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Case Summaries: Cohabitation

OHIO SUPREME COURT CLARIFIES DEFINITION OF “COHABITATION” AND “PERSON LIVING AS A SPOUSE.” The Supreme Court held that evidence was sufficient to support the DV victim was a “person living as a spouse.”  Because the state demonstrated that defendant was the victim’s boyfriend and that 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.  In dicta, the Court also noted that “consortium” can be proven by such factors “as affection, society, and aid of each other,” thus indicating that it is not necessary to establish sexual relations to prove consortium.  State v. McGlothan, 138 Ohio St. 3d 146, 2014-Ohio-85 (1/16/2014).

Keywords: family or household member domestic violence intimate partner

April 24, 2014

Defendant Boyfriend “Cohabited” with Girlfriend: The Court of Appeals affirmed the trial court’s conviction of the defendant-boyfriend after finding that their relationship satisfied the definition of “cohabitation” and he therefore qualified as a “family or household member” of his girlfriend-victim.  He lived with the victim, the victim was his girlfriend, he receives mail at her home, slept in the same bed with her, and spent every night with her.  How much weight to give to each of the Williams “cohabitation” factors must be decided on a case-by-case basis by the trier of fact.  State v. Rubes, 2012-Ohio-4100 (11th Dist., Portage, 9/10/12).

Keywords: shared familial responsibilities person living as a spouse shared expenses consortium domestic violence

01/15/2013

Defendant Not a Family or Household Member of Victim: The Court of Appeals reversed defendant’s conviction of domestic violence after finding that he was not a “family or household member of the victim.  The victim had testified that the defendant was her boyfriend and that he had slept over at her apartment for roughly a year.  However, no evidence was presented that the couple shared living expenses such as rent and utilities, and therefore the State did not prove that they shared familial or financial responsibilities so as to meet the definition of cohabitation.  However, this case has been appealed to the Ohio Supreme Court and the Supreme Court has accepted jurisdiction of the appeal.  State v. McGlothan, 2012-Ohio-4049 (8th Dist., Cuyahoga, 9/6/12); appeal accepted for review, 2013-Ohio-347 (2/6/13).

Keywords: shared familial responsibilities domestic violence shared expenses person living as a spouse

01/15/2013

“Live-In” Boyfriend was Family or Household Member of Victim: The Court of Appeals affirmed defendant’s conviction for domestic violence.  Victim testified that defendant had been her boyfriend for four months leading up to the alleged incident, he resided at her house except when he resided with his mother nearby, his belongings were at her house, he had a key to her home, and he was sleeping at her house most of the time when she came home.  Moreover, the victim and her boyfriend bought food for each other, spent every day together, and had sexual relations.  She also told the police officer that defendant was her “live-in” boyfriend.  This evidence was sufficient to prove cohabitation and to show that defendant was a family or household member of the victim.  Although defendant did not currently reside with the victim at the time of trial, his residence at the time of the assault was what mattered, not his residence at the time of trial.  State v. Mauldin, 2010-Ohio-4192 (7th Dist., Mahoning, 9/01/2010).

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Date: 5/22/12

Court of Appeals Rejects Constitutional Vagueness Challenge To DV Statute

The Cuyahoga County Court of Appeals has held that Ohios criminal domestic violence statute is valid against a claim that it was unconstitutionally vague on its face and as applied to the criminal defendant. The defendant argued that the term "cohabitation" is unconstitutionally vague and that his assault on his live-in girlfriend should not have been characterized as domestic violence, as his live-in girlfriend did not fit within the definition of a "family or household member" or as someone with whom he "otherwise cohabitates" for purposes of the statute. However, the Court of Appeals found that the term "cohabiting" as used by the legislature in the domestic violence statute provides sufficient warning to offenders as to the types of relationships that are covered and that the term is not too vague to meet the requirements of due process under the Constitution. Cleveland v. Schill, No. 80111, 2002-Ohio-1263 (Cuyahoga 3/21/2002).

 

Keywords: constitutionality,constitutional,unconstitutional,cohabiting

Date: 8/1/2002

 

 

Not Necessary To Prove All The Williams Factors

The prosecution is not required to establish all the factors listed by the Supreme Court in Williams. The Supreme Court's decision does not require evidence of all the Williams factors. In this case, the "cohabitation" element was satisfied where victim and defendant were boyfriend and girlfriend, victim planned to start supper before incident occurred, but did not, and victim shared her home with defendant on a frequent basis. State v. Combs, Case No. 97-L-049 (Lake 9/25/98), 1998WL226375.

 

Keywords: dating, person living as a spouse, family or household member

Date: 4/23/2002

 

 

Proof of Cohabitation Not Limited To Williams Factors

The factors listed by the Supreme Court in Williams are not the only way to prove cohabitation. In weighing these kinds of issues, courts should be guided by common sense and by ordinary human experience. The testimony that victim and defendant were boyfriend and girlfriend, were living at the same address, and were listening to music together on the night of the incident, was sufficient to prove cohabitation beyond a reasonable doubt. State v. Young, Case No. 16985 (Montgomery 11/20/98), 1998WL135294.

 

Keywords: person living as a spouse, family or household member, dating

Date: 4/23/2002

 

 

No Covered Relationship

Domestic violence conviction reversed because parties were not related and had not cohabited, though they had dated for four years. Middletown v. Walker (Butler 1995), 107 Ohio App.3d 516.

 

Keywords: dating, person living as a spouse, family or household member

Date: 4/23/2002

 

 

Boyfriend/girlfriend Relationship Fit Definition of Cohabitation

Although complainant and defendant did not live together, girl testified that they were "going together, she spent more nights at defendant's apartment than her own, and thought she might be pregnant by the defendant. Defendant found guilty of domestic violence, but conviction was reversed by Court of Appeals for Hamilton County based upon lack of cohabitation. Ohio Supreme Court reinstated conviction, and found that defendant and complainant were cohabiting under R.C. 2919.25. Cohabitation means 1) sharing of familial or financial responsibilities, and 2) consortium (factors are mutual respect, fidelity, affection, society, cooperation, solace, comfort, aid, friendship, and conjugal relations. State v. Williams (1997), 79 Ohio St.3d 459.

 

Keywords: dating, person living as a spouse

Date: 4/23/2002

 

 

No Relationship To Support DV Charge

Harassing phone calls to plaintiff from her boyfriend's "ex-girlfriend" are not covered by domestic violence laws, where the plaintiff and defendant were not related and had not lived together except for sharing a summer home with several other women several years prior. Smith v. Moore, 689 A.2d 145, 298 N.J. Super 121 (NJ Superior Ct App Div 1997).

 

Keywords: dating, person living as a spouse, family or household member

Date: 4/23/2002

 

 

Severance of Counts; Cohabitation

Two separate incidents of domestic violence in two months involving the same victim could be tried in one trial. After examining numerous Ohio cases on the definition of "cohabitation," appeals court upheld ruling that victim was a family or household member, even though the relationship was purely sexual and parties never shared living expenses. State v. Miller (Washington 1995), 105 Ohio App.3d 679.

 

Keywords: person living as a spouse, family or household member

Date: 4/23/2002

 

 

No Cohabitation Relationship To Support DV Charge

Where the defendant and the alleged victim dated for two of four years and the defendant sometimes stayed at the alleged victims house up to four nights a week, there was an insufficient relationship for a DV charge. The testimony about taking the alleged victims children to stores was also insufficient to demonstrate cohabitation because it falls short of showing shared provisions for food, clothing, shelter, and the commingling of assets. Akron v. Taylor, Case No. 20622, 2001 Ohio App. LEXIS 5690 (Summit 12/19/01).

 

Keywords: person living as a spouse, family or household member

Date: 4/17/2002

 

 

Two Cohabitation Relationships At Once

"Cohabitation' includes persons living together on a regular basis, allowing interpretation that one person could cohabitate with two different people in different households at the same time. People v. Moore, 52 Cal. Rptr. 2d 256 (Cal. App. 1996).

 

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Date: 4/17/2002

 

 

Respondent's Stepdaughter Is Family or Household Member

A stepfather and stepdaughter are family or household members for domestic violence purposes even though they last resided together over nine years prior to the domestic violence incident. Their relationship is a relationship established by affinity, i.e., a connection existing in consequence of marriage between a married person and the kindred of the other. Coma v. Kellogg, Case No. 96-CD-90 (Columbiana 3/03/99), 1999WL135294

 

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Date: 4/17/2002

 

 

de Facto Household Member

When the defendant was a constant presence in the household, he was a de facto member of the household. South v. North, 698 A.2d 145 (N.J. Super. Ct. App. Civ. 1997).

 

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Date: 4/17/2002

 

 

Sufficient Relationship For DV Charge

Based on State v Williams, the possible factors establishing shared familial or financial responsibilities were met here, as this must be done on a case-by-case basis. The court noted, in particular, that the appellant had been selling drugs out of the defendants house and that he was found there at the time of arrest. State v. Ragland, Case No. 20425, 2001 Ohio App. LEXIS 3471 (Summit 8/8/01).

 

Keywords: dating, person living as a spouse, family or household member, cohabit

Date: 4/17/2002

 

 

Prison Cell Mates Not "cohabiting"

A state prisoner may not obtain relief under the domestic abuse statute against his cell mate, based upon allegations of physical abuse and threats. Prison cell mates are not "persons cohabiting" under the statute simply because they live together. Livingood v. Negrete, 547 N.W.2d 196 (Iowa 1996).

 

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Date: 4/17/2002

 

 

de Facto Separation Sufficient To Establish Trespass

In an aggravated murder case, the trial court dismissed all aggravated burglary related charges on the basis that a spouse cannot be convicted of trespass into the marital residence unless a court order exists barring such access. The court of appeals reversed, ruling that a de facto separation can bar entry as much as a de jure separation, and a spouse may be convicted of trespass even though no court order exists banning him from the premises. State v. ONeal, 103 Ohio App.3d 151 (Hamilton 1995).

 

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Date: 4/17/2002

 

 

U.s. Supreme Court Clarifies Scope of Doctrine

Most statements made by a domestic abuse victim in response to the 911 operators questions while the defendant was allegedly in the victims house in violation of a no-contact order, in which the victim identified her assailant, were not "testimonial" and, therefore, were not subject to the Confrontation Clause of the Sixth Amendment. The victim was speaking about events as they were actually happening, rather than describing past events, and the primary purpose of the 911 operators interrogation was to enable police assistance to meet an ongoing emergency caused by the physical threat to the victim. On the other hand, an alleged domestic battery victims written statements in an affidavit given to the police officer who responded to the domestic disturbance call were "testimonial" and, therefore, subject to the Confrontation Clause. There was no emergency in progress when the statements were given, as the alleged battery had happened before the police arrived, so that the primary purpose of the officers interrogation was to investigate a possible past crime. The Supreme Court stated three general principles. First, statements taken by police officers in the course of an interrogation are "nontestimonial" when they are made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. Second, statements taken by police officers in the course of interrogation are " testimonial" when the circumstances objectively indicate that there is no ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Third, a conversation which begins as an interrogation to determine the need for emergency assistance may evolve into testimonial statements subject to the Confrontation Clause once that purpose has been achieved, and trial court should, through in limine procedure, redact or exclude the portions of any statement that have become testimonial. Davis v. Washington (2006), 126 S.Ct. 2266, 165 L.Ed.2d 224.

 

Keywords: "right of confrontation" "defendant's rights"

Date: 9/12/2006

 

 

Recanting Witness

Conviction on domestic violence charges overturned where complainant initially identified defendant as her attacker to arresting officer, then testified at trial that her injuries were result of altercation with another woman. State v. Attaway (Hamilton 1996), 111 Ohio App.3d 488.

 

Keywords: recantation

Date: 4/23/2002

 

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