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State of Ohio v. Carlos Francisco Gomez

October 26, 2011

STATE OF OHIO APPELLEE/CROSS-APPELLANT
v.
CARLOS FRANCISCO GOMEZ APPELLANT/CROSS-APPELLEE



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2009 07 2145

The opinion of the court was delivered by: Carr, Judge.

ss:

DECISION AND JOURNAL ENTRY

{¶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 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, 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), 61 Ohio St.3d 259, 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), 78 Ohio St.3d 380, 390 (Cook, J., concurring).

{¶8} Gomez was convicted of domestic violence in violation of R.C. 2919.25(A)*fn1 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.*fn2 "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."

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, 2009-Ohio-3363, at ΒΆ11, quoting State v. Williams (1997), 79 Ohio St.3d 459, 465. 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." Id. The factors which might demonstrate consortium include "mutual respect, fidelity, affection, society, cooperation, solace, comfort, aid of each other, friendship, and conjugal relations." Id. The Supreme ...


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