Paul Pfeifer
By Paul Pfeifer

In February 2011, a grand jury indicted Jeffrey McGlothan of felonious assault, with a repeat-violent-offender specification, and one count of domestic violence as a result of an incident at the apartment he shared with his girlfriend, Cynthia Robinson. The domestic violence count alleged that McGlothan knowingly caused or attempted to cause physical harm to Cynthia, “a family or household member.”

The charge was worded that way because Ohio’s domestic violence law says, in part, “No person shall knowingly cause or attempt to cause physical harm to a family or household member.” The law further includes in the definition of “family or household member” anyone who is residing or has resided with the offender, including a spouse, a person living as spouse, or a former spouse of the offender.

Cynthia testified that at the time of the incident, McGlothan was her boyfriend and had lived with her for “about a year.” She further explained that McGlothan slept overnight at her apartment every night, and that he had helped hang things on the wall when he moved in.

Cynthia testified that one evening in January 2011, she let McGlothan inside the apartment and confronted him about where he had been earlier that day. They began arguing, and McGlothan pushed Cynthia and grabbed her by the shirt. As a result, he detached a permanent tracheostomy tube, which enabled her to breathe.

McGlothan helped Cynthia call 9-1-1, and emergency room physicians were able to reinsert the tube without surgery. Cynthia’s medical records contained her statement that “her boyfriend purposely pulled her trach out.”

The court found McGlothan not guilty of felonious assault, but guilty of attempted felonious assault and domestic violence, and sentenced him to prison for two years.

On appeal, the court of appeals held that the state had failed to present sufficient evidence to support McGlothan’s conviction for domestic violence. The court reached that conclusion based on its analysis of a decision by our court – the Ohio Supreme Court – from a 1997 case called State v. Williams, in which we explained the term “cohabitation.”

The court of appeals concluded that although Cynthia “testified that McGlothan was her boyfriend and he had slept over at her apartment for roughly a year, there was not testimony that the couple shared any living expenses, such as rent and utilities, which would demonstrate shared familial or financial responsibilities.” 

When the case came before us, the state asserted that by requiring evidence of shared living expenses to demonstrate shared familial or financial responsibilities, the court of appeals elevated one of the factors set forth in Williams to an essential element of cohabitation. The state argued that shared living expenses is merely one factor that a court may consider in a cohabitation analysis.

We were called upon to clarify our opinion in the Williams case regarding the evidence necessary to establish cohabitation as it applies to the domestic violence laws.

In writing our majority opinion, Justice Terrence O’Donnell stated that “the court of appeals misread our decision in Williams as supporting the proposition that evidence of shared living expenses is necessary to establish cohabitation.”

The facts in Williams were different than McGlothan’s case. In Williams, the victim testified that she and the defendant “were going together” but did not live together. The victim’s testimony that for a few months she stayed more nights at Williams’s place than at her own further illustrated that each had a separate residence.

Thus, in order to prove cohabitation when the victim and the defendant do not share the same residence, evidence of shared familial or financial responsibilities is required.

After considering the Ohio legislature’s intent in enacting the domestic violence laws, we declined to “adopt a narrow definition of ‘reside’ which would limit ‘family or household members’ to those who actually share one residential address.”

In Williams, then, by determining that the offense of domestic violence “arises out of the relationship of the parties rather than their exact living circumstances,” we interpreted the law broadly to include those who did not live with the offender but who also deserved protection under the law based on their relationship with the offender.

In contrast to Williams, Cynthia testified that McGlothan was her boyfriend and that they had lived together in her apartment for about a year, thus establishing that they did share one residence.

Because the state demonstrated that McGlothan was the victim’s boyfriend and that they had lived together for a year, the state had no obligation to demonstrate the sharing of familial or financial responsibilities to prove cohabitation in this case.

Based on Cynthia’s testimony, the trial court could have reasonably determined that the state established cohabitation, and thus Cynthia was a person living as a spouse with McGlothan. Because the evidence also demonstrated that Cynthia resided with McGlothan at the time of the incident, the trial court could have concluded that Cynthia was a family or household member.

The legislature “recognized the special nature of domestic violence when it drafted the domestic violence” laws and “believed that an assault involving a family or household member deserves further protection than an assault on a stranger.” The legislature wanted to “protect persons from violence by close family members or residents of the same household” and “to offer protections to a wide class of persons.”

In this regard, we recognized that Cynthia and McGlothan were not strangers. They lived together and were in a relationship from which domestic violence arose. Considering the legislature’s intent, we determined that Cynthia was a person living as a spouse and therefore, McGlothan’s crime falls within the purview of the domestic violence laws.

Accordingly, we concluded that the state established that Cynthia was a family or household member because her testimony demonstrated that she was a person living as a spouse who resided with McGlothan at the time of the incident. Therefore – by a four-to-three vote – we reversed the judgment of the court of appeals and reinstated the judgment of the trial court finding McGlothan guilty of domestic violence.