[Cite as State v. McGlothan, 138 Ohio St.3d 146, 2014-Ohio-85.]




         THE STATE OF OHIO, APPELLANT, v. MCGLOTHAN, APPELLEE.
        [Cite as State v. McGlothan, 138 Ohio St.3d 146, 2014-Ohio-85.]
Clarification of State v. Williams regarding the evidence necessary to establish
        cohabitation for purposes of R.C. 2919.25.
   (No. 2012-1782—Submitted October 23, 2013—Decided January 16, 2014.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 97212,
                                    2012-Ohio-4049.
                                ____________________
        O’DONNELL, J.
        {¶ 1} The state of Ohio appeals from a decision of the Eighth District
Court of Appeals affirming Jeffrey McGlothan’s conviction for attempted
felonious assault but reversing his conviction for domestic violence. Despite the
victim’s testimony that McGlothan was her boyfriend and had lived with her for
about a year, a majority of the appellate court ruled that the state must prove they
shared living expenses in order to convict McGlothan of domestic violence. The
appellate court misconstrued our decision in State v. Williams, 79 Ohio St.3d 459,
683 N.E.2d 1126 (1997), because in this case the state proved that the victim was
a family or household member and proved cohabitation pursuant to R.C. 2919.25.
Accordingly, the judgment of the appellate court is reversed and the judgment of
the trial court finding McGlothan guilty of domestic violence is reinstated.
                        Factual and Procedural Background
        {¶ 2} In February 2011, a grand jury indicted Jeffrey McGlothan on one
count of felonious assault in violation of R.C. 2903.11(A)(1), with a repeat-
violent-offender specification, and one count of domestic violence in violation of
R.C. 2919.25(A) as a result of an incident at the apartment he shared with his
girlfriend.   The domestic violence count alleged that McGlothan knowingly
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caused or attempted to cause physical harm to “Cynthia Robinson, a family or
household member.”
       {¶ 3} During a bench trial in June 2011, Robinson testified that at the
time of the incident, McGlothan was her boyfriend and had lived with her in her
apartment for “about a year.”      She further explained that McGlothan slept
overnight at her apartment every night. She also stated that he had helped her put
things up on the wall when he moved into the apartment.
       {¶ 4} Robinson testified that one evening in January 2011, she let
McGlothan inside the apartment and confronted him about where he had been
earlier that day. They began arguing, and McGlothan pushed Robinson and
grabbed her by the shirt. As a result, he detached a permanent tracheostomy tube,
which enabled her to breathe.      McGlothan helped Robinson call 9-1-1, and
emergency-room physicians were able to reinsert the tube without surgery.
During trial, the court admitted Robinson’s medical records, which contained her
statement that “her boyfriend purposely pulled her trach out.”
       {¶ 5} The court found McGlothan not guilty of felonious assault, but
guilty of attempted felonious assault and domestic violence. As a result, the court
sentenced him to an aggregate two year prison term.
       {¶ 6} On appeal, a majority of the appellate court held that the state had
failed to present sufficient evidence to support McGlothan’s conviction for
domestic violence based on its analysis of our explanation of the term
“cohabitation” in Williams, 79 Ohio St.3d 459, 683 N.E.2d 1126. The court
explained, “Although Robinson testified that [McGlothan] was her boyfriend and
he had slept over at her apartment for roughly a year, there was no testimony that
the couple shared any living expenses, such as rent and utilities, which would
demonstrate shared familial or financial responsibilities.” 8th Dist. Cuyahoga No.
97212, 2012-Ohio-4049, ¶ 22. The dissenting judge did “not believe that it was
necessary for the state to prove that the couple shared any living expenses when it




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was established that McGlothan lived there.” Id. at ¶ 47 (Boyle, J., concurring in
part and dissenting in part).
          {¶ 7} On appeal to this court, the state asserts that by requiring evidence
of shared living expenses to demonstrate shared familial or financial
responsibilities, the court of appeals elevated one of the nonexhaustive factors set
forth in Williams to an essential element of cohabitation. It argues instead that
shared living expenses is merely one factor that a court may consider in a
cohabitation analysis.     The state further maintains that the Eighth District’s
requirement of shared living expenses to establish cohabitation is contrary to
decisions of the Second, Ninth, Tenth, and Eleventh Districts.
          {¶ 8} In response, McGlothan claims that the appellate court did not hold
that the state needed to prove shared financial responsibilities in order to establish
cohabitation for purposes of R.C. 2919.25 but rather ruled that the state had failed
to establish the cohabitation factors as set forth in Williams. Specifically, he
argues that it was reasonable for the court to conclude that Robinson’s testimony
that he was her boyfriend and spent every night at her apartment was not by itself
sufficient to prove cohabitation.      Moreover, he maintains that the appellate
decision here does not conflict with decisions from other appellate courts.
          {¶ 9} In this case, then, we are called upon to clarify Williams regarding
the evidence necessary to establish cohabitation as set forth in R.C.
2919.25(F)(2).
                                  Law and Analysis
          {¶ 10} R.C. 2919.25(A) provides: “No person shall knowingly cause or
attempt to cause physical harm to a family or household member.” (Emphasis
added.)
          {¶ 11} R.C. 2919.25(F)(1) provides that “family or household member”
means “(a) [a]ny 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.”



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       {¶ 12} At issue in this case is whether Robinson was a “person living as a
spouse.” R.C. 2919.25(F)(2) includes within the definition of “person living as a
spouse” one “who * * * is cohabiting with the offender.”
       {¶ 13} The court of appeals misread our decision in Williams as
supporting the proposition that evidence of shared living expenses is necessary to
establish cohabitation.   Williams is factually distinguishable from this case,
because there we addressed living arrangements between the victim and the
defendant that were markedly different from the circumstances here. In Williams,
79 Ohio St.3d at 460, 683 N.E.2d 1126, the victim testified that she and the
defendant “were going together” but that they did not live together. The victim’s
testimony that for a few months she stayed more nights at Williams’s place than
at her own further illustrates that they did not share a residence but rather that
each had a separate residence. See id. Thus, in order to prove cohabitation when
the victim and the defendant do not share the same residence, evidence of shared
financial or familial responsibilities and consortium is required. See id. at 463-
465.
       {¶ 14} After considering the General Assembly’s intent in enacting the
domestic violence statutes, despite urging by Williams himself, we declined to
“adopt a narrow definition of ‘reside’ which would limit ‘family or household
members’ to those who actually share one residential address.” Id. at 462. In
Williams, then, by determining that the offense of domestic violence “arises out of
the relationship of the parties rather than their exact living circumstances,” id. at
464, we interpreted the statute broadly to include those who did not live with the
offender but who also deserved protection under the statute based on their
relationship with the offender.
       {¶ 15} In contrast to Williams, Robinson testified that McGlothan was her
boyfriend and that they had lived together in her apartment for approximately a
year, thus establishing that they did share one residence.       Because the state




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demonstrated that the defendant was the victim’s boyfriend and that they had
lived together for about a year, the state had no obligation to demonstrate the
sharing of familial or financial responsibilities and consortium to prove
cohabitation in this case. Instead, based on Robinson’s testimony, the trial court
could have reasonably determined that the state established cohabitation and thus
that Robinson was a person living as a spouse with McGlothan. Because the
evidence also demonstrates that Robinson resided with McGlothan at the time of
the incident, the trial court could have reasonably concluded that Robinson was a
family or household member.
       {¶ 16} Alternatively, even if the Williams factors did apply regarding the
nonexhaustive list establishing shared familial or financial responsibilities,
circumstantial evidence shows that McGlothan and Robinson, by sharing her
apartment for about a year, did share shelter and utilities. In addition, the trial
court could have reasonably concluded that Robinson’s testimony demonstrated
factors establishing consortium, such as affection, society, and aid of each other.
Williams at 465.
       {¶ 17} Finally, we have explained that the General Assembly “recognized
the special nature of domestic violence when it drafted the domestic violence
statutes” and “believed that an assault involving a family or household member
deserves further protection than an assault on a stranger.” Williams, 79 Ohio
St.3d at 463, 683 N.E.2d 1126. We have also acknowledged the desire of the
legislature 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.” State v. Carswell, 114 Ohio St.3d 210, 2007-Ohio-3723, 871 N.E.2d
547, ¶ 32, 36. In this regard, we recognize that McGlothan and Robinson were
not strangers but rather lived together and were in a relationship from which the
domestic violence arose.     Therefore, considering the intent of the General
Assembly in enacting the statute, we determine that Robinson was a person living



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as a spouse and therefore, McGlothan’s crime falls within the purview of the
domestic violence statute.
       {¶ 18} Accordingly, in this case, the state established that Robinson was a
family or household member because her testimony demonstrates that she was a
person living as a spouse who resided with McGlothan at the time of the incident.
We therefore reverse the judgment of the court of appeals and reinstate the
judgment of the trial court finding McGlothan guilty of domestic violence.
                                                                 Judgment reversed.
       O’CONNOR, C.J., and PFEIFER and KENNEDY, JJ., concur.
       LANZINGER, FRENCH, and O’NEILL, JJ., dissent.
                             ____________________
       LANZINGER, J., dissenting.
       {¶ 19} I respectfully dissent. The majority reverses the judgment of the
Eighth District Court of Appeals and “reinstate[s] the judgment of the trial court
finding McGlothan guilty of domestic violence.”             Majority opinion, ¶ 18.
However, in his appeal to the Eighth District, McGlothan raised the issue of allied
offenses in his fifth assignment of error, which the court of appeals held was
moot. 8th Dist. Cuyahoga No. 97212, 2012-Ohio-4049, ¶ 43. At the very least,
the majority should remand the case to the court of appeals for resolution of
McGlothan’s fifth assignment of error on allied offenses.
       {¶ 20} In addition, without expressly acknowledging the fact, the majority
overrules a portion of State v. Williams, 79 Ohio St.3d 459, 683 N.E.2d 1126
(1997). It now decides that merely living in the same residence will satisfy the
element of cohabitation for the domestic-violence statute, stating that “[b]ecause
the state demonstrated that the defendant was the victim’s boyfriend and that they
had lived together for about a year, the state had no obligation to demonstrate the
sharing of familial or financial responsibilities and consortium to prove
cohabitation in this case.” Majority opinion, ¶ 15.




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       {¶ 21} Rather than clarifying Williams, this statement repudiates one of
the cohabitation requirements set forth in Williams:


       [W]e conclude that the essential elements of “cohabitation” are (1)
       sharing of familial or financial responsibilities and (2) consortium.
       R.C. 2919.25(E)(2) and related statutes.            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.


(Emphasis added.) Id. at 465.
       {¶ 22} Williams clearly requires both elements: sharing familial or
financial responsibilities as well as consortium. One witness testifying about
living together for a year could satisfy both elements by indicating that there was
a sharing of provisions for shelter or utilities and that there was society or
companionship, provided that the fact-finder was satisfied that the evidence
established these elements beyond a reasonable doubt. In this case, the court of
appeals held that the state had not met its burden to show proof of cohabitation
because there was insufficient evidence of shared living expenses. Nevertheless,
it affirmed the finding of guilt on the offense of attempted felonious assault.
       {¶ 23} There is no need to broaden the reach of the domestic-violence
statute. Moreover, I believe that this appeal seeks mere error correction, and thus,
I would dismiss the case as having been improvidently allowed.



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                              ____________________
       FRENCH, J., dissenting.
       {¶ 24} I agree with the majority to the extent that it rejects the court of
appeals’ view that “cohabitation” necessarily requires proof that the victim and
the offender shared living expenses, such as rent and utilities. As we made plain
in State v. Williams, 79 Ohio St.3d 459, 683 N.E.2d 1126 (1997), the first element
of cohabitation requires proof that the offender and victim shared in either the
“familial or financial” responsibilities of the household. (Emphasis added.) Id. at
465. Nevertheless, I dissent because I believe that the evidence did not show that
McGlothan shared in either household responsibility.         Robinson’s testimony
concerned only the second element of cohabitation, “consortium.” It was neither
direct nor circumstantial proof that McGlothan shared in any of the familial or
financial responsibilities of the household. Because I would affirm the judgment
of the court of appeals, I respectfully dissent.
       O’NEILL, J., concurs in the foregoing opinion.
                              ____________________
       Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Mary
H. McGrath, Assistant Prosecuting Attorney, for appellant.
       Robert L. Tobik, Cuyahoga County Public Defender, and Erika Cunliffe,
Assistant Public Defender, for appellee.
                           ________________________




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