State v. Hadinger, 90AP-1256

• Decision Date: 21 March 1991
• Docket Number: No. 90AP-1256,90AP-1256
• Citation: 573 N.E.2d 1191,61 Ohio App.3d 820
• Parties: The STATE of Ohio, Appellant, v. HADINGER, Appellee.
• Court: Ohio Court of Appeals

Page 820

61 Ohio App.3d 820

573 N.E.2d 1191

The STATE of Ohio, Appellant, v. HADINGER, Appellee.

No. 90AP-1256.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided March 21, 1991.

Ronald J. O'Brien, City Atty., James J. Fais, City Prosecutor, and Thomas K. Lindsey, Columbus, for appellant.

Robert S. Hendrix, Columbus, for appellee.

Jerry L. Bunge, Columbus, urging reversal for amicus curiae, American Civil Liberties Union.

Carol Ann Fey, Columbus, urging reversal for amici curiae, Lambda Legal Defense and Educ. Fund, Inc., and Ohio Human Rights Bar Ass'n.

STRAUSBAUGH, Judge.

This is an appeal by plaintiff, state of Ohio, from a judgment of the Franklin County Municipal Court dismissing the charge of domestic violence against defendant on the basis that under Ohio law two women cannot be married and therefore could not be living in a spousal relationship. The record indicates that on August 6, 1990, defendant, Carol Hadinger, was charged with domestic violence in violation of R.C. 2919.25. The complaint provides in pertinent part:

"Complainant being duly sworn states that Carol Hadinger at Franklin County Ohio, on or about the 6th day of August 1990 did knowing [sic ] cause physical harm to a household member, to wit, Ellensara Evans, person living as spouse, by means of biting said other person on the right hand * * *."

On October 1, 1990, the trial court on a half-sheet entry stated that the charge was being dismissed at the request of the prosecutor. A judgment entry was subsequently filed on November 1, 1990, correcting its previous entry of October 1, 1990, by nunc pro tunc, dismissing sua sponte the domestic violence charge against defendant from which plaintiff now appeals.

On appeal, plaintiff has set forth two assignments of error for this court's review:

"1. The trial court erred in dismissing the charge of domestic violence since the trial court improperly considered the legal sufficiency of the evidence in dismissing the charge.

"2. The trial court erred in dismissing the charge of domestic violence since the definition of 'person living as a spouse' in R.C. 2919.25(E)(2) includes persons of the same sex who are cohabiting or have cohabited within the past year."

Initially, we note that defendant in her appellate brief agrees with plaintiff that both assignments of error should be sustained and the trial court's judgment reversed. Amicus curiae briefs have been filed on behalf of the American Civil Liberties Union, LAMBDA Legal Defense and Education Fund, Inc., and the Ohio Human Rights Bar Association, all of which are in support of plaintiff's appeal.

In its first assignment of error, plaintiff has argued that the trial court improperly considered the legal sufficiency of the evidence in dismissing the charge. However, it appears from the trial court's entry that dismissal was not due to the sufficiency of evidence but rather upon the trial court's statutory construction of R.C. 2919.25 and its conclusion that the domestic violence statute could not be applied in the present case. See Crim.R. 48. As the dismissal was not based upon the sufficiency of the evidence, we find plaintiff's first assignment of error to be not well-taken and it is therefore overruled.

In its second assignment of error, plaintiff argues that the trial court construed R.C. 2919.25 too narrowly so as to preclude its application to the facts in the present case. R.C. 2919.25 provides in pertinent part:

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

" * * *

"(D) As used in this section and section 2919.26 of the Revised Code:

"(1) 'Family or household member' means any of the following, who is residing or has resided with the offender:

"(a) 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 one year prior to the date of the alleged commission of the act in question."

R.C. 2919.25 specifically includes in its definition of a "person living as a spouse" a person who is otherwise cohabiting with the offender. No cases have been cited nor have we discovered any case law which defines the term "cohabit" as used in R.C. 2919.25(E)(2). However, for reference purposes we note that "cohabitation" has been defined in various other domestic relations cases. While these cases are limited by law and by their facts to persons of opposite sex, they do provide an appropriate starting point for our decision in the present case. In Sindel v. Sindel (1975), 7 O.O.3d 223, this court held:

" * * * The ordinary meaning of cohabitation is, of course, the act of living together. What constitutes living together is a question of fact in each particular case. * * * Ordinarily, isolated acts of sexual intercourse during the two-year period, unaccompanied by other aspects of living together, would not constitute cohabitation. Conversely, cohabitation can be based entirely on acts of living together without sexual relations. * * * " Id. at 226. In Lester v. Lester (May 14, 1981), Franklin App. No. 81AP-84, unreported, 1981 WL 3186, this court quoted from the Sindel decision and reiterated...