[Cite as State v. Mauldin, 2010-Ohio-4192.]

                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

STATE OF OHIO,                                   )
                                                 )
        PLAINTIFF-APPELLEE,                      )
                                                 )
VS.                                              )          CASE NO. 08-MA-92
                                                 )
DONTE MAULDIN,                                   )               OPINION
                                                 )
        DEFENDANT-APPELLANT.                     )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from Court of Common
                                                 Pleas of Mahoning County, Ohio
                                                 Case No. 08CR181

JUDGMENT:                                        Affirmed in part
                                                 Reversed and remanded in part

APPEARANCES:
For Plaintiff-Appellee                           Paul Gains
                                                 Prosecutor
                                                 Ralph M. Rivera
                                                 Assistant Prosecutor
                                                 21 W. Boardman St., 6th Floor
                                                 Youngstown, Ohio 44503-1426

For Defendant-Appellant                          Attorney Mark I. Verkhlin
                                                 839 Southwestern Run
                                                 Youngstown, Ohio 44514
JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite


                                                 Dated: September 1, 2010
DONOFRIO, J.
                                                                               -2-


       {¶1}   Defendant-appellant, Donte Mauldin, appeals from a Mahoning County
Common Pleas Court judgment convicting him of felony domestic violence following
a jury trial and the resulting sentence.
       {¶2}   On February 1, 2008, Officers Francis Bigowsky and Joe Moran
responded to a call regarding a domestic disturbance at 1630 Butler Avenue in
Youngstown.     Dana Armstrong answered the door.          The officers observed that
Armstrong was visibly shaken and that she had cuts and bruises on the left side of
her face and head and a cut on her nose. After first stating that no one else was
home with her, Armstrong told the officers that “he” was upstairs. “He” was appellant.
Armstrong also told the officers that appellant, her live-in boyfriend, had punched her.
The officers called for appellant to come downstairs and, after a minute, he complied.
The officers arrested appellant.
       {¶3}   After arresting appellant, the officers went upstairs.      They noticed
appellant’s clothing. They also observed a broken bathroom mirror.
       {¶4}   On March 6, 2008, a Mahoning County grand jury indicted appellant on
one count of domestic violence, a third-degree felony in violation of R.C.
2919.25(A)(D). The charge was a third-degree felony because appellant had two
prior convictions for domestic violence.
       {¶5}   The matter proceeded to a jury trial. The jury found appellant guilty as
charged. The trial court subsequently sentenced appellant to three years in prison.
       {¶6}   Appellant filed a timely notice of appeal on May 9, 2008.
       {¶7}   Appellant raises four assignments of error. His first two assignments of
error share a common basis in fact. Therefore, we will address them together. They
state, respectively:
       {¶8}   “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
OVERRULED        DEFENDANT-APPELLANT,           DONTE      MAULDIN’S      CRIM.R.     29
MOTION TO DISMISS SINCE THE STATE HAD NOT MET ITS BURDEN OF
SHOWING       ALL      OF   THE    ELEMENTS     OF   THE    OFFENSE       BEYOND      A
                                                                               -3-


REASONABLE DOUBT AND THE EVIDENCE WAS INSUFFICIENT TO SHOW A
FINDING OF GUILT BEYOND A REASONABLE DOUBT.”
      {¶9}   “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN,
AFTER A JURY TRIAL, IT FOUND DEFENDANT-APPELLANT, DONTE MAULDIN
GUILTY OF DOMESTIC VIOLENCE IN VIOLATION OF R.C. 2919.25(A)(1) AND
(D)(4) BEYOND A REASONABLE DOUBT, WHEN SUCH A CONVICTION WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
      {¶10} Appellant first argues that plaintiff-appellee, the State of Ohio, failed to
prove each element of domestic violence. Consequently, he argues that the trial
court should have granted his Crim.R. 29 motion for acquittal. Specifically, appellant
contends that the state failed to prove that he cohabited with Armstrong and thus,
failed to establish that Armstrong was a “family or household member.” He asserts
that although he had clothing at Armstrong’s home and spent time there these facts
did not establish his intent to permanently reside there. Appellant points out that
there was no testimony that he and Armstrong shared family or financial
responsibilities. And appellant points out that even Armstrong did not testify that he
resided with her.
      {¶11} An appellate court reviews a denial of a motion to acquit under Crim.R.
29 using the same standard it uses to review a sufficiency of the evidence claim.
State v. Rhodes, 7th Dist. No. 99-BA-62, 2002-Ohio-1572, at ¶9; State v. Carter
(1995), 72 Ohio St.3d 545, 553.
      {¶12} Sufficiency of the evidence is the legal standard applied to determine
whether the case may go to the jury or whether the evidence is legally sufficient as a
matter of law to support the jury verdict. State v. Smith (1997), 80 Ohio St.3d 89,
113. In essence, sufficiency is a test of adequacy. State v. Thompkins (1997), 78
Ohio St.3d 380, 386. Whether the evidence is legally sufficient to sustain a verdict is
a question of law. Id. In reviewing the record for sufficiency, the relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution, any
                                                                               -4-


rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt. Smith, 80 Ohio St.3d at 113.
       {¶13} The jury convicted appellant of domestic violence in violation of
2919.25(A), which provides: “No person shall knowingly cause or attempt to cause
physical harm to a family or household member.”            “A person acts knowingly,
regardless of his purpose, when he is aware that his conduct will probably cause a
certain result or will probably be of a certain nature.” R.C. 2901.22(B). Physical harm
means “any injury, illness, or other physiological impairment, regardless of its gravity
or duration.” R.C. 2901.01(A)(3).
       {¶14} The domestic violence statute defines a “family or household member”
as:
       {¶15} “(a) Any of the following who is residing or has resided with the
offender:
       {¶16} “(i) A spouse, a person living as a spouse, or a former spouse of the
offender;
       {¶17} “(ii) A parent or a child of the offender, or another person related by
consanguinity or affinity to the offender;
       {¶18} “(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.” R.C.
2919.25(F)(1)(a).
       {¶19} The statute goes on to define “person living as a spouse” 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.” R.C. 2919.25(F)(2). In this case, the state alleged that appellant was
cohabiting with Armstrong.
                                                                              -5-


       {¶20} In addition to these elements, the state had to prove that appellant had
been convicted of two or more offenses of domestic violence in order to raise this
offense to a third-degree felony. See R.C. 2919.25(D)(4).
       {¶21} We must examine the state’s evidence to determine whether it was
sufficient to support appellant’s conviction.
       {¶22} Officer Bigowsky was the first to testify. Officer Bigowsky stated that he
and Officer Moran responded to a call regarding a domestic disturbance at
Armstrong’s home.       (Tr. 149-50).    When he knocked on the door, Armstrong
answered. (Tr. 150). Officer Bigowsky stated that Armstrong was visibly shaken,
appeared to be in shock, and stuttered when she spoke. (Tr. 150). He noticed that
she had cuts and bruises on the left side of her face, a cut on her nose, and a large
lump on the left side of her head as if she had just been struck. (Tr. 150-51). The
officers asked Armstrong what happened and heard commotion upstairs. (Tr. 151).
Armstrong told the officers, “He’s upstairs. I’m scared.” (Tr. 152). Officer Bigowsky
stated that Armstrong was referring to appellant, her boyfriend.       (Tr. 152).   He
testified that Armstrong told them that appellant punched her five or six times in the
head and pulled her hair, ripping out a wig. (Tr. 153).
       {¶23} Next, Officer Bigowsky stated that he called for appellant to come
downstairs and, after a minute or two, appellant complied. (Tr. 153-4). The officers
handcuffed appellant and asked him what happened. (Tr. 155). Appellant told them
that he and Armstrong got into a verbal argument, but it was not physical. (Tr. 155).
       {¶24} Additionally, Officer Bigowsky testified that throughout the house, he
observed appellant’s clothing. (Tr. 156). He testified that appellant lived at that
residence with Armstrong. (Tr. 156). He based this conclusion on seeing appellant’s
clothing and also because he had been at Armstrong’s house a few other times in the
past month and appellant was there then too. (Tr. 156-57). Officer Bigowsky also
testified that Armstrong had indicated that her “live-in” boyfriend beat her up. (Tr.
162). And he testified that Armstrong told him that she believed she was pregnant by
appellant at the time. (Tr. 164).
                                                                                -6-


       {¶25} Officer Bigowsky admitted, however, on cross examination that the
address he listed for appellant was on Philadelphia Avenue. (Tr. 166). He stated
that this was appellant’s mother’s address, which was on appellant’s driver’s license.
(Tr. 177).
       {¶26} Officer Moran testified next. Officer Moran stated that he responded to
a call about a fight between a male and a female. (Tr. 184). Armstrong told the
officers that she had been struck several times in the head and face by appellant, her
live-in boyfriend, with his closed fist. (Tr. 186-87). Upon Armstrong’s indication that
“he” was upstairs, Officer Moran testified that they called for appellant to come down,
which he eventually did. (Tr. 187).
       {¶27} Detective Brian Flynn was the last witness to testify for the state. He
identified certified judgment entries from appellant’s two prior domestic violence
convictions, which were entered into evidence. (Tr. 203-204; State’s Exs. 8 and 9).
       {¶28} The only element appellant asserts was not supported by sufficient
evidence is that he was Armstrong’s “family or household member.”              Thus, he
impliedly concedes that the other elements were supported by sufficient evidence.
However, we will briefly address the other elements first.
       {¶29} The evidence demonstrated, by way of Officers Bigowsky’s and
Moran’s testimony, that appellant knowingly punched Armstrong in the head and that
she had visible, physical injuries. Additionally, Officer Flynn’s testimony and State’s
Exhibits 8 and 9 proved appellant’s two prior domestic violence convictions.
       {¶30} Appellant argues that the state did not demonstrate that he was a family
or household member of Armstrong because he did not have the intent to
permanently reside with her. The Ohio Supreme Court has declined to adopt a
narrow definition of “family or household member” that limits the relationship to those
who actually share one residential address. State v. Williams (1997), 79 Ohio St.3d
459, 462. That is because the offense of domestic violence arises out of the parties’
relationship, not their exact living circumstances.     Id. at paragraph one of the
syllabus.
                                                                               -7-


       {¶31} Instead, the Court has held that “cohabitation” is comprised of two
essential elements:     (1) sharing of familial or financial responsibilities and (2)
consortium. Williams, 79 Ohio St.3d at paragraph two of the syllabus. Some factors
that can demonstrate the sharing of familial or financial responsibilities include:
provisions for shelter, food, clothing, utilities, and/or commingled assets. Id. at 465.
Some factors that may establish consortium include:           mutual respect, fidelity,
affection, society, cooperation, solace, comfort, aid of each other, friendship, and
conjugal relations.   Id.   “These factors are unique to each case and how much
weight, if any, to give to each of these factors must be decided on a case-by-case
basis by the trier of fact.”    Id.   The burden of establishing cohabitation is not
substantial. Youngstown v. Dixon, 7th Dist. No. 07-MA-105, 2009-Ohio-1013, at ¶18,
citing State v. Woulard, 158 Ohio App.3d 31, 2004-Ohio-3395, at ¶73.
       {¶32} Here, the evidence is sufficient to support a finding of cohabitation, and
thus, a finding that appellant was Armstrong’s “family or household member.”
       {¶33} The evidence, when viewed in a light most favorable to the state,
demonstrated (1) appellant’s clothes were located throughout Armstrong’s house; (2)
Officer Bigowsky had been at Armstrong’s house several times during the past month
and appellant was always there; (3) Armstrong referred to appellant as her “live-in”
boyfriend; and (4) Armstrong believed that she was pregnant and that appellant was
the father.
       {¶34} Other courts have found sufficient evidence of cohabitation based on
even less evidence. See State v. Collins, 5th Dist. No. 2002AP090069, 2003-Ohio-
4854 (only evidence of cohabitation was victims’ testimony that appellant lived with
them); City of Lakewood v. Reese (March 20, 1997), 8th Dist. No. 70193 (testimony
by two officers that victim told them that her “live-in” boyfriend assaulted her was
sufficient to establish that defendant caused physical harm to “family or household
member” within meaning of city ordinance). And the fact that Armstrong believed she
was pregnant at the time and appellant was the father demonstrated that she and
appellant had a sexual relationship. See Williams, 79 Ohio St.3d 459 (testimony that
                                                                               -8-


at one time victim thought she might be pregnant with defendant’s child was evidence
of conjugal relations and helped to prove consortium).
       {¶35} Appellant argues that this court’s decision in State v. Alvey, 7th Dist.
No. 03-BE-24, 2003-Ohio-7006, necessitates a finding that he did not cohabitate with
Armstrong. However, a reading of Alvey reveals that such is not the case. Alvey
was convicted of domestic violence against his niece. We reversed his conviction on
appeal based on insufficient evidence. In so doing, we held that residency is a
requirement that must be proven to sustain a domestic violence conviction and is not
found merely because the parties are related by consanguinity. Id. at ¶23. We
further held that the determination of whether the parties reside together is based on
their particular living circumstances. Id. We then went on to explain that in this
situation, we were not addressing whether two people were “living as spouses”, and
therefore, a finding of cohabitation was not necessary. Id. at ¶25. We found that in
Alvey’s case, shared meals and frequenting each other’s house was not enough to
constitute “residing” together. Id.
       {¶36} Alvey did not address the issue we are faced with in this case, that
being whether the evidence sufficiently supports a finding of cohabitation as to
persons living as spouses. Additionally, as discussed above, the evidence in this
case demonstrates much more than simply sharing meals and visiting each other’s
houses, as was the case in Alvey. Thus, contrary to appellant’s assertion, Alvey
does not dictate a finding that appellant did not cohabitate with Armstrong.
       {¶37} Based on the above, the state presented sufficient evidence that
appellant was a “family or household member” of Armstrong.
       {¶38} Appellant next argues that the jury’s verdict was against the manifest
weight of the evidence. He first contends that the weight of the evidence did not
support a finding that he acted knowingly. He points to Armstrong’s testimony in
support. Second, appellant asserts that the weight of the evidence did not support a
finding that he and Armstrong were family or household members. He makes the
same argument in support here as previously discussed.
                                                                               -9-


       {¶39} In determining whether a verdict is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences and determine whether, in resolving conflicts in the
evidence, the jury clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial ordered. Thompkins, 78
Ohio St.3d at 387. “Weight of the evidence concerns ‘the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather
than the other.’” Id. (Emphasis sic.) In making its determination, a reviewing court is
not required to view the evidence in a light most favorable to the prosecution but may
consider and weigh all of the evidence produced at trial. Id. at 390.
       {¶40} Still, determinations of witness credibility, conflicting testimony, and
evidence weight are primarily for the trier of the facts. State v. DeHass (1967), 10
Ohio St.2d 230, paragraph one of the syllabus.
       {¶41} In addition to the state's evidence, we must also consider appellant's
evidence when determining whether his conviction was against the manifest weight
of the evidence.
       {¶42} Appellant called Armstrong in his defense. Armstrong testified that she
rents her house. (Tr. 224). On her rental application, she listed two people residing
at her house, her and her son. (Tr. 225). She testified that appellant does not
currently reside with her. (Tr. 225). She further testified:
       {¶43} “Q       February 1st, the day of the incident.
       {¶44} “A       Yes.
       {¶45} “Q       Was he [appellant] residing at your house?
       {¶46} “* * *
       {¶47} “A       Yes, he was there.
       {¶48} “Q       Okay. Let me rephrase. He was there that day; correct?
       {¶49} “A       Uh-huh.
       {¶50} “Q       Was he living with you?
       {¶51} “A       Well, he was there a lot.
                                                                               - 10 -


       {¶52} “Q       He was there a lot?
       {¶53} “A       Yes.
       {¶54} “Q       How often was he there?
       {¶55} “A       About every day.” (Tr. 226)
       {¶56} Armstrong further testified that appellant had been her boyfriend for
approximately four months leading up to the day in question. (Tr. 227). She stated
that when appellant was not at her house, he resided with his mother on Philadelphia
Avenue. (Tr. 227-28). Armstrong stated that when she spoke with the prosecutor
she told him that appellant’s belongings were at her house and he had a key to her
house but that he also stayed at his mother’s house. (Tr. 232). She also testified
that, when talking to police, she referred to appellant as her “live-in” boyfriend. (Tr.
251). And she stated she and appellant spent every day together, the majority of the
time when she came home she would find appellant sleeping on the couch, they
bought food for each other, and they had sexual relations. (Tr. 251-52).
       {¶57} Armstrong also testified about the fight.      She stated that she and
appellant started arguing about a text message he received from another woman.
(Tr. 235). She testified that appellant punched her in the face. (Tr. 248). Armstrong
testified that she was scared and she wanted appellant to stay away from her so she
struck the bathroom mirror with her fist and broke it. (Tr. 236-37). And Armstrong
stated that the reasons she hit the mirror was in an attempt to stop appellant from
hitting her. (Tr. 250).
       {¶58} Armstrong further testified regarding a letter she wrote to appellant
while he was in jail. In the letter, Armstrong expressed to appellant that she told the
police he had hit her but she had lied. (Tr. 243, Def. Ex. 1). However, on cross
examination, Armstrong stated that she did not want appellant to know that she told
the police what had happened. (Tr. 247).
       {¶59} Armstrong’s testimony lends further support to the fact that appellant
cohabited with her. Although she did not come out and say that appellant absolutely
resided with her, her testimony went to several of the factors that demonstrate
                                                                             - 11 -


cohabitation.    She stated that appellant had been her boyfriend for four months,
appellant had a key to her house, appellant’s belongings were at her house,
appellant was sleeping at her house when she came home most of the time, they
bought food for each other, they spent every day together, and they had sexual
relations.   Appellant did testify that appellant did not currently reside with her.
However, appellant’s residence at the time of the assault was what mattered, not his
residence at the time of trial. Additionally, Armstrong’s testimony further supported
the officers’ testimony that appellant punched her in the face.
       {¶60} Consequently, the jury did not lose their way in finding appellant guilty
of domestic violence.
       {¶61} Accordingly, appellant’s first and second assignments of error are
without merit.
       {¶62} Appellant’s third assignment of error states:
       {¶63} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
ALLOWED OFFICER FRANCIS BIGOWSKY TO TESTIFY AS TO WHAT DANA
ARMSTRONG STATED OCCURRED IN THE RESIDENCE AT 1630 BUTLER
AVENUE, OVER OBJECTION, AS SUCH TESTIMONY IS HEARSAY AND
INADMISSIBLE PURSUANT TO EVID.R. 801(C).”
       {¶64} Here appellant argues that the trial court erred in allowing Officers
Bigowsky and Moran to testify regarding what Armstrong told them when they arrived
at her apartment. He cites to two instances where he objected to this testimony, but
was overruled by the court. (Tr. 153, 185-87). Both officers testified that Armstrong
told them that appellant punched her. Appellant argues that their testimony was
inadmissible hearsay. He further argues that the excited utterance exception to the
hearsay rule did not apply because Armstrong was not under the stress of the event
when she spoke to the officers and the alleged event had occurred sometime before
the officers arrived.
                                                                                     - 12 -


       {¶65} Hearsay is an out-of-court statement, offered in court, to prove the truth
of the matter asserted. Evid.R. 801(C). Generally, hearsay is inadmissible. Evid.R.
802. However, there are numerous exceptions to the hearsay rule.
       {¶66} One of those exceptions is for “excited utterances.”                An excited
utterance is “[a] statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition.”
Evid.R. 803(2). In order for an excited utterance to be admissible, four requirements
must be met: (1) there must be a startling event that produces nervous excitement in
the declarant so that his statement is spontaneous and non-reflective; (2) the
declarant must make the statement while he or she is still under the stress of the
excitement; (3) the statement must relate to the startling event; and (4) the declarant
must have personally observed the startling event. State v. Taylor (1993), 66 Ohio
St.3d 295, 300-301, citing Potter v. Baker, 162 Ohio St. 488, at paragraph two of the
syllabus.
       {¶67} The parties spend some time discussing the proper standard of review
to apply here. This court reiterated the standard of review when examining whether a
trial court properly admitted a hearsay statement under the excited utterance
exception in State v. Perdue (Dec. 30, 1993), 7th Dist. No. 90 C.A. 18:
       {¶68} “We begin with a discussion of the standard of review for this type of
issue. In State v. Boston (1989), 46 Ohio St.3d 108, 117, the Supreme Court of Ohio
quoted Potter v. Baker (1955), 162 Ohio St. 488, at 500:
       {¶69} “‘ * * * [W]e believe that the decision of the trial judge, in determining
whether or not a declaration should be admissible under the spontaneous
exclamations exception to the hearsay rule [excited utterance], should be sustained
where such decision appears to be a reasonable one, even though the reviewing
court, if sitting as a trial court, would have made a different decision. * * * ’”
       {¶70} Thus, an abuse of discretion standard of review applies. See also State
v. Bozarth, 5th Dist. No. 08-CA-008, 2009-Ohio-2013, at ¶30; City of Columbus v.
Bishop, 10th Dist. No. 08AP-300, 2009-Ohio-6964, at ¶12; State v. Hunneman, 12th
                                                                              - 13 -


Dist. No. CA2006-01-006, 2006-Ohio-7023, at ¶26; Roach v. Roach (1992), 79 Ohio
App.3d 194, 205.
       {¶71} The excited utterance exception to the hearsay rule is often used to
admit statements of domestic violence victims. State v. Ducey, 10th Dist. No. 03AP-
944, 2004-Ohio-3833, at ¶20.
       {¶72} To determine whether the trial court abused its discretion in admitting
the officers’ testimony as to Armstrong’s statements we must examine the statements
in light of the above-cited requirements.
       {¶73} First, there must have been a startling event that produced nervous
excitement in Armstrong so that her statements were spontaneous.            Here, the
startling event for Armstrong was being punched five to six times in the head by her
boyfriend. An assault is a startling event. State v. Fields, 8th Dist. No. 88916, 2007-
Ohio-5060, at ¶53; State v. Grey, 10th Dist. No. 06AP-15, 2007-Ohio-1504, at ¶11.
       {¶74} Second, Armstrong must have made the statements while still under
the stress of the excitement. The officers’ testimony demonstrated that Armstrong
was still under the stress of her assault.     Officer Bigowsky testified that when
Armstrong opened the door he observed that she was physically shaking, she
stuttered when she spoke, and she appeared to be in a state of shock. (Tr. 152-53).
Officer Bigowsky also testified that Armstrong stated, “He’s upstairs. I’m scared.”
(Tr. 152). He further testified appellant had cuts and bruises on her face and a large
lump on the side of her head as if she had just been struck. (Tr. 150-51). And
Officer Moran testified that Armstrong was shaking and appeared scared. (Tr. 186).
Officer Moran also stated that Armstrong made her statements to them a minute after
they arrived. (Tr. 186). Given the officers’ observations of Armstrong’s demeanor
and their timing, it was reasonable for the trial court to conclude that she was still
under the excitement of the assault when she made her statements to the officers.
       {¶75} Third, the statements must have related to the startling event.
Armstrong’s statements were that appellant punched her in the head five or six times.
(Tr. 153, 186). These statements related to the assault.
                                                                               - 14 -


       {¶76} Fourth, Armstrong must have personally observed the startling event.
Clearly, Armstrong observed the event of appellant punching her.
       {¶77} Because all of the requirements for an excited utterance were present,
we cannot conclude that the trial court abused its discretion in admitting Armstrong’s
statements under this hearsay exception.
       {¶78} Accordingly, appellant’s third assignment of error is without merit.
       {¶79} Appellant’s fourth assignment of error states:
       {¶80} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
INCORRECTLY ADVISED DEFENDANT-APPELLANT, DONTE MAULDIN THAT IT
WOULD RECOMMEND THAT HE WOULD BE SUBJECT TO A PERIOD OF THREE
YEARS OF POST RELEASE CONTROL, WHEN THE CORRECT PERIOD OF
POST RELEASE CONTROL IS THREE YEARS FOR A FELONY OF THE THIRD
DEGREE WHERE THE OFFENDER CAUSES OR ATTEMPTS TO CAUSE
PHYSICAL HARM TO THE VICTIM PURSUANT TO R.C. 2967.28(B)(3),
RENDERING APPELLANT’S SENTENCE VOID.”
       {¶81} At appellant’s sentencing hearing, after sentencing appellant to three
years in prison, the trial court stated:
       {¶82} “I’m going to recommend postrelease control. So when you’re released
from prison you may be subject to a term of postrelease control.          The ultimate
decision is up to the parole board and, I believe, the Department of Corrections.”
(Emphasis added; Sentencing Tr. 8).
       {¶83} And in its judgment entry, with regard to postrelease control, the court
stated:
       {¶84} “Upon completion of the prison term, the offender may be subject to a
period of Post-Release Control (PRC) up to three (3) years as determined by the
Parole Board pursuant to R.C. 2967.28. The Court recommends the Defendant be
put on the maximum period of post release control.” (Emphasis added.)
       {¶85} In this assignment of error, appellant argues that the trial court did not
include the proper period of postrelease control in his sentence. He points out that
                                                                                 - 15 -


for a third-degree felony where the defendant caused or threatened physical harm,
postrelease control is for a period of three years.
       {¶86} R.C. 2967.28(B) provides in pertinent part:
       {¶87} “(B) Each sentence to a prison term for a felony of the first degree, for a
felony of the second degree, for a felony sex offense, or for a felony of the third
degree that is not a felony sex offense and in the commission of which the offender
caused or threatened to cause physical harm to a person shall include a requirement
that the offender be subject to a period of post-release control imposed by the parole
board after the offender's release from imprisonment. If a court imposes a sentence
including a prison term of a type described in this division on or after July 11, 2006,
the failure of a sentencing court to notify the offender pursuant to division (B)(3)(c) of
section 2929.19 of the Revised Code of this requirement or to include in the
judgment of conviction entered on the journal a statement that the offender's
sentence includes this requirement does not negate, limit, or otherwise affect the
mandatory period of supervision that is required for the offender under this division.
       {¶88} “* * *
       {¶89} “(3) For a felony of the third degree that is not a felony sex offense and
in the commission of which the offender caused or threatened physical harm to a
person, three years.” (Emphasis added.)
       {¶90} Per the terms of the statute, appellant is correct. In the commission of
his offense, appellant clearly caused physical harm to Armstrong. Consequently, the
trial court erred in informing appellant that he may be subject to postrelease control
and that the decision as to how much time was up to the parole board. Instead,
postrelease control of three years was statutorily mandated.
       {¶91} At oral argument, appellant agreed with the state that the Ohio State
Supreme Court set out the proper remedy for this error in State v. Singleton, 124
Ohio St.3d 173, 2009-Ohio-6434. See also State v. Mock, 7th Dist. No. 08-MA-94,
2010-Ohio-2747.
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        {¶92} In Singleton, upon sentencing the defendant, the trial court improperly
stated that he was subject only to the possibility of five years postrelease control and
it did not specify that the parole board could impose an additional prison term of up to
one-half of his prison sentence for a violation of postrelease control. The court of
appeals agreed and remanded the matter for a de novo resentencing hearing. The
state appealed arguing that prior to the expiration of a prison term, a trial court may
correct a sentence lacking a mandatory term of postrelease control pursuant to R.C.
2929.191, which was enacted on July 11, 2006.1
        {¶93} The Ohio Supreme Court acknowledged its prior holdings that when a
trial court imposes a sentence without properly notifying the defendant of postrelease
control, the sentence is contrary to law and void. Id. at ¶14, citing State v. Jordan,
104 Ohio St.3d 21, 2004-Ohio-6085, State v. Beasley (1984), 14 Ohio St.3d 74.
However, the Court noted that before the enactment of R.C. 2929.191 in July 2006,
there was no statutory mechanism to correct a sentence that failed to comport with


1        {¶ a} R.C. 2929.191 provides in pertinent part:
         {¶ b} “(A)(1) If, prior to the effective date of this section, a court imposed a sentence including
a prison term of a type described in division (B)(3)(c) [first- or second-degree felony, felony sex
offense, or third-degree felony where offender threatened or caused physical harm] of section 2929.19
of the Revised Code and failed to notify the offender pursuant to that division that the offender will be
supervised under section 2967.28 of the Revised Code after the offender leaves prison or to include a
statement to that effect in the judgment of conviction entered on the journal or in the sentence
pursuant to division (F)(1) of section 2929.14 of the Revised Code, at any time before the offender is
released from imprisonment under that term and at a hearing conducted in accordance with division
(C) of this section, the court may prepare and issue a correction to the judgment of conviction that
includes in the judgment of conviction the statement that the offender will be supervised under section
2967.28 of the Revised Code after the offender leaves prison.
         {¶ c} “* * *
         {¶ d} “(C) On and after the effective date of this section, a court that wishes to prepare and
issue a correction to a judgment of conviction of a type described in division (A)(1) or (B)(1) of this
section shall not issue the correction until after the court has conducted a hearing in accordance with
this division. Before a court holds a hearing pursuant to this division, the court shall provide notice of
the date, time, place, and purpose of the hearing to the offender who is the subject of the hearing, the
prosecuting attorney of the county, and the department of rehabilitation and correction. The offender
has the right to be physically present at the hearing, except that, upon the court's own motion or the
motion of the offender or the prosecuting attorney, the court may permit the offender to appear at the
hearing by video conferencing equipment if available and compatible. An appearance by video
conferencing equipment pursuant to this division has the same force and effect as if the offender were
physically present at the hearing. At the hearing, the offender and the prosecuting attorney may make
a statement as to whether the court should issue a correction to the judgment of conviction.”
                                                                                 - 17 -


the statutory postrelease control requirements. Id. at ¶22. But the Court observed
that with R.C. 2929.191, the legislature provided a statutory remedy to correct a
failure to properly impose postrelease control. Id. at ¶23. It explained:
       {¶94} “Effective July 11, 2006, R.C. 2929.191 establishes a procedure to
remedy a sentence that fails to properly impose a term of postrelease control. It
applies to offenders who have not yet been released from prison and who fall into at
least one of three categories: those who did not receive notice at the sentencing
hearing that they would be subject to postrelease control, those who did not receive
notice that the parole board could impose a prison term for a violation of postrelease
control, or those who did not have both of these statutorily mandated notices
incorporated into their sentencing entries. R.C. 2929.191(A) and (B). For those
offenders, R.C. 2929.191 provides that trial courts may, after conducting a hearing
with notice to the offender, the prosecuting attorney, and the Department of
Rehabilitation and Correction, correct an original judgment of conviction by placing on
the journal of the court a nunc pro tunc entry that includes a statement that the
offender will be supervised under R.C. 2967.28 after the offender leaves prison and
that the parole board may impose a prison term of up to one-half of the stated prison
term originally imposed if the offender violates postrelease control.” Id.
       {¶95} The Court further pointed out that the R.C. 2929.191 hearing pertains
only to the “flawed imposition of postrelease control” as the General Assembly
apparently intended to “leave undisturbed the sanctions imposed upon the offender
that are unaffected by the court's failure to properly impose postrelease control at the
original sentencing.” Id. at ¶24.
       {¶96} Consequently, the Court held:
       {¶97} “1. For criminal sentences imposed prior to July 11, 2006, in which a
trial court failed to properly impose postrelease control, trial courts shall conduct a de
novo sentencing hearing in accordance with decisions of the Supreme Court of Ohio.
       {¶98} “2.   For criminal sentences imposed on and after July 11, 2006, in
which a trial court failed to properly impose postrelease control, trial courts shall
                                                                               - 18 -


apply the procedures set forth in R.C. 2929.191.” Id. at paragraphs one and two of
the syllabus.
       {¶99} Because appellant was convicted and sentenced after the July 11,
2006, enactment of R.C. 2929.191 and is still serving his prison sentence, the proper
procedure here is to remand the matter to the trial court to hold a hearing pursuant to
R.C. 2929.191(C) while keeping the remainder of appellant’s sentence intact.
       {¶100} Accordingly, appellant’s fourth assignment of error has merit.
       {¶101} For the reasons stated above, appellant’s conviction is hereby
affirmed. The matter is remanded to the trial court for the limited purpose of an R.C.
2929.191 hearing to correct the postrelease control portion of appellant’s sentence.


Vukovich, P.J., concurs.

Waite, J., concurs.
