State v. LongState v. Long
Dated: March 9, 2011
DICKINSON, Presiding Judge.
INTRODUCTION
{¶1} As Joshua Long was driving Adeana Haught to a friend‘s house, he allegedly hit her in the head, threatened to kill her, and pushed her out of his truck. The Grand Jury indicted him for domestic violence and disrupting public services. A jury convicted him of domestic violence, a felony of the third degree because he had two similar prior convictions. The trial court sentenced him to five years in prison. He has appealed, arguing that the jury‘s determination that he had two qualifying prior convictions and that he and Ms. Haught were cohabiting at the time of the alleged assault were not supported by sufficient evidence and are against the manifest weight of the evidence. He has also argued that the trial court incorrectly failed to give an instruction on the definition of cohabiting and that it incorrectly allowed a witness to testify about battered woman syndrome. We affirm because Mr. Long‘s conviction is supported by sufficient evidence and is not against the manifest weight of the evidence, the trial
SUFFICIENCY AND MANIFEST WEIGHT
{¶2} Mr. Long‘s first assignment of error is that his conviction was not supported by sufficient evidence and is against the manifest weight of the evidence. Under
{¶3} Mr. Long has argued that there was insufficient evidence to prove that his 2002 conviction for aggravated assault was against a family or household member. Under
{¶4} “[If] a prior conviction elevates the degree of a subsequent offense, the prior conviction is an essential element that the state must prove beyond a reasonable doubt.” State v. Fry, 125 Ohio St. 3d 163, 2010-Ohio-1017, at ¶90. The State, therefore, had to prove that the woman Mr. Long assaulted in the 2002 case was a family or household member.
{¶5} The Ohio Revised Code does not define “cohabiting.” The Ohio Supreme Court, however, has held that its “essential elements . . . are (1) sharing of familial or financial responsibilities and (2) consortium.” State v. Williams, 79 Ohio St. 3d 459, paragraph two of the syllabus (1997). “Possible factors establishing shared familial or financial responsibilities might include provisions for shelter, food, clothing, utilities, and/or commingled assets. Factors that might establish consortium include mutual respect, fidelity, affection, society, cooperation, solace, comfort, aid of each other, friendship, and conjugal relations.” Id. at 465. The Supreme Court has cautioned that “[t]hese factors are unique to each case and how much weight, if any, to give to each of these factors must be decided on a case-by-case basis by the trier of fact.” Id.
{¶7} Viewing the evidence in a light most favorable to the State, we conclude there was sufficient evidence from which the jury could find that Mr. Long and the woman he assaulted in the 2002 case were cohabiting. The State presented testimony from Sergeant Theresa Davis, the officer who investigated the incident that resulted in Mr. Long‘s 2002 conviction. Sergeant Davis testified that she received a dispatch about a woman who was having problems with her boyfriend. When she arrived at the trailer where the incident had occurred, a woman told her that she had just been in an altercation with Mr. Long, who she described as her “live-in boyfriend.” She found Mr. Long laying on a mattress in one of the bedrooms. There were clothes scattered around the room, some of which were the woman‘s and some of which were Mr. Long‘s. According to Sergeant Davis, she spoke to the woman and Mr. Long separately and they both indicated that the trailer was their residence. She also recalled that Mr. Long told her while he was being handcuffed that he wanted her out of his home. From the evidence that Mr. Long and the woman shared possession of the trailer and the same bedroom, the jury could have reasonably inferred that they “shar[ed] . . . familial or financial responsibilities and . . . consortium.” State v. Williams, 79 Ohio St. 3d 459, paragraph two of the syllabus (1997).
{¶9} Mr. Long has next argued that there was insufficient evidence to prove that he was convicted of domestic violence in 2008 because the judgment entry for that offense does not identify the crime for which he was convicted. He has noted that the judgment entry does not identify the offense by name, degree, or statute number. Under
{¶10} Although the 2008 judgment entry does not indentify the offense by name or statute number, it provides that Mr. Long has been found guilty of count number one. That count is identified in the complaint and in an arrest warrant for that case as domestic violence.
{¶11} Mr. Long has also argued that there was insufficient evidence that he and Ms. Haught were cohabiting at the time of his alleged assault. According to Ms. Haught, she met Mr. Long at a bar that they frequented. They started dating and eventually moved in together. Although they moved frequently, they had lived together for 14 months at the time of the assault. Ms. Haught testified that Mr. Long and she shared household duties, shared a bed, engaged in other activities like a married couple, and that they took turns paying their bills, depending on who had money at the time. We, therefore, conclude there was sufficient evidence from which the jury could find that Mr. Long and Ms. Haught cohabited. The trial court correctly denied Mr. Long‘s motion for judgment of acquittal under
{¶12} Mr. Long has next argued that his conviction is against the manifest weight of the evidence. He has noted that, when Ms. Haught gave specifics about the bills she paid while she was living with Mr. Long, she answered that she had only paid for truck insurance, cigarettes, food, and cable. He has also noted that her testimony conflicted with the testimony he offered about their living arrangements. According to Mr. Long, he has never lived with Ms. Haught and left her for another woman months before the alleged incident. He said that he continued giving Ms. Haught rides, however, because he felt bad about having cheated on her. He testified that, at the time of the alleged assault, he was living by himself in a house that he had been hired to repair for the owner. A friend of Mr. Long‘s corroborated most of his story, testifying that Mr. Long had lived with him since 2002. The friend explained that, although Mr. Long might
{¶13} The woman with whom Mr. Long had cheated on Ms. Haught testified that Mr. Long and Ms. Haught lived together and that Mr. Long sometimes referred to Ms. Haught as his wife. She also testified that, the night before the alleged assault, she slept in a spare bedroom at the house Mr. Long and Ms. Haught shared. In light of the consistency of her story with Ms. Haught‘s, we conclude the jury did not lose its way when it determined that Mr. Long and Ms. Haught were family or household members at the time of the assault. To the extent that Mr. Long‘s first assignment of error is that his conviction is against the manifest weight of the evidence, it is overruled.
JURY INSTRUCTIONS
{¶14} Mr. Long‘s second assignment of error is that the trial court incorrectly instructed the jury about domestic violence and that the jury‘s verdict form was deficient. Regarding the court‘s jury instructions, Mr. Long has argued that it incorrectly failed to identify his prior convictions as necessary elements to enhance the domestic violence charge. He has also argued that the court failed to adequately define what “person living as a spouse” means. Because Mr. Long did not object to the jury instructions at trial, he has forfeited all but plain error.
{¶16} Mr. Long‘s argument that the trial court incorrectly defined “person living as a spouse” is also without merit. According to Mr. Long, the court should have defined “cohabiting” using the explanation the Ohio Supreme Court gave in State v. Williams, 79 Ohio St. 3d 459 (1997). As we explained earlier, the State presented sufficient evidence under Wallace to support a finding that Mr. Long and Ms. Haught were cohabiting at the time of the alleged assault. Mr. Long has not demonstrated that the outcome of his trial would have been different if the court had defined cohabiting using its language. See State v. Wallace, 9th Dist. No. 06CA008889, 2006-Ohio-5819, at ¶12 (concluding that trial court‘s failure to define cohabiting for jury was not plain error). To the extent that Mr. Long‘s second assignment of error is that the trial court incorrectly instructed the jury, it is overruled.
VERDICT FORM
{¶17} Mr. Long has also argued that the jury‘s verdict form did not comply with
{¶18} Mr. Long has argued that the verdict form was deficient under
BATTERED-WOMAN SYNDROME TESTIMONY
{¶19} Mr. Long‘s third assignment of error is that the trial court incorrectly allowed a witness to testify regarding battered-woman syndrome. He has argued that the testimony did nothing to assist the jury in its decision and was more prejudicial than probative.
{¶20} The Ohio Supreme Court has held that testimony about battered-woman syndrome may be offered by the State in its case-in-chief in limited circumstances. State v. Haines, 112 Ohio St. 3d 393, 2006-Ohio-6711, at ¶65. Specifically, if a “victim‘s credibility is challenged upon cross-examination during the state‘s case-in-chief, the state may introduce expert testimony regarding battered-woman syndrome to aid the trier-of-fact in determining the victim‘s state of mind, e.g., to explain why she returned to the defendant despite his aggressions toward her.” Id. Before the State may offer such rehabilitative evidence, however, it must set forth an evidentiary foundation showing that the witness at hand is, in fact, a battered woman.
{¶21} While the Supreme Court has rejected “a set of rigid foundational requirements,” it has imposed two specific limitations on the admission of cycle of violence and battered-woman-syndrome testimony. State v. Haines, 112 Ohio St. 3d 393, 2006-Ohio-6711, at ¶47. First, there must be evidence generally establishing the cycles of a battering relationship. Id. at ¶48. Second, the couple at issue must have “go[ne] through the battering cycle at least twice.” Id. at ¶49 (quoting State v. Koss, 49 Ohio St. 3d 213, 216 (1990)). In addition, to avoid prejudice to the defendant, “experts who are called to testify in domestic violence prosecutions must limit their testimony to the general characteristics of a victim suffering from the battered woman syndrome. The expert may also answer hypothetical questions regarding specific abnormal behaviors exhibited by women suffering from the syndrome, but should never offer an opinion relative to the alleged victim in the case.” Id. at ¶56 (quoting Matthew P. Hawes, Removing the Roadblocks to Successful Domestic Violence Prosecutions: Prosecutorial Use of Expert Testimony on the Battered Woman Syndrome in Ohio, 53 Clev. St. L. Rev. 133, 158 (2005-06)).
{¶22} Ms. Haught testified that, in February 2008, Mr. Long grabbed her hair and choked her, resulting in his 2008 domestic violence conviction. She testified that she stayed in a relationship with him following the incident because she loved him and thought he would change if he went to anger management classes. Ms. Haught also testified that, a few weeks before Mr.
{¶23} The expert witness who testified about battered-woman syndrome gave general information about the women‘s shelter where she works, the difficulty women who have experienced domestic violence have talking about it, the cycle of violence she has observed in domestic violence situations, and a diagram she described as the “Power and Control Wheel.” She explained that she had never met or interviewed Ms. Haught and had not read any of the police reports in the case. She also explained that her testimony was only to try “to help people understand what [battered women] go through.”
{¶24} The battered-woman syndrome testimony offered in this case met the Haines criteria. Mr. Long‘s lawyer attacked Ms. Haught‘s credibility on cross-examination on a number of grounds, asking her about the different addresses she gave the police for herself, whether she actually lived with Mr. Long, why she stayed with Mr. Long even though she knew he was engaging in an affair with another woman, whether she got upset when Mr. Long called her by the other woman‘s name, whether she got into fights and blacked-out when she drank, and whether she had previously requested a no contact order regarding Mr. Long. The State laid a foundation that Ms. Haught had been assaulted by Mr. Long and had gone through at least two cycles of violence. In addition, the expert who testified made only generalized statements about victims of battered-woman syndrome and did not offer an opinion regarding the evidence in this
{¶25} Mr. Long has also argued that the trial court incorrectly failed to instruct the jury about the limits of the expert‘s testimony. Because he did not object to the jury instructions, he has forfeited all but plain error.
{¶26} In State v. Haines, 112 Ohio St. 3d 393, 2006-Ohio-6711, the Ohio Supreme Court wrote that “[t]rial courts should tailor the scope of the state‘s questioning and should also ensure that jurors are instructed as to the limits of the expert‘s testimony.” Id. at ¶57. The Court, however, did not provide any guidance about what such instructions should contain. In Haines, the trial court had improperly allowed an expert witness to testify that the facts of the case were “very consistent with what we see in a Battered Woman‘s Syndrome scenario.” Id. at ¶25. A limiting instruction in that case, therefore, was necessary. Unlike in Haines, the expert‘s testimony in this case adhered to the guidelines set out by the Ohio Supreme Court. Accordingly, because the battered-woman syndrome testimony in this case was proper and the Supreme Court has not indicated what an instruction about the limits of such testimony should include, we conclude the trial court‘s failure to give a limiting instruction was not plain error. Mr. Long‘s third assignment of error is overruled.
CONCLUSION
{¶27} Mr. Long‘s domestic violence conviction is supported by sufficient evidence and is not against the manifest weight of the evidence. The trial court correctly instructed the jury and correctly allowed an expert witness to testify about battered-woman syndrome. Furthermore, the jury‘s verdict form was not deficient. The judgment of the Summit County
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
CLAIR E. DICKINSON
FOR THE COURT
CARR, J.
BELFANCE, J.
CONCUR
APPEARANCES:
RICHARD P. KUTUCHIEF, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant Prosecuting Attorney, for Appellee.