On January 16, 2014, the Supreme Court of Ohio issued a merit decision in State v. McGlothan, 2014-Ohio-85. In a 4-3 decision written by Justice O’Donnell, for himself, Chief Justice O’Connor, and Justices Pfeifer and Kennedy, the Court held that in a prosecution for domestic violence where the state establishes the victim is a person living with the defendant as a spouse, the state does not need to prove the sharing of familial or financial responsibilities and consortium in order to prove cohabitation. Justice Lanzinger wrote a solo dissent. Justice French wrote a dissent which Justice O’Neill joined. The case was argued October 23, 2013.
Jeffrey McGlothan was charged with felonious assault and domestic violence stemming from an incident with his girlfriend, Cynthia Robinson. At a bench trial Robinson testified that she and McGlothan had lived together at her apartment for about a year, and that he slept overnight at her place every night. The court found McGlothan not guilty of felonious assault, but guilty of attempted felonious assault and domestic violence, and sentenced him to an aggregate two year prison term.
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 held that because there was no evidence that the couple shared any living expenses, the state failed to prove the cohabitation necessary to sustain a domestic violence conviction. The dissenting judge did not believe the state had to prove any shared living expenses when it was proved the defendant lived with the victim. Read the oral argument preview here and the analysis of the argument 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)
1. The offense of domestic violence, as expressed in R.C. 2919.25(E)(1)(a) and related statutes, arises out of the relationship of the parties rather than their exact living circumstances.
2. The essential elements of “cohabitation” are (1) sharing of familial or financial responsibilities and (2) consortium. (R.C. 2919.25[E] and related statutes, construed.)
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.
The Williams case requires proof of cohabitation to show the parties were family or household members in a domestic violence case. The sharing of living expenses is just one factor to be considered in a cohabitation analysis. The court of appeals incorrectly turned this factor into an essential element.
The appeals court did not require proof of shared financial responsibility to establish cohabitation for an offense of domestic violence. The state’s evidence was simply insufficient to establish cohabitation in this case.
Clarification of the Williams decision
The majority sees this case as requiring clarification of Williams as to the evidence necessary to establish cohabitation under R.C. 2010.25(F)(2). The Court held that the appeals court misread Williams as requiring evidence of shared living expenses in order to establish cohabitation. That is only a requirement when the victim and the defendant are not living together. When they are living together as boyfriend and girlfriend, as was clearly proven in this case, the state does not need to prove the sharing of familial or financial responsibilities and consortium in order to prove cohabitation. Robinson’s testimony in this case was enough to establish that the parties were living together and that Robinson was a person living as a spouse with McGlothan.
The majority also offered an alternative ground for its holding, noting that even if the Williams factors did apply, since the list was nonexhaustive, the circumstantial evidence in the case established both the sharing of familial or financial responsibilities and consortium. Robinson’s testimony demonstrated that she and McGlothan shared shelter and utilities, and affection, society, and aid of each other.
Policy Underpinning of Majority Decision
In reaching its conclusion that the criminal act in this case falls under the domestic violence statute, the majority made reference to the legislature’s recognition of the fact (discussed in Williams) that an assault on a family or household member is entitled to further protection than an assault on a stranger.
The court of appeals decision was reversed and McGlothan’s conviction for domestic violence was reinstated.
Justice Lanzinger’s Dissent
As she has done frequently in the past, Justice Lanzinger criticizes the majority for partly overruling a case without expressly saying so. She thinks that in ruling that simply living together satisfies the element of cohabitation for the domestic violence statute, the Court did partially overrule Williams, not just clarify it. Her reading of Williams is that it clearly establishes two elements (the word used by that Court in the case syllabus ) to prove cohabitation—the sharing of familial or financial responsibilities and consortium. Both must be proven. While acknowledging that the testimony of one witness could establish both elements, to Lanzinger there was insufficient evidence of shared living expenses in this case.
In response to the majority’s policy analysis, Lanzinger sees no need to broaden the reach of the domestic violence statute, and sees this case as mere error correction. She would dismiss the case as improvidently allowed.
Justice French’s Dissent
Justice French agrees with the majority to the extent that it rejected the appeals court’s position that cohabitation requires proof of shared living expenses, noting that the first element of cohabitation is in the disjunctive, requiring proof of sharing of familial or financial responsibilities of the household (oh, the importance of those little words!). But she dissented because she did not think the evidence in this case established either one. Robinson’s testimony went only to the issue of consortium, the second element of cohabitation. Justice O’Neill joined this dissent.
None. As I have noted before on the blog, this is becoming more commonplace. There could have been this syllabus:
In a prosecution for domestic violence where the state proves the victim is a person living as a spouse with the offender, the state does not need to prove the sharing of familial or financial responsibilities to establish cohabitation. State v. Williams, clarified. Just a thought.
Both Katlin and I missed on this one—after argument it looked like a clear loss for the state on sufficiency of the evidence grounds. But we were both right that the Court was going to reject the necessity of proving shared financial responsibility to establish cohabitation.
I still think the majority decision is either wrong, or as Justice Lanzinger suggests, needs to overrule Williams in part. Williams clearly establishes two elements of cohabitation for the offense of domestic violence- 1) sharing of familial or financial responsibilities and 2) consortium. And I also think Justice French is also quite correct to emphasize that the first element is in the disjunctive. The majority seems to treat the two as one. Because the legislature did intend special protection from assaults on household members, these elements should be liberally construed, but some evidence of one or the other is necessary. I’m with the members of the dissent who just didn’t see that evidence in this case.