State v. RodriguezState v. Rodriguez
{¶ 1} Appellant, Albert Rodriguez, appeals the judgment of the Norwalk Municipal Court, which convicted him of domestic violence, a misdemeanor of the first degree. At his trial, appellant did not dispute that he pushed the victim, a woman to whom he was not married, but with whom he had been cohabitating; appellant only contested the issue of his intent and the extent of the physical altercation. On August 23, 2005, appellant was sentenced to 180 days incarceration (120 days suspended), five years of probation, and a $500 fine plus costs.
{¶ 2} Appellant now challenges his conviction by challenging the constitutionality of R.C.
{¶ 3} “Appellant was erroneously convicted under an unconstitutional law, as the Ohio Domestic Violence statute unconstitutionally conferrs [sic] special legal status [sic] to unmarried individuals, who, merely by virtue of `living as a spouse’ with the alleged victim, are subject to the punishment of O.R.C. 2919.25.”
{¶ 4} Appellant also asserts two issues coincident with the claimed error:
{¶ 5} “I. Whether the definition of `person living as spouse’ as set forth in O.R.C.
{¶ 6} “II. Whether unmarried people who are or have been cohabitating, or living as spouses, as set forth in O.R.C.
{¶ 7} Appellant neither filed a motion to dismiss supported by these arguments, nor did he raise these arguments below during any proceedings. As a preliminary matter, then, we address whether appellant has waived the right to assert the issue on appeal. Appellee argues that this issue should not be addressed for the first time on appeal, since
{¶ 8} Currently, eight appellate districts in Ohio have ruled upon this exact issue. As of the date of appellant‘s trial, only one appellate district and eight courts of common pleas had considered the issue. As of the time the appellate briefs were filed in this matter, four other appellate courts have issued decisions; since the briefs have been filed, three more appellate districts have issued their decisions. The Ohio Supreme Court has just accepted two identical cases for discretionary review. Thus, it is unlikely that appellant was aware of the argument‘s availability. As our decision will, of necessity, conflict with another appellate district, review is not improper as this case should be certified to the Ohio Supreme Court for review.
{¶ 9} Even though an appellant‘s failure to raise an issue in the trial court generally constitutes a waiver of the issue, State v. Awan (1986), 22 Ohio St.3d 120, 122, reviewing courts have discretionary power to review issues regardless of whether they were raised below. Brown v. Borchers Ford, Inc. (1977), 50 Ohio St.2d 38, 39. Appellee has correctly noted that courts should not exercise their discretion to examine a claim that existed prior to or at the time of trial. Awan, supra, citing State v. Woodards (1966), 6 Ohio St.2d 14, 21. Nevertheless, the issues raised in this appeal are timely and developing rapidly. Additionally, this matter should be certified to the Ohio Supreme Court pursuant to
{¶ 10} Upon consideration of the eight appellate decisions, we find that we cannot wholly adopt any of the legal reasoning employed to date. The Fifth, Eighth, and Ninth districts have held that the statute is constitutional by applying only the history of the Marriage Amendment, rather than its plain language. State v. Newell, 5th Dist. No. 2004-CA-00264, 2005-Ohio-2848; State v. Burk (2005), 164 Ohio App.3d 740, 2005-Ohio-6727; State v. Nixon (2006), 165 Ohio App.3d 178, 2006-Ohio-72. The Tenth and Twelfth Districts have found that R.C.
{¶ 11} Appellant faces a substantial hurdle of persuasion. Any claim that a statute is unconstitutional must be proven beyond a reasonable doubt by the complaining party. In re Columbus Skyline Securities, Inc. (1996), 74 Ohio St.3d 495. Further, legislative enactments enjoy a “strong presumption” of constitutionality, and the legislation and the constitutional provision must be “clearly incompatible.” State ex rel. Jackman v. Court of Common Pleas of Cuyahoga County (1967), 9 Ohio St.2d 159, 224 N.E.2d 906, 909, citing American Cancer Society, Inc., v. Dayton (1953), 160 Ohio St. 114, 121; State ex rel. Dickman v. Defenbacher, Dir. (1955), 164 Ohio St. 142, syllabus.
{¶ 12} Instead of challenging the statute on its face, appellant argues that the domestic violence statute was unconstitutional as applied to him, since he could not have been convicted of domestic violence had the court not factually determined that he and his victim were members of the same “household” and “living as spouses.” Appellant and appellee both agree that appellant and his victim were “person(s) living as a spouse” as required for criminal liability pursuant to R.C.
{¶ 13} “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 of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.”
{¶ 14} The editor‘s notes to the Marriage Amendment comment that the amendment was proposed to foreclose the possibility that R.C.
{¶ 15} In any case, courts must look to the plain language of a constitutional amendment to ascertain intent. Appellant‘s argument centers on the Marriage Amendment‘s language dictating that Ohio “shall not create or recognize a legal status” that approximates marriage, and points to the domestic violence statute‘s inclusion of “persons living as a spouse” in the class of victims. At bottom, appellant argues that — irrespective of sex or gender — two persons living as spouses enjoy a relationship approximating marriage and that, by recognizing that relationship, the statute contravenes the amendment.
{¶ 16} R.C.
{¶ 17} “(i) A spouse, a person living as a spouse, or a former spouse of the offender;
{¶ 18} “* * *
{¶ 19} “(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.” R.C.
{¶ 20} The Second and Third Appellate Districts have held that R.C.
{¶ 21} Generally, a “status” is “the condition of a person or thing in the eyes of the law.” Merriam Webster Collegiate Dictionary (10th Ed. 1996). Black‘s Law Dictionary (8th Ed. Rev. 2004) defines “status” as “a person‘s legal condition, whether personal or proprietary; the sum total of a person‘s legal rights, duties, liabilities, and other legal relations, or any particular group of them separately considered the status of a landowner.”
{¶ 22} According to these definitions, appellant argues, any time the state alters the legal rights or liabilities of a person, the state has conferred a “legal status” upon the person. Following this reasoning, the majority in McKinley held that R.C.
{¶ 23} R.C.
{¶ 24} “[T]he essential elements of `cohabitation’ are (1) sharing of familial or financial responsibilities and (2) consortium. R.C.
{¶ 25} When applying the above elements to the circumstances constituting the victim/offender relationship, courts “should be guided by common sense and ordinary human experience.” State v. Rinehart, 4th Dist. No. 01CA2620, 2002-Ohio-6143, ¶ 27, citing State v. Colter (Mar. 17, 2000), 2d Dist. No. 17828. Applying the Williams factors, Rinehart found the offender did not “cohabitate” with the victim where, inter alia, he only occasionally slept nights at the victim‘s home; he was only allowed in the victim‘s home when the victim was present; and where the offender kept no possessions at the victim‘s home. 2002-Ohio-6143 at ¶ 29. Without further evidence of sharing “familial or financial responsibilities,” the relationship did not constitute “cohabitation” although such facts are “often found in dating relationships.” Id. at ¶ 31. See, also, State v. Humbarger, 3d Dist. No. 15-01-18, 2002-Ohio-4160 (a three-day temporary stay at victim‘s residence does not constitute “cohabitation“).
{¶ 26} The analytical flaw of McKinley and Ward is in the examination of whether the relationship of cohabitation — rather than the legal status afforded to cohabitants — approximates marriage. That is, a proper analysis should be performed in two parts: First, what rights and liabilities attach to the relationship by virtue of the statute; second, do those rights and liabilities imposed upon the parties by the statute approximate marriage?
{¶ 27} Of course, if one examines only the set of factual conditions necessary or sufficient to constitute a relationship of “cohabitation,” then one can easily conclude that the resulting classification “approximates” marriage. However, the Marriage Amendment only prohibits and proscribes the state of Ohio from creating or recognizing any “legal status” that approximates marriage for a factual classification; the Marriage Amendment does not prohibit the existence of cohabitative relationships.
{¶ 28} In the domestic violence statute, the classification of the relationship precedes the recognition of a legal status: The statute first defines cohabitants, then it creates a legal status for members of that class. Examining the plain language of the Marriage Amendment, the phrase “intends to approximate the design, qualities, significance or effect of marriage” modifies “legal status,” not “relationships of unmarried individuals.” Hence, the legal status cannot approximate the design of marriage and not the relationship; otherwise, the number agreement between “relationships” and “intends” does not correspond.
{¶ 29} Judge Karpinski, dissenting in State v. Douglas, 8th Dist. Nos. 86567, 86568, 2006-Ohio-2343, most closely recognized the distinction which must be made when considering the effect of the Marriage Amendment upon a statute, though her conclusion, in our opinion, is erroneous. First, following Williams, she recognizes that the “sharing of familial or financial responsibilities and consortium” have been recognized by society as a relationship possessing the “design, qualities, significance or effect of marriage.” Id. at ¶ 23. With this, it is difficult to disagree. However, the point is merely descriptive of a set of factual circumstances shared by both legally married couples and cohabitating couples, regardless of sex or gender.
{¶ 30} She continues, “When two unmarried people are deemed cohabitants under the domestic violence statute, they attain a legal status: each may prosecute the other person for an act of violence under the statute. It is a crime quite different from a general assault, precisely because of the special intimacy of the parties.” Id. at ¶ 24. We also agree: R.C.
{¶ 31} Instead of completing the analysis required by the amendment, she concludes that R.C.
{¶ 32} We hold that it does not. Although R.C.
{¶ 33} Both Ward and McKinley confuse the elements of Williams’ “cohabitant” test to refer to a cohabitant‘s legal status rather than a cohabitant‘s factual classification. Merely recognizing that, in life, cohabitants provide consortium and financial support to each other does not bind them with a legal duty to do so, as does marriage. The flawed reasoning is also apparent in Logsdon, when the court states: “Webster‘s New Collegiate Dictionary defines `cohabit’ as `to live together as or as if as husband and wife.’ Webster‘s New Collegiate Dictionary 257 (1986 9th Ed.). Thus, the requirement that unmarried individuals must cohabit in order to obtain protection under R.C.
{¶ 34} The domestic violence statute‘s imposition of legal rights and liabilities neither intends to “approximate marriage” nor does that legal status approximate marriage in fact. Because Ward and McKinley incorrectly focused upon whether the relationship of cohabitants approximates marriage, there has been little discussion of whether criminal liability for committing violence against a cohabitant resembles “marriage.”
{¶ 35} While the Third District noted that the Constitution of Ohio must be enforced despite “adverse ramifications and unexpected or unintentional consequences to the public,” and that, under their decision, heterosexual cohabitants are protected by assault and other “appropriate” charges, McKinley, at ¶ 32, we are compelled to note the inverse: By upholding appellant‘s conviction, the domestic violence statute should and must be enforced against “cohabitants” regardless of sexual orientation or gender. The domestic violence statute makes no distinction with respect to the sexual relationship underlying that legal status, and neither should the enforcement systems of this state. See State v. Hadinger (1991), 61 Ohio App.3d 820, 823 (“[T]he legislature intended that the domestic violence statute provide protection to persons who are cohabiting regardless of their sex. We believe that to read the domestic violence statute otherwise would eviscerate the efforts of the legislature to safeguard, regardless of gender, the rights of victims of domestic violence. * * * R.C.
{¶ 36} For the foregoing reasons, appellant‘s assignment of error is not well taken, and the judgment of the Norwalk Municipal Court is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk‘s expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Huron County.
{¶ 37} “Whenever the judges of a court of appeals find that a judgment upon which they have agreed is in conflict with a judgment pronounced upon the same question by any other court of appeals of the state, the judges shall certify the record of the case to the supreme court for review and final determination.”
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98.
Peter M. Handwork, J., William J. Skow, J., Dennis M. Parish, J., concur.
Notes
Holding R.C.