[Cite as State v. Clark, 2019-Ohio-4303.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                         C.A. No.      18CA0093-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
TIMOTHY CLARK                                         COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   18CR0278

                                  DECISION AND JOURNAL ENTRY

Dated: October 21, 2019



        HENSAL, Judge.

        {¶1}     Timothy Dale Monte Clark appeals his conviction from the Medina County Court

of Common Pleas. This Court affirms.

                                                 I.

        {¶2}     According to the victim, she began dating Mr. Clark while he was in prison for an

unrelated crime. Approximately seven months later, Mr. Clark was released from prison, and

they continued their relationship. After his release, Mr. Clark began living with her, and they

began a sexual relationship. Within a few months, the relationship turned physically abusive.

According to the victim, Mr. Clark became angry with her one evening, and struck her in the

face with his closed fists. He also struck her with a broomstick, pulled her hair, and kicked her.

The victim did not initially report the abuse, but took pictures of her injuries, including bruises

and swelling on her face, the following day.
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          {¶3}   About a week later, the victim picked up her nine-year-old son from school and

was stopped in traffic when Mr. Clark approached her car while on a bicycle. He reached into

her car, grabbed her cell phone from her, and told her to meet him at the apartment. The victim

immediately drove to her mother’s apartment, which was directly across the street from her

apartment. The victim told her son to run in and tell her mother to call the police while she

followed closely behind him. Mr. Clark arrived shortly thereafter on his bicycle and spoke with

the victim’s mother and sister. The victim’s sister persuaded Mr. Clark to give her the victim’s

phone, which he did. The victim’s mother told Mr. Clark she was calling the police, at which

point he left.

          {¶4}   The police arrived shortly thereafter. While there, the victim explained what had

happened and showed them threatening text messages that Mr. Clark had sent to her that day. In

addition to the text messages, the victim allowed the police to listen to voicemails that Mr. Clark

had left her that day. In one, Mr. Clark threatened to shoot the victim in the face if she called the

police.

          {¶5}   The police located Mr. Clark at the public library and arrested him. A grand jury

subsequently indicted him on one count of domestic violence in violation of Revised Code

Section 2919.25(A),(D)(4). Mr. Clark waived his right to a jury and the matter proceeded to a

bench trial. At trial, Mr. Clark stipulated as to his two prior domestic-violence convictions,

which are required for a conviction under Section 2919.25(D)(4), and the trial court found him

guilty. He now appeals, raising two assignments of error for our review.

                                                 II.

                                   ASSIGNMENT OF ERROR I

          THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE TRIAL COURT’S
          FINDING OF “GUILTY” AS TO THE SOLE COUNT OF FELONY
                                                3


       DOMESTIC VIOLENCE, IN VIOLATION OF R.C. 2919.25(A)(D)(4), WHERE
       THE STATE FAILED TO PROVE THE ESSENTIAL ELEMENT THAT
       DEFENDANT-APPELLANT AND THE ALLEGED VICTIM WERE “FAMILY
       OR HOUSEHOLD MEMBERS.”

       {¶6}    In his first assignment of error, Mr. Clark argues that his conviction for domestic

violence was not supported by sufficient evidence because the State failed to establish that he

and the victim were family or household members. Upon review of the record, this Court

disagrees.

       {¶7}    Whether a conviction is supported by sufficient evidence is a question of law,

which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In carrying out

this review, our “function * * * 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 (1991), paragraph two of the syllabus. “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.

       {¶8}    As previously noted, Mr. Clark was charged and convicted under Section

2919.25(A).   Relevantly, that Section provides that “[n]o person shall knowingly cause or

attempt to cause physical harm to a family or household member.” R.C. 2919.25(A). There was

no dispute at trial that Mr. Clark was not a family member. Instead, the dispute centered upon

whether he and the victim were household members. Section 2919.25(F)(1) defines “household

member[,]” in relevant part, as “a person living as a spouse[.]” R.C. 2919.25(F)(1)(a)(i). It then

defines a “[p]erson living as a spouse” as “a person * * * 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.” R.C. 2919.25(F)(2). As the Ohio Supreme Court
                                                4


has stated, “[t]he essential elements of ‘cohabitation’ are (1) sharing of familial or financial

responsibilities and (2) consortium.” State v. Williams, 79 Ohio St.3d 459 (1997), paragraph two

of the syllabus. It continued that:

       [p]ossible 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.

Id. at 465. The Ohio Supreme Court later clarified that the sharing of familial or financial

responsibilities is not required when there is evidence that the victim and the offender lived

together. State v. McGlothan, 138 Ohio St.3d 146, 2014-Ohio-85, ¶ 13. As this Court has stated,

“[t]he burden of [production for] establishing cohabitation is not substantial.” (Alteration sic.)

State v. Long, 9th Dist. Summit No. 25249, 2011-Ohio-1050, ¶ 6, quoting Dyke v. Price, 2d Dist.

Montgomery No. 18060, 2000 WL 1546555, *3 (Oct. 20, 2000).                   “[I]t 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, ¶ 35.

       {¶9}     Here, there is no dispute that the State set forth sufficient evidence regarding

consortium; the victim testified that she and Mr. Clark had a sexual relationship. Mr. Clark

argues, however, that the State presented insufficient evidence to establish that he cohabitated

with the victim. We disagree.

       {¶10} The victim testified that she and Mr. Clark had been living together since his

release from prison, and that they slept in the same bedroom. She testified that he shared in

household responsibilities including cooking, cleaning, and taking out the trash. She further

testified that he kept a toothbrush at the apartment, as well as the clothes he came home from

prison with. The victim’s mother also testified that Mr. Clark lived with her daughter.
                                                5


       {¶11} Mr. Clark points to several facts in support of his position that he did not

cohabitate with the victim, including that: (1) his name was not on the lease for the apartment;

(2) they did not share a bank account; (3) he did not pay bills or contribute money toward

groceries; (4) the victim’s mother only saw him at her daughter’s apartment one time over the

course of two months; (5) the police had been unable to serve him with a no-trespass order

issued by the apartment complex that stemmed from an unrelated incident; (6) he only kept a

toothbrush and the clothes he was wearing that day at the apartment; and (7) the victim told one

of the officers that she did not know where he was staying. While the foregoing are possible

factors that a court can consider when determining the issue of cohabitation, none are required at

the sufficiency stage. Instead, they relate to the weight of the evidence presented, which is

legally distinct from sufficiency. State v. Johnson, 9th Dist. Lorain No. 13CA010496, 2015-

Ohio-1689, ¶ 11 (“A sufficiency challenge is legally distinct from a manifest weight challenge.”)

Viewing the evidence presented in a light most favorable to the State, including the testimony of

the victim and her mother, we hold that sufficient evidence existed to establish that Mr. Clark

cohabitated with the victim. Accordingly, his first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       THE DEFENDANT-APPELLANT’S CONVICTION OF FELONY DOMESTIC
       VIOLENCE IN VIOLATION OF R.C. 2919.25(A)(D)(4), WAS AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE, WHERE THE STATE FAILED
       TO PROVE THE ESSENTIAL ELEMENTS THAT DEFENDANT-
       APPELLANT AND THE ALLEGED VICTIM WERE “FAMILY OR
       HOUSEHOLD MEMBERS” OR THAT DEFENDANT-APPELLANT
       “CAUSED OR ATTEMPTED TO CAUSE PHYSICAL HARM” TO THE
       ALLEGED VICTIM.

       {¶12} In his second assignment of error, Mr. Clark argues that his conviction was

against the manifest weight of the evidence on the issues of cohabitation, and whether he caused
                                                   6


or attempted to cause physical harm to the victim. For the reasons that follow, this Court

disagrees.

       {¶13} When considering a challenge to the manifest weight of the evidence, this Court is

required to consider the entire record, “weigh the evidence and all reasonable inferences,

consider the credibility of witnesses and determine whether, in resolving conflicts in the

evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered.” State v. Otten, 33 Ohio App.3d

339, 340 (9th Dist.1986). Notably, “the weight to be given the evidence and the credibility of

the witnesses are primarily for the trier of the facts[,]” who is “free to believe all, part, or none of

the testimony of each witness.” State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the

syllabus; Prince v. Jordan, 9th Dist. Lorain No. 04CA008423, 2004-Ohio-7184, ¶ 35. “This

Court will not overturn the trial court’s verdict on a manifest weight of the evidence challenge

only because the trier of fact chose to believe certain witness testimony over the testimony of

others.” State v. Hill, 9th Dist. Summit No. 26519, 2013-Ohio-4022, ¶ 15.

       {¶14} Initially, we note that Mr. Clark’s argument as it relates to cohabitation is

essentially the same argument he presented in his challenge to the sufficiency of the evidence. In

this regard, he again argues that: (1) his name was not on the lease for the apartment; (2) he and

the victim did not share a bank account; (3) he did not pay bills or contribute money toward

groceries; (4) the victim’s mother only saw him at her daughter’s apartment one time over the

course of two months; (5) the police had been unable to serve him with a no-trespass order

issued by the apartment complex that stemmed from an unrelated incident; (6) he only kept a

toothbrush and the clothes he was wearing that day at the apartment; and (7) the victim told one
                                                7


of the officers that she did not know where he was staying. This Court will address each of the

foregoing in turn.

       {¶15} While being on the lease, sharing a bank account, paying bills, and contributing

money toward groceries are possible factors a court can consider when examining the issue of

cohabitation, they are not required. Here, the victim testified that Mr. Clark lived with her, that

they slept in the same bedroom, and that he cooked, cleaned, and took out the trash.

Additionally, while the victim’s mother testified that she only saw Mr. Clark one time at the

apartment, she also testified that her relationship with her daughter became more distant when

she (the victim) started dating Mr. Clark. Regarding the police’s inability to serve him with a

no-trespass order at the apartment, the trial court heard testimony from an officer who indicated

that the police often serve no-trespass orders when they “happen upon” the person, and do not

necessarily stop someone just to serve that person with the order. Regarding his argument that

he only kept the clothes he was wearing that day at the apartment, his counsel’s questioning of

the victim at trial indicated otherwise. When asked whether Mr. Clark only kept the clothes he

was wearing that day at the apartment, she responded “[n]o,” and clarified that he kept the

clothes he came home from prison with at the apartment. Lastly, regarding his argument that the

victim told an officer that she did not know where he was staying, the officer that spoke with the

victim clarified the context in which that response was elicited. Specifically, he indicated that

when he asked the victim where Mr. Clark was staying, he “[m]eant where [Mr. Clark] would be

hiding from [the police] or where he would run to, not where he was living.” In light of all of the

evidence presented, we cannot say that the trial court clearly lost its way by determining that Mr.

Clark cohabitated with the victim. We now turn to his argument regarding the evidence as it

relates to whether he caused or attempted to cause physical harm to the victim.
                                                 8


       {¶16} Mr. Clark challenges the evidence regarding whether he caused or attempted to

cause physical harm to the victim by pointing out the fact that the victim did not initially report

the abuse, that the victim kept in contact with him, and that the victim included new information

when she submitted a second written statement to the police. These arguments relate to the

credibility of the victim, who specifically testified that Mr. Clark punched her, kicked her, hit her

with a broom, and pulled her hair. As previously noted, “the weight to be given the evidence and

the credibility of the witnesses are primarily for the trier of the facts[,]” who is “free to believe

all, part, or none of the testimony of each witness.” DeHass, 10 Ohio St.2d 230, at paragraph

one of the syllabus; Jordan, 2004-Ohio-7184, at ¶ 35. This Court “will not overturn a conviction

as being against the manifest weight of the evidence simply because the trier of fact chose to

believe the State’s version of events[.]” State v. Pari, 9th Dist. Summit No. 28098, 2017-Ohio-

4165, ¶ 19. Accordingly, Mr. Clark’s second assignment of error is overruled.

                                                III.

       {¶17} Mr. Clark’s assignments of error are overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

                                                                                Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, 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
                                                9


period for review shall begin to run. App.R. 22(C). The 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.




                                                    JENNIFER HENSAL
                                                    FOR THE COURT



CALLAHAN, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

ERIC D. HALL, Attorney at Law, for Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney, for Appellee.
