[Cite as State v. Cornwell, 2015-Ohio-4617.]


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

STATE OF OHIO                                         C.A. No.       14AP0017

          Appellee

          v.                                          APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
GENE CORNWELL                                         WAYNE COUNTY MUNICIPAL COURT
                                                      COUNTY OF WAYNE, OHIO
          Appellant                                   CASE No.   CRB-14-01-00004

                                 DECISION AND JOURNAL ENTRY

Dated: November 9, 2015



          SCHAFER, Judge.

          {¶1}   Defendant-Appellant, Gene L. Cornwell, appeals from the judgment of conviction

entered against him in the Wayne County Municipal Court. For the reasons set forth below, we

affirm.

                                                 I.

          {¶2}   During the evening of January 2, 2014, law enforcement personnel were

dispatched to an apartment on East Bowman Street in Wooster, Ohio for a domestic incident that

was in progress. That incident involved Gene Cornwell and his fiancée, C.E.

          {¶3}   According to testimony elicited at trial, the incident in question began when

Cornwell struck C.E. in the face with a black bag as well as his fists while he was intoxicated.

C.E. immediately telephoned members of her family and asked them to come and pick her up. In

response to this call, C.E.’s daughter, son, and son’s girlfriend went to pick up C.E.
                                                 2


        {¶4}     Upon arriving at the apartment, C.E.’s family members heard Cornwell and C.E.

yelling at each other. The family members asked Cornwell to open the door and let C.E. out of

the apartment, but Cornwell refused. C.E. testified that Cornwell refused to let her leave the

apartment because he feared that C.E.’s son would attack him. C.E. also testified that Cornwell

hit her across the face when she attempted to open the door. Her family members all testified

that they heard Cornwell hit C.E. C.E. then began throwing some of her belongings out of a

bedroom window in an effort to leave.

        {¶5}     C.E.’s son was eventually able to force his way into the apartment. Once inside,

C.E.’s son began punching Cornwell, causing him physical injury. C.E.’s son testified that he

has physically harmed Cornwell on prior occasions, but only when Cornwell physically abuses

his mother.

        {¶6}     Officer Dan Whitmore and Sergeant Clint Bartolic of the Wooster Police

Department arrived at the scene shortly thereafter. Officer Whitmore testified that Cornwell had

a deep cut above his eye which produced a pool of blood within the apartment.             Officer

Whitmore observed that Cornwell was angry, yelling profanities, and appeared to be intoxicated.

Officer Whitmore further testified that C.E. was very upset and was crying. He also noticed that

C.E.’s face was red around her right eye and that there was dried blood on the inside of her right

nostril. Officer Whitmore subsequently placed Cornwell under arrest.

        {¶7}     Cornwell was charged with one count of domestic violence in violation of R.C.

2919.25(A), a first degree misdemeanor, and one count of unlawful restraint in violation of R.C.

2905.03(A), a third degree misdemeanor. Cornwell pled not guilty and the matter proceeded to a

jury trial.    The jury found Cornwell guilty on both counts.      The trial court subsequently
                                                  3


sentenced Cornwell to 180 days in jail on the domestic violence conviction and 60 days in jail on

the unlawful restraint conviction, with those sentences to be served consecutively.

          {¶8}   Cornwell filed this timely appeal and raises two assignments of error for our

review.

                                                 II.

                                       Assignment of Error I

          Mr. Cornwell’s convictions are against the manifest weight of the evidence
          and not supported by sufficient evidence.

          {¶9}   In his first assignment of error, Cornwell argues that his convictions for domestic

violence and unlawful restraint are both unsupported by sufficient evidence and against the

manifest weight of the evidence. Cornwell also contends that the jury’s rejection of his self-

defense claim is against the manifest weight of the evidence. We disagree.

                                        A. Standard of Review

          {¶10} Whether a conviction is supported by sufficient evidence is a question of law this

Court reviews de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In order to

determine whether the evidence before the trial court was sufficient to sustain a conviction, this

Court must review the evidence in a light most favorable to the prosecution. State v. Jenks, 61

Ohio St.3d 259 (1991), paragraph two of syllabus. Furthermore:

          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.

Id.
                                                   4


       {¶11} In determining whether a conviction is against the manifest weight of the

evidence, on the other hand, 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 (1986). A weight of the evidence challenge indicates

that a greater amount of credible evidence supports one side of the issue than supports the other.

Thompkins, 78 Ohio St.3d at 387. Further, when reversing a conviction on the basis that the

conviction was against the manifest weight of the evidence, the appellate court sits as the

“thirteenth juror” and disagrees with the factfinder's resolution of the conflicting testimony. Id.

Therefore, a new trial should be granted only in the “exceptional case in which the evidence

weighs heavily against the conviction.”      State v. Martin, 20 Ohio App.3d 172, 175 (1st

Dist.1983).

                                             B. Analysis

                                       1. Domestic Violence

       {¶12} 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.) Cornwell argues on appeal

that the State failed to present sufficient evidence establishing that C.E. was either a family or

household member at the time of the January 2, 2014 incident.

       {¶13} 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.” (Emphasis added.) At issue in this case is

whether C.E. was a “person living as a spouse.” R.C. 2919.25(F)(2) defines “person living as a
                                               5


spouse” as “a person who * * * has cohabited with the offender within five years prior to the

date of the alleged commission of the act in question.” (Emphasis added.)

       {¶14} With these definitions in mind, we determine that the State presented sufficient

evidence to support Cornwell’s conviction under R.C. 2919.25(A). While C.E. admitted that she

did not live with Cornwell at the East Bowman Street apartment on January 2, 2014, she did

testify on cross-examination that she and Cornwell had lived together at some point within five

years prior to January 2, 2014. C.E.’s family members also corroborated her testimony on this

point. Specifically, C.E. testified that she and Cornwell lived together on Rebecca Street in

2013. Moreover, C.E. testified that she was often an overnight guest at Cornwell’s apartment

and that she and Cornwell were engaged to be married. The trial testimony also demonstrates

that C.E. kept personal belongings at Cornwell’s apartment.

       {¶15} Cornwell contends that the State failed to prove that C.E. was a family or

household member, as defined in the statute. Specifically, Cornwell argues that the State failed

to prove that he and C.E. cohabited. He cites to State v. Williams, 79 Ohio St.3d 459 (1997),

paragraph two of the syllabus, for the proposition that “the essential elements of ‘cohabitation’

are (1) sharing of familial or financial responsibilities and (2) consortium.” However, Williams

involved a defendant and victim who “were going together,” but maintained separate residences.

Id. at 460. The Supreme Court of Ohio has subsequently clarified Williams as strictly applying

“when the victim and the defendant do not share the same residence[.]” (Emphasis sic.) State v.

McGlothan, 138 Ohio St.3d 146, 2014-Ohio-85, ¶ 13. In McGlothan, the Court held that the

“sharing of familial or financial responsibilities” does not require evidence of shared living

expenses to establish cohabitation; rather, such conduct is but one of a non-exhaustive list of

factors that a court may consider in determining cohabitation. Id. ¶ 13–14. The Supreme Court
                                                  6


of Ohio further emphasized that the domestic violence statute was enacted because the General

Assembly “‘believed that an assault involving a family or household member deserves further

protection than an assault on a stranger.’” Id. at ¶ 17, quoting Williams at 463.

       {¶16} Since R.C. 2919.25(F) encompasses a person who has cohabited with the offender

within the past five years, we conclude that C.E.’s unrefuted testimony that she and Cornwell

were engaged and had lived together within five years prior to the incident in question is

sufficient to establish that she was a family or household member of Cornwell at the time of the

January 2, 2014 offense. Therefore, we determine that the trial court did not err in denying

Cornwell’s Crim.R. 29 motion for judgment of acquittal.

       {¶17} In addition to his sufficient evidence challenge, Cornwell also argues that the

jury’s domestic violence conviction is against the manifest weight of the evidence. Specifically,

Cornwell contends that the jury lost its way in convicting him for domestic violence because no

evidence was adduced on the issue of whether he and C.E. shared “familial or financial

responsibilities.” However, as noted above, the State was not required to prove shared familial

or financial responsibilities in order to prove cohabitation under the facts of this case. See id. at ¶

13-14. After reviewing the entire record, we cannot conclude that the jury lost its way and

committed a manifest miscarriage of justice by convicting Cornwell of domestic violence.

                                            2. Self-Defense

       {¶18} Moreover, Cornwell argues that his domestic violence conviction is against the

manifest weight of the evidence because the greater weight of the evidence shows that he acted

in self-defense. Cornwell contends that the manifest weight of the evidence demonstrates that he

only struck C.E. in response to her first hitting him and as an effort to prevent C.E.’s family from

entering the apartment and causing him harm. We disagree.
                                                7


       {¶19} “Self-defense is an affirmative defense that, if proved, relieves a defendant of

criminal liability for the force that the defendant used.” State v. Kozlosky, 195 Ohio App.3d 343,

2011-Ohio-4814, ¶ 22 (8th Dist.). “The burden of going forward with the evidence of an

affirmative defense, and the burden of proof, by a preponderance of the evidence, for an

affirmative defense, is upon the accused.” R.C. 2901.05(A). To establish self-defense, the

defendant must show the following:

           (1) the defendant was not at fault in creating the violent situation, (2) the
           defendant had a bona fide belief that she was in imminent danger of death or
           great bodily harm and that her only means of escape was the use of force, and
           (3) that the defendant did not violate any duty to retreat or avoid the danger.

State v. Goff, 128 Ohio St.3d 169, 2010-Ohio-6317, ¶ 36, quoting State v. Thomas, 77 Ohio St.3d

323, 326 (1997). The “elements of self-defense are cumulative. * * * [Thus, i]f the defendant

fails to prove any one of these elements by a preponderance of the evidence he has failed to

demonstrate that he acted in self-defense.” (Emphasis sic.) State v. Jackson, 22 Ohio St.3d 281,

284 (1986). Accord State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, ¶ 73.

       {¶20} At trial, C.E. testified that on January 2, 2014, she began gathering her personal

belongings with the intention of leaving the apartment after discovering that Cornwell was

intoxicated. Upon seeing C.E. packing, Cornwell hit her with a bag. C.E. testified that she does

not remember where the bag struck her. C.E. also stated that Cornwell hit her with a closed fist

while she was in the front room of the apartment while her family was outside. C.E.’s family

members all testified that they heard Cornwell strike C.E. while she was in the front room, and

that C.E. yelled for Cornwell to stop hitting her. Sergeant Bartolic testified that although

Cornwell had a deep cut above one of his eyes, he did not think that C.E. was capable of causing

such an injury.
                                                8


       {¶21} On cross-examination, Cornwell attempted to show that he acted in self-defense

by hitting C.E. Specifically, C.E. conceded that she may have hit Cornwell on the day in

question, but she could not remember whether she did so or not. C.E. further testified that

Cornwell expressed fear in opening the front door because he did not want to be harmed by her

family members who were present outside.            Lastly, C.E. admitted that she has assaulted

Cornwell in the past, but only in response to him striking her first. The jury, however, rationally

could have disregarded Cornwell’s narrative that he acted in self-defense and concluded that the

State’s version of the January 2, 2014 altercation was more credible than Cornwell’s. In sum, we

simply cannot conclude that the jury clearly lost its way when it determined that Cornwell did

not act in self-defense.

                                       3. Unlawful Restraint

       {¶22} R.C. 2905.03, Ohio’s unlawful restraint statute, provides that “[n]o person,

without privilege to do so, shall knowingly restrain another of the other person's liberty.” R.C.

2905.03(A). The term “privilege” means “an immunity, license, or right conferred by law,

bestowed by express or implied grant, arising out of status, position, office, or relationship, or

growing out of necessity.” R.C. 2901.01(A)(12). The jury was instructed on this definition.

Cornwell claims that he could not be convicted of unlawful restraint because he did not restrain

C.E.’s liberty. Rather, Cornwell maintains that he refused to open the door to his apartment

because he feared for his own safety. We disagree.

       {¶23} We conclude that the State presented sufficient evidence to support Cornwell’s

conviction for unlawful restraint under R.C. 2905.03(A). While C.E. testified that Cornwell

refused to open the door to the apartment out of fear of being assaulted by her family members,

she also testified that she wanted to leave the apartment and that she threw her belongings out of
                                                 9


a window in an effort to leave. C.E.’s daughter, son, and son’s girlfriend all testified that

Cornwell refused to let her mother out of the apartment. C.E.’s daughter specifically testified

that Cornwell told them that he was not going to let C.E. out of the apartment unless she was in a

body bag. Viewing this evidence in a light most favorable to the State, we determine that the

State presented sufficient evidence showing that Cornwell knowingly restrained C.E.’s liberty.

As such, we conclude that the trial court did not err by denying Cornwell’s Crim.R. 29 motion

for judgment of acquittal.

       {¶24} While Cornwell’s appellate brief seemingly conflates his sufficient evidence and

manifest weight challenges, we note that the jury apparently accepted the State’s theory that

Cornwell knowingly restrained C.E.’s liberty. Although Cornwell attempted to demonstrate

through cross-examination that his motive for refusing to open the apartment door stemmed from

fear for his own personal safety rather than wanting to prevent C.E. from leaving, the jury was

free to disregard that theory. After reviewing the record, we cannot conclude that the jury lost its

way and committed a miscarriage of justice in convicting Cornwell of unlawful restraint.

       {¶25} Accordingly, Cornwell’s first assignment of error is overruled.

                                     Assignment of Error II

       The trial court erred by allowing in multiple references to alleged prior bad
       acts of Mr. Cornwell.

       {¶26} In his second assignment of error, Cornwell argues that the trial court erred by

allowing testimony “on multiple occasions” indicating that Cornwell has had prior incidents of

violence in relation to C.E. We disagree.

       {¶27} We review a trial court's decision to admit other acts evidence for an abuse of

discretion. State v. Morris 132 Ohio St.3d 337, 2012–Ohio–2407, syllabus. Pursuant to Evid.R.

404(B), “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a
                                                 10


person in order to show action in conformity therewith. It may, however, be admissible for other

purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.” “‘Evid.R. 404(B) is in accord with R.C. 2945.59 in that it

precludes the admission of evidence of other crimes, wrongs, or acts offered to prove

[propensity] * * *, but it does not preclude admission of that evidence for other purposes[.]’”

State v. Ross, 9th Dist. Summit No. 26694, 2014–Ohio–2867, ¶ 51, quoting State v. Williams,

134 Ohio St.3d 521, 2012–Ohio–5695, ¶ 25.

       {¶28} The Supreme Court of Ohio has instructed trial courts to conduct the following

three-step analysis in evaluating the admissibility of other acts evidence:

       The first step is to consider whether the other acts evidence is relevant to making
       any fact that is of consequence to the determination of the action more or less
       probable than it would be without the evidence. Evid. R. 401. The next step is to
       consider whether evidence of the other crimes, wrongs, or acts is presented to
       prove the character of the accused in order to show activity in conformity
       therewith or whether the other acts evidence is presented for a legitimate purpose,
       such as those stated in Evid.R. 404(B). The third step is to consider whether the
       probative value of the other acts evidence is substantially outweighed by the
       danger of unfair prejudice. See Evid.R 403.

Williams at ¶ 20.

       {¶29} Cornwell points to five instances in the proceedings below where witnesses made

reference to his violent history with C.E.      Specifically, Sergeant Bartolic testified on two

separate occasions that he was familiar with Cornwell because of past instances of reported

domestic violence between the couple. C.E.’s son testified that Cornwell has hit his mother in

the past and later referred to Cornwell as a “woman beater.” Lastly, the girlfriend of C.E.’s son

testified that C.E. has assaulted Cornwell in the past, but only when Cornwell strikes her first.

       {¶30} However, with the exception of Sergeant Bartolic’s first statement concerning

Cornwell’s violent past with C.E., the remaining statements were either followed by objections
                                                11


that the trial court sustained or were in response to questions asked by Cornwell’s attorney on

cross-examination.

       {¶31} With regard to the statements to which Cornwell’s objections were sustained,

Cornwell argues that he was still prejudiced by these statements because the trial court did not

give a limiting instruction to the jury. However, Cornwell did not request any kind of limiting or

curative instruction. This Court has held that, “where a party fails ‘to follow up its objection

with a motion * * * to strike the answer and give a curative instruction,’ that party waives its

right to assert the error on appeal.” Akron v. Niepsuj, 9th Dist. Summit No. 21280, 2003-Ohio-

3791, ¶ 17, quoting Hernandez v. Rivera, 9th Dist. Lorain No. 3855, 1985 WL 10844, * 2 (Oct.

30, 1985). “A reviewing court may not consider the admission of improper testimony, although

[an] objection was sustained, where there was no motion to strike the improper testimony.”

Hernandez at * 3, citing State v. Agner, 30 Ohio App.2d 96, 101 (3d Dist.1972). Thus, Cornwell

has forfeited this challenge to those statements for appellate review.

       {¶32} With regard to those statements that were made in response to questions posed by

defense counsel during cross-examination, Cornwell “‘cannot, on appeal, complain that the trial

court erred in permitting the admission of prejudicial testimony which was elicited from the

witness [since the invited error doctrine] “prohibits a party who induces error in the trial court

from taking advantage of such error on appeal.”’” State v. Myers, 9th Dist. Summit No. 25737,

2012-Ohio-1820, ¶ 14, quoting State v. Jackson, 8th Dist. Cuyahoga No. 86105, 2006-Ohio-174,

¶ 81, quoting State v. Woodruff, 10 Ohio App.3d 326, 327 (2d Dist.1983).

       {¶33} Here, defense counsel asked C.E.’s son on cross-examination whether he had ever

assaulted Cornwell prior to January 2, 2014. C.E.’s son responded that he had on about six prior

occasions, but only after Cornwell first beat his mother. Defense counsel subsequently asked
                                               12


C.E.’s son whether it was possible that the audible slap sound that came from behind the locked

apartment door resulted from C.E. striking Cornwell. C.E.’s son responded that he doubted that

was the case considering Cornwell is a “woman beater.” As the testimony of C.E.’s son was in

direct response to defense counsel’s inquiries on cross-examination, the doctrine of invited error

precludes Cornwell from challenging those prejudicial statements on appeal. Myers at ¶ 14.

       {¶34} Turning to the remaining statement, Sergeant Bartolic’s first reference to

Cornwell’s violent history, the following exchange occurred during direct examination:

       Prosecutor: And at any point did you feel a forced entry [into Cornwell’s
       apartment] was necessary?

       Sergeant Bartolic: I did.

       Prosecutor: And why was that?

       Sergeant Bartolic: Dispatch advised that the neighbors called in for a domestic
       violence complaint and they identified the subjects involved which was…

       Defense counsel: …object. Hearsay.

       Prosecutor: Foundational, Your Honor.

       Judge: Overruled.

       Prosecutor: You can go on, sorry.

       Sergeant Bartolic: Okay. The subjects I am familiar with from prior incidents
       that I personally dealt with and this incident is almost identical to when we have a
       domestic…

       Defense counsel: …objection, Your Honor, 404(B) prior bad acts…

       Prosecutor: …for purposes of identification, Your Honor.

       Judge: Overruled.

       {¶35} Even assuming that Sergeant Bartolic’s testimony was improperly admitted at

trial, we determine that Cornwell was not materially prejudiced by its admission. See State v.
                                               13


Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, ¶ 33 (“[A]n appellate court must consider both the

impact of the offending evidence on the verdict and the strength of the remaining evidence after

the tainted evidence is removed from the record.”). First, Sergeant Bartolic’s testimony about

the previous incidents was not critical at trial. His statement was a short line and did not

describe in any detail the previous incidents of violence that transpired between Cornwell and

C.E. Moreover, the State did not use Sergeant Bartolic’s testimony to make any implications

during closing argument that Cornwell is a bad person with a history of domestic violence. As

such, assuming that it was erroneous for the trial court to allow such testimony, we conclude that

Sergeant Bartolic’s testimony was harmless.

       {¶36} Second, the other evidence against Cornwell was overwhelming. The jury had the

opportunity to hear from C.E., who testified that Cornwell hit her and prevented her from leaving

his apartment. C.E.’s daughter, C.E.’s son, and the girlfriend of C.E.’s son all testified and

corroborated C.E.’s version of events. Additionally, the State presented a photograph of C.E.’s

physical injuries stemming from the altercation with Cornwell.

       {¶37} In sum, even if Sergeant Bartolic’s testimony should have been excluded, any

error in its admission was harmless. Thus, we find no reversible error in the trial court’s

admission of this testimony.

       {¶38} Cornwell’s second assignment of error is overruled.

                                               III.

       {¶39} Cornwell’s assignments of error are overruled and the judgment of the Wayne

County Municipal Court is affirmed.

                                                                              Judgment affirmed.
                                                14




       There were reasonable grounds for this appeal.

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

Municipal Court, County of Wayne, 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 to Appellant.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT



HENSAL, P. J.
CARR, J.
CONCUR.


APPEARANCES:

CHRISTINA I. REIHELD, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assistant Prosecuting
Attorney, for Appellee.
