Oral Argument Preview: Defining Cohabitation in a Domestic Violence Offense. State v. Jeffrey McGlothan.

Update: On January 16, 2014, the Supreme Court of Ohio issued a merit decision in this case.  Read the analysis here.

Read the analysis of the oral argument of this case here.

On October 23, 2013 the Supreme Court of Ohio will hear oral argument in the case of State v. Jeffrey McGlothan, 2012-1782.  At issue in this case is what evidence is necessary to prove cohabitation in domestic violence prosecutions. This case will be argued at Bucyrus High School, as part of the Court’s off-site program.

Case Background

Jeffrey McGlothan was charged with felonious assault and domestic violence stemming from an incident with his girlfriend, Cynthia Robinson.  During a domestic dispute, McGlothan grabbed Robinson by her blouse and shoved her onto the couch.  Robinson had a permanent trachea tube (for a sleep apnea condition) which became dislodged during the struggle.  Robinson was taken to the hospital and the tube was reinserted.

The State relied on Robinson’s testimony to establish that the two cohabitated.  She testified that McGlothan was her live-in boyfriend and slept there every night.  Robinson claimed the two had known each other for two years and McGlothan had lived with her for one.

In a bench trial, the court found the evidence sufficient to demonstrate that McGlothan either knowingly or recklessly caused Robinson’s injury and found him guilty of both attempted felonious assault and domestic violence.  He was sentenced to two years in prison for the attempted assault and a concurrent six-month sentence for domestic violence.

In a split decision, the Eighth District Court of Appeals affirmed the attempted felonious assault charge, and in a different split of judges, vacated the domestic violence conviction.  The majority found that the State failed to prove that the victim was a household or family member within the definition of R.C. 2919.25(F)(2) based on the State’s failure to present evidence that the couple shared any living expenses.  The dissenting judge on the domestic violence charge would find that the state established that the defendant was a household or family member, disagreeing that the state had to prove that the couple shared any expenses, once it was established that the defendant lived there.

Key Statute and Precedent

R.C. 2919.25, in relevant part, states that no person shall knowingly or recklessly cause or attempt to cause physical harm to a family or household member..

(F) As used in this section of the Revised Code:

(1) “Family or household member” means any of the following:

(a) Any of the following who is residing or has resided with the offender:

(i) A spouse, a person living as a spouse, or a former spouse of the offender;

(2) “Person living as a spouse” means a person who is living or has lived with the offender in a common law martial relationship, who otherwise is cohabitating with the offender, or who otherwise has cohabitated with the offender within the five years prior to the date of the alleged commission of the act in question

State v. Williams, 79 Ohio St.3d 459 (1997), established that the essential elements of cohabitation are 1) sharing of familial or financial responsibilities and 2) consortium.  Possible factors for establishing shared familial or financial responsibilities include provisions for shelter, food; clothing, utilities, and/or comingled assets. Factors for establishing 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 the amount of weight, if any, to be given to any factor must be decided on a case-by-case basis.

State’s Argument

The State argues that the appeals court, contrary to the language in Williams, appears to require evidence of both familial and financial responsibilities to demonstrate cohabitation. The State argues that evidence of shared living expenses is not required to establish the element of shared familial or financial responsibilities in a domestic violence prosecution. In some relationships, one person may not be able to share in the financial responsibilities, but that should not automatically preclude that person from the protections of a domestic violence prosecution. The appeals court improperly transformed the non-exclusive factor of shared living expenses, as established in State v. Williams for determining cohabitation under R.C. 2919.25, into a mandatory prerequisite and essential element of cohabitation.  In relying solely on the lack of shared financial expenses in determining whether Robinson and McGlothan cohabitated, the Court focused too narrowly on a single one of the Williams non-exclusive factors.

The state posits that the Eighth District’s misinterpretation of Williams is in conflict with other appellate districts and fails to consider the varying dynamics of cohabitation relationships.

McGlothan’s Argument

Principally, McGlothan argues that this appeal was improvidently allowed; a comprehensive review of the record shows that the Eighth District did not solely base its decision on shared living expenses, but rather on the state’s failure to elicit sufficient evidence of cohabitation. The determination of whether individuals are cohabiting for purposes of domestic violence charges is very fact specific. In this case the state simply failed to prove that Robinson and McGlothan were family or household members – according to Robinson, McGlothan did not even have a key. The record evidence shows that McGlothan’s access to the apartment depended on whether Robinson wanted him there. Robinson’s characterization of McGlothan as her “boyfriend ” is insufficient, by itself, to prove cohabitation.

McGlothan argues that the state is simply dissatisfied with the application of the law to the facts of this case, making its appeal  simply a case of error correction.  Contrary to the state’s assertion, McGlothan argues that the Eighth District did not solely rely on the lack of shared expenses in finding that the two did not cohabitate and its decision is not in conflict with those of other districts.

State’s Proposed Proposition of Law

The State is not required to prove that a victim and a defendant share living expenses in order to prove cohabitation as defined in R.C. 2919.25(F)(2).  Evidence that a victim and defendant are engaged in an intimate relationship and live together is sufficient to prove cohabitation.

Student Contributor: Katlin Rust

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