The Akron Legal News

Court rules that sharing expenses not necessary to defining cohabitation

JESSICA SHAMBAUGH
Special to the Legal News
Published: January 29, 2014

The Supreme Court of Ohio recently affirmed a man’s domestic violence conviction after ruling that the state provided sufficient evidence of his cohabitation with the victim.

The 4-3 majority ruled that the state does not need to prove that a couple shared living expenses in order to convict a defendant of domestic violence.

Instead, it held that evidence that the couple lived together, sharing shelter and utilities, was sufficient.

The case stemmed from an argument between Jeffrey McGlothan and his girlfriend Cynthia Robinson.

Robinson testified at a bench trial that McGlothan was her boyfriend and had been living with her in her apartment for about a year at the time of the dispute.

She explained that McGlothan spent the night in her apartment every night and had helped her put things up on the wall when he moved in.

In January 2011, she said she confronted McGlothan about his whereabouts and the two began arguing.

At some point in the disagreement, McGlothan pushed Robinson and grabbed her by the shirt, detaching a permanent tracheostomy tube that allowed her to breathe.

McGlothan helped Robinson call 911 and emergency-room physicians were able to reinsert the tube without surgery.

Robinson entered a statement that “her boyfriend purposely pulled her trach out.”

The trial court found McGlothan guilty of attempted felonious assault and domestic violence and sentenced him to an aggregate term of two years in prison.

On appeal to the 8th District Court of Appeals, McGlothan argued that his conviction for domestic violence was improper because the state failed to prove all of the elements of “cohabitation” as required.

The appellate panel agreed, finding that in State v. Williams, the Ohio Supreme Court had ruled that the state must show a couple shared “familial or financial responsibilities and consortium.”

“Although Robinson testified that McGlothan was her boyfriend and he had slept over at her apartment for roughly a year, there was not testimony that the couple shared any living expenses, such as rent and utilities, which would demonstrate shared familial or financial responsibilities,” the appellate court wrote.

The state then appealed to the high court, arguing that shared living expenses was only one factor that a court may consider and that the decision conflicted with rulings from other district courts.

“In this case, then, we are called upon to clarify Williams regarding the evidence necessary to establish cohabitation as set forth in R.C. 2919.25(F)(2),” Justice Terrence O’Donnell wrote in the majority opinion.

The justices found that the governing section of the Ohio Revised Code prohibited an individual from knowingly causing or attempting to cause physical harm “to a family or household member.”

It further provided that a family or household member was a spouse, a former spouse or “a person living as a spouse,” which was defined as someone who “is cohabitating with the offender.”

The justices held that the Williams case was factually distinguishable from the case at hand because in Williams the couple did not live together.

“In contrast to Williams, Robinson testified that McGlothan was her boyfriend and that they had lived together in her apartment for approximately a year, thus establishing that they did share one residence. Because the state demonstrated that the 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 this case,” Justice O’Donnell stated, emphasizing that the trial court could have reasonably found that Robinson was a family or household member.

Alternatively, the majority stated that the circumstantial evidence showed that McGlothan and Robinson shared shelter and utilities, which fulfilled the Williams requirements.

“We therefore reverse the judgment of the court of appeals and reinstate the judgment of the trial court finding McGlothan guilty of domestic violence,” Justice O’Donnell wrote in conclusion.

Chief Justice Maureen O’Connor and justices Paul Pfeifer and Sharon Kennedy concurred to form the majority.

In a separate dissenting opinion, Justice Judith Lanzinger explained that the majority opinion overruled a portion of the Williams case without explaining or acknowledging it.

“Williams clearly requires both elements: sharing familial or financial responsibilities as well as consortium,” Justice Lanzinger wrote.

She held that there was no need to broaden the reach of the domestic violence statute and stated that even if the appellate court’s ruling should be reversed, the original judgment should not be reinstated.

“However, in his appeal to the 8th District, McGlothan raised the issue of allied offenses in his fifth assignment of error, which the court of appeals held as moot. At the very least, the majority should remand the case to the court of appeals for resolution of McGlothan’s fifth assignment of error on allied offenses,” Justice Lanzinger stated.

In a second dissenting opinion, Justice Judith French explained that she did not believe the evidence showed McGlothan shared in familial or financial responsibilities.

“It was neither direct nor circumstantial proof that McGlothan shared in any of the familial or financial responsibilities of the household. Because I would affirm the judgment of the court of appeals, I respectfully dissent,” Justice French wrote, with Justice William O’Neill concurring.

The case is cited State v McGlothan, 2014-Ohio-85.

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