165 Ohio App. 3d 178 | Ohio Ct. App. | 2006
{¶ 1} Appellant, Berkley C. Nixon, appeals from the judgment of the Summit County Court of Common Pleas that denied his motion to dismiss. We affirm.
{¶ 3} On March 30, 2005, Nixon filed a motion to dismiss, indistinctly arguing that R.C.
{¶ 4} Nixon appeared in court the same day. At the hearing, the parties argued their respective positions on the motion to dismiss. Ultimately, Nixon's counsel requested that the "domestic violence law" be held unconstitutional. The court denied Nixon's motion to dismiss on the record. Nixon then withdrew his plea of not guilty on the charges of domestic violence and resisting arrest and entered a no contest plea on each charge. The court found him guilty of both charges and dismissed the remaining charges of obstructing official business and disorderly conduct. The court sentenced Nixon accordingly.
{¶ 5} Subsequently, the trial court issued a judgment entry that denied his motion to dismiss, concluding that the domestic-violence statute, R.C.
{¶ 6} Nixon timely appealed, asserting one assignment of error for review.
The trial court erred in denying the appellant's motion to dismiss filed due to recent amendment of the Ohio State Constitution, Article XV, Section 11, which mandates that this state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage; therefore, making R.C.2929.25 , unconstitutional as applied to the appellant, who was not married to the alleged victim at the time of the alleged assault.
{¶ 7} In his sole assignment of error, Nixon maintains that R.C.
{¶ 8} A denial of a motion to dismiss is reviewed de novo.State v. Stallings,
{¶ 9} The rules of statutory construction apply to the construction of constitutional provisions. State v. Jackson,
{¶ 10} While other trial and appellate courts in Ohio have discussed or determined the constitutional issue Nixon raises in this case, it is of first impression for this court. See, e.g.,State v. Newell, 5th Dist. No. 2004CA00264,
Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships *182 of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage. Section
11 , ArticleXV , Ohio Constitution.
{¶ 11} Nixon maintains that because R.C.
(A) No person shall knowingly cause or attempt to cause physical harm to a family or household member.
(B) No person shall recklessly cause serious physical harm to a family or household member.
(C) No person, by threat of force, shall knowingly cause a family or household member to believe that the offender will cause imminent physical harm to the family or household member.
* * *
*183(F) As used in this section and sections
2919.251 and2919.26 of the Revised Code:(1) "Family or household member" means any of the following:
(a) Any of the following who is residing or has resided with the offender:
(i) A spouse, a person living as a spouse, or a former spouse of the offender;
(ii) A parent or a child of the offender, or another person related by consanguinity or affinity to the offender;
(iii) A parent or a child of a spouse, person living as a spouse, or former spouse of the offender, or another person related by consanguinity or affinity to a spouse, person living as a spouse, or former spouse of the offender.
(b) The natural parent of any child of whom the offender is the other natural parent or is the putative other natural parent.
(2) "Person living as a spouse" means a person who is living or has lived with the offender in a common law marital relationship, who otherwise is cohabiting with the offender, or who otherwise has cohabited with the offender within five years prior to the date of the alleged commission of the act in question.
{¶ 12} The trial court went on to note that for the purposes of the statute, the victim need only be a "family or household member" per R.C.
{¶ 13} As the trial court correctly reasoned, the phrase "[p]erson living as a spouse" in R.C.
{¶ 14} The purpose of the Marriage Protection Amendment is entirely different. As stated by the Fifth District Ohio Court of Appeals:
[T]he intent of the Defense of Marriage Amendment was to prohibit same sex marriage. The Defense of Marriage Amendment was specifically adopted in response to the decision of the Massachusetts' Supreme Court in Goodridge v. Department of Public Health (2003),
440 Mass. 309 ,798 N.E.2d 941 that the Massachusetts' law limiting the protections, benefits and obligations of civil marriage to individuals of opposite sexes lacked a rational basis and violated state constitutional equal protection principles. * * * [T]he Defense of Marriage Amendment has no application to criminal statutes in general or the domestic violence statute in particular."
Adams at ¶ 23. Thus, it seeks to preclude the creation and recognition of any relationship "approximat[ing] the design, qualities, significance or effect of marriage" *184
between two persons, that would essentially infringe on the significance and effect of the institution of marriage itself. See Section
{¶ 15} Furthermore, when construing a constitutional amendment, we are to presume that the enacting body was aware of existing constitutional and statutory provisions and their judicial construction. State ex rel. Lake Cty. Bd. of Commrs.,
{¶ 16} Therefore, we find that Nixon failed to meet his burden of establishing unconstitutionality. See Liposchak,
Judgment affirmed.
CARR, P.J., and REECE, J., concur.
READER, J., retired, of the Fifth District Court of Appeals, sitting by assignment.
REECE, J., retired, of the Ninth District Court of Appeals, sitting by assignment.