[Cite as State v. Hayes, 2024-Ohio-5119.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellee : C.A. No. 29968 : v. : Trial Court Case No. 23-CRB-1525 : GARY HAYES : (Criminal Appeal from Municipal Court) : Appellant : :
...........
OPINION
Rendered on October 25, 2024
JEFFREY T. GRAMZA, Attorney for Appellant
KELLY COLLINS, Attorney for Appellee
.............
HUFFMAN, J.
{¶ 1} Defendant-Appellant Gary Hayes appeals from his conviction in the Dayton
Municipal Court for domestic violence. He argues that the trial court committed -2-
reversible error when it denied his Crim.R. 29 motion for acquittal. Because we conclude
that reasonable minds could have come to different conclusions as to whether the victim
was a household member of Hayes based on the trial testimony, we affirm the judgment
of the trial court.
I. Background Facts and Procedural History
{¶ 2} On May 6, 2023, Karen W. (“Karen”) called the police after hearing her
neighbor F.G. yelling, “Stop, let go of my hair!” Upon hearing the shouting, Karen peered
through their shared privacy fence and saw F.G. running away from and being pulled and
struck by Hayes. At around this same time, Karen’s son, Michael, who resided in an
adjacent upstairs apartment and was also neighbors with F.G., heard noise coming from
F.G.’s backyard while he was sitting on his second-floor deck.
{¶ 3} The police were dispatched to F.G.’s residence in response to Karen’s call.
After their arrival, Hayes was detained by the police in the backyard. Officer Zachary
Faltys spoke to F.G. and noticed that the left side of her face was red and her arms and
upper chest were scraped and bruised. Officer Faltys took F.G.’s statement and
photographs of her injuries.
{¶ 4} Following this incident, Hayes was arrested and charged with domestic
violence, assault, and aggravated menacing, all misdemeanors of the first degree. He
pleaded not guilty, and the matter proceeded to a jury trial.
{¶ 5} At trial, Karen testified that she had lived at her residence since 2010 and
had known F.G. for those years as a neighbor. Karen believed that Hayes was F.G.’s
“boyfriend” and had observed Hayes at the residence for approximately 13 years, mowing -3-
the lawn, going to the store with F.G., and visiting the neighbor across the street. Michael
also testified that, since 2018 when he moved into his apartment, he too had observed
Hayes coming to and from the residence, taking out the trash, mowing the grass, and
handling groceries.
{¶ 6} At the close of the State’s case in chief, Hayes moved for a judgment of
acquittal under Crim.R. 29 on the aggravated menacing charge, to which the State did
not object. Hayes also moved for acquittal on the domestic violence charge, arguing that
there was insufficient evidence to show that F.G. had been a household member with
Hayes. Hayes argued that, even if he was frequently at F.G.’s residence, no witness
testified with personal knowledge that he and F.G. had lived together “as a spouse or
household member.” The trial court granted Hayes’s motion for acquittal on the
aggravated menacing charge but denied his motion on the domestic violence charge,
finding that, viewing the evidence in a light most favorable to the State, reasonable minds
could come to different conclusions regarding F.G.’s household member status in relation
to Hayes.
{¶ 7} Hayes was found guilty of assault and domestic violence, but the charges
were merged and he was sentenced on the domestic violence charge. He appeals.
II. Assignment of Error
{¶ 8} Hayes asserts the following sole assignment of error:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
DENIED APPELLANT’S MOTION FOR RULE 29 ACQUITTAL ON THE
DOMESTIC VIOLENCE CHARGE. -4-
{¶ 9} Pursuant to Crim.R. 29(A), a court, on motion of a defendant or on its own
motion, “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.” Civ.R. 29(A). “Because a Crim.R. 29 motion tests
the sufficiency of the evidence presented at trial, rulings on Crim.R. 29 motions are
reviewed under the same standards that apply to a review for sufficiency of the evidence.”
State v. Kennard, 2022-Ohio-2055, ¶ 17 (2d Dist.), citing State v. Baker, 2010-Ohio-2633,
¶ 16 (2d Dist.); State v. Crabtree, 2019-Ohio-3686, ¶16 (2d Dist.), citing State v. Williams,
74 Ohio St.3d 569, 576 (1996).
{¶ 10} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to
the jury or sustain the verdict as a matter of law.” Kennard at ¶ 18, quoting State v. Wilson,
2009-Ohio-525, ¶ 10 (2d Dist.), citing State v. Thompkins, 78 Ohio St.3d 380 (1997).
“When reviewing a claim as to sufficiency of evidence, the relevant inquiry is whether any
rational factfinder viewing the evidence in a light most favorable to the state could have
found the essential elements of the crime proven beyond a reasonable doubt.” (Citations
omitted.) Id., quoting State v. Dennis, 79 Ohio St.3d 421, 430 (1997). “An appellate court
undertakes de novo review of the trial court’s decision on a Crim.R. 29(A) motion and will
not reverse the trial court’s judgment unless reasonable minds could only reach the
conclusion that the evidence failed to prove all the elements of the crime beyond a
reasonable doubt.” State v. Sparks, 2011-Ohio-3868, ¶ 32 (2d Dist.), citing State v.
Turner, 2002 WL 10491 (2d Dist. Jan. 4, 2002). -5-
{¶ 11} R.C. 2919.25 proscribes domestic violence and provides that “(A) No
person shall knowingly cause or attempt to cause physical harm to a family or household
member.” A “family or household member” includes “a person living as a spouse,” which
is defined 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)(1)(a)(i) and (2). Cohabitation includes “(1) sharing
of familial or financial responsibilities and (2) consortium.” State v. Williams, 79 Ohio St.
3d 459, 465 (1997), citing R.C. 2919.25(E)(2) and related statutes. “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.” Id. The weight to be given
to each of these factors is decided by the trier of fact. Id.
{¶ 12} In this case, the jury found Hayes guilty of domestic violence in violation of
R.C. 2919.25(A). Domestic violence is committed when a person “knowingly cause[s] . . .
physical harm to a family or household member.” R.C. 2919.25(A). Hayes argues that the
trial court erred by denying his motion for acquittal on the domestic violence charge,
contending that the State did not present sufficient evidence that F.G. was a “family or
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[Cite as State v. Hayes, 2024-Ohio-5119.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellee : C.A. No. 29968 : v. : Trial Court Case No. 23-CRB-1525 : GARY HAYES : (Criminal Appeal from Municipal Court) : Appellant : :
...........
OPINION
Rendered on October 25, 2024
JEFFREY T. GRAMZA, Attorney for Appellant
KELLY COLLINS, Attorney for Appellee
.............
HUFFMAN, J.
{¶ 1} Defendant-Appellant Gary Hayes appeals from his conviction in the Dayton
Municipal Court for domestic violence. He argues that the trial court committed -2-
reversible error when it denied his Crim.R. 29 motion for acquittal. Because we conclude
that reasonable minds could have come to different conclusions as to whether the victim
was a household member of Hayes based on the trial testimony, we affirm the judgment
of the trial court.
I. Background Facts and Procedural History
{¶ 2} On May 6, 2023, Karen W. (“Karen”) called the police after hearing her
neighbor F.G. yelling, “Stop, let go of my hair!” Upon hearing the shouting, Karen peered
through their shared privacy fence and saw F.G. running away from and being pulled and
struck by Hayes. At around this same time, Karen’s son, Michael, who resided in an
adjacent upstairs apartment and was also neighbors with F.G., heard noise coming from
F.G.’s backyard while he was sitting on his second-floor deck.
{¶ 3} The police were dispatched to F.G.’s residence in response to Karen’s call.
After their arrival, Hayes was detained by the police in the backyard. Officer Zachary
Faltys spoke to F.G. and noticed that the left side of her face was red and her arms and
upper chest were scraped and bruised. Officer Faltys took F.G.’s statement and
photographs of her injuries.
{¶ 4} Following this incident, Hayes was arrested and charged with domestic
violence, assault, and aggravated menacing, all misdemeanors of the first degree. He
pleaded not guilty, and the matter proceeded to a jury trial.
{¶ 5} At trial, Karen testified that she had lived at her residence since 2010 and
had known F.G. for those years as a neighbor. Karen believed that Hayes was F.G.’s
“boyfriend” and had observed Hayes at the residence for approximately 13 years, mowing -3-
the lawn, going to the store with F.G., and visiting the neighbor across the street. Michael
also testified that, since 2018 when he moved into his apartment, he too had observed
Hayes coming to and from the residence, taking out the trash, mowing the grass, and
handling groceries.
{¶ 6} At the close of the State’s case in chief, Hayes moved for a judgment of
acquittal under Crim.R. 29 on the aggravated menacing charge, to which the State did
not object. Hayes also moved for acquittal on the domestic violence charge, arguing that
there was insufficient evidence to show that F.G. had been a household member with
Hayes. Hayes argued that, even if he was frequently at F.G.’s residence, no witness
testified with personal knowledge that he and F.G. had lived together “as a spouse or
household member.” The trial court granted Hayes’s motion for acquittal on the
aggravated menacing charge but denied his motion on the domestic violence charge,
finding that, viewing the evidence in a light most favorable to the State, reasonable minds
could come to different conclusions regarding F.G.’s household member status in relation
to Hayes.
{¶ 7} Hayes was found guilty of assault and domestic violence, but the charges
were merged and he was sentenced on the domestic violence charge. He appeals.
II. Assignment of Error
{¶ 8} Hayes asserts the following sole assignment of error:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
DENIED APPELLANT’S MOTION FOR RULE 29 ACQUITTAL ON THE
DOMESTIC VIOLENCE CHARGE. -4-
{¶ 9} Pursuant to Crim.R. 29(A), a court, on motion of a defendant or on its own
motion, “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.” Civ.R. 29(A). “Because a Crim.R. 29 motion tests
the sufficiency of the evidence presented at trial, rulings on Crim.R. 29 motions are
reviewed under the same standards that apply to a review for sufficiency of the evidence.”
State v. Kennard, 2022-Ohio-2055, ¶ 17 (2d Dist.), citing State v. Baker, 2010-Ohio-2633,
¶ 16 (2d Dist.); State v. Crabtree, 2019-Ohio-3686, ¶16 (2d Dist.), citing State v. Williams,
74 Ohio St.3d 569, 576 (1996).
{¶ 10} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to
the jury or sustain the verdict as a matter of law.” Kennard at ¶ 18, quoting State v. Wilson,
2009-Ohio-525, ¶ 10 (2d Dist.), citing State v. Thompkins, 78 Ohio St.3d 380 (1997).
“When reviewing a claim as to sufficiency of evidence, the relevant inquiry is whether any
rational factfinder viewing the evidence in a light most favorable to the state could have
found the essential elements of the crime proven beyond a reasonable doubt.” (Citations
omitted.) Id., quoting State v. Dennis, 79 Ohio St.3d 421, 430 (1997). “An appellate court
undertakes de novo review of the trial court’s decision on a Crim.R. 29(A) motion and will
not reverse the trial court’s judgment unless reasonable minds could only reach the
conclusion that the evidence failed to prove all the elements of the crime beyond a
reasonable doubt.” State v. Sparks, 2011-Ohio-3868, ¶ 32 (2d Dist.), citing State v.
Turner, 2002 WL 10491 (2d Dist. Jan. 4, 2002). -5-
{¶ 11} R.C. 2919.25 proscribes domestic violence and provides that “(A) No
person shall knowingly cause or attempt to cause physical harm to a family or household
member.” A “family or household member” includes “a person living as a spouse,” which
is defined 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)(1)(a)(i) and (2). Cohabitation includes “(1) sharing
of familial or financial responsibilities and (2) consortium.” State v. Williams, 79 Ohio St.
3d 459, 465 (1997), citing R.C. 2919.25(E)(2) and related statutes. “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.” Id. The weight to be given
to each of these factors is decided by the trier of fact. Id.
{¶ 12} In this case, the jury found Hayes guilty of domestic violence in violation of
R.C. 2919.25(A). Domestic violence is committed when a person “knowingly cause[s] . . .
physical harm to a family or household member.” R.C. 2919.25(A). Hayes argues that the
trial court erred by denying his motion for acquittal on the domestic violence charge,
contending that the State did not present sufficient evidence that F.G. was a “family or
household member” of Hayes. According to Hayes, there was no testimony by any
witness with personal knowledge that F.G. and Hayes had lived together.
{¶ 13} At trial, Karen testified that F.G. and Hayes had resided at the shared -6-
residence for at least 13 years. Both Karen and Michael, who lived next door to F.G., had
observed Hayes mowing the lawn, taking out the trash, handling groceries, and visiting
other neighbors over that period of time. Under these circumstances, Karen and Michael
concluded that F.G. and Hayes were cohabitating, as they shared familial responsibilities
by mutually contributing to household chores and purchasing groceries. Based on their
cohabitation and habits, Karen also believed that Hayes was F.G.’s “boyfriend.”
{¶ 14} Considering the evidence in a light most favorable to the State, there was
sufficient evidence that F.G. and Hayes had resided together, given the number of years
that they had shared the residence, their mutual household responsibilities, and their
apparent consortium. Thus, although reasonable minds might have reached different
conclusions regarding whether F.G. was a household member of Hayes, we cannot
conclude that the trial court erred in denying Hayes’s Crim.R. 29 motion.
{¶ 15} Hayes’s assignment of error is overruled.
III. Conclusion
{¶ 16} Having overruled Hayes’s sole assignment of error, the judgment of the trial
court is affirmed.
TUCKER, J. and LEWIS, J., concur.