[Cite as State v. Fernandez, 2012-Ohio-2538.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

STATE OF OHIO                                      :
                                                   :     Appellate Case No. 24814
        Plaintiff-Appellee                         :
                                                   :     Trial Court Case No. 11-CRB-7487
v.                                                 :
                                                   :
JAYSON FERNANDEZ                                   :     (Criminal Appeal from
                                                   :     (Dayton Municipal Court)
        Defendant-Appellant                        :
                                                   :
                                                ...........

                                                OPINION

                               Rendered on the 8th day of June, 2012.

                                                ...........

STEPHANIE COOK, Atty. Reg. #0067101, 335 West Third Street, Room 372, Dayton, Ohio
45402
      Attorney for Plaintiff-Appellee

MICHAEL H. HOLZ, Atty. Reg. #0031902, 507 Wilmington Avenue, Dayton, Ohio 45420
     Attorney for Defendant-Appellant

JAYSON FERNANDEZ, 255 North Main Street, #33, Dayton, Ohio 45402
     Defendant-Appellant, pro se


                                                       .............

HALL, J.

        {¶ 1}     On July 17, 2011, Jason Fernandez was charged with having committed two
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first-degree misdemeanors, assault and domestic violence, on July 16, 2011. (Dkt. # 4)

       {¶ 2}     A bench trial was conducted on July 26, 2011. The complaining witness

testified that on July 16, 2011, the defendant hit her leg with his cane. (T. 9). It caused an

open wound and a bruise. (T. 10). She identified a photo of her injury. (T. 11). She testified

that she and the defendant had an on-again off-again relationship for 11 years. (T. 4). They had

gotten back together about four months before the incident. (T. 4) She considered him her

fiancee. (Id.) They slept in the same bed. (T. 6). When the police arrived, the defendant was

sleeping in the bed. (T. 18). Although he also was staying at a shelter, (T. 13), he received mail

at her apartment. (Id.). At the time of the incident, he had been staying there every night for

about a week. (T. 14). She testified that “he came home drunk.” (Emphasis added). (T. 8). He

had at least some clothing there. (T. 19). At the conclusion of the trial, the court found the

defendant guilty of domestic violence and assault. A pre-sentence investigation was ordered.

       {¶ 3}    On August 9, 2011, the court sentenced the defendant to 180 days in jail with

credit for 25 days served and suspended 155 days. He was ordered to complete one year of

intensive probation supervision with various conditions. The defendant appealed.

       {¶ 4}     Appointed appellate counsel filed a motion to withdraw pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that the appeal was

frivolous. Counsel also filed an Anders brief that raises three potential issues: (1) there could

be ineffective assistance of counsel because of counsel’s failure to make a Crim.R. 29 motion

for judgment of acquittal based on insufficient evidence to prove a familial relationship

between the complaining witness and the defendant, (2) the trial court’s decision could be

against the manifest weight of the evidence, and (3) there could be a question whether the
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domestic violence and assault charges should have been merged. This Court notified

Fernandez of appellate counsel’s conclusion that the appeal was without merit and gave

Fernandez a period of time in which to file a pro-se brief assigning errors for our review.

Fernandez did not file a brief.

       {¶ 5}     In reviewing a claim of insufficient evidence, “[t]he relevant inquiry is

whether, after reviewing 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, 574 N.E.2d 492 (1991), paragraph two of the

syllabus. The domestic violence statute states that “[n]o person shall knowingly cause or

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

“family or household member” includes one “who is residing or has resided with the offender”

and is “[a] spouse, a person living as a spouse, or a former spouse of the offender.” R.C.

2919.25(F)(1)(a)(I). A “[p]erson 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.” R.C. 2919.25(F)(2). In State v.

Williams, 79 Ohio St.3d 459, 683 N.E.2d 1126 (1997), after surveying the various case law

permutations of a “person living as a spouse,” the Supreme Court stated “that the essential

elements of ‘cohabitation’ are (1) sharing of familial or financial responsibilities and (2)

consortium. 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,
                                                                                               4


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.” (Citations omitted.) Id. at 465. We believe the

evidence presented was sufficient for the trial court, as finder of fact, to conclude that the

defendant was a family or household member as defined by R.C. 2919.25, and an assertion to

the contrary does not have arguable merit.

       {¶ 6}    Likewise, the potential contention that the trial court’s decision is against the

manifest weight of the evidence would also fail. “[A] weight of the evidence argument

challenges the believability of the evidence and asks which of the competing inferences

suggested by the evidence is more believable or persuasive.” State v. Wilson, 2d Dist.

Montgomery No. 22581, 2009–Ohio–525, ¶ 12. The appellate court must review the entire

record, weigh the evidence and all reasonable inferences, consider witness credibility, and

determine whether 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.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), citing State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). We believe it was not against the manifest

weight of the evidence for the trial court to conclude that the defendant was guilty of the

offense of domestic violence, and an assertion to the contrary does not have arguable merit.

       {¶ 7}     Counsel’s third potential assignment of error raises a question of whether the

offenses of domestic violence and assault should have been merged. Although the trial court

found the defendant guilty of both offenses, (T. 23), he was sentenced only on the domestic

violence charge. (T. 24-25) (Entry and Order filed Aug. 9, 2011, Doc. 17). This Court
                                                                                             5


previously has held, with respect to a defendant found guilty of both domestic violence and

assault, that “[a] conviction for purposes of the allied offenses statute—R.C.

2941.25(A)—includes both an adjudication of guilt and a sentence; an adjudication of guilt

without a sentence is not a ‘conviction’ for purposes of the statute.” State v. Tilton, 2d Dist.

Montgomery No. 24527, 2011-Ohio-5564, ¶ 22. Because the record definitively demonstrates

that Fernandez was not sentenced on the assault charge, an argument that the offenses should

have been merged has no merit.

       {¶ 8}    Pursuant to Anders, we also are required to conduct a full examination of all

proceedings and to appoint new counsel to assist Fernandez if we find any non-frivolous issue

for review. Anders, 386 U.S. at 744; see also Penson v. Ohio, 488 U.S. 75, 76, 109 S.Ct. 346,

102 L.Ed.2d 300 (1988). Having thoroughly reviewed the record, we do not find any

non-frivolous issue.

       {¶ 9}    The record fails to portray any issue with arguable merit. As a result, the trial

court’s judgment is affirmed.

                                            .............

FAIN and FROELICH, JJ., concur.

Copies mailed to:

Stephanie Cook
Michael H. Holz
Jayson Fernandez
Hon. John S. Pickrel
