State v. RubesState v. Rubes
OPINION
Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. R 2010 CRB 1111.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Dennis Day Lager, Portage County Public Defender, 209 South Chestnut Street, #400, Ravenna, OH 44266 (For Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, David R. Rubes, appeals his conviction for Domestic Violence, following a trial in the Portage County Municipal Court, Ravenna Division. The issue to be decided in this case is whether a defendant is cohabiting with a victim for the purposes of a Domestic Violence conviction when he lives with her, she is his girlfriend, he gets mail at her home, sleeps in the same bed with her, and spends every night with her. For the following reasons, we affirm the decision of the court below.
{¶3} The matter proceeded to a bench trial on September 19, 2011. The State presented the following testimony.
{¶4} Donald O’Neal testified that his daughter, Kim, who is 21 years old, lives in his home. On May 11, 2010, Kim was living there, as well as Kim’s boyfriend, Rubes. O’Neal explained that on that date, Rubes had been living there for about a year. O’Neal testified that he allowed Rubes to live there because he did not have a job or a place to stay and was his daughter’s boyfriend. On May 11, O’Neal heard Rubes and Kim both screaming, with Rubes yelling threats at Kim. O’Neal ran upstairs and saw Rubes “pushing Kim” against a wall. O’Neal yelled at Rubes to leave the home and Rubes punched O’Neal in the face.
{¶5} Regarding the living situation, O’Neal testified that neither Kim nor Rubes paid him rent to live in the home. Rubes also did not pay for groceries or utilities. O’Neal explained that Rubes “was asked to do some odd jobs around the house.” He also stated that Kim brought some groceries or food into the home at times. He explained that he was not aware of Rubes and Kim sharing in any expenses related to living at his home. O’Neal testified that in July of 2010, a few months after the incident, Rubes was allowed to move back into the home and lived there until around February of 2011. O’Neal testified that Rubes and Kim slept in the same bedroom, Rubes slept there every night, and he had personal items and clothing in the home. Rubes also received mail at that address.
{¶7} At the close of the State’s case, Rubes moved for acquittal on both Domestic Violence charges, one with O’Neal as the victim and the other with Kim as the victim. Rubes asserted there was no evidence that he was a family or household member of either O’Neal or Kim. Rubes also argued that the physical harm element had not been proven in the case involving Kim. The trial court granted the motion as to the Domestic Violence charge arising from case number R 2010 CRB 1110, in which Kim was the alleged victim, and that charge was dismissed.
{¶8} Subsequently, the trial court found Rubes guilty of one count of Domestic Violence, a first degree misdemeanor, stemming from case number R 2010 CRB 1111, in which O’Neal was the victim. The court memorialized this in a September 22, 2011 Judgment Entry.
{¶9} On December 19, 2011, the trial court issued a Judgment Entry of Sentence. A subsequent sentencing entry nunc pro tunc was filed on January 5, 2012. The trial court sentenced Rubes to 180 days in jail, with 150 days suspended. Rubes was ordered to serve one year of probation and pay a $100 fine and court costs. He was also ordered to complete a substance abuse assessment and have no contact with O’Neal.
{¶10} On January 13, 2012, Rubes filed a Motion for Stay of Execution Pending Appeal. The trial court granted the stay on the same date.
{¶11} Rubes timely appeals and raises the following assignment of error:
{¶13} The Ohio Rules of Criminal Procedure provide that a defendant may move the trial court for a judgment of acquittal “if the evidence is insufficient to sustain a conviction.”
{¶14} “An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In reviewing the sufficiency of the evidence to support a criminal conviction, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Id
{¶15} In order to convict Rubes of Domestic Violence, the State had to prove, beyond a reasonable doubt, that he “knowingly cause[d] or attempt[ed] to cause
{¶16}
{¶17} “(1) ‘Family or household member’ means any of the following:
{¶18} “(a) Any of the following who is residing or has resided with the offender:
{¶19} “(i) A spouse, a person living as a spouse, or a former spouse of the offender;
{¶20} “(ii) A parent, a foster parent, or a child of the offender, or another person related by consanguinity or affinity to the offender;
{¶21} “(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.
{¶22} “(b) The natural parent of any child of whom the offender is the other natural parent or is the putative other natural parent.”
{¶23} Rubes argues that although he lived in O’Neal’s home, this alone was not sufficient to classify him as a family or household member of O’Neal under
{¶25} A “person living as a spouse” is defined as “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.”
{¶26} The Ohio Supreme Court has held that “the essential elements of ‘cohabitation’ are (1) sharing of familial or financial responsibilities and (2) consortium. * * * 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. These factors are unique to each case * * *.” State v. Williams, 79 Ohio St.3d 459, 465, 683 N.E.2d 1126 (1997). The Ohio Supreme Court has emphasized that “it is a person’s determination to share some measure of life’s responsibilities with another that creates cohabitation.” State v. Carswell, 114 Ohio St.3d 210, 2007-Ohio-3723, 871 N.E.2d 547, ¶ 35.
{¶28} Rubes argues that he did not cohabit with Kim because he did not share financial and familial responsibilities with her.
{¶29} We initially note that there is limited case law from this court in Domestic Violence cases related to the Williams test for cohabitation. In the only criminal case to address the Williams cohabitation elements, State v. Boldin, 11th Dist. No. 2007-G-2808, 2008-Ohio-6408, this court found that parties were “living as spouses,” or cohabiting, when the defendant and victim were living together, the victim paid for groceries and utilities, did all of the household chores, handled the finances, and the parties had been intimate. Id. at ¶ 52. In the present case, not all of these circumstances were present. Neither Kim nor Rubes were paying rent or utilities while living in O’Neal’s home. However, according to O’Neal’s testimony, Kim did purchase food to bring into the household and Rubes did odd jobs around the home. The evidence also shows that Rubes and Kim were in a relationship and that Rubes had been living with her for approximately a year. According to O’Neal, Rubes was sleeping in the same bed as Kim, and living in her bedroom. Rubes had clothing and personal
{¶30} Regarding the first prong of the Williams factors, the familial or financial responsibility element, we recognize that there was not a great deal of financial connection between the parties. However, although Kim and Rubes were not paying the rent or bills, Kim essentially provided Rubes with a place to live, by allowing him to stay in her room in her father’s home. This creates at least some familial and financial relationship, especially when coupled with Kim purchasing food and Rubes doing odd jobs around the house. Since the two were in unique circumstances and were not required to pay living expenses, we cannot determine that their failure to jointly pay such expenses means that they were not cohabiting. See State v. Williams, 2nd Dist. No. 99 CA 72, 2000 Ohio App. LEXIS 4642, *11 (Oct. 6, 2000) (while neither the victim or the defendant were employed or owned a house or apartment and they had no financial responsibilities, there was evidence of cohabitation where the defendant invited the victim to live in a place where he was staying for free, and the victim purchased food for the two parties, since the parties shared familial and financial responsibilities to the extent that they had any such responsibilities).
{¶32} Rubes also argues that since the trial court dismissed the charges related to Kim because she was not a family or household member of Rubes, it would be improper to argue that Donald O’Neal is a household member of Rubes by virtue of being Kim’s parent. However, the record does not indicate that the court dismissed the Domestic Violence charge relating to Kim because she was not a household member of Rubes. Regarding the dismissal of that charge, the trial court stated on the record only that the
{¶33} Finally, Rubes argues that, regardless of the foregoing, the trial court improperly applied
{¶34} The sole assignment of error is without merit.
{¶35} Based on the foregoing, the Judgment Entry of the Portage County Municipal Court, Ravenna Division, finding Rubes guilty of Domestic Violence, is affirmed. Costs to be taxed against appellant.
TIMOTHY P. CANNON, J.,
THOMAS R. WRIGHT, J.,
concur.