[Cite as State v. Fernandez, 2012-Ohio-2538.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellate Case No. 24814 Plaintiff-Appellee : : Trial Court Case No. 11-CRB-7487 v. : : JAYSON FERNANDEZ : (Criminal Appeal from : (Dayton Municipal Court) Defendant-Appellant : : ...........
OPINION
Rendered on the 8th day of June, 2012.
...........
STEPHANIE COOK, Atty. Reg. #0067101, 335 West Third Street, Room 372, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee
MICHAEL H. HOLZ, Atty. Reg. #0031902, 507 Wilmington Avenue, Dayton, Ohio 45420 Attorney for Defendant-Appellant
JAYSON FERNANDEZ, 255 North Main Street, #33, Dayton, Ohio 45402 Defendant-Appellant, pro se
.............
HALL, J.
{¶ 1} On July 17, 2011, Jason Fernandez was charged with having committed two 2
first-degree misdemeanors, assault and domestic violence, on July 16, 2011. (Dkt. # 4)
{¶ 2} A bench trial was conducted on July 26, 2011. The complaining witness
testified that on July 16, 2011, the defendant hit her leg with his cane. (T. 9). It caused an
open wound and a bruise. (T. 10). She identified a photo of her injury. (T. 11). She testified
that she and the defendant had an on-again off-again relationship for 11 years. (T. 4). They had
gotten back together about four months before the incident. (T. 4) She considered him her
fiancee. (Id.) They slept in the same bed. (T. 6). When the police arrived, the defendant was
sleeping in the bed. (T. 18). Although he also was staying at a shelter, (T. 13), he received mail
at her apartment. (Id.). At the time of the incident, he had been staying there every night for
about a week. (T. 14). She testified that “he came home drunk.” (Emphasis added). (T. 8). He
had at least some clothing there. (T. 19). At the conclusion of the trial, the court found the
defendant guilty of domestic violence and assault. A pre-sentence investigation was ordered.
{¶ 3} On August 9, 2011, the court sentenced the defendant to 180 days in jail with
credit for 25 days served and suspended 155 days. He was ordered to complete one year of
intensive probation supervision with various conditions. The defendant appealed.
{¶ 4} Appointed appellate counsel filed a motion to withdraw pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that the appeal was
frivolous. Counsel also filed an Anders brief that raises three potential issues: (1) there could
be ineffective assistance of counsel because of counsel’s failure to make a Crim.R. 29 motion
for judgment of acquittal based on insufficient evidence to prove a familial relationship
between the complaining witness and the defendant, (2) the trial court’s decision could be
against the manifest weight of the evidence, and (3) there could be a question whether the 3
domestic violence and assault charges should have been merged. This Court notified
Fernandez of appellate counsel’s conclusion that the appeal was without merit and gave
Fernandez a period of time in which to file a pro-se brief assigning errors for our review.
Fernandez did not file a brief.
{¶ 5} In reviewing a claim of insufficient evidence, “[t]he relevant inquiry is
whether, after reviewing 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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus. The domestic violence statute states that “[n]o person shall knowingly cause or
attempt to cause physical harm to a family or household member.” R.C. 2919.25(A). A
“family or household member” includes one “who is residing or has resided with the offender”
and is “[a] spouse, a person living as a spouse, or a former spouse of the offender.” R.C.
2919.25(F)(1)(a)(I). A “[p]erson living as a spouse” means “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). In State v.
Williams, 79 Ohio St.3d 459, 683 N.E.2d 1126 (1997), after surveying the various case law
permutations of a “person living as a spouse,” the Supreme Court stated “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, 4
solace, comfort, aid of each other, friendship, and conjugal relations. These 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.” (Citations omitted.) Id. at 465. We believe the
evidence presented was sufficient for the trial court, as finder of fact, to conclude that the
defendant was a family or household member as defined by R.C. 2919.25, and an assertion to
the contrary does not have arguable merit.
{¶ 6} Likewise, the potential contention that the trial court’s decision is against the
manifest weight of the evidence would also fail. “[A] weight of the evidence argument
challenges the believability of the evidence and asks which of the competing inferences
suggested by the evidence is more believable or persuasive.” State v. Wilson, 2d Dist.
Montgomery No. 22581, 2009–Ohio–525, ¶ 12. The appellate court must review the entire
record, weigh the evidence and all reasonable inferences, consider witness credibility, and
determine whether 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.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), citing State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). We believe it was not against the manifest
weight of the evidence for the trial court to conclude that the defendant was guilty of the
offense of domestic violence, and an assertion to the contrary does not have arguable merit.
{¶ 7} Counsel’s third potential assignment of error raises a question of whether the
offenses of domestic violence and assault should have been merged. Although the trial court
found the defendant guilty of both offenses, (T. 23), he was sentenced only on the domestic
violence charge. (T. 24-25) (Entry and Order filed Aug. 9, 2011, Doc. 17). This Court 5
previously has held, with respect to a defendant found guilty of both domestic violence and
assault, that “[a] conviction for purposes of the allied offenses statute—R.C.
2941.25(A)—includes both an adjudication of guilt and a sentence; an adjudication of guilt
without a sentence is not a ‘conviction’ for purposes of the statute.” State v.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Fernandez, 2012-Ohio-2538.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellate Case No. 24814 Plaintiff-Appellee : : Trial Court Case No. 11-CRB-7487 v. : : JAYSON FERNANDEZ : (Criminal Appeal from : (Dayton Municipal Court) Defendant-Appellant : : ...........
OPINION
Rendered on the 8th day of June, 2012.
...........
STEPHANIE COOK, Atty. Reg. #0067101, 335 West Third Street, Room 372, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee
MICHAEL H. HOLZ, Atty. Reg. #0031902, 507 Wilmington Avenue, Dayton, Ohio 45420 Attorney for Defendant-Appellant
JAYSON FERNANDEZ, 255 North Main Street, #33, Dayton, Ohio 45402 Defendant-Appellant, pro se
.............
HALL, J.
{¶ 1} On July 17, 2011, Jason Fernandez was charged with having committed two 2
first-degree misdemeanors, assault and domestic violence, on July 16, 2011. (Dkt. # 4)
{¶ 2} A bench trial was conducted on July 26, 2011. The complaining witness
testified that on July 16, 2011, the defendant hit her leg with his cane. (T. 9). It caused an
open wound and a bruise. (T. 10). She identified a photo of her injury. (T. 11). She testified
that she and the defendant had an on-again off-again relationship for 11 years. (T. 4). They had
gotten back together about four months before the incident. (T. 4) She considered him her
fiancee. (Id.) They slept in the same bed. (T. 6). When the police arrived, the defendant was
sleeping in the bed. (T. 18). Although he also was staying at a shelter, (T. 13), he received mail
at her apartment. (Id.). At the time of the incident, he had been staying there every night for
about a week. (T. 14). She testified that “he came home drunk.” (Emphasis added). (T. 8). He
had at least some clothing there. (T. 19). At the conclusion of the trial, the court found the
defendant guilty of domestic violence and assault. A pre-sentence investigation was ordered.
{¶ 3} On August 9, 2011, the court sentenced the defendant to 180 days in jail with
credit for 25 days served and suspended 155 days. He was ordered to complete one year of
intensive probation supervision with various conditions. The defendant appealed.
{¶ 4} Appointed appellate counsel filed a motion to withdraw pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that the appeal was
frivolous. Counsel also filed an Anders brief that raises three potential issues: (1) there could
be ineffective assistance of counsel because of counsel’s failure to make a Crim.R. 29 motion
for judgment of acquittal based on insufficient evidence to prove a familial relationship
between the complaining witness and the defendant, (2) the trial court’s decision could be
against the manifest weight of the evidence, and (3) there could be a question whether the 3
domestic violence and assault charges should have been merged. This Court notified
Fernandez of appellate counsel’s conclusion that the appeal was without merit and gave
Fernandez a period of time in which to file a pro-se brief assigning errors for our review.
Fernandez did not file a brief.
{¶ 5} In reviewing a claim of insufficient evidence, “[t]he relevant inquiry is
whether, after reviewing 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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus. The domestic violence statute states that “[n]o person shall knowingly cause or
attempt to cause physical harm to a family or household member.” R.C. 2919.25(A). A
“family or household member” includes one “who is residing or has resided with the offender”
and is “[a] spouse, a person living as a spouse, or a former spouse of the offender.” R.C.
2919.25(F)(1)(a)(I). A “[p]erson living as a spouse” means “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). In State v.
Williams, 79 Ohio St.3d 459, 683 N.E.2d 1126 (1997), after surveying the various case law
permutations of a “person living as a spouse,” the Supreme Court stated “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, 4
solace, comfort, aid of each other, friendship, and conjugal relations. These 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.” (Citations omitted.) Id. at 465. We believe the
evidence presented was sufficient for the trial court, as finder of fact, to conclude that the
defendant was a family or household member as defined by R.C. 2919.25, and an assertion to
the contrary does not have arguable merit.
{¶ 6} Likewise, the potential contention that the trial court’s decision is against the
manifest weight of the evidence would also fail. “[A] weight of the evidence argument
challenges the believability of the evidence and asks which of the competing inferences
suggested by the evidence is more believable or persuasive.” State v. Wilson, 2d Dist.
Montgomery No. 22581, 2009–Ohio–525, ¶ 12. The appellate court must review the entire
record, weigh the evidence and all reasonable inferences, consider witness credibility, and
determine whether 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.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), citing State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). We believe it was not against the manifest
weight of the evidence for the trial court to conclude that the defendant was guilty of the
offense of domestic violence, and an assertion to the contrary does not have arguable merit.
{¶ 7} Counsel’s third potential assignment of error raises a question of whether the
offenses of domestic violence and assault should have been merged. Although the trial court
found the defendant guilty of both offenses, (T. 23), he was sentenced only on the domestic
violence charge. (T. 24-25) (Entry and Order filed Aug. 9, 2011, Doc. 17). This Court 5
previously has held, with respect to a defendant found guilty of both domestic violence and
assault, that “[a] conviction for purposes of the allied offenses statute—R.C.
2941.25(A)—includes both an adjudication of guilt and a sentence; an adjudication of guilt
without a sentence is not a ‘conviction’ for purposes of the statute.” State v. Tilton, 2d Dist.
Montgomery No. 24527, 2011-Ohio-5564, ¶ 22. Because the record definitively demonstrates
that Fernandez was not sentenced on the assault charge, an argument that the offenses should
have been merged has no merit.
{¶ 8} Pursuant to Anders, we also are required to conduct a full examination of all
proceedings and to appoint new counsel to assist Fernandez if we find any non-frivolous issue
for review. Anders, 386 U.S. at 744; see also Penson v. Ohio, 488 U.S. 75, 76, 109 S.Ct. 346,
102 L.Ed.2d 300 (1988). Having thoroughly reviewed the record, we do not find any
non-frivolous issue.
{¶ 9} The record fails to portray any issue with arguable merit. As a result, the trial
court’s judgment is affirmed.
FAIN and FROELICH, JJ., concur.
Copies mailed to:
Stephanie Cook Michael H. Holz Jayson Fernandez Hon. John S. Pickrel