[Cite as Cleveland v. Johnson, 2014-Ohio-4083.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100662




                                CITY OF CLEVELAND
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                              MICHAEL D. JOHNSON
                                                        DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED



                                      Criminal Appeal from the
                                     Cleveland Municipal Court
                                     Case No. 2013 CRB 010854

        BEFORE: E.T. Gallagher, J., E.A. Gallagher, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: September 18, 2014
ATTORNEY FOR APPELLANT

Steve W. Canfil
2000 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113-1899


ATTORNEYS FOR APPELLEE

Barbara A. Langhenry
Director of Law
City of Cleveland
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114-1077

BY: Victor R. Perez
Law Department
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

       {¶1} Defendant-appellant, Michael Johnson (“Johnson”), appeals his domestic

violence conviction.    We find some merit to the appeal, reverse the trial court’s

judgment, and remand the case to the trial court for a new trial.

       {¶2} Johnson was charged with one count of misdemeanor domestic violence. On

the day of trial, Johnson informed the court that he would present two alibi witnesses. In

response, the court stated, in relevant part: “Alibi is only when there’s a question of

identity. * * * This is not a question of whether or not you did it * * * it’s whether or not

it occurred.” The court nevertheless permitted Johnson’s alibi witnesses to testify.

       {¶3} The victim, Samaiyah Pinkney (“Pinkney”), testified at trial that she and

Johnson lived together for approximately one and a half years as boyfriend and girlfriend.

 After they broke up, Pinkney moved to Lorain County but frequently returned to

Cleveland to visit her oldest sister. On April 17, 2013, Pinkney was walking down

Detroit Road on her way to her friend Steve’s house on West 83rd Street when she

encountered Johnson. Johnson asked her why she still wanted to “hang around on

Detroit.” Pinkney testified that she said something to him as she continued walking and

he attacked her.    According to Pinkney, he punched her face, pulled her hair, and

“smashed” her face into a brick wall. Pinkney subsequently called 911.

       {¶4} Officer Richard Dembie (“Dembie”), who responded to the scene, testified

that Pinkney was crying when he arrived. He observed a scratch on her chest, a bruise on
her arm, and redness on the side of her cheek that was “not swollen yet.” Dembie took

photographs of Pinkney’s injuries, which were admitted into evidence.

       {¶5} Johnson and his two alibi witnesses testified for the defense. Desiree Bell

(“Bell”), Johnson’s new girlfriend, testified that she was with Johnson at his home at the

time Pinkney was assaulted. She further stated that Pinkney harassed her and Johnson by

repeatedly calling their cell phones. According to Bell, Pinkney threatened that she was

going to have “the Hough Boys jump” her and Johnson. Bell also stated that Pinkney

stopped calling after the incident.

       {¶6} Jason Stewart (“Stewart”), Johnson’s cousin, stated that on the night of the

incident, he, Bell, and Johnson spent the entire night at Johnson’s house playing video

games. Stewart also testified that he stayed at Johnson’s house for a week and that he

followed Johnson whenever he left the house because he did not want to be alone in the

house with Johnson’s girlfriend. He asserted that he was with Johnson all the time.

       {¶7} Johnson corroborated Bell’s testimony that Pinkney repeatedly called him and

Bell and threatened that the “Hough Boys” were going to kill him. In February 2013,

Johnson was shot in the leg, but there is no evidence the shooting was related to

Pinkney’s threats. Johnson testified that he was home with Bell and Stewart on the night

of the incident.

       {¶8} Based on this evidence, the trial court found Johnson guilty of domestic

violence. In reaching the verdict, the court explained that it found the victim’s testimony

“extremely credible” as weighed against that of the defense. The court also again stated
that “you have an alibi when you don’t know who the person is. There’s no question that

the complaining witness knows Mr. Johnson.” Johnson now appeals and raises three

assignments of error.

                              Sufficiency of the Evidence

      {¶9} In the first assignment of error, Johnson argues there was insufficient

evidence to sustain his conviction.     He contends the prosecution failed to present

evidence as to all the elements of domestic violence because there is no evidence that

Pinkney was Johnson’s spouse, former spouse, or mother of his child.

      {¶10} Johnson failed to move for acquittal during trial pursuant to Crim.R. 29 and

has therefore waived all but plain error. Cleveland v. Ellsworth, 8th Dist. Cuyhaoga No.

83040, 2004-Ohio-4092, ¶ 7, citing State v. Roe, 41 Ohio St.3d 18, 25, 535 N.E.2d 1351

(1989). Under Crim.R. 52(B), “plain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the trial court.” Notice of

plain error should be taken “with the utmost caution, under exceptional circumstances and

only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 97,

372 N.E.2d 804 (1978).

      {¶11} Crim.R. 29 mandates that the trial court issue a judgment of acquittal where

the state’s evidence is insufficient to sustain a conviction for the offense. In analyzing

whether a conviction is supported by sufficient evidence, the court must view the

evidence “in the light most favorable to the prosecution” and ask whether “any rational

trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979); State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of

the syllabus.

       {¶12} In this case, Johnson was charged with domestic violence in violation of

R.C. 2919.25, which states in relevant part that “no person shall knowingly cause or

attempt to cause physical harm to a family or household member.” R.C. 2919.25 defines

“family or household member,” in relevant part, as “[a] spouse, a person living as a

spouse, or a former spouse of the offender”; or “a parent, a foster parent or another person

related by consanguinity or affinity to the offender.”        R.C. 2919.25(F)(1).      R.C.

2919.25(F)(2) defines “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.

(Emphasis added.)

       {¶13} Johnson relies on State v. Williams, 79 Ohio St.3d 459, 683 N.E.2d 1126

(1997), and State v. McGlotham, 138 Ohio St.3d 146, 2014-Ohio-85, 4 N.E.3d 1021, to

support his argument that, to find a defendant guilty of domestic violence, the prosecution

must prove the defendant was living with the victim at the time of the offense. However,

in Williams, the Ohio Supreme Court considered factors relevant to determining whether

a couple cohabited, including evidence of a couples’ shared financial responsibilities. In

McGlothan, the Supreme Court clarified Williams and held that evidence of shared
financial responsibilities is merely one factor among many that the factfinder may

consider when deciding whether the victim qualifies as “a family or household member.”

       {¶14} Furthermore, the prosecution is only required to prove the elements set forth

in the domestic violence statute. As the Supreme Court acknowledged in McGlothan,

the legislature intended “‘to protect persons from violence by close family members or

residents of the same household’ and ‘to offer protections to a wide class of persons.’”

Id. at ¶ 17, quoting State v. Carswell, 114 Ohio St.3d 210, 2007-Ohio-3723, 871 N.E.2d

547, ¶ 32, 36. Accordingly, the legislature extended the protection to victims who have

lived with the defendant “within five years prior to the date of the commission of the act

in question.”

       {¶15} In this case, Pinkney admitted that she had no children with Johnson.

However, she testified that she lived with Johnson as boyfriend and girlfriend for “[a]bout

a year or two.” Johnson testified that they broke up in November of the preceding year

— well within the five years provided for in the statute. Pinkney and Johnson were not

presently cohabiting at the time of the assault. Therefore, there was sufficient evidence

to establish that Pinkney was “living as a spouse” and a “household member” under the

domestic violence statute.

       {¶16} The first assignment of error is overruled.

                                      Alibi Defense

       {¶17} In the second assignment of error, Johnson argues he was denied his

constitutional rights to due process and the effective assistance of counsel when the trial
court misinterpreted and rejected his alibi defense. He contends that because the alibi

was the cornerstone of his defense, the court’s incorrect interpretation of it deprived him

of a fair trial.

         {¶18} The trial court rejected Johnson’s alibi defense because the parties knew

each other, and Pinkney identified Johnson as the perpetrator. However, an alibi “is a

claim that you cannot be guilty of a crime because you were somewhere else when the

crime was committed.” http://merriam-webster.com/dictionary/alibi (accessed July 23,

2014). An alibi defense is a complete denial that the defendant committed an act. State

v. Coleman, 8th Dist. Cuyahoga No. 99369, 2013-Ohio-4792, ¶ 15. It has nothing to do

with whether the victim has properly identified the perpetrator of the crime. The trier of

fact decides whether identification testimony is credible or not. If the identification

testimony is credible, the factfinder may disbelieve the defendant’s alibi defense or vice

versa.

         {¶19} The trial court clearly misunderstood the alibi defense. In explaining its

verdict, the court stated, in relevant part:

         Given the facts submitted, the Court finds Mr. Johnson guilty. The fact of
         an alibi means * * * .

         [T]o me you have an alibi when you don’t know who the person is.
         There’s no question that the complaining witness knows Mr. Johnson.

Although the court further explained that it found Pinkney’s testimony “extremely

credible” and that the defense lacked credibility, it is impossible to determine how the

court’s misunderstanding of the alibi defense affected its judgment. Did the court’s
perception of an alibi prejudice it against the defense? Would the court have found the

defense more credible had it understood that an alibi defense applies even where the

victim or some other witness identifies the defendant as the culprit? These questions

leave doubt as to whether Johnson received a fair trial.

        {¶20} Therefore, we sustain the second assignment of error.

        {¶21} Having determined that Johnson is entitled to a new trial, the third

assignment of error, which concerns Johnson’s ineffective assistance of counsel claim, is

moot.

        {¶22} The trial court’s judgment is reversed and the case is remanded to the trial

court for a new trial.

        It is ordered that appellant recover from appellee costs herein taxed.

        The court finds there were reasonable grounds for this appeal.

        It is ordered that a special mandate issue out of this court directing the Cleveland

Municipal Court to carry this judgment into execution. The defendant’s conviction

having been affirmed, any bail pending appeal is terminated. Case remanded to the trial

court for execution of sentence.

        A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE

EILEEN A. GALLAGHER, P.J., and
MELODY J. STEWART, J., CONCUR
