What’s on their Minds: 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.

On October 23, 2013 the Supreme Court of Ohio heard 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.

Case background

Jeffrey McGlothan was charged with felonious assault and domestic violence stemming from an incident with his girlfriend, Cynthia Robinson.  The State relied on Robinson’s testimony to establish that the two cohabitated.  Robinson testified she and McGlothan had known each other for two years, that he had lived with her at her apartment for one, and that he slept at her place every night. There was no evidence presented that the two shared a bedroom.

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 an aggregate prison term of two years.

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.

McGlothan has now served his sentence.

Read the oral argument preview of this case here.

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, which includes a person living as a spouse, defined in (F)(2)  as a person who otherwise is cohabitating with the offender.

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 v. Church, 2005-Ohio-5198 (8th dist.)  (evidence insufficient to show that the victim was family or household member as required for conviction of domestic violence where defendant and victim, boyfriend and girlfriend, did not share any living expenses.)

At Oral Argument

State’s Argument

The state is the appellant in this case. The prosecutor argued that in a domestic violence prosecution, the state is not required to prove that the victim and the defendant shared living expenses in order to prove that the victim was cohabitating with the accused under 2919.25(F)(2).  Evidence that establishes that the victim and the offender lived together in a boyfriend/girlfriend type relationship under the same roof is sufficient to establish the element of household or family member. In this case Robinson and McGlothan were living together under one roof (provided by Robinson), neither was married to someone else, and neither had a separate residence.  It can be assumed the two were romantically linked from the fact that they were boyfriend and girlfriend. Common sense allows the inference of an intimate relationship from this scenario. The state did prove the requisite elements of the domestic violence offense in this case.

Defendant’s Argument

McGlothan’s attorney argued repeatedly that this case should be dismissed as improvidently accepted, because the court’s decision will have no effect on McGlothan, the state will undoubtedly dismiss the case if it reversed, and any decision would only be restating the law that already exists.  But if the Court doesn’t do that, the court of appeals decision should be affirmed. There was simply no evidence in this case to meet the requirements of Williams. There was no evidence at all of shared financial responsibility, and the appeals court did not give undue emphasis to that factor. There had to be evidence to show that these two people made a decision to share each other’s lives, and there simply was none in this case.  At most, they were sharing a roof, not a life. Inferences based on speculation are not enough to prove guilt beyond a reasonable doubt.  That is all there was in this case.

What Was on their Minds

The Boyfriend/Girlfriend Thing

Is that really enough on its own to establish cohabitation, asked Chief Justice O’Connor? Is that enough to infer what Williams requires? How is consortium proved?

Is it the state’s position that the two were living as spouses, asked Justice O’Donnell? How much should be inferred just from the fact they were living together? Not every boyfriend and girlfriend are cohabiting—how should the Court distinguish this? Is this a confused area of the law?

The Actual Evidence in this Case

Did the defendant have a separate residence, asked Chief Justice O’Connor? And what should the Court make of the fact that he didn’t have a key to the apartment? Who paid the rent and the utilities? Did the two actually share a bedroom? (the prosecutor conceded she did not know this)

The Williams decision requires proof of either shared familial or financial responsibilities and consortium. Has the state established all of those in this record, asked Justice O’Donnell? Was there evidence of household duties or financial duties? Has it met its burden of proof? Or was this just a simple example of a lack of evidence necessary to meet all the requirements of Williams?

What should the Court make of the fact that defendant had no key to the apartment, asked Justice O’Neill, noting that in his own house he doesn’t have to ring the bell to get in. Where was the evidence that the two were romantically linked? On the other hand, wasn’t moving in with someone the classic definition of cohabiting? Much better questioning could have been done to nail this down, he commented.

Justice Lanzinger noted that in Williams the Court defined two things the state had to prove beyond a reasonable doubt—cohabitation was one, and sharing of familial or financial responsibilities was the other–what was the record evidence on these points? And even though this was a bench trial, are there any jury instructions on this particular element of a domestic violence offense, she wondered?

Justice French asked why this should be so difficult to prove with an unmarried couple–couldn’t the victim have been asked if the defendant ever cooked meals or had clothing there or keep toiletries there? And was the fact that the defendant did not have another residence clearly nailed down?

Should the Case be Dismissed as Improvidently Allowed?

Did the defendant think that is what should happen, asked Justice Pfeifer, commenting that the Court gets criticized for doing this.

If this case were to be dismissed, wouldn’t the Eighth  District opinion still be out there saying that to prove this domestic violence offense, there must be evidence of shared living expenses, asked Justice Lanzinger?

If the Court were to dismiss the case as improvidently accepted, is the Court saying the Eighth District’s opinion is correct, asked Justice O’Neill?

The Appellate Decision
Justice Pfeifer commented that there was no testimony the couple shared any expenses such as rent or utilities or other financial responsibilities which would demonstrate shared familiar or financial relationships. According to the appeals court, the whole case turned on that, but wasn’t that requirement too narrow? Shouldn’t the high court address this issue instead of dismissing the case? Would the state be satisfied if the court of appeals decision was affirmed on different grounds?

Oftentimes in a relationship one party does not have an income, commented the Chief.  Does the language in the appellate decision overemphasize that factor? Plenty of people who aren’t working and aren’t contributing financially to a cohabitating relationship  still have that type of relationship, she commented.  Isn’t that just one indicium of a relationship?

The Effect of a Reversal

Wouldn’t  the prosecutor want this on the defendant’s record so that if there is another incident there would be a penalty enhancement, asked Justice Pfeifer?

How it Looks from the Bleachers

To Professor Bettman

Two things seemed very clear after this argument-the state simply failed to prove the essential elements of the domestic violence offense, and no one on the Court who spoke liked the Court of Appeals decision, with its overemphasis on sharing of financial responsibility to establish cohabitation. This looks like a clear loss for the state, but I don’t think the Court will dismiss the case as improvidently allowed, because I don’t think it wants the appellate decision hanging out there with what it believes to be an incorrect interpretation of Williams.  I think this case is just a simple example of a failure by the state to meet its burden of proof on all the elements of this offense.  It just didn’t get enough in this record to nail things down.

The Chief let this case go on far longer than necessary—both sides got unduly repetitious.  But I am sure that was for the benefit of the student audience, and this was a good choice for them in this off-site visit.

To Student Contributor Katlin Rust

The question of the day: “Where’s the evidence?”  The prosecutor simply failed to establish that McGlothan and his girlfriend cohabited.  Based on this lack of evidence, this one looks like a technical loss for the state.  However, the Court expressed great concern with the language of the Eighth District’s opinion and the case will likely not be dismissed as improvidently allowed.

The Court was clear that the evidence wasn’t there but that it cannot permit the Eighth District’s ruling to stand.  I expect the Court to affirm the decision on different grounds and clarify that shared financial responsibilities is not a prerequisite to cohabitation.

 

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