[Cite as State v. White, 2014-Ohio-1446.]




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

 STATE OF OHIO                                    :
                                                  :      Appellate Case No. 25792
           Plaintiff-Appellee                     :
                                                  :      Trial Court Case No. 2012-CR-3836
 v.                                               :
                                                  :
 JAMES K. WHITE                                   :      (Criminal Appeal from
                                                  :      (Common Pleas Court)
           Defendant-Appellant                    :
                                                  :

                                             ...........
                                            OPINION
                                Rendered on the 4th day of April, 2014.
                                             ...........

MATHIAS H. HECK, JR., by APRIL F. CAMPBELL, Atty. Reg. #0089541, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box
972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

LUCAS W. WILDER, Atty. Reg. #0074057, 120 West Second Street, Suite 400, Dayton, Ohio
45402
      Attorney for Defendant-Appellant

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

FAIN, J.

        {¶ 1}     Defendant-appellant James White appeals from his conviction and sentence for

Domestic Violence, in violation of R.C. 2919.25. He contends that the trial court erred by
                                                                                                                                          2


denying his Crim.R. 29 motion for acquittal, because the State failed to present evidence

sufficient to support the conviction. He also contends that the conviction is against the manifest

weight of the evidence.

         {¶ 2}            We conclude the State offered sufficient evidence to overcome White’s

Crim.R. 29 motion for acquittal and to support the conviction on the charge of Domestic

Violence. We also conclude that the conviction is not against the manifest weight of the

evidence. The judgment of the trial court is Affirmed.



                                                         I. The Offense

         {¶ 3}          On December 26, 2012 Shawnta Griffeth was in White’s room located in a

boarding house. She heated up some leftovers and the couple sat down to eat. Griffeth then fell

asleep. She awoke to White yelling at her. White began to hit her on the head, breasts, back

and sides with a belt buckle. He appeared to be upset over a text message that Griffeth had

received.        White then began to hit Griffeth with a boot.                               The entire incident lasted for

approximately thirty minutes. Griffeth sustained injuries and was treated at Good Samaritan

Hospital.



                                             II. The Course of Proceedings

         {¶ 4}         White was indicted for one count of Domestic Violence (2 priors), two counts of

Rape and one count of Kidnapping.1 During his jury trial White stated that he met Griffeth on


            1
                 The Rape counts stemmed from Griffeth’s claim that White forced her to perform oral sex on him at two separate times during
 the incident.
                                                                                                     3


November 23 or 24, 2012. He testified that she “came onto” him and that they immediately

engaged in consensual sex. He denied that Griffeth lived with him. Instead, he testified that

she spent the night with him “maybe once or twice.” On cross-examination, he testified that she

had stayed “maybe seven or eight times.” He testified that Griffeth did not have any clothes in

his room and that she wore some of his clothes. He testified that while he was at work “she

would straighten up around the house.” White testified that he bought the food and that he

cooked for Griffeth. He admitted to hitting Griffeth twice with his fist, “two or three times with

[his] boot then once with [his] belt.”

       {¶ 5}    Griffeth testified that she met White in late October or early November, 2012,

they immediately began a sexual relationship, and she began residing with him. She testified

that their relationship was exclusive. She testified that she loved White and that he told her he

also loved her. She testified that she cleaned the room and dishes while White was at work and

that she kept some clothes in the room.

       {¶ 6}    Following trial, White was convicted of Domestic Violence. The jury was

unable to reach a verdict on the remaining counts. After trial, White pleaded guilty to a bill of

information on the charge of Kidnapping. He was sentenced to three years in prison for

Domestic Violence, and to four years in prison for Kidnapping, to be served concurrently, for a

total sentence of four years in prison. White appeals.



        III. Under McGlothan, Griffeth’s Testimony that She Lived with White for

 at Least Two Months Preceding the Offense Supports a Finding that She Cohabited with

                   him, and Was Therefore a Family or Household Member
                                                                                                   4


       {¶ 7}    White’s sole assignment of error states as follows:

                THE TRIAL COURT ERRED IN OVERRULING WHITE’S RULE 29

       MOTION AND THE JURY’S VERDICT WAS AGAINST THE SUFFICIENCY

       AND WEIGHT OF THE EVIDENCE BECAUSE THE VICTIM WAS NOT A

       FAMILY OR HOUSEHOLD MEMBER UNDER THE DOMESTIC VIOLENCE

       STATUTE.

       {¶ 8}    White contends that he could not be convicted of Domestic Violence, because the

State failed to prove that the victim was either a family or a household member, as required by

R.C. 2919.25. He also argues that the conviction is against the weight of the evidence.

       {¶ 9}     Crim. R. 29(A) states that a court shall order an entry of judgment of acquittal if

the evidence is insufficient to sustain a conviction for the charged offense. “Reviewing the

denial of a Crim. R. 29 motion therefore requires an appellate court to use the same standard as is

used to review a sufficiency of the evidence claim.” State v. Witcher, 6th Dist. Lucas No.

L-06-1039, 2007-Ohio-3960. “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.’ ” (Citations omitted). State v. Crowley, 2d Dist. Clark No. 2007 CA 99,

2008-Ohio-4636, ¶ 12.

       {¶ 10}    “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. Cassell, 2d Dist. Clark No. 09CA0064, 2011-Ohio-23, ¶ 46. When a

conviction is challenged on appeal as being against the manifest weight of the evidence, “ ‘[t]he
                                                                                                   5


court, reviewing 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.’ ” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541

(1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶ 11}      The offense of Domestic Violence is proscribed by R.C. 2919.25, which

provides in pertinent part as follows:

                (A) No person shall knowingly cause or attempt to cause physical harm to

       a family or household member.

                ***

                (F) As used in this section and sections 2919.251 and 2919.26 of the

       Revised Code:

                (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;

                ***

                (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.

       {¶ 12} White contends that the State failed to prove that Griffeth was a family or
                                                                                                6


household member, as defined in the statute. He cites State v. Williams, 79 Ohio St.3d 459, 683

N.E.2d 1126 (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.”

       {¶ 13}    Williams involved a defendant and victim who “were going together,” but

maintained separate residences. Id. at 460. The Supreme Court of Ohio has stated that its

holding in Williams only applies “when the victim and the defendant do not share the same

residence[.]” State v. McGlothan, 138 Ohio St.3d 146, 2014-Ohio-85, 4 N.E.3d 1021 ¶ 13.

       {¶ 14} “The burden of establishing cohabitation is not substantial.” State v. Woullard,

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

before us, Griffeth testified that she was living with White in his room in a boarding house.

There is evidence that she had been living there for about two months when the incident

occurred. A reasonable jury could find, from Griffeth’s testimony, that White and Griffeth

resided together continuously from the time she moved in with him until the time of the offense.

White testified that she had only stayed with him eight or nine nights during this time, but a

reasonable jury could have chosen not to believe him on this point.         Finally, there is no

indication in this record, in contrast with Williams, that the victim and the offender maintained

separate residences during their relationship.

       {¶ 15} We find no authority, and White cites none, for the proposition that there is a

minimum duration that a couple must live together before they are accorded the protection of the

Domestic Violence laws. If there is a minimum, we conclude that the two-month duration

supported by Griffeth’s testimony exceeds it.
[Cite as State v. White, 2014-Ohio-1446.]
        {¶ 16} We conclude that sufficient evidence exists for a rational trier of fact to conclude

that White and Griffeth cohabited, and that they were therefore household members. We further

conclude that this is not the rare case where the jury lost its way in deciding to credit Griffeth’s

testimony over White’s. Accordingly, the sole assignment of error is overruled.



                                            IV. Conclusion

        {¶ 17} White’s sole assignment of error having been overruled, the judgment of the trial

court is Affirmed.

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

DONOVAN and HALL, JJ., concur.



Copies mailed to:

Mathias H. Heck
April F. Campbell
Lucas W. Wilder
Mary L. Wiseman
