Sergeant Baker testified that the victim told
him that it was both a physical assault and a sexual assault and showed him a bruise on
the inside of her lip. The victim told him that “she had been in the house with him
[appellant] since Saturday evening, and this was the first opportunity that she had to
escape and call for help.” Transcript at 223- 224. The victim also told him that appellant
was trying to put his fist in her. While the victim described bruising and swelling to the
inside of her upper lip, he did not know of any other injuries. However, when Sergeant
Baker took the victim to the police station to interview her and photograph her injuries, he
noticed bruising on the victim’s face, neck and chest area and right forearm and broken
blood vessels. When he spoke with appellant, appellant acknowledged that he and the
victim bickered about racial issues, but denied that there was any physical confrontation.
The interview between Sergeant Baker and appellant was recorded and the recording
was played for the jury.
{¶38} On cross-examination, Sergeant Baker testified that during his initial
encounter with the victim, he had not observed any injuries. He testified that the victim
told him that appellant lived with her and that she had been held against her will by
appellant. He further described the attack as “vicious” Transcript at 261. Sergeant Baker
Ashland County, Case No. 18-COA-011 12
testified that he had not observed any blood in the house and that there were not rips or
tears to the pants or shirt that the victim had been wearing or blood on the pants. The
Sergeant testified that the victim told him that appellant was snoring on Sunday night.
When asked whether, during his interview of the victim, she ever stated that appellant
told the victim that she could not leave, he stated that he did not “recall her stating that at
the time of the assault, yes. During the next two days, her statement was, it was a feeling
that she had.” Transcript at 272. Sergeant Baker also testified on cross-examination that
the victim was up and about and using the bathroom during the incident. He further
testified that during his first interview of the victim, she told him that she had been held
against her will and that while the victim could have used her phone to call the police, she
did not. He testified that she told him that she did not call the police or her parents because
she was afraid of what appellant might do. There also was testimony that appellant asked
the victim to leave her house and get him cigarettes. During his interview with appellant,
Sergeant Baker never documented any injuries to appellant, defensive or otherwise,
because appellant had no visible injuries and made no claim. He further admitted that
during the interview, appellant told him that he lived on Grove Avenue with his friend. He
testified that appellant spent ninety percent (90%) of his time at the victim’s house.
{¶39} After Sergeant Baker’s testimony, the State rested pending the admission
of exhibits. During the discussion of exhibits2, the trial court advised the State that it was
going to deny the admission of certified exhibits pertaining to appellant’s prior domestic
violence convictions because “we don’t’ have personal identifiers to link them to the
identify [sic] [of] the Defendant.” Transcript at 318. However, the trial court permitted the
2The exhibits were a certified copy of appellant’s domestic violence conviction from West Virginia in 2010
and a 2012 conviction in Richland County case for intimidation.
Ashland County, Case No. 18-COA-011 13
State to reopen its case and present testimony relating to appellant’s prior convictions.
After Sergeant Baker testified regarding appellant’s personal identifiers (i.e. appellant’s
date of birth and social security number), the trial court admitted the exhibits of appellant’s
prior domestic violence convictions over appellant’s objection.
{¶40} Appellant did not testify at trial or present any evidence. The jury, following
deliberations, on January 11, 2018 acquitted appellant of rape, but convicted him of
abduction and domestic violence.
{¶41} The trial court, as memorialized in a Judgment Entry filed on February 27,
2018, sentenced appellant to 36 months in prison on the abduction conviction and to 36
months in prison on the domestic violence conviction. The trial court ordered that the
sentences be served consecutively to one another for an aggregate prison sentence of
72 months.
{¶42} Appellant now raises the following assignments of error on appeal:
{¶43} “I. WHETHER APPELLANTS’ CONVICTION FOR ABDUCTION WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THE ALLEGED
VICTIM WAS FREE TO LEAVE HER HOME.”
{¶44} “II. WHETHER APPELLANT’S CONVICTION FOR DOMESTIC VIOLENCE
WAS SUPPORTED BY SUFFICIENT EVIDENCE WHEN THE RECORD WAS DEVOID
OF EVIDENCE THAT APPELLANT WAS A “FAMILY OR HOUSEHOLD MEMBER” OF
THE ALLEGED VICTIM.”
{¶45} “III. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY
PERMITTING THE STATE TO REOPEN ITS CASE TO PRESENT ADDITIONAL
EVIDENCE WHEN THE STATE PROVIDED NO JUSTIFICATION FOR DOING SO.”
Ashland County, Case No. 18-COA-011 14
{¶46} “IV. WHETHER THE RECORD SUPPORTED MAXIMUM AND
CONSECUTIVE SENTENCES.”
I
{¶47} Appellant, in his first assignment of error, argues that his conviction for
abduction was against the manifest weight of the evidence.
{¶48} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses,
and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered.’ “ State v. Thompkins, 78 Ohio St. 3d 380, 387, 1997–Ohio–52, 678
N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983).
{¶49} Appellant was convicted of abduction in violation of R.C. 2905.02(A)(2).
Such section states as follows: “(A) No person, without privilege to do so, shall knowingly
do any of the following: “(2) By force or threat, restrain the liberty of another person under
circumstances that create a risk of physical harm to the victim or place the other person
in fear[.]”
{¶50} At trial, the victim testified that, on January 8, 2017, she woke up not being
able to breathe very well while appellant was strangling or hitting her and yelling at her.
He was holding her by the neck. The victim testified that she was trying to push appellant
off of her and that he had his hand around her throat and his arm was up on her throat
and he was hitting her with his fists all over. She testified that appellant told her that he
had nothing left to lose and that she was going to die, causing her to fear for her life. At
Ashland County, Case No. 18-COA-011 15
one point, appellant had the victim down by her hair against the couch. The victim testified
that appellant told her that she could not get off of the couch. She testified that he told her
that “He had nothing to lose, his killing spree was going to get started.” Transcript at 60.
The victim stayed on the couch and appellant proceeded to have sex with her. When
Sergeant Baker was questioned by appellant about whether the victim said that she was
held against her will, he responded that she had and the following testimony was
adduced:
{¶51} Q. Could you give me the round about area where you have the statement
there, could you find that for me?
{¶52} A. She describes- -when she described the initial assault, waking up in the
middle of the night, and she was trying to get away, and you push her down and hold her
down by her upper chest, and was choking her neck. I don’t think that she feels that she
was free to leave.
{¶53} Transcript at 276. The victim further testified that she did not call the police
or her parents out of fear that something would happen to either her, her children or her
parents. She told the police that appellant was a “vicious fighter” and was strong and that
she was concerned about the danger that he posed. Transcript at 278.
{¶54} In short, we find that the jury did not lose its way in convicting appellant of
abduction. There was testimony that appellant restrained the victim’s’ liberty by telling her
to staying on the couch on January 8, 2017 and placed her in fear for her life by his actions
and comments. Appellant created a risk of physical harm to the victim by strangling her
and assaulting her placed her in fear for her life by his actions and comments.
{¶55} Appellant’s first assignment of error is, therefore, overruled.
Ashland County, Case No. 18-COA-011 16
II
{¶56} Appellant, in his second assignment of error, contends that his conviction
for domestic violence is against the sufficiency of the evidence.
{¶57} In reviewing a claim of insufficient evidence, “[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, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus. It is well-established that the State bears the burden of
establishing each and every element of a charged crime and must do so with proof
beyond a reasonable doubt. See In re L.R., 8th Dist. Cuyahoga No. 93356, 2010–Ohio–
15, ¶ 11.
{¶58} R.C. 2919.25(A) states as follows: “No person shall knowingly cause or
attempt to cause physical harm to a family or household member.”
{¶59} Appellant maintains that there was no evidence that he was a “family or
household” member of the victim. “Family or household member” includes, “A spouse, a
person living as a spouse, or a former spouse of the offender” R.C. 2919.25(F)(1)(a)(i). A
“person living as a spouse” includes “a person who is living or has lived with the offender
in a common law marital relationship, who otherwise is cohabiting with the offender, or
who otherwise has cohabited with the offender within five years prior to the date of the
alleged commission of the act in question.” R.C. 2919.25(F)(2).
{¶60} In State v. Williams, the Ohio Supreme Court addressed the definition of
“cohabitation” as follows:
Ashland County, Case No. 18-COA-011 17
{¶61} [W]e conclude that the essential elements of “cohabitation” are (1) sharing
of familial or financial responsibilities and (2) consortium. R.C. 2919.25(E)(2) and related
statutes. Possible factors establishing shared familial or financial responsibilities might
include provisions for shelter, food, clothing, utilities, and/or commingled assets. Factors
that might establish consortium include mutual respect, fidelity, affection, society,
cooperation, solace, comfort, aid of each other, friendship, and conjugal relations. These
factors are unique to each case and how much weight, if any, to give to each of these
factors must be decided on a case-by-case basis by the trier of fact.
{¶62} 79 Ohio St. 3d 459, 465, 1997-Ohio-79, 683 N.E.2d 1126. See also, State
v. Martin, 5th Dist. Tuscarawas No. 2015AP0010, 2016-Ohio-225, 57 N.E.3d 411, ¶ 22.
{¶63} The Court further defined cohabitation in State v. McGlothan, finding where
the state demonstrated the defendant was the victim's boyfriend and they had lived
together for about a year, the state had no obligation to demonstrate the sharing of familial
or financial responsibilities and consortium to prove cohabitation. 138 Ohio St. 3d 146,
149, 2014-Ohio-85, 4 N.E.3d 1021, ¶ 15. Martin, 2016-Ohio-225, ¶ 23.
{¶64} We have found, pursuant to R.C. 2919.25(F), if testimony establishes the
parties were presently living together at the time of the offense and had cohabitated within
the past five years, such unrefuted testimony is sufficient to establish the complaining
witness was appellant's family or household member. State v. Avery, 5th Dist. Stark No.
2004–CA–00010, 2004-Ohio-5226, 2004 WL 2260575, ¶ 41. See also, Uhrichsville v.
Losey, 5th Dist. Tuscarawas No. 2005 AP 030028, 2005-Ohio-6564, 2005 WL 3361100;
State v. Martin, 2016-Ohio-225, ¶ 24.
Ashland County, Case No. 18-COA-011 18
{¶65} Applying the McGlothan analysis to the facts of the instant case, we find
sufficient evidence exists that appellant was a family or household member. There was
testimony that appellant was the victim’s boyfriend and they lived together for about a
year. The victim testified that appellant had been staying every night at her house since
May of 2016 and that he did chores around the house like cleaning and cooking while the
victim worked. Appellant and the victim started having sexual relations in April of 2016
and the victim testified that he gave her money sometimes for beer and cigarettes or food
for a meal. Appellant left the victim’s house in October of 2017, but later showed up at
her house and moved back in. The victim testified that he stayed at her house every night
thereafter and that while she again supplied the money for the household, he cleaned
and cooked. The two also engaged in sexual relations on a regular basis. There was
testimony that appellant spent 90% of his time at the victim’s house.
{¶66} Based on the foregoing and the facts set forth in detail above, we find that
any rational trier of fact, construing the evidence in a light most favorable to the
prosecution, could have found the essential elements of the crime of domestic violence
proven beyond a reasonable doubt.
{¶67} Appellant’s second assignment of error is, therefore, overruled.
III
{¶68} Appellant, in his third assignment of error, contends that the trial court
abused its discretion in permitting the State to reopen its case to present additional
evidence.
Ashland County, Case No. 18-COA-011 19
{¶69} It has been previously held that a determination of whether to permit the
State to reopen its case after it has rested is within the sound discretion of the trial court.
See City of Columbus v. Grant, 1 Ohio App. 3d 96, 439 N.E.2d 907 (1981).
{¶70} Appellant argues that, if the trial court had discretion to permit the State to
reopen its case, it abused that discretion. To constitute an abuse of discretion, a trial
court's decision must be unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983).
{¶71} In the case sub judice, at trial, the trial court sua sponte advised the State
that the exhibits of appellant’s certified prior domestic violence convictions were not going
to be admitted because the State had failed to elicit sufficient personal identifying
information to link the convictions to appellant. Appellant had not objected to the
admission of the exhibits. The State then rested pending admission of the exhibits, but
later moved to reopen the case so that Sergeant Baker could “provide the identifiers.” To
tie the convictions to appellant. Transcript at 337. The trial court then heard from both
parties regarding the motion to reopen and then permitted the State to reopen its case
stating, in relevant part, as follows:
{¶72} “There is no argument here that the Defendant is not the individual identified
in the prior convictions, it’s just a question of whether the State provided enough
information so if the Court did grant the admission, whether it’s sufficient evidence to
survive an appeal, and there is limited identification, but the Court found it wasn’t sufficient
to meet the State’s Light standard, so not talking about something out in left field that
wasn’t the Defendant and the Defendant had copies, I am presuming discussed during
Discovery and he had an opportunity to challenge veracity, and that did not occur on
Ashland County, Case No. 18-COA-011 20
direct, and taking all of the concerns, I am not happy to get to this point, I think it was a
deficiency of the evidence, and I am going to find that in the interest of justice, should
allow the State to reopen the case, and if Sergeant Baker is able to testify, we will take
him before proceeding with the Defendant’s case in chief.”
{¶73} Transcript at 343. Sergeant Baker then testified about appellant’s prior
convictions for domestic violence and provided identifiers tying them to appellant.
{¶74} We find that the trial court did not abuse its discretion in permitting the State
to reopen its case because the trial courts’ decision was not arbitrary, unconscionable or
unreasonable.
{¶75} Appellant’s third assignment of error is, therefore, overruled.
IV
{¶76} Appellant, in his fourth assignment of error, contends that the record does
not support maximum and consecutive sentences.
{¶77} We review felony sentences not for an abuse of discretion, but rather using
the standard of review set forth in R.C. 2953.08. State v. Marcum, 146 Ohio St. 3d 516,
2016–Ohio–1002, 59 N.E.3d 1231, paragraph 22. R.C. 2953.08(G)(2) provides we may
either increase, reduce, modify, or vacate a sentence and remand for resentencing where
we clearly and convincingly find that either the record does not support the sentencing
court's findings under R.C. 2929.13(B) or (D), R.C. 2929.14(B)(2)(e) or (C)(4), or R.C.
2929.20(I), or the sentence is otherwise contrary to law.
{¶78} Pursuant to Marcum, this Court may vacate or modify a felony sentence on
appeal only if it determines by clear and convincing evidence that: (1) the record does not
support the trial court's findings under relevant statutes, or (2) the sentence is otherwise
Ashland County, Case No. 18-COA-011 21
contrary to law. Clear and convincing evidence is that evidence “which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus. “Where the degree of proof required to sustain an issue must be clear and
convincing, a reviewing court will examine the record to determine whether the trier of
facts had sufficient evidence before it to satisfy the requisite degree of proof.” Cross, 161
Ohio St. at 477, 120 N.E.2d 118.
{¶79} As long as the sentence is within the statutory range for the offense, and
the court considers both the purposes and principles of felony sentencing set forth in R.C.
2929.11 and the seriousness and recidivism factors set forth in R.C. 2929.12, a trial
court's imposition of a maximum prison term for a felony conviction is not contrary to law.
State v. Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016–Ohio–5234, 2016 WL
4141260, ¶ 10, 16.
Consecutive Sentences
{¶80} R.C. 2929.14 (C)(4) states as follows:
{¶81} (4) If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison terms
consecutively if the court finds that the consecutive service is necessary to protect the
public from future crime or to punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender's conduct and to the danger the
offender poses to the public, and if the court also finds any of the following:
{¶82} (a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed pursuant to
Ashland County, Case No. 18-COA-011 22
section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release
control for a prior offense.
{¶83} (b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the multiple offenses
so committed was so great or unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately reflects the seriousness
of the offender's conduct.
{¶84} (c) The offender's history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the offender.
{¶85} In State v. Bonnell, 140 Ohio St. 3d 209, 2014–Ohio–3177, 16 N.E.3d 659,
syllabus, the Supreme Court of Ohio held: “In order to impose consecutive terms of
imprisonment, a trial court is required to make the findings mandated by R.C. §
2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing
entry, but it has no obligation to state reasons to support its findings.”
{¶86} In the case sub judice, appellant does not dispute that his sentences for
Count Two (Abduction) and Count Three (Domestic Violence) were within the statutory
range and that the trial court made the findings necessary under R.C. 2929.14(C)(4) to
impose consecutive sentences. Rather, he argues that his maximum and consecutive
sentences were ”strikingly inconsistent with Ohio sentencing guidelines”.
{¶87} R.C. 2929.12 provides, in relevant part, as follows:
{¶88} (A) Unless otherwise required by section 2929.13 or 2929.14 of the
Revised Code, a court that imposes a sentence under this chapter upon an offender for
a felony has discretion to determine the most effective way to comply with the purposes
Ashland County, Case No. 18-COA-011 23
and principles of sentencing set forth in section 2929.11 of the Revised Code. In
exercising that discretion, the court shall consider the factors set forth in divisions (B) and
(C) of this section relating to the seriousness of the conduct, the factors provided in
divisions (D) and (E) of this section relating to the likelihood of the offender's recidivism,
and the factors set forth in division (F) of this section pertaining to the offender's service
in the armed forces of the United States and, in addition, may consider any other factors
that are relevant to achieving those purposes and principles of sentencing.
{¶89} (B) The sentencing court shall consider all of the following that apply
regarding the offender, the offense, or the victim, and any other relevant factors, as
indicating that the offender's conduct is more serious than conduct normally constituting
the offense:
{¶90} (1) The physical or mental injury suffered by the victim of the offense due to
the conduct of the offender was exacerbated because of the physical or mental condition
or age of the victim.
{¶91} (2) The victim of the offense suffered serious physical, psychological, or
economic harm as a result of the offense.
{¶92} (3) The offender held a public office or position of trust in the community,
and the offense related to that office or position.
{¶93} (4) The offender's occupation, elected office, or profession obliged the
offender to prevent the offense or bring others committing it to justice.
{¶94} (5) The offender's professional reputation or occupation, elected office, or
profession was used to facilitate the offense or is likely to influence the future conduct of
others.
Ashland County, Case No. 18-COA-011 24
{¶95} (6) The offender's relationship with the victim facilitated the offense.
{¶96} (7) The offender committed the offense for hire or as a part of an organized
criminal activity.
{¶97} (8) In committing the offense, the offender was motivated by prejudice
based on race, ethnic background, gender, sexual orientation, or religion.
{¶98} (9) If the offense is a violation of section 2919.25 or a violation of section
2903.11, 2903.12, or 2903.13 of the Revised Code involving a person who was a family
or household member at the time of the violation, the offender committed the offense in
the vicinity of one or more children who are not victims of the offense, and the offender
or the victim of the offense is a parent, guardian, custodian, or person in loco parentis of
one or more of those children.
{¶99} (C) The sentencing court shall consider all of the following that apply
regarding the offender, the offense, or the victim, and any other relevant factors, as
indicating that the offender's conduct is less serious than conduct normally constituting
the offense:
{¶100} (1) The victim induced or facilitated the offense.
{¶101} (2) In committing the offense, the offender acted under strong
provocation.
{¶102} (3) In committing the offense, the offender did not cause or expect to
cause physical harm to any person or property.
{¶103} (4) There are substantial grounds to mitigate the offender's conduct,
although the grounds are not enough to constitute a defense.
Ashland County, Case No. 18-COA-011 25
{¶104} According to appellant, the only “more serious” factors that applied
in this case are 2929.12(B)(2), (B)(6), and (B)(9) and the following “less serious factors”
applied: R.C. 2929.12(C)(2) and (C)(4).
{¶105} The trial court, in this matter, found that appellant met all three
grounds under R.C. 2929.14(C)(4) for consecutive sentences. The trial court further
stated that appellant had a prior felony domestic violence offense and failed to show
remorse. The trial court stated on the record, in pertinent part, as follows: “you pretty
much sentenced these victims to a life sentence of some sort in terms of the emotional
abuse that you caused, and the emotional harm, let alone the physical, and I think based
on your history and repeated activity of this, in this regard, also coupled with other
offenses of violence, the assault offense, that you were subject to in Municipal Court at
the time this happened, that consecutive service of any sentence that the Court imposes
on Counts 2 and 3 are necessary to protect the public and punish you.” Sentencing
Transcript at 36-37. The trial court noted that appellant had a history of criminal conduct
and that appellant had committed both offenses while subject to the sanctions of
Municipal Court. The pre-sentence investigation report indicates that appellant has prior
convictions for intimidation, disorderly conduct, and resisting arrest, among other
offenses.
{¶106} Based on the foregoing, we find that appellant’s sentence was
supported by the record.
{¶107} Appellant’s fourth assignment of error is, therefore, overruled.
Ashland County, Case No. 18-COA-011 26
{¶108} Accordingly, the judgment of the Ashland County Court of Common
Pleas is affirmed.
By: Baldwin, J.
Gwin, P.J. and
Hoffman, J. concur.