State v. Williams - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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THE STATE OF OHIO, APPELLANT, v. WILLIAMS, APPELLEE.
[Cite as State v. Williams (1997), 79 Ohio St.3d 459.]
Criminal law -- Offenses against the family -- Offense of domestic violence arises
out of the relationship of the parties rather than their exact living
circumstances -- Essential elements of "cohabitation."
1. The offense of domestic violence, as expressed in R.C. 2919.25(E)(1)(a) and
related statutes, arises out of the relationship of the parties rather than their
exact living circumstances.
2. 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, construed.)
(No. 96-930-- Submitted May 6, 1997 -- Decided September 24, 1997.)
APPEAL from the Court of Appeals for Hamilton County, No. C-950530.

On April 12, 1995, Donesia R. Liggins reported to the police that defendant-
appellee, Kevin Williams, pushed her onto the bed, tried to smother her, and
twisted her arm. The police filed in Hamilton County Municipal Court a
complaint charging Williams with domestic violence, a violation of R.C. 2919.25,
and a motion for a temporary protection order. That same day, the court arraigned
Williams and granted the motion for a temporary protection order.

On June 20, 1995, the court tried Williams on the charge of domestic
violence. At the trial, Liggins testified that she did not live with Williams, but that
they "were going together." She stated that for a few months she was staying
more nights at his place than at hers. She and Williams both testified that on April
12, 1995, they were fighting over money problems, and Liggins stated that she
wanted to get away from him. Liggins further stated that the fight became
physical and that Williams pointed a gun at her. Cincinnati Police Officer William

Nastold testified that when he arrived at the scene, Liggins and Williams were
arguing and pushing each other in front of the house. Nastold stated that upon his
arrival, Liggins told him that during the argument over money, Williams pushed
her on the bed and attempted to smother her, twisted her arm behind her back, and
pointed a shotgun at her, threatening to kill her. Liggins also testified that she did
not want to prosecute the charge against Williams because she thought she was
pregnant with his child.

The court found Williams guilty of the charge of domestic violence. Upon
appeal, Williams asserted that the trial court had erred by (1) trying him without
the assistance of defense counsel and (2) convicting him of a violation of domestic
violence without evidence of cohabitation between Williams and Liggins. The
court of appeals reversed and discharged appellant, holding that (1) the trial court
violated Williams's constitutional criminal rights to counsel and (2) the evidence
was insufficient as a matter of law to show that Williams and Liggins were
cohabiting.

The cause is now before this court pursuant to the allowance of a
discretionary appeal.
__________________

Fay D. Dupuis, City Solicitor, Terrence R. Cosgrove, City Prosecutor, and
Charles F. Dorfman, Senior Assistant City Prosecutor, for appellant.

H. Fred Hoefle, for appellee.
__________________

ALICE ROBIE RESNICK, J. Initially, we note that appellant, the state of Ohio,
did not appeal the issue of appellee's right to counsel at trial. Thus, the sole issue
before this court is whether there is sufficient evidence to prove that Liggins and
Williams were "family or household members," as is required in order to convict
appellee of a violation of R.C. 2919.25.
2

R.C. 2919.25 states:

"(A) No person shall knowingly cause or attempt to cause physical harm to
a family or household member.

"(B) No person shall recklessly cause serious physical harm to a family or
household member.

"(C) No person, by threat of force, shall knowingly cause a family or
household member to believe that the offender will cause imminent physical harm
to the family or household member.

"* * *

"(E) As used in this section * * * 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;

"(ii) A parent or a child of the offender, or another person related by
consanguinity or affinity to the offender;

"(iii) A parent or a child of a spouse, person living as a spouse, or former
spouse of the offender, or another person related by consanguinity or affinity to a
spouse, person living as a spouse, or former spouse of the offender.

"(b) The natural parent of any child of whom the offender is the other
natural parent.

"(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 one year prior to the date of the alleged commission of the act in
question."1
3

Liggins and Williams do not contend that they are married, have ever been
married, or have lived together in a common-law marriage. Thus, to convict
Williams for domestic violence under R.C. 2919.25, the prosecution must prove
that Liggins is a "person living as a spouse" of Williams by showing that she (1)
resides or has resided with Williams (R.C. 2919.25[E][1][a]), and (2) "otherwise is
cohabiting with [Williams], or * * * otherwise has cohabited with [Williams]."
R.C. 2919.25(E)(1)(a)(iii) and 2919.25(E)(2).

This court has never defined "cohabitation," and the courts of appeals
throughout Ohio have adopted various definitions. Williams notes that regardless
of the definition of "cohabitation," the definition of "family or household
member" necessarily includes a person "who is residing or has resided with the
offender," R.C. 2919.25(E)(1)(a), and urges this court to adopt a narrow definition
of "reside" which would limit "family or household members" to those who
actually share one residential address. This we decline to do.

Words and phrases in a statute must be read in context of the whole statute.
Commerce & Industry Ins. Co. v. Toledo (1989), 45 Ohio St.3d 96, 102, 543
N.E.2d 1188, 1196. As we stated in Felton v. Felton (1997), 79 Ohio St.3d 34,
679 N.E.2d 672, "The General Assembly enacted the domestic violence statutes
specifically to criminalize those activities commonly known as domestic violence
and to authorize a court to issue protection orders designed to ensure the safety
and protection of a complainant in a domestic violence case." Id. at 37, 679
N.E.2d at 674, citing Ohio Legislative Service Commission, Summary of 1978
Enactments, June-December (1979), at 9-14; Legislative Service Commission
Analysis of Sub.H.B. No. 835 as reported by Senate Judiciary Committee (1978),
at 2 and 7 (Comment A); Legislative Service Commission Analysis of
Am.Sub.H.B. No. 835 as enacted (1978), at 1 and 2.
4

In contrast to "stranger" violence, domestic violence arises out of the
relationship between the perpetrator and the victim. Social science studies show
that the rate of violence in dating relationships is at least the same as, if not greater
than, that of couples who maintain one address. Klein & Orloff, Providing Legal
Protection for Battered Women: An Analysis of State Statutes and Case Law
(1993), 21 Hofstra L.Rev. 801, 836-837. The article summarizes those studies:

"Social science research that documents violence in dating relationships
supports offering broader civil protection order coverage to dating partners and
adolescents.2 A study of teen dating violence found that roughly one in four
students experienced actual violence, either as victims or as perpetrators.3 A 1985
survey at a midwestern university found higher rates of violence in dating
relationships than between married couples.4 Another study reported that 32% of
domestic violence offenders are boyfriends or ex-boyfriends.5" (Footnotes
renumbered.) Id.

As these studies show, the offense of domestic violence arises out of the
relationship itself, not the fact that the parties happen to share one address. As the
court in Holmes v. Wilson (Nov. 9, 1994), Del.Fam.Ct., New Castle Cty. No.
CN94-08637, 1994 WL 872663, unreported, at 1, stated, "Domestic violence is an
unusual outgrowth of an intimate relationship between a man and a woman. It has
certain inherent characteristics which place the victim in a position of being
extremely susceptible to violence at any given time and/or place."

The General Assembly recognized the special nature of domestic violence
when it drafted the domestic violence statutes. The provision allowing for the
filing of a motion for a temporary protection order, R.C. 2919.26, provides that
such a motion may be filed upon the filing of a complaint alleging a violation of
R.C. 2919.25 (domestic violence) or any of the assault offenses if that assault
5

involved a "family or household member." R.C. 2919.26(A)(1). Clearly, the
General Assembly believed that an assault involving a family or household
member deserves further protection than an assault on a stranger. Therefore, we
hold that the offense of domestic violence, as expressed in R.C. 2919.25(E)(1)(a)
and related statutes, arises out of the relationship of the parties rather than their
exact living circumstances.

Additionally, the wide-ranging definitions of "cohabitant" and "family or
household member" in the context of domestic violence developed by various
courts of appeals and trial courts in Ohio, as well as courts in other states, reflect
this view that domestic violence arises out of the nature of the relationship itself,
rather than the exact living circumstances of the victim and perpetrator. See, e.g.,
State v. Miller (1995), 105 Ohio App.3d 679, 664 N.E.2d 1309 (Sexual relations
are not necessarily a requirement for cohabitation -- living together with some
regularity of functioning as husband and wife is sufficient.); State v. Yaden (Mar.
5, 1997), Hamilton App. No. C-960483, unreported, 1997 WL 106343
(Cohabitation requires two elements: [1] financial support and [2] consortium.);
State v. Hammond (Dec. 20, 1996), Montgomery App. No. 15923, unreported,
1996 WL 748272 (Common-law marriage is not an essential element of
cohabitation.); State v. Shipman (Feb. 14, 1994), Stark App. No. CA-9454,
unreported, 1994 WL 45885 (Evidence that parties had shared apartment during
the past year is sufficient to show cohabitation.); State v. Van Hoose (Sept. 27,
1993), Clark App. No. 3031, unreported, 1993 WL 386314 (Living together
without sexual relations constitutes cohabitation.); State v. Wagner (Aug. 11,
1993), Medina App. No. 2205, unreported, 1993 WL 303255 (Living together for
two weeks with the intention of permanency and with sexual relations constitutes
cohabitation.); Cleveland v. Crawford (Sept. 28, 1989), Cuyahoga App. Nos.
6

55899 and 55900, unreported, 1989 WL 113070 (Living together for one month,
being "intimate" on more than one occasion, sharing closet space, and the woman
cooking and doing laundry for the man are enough to establish cohabitation.);
O'Kane v. Irvine (1996), 47 Cal.App.4th 207, 54 Cal.Rptr.2d 549 (Domestic
relationship [subletting from same person, sharing common areas] caused solely
by happenstance is not cohabitation.); People v. Siravo (1993), 17 Cal.App.4th
555, 21 Cal.Rptr.2d 350 ("Cohabitants" is defined as two people who live or dwell
together in the same household, as cotenants.); Caldwell v. Coppola (1990), 219
Cal.App.3d 859, 268 Cal.Rptr. 453 (Sister of victim named as a family and
household member is also protected from defendant by the temporary restraining
order protecting victim.); People v. Holifield (1988), 205 Cal.App.3d 993, 252
Cal.Rptr. 729 ("Cohabitant" means "significant relationship" while living
together, even off and on. "Cohabitant" is not limited to a "full quasi-marital"
relationship.); People v. Ballard (1988), 203 Cal.App.3d 311, 249 Cal.Rptr. 806
(Cohabiting partners with separate residences who were "together a lot" over a
period of two years had a "significant relationship" and thus were covered by
statute.); Bryant v. Burnett (1993), 264 N.J.Super. 222, 624 A.2d 584 (Members of
a household at the time, regardless of the intent as to permanency of arrangement
or relationship are cohabitants.); Croswell v. Shenouda (1994), 275 N.J.Super.
614, 646 A.2d 1140 (Without any indicia of "sharing of a household," [spending
nights together, etc.], there is no cohabitation.); Desiato v. Abbott (1992), 261
N.J.Super. 30, 617 A.2d 678 (When parties are constant companions, stay
overnight on occasion, keep personal property at each others' places, and dine
socially with parents, they are household members.). See, also, Comment,
Criminal Protection Orders in Domestic Violence Cases: Getting Rid of Rats
With Snakes (1996), 50 U. Miami L.Rev. 919, 926-927; Note, Michigan's
7

Domestic Violence Laws: A Critique and Proposals for Reform (1995), 42 Wayne
L.Rev. 227, 244; Suarez, Teenage Dating Violence: The Need for Expanded
Awareness and Legislation (1994), 82 Cal.L.Rev. 423, 435; Klein & Orloff, at
836-837. But, see, State v. Hadinger (1991), 61 Ohio App.3d 820, 573 N.E.2d
1191 (Cohabitation requires "living together," regardless of whether parties are of
the opposite or the same gender.); State v. Allen (1988), 42 Ohio App.3d 116, 536
N.E.2d 1195, motion to certify record overruled (1988), 38 Ohio St.3d 724, 533
N.E.2d 1063 (Common-law marriage-type of relationship is essential to a finding
of cohabitation. Short period of living together without mutual support and
without regarding the situation as a husband/wife situation is not cohabitation.);
State v. Linner (M.C.1996), 77 Ohio Misc.2d 22, 665 N.E.2d 1180 ("Cohabiting"
is generally defined as living together and functioning as a husband and a wife and
includes homosexual couples.).

Having considered the above definitions of "cohabitant" and "family or
household member," we 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.

In the case sub judice, both Liggins and Williams testified that the inception
of the violence was a fight over money problems. Based on this testimony, the
court could have reasonably concluded that a relationship existed wherein the two
8

commingled their assets, thus sharing certain familial or financial responsibilities.
Liggins further testified that the two spent most of their nights together at
Williams's residence, and that at one time she thought she might be pregnant with
his child. Their relationship thus was based upon society and conjugal relations,
and therefore included consortium. Accordingly, the trial court did not err in
finding that Liggins and Williams were cohabitants.

We reverse the court of appeals' judgment on the issue of whether there is
sufficient evidence to prove that Liggins and Williams were "family or household
members." Because we do not address the issue of Williams's right to counsel, the
cause is remanded to the trial court for a new trial consistent with this opinion.
Judgment reversed
and cause remanded.

DOUGLAS, F.E. SWEENEY, COOK and LUNDBERG STRATTON, JJ., concur.

MOYER, C.J., and PFEIFER, J., concur in judgment only.
FOOTNOTES:
1.
The General Assembly has amended R.C. 2919.25 since the commission of
the subject offense; however, the changes do not affect this decision or opinion.
2.
"In some domestic violence cases the perpetrator and/or the victim may be
adolescents who are engaging in the same pattern of abusive behavior as occur in
adult relationships. See [Anne L.] Ganley, [Domestic Violence: The What, Why
and Who, as Relevant to Civil Court Cases, in Domestic Violence in Civil Court
Cases: A National Model for Judicial Education (Jacqueline A. Agtuca et al.
eds.1992)], at 22.

"Estimates of the rates of physical violence in dating relationships range
from 20% to 67%. See, e.g., Angela Browne, When Battered Women Kill 42
(1987) (21%-30%); Richard Gelles & Claire Pedrick Cornell, Intimate Violence In
9

Families 65 (1987) (10%-67%); National Clearinghouse for the Defense of
Battered Women, Statistics Packet: 1992 Addendum Only 14 (1992) (stating that
`studies of high school and college students conducted during the 1980s have
reported rates of dating violence ranging from 12% to 65%'); National Council of
Juvenile and Family Court Judges, Family Violence: The Facts, 1 Juv. and Fam.
Just. Today 21, 21 (1993); Lisa Morrell, Violence in Premarital Relationships, 7
Response 17 (1984) (21.2%); Nona K. O'Keefe et al., Teen Dating Violence,
Social Work, Nov./Dec. 1986, at 465, 465-66 (12%-26.9%); Linda P. Rouse et al.,
Abuse in Intimate Relationships: A Comparison of Married and Dating College
Students, 3 J. Interpersonal Violence 414, 422-23 (1988) (reporting that 28.2% of
heterosexual dating students had been pushed, shoved, or grabbed by a dating
partner, and that 30% of battered women eventually marry someone who had
abused them during courtship); Stark & Flitcraft, [Violence Among Intimates: An
Epidemiological View, Handbook of Family Violence (Van Hasseth et al. eds.
1987)], at 301 (discussing four studies of premarital or courtship violence on
college campuses, with findings of physical aggression or threats in 13.5%, 19%,
31.5%, and 42% of the relationships, respectively); [Judge Richard L.] Price,
[Love and Violence: Victims and Perpetrators, Remarks at the New York City
Coalition for Women's Mental Health (Jan.1991)] (33%)."
3.
"O'Keefe [supra], at 467 (12%-26.9%) (noting that high school students
who reported spousal violence between their parents had a statistically greater rate
of violence in their dating relationships. More than 51% of students who
witnessed their parents being abusive to each other had been involved in an
abusive relationship. Furthermore, 47% of the students who were abused as
children had been in a dating relationship in which violence occurred.)"
10

4.
"Jan. E Stets & Murray A. Strauss, The Marriage License as a Hitting
License: A Comparison of Assaults in Dating, Cohabiting, and Married Couples,
in Physical Violence in American Families: Risk Factors and Adaption to
Violence in 8,145 Families 227, 227-44 (Murray A. Straus & Richard J. Gelles
eds., 1990)."
5.
"[Caroline W.] Harlow, [U.S. Dep't. of Justice, Female Victims of Violent
Crime (1991)], at 2."
11