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Wednesday, October 23, 2013

State of Ohio v. Jeffrey McGlothan, Case no. 2012-1782
Eighth District Court of Appeals (Cuyahoga County)

State of Ohio v. Timothy Tate, Case no. 2012-1861
Eighth District Court of Appeals (Cuyahoga County)

In re A.G., a minor child, Case no. 2012-2097
Sixth District Court of Appeals (Ottawa County)

What Evidence is Required to Prove that a Couple Cohabited for an Offense to be Domestic Violence?

State of Ohio v. Jeffrey McGlothan, Case no. 2012-1782
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: When a victim of an assault and the alleged perpetrator of assault live together and are engaged in an intimate relationship, are those factors enough to prove cohabitation for purposes of the domestic violence statute?

Cynthia Robinson has a medical condition that required surgery to permanently place a tracheostomy (“trach”) tube in her throat to help her breathe. If the trach tube becomes dislodged, she must immediately seek hospital care to have it reinserted. In January 2011, Robinson and her boyfriend, Jeffrey McGlothan, argued in her Euclid apartment. Robinson later testified that McGlothan pushed her and her trach tube came out. She called an ambulance and was taken to the hospital where a doctor was able to replace the tube without surgery.

McGlothan was tried for felonious assault and domestic violence. Following a bench trial in June 2011, McGlothan was found guilty of attempted felonious assault and domestic violence.

McGlothan appealed to the Eighth District Court of Appeals. The court affirmed the attempted felonious assault conviction but overturned the domestic violence conviction. During the trial, Robinson had testified that McGlothan was her boyfriend and had been living with her in her apartment for about a year. In his appeal, McGlothan argued that the state failed, under the domestic violence statute, to prove that he was a family or household member who cohabited with Robinson.

In its decision, the appeals court cited the Ohio Supreme Court’s ruling in State v. Williams (1997), which said “[t]he offense of domestic violence … arises out of the relationship of the parties rather than their exact living circumstances” and determined that the statute’s essential elements for two people to be considered cohabiting are “(1) sharing of familial or financial responsibilities and (2) consortium.” (The Williams court stated that consortium may include mutual respect, fidelity, affection, society, cooperation, solace, comfort, aid of each other, friendship, and conjugal relations.)

The Eighth District found that even though Robinson testified that McGlothan was her boyfriend and he had slept at her apartment for a year, there was no testimony that the couple shared any living expenses, such as rent and utilities, which would demonstrate shared familial or financial responsibilities. Given that, the appeals court reversed the conviction for domestic violence. The state appealed the decision to the Ohio Supreme Court.

Attorneys for the state argue that the Eighth District’s decision in this case is contrary to decisions in other Ohio appellate districts – specifically, the Second, Ninth, Tenth, and Eleventh District courts of appeals. The state’s attorneys contend that the Eighth District seems to have ruled that proof of cohabitation requires evidence of shared familial and financial responsibilities, which they argue is contrary to the holding in Williams.

In this case, both Robinson and McGlothan are unemployed and on disability. The state’s attorneys argue that whether a couple shares living expenses should be only one factor when determining whether a couple is cohabiting for analysis under the domestic violence law. They assert that some individuals may not share living expenses because one person may take care of all expenses or there may not be any financial responsibilities to share. Noting that the statute gives victims of domestic violence heightened protection, they contend: “The unwillingness, inability, or lack of necessity to financially share expenses with a partner should not preclude this heightened protection to domestic violence victims.” They conclude by asking the court to reverse the Eighth District’s decision in this case and to clarify that Williams allows the elements of cohabitation to be met without showing that a two people shared financial responsibility.

Attorneys for McGlothan contend that the Eighth District’s decision was not based only on the state’s failure to show that McGlothan and Robinson shared finances. They argue the appeals court also found that the prosecutor failed to establish the necessary cohabitation factors spelled out in Williams. They assert that those factors encompass more than just being boyfriend and girlfriend and the two spending every night at Robinson’s apartment. They also argue that the state provided no evidence that McGlothan had a key to the apartment or kept any personal belongings there.

Neither the Ohio General Assembly nor the Ohio Supreme Court intended for the domestic violence law to “transform all relationships into ‘domestic’ ones,” McGlothan’s attorneys also assert. They contend the case simply shows the prosecutor failed to obtain the evidence needed to prove its case for domestic violence, and they argue the Supreme Court should dismiss the case as improvidently allowed.

Representing State of Ohio: Mary McGrath, 216.443.7800

Representing Jeffrey McGlothan: Erika Cunliffe, 216.443.7580

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What Evidence Does the State Have to Present to Prove Prior Convictions in a Domestic Violence Case?

State of Ohio v. Timothy Tate, Case no. 2012-1861
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: When a defendant in a criminal trial stipulates to the authenticity of certified copies of prior domestic violence convictions, does that stipulation establish his identity as the person convicted in the earlier cases?

On an afternoon in July 2011, Yesolde Collins met her boyfriend, Timothy Tate, to give him the keys to their shared Cleveland apartment. They argued, and Tate repeatedly hit Collins. A friend called police, who arrested Tate.

Tate was charged with a misdemeanor count of domestic violence. The charge was changed to a felony based on previous convictions in two other domestic violence cases. Prior to the questioning of potential jurors (voir dire), Tate’s attorney stipulated (agreed) to the authenticity of copies of the prior convictions. The court, however, told jurors that they were not to consider the earlier convictions when determining whether Tate was guilty in the July incident.

During trial, a Cleveland police detective testified that the original misdemeanor charge was changed to felony domestic violence when the two prior domestic violence convictions were discovered. He stated that Collins was also the victim in those two cases. Collins testified that she and Tate lived together in Cleveland and, before moving to Cleveland, had also lived together in Columbus. The jury found Tate guilty, and the court sentenced him to two years in prison.

Tate appealed to the Eighth District Court of Appeals. While the court overturned his claim that his trial counsel was ineffective, it determined sua sponte (on its own, without Tate’s attorneys raising the issue) that the trial court made an error when it convicted Tate of a felony because the state didn’t prove beyond a reasonable doubt that Tate had two prior convictions for domestic violence. The appeals court, citing a 2008 Eighth District decision in State v. Macalla, ruled that the state must present both certified copies of the earlier convictions and evidence that the defendant named in the those convictions is the same one in the current case. The appeals court held that Tate’s trial counsel stipulated only to the authenticity of the prior convictions but not that Tate was the person convicted in the earlier cases, and the state didn’t establish the identity element. The appeals court ordered that the trial court reverse Tate’s felony conviction and sentence him based on a misdemeanor domestic violence conviction.

The state asked the Supreme Court to review the Eighth District’s decision, and the Supreme Court agreed to hear the appeal.

Attorneys for the state argue that when a defendant stipulates to prior convictions and doesn’t object to them being admitted into evidence, then the state no longer needs to offer any other evidence confirming that the identity of the person convicted earlier is the same person currently on trial. In State v. Gwen (2012), the state asserts that the Ohio Supreme Court ruled the state may meet its burden of proof simply by the defendant’s stipulation to previous convictions. A stipulation is direct evidence of an earlier conviction, the state contends, and relieves the prosecution of the obligation to prove identity.

The state’s attorneys add that the record in this case – including Tate’s attorney’s request that the jury be given a limiting instruction about Tate’s prior convictions, the attorney’s admission during voir dire that Tate had two previous convictions, and the evidence that the victim in the earlier convictions was Collins – also supports the conclusion that the Tate on trial was the same man convicted earlier.

Attorneys for Tate contend that Gwen only discusses the method for proving a previous conviction, but the statute governing proof of prior convictions also requires evidence to establish identity. They assert that the state is trying to change the character of the stipulation authenticating the documents to a total stipulation proving Tate’s identity. Tate’s attorneys add that the Cleveland police detective couldn’t prove identity in the earlier convictions because he had no personal knowledge of those cases.

Tate’s attorneys also argue that the limiting instruction to the jury was a trial tactic not evidence of identity, that comments during voir dire aren’t evidence, and that Collins testified only about the current case and didn’t identify Tate in any prior convictions. The state did not prove its case for elevating the crime from a misdemeanor to a felony, they conclude.

An amicus curiae (friend of the court) brief supporting Timothy Tate’s position has been submitted by Cuyahoga County Public Defender. On October 9, the Supreme Court granted the public defender’s motion to participate in oral arguments in this case, sharing the time allotted to Tate.

Copies of the amicus briefs and all other filings in the case can be accessed by going to the following link: http://www.supremecourt.ohio.gov/Clerk/ecms/searchbycasenumber.asp and entering the case number, 2012-1861, in the search box.

Representing the State of Ohio: Kristen Sobieski, 216.698.2226

Representing Timothy Tate: Christopher Fortunato, 216.228.1166

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Do Minors Have a Constitutional Right to Participate in a Visitation Hearing?

In re A.G., a minor child, Case no. 2012-2097
Sixth District Court of Appeals (Ottawa County)

ISSUE: When a court denies a minor the opportunity to participate in a trial in which he or she has a direct interest, is that denial a violation of the minor’s constitutional right to due process?

The parents of a minor, identified in this case by her initials, A.G., divorced in 2001, when A.G. was 5 years old. During the years leading up to and following the divorce, her parents battled over custody of their daughter. Each parent has at different times had custody of A.G., and both have taken her out of the country to avoid custody orders.

In September 2009, A.G.’s father sought unsupervised visitation with his then teenage daughter from the juvenile court. A.G. countered with a motion to end all visitations with her father. She also asked the court to allow her to attend and participate in the proceedings. The trial court denied both of A.G.’s requests and granted unsupervised visitation to the father. A.G.’s attorneys appealed the decision to the Sixth District Court of Appeals.

In their appeal, A.G.’s attorneys argued in part that the trial court’s denial of A.G.’s request to attend the hearing violated her due process rights under the U.S. and Ohio constitutions. The Sixth District determined that the Ohio Rules of Juvenile Procedure don’t apply to proceedings that determine parent-child relationships, including hearings about custody and visitation rights. Also, A.G. had an attorney present at the hearing, and she had recorded an interview to express her wishes to the court. Given these findings, the appeals court ruled that the trial court’s decision to not allow A.G. to be present at the hearing was not an error. Attorneys for the minor appealed the decision to the Ohio Supreme Court.

Attorneys for A.G. argue in their brief to the Supreme Court that if the juvenile rules don’t apply in this case, as the Sixth District ruled, then the court must rely on the Ohio Rules of Civil Procedure. They assert that the civil rules don’t specifically prohibit a child’s participation in a hearing and the rules apply to all persons, regardless of age.

If the juvenile rules do apply in this case, contrary to the Sixth District’s decision, then A.G.’s attorneys contend that the rules neither explicitly allow a child to participate nor prohibit a child from participating in a hearing in which he or she has a direct interest in the outcome.

A.G.’s attorneys assert that the trial court’s decision to keep A.G. from the hearing based on an exception in Juv.R. 1 for proceedings to determine a parent-child relationship directly contradicts the requirement in Juv.R. 27, which states that those who have a direct interest in a juvenile case may not be excluded from a hearing. They also contend that the father’s motion for unsupervised visitation was not a proceeding to determine the parent-child relationship.

A.G.’s attorneys suggest that the method courts use to determine whether a child is competent to testify as a witness in a trial could be similarly used to analyze whether courts should allow children to participate in juvenile court proceedings like this one. The Rules of Evidence state that a person is competent to be a witness if he or she is of sound mind and not under 10 years old.

Pointing to the language of the Fourteenth Amendment to the U.S. Constitution and the parallel due process section of the Ohio Constitution, A.G.’s attorneys assert that neither document makes a distinction about the age of the persons covered by its protections. Attorneys for A.G. conclude that A.G. was denied her due process rights by not being permitted to personally participate in the trial, and they add: “Absent a legitimate compelling public policy reason which outweighs the constitutional rights guaranteed to all persons, including those under the age of majority, these existing standards and practices which treat children differently than adult persons must be changed.”

Attorneys for A.G.’s father agree with the Sixth District that the Rules of Civil Procedure apply in this case. In Wilburn v. Wilburn (2006), the Ninth District Court of Appeals found that, based on civil rules, a child does not have to be a party in a divorce custody case and the appointment of a guardian ad litem also doesn’t make a child a party to a divorce custody case. Attorneys for A.G.’s father argue that the same reasoning should be applied in this case.

While the father’s attorneys state that A.G. clearly has an interest in the proceedings, they contend that she has been given every opportunity to be heard. They also assert that if a 2008 decision by the Tenth District Court of Appeals in Hanna v. Hanna were followed in this case, A.G. would have had no independent legal right separate from her parents, and none of her motions would have even been considered.

They contend that A.G. has a qualified right to testify, but minors don’t have an unqualified, constitutional right to be present during a domestic hearing. They conclude that the current law provides children whose parents are divorcing with both measures for protection and opportunities for participation.

A.G.’s mother did not file a brief in this case, so her attorneys will not be permitted to present an oral argument in this matter.

Representing A.G.: Howard Whitcomb, 419.734.2200

Representing A.G.’s father: Timothy Hallett, 419.335.5011

Representing A.G.’s mother: Richard Karcher, 419.255.1222

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.