State v. Miller

• Decision Date: 11 August 1995
• Docket Number: No. 95CA8,95CA8
• Citation: 664 N.E.2d 1309,105 Ohio App.3d 679
• Parties: The STATE of Ohio, Appellee, v. MILLER, Appellant.
• Court: Ohio Court of Appeals

Page 679

105 Ohio App.3d 679

664 N.E.2d 1309

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

No. 95CA8.

Court of Appeals of Ohio,

Fourth District, Washington County.

Decided Aug. 11, 1995.

Alison L. Cauthorn, Washington County Assistant Prosecuting Attorney, for appellee.

Paul G. Bertram III, Marietta, for appellant.

KLINE, Judge.

Defendant-appellant, Brian L. Miller, was charged with two separate counts of domestic violence, each count alleging appellant's previous convictions of domestic violence. Appellant filed a written motion to sever counts one and two of the indictment which the trial court denied. The motion included a memorandum in support; however, appellant did not request a hearing on this motion.

The case proceeded to a jury trial. At the close of the state's case and at the close of appellant's case, appellant made Crim.R. 29 motions for acquittal. The trial court denied the motions and appellant was found guilty of both counts of domestic violence, each a felony of the fourth degree, in violation of R.C. 2919.25. Appellant filed a motion for a new trial asserting the same grounds argued within his Crim.R. 29 motions. The trial court denied appellant's motion for new trial without a hearing. Appellant was then sentenced to imprisonment of a definite period of one and one-half years on each count, to run consecutively. Appellant appeals his conviction and asserts the following assignments of error:

"Assignment of Error Number One

"The trial court committed prejudicial error by denying the defendant/appellant's Criminal Rule 29 motion for acquittal[.]"

"Assignment of Error Number Two

"The trial court committed prejudicial error by denying the defendant/appellant's motion for new trial[.]"

"Assignment of Error Number Three

"The trial court committed prejudicial error by denying the defendant/appellant's motion to sever count one and two of the indictment[.]"

"Assignment of Error Number Four

"The verdict finding the defendant/appellant guilty of domestic violence was erroneous because the verdict was against the manifest weight of the evidence[.]"

In June 1991, appellant and Jonni Jill Chutes were living together in Marietta, Ohio. During this time, appellant was married to another woman although he was having a relationship with Chutes. On July 8, 1991, appellant was indicted for acts of domestic violence against Chutes, as well as a previous domestic violence conviction involving appellant's wife. Appellant entered a plea of not guilty to this fourth degree felony and the matter was set for trial.

Appellant claims that Chutes told him that the case was to be dropped, so he left the area for Chattanooga, Tennessee and did not appear for trial. The case was not terminated and on September 10, 1991, appellant was indicted for breach of recognizance because he failed to appear at trial.

Chutes later joined appellant in Tennessee where they then proceeded to the state of Florida with two other people. While in Florida, both appellant and Chutes maintained, they did not live together. Chutes claims that she stayed in various places including the homes of girlfriends that she met while in Florida. Appellant testified that he eventually stayed with a preacher that he met.

In November 1991, appellant and Chutes returned to Ohio. Appellant was subsequently arrested for traffic violations and then detained for his previous charges. Pursuant to a plea bargain, on February 11, 1992, appellant entered a plea of guilty to the charge of domestic violence, and the breach of recognizance charge was dismissed. On August 21, 1992, after approximately five months in prison, appellant returned to Marietta, Ohio.

On March 9, 1993, appellant was indicted on two counts of domestic violence alleging separate incidents of physical abuse against Chutes in September and November 1992. Count one alleged that on or about September 9, 1992, appellant carried Chutes out of Judd's Bar in Marietta, Ohio and proceeded to kick Chutes while she was on the ground. Count two of the indictment alleged that on or about November 9, 1992, appellant forcibly removed Chutes from a vehicle parked at the A & K Market in Washington County, Ohio and hit her on the head and shoulder several times and then kicked her.

Much of the testimony at trial focused upon the living arrangements of appellant and Chutes. Because he had no place to live upon his release from prison, appellant stayed at Martin Patterson's ¹ residence in Whipple, Ohio. The record reflects that in addition to the Patterson residence, appellant spent time at the homes of Terry Hupp, Bill Neader, and Steve McCray. The record does not indicate the amount of time spent away from Patterson's residence or the dates that appellant stayed at the other places.

Following his release from prison, appellant also spent time with Chutes at her Short Street address. Appellant testified that on the night of the second alleged incident of abuse, he told Marietta Police Officer, Leonard Ritchie, that he was leaving Judd's Bar and did not want Chutes returning to her Short Street residence because he was staying there and did not want any arguments. Chutes had lived at Short Street prior to appellant's release from prison with only her name on the lease.

Chutes also lived on and off at Patterson's home as well as her own apartment before and after appellant was released from prison. The record reflects that Chutes had an ongoing arrangement with Patterson to store her furniture at his home. In September or October 1992, Chutes was evicted from her apartment on Short Street. Following her eviction, Chutes moved her furniture back into Patterson's home. She testified that she stayed at the Patterson house and also stayed at her parent's home.

Patterson testified that both Chutes and appellant lived at his residence on and off, but Patterson could not supply specific times or dates regarding the regularity and/or the duration of the intervals that appellant and Chutes spent together. Both Chutes and appellant admitted to sharing a room and having sexual relations when they did stay at Patterson's house. Both, however, testified that their relationship was purely sexual and at no time did they share any living expenses. Chutes claimed that the only monetary arrangement between herself and appellant was that she acted as payee for appellant's Social Security disability benefits for three periods of time. Both claimed that they have not lived together since June 1991.

The record indicates that neither appellant nor Chutes owned or rented any permanent residence after Chutes was evicted from her apartment. Witnesses testifying to the living arrangements between appellant and Chutes all acknowledged that Chutes and appellant stayed together at the Patterson house and at other locations. However, all refused to label the arrangement as "living together." Also living at the Patterson residence at some point was appellant's brother, Keith Miller. Testimony shows that other women stayed at the Patterson house during this period of time with appellant, specifically a Susan Schweitzer.

Chutes initially refused to answer questions at trial regarding her living arrangements. Eventually she stated that from the months of August 1992 through November 1992, she and appellant slept together off and on, but were separated and did not live consistently together during this time. Chutes testified that after November 21, 1992, she moved into her parents' house.

When questioned about the incidents of physical abuse alleged in September and November 1992, Chutes answered that she would exercise her right to remain silent pursuant to the Fifth Amendment of the United States Constitution. The trial court did not demand that Chutes testify, and the state then discontinued questioning Chutes. The responding police officer in the alleged September 1992 act of domestic violence, testified that Chutes said that if charges were brought against appellant, she would not show up or would appear in court and deny that the incident ever took place.

I

In appellant's first assignment of error, he asserts that the trial court erred in denying his motions for acquittal pursuant to Crim.R. 29. Appellant contends that the state failed to prove beyond a reasonable doubt that Chutes was a family or household member. Specifically, appellant argues that the state failed to establish that appellant and Chutes lived together or cohabited in September or November 1992, or that they lived together in the year previous to the charges. Accordingly, appellant requested that counts one and two should have been reduced to assault, misdemeanors of the first degree, as there was no evidence that Chutes was a family or household member. Crim.R. 29(A) states:

"(A) Motion for judgment of acquittal. The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case."

When reviewing the trial court's denial of appellant's Crim.R. 29(A) motions for acquittal, we must construe the evidence in a light most favorable to the state and determine whether reasonable minds could reach different conclusions concerning whether the evidence proves every material element of the crime beyond a reasonable doubt. State v. Evans (1992), 63 Ohio St.3d 231, 248, 586 N.E.2d 1042, 1056; State v. Bridgeman (1978), 55 Ohio St.2d 261, 9 O.O.3d 401, 381 N.E.2d 184, syllabus.

Appellant was charged with two counts of domestic violence in violation of R.C. 2919.25(A), which provides that "[n]o person shall knowingly cause harm or attempt to cause physical harm to a family or household member." Appe...