State v. Newman, Unpublished Decision (8-11-2006)

{¶ 9} I write separately to state that, although I disagree with this Court's precedents, I must concur on the basis of stare decisis.

{¶ 10} I disagree for the reasons set forth in my dissent inState v. Ward.. . . . . . .

(Hon. Sumner E. Walters, retired from the Third District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).

{¶ 2} Newman's sole assignment of error is as follows:

{¶ 3} "THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO DISMISS AND CONVICTING APPELLANT OF DOMESTIC VIOLENCE AS SUCH PROSECUTION AND CONVICTION VIOLATES ARTICLE XV, SECTION 11 OF THE OHIO CONSTITUTION."

{¶ 4} Newman claims that the trial court erred when it found that R.C. 2919.25 was constitutional as it applies to persons living as spouses and denied his motion to dismiss.

{¶ 5} It is undisputed that Newman and the victim lived together for a period of time, but that they were never married and they did not have any children together. Accordingly, based on the record, the victim was a "person living as a spouse" under R.C. 2919.25.

{¶ 6} This court has recently determined that, to the extent that R.C. 2919.25 extended its protection to "a person living as a spouse," it was rendered unconstitutional by the Defense of Marriage amendment, which became effective on December 2, 2004.State v. Ward, 166 Ohio App.3d 188, 2006-Ohio-1407, ___ N.E.2d ___. For the reasons set forth in Ward, Newman's argument is meritorious.

{¶ 7} The assignment of error is sustained.

{¶ 8} The judgment of the trial court will be reversed and the cause remanded for further proceedings consistent with this opinion.