[Cite as State v. Taylor, 2013-Ohio-4588.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. Sheila G. Farmer, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-
                                                   Case No. 13CA7
SAMMIE L. TAYLOR

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Richland County Court of
                                               Common Pleas, Case No. 2012 CR 0583 H


JUDGMENT:                                       Reversed and Remanded


DATE OF JUDGMENT ENTRY:                         October 11, 2013


APPEARANCES:


For Defendant-Appellant                        For Plaintiff-Appellee


WILLIAM C. FITHIAN, III                        JAMES J. MAYER, JR.
111 N. Main Street                             PROSECUTING ATTORNEY
Mansfield, Ohio 44902                          RICHLAND COUNTY, OHIO

                                               By: JILL M. COCHRAN
                                               Assistant Richland County Prosecutor
                                               38 South Park Street
                                               Mansfield, Ohio 44902
Richland County, Case No. 13CA7                                                           2

Hoffman, P.J.


       {¶1}   Defendant-appellant Sammie L. Taylor, Jr. appeals his conviction entered

by the Richland County Court of Common Pleas on one count of domestic violence.

Plaintiff-appellee is the state of Ohio.

                             FACTS AND PROCEDURAL HISTORY

       {¶2}   Appellant and A.T. were married on March 29, 2008. On July 4, 2012,

Appellant engaged in a physical and verbal altercation with A.T., during which he hit her

with a belt. Appellant struck A.T. with the belt four or five times. A.T. did not report the

incident to the police.

       {¶3}   On August 23, 2012, Appellant and A.T. again engaged in a verbal

altercation, which resulted in Appellant physically assaulting A.T. with a belt. Upon

arrival at work, A.T.'s supervisor drove her to the police station to report the incident.

A.T. then reported the July 4, 2012 incident in addition. The police took photographs of

A.T.'s injuries. Following the police report, A.T. moved to a domestic violence shelter

with the couple's children. Appellant was charged with domestic violence.

       {¶4}   At trial, the state introduced evidence of Appellant’s prior conviction for

rape, in which the victim was alleged to have been Appellant's girlfriend. An employee

of the Ohio Department of Convictions testified during Appellant’s rape trial

proceedings, he admitted in his interview for a sex offender risk assessment, he and the

victim lived together during the summer prior to the rape.

       {¶5}   At trial, Appellant admitted to having struck A.T. with a belt during the

altercation on July 4, 2012. He denied living with the victim of his prior conviction for
Richland County, Case No. 13CA7                                                       3


rape, but admitted to dating her on and off and engaging in a sexual relationship with

her.

       {¶6}    Following a jury trial on January 14, 2013, Appellant was convicted of

felony domestic violence, and sentenced to eighteen months in prison to be served

consecutive to a community control violation for failure to register.

       {¶7}    Appellant now appeals, assigning as error:

       {¶8}    “I. THE STATE DID NOT PRESENT SUFFICIENT EVIDENCE TO

PROVE APPELLANT GUILTY OF FELONY DOMESTIC VIOLENCE.

       {¶9}    “II. THE MASSIVE INTRODUCTION OF IRRELEVANT EVIDENCE THAT

DID NOT COMPLY WITH EVIDENCE RULE 404(B) DEPRIVED APPELLANT OF A

FAIR TRIAL.”

                                                 I.

       {¶10} In the first assignment of error, Appellant maintains there is insufficient

evidence to support his conviction for felony domestic violence.

       {¶11} Appellant was convicted of domestic violence, in violation of R.C. 2919.25,

which reads,

       {¶12} "(A) No person shall knowingly cause or attempt to cause physical harm to

a family or household member.

       {¶13} "(B) No person shall recklessly cause serious physical harm to a family or

household member.

       {¶14} "(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.
Richland County, Case No. 13CA7                                                            4


       {¶15} "(D)(1) Whoever violates this section is guilty of domestic violence, and

the court shall sentence the offender as provided in divisions (D)(2) to (6) of this section.

       {¶16} "(2) Except as otherwise provided in divisions (D)(3) to (5) of this section,

a violation of division (C) of this section is a misdemeanor of the fourth degree, and a

violation of division (A) or (B) of this section is a misdemeanor of the first degree.

       {¶17} "(3) Except as otherwise provided in division (D)(4) of this section, if the

offender previously has pleaded guilty to or been convicted of domestic violence, a

violation of an existing or former municipal ordinance or law of this or any other state or

the United States that is substantially similar to domestic violence, a violation of section

2903.14, 2909.06, 2909.07, 2911.12, 2911.211, or 2919.22 of the Revised Code if the

victim of the violation was a family or household member at the time of the violation, a

violation of an existing or former municipal ordinance or law of this or any other state or

the United States that is substantially similar to any of those sections if the victim of the

violation was a family or household member at the time of the commission of the

violation, or any offense of violence if the victim of the offense was a family or

household member at the time of the commission of the offense, a violation of division

(A) or (B) of this section is a felony of the fourth degree, and, if the offender knew that

the victim of the violation was pregnant at the time of the violation, the court shall

impose a mandatory prison term on the offender pursuant to division (D)(6) of this

section, and a violation of division (C) of this section is a misdemeanor of the second

degree.***"

       {¶18} In State v. Jenks (1981), 61 Ohio St.3d 259, 574 N.E.2d 492, the Ohio

Supreme Court set forth the standard of review when a claim of insufficiency of the
Richland County, Case No. 13CA7                                                           5


evidence is made. The Ohio Supreme Court held: “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. The

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. at paragraph two of the syllabus.

       {¶19} Appellant maintains the victim in his prior conviction for rape was not a

family member, and was not alleged to have been a family member. Therefore said

conviction may not be used to enhance his conviction to a fourth degree felony on that

basis. We agree.

       {¶20} We find the state did not present sufficient evidence to support Appellant's

felony domestic violence conviction. Specifically, the state did not present sufficient

evidence the victim in the prior rape offense was a family or household member at the

time of the offense. Rather, the testimony presented only indicates Appellant and the

victim dated on and off, and lived together the summer prior to the rape.

       {¶21} However, merely living together has been found insufficient to establish

one as being a “household member.” There must also be evidence of sharing of familial

or financial responsibilities, in addition to the provision of money and conjugal relations.

State v. Cobb, 153 Ohio App.3d 541, 795 N.E.2d 73, 2003-Ohio-3821.

       {¶22} In State v. Miller (1995), 105 Ohio App.3d 679, 686-687, 664 N.E.2d

1309, the Fourth District set forth the following,
Richland County, Case No. 13CA7                                                            6

       {¶23} "The court in Sindel v. Sindel (App.1975), 7 O.O.3d 223, 226, defined

‘cohabitation’ in regard to alimony conditions of a divorce:

       {¶24} 'The ordinary meaning of cohabitation is, of course, the act of living

together. What constitutes living together is a question of fact in each particular case. * *

* Ordinarily, isolated acts of sexual intercourse * * * unaccompanied by other aspects of

living together, would not constitute cohabitation. Conversely, cohabitation can be

based entirely on acts of living together without sexual relations.”

       {¶25} "'In Taylor v. Taylor (1983), 11 Ohio App.3d 279, 11 OBR 459, 465 N.E.2d

476, the court interpreted the term 'cohabitation' in the context of a divorce decree

whereupon the event of cohabitation would alter support obligations. The court in Taylor

held that '[s]exual intercourse, in short, is not the sine qua non of the ‘cohabitation’

intended by the instant decree * * *. It may be a persuasive indicium of cohabitation, but

it is not everything.' Id. at 280-281, 11 OBR at 461, 465 N.E.2d at 478.

       {¶26} "In Fuller v. Fuller (1983), 10 Ohio App.3d 253, 10 OBR 366, 461 N.E.2d

1348, the court examined cohabitation in a case where a decree of dissolution provided

that alimony would terminate upon cohabitation. The court followed the Sindel decision

and stated that 'the ordinary meaning of cohabitation [is defined] as the acts of a man

and a woman living together, noting that isolated acts of sexual intercourse,

unaccompanied by other aspects of living together, would not constitute cohabitation,

but that, on the other hand, cohabitation can be based entirely upon acts of living

together without sexual relations. Cohabitation requires some regularity of functioning

as would a husband and wife, either sexually or otherwise.' Id. at 253-254, 10 OBR at
Richland County, Case No. 13CA7                                                         7

367, 461 N.E.2d at 1349, citing Sindel, supra; see, also, Lester v. Lester (May 14,

1981), Franklin App. No. 81AP-84, unreported, 1981 WL 3186.

       {¶27} "In State v. VanHoose (Sep. 27, 1993), Clark App. No. 3031, unreported,

1993 WL 386314, the court set forth the following definition of cohabitation in regard to

the domestic violence statute, R.C. 2919.25:

       {¶28} “In summary, various Ohio appellate courts have held that to cohabit

refers to a man and a woman living together in the same household and behaving as

would a husband and wife. The courts are in accord that there need not be an actual

assertion of marriage, and that cohabitation can be based entirely on acts of living

together without sexual relations.”

       {¶29} Here, there is no evidence Appellant and the victim of the prior rape

offense shared household expenses or other familial responsibilities at the time of the

rape offense.     Accordingly, Appellant's conviction for felony domestic violence is

reversed, and the matter remanded to the trial court to reenter conviction and sentence

for domestic violence as a misdemeanor of the first degree.

                                               II.

       {¶30} In the second assignment of error, Appellant maintains the trial court erred

in allowing evidence at trial in violation of Ohio Rules of Evidence Rule 404(B); thereby,

depriving Appellant of a fair trial.

       {¶31} Evidence Rule 404(B) states,

       {¶32} "(B) Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show action in

conformity therewith. It may, however, be admissible for other purposes, such as proof
Richland County, Case No. 13CA7                                                          8


of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident. In criminal cases, the proponent of evidence to be offered under

this rule shall provide reasonable notice in advance of trial, or during trial if the court

excuses pretrial notice on good cause shown, of the general nature of any such

evidence it intends to introduce at trial."

       {¶33} Appellant argues the trial court erred in allowing the State to introduce

evidence as to Appellant's prior criminal background, the divorce filings of A.T.,

subsequent dismissals thereof, civil protection orders issued on behalf of A.T.,

numerous photos depicting injuries sustained by A.T., and A.T.'s thoughts of suicide.

       {¶34} Pursuant to Evidence Rule 404, the initial determination of admissibility is

to be determined by the trial court. The admission or exclusion of evidence lies in the

trial court's sound discretion. State v. Sage, 31 Ohio St.3d 173 (1987). In order to find

an abuse of that discretion, we must determine the trial court's decision was

unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.

Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).

       {¶35} Upon our review of the record, assuming arguendo the trial court erred in

the admission of the evidence cited by Appellant, we find Appellant has not

demonstrated prejudice as a result of the alleged error.        Accordingly, we find the

introduction of the other acts evidence to be harmless error.

       {¶36} The second assignment of error is overruled.
Richland County, Case No. 13CA7                                                    9


       {¶37} Appellant's conviction for felony domestic violence entered by the

Richland County Court of Common Pleas is reversed, and the matter remanded to the

trial court for further proceedings in accordance with the law and this opinion.

By: Hoffman, P.J.

Farmer, J. and

Baldwin, J. concur

                                             ___________________________________
                                             HON. WILLIAM B. HOFFMAN


                                             ___________________________________
                                             HON. SHEILA G. FARMER


                                             ___________________________________
                                             HON. CRAIG R. BALDWIN
Richland County, Case No. 13CA7                                                  10


           IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
SAMMIE L. TAYLOR                           :
                                           :
       Defendant-Appellant                 :         Case No. 13CA7


       For the reason stated in our accompanying Opinion, Appellant's conviction for

felony domestic violence entered by the Richland County Court of Common Pleas is

reversed, and the matter remanded to the trial court for further proceedings in

accordance with the law and our Opinion. Costs to the state.




                                           ___________________________________
                                           HON. WILLIAM B. HOFFMAN


                                           ___________________________________
                                           HON. SHEILA G. FARMER


                                           ___________________________________
                                           HON. CRAIG R. BALDWIN
