State v. Martin, 2015AP0010.

• Decision Date: 20 January 2016
• Docket Number: No. 2015AP0010.,2015AP0010.
• Parties: STATE of Ohio, Plaintiff–Appellee v. Clarence MARTIN III, Defendant–Appellant.
• Court: Ohio Court of Appeals

57 N.E.3d 411

STATE of Ohio, Plaintiff–Appellee

v.Clarence MARTIN III, Defendant–Appellant.

No. 2015AP0010.

Court of Appeals of Ohio, Fifth District, Tuscarawas County.

Jan. 20, 2016.

Michael Ernest, New Philadelphia, OH, for Plaintiff–Appellee.

Keith Warstler, Jr., Massillon, OH, for Defendant–Appellant.

W. SCOTT GWIN, P.J., WILLIAM B. HOFFMAN, J., and JOHN W. WISE, J.

OPINION

GWIN, P.J.

{¶ 1} Appellant, Clarence Martin III [“Martin”] appeals his conviction and sentence after a jury trial in the Tuscarawas County Court of Common Pleas on one count of domestic violence in violation of R.C. 2921.25, a felony of the fourth degree.

Facts and Procedural History

{¶ 2} The alleged victim, Alicia Suloff did not appear at trial. Prior to the commencement of Martin's jury trial, the trial court overruled Martin's objections to the state presenting Ms. Suloff's 9–1–1 calls¹ . (T. at 10–13).

{¶ 3} The state presented Ms. Suloff's two 9–1–1– calls made on June 8, 2014. (T. at 35–38; 42–45; 47–48). During the first call made at 12:19 a.m., Suloff informed the dispatcher that, “My boyfriend beat me up real bad.” (T. at 35). Further, He beat me—my lips—I can't even talk.” Id. at 36. Ms. Suloff informed the dispatcher that her boyfriend was Martin and he was still inside the premises. Id. at 37.

{¶ 4} During the second call made at 12:27 a.m., Ms. Suloff informs the dispatcher “He beat me up really bad.” (T. at 38).

{¶ 5} Captain Seth Lurie of the Dover Police Department responded to the premises. Captain Lurie stated that he met a female at the front lower door who was still on the phone with the 9–1–1 dispatcher. (T. at 56). Captain Lurie indicated that he immediately noticed that she was very excited and almost to the point of hyperventilating. (Id. ).

{¶ 6} Suloff told Captain Lurie that Martin had beat her up. (T. at 57). He observed swelling on her face and lips, as well as a bruise on her arm. (Id ). Lurie believed that Suloff and Martin were cohabitants, and resided together at 315 West Fourth Street. While on scene, Lurie believed that both Suloff and Martin were intoxicated. He observed that Martin had a scratched face and bloody knuckles.

{¶ 7} Captain Lurie testified that on the night of the call he observed Martin laying face up in a bed. Captain Lurie stated that he believed Martin was intoxicated, based upon the odor of alcohol on both his breath and person, and his eyes appeared to be glassy, and blood shot. Captain Lurie stated that he attempted to speak with Clarence Martin regarding the incident; however, Martin declined.

{¶ 8} Captain Lurie described the apartment where the incident occurred as being very small. He described seeing Martin's shoes, the victim's clothes, and Martin's clothes. Captain Lurie stated that it was very clear to him that the victim and the perpetrator were living together. Captain Lurie then stated that he determined that Martin was the primary physical aggressor and he was placed under arrest.

{¶ 9} Martin stated that he and Suloff have been in a relationship for approximately twenty-five years on and off. They were never married and had no children together. Martin testified that on June 8, 2014, Suloff had been staying with him at his apartment on a regular basis. (T. at 109–110). He further testified that he lived there with her on the night on the altercation. (T. at 125; 147). Martin claimed the couple had gone to a local bar where an argument ensued. Martin left the bar and returned home. Martin testified Suloff and her sister arrived about an hour later. Martin claimed that he was in bed when Suloff began arguing with him. She then “jumped on me, she started biting my fingers and I just shoved her away from me and then she jumped on me again.” (T. at 113–114). He claimed that he acted in self-defense.

{¶ 10} Martin requested that the trial court give a proposed jury instruction on the term “cohabit” as contained in R.C. 2919.25. Martin filed a written request for a jury instruction prior to the conclusion of the trial. The trial court overruled Martin's request. (T. at 82–83).

{¶ 11} The jury returned a verdict of guilty to one count of domestic violence. By Judgment Entry filed February 20, 2015, the trial court sentenced Martin to two years supervised community control sanctions with residential and non-residential sanctions. The trial court reserved a 12–month sentence of imprisonment.

Assignments of Error

{¶ 12} Martin raises three assignments of error,

{¶ 13} “I. THE DEFENDANT'S CONVICTION FOR ONE COUNT OF DOMESTIC VIOLENCE WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

{¶ 14} “II. THE TRIAL COURT ERRED IN PERMITTING THE INTRODUCTION OF THE 911 CALLS.

{¶ 15} “III. THE TRIAL COURT ERRED IN FAILING TO GIVE THE DEFENDANT'S REQUESTED JURY INSTRUCTION REGARDING COHABITATION.”

I.

{¶ 16} In his first assignment of error, Martin challenges the sufficiency of the evidence; he further contends his conviction is against the manifest weight of the evidence produced by the state at trial.

{¶ 17} Our review of the constitutional sufficiency of evidence to support a criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d 582 (2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d 1239, 2010-Ohio-1017, ¶ 146 ; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296, 2010-Ohio-2720, ¶ 68.

{¶ 18} Weight of the evidence addresses the evidence's effect of inducing belief. State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668 (1997). Weight of the evidence concerns “the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue, which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541, quoting Black's Law Dictionary (6th Ed. 1990) at 1594.

{¶ 19} When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a “ ‘thirteenth juror’ ” and disagrees with the fact finder's resolution of the conflicting testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely substitute its view for that of the jury, but must find that “ ‘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, supra, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721 (1st Dist.1983). Accordingly, reversal on manifest weight grounds is reserved for “ ‘the exceptional case in which the evidence weighs heavily against the conviction.’ ” Id.

“[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment and every reasonable presumption must be made in favor of the judgment and the finding of facts.

* * *

“If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

{¶ 20} To find Martin guilty of domestic violence the trier of fact would have to find beyond a reasonable doubt that he knowingly caused or attempted to cause physical harm to a family or household member. R.C. 2919.25(A). Physical harm to persons is defined as “any injury, illness, or other physiological impairment, regardless of its gravity or duration.” “Family or household member” includes “A spouse, a person living as a spouse, or a former spouse of the offender” R.C. 2919.25(F)(1)(a)(i). A “person living as a spouse” includes “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.” R.C. 2919.25(F)(2).

{¶ 21} First, Martin argues the state presented insufficient evidence Suloff is his “family or household member” citing State v. Williams, 79 Ohio St.3d 459, 683 N.E.2d 1126 (1997).

{¶ 22} In Williams, the Ohio Supreme Court addressed the definition of “cohabitation” as follows:

[W]e 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.

State v. Williams, 79...