[Cite as State v. Hawkins, 2012-Ohio-4622.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                         :

        Plaintiff-Appellee                            :            C.A. CASE NO.    24976

v.                                                    :            T.C. NO.    11CR2829

BRIAN C. HAWKINS                                      :            (Criminal appeal from
                                                                    Common Pleas Court)
        Defendant-Appellant                           :

                                                      :

                                              ..........

                                              OPINION

                         Rendered on the        5th       day of     October     , 2012.

                                              ..........

MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

THOMAS M. KOLLIN, Atty. Reg. No. 0066964, 2661 Commons Blvd., Suite 214,
Beavercreek, Ohio 45431
      Attorney for Defendant-Appellant

                                              ..........

DONOVAN, J.

        {¶ 1}            This matter is before the Court on the Notice of Appeal of Brian

Hawkins, filed December 30, 2011. Hawkins was convicted following a jury trial on one
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count of domestic violence, in violation of R.C. 2919.25(A), a misdemeanor of the first

degree, and he was found not guilty of one count of abduction. The trial court sentenced

Hawkins to 180 days in jail.

       {¶ 2}     At trial, Sally Jones, the victim herein, testified that she met Hawkins in

February, 2011, at a bus stop in downtown Dayton, when she was on her way to work as a

nursing aid. Jones stated that Hawkins gave her his phone number, and that she called him

at 7:00 a.m. the next morning, when she ended her shift at work, and then she took the bus to

his apartment on Riverside Drive. Jones stated that she was homeless at the time, and that

Hawkins offered her some food and “let me lay down.” She stated that she told Hawkins

that she had nowhere to go, and that her things were stored at the home of a friend. Jones

stated, after “a month of coming there every day, still going to work, but coming back every

day and eating, me and his relationship did start to grow a little bit.” During that time, Jones

stated that she began to consider Hawkins her boyfriend, and she stated that he referred to

her as his girlfriend. She stated that they became intimate, and that they “spent time

together everyday.”

       {¶ 3}     Jones stated that Hawkins’ mother and step-father also lived in the

apartment. She stated that after a month, the four of them moved into another two-bedroom

apartment across the street, and she stayed in one of the bedrooms with Hawkins. Jones

testified that she stayed there from March until August. Jones stated that she “was drinking

alcohol really heavy” and smoking marijuana when she met Hawkins, and that he introduced

her to crack cocaine, which they often used together.     According to Jones, “he was sort of

what I would like to call an enabler because I didn’t know where to go get these drugs. Only
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he did. So he leave and then come back. So I always felt like I was waiting for him and I

felt like he wanted me to be in that room waiting for him.” Jones stated that Hawkins was

not employed. She testified that Hawkins was away from the apartment at one point for 24

days, during which time she “didn’t have him trying to be possessive and tell me where I

could and couldn’t go or to wait for him. So for those 24 days I was able to go visit friends *

* * . But I was still welcomed back to the house. Me and his mother had established a

relationship also.” Jones stated that Hawkins’ mother gave her a key to the apartment.

       {¶ 4}      According to Jones, she left the apartment when Hawkins returned after

his 24 day absence because she “didn’t know if he was going to be angry with me.” After

talking to Hawkins on the phone, Jones stated that she returned to the apartment on August

10, 2011, and that she and Hawkins resumed their drug usage “for a couple of days.” On

the third day, Jones stated that she stopped using drugs because she had to go to work, but

that Hawkins’ drug use continued. Jones stated that Hawkins sold his car “for $200 and

some drugs,” and he took his mother’s cell phone. Jones stated that Hawkins’ mother “had

gotten flustered” and instructed her and Hawkins’ step-father not to let Hawkins back into

the apartment. Jones stated that all of her things were stored in boxes and baskets in the

living room of the apartment.

       {¶ 5}     Jones indicated that she took a shower at the apartment and as she prepared

to leave she heard Hawkins knocking on the door and the window, and yelling at her to let

him inside. Hawkins’ step-father was present, and he phoned the sheriff’s department.

When the deputies responded, Hawkins was gone, and the officers left the scene.

According to Jones, Hawkins then returned to the apartment and tried to pry open the
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window.    Jones stated that she told Hawkins’ step-father to call the police, and that

thereafter, Hawkins kicked in the front door of the apartment. Jones stated that as she

backed up into the bathroom to get away from Hawkins, he shoved her and she fell into the

bathtub.

       {¶ 6}     While Hawkins and his step-father argued, Jones testified that she got out

of the bathtub and “scooted past” Hawkins, out the door of the apartment. She stated that

Hawkins followed her out the door, and that she asked him to leave her alone and told him

that she was leaving. Jones stated that she walked around a nearby car, and she stated that

Hawkins began to chase her around the car. Jones stated that she ran away from the car,

and that Hawkins chased her until she stumbled and fell. According to Jones, Hawkins then

got “on top of me and he just starts hitting me in the head” with a closed fist. Jones stated

that Hawkins told her to give him her key to the apartment, and that after she did so, “that’s

when he proceeded to choke me.” Jones stated that she “started to see the light fade from

my eyes” as though she were fainting. According to Jones, Hawkins also bit her fingers to

retrieve her cell phone from her hand.

       {¶ 7}     Jones stated that after she released her cell phone, Hawkins told her to get

up so that they could go to a friend’s apartment and “‘watch some cable.’” Jones stated that

she did not want to accompany Hawkins, but he lead her away by her wrist or her arm.

Jones stated that Hawkins then grabbed her “scrub top” to pull her along, and she testified

that she fell down. Jones stated that Hawkins dragged her until she told him that she would

comply and walk with him. She stated that while he was dragging her, he ripped her scrub

top “all the way down the middle,” and that he said, “‘I should just kick your head off like a
                                                                                              5

football.’” Jones stated that Hawkins also told her, “‘You burned me,’” and that he was

using a lot of profanity.

        {¶ 8}     Jones stated that she tried to “veer off” toward the nearby bus stop, and that

Hawkins said, “‘No. Like I said, you’re coming with me.’” Jones stated that she was crying

as they approached the apartment of Hawkins’ friend, and that she refused to go inside,

stating, “I’m not going in there with you because I don’t know what’s going to happen when

I go into this apartment.” Jones stated that Hawkins then slapped her in the eye with an open

hand. Jones then noticed that security personnel for the apartment complex had arrived, and

she ran to a security guard. According to Jones, two or three police cruisers also responded,

and some officers stayed with her while others searched for Hawkins. Jones stated that she

provided oral and written statements to the officers, and that they photographed her. Jones

stated that she experienced soreness and a headache, she had a cut under her right eye, and

her fingers were bleeding. She also stated her legs were sore from Hawkins sitting on her.

        {¶ 9}     On cross-examination, Jones stated that she was initially under the

impression that the first apartment belonged to Hawkins and that his mother and step-father

lived there with him, but she later learned that it was his mother’s apartment. She stated

that she lived in both apartments for about six months, but that she did not sign a lease or

pay rent. Jones stated that she bought cleaning supplies and she “didn’t really have to buy

food, but if it was necessary I had bought food at one point for the house.” She stated, if

Hawkins’ mother “needed some money and she asked me, I’d give her some money.” Jones

stated that her friend who initially allowed her to keep her things at her home was “kind of

getting fed up with my things being in her home,” and that Hawkins “was really pushing the
                                                                                               6

idea for me to bring all my things and stay with him.” Jones described her relationship with

Hawkins’ step-father as “a grandfather type relationship.”

       {¶ 10}    Jones stated that she told Hawkins she was leaving between August 10,

2011 and August 16, 2011, but that she had not “attained any type of stability” due to drug

use, and she had not saved any money. She stated that Hawkins brought many women

home during the period of drug usage, and that he engaged in sexual activities with them.

When asked where Hawkins was between June and August, Jones replied, “he got locked up

in jail.” When Hawkins came home in August, Jones testified, “I was trying to prepare my

mind to go ahead and transition to the shelter. And in the process, I didn’t know what to do

with my things.” Jones stated that Hawkins allowed her to use his car to run errands. She

stated that Hawkins’ mother was angry that he took her cell phone. According to Jones, she

planned to take the bus to the home of a friend the night of the incident, and for the last three

days she had been “coming back and forth, * * * to change my clothes, maybe eat

something, but then I made sure I stayed away.”

       {¶ 11}    At the close of the State’s evidence, counsel for Hawkins moved for an

acquittal, pursuant to Crim.R. 29, and his motion was specifically addressed to the abduction

charge. The court overruled the motion.

       {¶ 12}     Hawkins testified that he and Jones had an intimate relationship. He

stated that Jones told him she “was battling drugs” and suffered from mental illness, and that

her “family didn’t want her around.” Hawkins stated that Jones used crack cocaine before

she met him. Hawkins stated that he was a student at Sinclair, studying heating and air

conditioning, but that he planned to change his major due to “nervous damage” in his leg
                                                                                             7

that occurred when he was shot in a bar fight. As a result of that injury, Hawkins testified

that he is unable to run, but that he can “move fast, but not fast enough to catch nobody or

get away from nobody.”

       {¶ 13}    Hawkins stated that, while the apartment was his mother’s, “most of the

stuff in the apartment I paid for. I had my keys, Sally never had the key.” He testified that

he took his mother’s cell phone because his phone was “stuck on speaker phone.”

According to Hawkins, he left the phone at a restaurant, returned home and told his mother

that he “was going to get the phone.” He stated that his mother was upset but “knew I was

going to get her phone.” Hawkins described Jones as a “wild young woman,” and he

testified that she was aware that he dated other women in the course of their relationship,

and that she “would call women over to be with me and her.”

       {¶ 14}     Regarding the date of the incident, Hawkins stated that he had been to the

funeral of a friend and spent the previous night with the family of the deceased, indulging in

alcohol. When he returned to the apartment, no one was home and the door was locked,

and he testified that he “laid down in front of the door” to wait for someone to come home.

When no one appeared, Hawkins stated that he went to another apartment of a friend in the

complex to wait, returning to his mother’s apartment around 11:00 p.m.       He stated that he

observed Jones in their bedroom, and that he knocked on the window and told her to let him

in. Hawkins stated that Jones turned out the light, and that he then yelled at her two or three

times through the mail slot to open the door. Hawkins stated that his step-father told him to

get away from the door and also said, “‘You done took my baby’s cell phone.’”

       {¶ 15}     Hawkins stated that when Jones left the apartment, she had his key, and he
                                                                                            8

followed her to retrieve it from her. According to Hawkins, Jones ran beside a parked car,

and she snagged her shirt on the car and “the shirt just ripped.” Hawkins stated that Jones

“just collapsed.” Hawkins stated that he stood over her and asked for his key. After she

gave it to him, Hawkins stated that he told her, “Sally, it’s over with.” Hawkins stated that

Jones followed him, and that he told her she could continue to store her things in the

apartment until she found another place to stay. He stated that he told her, as they walked

past his friend’s apartment, “We can go in here, you can start making some preparation so

you could get away from over here with me and my family.” He denied attempting to force

Jones into the apartment. Hawkins denied ever striking Jones. Hawkins stated that when

he returned to the apartment after his 24 day absence “from the first fake domestic violence

case,” that he packed Jones’ clothing in boxes and baskets, and that he left her a message to

come and retrieve her things and return his car. He stated that Jones never paid rent and/or

bought food.

       {¶ 16} On cross-examination, Hawkins confirmed that he and Jones shared a

bedroom together, were involved in a sexual relationship, and used drugs together. Hawkins

stated that he intended on the date of the incident to kick the door “just to make a sound and

walk away,” and that he was surprised when it opened.

       {¶ 17}    At the close of the evidence, counsel for Hawkins renewed his motion for

acquittal on the “[s]ame basis as previously stated,” and the court overruled the motion

“upon the same basis.”    On December 19, 2011, Hawkins filed a Motion for Acquittal, in

which he argued that his domestic violence conviction is against the manifest weight of the

evidence. The court overruled the motion on December 22, 2011, and its Decision and
                                                                                         9

Entry provides that it proceeded to sentence Hawkins on December 21, 2011, “without

knowledge of the Motion for Acquittal filed by Mr. Hawkins, through his attorney, on

December 19, 2011.”

       {¶ 18}     Hawkins’ first assigned error is as follows:

       “THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR

ACQUITTAL AS TO THE CHARGE WHEN THE STATE FAILED TO PRESENT

SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION.”

       {¶ 19}      Hawkins asserts that the State did not present sufficient evidence to

establish that Jones was a “household member” within the meaning of the domestic violence

statute, R.C. 2919.25, because her relationship with Hawkins did not “rise to the level of

cohabitation.”     The State responds that it “proved the consortium requirement of

cohabitation.”

       {¶ 20} As this Court has previously noted:

                 When considering a Crim.R. 29 motion for acquittal, the trial court

       must construe the evidence in a light most favorable to the State and

       determine whether reasonable minds could reach different conclusions on

       whether the evidence proves each element of the offense charged beyond a

       reasonable doubt. * * * The motion will be granted only when reasonable

       minds could only conclude that the evidence fails to prove all of the elements

       of the offense. * * *

                 A Crim.R. 29 motion challenges the legal sufficiency of the evidence.

        A sufficiency of the evidence argument challenges whether the State has
                                                                                            10

       presented adequate evidence on each element of the offense to allow the case

       to go to jury or sustain the verdict as a matter of law. * * * The proper test to

       apply to such an inquiry is the one set forth in paragraph two of the syllabus

       of State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492:

                “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 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.

       Cranford, 2d Dist. Montgomery No. 23055, 2011-Ohio-384, ¶ 30-32.

       {¶ 21}    “[T]he offense of domestic violence * * * arises out of the relationship of

the parties rather than their exact living situation.” State v. Williams, 79 Ohio St.3d 459,

464, 683 N.E.2d 1126 (1997).       R.C. 2919.25(A) provides: “No person shall knowingly

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

2919.25(F)(1) defines family or household member in relevant part as : “(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.” R.C. 2919.25(F)(2) provides: “‘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 has

otherwise cohabited with the offender within five years prior to the date of the alleged
                                                                                           11

commission of the act in question.”

        {¶ 22}     As the Supreme Court of Ohio determined:

                 [T]he 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, solace, comfort, aid of each other, friendship,

        and conjugal relations. These factors are unique to each case and how much

        weight, it any, to give to each of these factors must be decided on a

        case-by-case basis by the trier of fact. Williams, at 465.

“The burden of establishing cohabitation is not substantial.” State v. Woullard, 158 Ohio

App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964 (2d Dist. 2004), ¶ 73.

        {¶ 23}     Jones testified that Hawkins gave her food, and that she shared a bedroom

with him at his apartment for several months. She stated that she considered him to be her

boyfriend, and that he referred to her as his girlfriend. She stated that they spent time

together every day and were sexually intimate.      Jones moved her things into the apartment

from the home of her friend at Hawkins’ insistence, and she had a key to the apartment.

Jones stated that she developed relationships with Hawkins’ mother and step-father. She

stated that Hawkins was possessive of her, and that she felt that she had to wait for him to

return to the apartment. She testified that they used drugs, that he provided, together in the

home.    Jones bought cleaning supplies for the apartment, once bought food and gave
                                                                                         12

Hawkins’ mother money if she asked for it. Hawkins allowed her to use his car for errands.

 Having viewed the evidence in a light most favorable to the State, we conclude that

sufficient evidence exists for a rational trier of fact to conclude that Jones’ and Hawkins’

relationship rose to the level of cohabitation, and that Jones and Hawkins were household

members. There being no merit to Hawkins’ first assigned error, it is overruled.

       {¶ 24}    Hawkins’ second assigned error is as follows:

       “APPELLANT’S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.”

       {¶ 25}    Hawkins again asserts that he and Jones were not household members.

       {¶ 26}    As this Court has previously noted, in a weight of the evidence challenge,

an appellate court:

                [R]eview[s] the entire record, weighs the evidence and all reasonable

       inferences, considers the credibility of witnesses and determines 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. The discretionary power to grant a new trial should

       be exercised only in the exceptional case in which the evidence weighs

       heavily against the conviction. State v. Thompkins (1997), 78 Ohio St.3d

       380, 387, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175. While

       Thompkins explicitly permits this court to consider credibility when

       confronted with an argument that the verdict is against the manifest weight of

       the evidence, such consideration is not unbounded. We have explained the
                                                                                          13

       limited role of an appellate court in reviewing issues of credibility in weight

       of the evidence challenges as follows:

               Because the factfinder, be it the jury or * * * trial judge, has the

       opportunity to see and hear the witnesses, the cautious exercise of the

       discretionary power of a court of appeals to find that a judgment is against the

       manifest weight of the evidence requires that substantial deference be

       extended to the factfinder’s determinations of credibility.       The decision

       whether, and to what extent, to credit the testimony of particular witnesses is

       within the peculiar competence of the factfinder, who has seen and heard the

       witness.   Contrastingly, the decision as to which of several competing

       inferences, suggested by the evidence in the record, should be preferred, is a

       matter in which an appellate judge is at least equally qualified, by reason and

       experience, to venture an opinion. Therefore, although this distinction is not

       set forth in Thompkins, supra, we conclude that a decision by a factfinder as

       to which testimony to credit, and to what extent, is a decision that is entitled

       to greater deference than the decision as to how much logical force to assign

       an inference suggested by that evidence - in short, how persuasive it is. State

       v. Lawson (Aug. 22, 1997), Montgomery App. No. 16288, unreported.

State v. Pierre, 2d Dist. Montgomery No. 18443, 2001 WL 220239 (March 2, 2001).

       {¶ 27} Having considered the entire record and weighed the evidence and all

reasonable inferences, for the reasons set forth above, we cannot conclude that the jury lost

its way and created a manifest miscarriage of justice such that Hawkins is entitled to a new
                                                                                       14

trial. The jury clearly credited Jones’ testimony regarding the nature of her relationship

with Hawkins and concluded that they were household members, and we defer to their

assessment of credibility. Accordingly, Hawkins’ second assigned error is overruled, and

the judgment of the trial court is affirmed.

                                          ..........

GRADY, P.J. and FAIN, J., concur.

Copies mailed to:

Michele D. Phipps
Thomas M. Kollin
Hon. Michael L. Tucker
