[Cite as State v. Gomez,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. Nos. 25496 25501 Appellee/Cross-appellant

v. APPEAL FROM JUDGMENT CARLOS FRANCISCO GOMEZ ENTERED IN THE COURT OF COMMON PLEAS Appellant/Cross-appellee COUNTY OF SUMMIT, OHIO CASE No. CR 2009 07 2145

DECISION AND JOURNAL ENTRY

Dated: October 26, 2011

CARR, Judge.

{¶1} Carlos Gomez appeals his conviction in the Summit County Court of Common

Pleas. The State appeals from the judgment imposing sentence. This Court affirms, in part, and

reverses, in part, and remands for resentencing.

I.

{¶2} On July 23, 2009, Gomez was indicted on one count of domestic violence in

violation of R.C. 2919.25(A)(B), a felony of the fifth degree as the charge alleged that Gomez

knew that the victim was pregnant at the time of the offense. A criminal temporary protection

order was issued on July 29, 2009, in favor of the victim, Elvira Cruz, against Gomez. Ms. Cruz’

address was listed on the order as 571 Lynnfield Street, Lynn, Massachusetts 01904. At

arraignment, Gomez pleaded not guilty to the charge.

{¶3} The matter proceeded to trial before a jury. At the conclusion of trial, the jury

found Gomez guilty of domestic violence and further made a finding that Gomez knew that the 2

victim was pregnant at the time of the offense. Gomez filed a motion for a judgment of acquittal

pursuant to Crim.R. 29(C) or, in the alternative, for a new trial. The trial court denied the motion

in toto.

{¶4} Prior to sentencing, Gomez filed a motion in opposition to the imposition of a

mandatory prison term pursuant to R.C. 2919.25(D). The trial court granted the motion. At

sentencing, the trial court sentenced Gomez to six months of incarceration, and suspended it

upon the condition that he successfully complete two years of community control. The trial

court further stayed the commencement of Gomez’ period of community control pending his

appeal. Both Gomez and the State filed timely appeals.

II.

GOMEZ’ ASSIGNMENT OF ERROR I

“THE TRIAL COURT ERRED IN DENYING APPELLANT’S CRIM.R. 29 MOTION AS THE STATE PRESENTED INSUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION.”

{¶5} Gomez argues that the trial court erred by denying his motion for acquittal

pursuant to Crim.R. 29, because the State presented insufficient evidence to sustain a conviction

for domestic violence. This Court disagrees.

{¶6} Crim.R. 29 provides, in relevant part:

“(A) 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.”

“An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, 3

any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Galloway (Jan. 31, 2001), 9th Dist. No. 19752, citing State v. Jenks (1991),

, paragraph two of the syllabus.

{¶7} The test for sufficiency requires a determination of whether the State has met its

burden of production at trial. State v. Walker (Dec. 12, 2001), 9th Dist. No. 20559; see, also,

State v. Thompkins (1997),

(Cook, J., concurring).

{¶8} Gomez was convicted of domestic violence in violation of R.C. 2919.25(A)1

which stated at the time relevant to the commission of the offense that “[n]o person shall

knowingly cause or attempt to cause physical harm to a family or household member.” The

crime was charged as a felony of the fifth degree based on the allegation that Gomez “knew that

the victim of the violation was pregnant at the time of the violation[.]” R.C. 2919.25(D)(5).

{¶9} On appeal, Gomez argues only that the State failed to present sufficient evidence

that the victim was a family or household member.2 “Family or household member” includes “a

person living as a spouse.” R.C. 2919.25(F)(1)(a)(i). The statute defines “Person living as a

spouse” as “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.”

1 At trial, the State asserted that it was proceeding in its prosecution solely on the basis of R.C. 2919.25(A), rather than on both subsections (A) and (B). 2 Although Gomez argues that the State failed to present sufficient evidence that he caused serious physical harm to the victim, the State did not prosecute Gomez pursuant to R.C. 2919.25(B), the provision requiring serious physical harm. Accordingly, we decline to address the issue of serious physical harm. 4

R.C. 2919.25(F)(2). This Court has adopted the Ohio Supreme Court’s definition of

“cohabitation,” the essential elements of which are “(1) sharing of familial or financial

responsibilities and (2) consortium.” State v. Sudderth, 9th Dist. No. 24448,

, at

¶11, quoting State v. Williams (1997),

. The Williams court listed

possible factors which might establish shared familial or financial responsibilities as “provisions

for shelter, food, clothing, utilities, and/or commingled assets.”

The factors which might

demonstrate consortium include “mutual respect, fidelity, affection, society, cooperation, solace,

comfort, aid of each other, friendship, and conjugal relations.”

The Supreme Court

emphasized that “[t]hese 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.”

{¶10} At trial, two eye witnesses to the incident testified that they heard a man and a

woman arguing loudly in a parking lot next door to where the two eye witnesses were working at

approximately 11:00 p.m. on July 8, 2009. Robert Wimley and Chazman Addie both testified

that they saw the man cock his arm back as if to hit the woman, but he instead grabbed the

woman by the neck and choked her to the ground. The man then stood over the woman and

continued to scream at her. Messrs. Wimley and Addie went inside their place of business and

asked their manager to call the police. Lindsey Baker called 911 and the police arrived on the

scene.

{¶11} Officer Jamie Mizer of the Springfield Police Department testified that she was

dispatched to the scene regarding a male who had choked a female to the ground. When she

arrived, the couple had already been separated, and Gomez was in handcuffs in the back of a

deputy sheriff’s cruiser. The victim was standing in front of the cruiser. The officer testified

that she took statements from various witnesses and then spoke with the victim at the scene. 5

{¶12} Officer Mizer testified that the victim appeared visibly upset and had red marks

on her neck. She testified that the victim spoke little English, so she had the victim write her

name and address on a piece of paper. The victim wrote her address as 571 Lynnfield Street,

Lynn, Massachusetts, 01904. Officer Mizer noticed that that was the same address as the one

listed on Gomez’ driver’s license which she had obtained at the scene. In addition, that was the

address utilized by the municipal court when it ordered a temporary protection order for the

victim against Gomez. The only other information Officer Mizer was able to obtain from the

victim was that she was four months pregnant and that she and Gomez were not married. The

officer testified that the victim was not cooperative at the scene, but she suspected that the victim

did not answer some questions because she did not understand them.

{¶13} Officer Mizer transferred Gomez to her cruiser and drove him to the police station

where she was able to question him. The officer testified that Gomez informed her that he lived

at 571 Lynnfield Street, Lynn, Massachusetts. When she asked Gomez how far along his

girlfriend was into her pregnancy, Gomez, without correcting the officer’s description of the

couple’s status, told her “four months.” She testified that she learned that Gomez and the victim

were staying at a Quality Inn near the scene of the incident. Officer Mizer testified that she

charged Gomez with felony domestic violence because of eye witness statements regarding the

incident, visible injuries on the victim’s neck, and the admission by Gomez that the victim was

pregnant.

{¶14} Reviewing the evidence in a light most favorable to the State, this Court

concludes that any rational trier of fact could have found the essential elements of the charge of

domestic violence were proved beyond a reasonable doubt. See Jenks, 61 Ohio St.3d at

paragraph two of the syllabus. The State presented evidence that Gomez, knowing that the 6

victim was pregnant, choked her with enough force to bring her to the ground. The State

presented evidence that the victim gave as her own address the same address listed on Gomez’

driver’s license, indicating that the couple shared a home. There was evidence that the couple

was staying together at a hotel in Akron, away from their home state of Massachusetts.

Moreover, as Gomez did not challenge Officer Mizer’s characterization of the victim as Gomez’

girlfriend, the State presented evidence of the couple’s affection, society, and friendship.

Accordingly, the State presented sufficient evidence of the crime of domestic violence. Gomez’

first assignment of error is overruled.

GOMEZ’ ASSIGNMENT OF ERROR II

“THE JURY CREATED A MANIFEST MISCARRIAGE OF JUSTICE AS THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

{¶15} Gomez argues that his conviction for domestic violence is against the manifest

weight of the evidence. This Court disagrees.

“In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact 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. Otten (1986),

.

“Weight of the evidence concerns the tendency of a greater amount of credible evidence to support one side of the issue more than the other. Thompkins,

. Further when reversing a conviction on the basis that it was against the manifest weight of the evidence, an appellate court sits as a ‘thirteenth juror,’ and disagrees with the factfinder’s resolution of the conflicting testimony. Id.” State v. Tucker, 9th Dist. No. 06CA0035-M,

.

{¶16} This discretionary power should be exercised only in exceptional cases where the

evidence presented weighs heavily in favor of the defendant and against conviction. Thompkins,

.

{¶17} Gomez presented the testimony of the victim and he testified in his own defense. 7

{¶18} The victim testified that Gomez is a truck driver and she was accompanying him

on the road on July 8, 2009, as she had done on one or two prior occasions. She testified that

Gomez paid for their hotel room and dinner that evening. She testified that she and Gomez

began dating in December 2008. The victim testified that Gomez knew she was pregnant in July

2009, and that he provided support to her during her pregnancy until he was charged with

domestic violence and a temporary protection order was issued. The victim denied that Gomez

assaulted her, claiming instead that she pushed him in anger because he would not discuss her

desire to move in with him. She testified that she only stayed at Gomez’ home up to three days a

week because he was usually on the road with his trucking business. She testified that, when she

stayed at his home, she would cook for him and Gomez would clean. She admitted that she and

Gomez had a sexual relationship.

{¶19} The victim denied living with Gomez and testified that she only gave his address

as her own to police because she was nervous and she had been staying at his house during the

two days prior to the incident. The victim testified that she has not had any contact with Gomez

during the pendency of this case but that she would like for the two of them and their baby to be

together as a family.

{¶20} Gomez testified in his own defense. He admitted that he knew that the victim was

pregnant with his child on the night of the incident. He further testified as follows. Gomez, the

victim, and one of his employees were on a business trip from Massachusetts to Detroit,

Chicago, and Canton when the incident occurred. The victim was with him the whole time.

Gomez got one hotel room for himself and the victim, while his employee got a separate room.

Gomez took the victim to dinner at one restaurant, while the employee went elsewhere to eat. 8

{¶21} Gomez has lived in a 3-bedroom, single-family house at 571 Lynnfield Street,

Lynn, Massachusetts, for five years. He testified that the victim did not live with him, although

she stayed with him about one-third of the time. Other times, the victim stayed with her family.

Gomez explained: “With the type of work I do, I’m not home all the time. So sometimes I’m off

working.” Notwithstanding the fact that he was often out on the road, Gomez asserted that “you

cannot count someone living with you if it’s just two or three days out of the week.” Gomez

admitted that he and the victim sometimes shared cooking and cleaning duties, that she

sometimes accompanied him on business trips on the road, that he got a hotel room for them

when they did not sleep in the sleeper compartment of the truck, and that he bought the victim’s

food. He further admitted that he provided support to the victim until the domestic violence

charge was levied against him.

{¶22} Gomez denied assaulting the victim. Instead, he testified that it was the victim

who was acting “crazy and stupid” that night.

{¶23} This Court will not overturn the trial court’s verdict on a manifest weight of the

evidence challenge only because the trier of fact chose to believe certain witness’ testimony over

the testimony of others. State v. Crowe, 9th Dist. No. 04CA0098-M,

.

{¶24} A review of the record indicates that this is not the exceptional case, where the

evidence weighs heavily in favor of Gomez. A thorough review of the record compels this Court

to find no indication that the trial court lost its way and committed a manifest miscarriage of

justice in convicting Gomez of domestic violence.

{¶25} The weight of the evidence supports the conclusion that Gomez knew the victim

was pregnant with his child when he choked her. Eye witness testimony indicated that the

couple was yelling and that Gomez cocked his arm back before grabbing the victim’s neck and 9

choking her forcibly to the ground. The weight of the evidence further supports the conclusion

that Gomez and the victim cohabited by sharing familial and financial responsibilities and by

enjoying consortium. The address the victim gave to the police matched Gomez’ address on his

driver’s license and the address he admitted was his own. There was evidence that the victim

stayed at Gomez’ home on a regular basis, perhaps even as often as Gomez was in town and not

on the road working. Gomez admitted that he provided support for the victim during her

pregnancy and that they shared household duties such as cooking and cleaning. The evidence

established that the victim would accompany Gomez on some of his out-of-town trucking jobs

during which times he would provide her with shelter and food. Both Gomez and the victim

admitted that they had a sexual relationship. Accordingly, the weight of the evidence

demonstrates that Gomez and the victim shared familial or financial responsibilities through the

provision of food, shelter, other financial support, and the sharing of household chores. The

weight of the evidence demonstrates that Gomez and the victim shared consortium by means of

mutual affection, society, and conjugal relations. As a result, a finding that the victim was

cohabiting with Gomez at the time of the incident is not against the manifest weight of the

evidence. As Gomez’ conviction is not against the manifest weight of the evidence, his second

assignment of error is overruled.

THE STATE’S ASSIGNMENT OF ERROR

“THE COURT ERRED IN NOT IMPOSING A MANDATORY PRISON TERM OF AT LEAST SIX MONTHS”

{¶26} The State argues that the trial court erred by failing to impose a mandatory prison

term of at least six months for Gomez’ domestic violence conviction. This Court agrees. 10

{¶27} The State challenges the trial court’s application of R.C. 2919.25(D) as it was in

effect at the time relevant to this matter. “An appellate court’s review of the interpretation and

application of a statute is de novo.” Akron v. Frazier (2001),

.

{¶28} R.C. 2919.25(D)(1) provided that “[w]hoever violates this section is guilty of

domestic violence, and the court shall sentence the offender as provided in divisions (D)(2) to (6)

of this section.” R.C. 2919.25(D)(5) provided, in relevant part, that “if the offender knew that

the victim of the violation was pregnant at the time of the violation, a violation of division (A) or

(B) of this section is a felony of the fifth degree, and the court shall impose a mandatory prison

term on the offender pursuant to division (A)(6) of this section[.]” (Emphasis added.) R.C.

2919.25(D)(6) provided: “If division (A)(3), (4), or (5) of this section requires the court that

sentences an offender for a violation of division (A) or (B) of this section to impose a mandatory

prison term on the offender pursuant to this division, the court shall impose the mandatory prison

term as follows: (a) If the violation of division (A) or (B) of this section is a felony of the fourth

or fifth degree, except as otherwise provided in division (A)(6)(b) or (c)3 of this section, the court

shall impose a mandatory prison term on the offender of at least six months.” (Emphasis added.)

{¶29} The trial court refused to impose a mandatory prison term on Gomez

notwithstanding his fifth degree felony conviction for domestic violence committed at a time in

which he knew the victim was pregnant because of what the court found to be a “nonsensical

reference *** to division (A)(6) of that statute.” Division (D) of the statute addresses sentencing

issues. The trial court found division (D) to be “rife with references to nonexistent divisions.” It

is true that the version of the statute in effect at the relevant time contained references in division

3 These provisions address situations in which the defendant has caused serious physical harm to the pregnant woman’s unborn child or caused the termination of the victim’s pregnancy and 11

(D) to nonexistent subsections in division (A). We nevertheless conclude that the trial court

erred by failing to impose a mandatory prison term on Gomez.

{¶30} R.C. 2901.04(A) directs that “sections of the Revised Code defining offenses or

penalties shall be strictly construed against the state, and liberally construed in favor of the

accused.” This Court has written, however, that “[w]hen it appears beyond a doubt that a statute,

when read literally as printed, is impossible of execution, or will defeat the plain object of its

enactment, or is senseless, or leads to absurd results or consequences, a court is authorized to

regard such defects as the result of error or mistake, and to put such construction upon the statute

as will correct the error or mistake by permitting the clear purpose and manifest intention of the

Legislature to be carried out.” Wickens v. Dunn (1942),

. It has more

recently been held that “when the terms of the statute, as written, would never be applicable, and

the simple substitution of one character would result in a term that would always be applicable,

we must conclude that the statute contains an obviously typographical error, and we may correct

the error and give effect to the obvious intent of the statute.” State v. Virasayachack (2000),

, citing Brim v. Rice (1969),

.

{¶31} Applying the above reasoning, this Court recently addressed this exact issue in

State v. Cross, 9th Dist. No. 25487,

. The majority wrote: “It is clear that the

statute does not contain a section (A)(6), thus, the reference is obviously in error. It was the

clear intent of the General Assembly to impose a mandatory prison term if the offender knew

that the victim was pregnant. In addition, the plain language of the statute states that it is a

felony of the fifth degree. The General Assembly delineated mandatory prison terms in section

(D)(6) of the statute.” Id. at ¶44. While recognizing that the correction of express statutory

require the imposition of a mandatory prison term of twelve months or more. Neither situation is 12

language is an extraordinary measure which should be undertaken by the courts only where both

the error and the correct result are obvious, this Court held that the clear intent of the legislature

warranted such measures in the sentencing provisions of R.C. 2919.25(D). Id. at ¶46. That clear

intent of the legislature is further evidenced by a subsequent amendment to the statute replacing

the prior references to division (A) in R.C. 2919.25(D) with references to division (D),

constituting a “simple substitution of one character.” See Virasayachack,

. Accordingly, the trial court erred by failing to impose a mandatory prison term on Gomez

to effect the clear legislative intent of the statute. The State’s sole assignment of error is

sustained.

III.

{¶32} Gomez’ assignments of error are overruled. The State’s assignment of error is

sustained. Gomez’ conviction for domestic violence is affirmed, but the judgment of sentence is

reversed and the cause is remanded for imposition of a sentence consistent with this decision.

Judgment affirmed, in part, reversed, in part, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

applicable to this case. 13

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Carlos Gomez.

DONNA J. CARR FOR THE COURT

DICKINSON, J. CONCURS

BELFANCE, P. J. CONCURS IN PART, AND DISSENTS IN PART, SAYING:

{¶33} I respectfully dissent form the majority’s determination that Mr. Gomez’ Crim.R.

29 motion was properly overruled although I agree with the majority’s standard in assessing this

assignment of error. This Court has not always recognized the distinction between a general

challenge to the sufficiency of the evidence on appeal and a challenge to the trial court’s denial

of a Crim.R. 29 motion. See e.g. State v. Bezak (Feb. 18, 1998), 9th Dist. No. 18533, at *1-*2.

A general challenge to the sufficiency of the evidence permits this Court to examine all of the

evidence produced at trial. See

However, a review of the denial of a Crim.R. 29 motion

should be limited to the evidence presented by the State. In this case, Mr. Gomez made a

Crim.R. 29 motion when the State rested, and he renewed his motion at the end of the trial.

Thus, I agree that the majority properly limited itself to consideration of the evidence presented

in the State’s case. 14

{¶34} Based solely upon the evidence presented in the State’s case, I would conclude

that the State failed to establish beyond a reasonable doubt that the victim was a family or

household member, as the State failed to prove that the victim was cohabiting with Mr. Gomez.

See R.C. 2919.25(A),(F).

{¶35} The Supreme Court of Ohio has held that “the offense of domestic violence * * *

arises out of the relationship of the parties rather than their exact living circumstances.” State v.

Williams (1997),

. The Court went on to state that “the essential

elements of ‘cohabitation’ are (1) sharing of familial or financial responsibilities and (2)

consortium.”

. “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.”

{¶36} I agree that the State did meet the minimum threshold necessary to establish the

element of consortium. However, I cannot say that it provided evidence that the victim and Mr.

Gomez shared familial or financial responsibilities. See

The State presented evidence that

the address on Mr. Gomez’ driver’s license was the same as the address the victim gave to police

and that the two were staying together at the same hotel. There was no evidence that Mr. Gomez

was paying for the victim’s hotel room or buying her food or other necessities. There was no

evidence that established the existence of shared familial responsibilities such as the provision of

shelter, food, clothing, or utilities nor whether the parties had shared financial responsibilities or

assets. It was also established that the two were not married and that the victim was four months

pregnant. There is no evidence from the State’s case indicating who the father of the victim’s

child is. Further, the only evidence presented in the State’s case that Mr. Gomez and the victim 15

were in a relationship was the inference that could be made based upon the fact that Mr. Gomez

did not correct the officer when the officer asked how far along his girlfriend, the victim, was

into her pregnancy. In Williams, the Supreme Court emphasized that the exact living

arrangements without more does not establish cohabitation. See

. Contrary to

Williams, the State attempted to satisfy its burden of demonstrating this aspect of cohabitation

with evidence that relied almost solely upon the simple fact that Gomez and the victim shared the

same address rather than providing evidence concerning the substance of the relationship. See

{¶37} Based solely upon the evidence presented in the State’s case, I cannot conclude

that the State proved that the victim and Mr. Gomez cohabited. To conclude that Mr. Gomez and

the victim shared familial or financial responsibilities would require the fact finder to assume

facts not in evidence. This is not to say that Mr. Gomez could not have been charged and

perhaps convicted of a crime based upon the evidence presented by the State; however, the State

proceeded only under the domestic violence statute and not another similar statute, such as R.C.

2903.13(A), prohibiting assault. Accordingly, I dissent from the majority’s conclusion that the

trial court correctly overruled Mr. Gomez’ Crim.R. 29 motion.

{¶38} As I would sustain Mr. Gomez’ first assignment of error, I would decline to

address his remaining assignment of error and the State’s assignment of error as they would be

rendered moot. See App.R. 12(A)(1)(c).

APPEARANCES:

MARTHA HOM, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.