{¶ 3} At his arraignment, Appellant pled not guilty. The matter proceеded to a jury trial on February 1, 2006. The jury found Appellant guilty of domestic violence and abduction. The trial court sentenced Appellant to four years in prison on both counts to be served concurrently. Appellant timely appealed his conviction, asserting two assignments of error for review.
{¶ 4} In his first assignment of error, Appellant alleges that the trial court did not give the complete jury instruction for domestic violence. Appellant claims that the trial court's jury instruction regarding family or household member was incomplete as there was no instruction on the meaning of cohabiting. Appellant argues the failure to instruct the jury regarding cohabiting resulted in plain error. We disagree.
{¶ 5} As a preliminary matter, we note that Appellant's brief concedes that he did not object to the jury instructions and thus the alleged error was not preserved for appeal. Appellant's failure to object to the jury instructions waives all challenges except plain error. State v. Skatzes,
{¶ 6} Pursuant to Crim.R. 52(B), "plain errors or defects affecting substantial rights may be noticed although they were nоt brought to the attention of the court." Plain error consists of an error that is obvious and has a substantial adverse impact upon both the integrity of, and the public's confidence in, the judicial proceedings. State v. Tichon (1995),
{¶ 7} Appellant has argued that plain error is established in the instant matter because the triаl court failed to give a jury instruction on cohabiting. The Ohio Supreme Court has stated that "an erroneous jury instruction does not constitute plain error, unless, but for the error, the outcome of the trial clearly would hаve been otherwise." State v. Cunningham,
{¶ 8} The general rule requires the trial court to instruct the jury on all the elements that the prosecution must prove.State v. Adams (1980),
{¶ 9} There are two essential elements of domestic violence: 1) appellant knowingly "caused or attempted to cause physical harm to the victim" and 2) "the victim was a family or household member." State v. Eberly, 3d Dist. No. 16-040-3,
"(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;
"* * *
"(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 оffender within five years prior to the date of the alleged commission of the act in question."
{¶ 10} In this case, the trial court gave the jury the above statute, almost verbatim, as the jury instruction for domestic violence. However, the trial court did not specifically instruct the jury as to the meaning of cohabiting, nor was it required. See State v. Cisternino (Mar. 30, 2001), 11th Dist. No. 99-L-137, at *8 (The trial court instructed the jury on domestic violence, "including the definitions of `family or household mеmber' and `person living as a spouse'" by reading the language of the statute. The trial court did not specifically define cohabiting.).
{¶ 11} The domestic violence statute, R.C.
{¶ 12} Appellant offered no evidence to prove that the result of the trial would have been different had the trial court instructed the jury as to cohabiting. In fact, there is unrefuted testimony from thе victim that Appellant was living with her because he was homeless. Additionally, the victim testified that Appellant would cook, clean, and help around the house while she was at work. Lastly, the victim testified that she and Apрellant were dating and she was six months pregnant with his child. Upon a review of the record, this Court cannot conclude that the outcome of the trial would have been different had the trial court given an instruction regаrding cohabiting. Accordingly, Appellant has failed to meet his burden of proof for a finding of plain error.
{¶ 13} Appellant's first assignment of error is overruled.
{¶ 14} In his second assignment of error, Appellant alleges his trial counsel was ineffective for failing to subpoena witnesses. Appellant contends these witnesses would have provided him with an alibi defense and the failure to subpoena these witnesses denied him of this defense. We disagree.
{¶ 15} The
"First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the
{¶ 16} The defendant has the burden of proof and must overcome the strong presumption that counsel's performance was adequate or that counsel's action might be sound trial strategy.State v. Smith (1985),
{¶ 17} In demonstrating prejudice, the defendant must prove that "there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different." State v. Bradley (1989),
{¶ 18} Although either step in the process may be dispositive, we will address the deficiency quеstion first in this analysis, based on the particular error Appellant asserts in his second assignment of error. Appellant alleges his trial counsel was deficient for failing to subpoena witnesses who would have provided Appellant with an alibi defense. "The mere failure to subpoena witnesses is not a substantial violation of an essential duty to a client in the absence of showing that testimony of any one or more the witnesses wоuld have assisted the defense." Middletown v. Allen (1989),
{¶ 19} Appellant's brief claims that his trial counsel failed to subpoena witnesses who would have provided testimony of an alibi defense. However, the record shows that trial counsel believed the witness would testify "that he was present duringthe alleged altercation, and nothing took place." This is not an alibi witness. An alibi witness is dеfined as "[a] witness who testifies that the defendant was in a location other than thescene of the crime at the relevant time." (Emphasis added.) Black's Law Dictionary (8 Ed. 2004) 1633. As there was no alibi witness, there was no ineffective assistance of counsel for not issuing subpoenas. Cf. State v. Smith (1997),
{¶ 20} Thus, trial counsel's failure to subpoena these witnessеs was not a substantial violation of his duty to Appellant. Appellant's charges do not overcome the presumption of competent counsel and fail to rise to the level of ineffective assistance of counsel. See Strickland,
{¶ 21} Appellant's second assignment of error is overruled.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order thаt a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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. App.R. 22(E). Thе Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
Slaby, P.J. Whitmore, J. Concur.