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OPINION
{¶ 1} Christopher Woullard appeals from his conviction fordomestic violence and the sentence imposed on that convictionpursuant to law.
{¶ 2} Woullard was indicted on December 19, 2002 on one countof domestic violence, in violation of R.C. 2919.25(A). Theoffense, which is ordinarily a first degree misdemeanor, wascharged as a felony of the fifth degree pursuant to R.C.2919.25(D) upon an allegation that Woullard had a prior domesticviolence conviction. A jury trial was held on April 30, 2003 andMay 1, 2003, during which the following evidence was adduced.
{¶ 3} Chandra Denise Williams testified that on December 2,2002, she and Woullard argued at their home at 1412 Salem,Fairborn, Ohio. The two had been boyfriend and girlfriend "offand on" for approximately eight years. The couple residedtogether with Williams' two children.
{¶ 4} At approximately 5:00 p.m. on that day, Woullard pickedup Williams from her work at the Fairfield Commons Mall. It wasapparent to Williams that Woullard had been drinking. Uponarriving home, Williams received a telephone call from hermother. Woullard, believing the caller was someone else, becamevery angry and choked Williams. Fortunately, another man arrivedat the home at the same time and Williams was able to leave thehouse with her younger son.
{¶ 5} Williams went to her mother's house after picking up herolder son from his basketball game. She called home to see ifWoullard was still there. No one answered the telephone, and sheconcluded that Woullard had left the residence.
{¶ 6} Williams, accompanied by her older son Michael and hersister, Lucreitica Razor, went to the residence to gather some ofthe boys' and her belongings. Upon stepping into her bedroom,Williams encountered Woullard. Woullard asked her what she wasdoing; Williams replied that she was gathering some of her belongings to take to her mother's house because she did not"want to be bothered with the arguing." Woullard quickly stoodup, "got in [her] face," pointing directly at her and threateningto Williams and her mother.
{¶ 7} Woullard then asked Williams for a ride to Dayton, butshe declined because of his threats. Woullard became very upsetand began punching, hitting and kicking her. Williams hit herhead on the wall and fell to the ground. Razor, who was acrossthe hall in the kitchen, saw what was occurring and beganscreaming at Woullard. Razor grabbed a knife from the kitchen andwent toward Woullard. Williams intervened and prevented Razorfrom entering the room.
{¶ 8} After Woullard left the room, Williams and Razor quicklyleft the residence. As they ran out of the house, they sawWoullard running after them, swinging a silver colored baseballbat. Williams and Razor screamed for someone to call the police.Woullard returned to the residence. The Fairborn Police arrivedshortly thereafter.
{¶ 9} Williams suffered a bloody lip and a swollen handOfficer Joseph P. May was dispatched to the residence and sawWilliams' injuries. Upon securing the home, he did not locateWoullard, but did recover a baseball bat from the back yard ofthe residence.
{¶ 10} Warren Howard, a Dayton Municipal Court ProbationOfficer, testified at trial that he had previously been assignedas Woullard's probation officer following a misdemeanor domesticviolence conviction in 1998, in Case Number 98-CRB-927.
{¶ 11} The jury convicted Woullard on the domestic violencecharge. The trial court sentenced Woullard to eleven months ofincarceration. Woullard now appeals his conviction and sentence,asserting four assignments of error.
FIRST ASSIGNMENT OF ERROR: {¶ 12} "The trial court erred in sentencing appellant for afelony instead of a misdemeanor[.]"
{¶ 13} Woullard challenges the trial court's jury instructionson the prior domestic violence conviction and also the trialcourt's judgment of conviction based upon the language containedin the verdict form.
{¶ 14} Woullard was charged with Domestic Violence, R.C.2919.25(A), which per paragraph (D) of that section is a firstdegree misdemeanor. However, that same paragraph further providesthat the offense is a felony of the fifth degree if the offenderhas previously been convicted of domestic violence. Theindictment charging Woullard alleged that he had previously beenconvicted of domestic violence and that the offense with which hewas charged is a fifth degree felony.
{¶ 15} When the case was presented to the jury the court gavethe following charge:
{¶ 16} "Before you can find the Defendant guilty, you mustfind beyond a reasonable doubt that on or about the 2nd day ofDecember, 2002, in Greene County, Ohio, the Defendant,Christopher Woullard, knowingly caused, or attempted to causephysical harm to a family or household member, and at the time,Christopher Woullard had previously been convicted of domesticviolence." The trial court further noted that having "previouslybeen convicted of domestic violence means having been foundguilty or pleading guilty to the crime of domestic violence priorto December 2d 2002."
{¶ 17} R.C. 2945.75(A)(2) states, in pertinent part, that"[w]hen the presence of one or more additional elements makes anoffense one of more serious degree * * * [a] guilty verdict shallstate either the degree of the offense of which the offender isfound guilty, or that such additional element or elements arepresent. Otherwise, a guilty verdict constitutes a finding ofguilty of the least degree of the offense charged."
{¶ 18} The jury returned a verdict of guilty. The verdict formmakes no finding or other reference to the prior convictionalleged or to the degree of offense charged. Instead, it simplystates: "We the Jury, being duly empaneled and sworn, find theDefendant, Christopher Woullard: Guilty of the offense ofdomestic violence as charged in the indictment." Thereafter, onMay 2, 2003, the trial court entered a judgment convictionWoullard of "Domestic Violence, a felony of the fifth degree."
{¶ 19} Woullard's defense counsel failed to object to theverdict form at trial, and thus Woullard has waived all but plainerror on appeal. State v. Ballew, 76 Ohio St.3d 244, 251,1996-Ohio-81, 667 N.E.2d 369. Counsel's failure to object"constitutes a waiver of any claim of error relative thereto,unless, but for the error, the outcome of the trial clearly wouldhave been otherwise." Id.
{¶ 20} Woullard's first contention is that the trial court didnot give complete jury instructions necessary and relevant forthe jury to make its determination of guilt of the felony chargedunder State v. Comen (1990), 50 Ohio St.3d 206, 553 N.E.2d 640.In Comen, the Ohio Supreme Court stated that "[a]fter argumentsare completed, a trial court must fully and completely give thejury all instructions which are relevant and necessary for thejury to weigh the evidence and discharge its duty as the factfinder." Id. at paragraph 2 of the syllabus. We find that theabove-mentioned instructions are more than adequate to dischargethe trial court of this duty, as they mentioned the element of aprevious domestic violence conviction and also defined"previously been convicted."
{¶ 21} Woullard's other contention within this assignment oferror is that the trial court erred when it convicted him of theoffense of domestic violence as a felony rather than as amisdemeanor because the verdict form did not comply with R.C.2945.75(A)(2). In support of this argument, Woullard asserts thathis situation is similar to that in State v. Burrow (2000),140 Ohio App.3d 466, 748 N.E.2d 95, wherein the appellate courtreversed on the basis of an imperfect verdict form "similar tothe one used in this case."
{¶ 22} In Burrow, the defendant was convicted of carrying aconcealed weapon. The indictment contained the felony-enhancementlanguage which properly supplied the enhancement element of R.C.2923.12(D), "a firearm loaded or with ammunition ready at hand"The verdict form, however, did not incorporate the language ofthe indictment. Neither did it contain the degree of the offenseor the additional element making the offense one of a moreserious degree. Moreover, while the trial court read theindictment to the jury, it did not further instruct the jury onthe additional "in the commission of a felony" element. Basedupon this, the appellate court reversed on the basis of theimperfect verdict form, finding plain error.
{¶ 23} We recently addressed a similar situation in State v.Boykin, Montgomery App. No. 19896, 2004-Ohio-1701. In Boykin,the trial court provided the following verdict forms to the juryin the matter where there was to be a felony enhancementprovision: "We, the jury, upon the issues joined in this case, dofind the Defendant, MATTHEW C. BOYKIN, guilty of POSSESSION ofCRIMINAL TOOLS for Check Number * * * in violation of R.C.2923.24(A) of the Ohio Revised Code." Id. at ¶ 130.
{¶ 24} The indictment in Boykin included the additionalelement, "in the commission of a felony," but failed to describethe felony. The verdict form did not incorporate the language ofthe indictment, and the trial court did not further instruct thejury on the additional "in the commission of a felony" element.Despite the lack of felony-enhancement language on the verdictform, the trial court sentenced Boykin as if he were convicted ofa felony. We reversed the trial court's sentencing, finding thatthe trial court's failure to instruct the jury on the "in thecommission of a felony" element "gave the jury a meaningfulopportunity to find Boykin guilty only of the misdemeanoroffense." We found that the error was not harmless, and wereversed and remanded the cause for re-sentencing.
{¶ 25} This case is distinguishable from Burrow and Boykinas the focus in those cases was the trial court's failure todescribe the felony-enhancement specification to the jury in itscharge. In this case, the trial court did identify theaggravating circumstance in its charge, that being the priordomestic violence conviction. The trial court further explainedthat the jury had to find a prior domestic violence conviction tofind Woullard guilty of domestic violence.
{¶ 26} In both Burrow and Boykin, a substantial compliancerule was applied to avoid the failure to strictly comply withprovisions governing jury instructions. However, the defect hereis not with respect to the instructions that were given but withrespect to the verdict form, which failed to contain the specificenhancement finding required by R.C. 2945.75(A)(2).
{¶ 27} The State relies on State v. Woods (1982),8 Ohio App.3d 56, wherein the Eighth District Court of Appeals held thata verdict's failure to comply with R.C. 2945.72(A)(2) does notconstitute reversible error when "the verdicts incorporate thelanguage of the indictments, the evidence overwhelmingly showsthe presence of the aggravating circumstances, and defendantsnever objected at trial to the form of the verdicts." Id.,
atp. 63.
{¶ 28} The three Woods requirements are satisfied here.Defendant never objected to the form of the jury's verdict. Therewas uncontradicted evidence of the aggravating circumstance. And,at least to the extent that it mentioned the "language of theindictments" by way of that summary reference, the verdictincorporates that language of the indictment. Nevertheless, wedecline to follow Woods because we believe that its logic isflawed in at least two ways.
{¶ 29} First, Woods cites and relies on State v. Corkran(1965), 3 Ohio St.2d 125, which found that a verdict form thatdid not include an express finding of the value of propertyallegedly stolen was nevertheless sufficient because thedefendant was charged with stealing property having a value ofless than sixty dollars, the minimum value among two or morewhich the theft statute identified, and "[t]he very descriptionin the indictment and in the evidence of the stolen merchandise . . .demonstrates that it possessed some value." Id.,
at p.130.
{¶ 30} Here, unlike in Woods, Defendant-Appellant wasconvicted of an alternative greater degree of the offensecharged, not the threshold or minimal level of the statutoryoffense. The jury was therefore required to reach a particularfinding in order to return a verdict of guilty with respect tothe greater offense. In Woods, the basic finding was implicitin the verdict the jury returned.
{¶ 31} Second, a substantial compliance test ignores thefurther limitation the General Assembly imposed when it enactedthe finding requirement in R.C. 2945.75(A)(2), which states:"Otherwise, a guilty verdict constitutes a finding of guilty ofthe least degree of the offense charged." It is noteworthy thatthe version of R.C. 2945.75 involved in Corkran contained nosimilar limitation. The General Assembly presumably added it forsome purpose. Engrafting a judicial rule of substantialcompliance defeats that purpose and the statutory mechanism theGeneral Assembly adopted to enforce it.
{¶ 32} We are also instructed by the General Assembly that"sections of the Revised Code defining offenses or penaltiesshall be strictly construed against the state, and liberallyconstrued in favor of the accused." R.C. 2901.04(A). This doesnot prohibit the use of substantial compliance tests, and thesubstantial compliance factors set out in Wood imposes thehighest of standards. Nevertheless, the R.C. 2901.04(A) enjoindermakes it difficult to put aside the consequence that R.C.2945.75(A)(2) plainly imposes for a failure to comply with itsfindings requirement: that, otherwise, the guilty verdictreturned "constitutes a finding of guilty of the least degree ofthe offense charged." Id.
{¶ 33} These considerations cause us to conclude that, on theverdict returned, the trial court erred when it convictedDefendant-Appellant of the charged offense of Domestic Violence,R.C. 2919.25(A), as a fifth degree felony instead of a firstdegree misdemeanor, which is the least degree of that offense perR.C. 2919.25(D). Further, because the error is structural innature, it is not waived by Defendant-Appellant's failure toobject.
{¶ 34} The first assignment of error is sustained.
SECOND ASSIGNMENT OF ERROR: {¶ 35} "Appellant was denied his right to a fair trial when hereceived ineffective assistance of counsel in violation of thefifth, sixth and fourteenth amendements {sic} to theunited states constitution[.]"
{¶ 36} Preliminarily, we note that in order to demonstrateineffective assistance of counsel, Woullard must establish thathis counsel's representation fell below an objective standard ofreasonableness and that he has been prejudiced by his counsel'sdeficient performance, i.e., that there exists a reasonableprobability that, were it not for counsel's errors, the result ofthe trial would have been different. Strickland v. Washington(1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v.Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. Trial counselis entitled to a strong presumption that his or her conduct fallswithin the wide range of reasonable assistance. See Strickland,466 U.S. at 689. Hindsight is not permitted to distort theassessment of what was reasonable in light of counsel'sperspective at the time, and a debatable decision concerningtrial strategy cannot form the basis of a finding of ineffective assistance of counsel. See id.; State v. Parker, MontgomeryApp. No. 19486, 2003-Ohio-4326, ¶ 13.
{¶ 37} Woullard asserts that he suffered from ineffectiveassistance of counsel because trial counsel failed to request ajury instruction on self-defense, failed to insist on morespecific definitions of the words "family or household member,"and failed to subpoena Razor and Officer Lawrence Marshall fortrial.
{¶ 38} We first address Woullard's claim that his counsel wasineffective in failing to pursue a theory of self-defense.Initially, we note that if counsel decides not to pursue everypossible trial strategy, defendant is not necessarily deniedeffective assistance of counsel. State v. Brown (1988),38 Ohio St.3d 305, 319, 528 N.E.2d 523. Defense counsel's strategy musthave been outside the realm of legitimate trial strategy so as"to make ordinary counsel scoff" before a conviction will bereversed on the basis of ineffective assistance. See State v.Yarber (1995), 102 Ohio App.3d 185, 188, 656 N.E.2d 1322; Statev. Burgins (1988), 44 Ohio App.3d 158, 160, 542 N.E.2d 707;State v. Moore (Mar 21, 1998), Franklin App. No. 97APA07-896.
{¶ 39} Under Ohio law, to support an instruction onself-defense, an accused must prove by a preponderance of theevidence: (1) the accused was not at fault in creating thesituation giving rise to the affray; (2) the accused had a bonafide belief that he was in imminent danger of death or greatbodily harm and that the only means of escape from such dangerwas in the use of force; and (3) the accused must not haveviolated any duty to retreat or to avoid the danger. State v.Williford (1990), 49 Ohio St.3d 247, 249, 551 N.E.2d 1279,citing State v. Robbins (1979), 58 Ohio St.2d 74, paragraph twoof the syllabus, 388 N.E.2d 755. Further, "[i]f the defendantfails to prove any one of these elements by a preponderance ofthe evidence he has failed to demonstrate that he acted inself-defense." State v. Jackson (1986), 22 Ohio St.3d 281, 284,490 N.E.2d 893.
{¶ 40} In this case, the evidence at trial does not support aself-defense scenario. First, the evidence establishes thatWoullard was at fault in creating the situation giving rise tothe affray. Williams testified that when she went back to herresidence to pick up some of her and her children's belongings,Woullard became upset and "got in her face," threatening to killher and her mother. When Williams declined to drive Woullard toDayton, Woullard responded by punching, kicking and hittingWilliams. Williams' testimony was corroborated by Razor, whostated that Woullard had punched and kicked Williams afterarguing with her. No evidence establishes that Williams reactedaggressively to Woullard's actions to make him retaliate. Infact, Williams stated that she fell to the ground, but Woullardcontinued to kick and punch her. Razor corroborated these facts, stating that she had watched her sister, who was on theground, being kicked and punched by Woullard.
{¶ 41} Regarding the evidence that Razor grabbed a kitchenknife and went after Woullard, the record reveals that theabove-mentioned facts occurred prior to Razor obtaining theknife. Therefore, at the point Razor had grabbed the knife andapproached Woullard, the elements of domestic violence hadalready been satisfied.
{¶ 42} Second, no evidence establishes that Woullard believedthat he was in imminent danger of death or great bodily harm thatmandated the use of such force to escape the danger. Woullardclaims that he had to use force to escape Razor, who had grabbeda knife from the kitchen. However, there is no evidence thatWoullard saw the knife in Razor's control, since Williamsprevented Razor from entering the bedroom. Furthermore, therecord reveals that Woullard began beating Williams prior toRazor obtaining the knife from the kitchen, thus the self-defenseinstruction would have been futile in this domestic violencecase. Finally, Woullard had the opportunity to retreat whenWilliams and Razor ran out of the house and off the property.Instead, Woullard followed them out of the house, armed with abaseball bat.
{¶ 43} Accordingly, we find that a jury instruction onself-defense would have been futile since he failed to prove theelements of self-defense by a preponderance of the evidence.Furthermore, a claim of ineffective assistance of counsel cannotbe predicated upon a matter which did not constitute error.State v. Getsy (1998), 84 Ohio St.3d 180, 702 N.E.2d 866. Basedon the evidence presented, we cannot conclude that trialcounsel's performance fell below an objective standard ofreasonableness.
{¶ 44} Woullard next asserts that he suffered from ineffectiveassistance of counsel because trial counsel failed to request amore specific jury instruction on the definition of "family orhousehold member."
{¶ 45} It is error for a trial court not to give a jury allinstructions which are relevant and necessary for the jury toweigh the evidence and discharge its duty as the trier of fact.State v. Comen (1990), 50 Ohio St.3d 206, 553 N.E.2d 640.Accordingly, the trial court must give a correct jury instructionon the elements of the offense charged and all defenses raised bythe evidence. State v. Williford (1990), 49 Ohio St.3d 247,551 N.E.2d 1279.
{¶ 46} Woullard was found guilty of domestic violence inviolation of R.C. 2919.25(A), which provides: "No person shallknowingly cause or attempt to cause physical harm to a family orhousehold member." The statute defines "family or householdmember" as any of the following:
{¶ 47} "(a) Any of the following who is residing or hasresided with the offender:
{¶ 48} "(i) A spouse, a person living as a spouse, or a formerspouse of the offender;
{¶ 49} "(ii) A parent or a child of the offender, or anotherperson related by consanguinity or affinity to the offender;
{¶ 50} "(iii) A parent or a child of a spouse, person livingas a spouse, or former spouse of the offender, or another personrelated by consanguinity or affinity to a spouse, person livingas a spouse, or former spouse of the offender.
{¶ 51} "(b) The natural parent of any child of whom theoffender is the other natural parent or is the putative othernatural parent."
{¶ 52} R.C. 2919.25(F)(2).
{¶ 53} The statute further defines "person living as a spouse"to be "a person who is living or has lived with the offender in acommon law marital relationship, who otherwise is cohabiting withthe offender, or who otherwise has cohabited with the offenderwithin five years prior to the date of the alleged commission ofthe act in question." R.C. 2919.25(F)(2).
{¶ 54} The trial court instructed the jury as follows: "TheDefendant in this case is charged with domestic violence. Beforeyou can find the Defendant guilty, you must find beyond areasonable doubt that on or about the 2nd day of December, 2002,in Greene County, Ohio, the Defendant, Christopher Woullard,knowingly caused, or attempted to cause physical harm to a familyor household member, and at the time, Christopher Woullard hadpreviously been convicted of domestic violence."
{¶ 55} In defining "family or household member," the trialcourt instructed the jury as follows:
{¶ 56} "Family or household member means a person who is {sic}resides with the Defendant, and who is a person living as aspouse of the Defendant.
{¶ 57} "A person living as a spouse means a person who isliving with the Defendant, has lived with the Defendant in acommon law marital relationship, cohabitating with the Defendant,or has cohabitated with the Defendant within five years beforethe commission of the act in question."
{¶ 58} The general instruction on domestic violence given bythe trial court is virtually identical to the language of thestatute defining that offense, R.C. 2919.25(A) and 2919.25(F)(1)and (2). Likewise, the trial court's instructions in this casedefining various terms and specific elements of the offense ofdomestic violence recite the statutory definitions.
{¶ 59} We do note that in instructing the jury on thedefinition of "family or household member," the trial courtfailed to include in its instruction language defining all thedifferent scenarios as contained in R.C. 2919.25(F)(1)(a)(ii) and(iii), and R.C. 2919.25(F)(1)(b). We find, however, that thesealternative scenarios did not apply to this case. Hence, wereject that any claim that this defect in the trial court'sinstructions may have misled the jury or affected the outcome ofWoullard's trial, given the state of the evidence in this case.
{¶ 60} Woullard presented no evidence at trial. The onlyevidence about the events that transpired that led to thisdomestic violence came from the testimony of the victim,Williams, and her sister, Razor.
{¶ 61} Williams testified that Woullard, her children and shelived together for approximately eight years. During that time,Woullard and she shared a bed and the household bills, andWoullard maintained a relationship with her children.Additionally, Razor referred to the bedroom at the residence as"Him and Chandra's room."
{¶ 62} On this record, there is no reasonable possibility thatthe outcome of this trial could have been affected by the trialcourt's failure to include language in its domestic violenceinstruction more specifically defining "family and householdmember." Incidentally, Woullard does not provide us withsuggestions on how the trial court could have "better-defined"the term "family or household member." Had such an instructionbeen given, the outcome of this trial would have undoubtedly beenthe same.
{¶ 63} As such, we must overrule this portion of Woullard'sassignment of error, as had trial counsel objected to the juryinstructions, the outcome of trial would not have beendifferent.
{¶ 64} Last, Woullard claims ineffective assistance of counselbased upon trial counsel's failure to subpoena Razor and OfficerLawrence Marshall, and trial counsel's failure to request thatthe trial court not release the witnesses until after theytestified for the prosecution.
{¶ 65} An attorney's failures to subpoena witnesses is withinthe realm of trial tactics and does not, absent a showing ofprejudice, deny a defendant effective assistance of counsel.State v. Hunt (1984), 20 Ohio App.3d 310, 486 N.E.2d 108,syllabus. Woullard must overcome the strong presumption that,under the circumstances, counsel rendered adequate assistance andthat the challenged actions might be considered sound trialstrategies. State v. Smith (1985), 17 Ohio St.3d 98, 100,477 N.E.2d 1128.
{¶ 66} In this case, Woullard claims that he suffered fromineffective assistance of counsel because trial counsel failed tosubpoena Razor and Officer Marshall at trial. He claims that hewas unable to question Razor about her prior conviction and poseother obstacles that would prevent the jury from finding hertestimony credible. Similarly, defense counsel sought examinationof Officer Marshall to impeach his testimony. Officer Marshalltestified that he had had no prior contact with Williams beforethe domestic violence incident. Woullard claims, however, thatOfficer Marshall had been dispatched to a traffic accident scenethat involved Williams in August of 2002.
{¶ 67} We do not find that this amounts to ineffectiveassistance of counsel. Woullard's trial counsel had theopportunity, and exercised the opportunity, to cross-examine bothwitnesses during trial. Inasmuch as trial counsel had theopportunity and used that opportunity to cross-examine Razor andOfficer Marshall, it is unclear how subpoenaing them to call themas witnesses again would have changed the outcome at trial. Infact, defense counsel cross-examined Razor, and alsore-cross-examined her. As the trial court pointed out, at no timedid trial counsel address the issue of a prior conviction,although defense counsel had ample opportunity to do so.Similarly, the issue of Officer Marshall having prior contactwith Williams did not arise, although defense counsel could havepursued this line of questioning during cross-examination.
{¶ 68} Regarding whether the failure of trial counsel tosubpoena these witnesses resulted in ineffective assistance ofcounsel, we cannot say that but for trial counsel's failure, theresults of Woullard's trial would have been different, as he hadthe opportunity to cross-examine these witnesses about suchinformation.
{¶ 69} Accordingly, we find that this portion of Woullard'sassignment of error has no merit.
{¶ 70} Based upon our previous discussion, we overruleWoullard's second assignment of error.
THIRD ASSIGNMENT OF ERROR: {¶ 71} "Appellant's conviction for domestic violence is basedupon insufficient evidence[.]"
{¶ 72} Woullard asserts that there was insufficient evidencein the record for the State to have met its burden of proof onthe element of "family or household member" within the charge fordomestic violence. Specifically, Woullard bases this on Williams'contact with the Fairborn Police Department after his arrest toreport that she and Woullard did not reside in the samehousehold.
{¶ 73} When reviewing a trial court's decision on asufficiency of the evidence standard, an appellate court shouldexamine the evidence to determine whether, when believed, suchevidence "would convince the average mind of the defendant'sguilt beyond a reasonable doubt." State v. Jenks (1991),61 Ohio St.3d 259, 574 N.E.2d 492. When the evidence is interpretedmost favorably toward the prosecution, sufficient evidence waspresented if a rational trier of fact "could have found theessential elements of the crime proven beyond a reasonabledoubt." Id.
{¶ 74} Domestic violence is prohibited under R.C. 2919.25(A),which provides, "[n]o person shall knowingly cause or attempt tocause physical harm to a family or household member." Because theGeneral Assembly believed that an assault involving a family orhousehold member deserved further protection than an assault on astranger, "the offense of domestic violence, as expressed in R.C.2919.25(E)(1)(a) and related statutes, arises out of therelationship of the parties rather than their exact livingcircumstances." State v. Williams, 79 Ohio St.3d 459, 463-464,1997-Ohio-79, 683 N.E.2d 1126. Cohabitation is the centralelement of the R.C. 2919.25(E)(2) definition of a person livingas one's spouse. The supreme court has held that the essentialelements of cohabitation are the sharing of familial or financialresponsibilities and consortium. Williams, supra, at paragraphtwo of the syllabus.
{¶ 75} Possible factors establishing shared familial orfinancial responsibilities include provisions for shelter, food,clothing, utilities, and commingled assets. Id. at 465. Thesefactors are unique to each case, and how much weight, if any, togive to each of these factors must be decided on a case-by-casebasis by the trier of fact. Id. The burden of establishingcohabitation is not substantial. State v. Young (Nov. 20,1998), Montgomery App. No. 16985. In determining issues such aswhether two persons had cohabited for purposes of R.C.2919.25(E)(2), "courts should be guided by common sense andordinary human experience." Id.
{¶ 76} According to Williams, Woullard and her children livedwith her at 1412 Salem in Fairborn, Ohio. Williams stated thatWoullard and she had been involved in a relationship "off and on"for eight years. She further testified that Woullard and she hadshared a bedroom at the residence, they had shared the monthlyexpenses of the residence, and Woullard had engaged in arelationship with her children.
{¶ 77} During cross-examination, defense counsel attempted toelicit testimony from Williams that she did not live withWoullard. Williams explained that, after his arrest on the chargeat issue, she had contacted the Fairborn Police Department toinform them that Woullard did not reside at the residence at 1412Salem with her. Despite this, however, she testified during trialthat Woullard had resided with her during the time of theincident. Williams explained that she did call the FairbornPolice Department with this information because she was concernedthat she would lose her benefits with the Greene MetropolitanHousing Authority because Woullard had resided in the house.
{¶ 78} Additionally, Razor corroborated Williams' testimony bystating that on the date of the incident, she witnessed Woullardin "[h]im and Chandra's room."
{¶ 79} Guided by common sense and ordinary human experience,the average person could have concluded from this evidence thatWilliams and Woullard had shared their familial and financialresponsibilities, and that Woullard was a person living asWilliams' spouse for purposes of a domestic violence conviction.See State v. Miller (1995), 105 Ohio App.3d 697,664 N.E.2d 1309.
{¶ 80} Accordingly, after viewing the evidence in a light mostfavorable to the prosecution, any trier of fact could have foundthe essential elements of the domestic violence proven beyond areasonable doubt. Consequently, this assignment of error isoverruled.
FOURTH ASSIGNMENT OF ERROR: {¶ 81} "Appellant's conviction for domestic violence isagainst the manifest weight of the evidence[.]"
{¶ 82} In this last assignment of error, Woullard asserts thathis conviction for domestic violence is against the manifestweight of the evidence because Williams was not a crediblewitness. Because of this, the jury lost its way on the issue ofwhether Woullard was a "family or household member."
{¶ 83} When conducting the manifest weight analysis, "[t]hecourt, reviewing the entire record, weighs the evidence and allreasonable inferences, considers the credibility of the witnessesand determines whether in resolving conflicts in the evidence,the [trier of fact] clearly lost its way and created such amanifest miscarriage of justice that the conviction must bereversed and a new trial ordered. The discretionary power togrant a new trial should be exercised only in the exceptionalcase in which the evidence weighs heavily against theconviction." State v. Hufnagel (Sept. 6, 1996), Montgomery App.No. 15563, quoting State v. Martin (1983), 20 Ohio App.3d 172,175, paragraph three of the syllabus, 485 N.E.2d 717. Unlike thesufficiency of evidence standard of review, a reviewing courtdoes not construe the evidence most strongly in favor of theprosecution when using a manifest weight standard of review.Hufnagel, supra. A manifest weight of the evidence argumentquestions the believability of the evidence and asks a reviewingcourt to determine which of the competing inferences is morebelievable. Id. However, the appellate court may not substituteits judgment for that of the trier of fact on the issue of thecredibility of the witnesses unless its is patently apparent thatthe factfinder lost its way. State v. Bradley (Oct. 24, 1997),Champaign App. No. 97-CA-03.
{¶ 84} Woullard claims that the State failed to establish thathe was a "family or household member," based upon the incredibletestimony of Williams. We disagree.
{¶ 85} As we stated in the previous assignment of error,Williams did present conflicting testimony as to whether shelived with Woullard. Williams explained that the reason she hadcalled the Fairborn Police Department was because she was notpermitted to be living with Woullard in this type of housing, andshe was afraid that she would lose her benefits. The jury heardall of the testimony at issue, including the conflictingtestimony of Williams, and made a determination that Williams'testimony that Woullard and she had resided together wascredible. The jury in this case had to base its judgment on thecredibility of the witnesses. We cannot say that the trier offact lost its way and performed a miscarriage of justice indetermining that Woullard did reside with Williams at 1412 Salem.Hence, we defer to the jury's assessment of the credibility ofthe witnesses and overrule this assignment of error.
{¶ 86} Woullard's fourth assignment of error is overruled.
{¶ 87} Having sustained the first assignment of error, we willreverse Woullard's conviction and remand the case to the trialcurt to enter a judgment convicting Woullard of Domestic Violenceas a misdemeanor of the first degree, and to impose a sentencepursuant to law. Otherwise, the judgment of the trial court isaffirmed.
Fain, P.J. and Young, J., concur.