State v. David R. Amos, 88-LW-0305
| Decision Date | 15 January 1988 |
| Docket Number | 88-LW-0305,12-088 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. David R. AMOS, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Criminal appeal from the Common Pleas Court Case No. 86 CR 069.
John E Shoop, Prosecutor by David Farren, Assistant Prosecutor Painesville, for plaintiff-appellee.
Theodore R. Klammer, Mentor, for defendant-appellant.
Before FORD, P. J., and COOK and CHRISTLEY, JJ.
Defendant-appellant David Amos was charged with a domestic violence violation. Pursuant to R.C. 2919.25, a violation of the domestic violence statute is a first degree misdemeanor while a repeat offense is a felony of the fourth degree. Since he was previously convicted of a domestic violence offense in 1982, appellant was charged with a fourth degree felony.
On December 18, 1985, appellant became engaged in an altercation with his wife, Christine Amos, at their home in Willoughby Ohio. Appellant was intoxicated at the time. During the course of this altercation, appellant kicked his wife in the lower leg while wearing his boots. Christine Amos testified that this kick caused her pain. The police were later summoned to the scene by Christine's sister, who was present during the altercation. Appellant had already left the scene. Christine Amos then filed a complaint against her husband, the appellant.
Appellant was arraigned in the Common Pleas Court for Lake County on the domestic violence charge. Appellant pleaded not guilty.
A jury trial on the matter was held. Appellant's primary defense was that he had not caused "physical harm' to his wife as provided by R.C. 2919.25(A) and as defined by R.C. 2901.01(C). At the close of the state's case, appellant moved for a judgment of acquittal pursuant to Crim. R. 29(A). The motion was denied. Appellant also requested a jury instruction on the lesser included offense of disorderly conduct under R.C. 2917.11(A)(1). The trial court denied this request on the basis that domestic violence is a "specific charge for a specific instance.' The jury returned a verdict in which appellant was found guilty as charged. Appellant was sentenced to six months in the Ohio State Penitentiary. A timely notice of appeal was filed with this court with the following assignments of error:
In his first assignment of error, appellant claims error in the lower court's denial of his motion for acquittal. This claim is not well taken.
The Ohio Supreme Court has set the standard for granting a motion for acquittal. The court has held:
"Pursuant to Criminal Rule 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt.' State v. Bridgeman (1978), 55 Ohio St. 2d 261. (Syllabus)
Thus, a trial court must properly grant the motion if the evidence adduced in support of the state's case fails to attain "that high degree of probative force and certainty which the law demands to support a conviction.' State v. Goodin (1978), 56 Ohio St. 2d 438, 442; citing State v. Urbaytis (1951), 156 Ohio St. 271.
In the case before us, the only evidence to support the domestic violence charge was provided by appellant's wife. R.C. 2919.25(A) states that:
No person shall knowingly cause or attempt to cause physical harm to a family or household member. (Emphasis added)
The term "physical harm' is defined in R.C. 2901.01(C) which reads:
"Physical harm to persons means' any injury, illness, or other physiological impairment, regardless of its gravity or duration.
At trial, appellant's wife testified that she felt pain as a result of appellant's kick. Appellant contends that his wife failed to prove that she suffered any "injury, illness or other physiological impairment' as a result of the incident. This argument is unpersuasive. We agree with the reasoning expressed by the Second District Court of Appeals in its analysis of a similar case.
"It seems to us that the phrase "physiological impairment' contained in the definition of "physical harm' provided by R.C. 2901.01(C) and R.C.G.O. 130.02(E) [Dayton Revised Code of General Ordinances], certainly encompasses pain no matter how temporary in nature. We find no indication that pain must be evidenced by an outward physical manifestation in order to constitute "physical harm." City of Dayton v. Hadley, Montgomery County App. No. 9509 (decided June 2, 1986), unreported.
That court also found further support for that position in the Legislative Service Commission Note to R.C. 2901.01 which states:
In the present case, the trial court correctly ruled that under R.C. 2901.01(C), physical harm can be any injury regardless of its gravity or duration. The trial court had before it the testimony of appellant's wife to the effect that appellant's kick caused her momentary pain and injury. Evidence of an essential element of domestic violence was before the court. The court properly denied the motion and submitted the issue to the jury.
The testimony provided by appellant's wife was sufficient to sustain a conviction for domestic violence in this case. The jury could reasonably conclude that all elements of an offense had been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169. Appellant's first assignment of error is not well taken.
Appellant's second assignment of error, however, has merit. Appellant assigns as error the trial court's denial of his request to instruct the jury as to the lesser included offense of disorderly conduct under R.C. 2917.11(A)(1).
The Ohio Supreme Court has set forth a tripartite test to determine whether an offense may be a lesser included offense of another. The court held:
"An offense may be a lesser included offense of another only if (i) the offense is a crime of lesser degree than the other, (ii) the offense of the greater degree cannot be committed without the offense of the lesser degree also being committed and (iii) some element of the greater offense is not required to prove the commission of the lesser offense.' State v. Wilkins (1980), 64 Ohio St. 2d 382, 384.
The court in Wilkins further held that:
Id.
Pursuant to the Wilkins rationale, it is concluded that disorderly conduct is a lesser included offense of domestic violence and that the lower court erred in denying appellant's request for appropriate instructions to the jury in this regard.
The applicable statute regarding disorderly conduct is R.C. 2917.11(A)(1) which provides:
"No person shall recklessly cause inconvenience, annoyance, or alarm to another by doing any of the following: 1) engaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior.'
It has already been held that disorderly conduct is a lesser included offense of assault. State v. Roberts (1982), 7 Ohio App. 3d 253. The language in the statute pertaining to assault is identical to that of domestic violence except for the fact that domestic violence deals specifically with a family or household member. This fact is evident when the statutes are directly compared.
R.C. 2903.13(A) reads as follows:
"No person shall knowingly cause or attempt to cause physical harm to another.'
The domestic violence statute, R.C. 2919.25(A), states:
"No person shall knowingly cause or attempt to cause physical harm to a family or household member.'
The court in Roberts found that, pursuant to the Wilkins test, disorderly conduct is a lesser included offense of assault. Similarly, disorderly conduct must be considered a lesser included offense of domestic violence in that it also meets the elements established by Wilkins.
First, disorderly conduct is a minor misdemeanor, a crime of a lesser degree than domestic violence which is a first degree misdemeanor.
Second, as the Roberts court similarly concluded in regard to assault, a person cannot knowingly cause or attempt to cause physical harm to a family member or member of the household without at the same time recklessly causing him "inconvenience, annoyance, or alarm' by threatening harm or by engaging in...
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