[Cite as State v. Ross, 2012-Ohio-1389.]


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

STATE OF OHIO                                          C.A. No.     25778

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
RICHARD L. ROSS, II                                    COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR 10 08 2210

                                  DECISION AND JOURNAL ENTRY

Dated: March 30, 2012



        MOORE, Judge.

        {¶1}     Appellant, Richard Ross, appeals from the judgment of the Summit County Court

of Common Pleas. This Court affirms in part, reverses in part, and remands this matter to the

trial court for further proceedings consistent with this opinion.

                                                  I.

        {¶2}     Richard Ross and Angel Davis were involved in a romantic relationship

intermittently for five years. On June 8, 2010, Ross allegedly gained entry into Davis’ apartment

and physically attacked her. The Summit County Grand Jury indicted Davis on one count of

domestic violence in violation of R.C. 2919.25(A), a third degree felony, two counts of

endangering children in violation of R.C. 2919.22(A), first degree misdemeanors, one count of

burglary in violation of R.C. 2911.12(A)(2), a second degree felony, and one count of domestic

violence in violation of R.C. 2919.25(C), a first degree misdemeanor.
                                                2


       {¶3}    Prior to trial, the court dismissed one count of endangering children. The case

proceeded to jury trial, and after the State rested, Ross moved to dismiss the remaining count of

endangering children, which the trial court granted. The jury deliberated as to the remaining

charges and returned a guilty verdict on the two domestic violence counts and a not guilty verdict

on the burglary count. The trial court sentenced Ross to four years of incarceration on the felony

domestic violence conviction and to 180 days of incarceration on the misdemeanor domestic

violence conviction, to run concurrently. The court further ordered Ross to pay the costs of the

prosecution. Ross timely filed a notice of appeal and presents six assignments of error for our

review. We have reordered and consolidated certain assignments of error for ease of discussion.

                                               II.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR
       WHEN IT OVERRULED [ROSS’] CRIM. R. 29(A) MOTION FOR
       JUDGMENT OF ACQUITTAL BECAUSE THE STATE PRESENTED
       INSUFFICIENT EVIDENCE TO SUSTAIN THE CONVICTIONS.

       {¶4}    In his second assignment of error, Ross argues that his convictions were not

supported by sufficient evidence. We do not agree.

       {¶5}    The issue of 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). When

considering a challenge to the sufficiency of the evidence, the court must determine whether the

prosecution has met its burden of production. Id. at 390 (Cook, J. concurring). In making this

determination, an appellate court must view the evidence in the light most favorable to the

prosecution:

       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
                                                 3


        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.

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

        {¶6}   Here, Ross specifically challenges the evidence as insufficient to prove that Ross

and Davis were “family or household members,” as is required in order to support his

convictions of domestic violence. As Ross has limited his argument to this element of the

offense, we limit our discussion accordingly.

        {¶7}   R.C. 2919.25 defines the offense of domestic violence, and provides in pertinent

part,

        (A) No person shall knowingly cause or attempt to cause physical harm to a
        family or household member.

        (B) No personal shall recklessly cause serious physical harm to a family or
        household member.

        (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.

        ***

        (F) As used in this section * * *:

        (1) “Family or household member” means any of the following:

        (a) Any of the following who is residing or has resided with the offender:

        (i) A spouse, a person living as a spouse, or a former spouse of the offender;

        (ii) A parent, a foster parent, or a child of the offender, or another person related
        by consanguinity or affinity to the offender;

        (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.
                                                 4


       (b) The natural parent of any child of whom the offender is the other natural
       parent or is the putative other natural parent.

       (2) “Person living as a spouse” means 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.

       {¶8}    Here, Ross and Davis were not married, and Ross was not the father of Davis’

children. Thus, the State sought to establish Ross’ status as a “family or household member”

through proof that he was a “person living as a spouse.” In the context of a “person living as a

spouse,” the Ohio Supreme Court has held that element of “cohabitation” requires proof that the

individuals shared familial or financial responsibilities and proof of consortium.        State v.

Williams, 79 Ohio St.3d 459, 465 (1997), paragraph two of the syllabus. The Court further

explained,

       Possible 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. 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. at 465.

       {¶9}    As part of the State’s case-in-chief, Davis testified that she and Ross met in 2006,

and they had an “on and off” boyfriend/girlfriend relationship since that time until May of 2010.

During their relationship, Davis and two of her children had resided with Ross at his mother’s

house for six months, and then moved in with Ross and his mother again after his mother

relocated. Davis’ children love Ross and call him “Dad,” and Ross has assisted with the care of

Davis’ children, and potty trained Davis’ son.

       {¶10} In 2010, Ross lived with Davis on Lake Street until Davis moved to Long Street.

Although she did not consider Ross to live with her on Long Street, he had some outfits in her
                                                 5


apartment there and stayed there occasionally. In approximately May of 2010, Davis ended her

relationship with Ross.

       {¶11} Based on the above, viewed in the light most favorable to the State, a reasonable

trier of fact could conclude that Ross and Davis had lived together as spouses within the purview

of R.C. 2919.25, as the State produced sufficient evidence that Ross and Davis cohabitated

within the five-year period preceding June 8, 2010.

       {¶12} Accordingly, Ross’ second assignment of error is overruled.

                                 ASSIGNMENT OF ERROR I

       [ROSS’] CONVICTIONS FOR DOMESTIC VIOLENCE ARE AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE.

       {¶13} In his first assignment of error, Ross argues that his convictions were against the

manifest weight of the evidence. We do not agree.

       {¶14} When a defendant asserts that his conviction is against the manifest weight of the

evidence,

       an appellate court must review 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).

       {¶15} Here, Ross again limits his argument to challenging the weight of the evidence

demonstrating that he and Davis were “family or household members,” and we limit our

discussion accordingly.

       {¶16} In support of his position that he and Davis were not family or household

members, Ross argues that Davis’ testimony established that he was only a “guest.” Davis

testified that Ross had no key to the apartment, that he did not live with her on Long Street, and
                                                 6


that he did not receive mail at her apartment. Ross further argues that there was no evidence that

Ross and Davis shared financial or familial responsibilities. Instead, Ross argues that Davis’

testimony established that Ross only assisted in household finances as a friend and assisted in

caring for Davis’ children in a role similar to that of a babysitter. In addition, Ross’ probation

officer testified that the address Ross provided to him as his own was not Davis’ address.

       {¶17} However, current cohabitation is not required to demonstrate that an individual is

a “family or household member” within the meaning of R.C. 2919.25. Instead, a “family and

household member” includes a person living as a spouse “who is residing or has resided with the

offender.” R.C. 2919.25(F)(1)(a). A “person living as a spouse” includes an individual who “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). Here, the alleged offense occurred on June 8, 2010. Davis

testified that she and Ross began a romantic relationship in 2006 lasting until May of 2010, and

during their relationship, Davis and two of her children had resided with Ross at his mother’s

house for six months, and then moved in with Ross and his mother again after his mother

relocated. Ross assisted in caring for Davis’ children, and lived with her on Lake Street until

Davis moved to Long Street, where he stayed on occasion.

       {¶18} After reviewing the entire record, weighing the inferences and examining the

credibility of witnesses, we cannot say that this is the exceptional case where the jury clearly lost

its way and created a manifest miscarriage of justice in finding Ross guilty of domestic violence

in respect to that offense’s essential element of a “family or household member,” in that Ross

and Davis had cohabitated within the five-year period preceding June 8, 2010.

       {¶19}     Accordingly, Ross’ first assignment of error is overruled.
                                                 7


                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR
       WHEN IT SENTENCED ROSS FOR TWO COUNTS OF DOMESTIC
       VIOLENCE AS THEY WERE ALLIED OFFENSES OF SIMILAR IMPORT
       SUBJECT TO MERGER UNDER R.C. 2941.25.

       {¶20} In his third assignment of error, Ross argues that the trial court committed plain

error by failing to merge his two sentences for domestic violence, as the offenses constituted

allied offenses of similar import.

       {¶21} At trial, Ross did not object to the separate sentences on the two domestic

violence counts. Where a party has failed to raise an objection in the trial court, the objection

may still be assigned as error on appeal if a showing of plain error is made. State v. Hairston,

9th Dist. No. 05CA008768, 2006-Ohio-4925, ¶ 9; Crim.R. 52(B). However, notice of a plain

error is taken with the utmost caution and only to prevent a manifest miscarriage of justice. State

v. Bray, 9th Dist. No. 03CA008241, 2004-Ohio-1067, ¶ 12. Therefore, we will not reverse the

trial court decision unless it has been established that the trial court outcome clearly would have

been different but for the alleged error. Id.

       {¶22} R.C. 2941.25 provides that,

       (A) Where the same conduct by defendant can be construed to constitute two or
       more allied offenses of similar import, the indictment or information may contain
       counts for all such offenses, but the defendant may be convicted of only one.

       (B) Where the defendant’s conduct constitutes two or more offenses of dissimilar
       import, or where his conduct results in two or more offenses of the same or
       similar kind committed separately or with a separate animus as to each, the
       indictment or information may contain counts for all such offenses, and the
       defendant may be convicted of all of them.

       {¶23} Here, Ross argues that the two charges of domestic violence were allied offenses

of similar import, and thus it was plain error for the trial court to sentence him on both counts. In

State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, ¶ 44, the Ohio Supreme Court held that
                                                8


in determining whether two offenses are allied offenses of similar import, “the conduct of the

accused must be considered.” The court must first determine “whether it is possible to commit

one offense and commit the other with the same conduct,” and, if so, then “the court must

determine whether the offenses were committed by the same conduct, i.e. ‘a single act,

committed with a single state of mind.’” Id. at ¶ 48, 49, quoting State v. Brown, 119 Ohio St.

447, 2008-Ohio-4569, ¶ 50 (Lanzinger, J. concurring).       If the same conduct constituted both

offenses, then they must be merged. Johnson at ¶ 50. Failure to merge allied offenses of similar

import constitutes plain error, and prejudice exists even where a defendant’s sentences are to run

concurrently because “a defendant is prejudiced by having more convictions than are authorized

by law.” State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 31

       {¶24} Here, the indictment charged that, on June 8, 2010, Ross committed felony

domestic violence in violation of R.C. 2919.25(A) by causing injury to Davis and committed

misdemeanor domestic violence in violation of R.C. 2919.25(C) by causing Davis to believe he

would cause her imminent physical harm.

       {¶25} At trial, Davis testified that, in the early hours of June 8, 2010, she heard a little

bumping sound on her door while she was in bed asleep with her son. She then heard Ross ask

her to let him inside. Davis told Ross that he could not come in, and he then forced the door

open and said he wanted to talk to her. She replied that she did not want to talk to him, at which

point Ross began striking her with closed fists. Ross hit Davis approximately ten to fifteen times

before Davis’ son awoke, jumped on Ross, and told Ross to get off of his mom. Ross flung the

boy off of him, and Davis ran out of her door toward her steps. Ross caught up with her and

dragged her down the steps, tearing her shirt, before running away from the residence.
                                                9


       {¶26} The State contends that this evidence established that the two counts of domestic

violence “were based on separate conduct which could not possibly result in the commission of

both offenses.” As to the R.C. 2919.25(C) offense, the State contends that “Ross’ conduct in

appearing at the apartment in the middle of the night, knocking on the door, refusing to leave,

and forcibly entering the home, and refusing to leave provided a sufficient basis for Davis to

believe he would cause her imminent physical harm.” As to the R.C. 2919.25(A) offense, the

State contends that the physical altercation that ensued after Ross gained entry was separate

conduct.

       {¶27} The sentencing entry here was journalized on December 29, 2010, the same day

that the Court decided Johnson. In light of Johnson, we sustain Ross’ third assignment of error

and remand this matter to the trial court for a determination as to whether the two domestic

violence counts were allied offenses of similar import subject to merger. Johnson at ¶ 49-50. If

so, the State must elect which charge will be merged into the other for the purposes of

sentencing. State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶ 43.

                                ASSIGNMENT OF ERROR V

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
       ASSESSING COURT COSTS AGAINST ROSS WITHOUT COMPLYING
       WITH R.C. 2947.23(A).

       In his fifth assignment of error, Ross argues that the trial court committed plain error by

ordering him to pay court costs without providing him notice as required by R.C. 2947.23(A).

       R.C. 2947.23(A) provides in relevant part,

       (A)(1) In all criminal cases, including violations of ordinances, the judge or
       magistrate shall include in the sentence the costs of prosecution, including any
       costs under section 2947.231 of the Revised Code, and render a judgment against
       the defendant for such costs. At the time the judge or magistrate imposes
       sentence, the judge or magistrate shall notify the defendant of both of the
       following:
                                                  10


       (a) If the defendant fails to pay that judgment or fails to timely make payments
       towards that judgment under a payment schedule approved by the court, the court
       may order the defendant to perform community service in an amount of not more
       than forty hours per month until the judgment is paid or until the court is satisfied
       that the defendant is in compliance with the approved payment schedule.

       (b) If the court orders the defendant to perform the community service, the
       defendant will receive credit upon the judgment at the specified hourly credit rate
       per hour of community service performed, and each hour of community service
       performed will reduce the judgment by that amount.

       {¶28} In State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, ¶ 20-24, the Ohio Supreme

Court determined that a trial court’s failure to notify a defendant that it is imposing court costs at

the sentencing hearing requires a case to be remanded for the purpose of providing such

notification and allowing the defendant to request a waiver, if desired. However, here, the trial

notified Ross at sentencing that he would be obligated to pay the costs of the prosecution. Yet,

the trial court did not notify Ross that his failure to pay the costs could result in imposition of

community service or that Ross would receive credit toward the costs from any community

service so imposed. See R.C. 2947.23(A)(1). In State v. Debruce, 9th Dist. No. 25574, 2012-

Ohio-454, ¶ 38-39, this Court recently concluded that it is reversible error for the trial court to

fail to comply with the community service notifications of R.C. 2947.23(A)(1)(a) & (A)(1)(b),

and “the proper remedy is to reverse the trial court’s imposition of court costs and remand for the

proper imposition of court costs in accordance with the requirements set forth in R.C.

2947.23(A)(1).”

       Accordingly, Ross’ fifth assignment of error is sustained, and we remand this matter to

the trial court for the proper imposition of court costs.

                                 ASSIGNMENT OF ERROR IV

       ROSS WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE
       ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL
       FAILED TO ARGUE THAT THE TWO COUNTS OF DOMESTIC VIOLENCE
                                                  11


       WERE ALLIED OFFENSES OF SIMILAR IMPORT SUBJECT TO MERGER
       UNDER R.C. 2941.25.

                                 ASSIGNMENT OF ERROR VI

       ROSS WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE
       ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL
       FAILED TO ARGUE THAT THE TRIAL COURT’S IMPOSITION OF COURT
       COSTS UNDER R.C. 2947.23(A) WAS DEFECTIVE.

       {¶29} In his fourth and sixth assignments of error, Ross argues that his trial counsel

rendered ineffective assistance by failing to argue that his domestic violence counts were allied

offenses of similar import and by failing to argue that the court’s imposition of court costs was

defective.

       {¶30} In light of our disposition of Ross’s third and fifth assignments of error, we

decline to address his fourth and sixth assignments of error, as they have been rendered moot.

See App.R. 12(A)(1)(c).

                                                 III.

       {¶31} Ross’ first and second assignments of error are overruled. Ross’ third and fifth

assignments of error are sustained. We decline to address Ross’ fourth and sixth assignments of

error as they have been rendered moot. The judgment of the Summit County Court of Common

Pleas is affirmed in part, reversed in part, and this matter is remanded to the trial court for further

proceedings consistent with this opinion.

                                                                          Judgment affirmed in part,
                                                                               reversed in part, and
                                                                                  cause remanded.




       There were reasonable grounds for this appeal.
                                                12


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

Pleas, County of Summit, 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

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 equally to both parties.




                                                     CARLA MOORE
                                                     FOR THE COURT



CARR, P. J.
DICKINSON, J.
CONCUR.


APPEARANCES:

SHUBHRA N. AGARWAL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
