[Cite as State v. Yantis, 2023-Ohio-3820.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellee : C.A. No. 29738 : v. : Trial Court Case No. 22CRB01391 : ALEXANDER S. YANTIS : (Criminal Appeal from Municipal Court) : Appellant : :
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OPINION
Rendered on October 20, 2023
L. PATRICK MULLIGAN and FRANK MATTHEW BATZ, Attorneys for Appellant
JOHN D. EVERETT, Attorney for Appellee
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WELBAUM, P.J.
{¶ 1} Appellant, Alexander S. Yantis, appeals from his conviction for domestic
violence by threats in violation of R.C. 2919.25(C) following a bench trial in the Kettering
Municipal Court. In support of his appeal, Yantis claims that his conviction was not
supported by sufficient evidence and was against the manifest weight of the evidence. -2-
Yantis also claims that the trial court erroneously determined that domestic violence by
threats under section (C) of R.C. 2919.25 is a lesser included offense of domestic violence
under section (A) of R.C. 2919.25. For the reasons outlined below, we disagree with all
of Yantis’s claims and will affirm the judgment of the trial court.
Facts and Course of Proceedings
{¶ 2} On November 2, 2022, Yantis was charged by complaint with two counts of
domestic violence in violation of R.C. 2919.25(A) and one count of endangering children
in violation of R.C. 2919.22(A). The charges stemmed from an altercation between
Yantis and his wife while they were at their residence with their two-year-old daughter.
Yantis pled not guilty to all the charges, and the matter proceeded to a bench trial.
{¶ 3} At trial, the State presented Yantis’s wife, who testified that on November 1,
2022, she and Yantis were at their residence in Kettering, Montgomery County, Ohio,
when she observed an e-mail and Facebook friend notification on Yantis’s cell phone.
Upon seeing the email and notification, Yantis’s wife accused Yantis of cheating on her.
Yantis’s wife testified that Yantis, who had been pushing their daughter in a swing in the
living room, became upset over her cheating accusation and pushed the swing too hard,
causing their daughter to hit the ceiling. Yantis’s wife testified that their daughter began
screaming as a result of the incident but had no visible injuries. Yantis’s wife also
confirmed that no injuries were found by medical experts when she took their daughter to
the hospital the following day.
{¶ 4} Immediately after the swing incident, Yantis’s wife took their daughter to her -3-
and Yantis’s bedroom. During that time, Yantis’s wife recalled Yantis telling her to leave
the house by yelling “get the fuck out.” Trial Tr., p. 12. When Yantis’s wife refused to
leave the house, Yantis left instead, slamming the door as he exited. Yantis’s wife
testified that Yantis returned to the house a few minutes later and then threw his wedding
ring across the bedroom where she was nursing their daughter. Yantis’s wife also
recalled Yantis throwing his cell phone at the bedroom wall. In addition, Yantis’s wife
testified that Yantis continued yelling for her to “get the fuck out.” Trial Tr., p. 13.
{¶ 5} Yantis’s wife testified that after she continually refused to leave the house,
Yantis eventually said that he was going to leave. Yantis’s wife testified that, when
Yantis said this, she went over to where Yantis was standing in the hallway and got in
front of him without touching him in an attempt to calm him down. Yantis’s wife testified
that when she did this, Yantis pushed her away. Yantis’s wife also testified that Yantis
punched a hole in their daughter’s bedroom door and that Yantis pushed her against the
hallway cabinet, put his hands around her throat, and said: “Here bitch, is this what you
wanted?” Trial Tr., p. 13-14. Yantis’s wife testified that she had no bruising as a result
of the incident but that her throat hurt for a few hours afterward. When asked on cross-
examination if she thought Yantis intended to cause her harm, Yantis’s wife testified: “I
do believe he did.” Trial Tr., p. 35. The testimony of Yantis’s wife regarding the incident
with Yantis was consistent with what she reported to the police, which was video recorded
and admitted into evidence as State’s Exhibit F.
{¶ 6} Yantis’s 13-year-old stepson, the biological son of his wife, testified that he
was upstairs in his room playing video games on his computer while Yantis and his mother -4-
were arguing. The boy testified that he heard Yantis screaming at his mother to “get the
fuck out.” Trial Tr., p. 43. The boy also testified that Yantis left the house for two or
three minutes and then returned. When Yantis returned, the boy heard Yantis screaming
at his mother some more and a banging noise near the hallway and kitchen area. The
boy testified that he stayed upstairs during the entire incident because he did not want to
get involved. However, he testified that he eventually came downstairs after Yantis was
gone and after he heard his mother and baby sister crying.
{¶ 7} Yantis testified in his defense and did not dispute that he and his wife got into
an argument over his wife’s cheating accusation. Yantis also did not dispute pushing
their daughter’s swing too hard during the argument. Yantis, however, claimed that the
back of the swing, not their daughter, hit the ceiling, and that he was unaware of how high
he had pushed the swing.
{¶ 8} Yantis also testified that he was upset with his wife and admitted to telling his
wife to “get the fuck out of the house.” Trial Tr., p. 67. Yantis admitted to throwing his
wedding ring but could not recall whether he threw his cell phone. Yantis testified that
when his wife refused to leave the house, he told her that he was going to stay with his
parents. Yantis claimed that his wife thereafter tried to stop him from leaving the house
and that he put his arm on his wife to move her aside. Yantis also admitted to punching
a hole in his daughter’s bedroom door while he was trying to leave. Yantis, however,
denied putting his hands around his wife’s throat and testified that he never intended to
cause his wife physical harm.
{¶ 9} After considering the foregoing testimony, the trial court found Yantis guilty -5-
of one count of domestic violence. When announcing its verdict, the trial court stated
that it found Yantis guilty of “the lesser included offense of Domestic Violence via
threats[,]” which is codified under R.C. 2919.25(C). Trial Tr., p. 76-77. Yantis did not
object to the trial court’s verdict.
{¶ 10} After the trial court announced its verdict, Yantis’s case proceeded
immediately to sentencing. The trial court sentenced Yantis to 30 days in jail, with 20
days suspended and one day of jail-time credit. The trial court also imposed a $250 fine
with $150 suspended. During the sentencing hearing, Yantis admitted that, by virtue of
his guilty verdict, he had violated his probation in a prior case, i.e., Kettering Municipal
Court Case No. 20CRB00331. In light of that probation violation, the trial court revoked
Yantis’s probation, terminated Case No. 20CRB00331, and ordered Yantis to serve five
years of supervised probation in the instant case.
{¶ 11} Yantis now appeals from his conviction for domestic violence by threats. In
his appellate brief, Yantis raised three assignments of error challenging the sufficiency
and manifest weight of the evidence. In a supplemental brief, Yantis also raised a fourth
assignment of error challenging his conviction on grounds that the trial court erroneously
determined that domestic violence by threats under section (C) of R.C. 2919.25 is a lesser
included offense of domestic violence under section (A) of R.C. 2919.25. Because they
are interrelated, we will address Yantis’s first three assignments of error together.
First, Second, and Third Assignments of Error
{¶ 12} Under his first, second, and third assignments of error, Yantis contends that -6-
his conviction for domestic violence by threats under R.C. 2919.25(C) was not supported
by sufficient evidence and was against the manifest weight of the evidence. We
disagree.
Sufficiency of the Evidence
{¶ 13} “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.” State v. Wilson, 2d Dist. Montgomery
No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 678
N.E.2d 541 (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.) State v. Dennis, 79 Ohio St.3d 421, 430, 683
N.E.2d 1096 (1997). “The verdict will not be disturbed unless the appellate court finds
that reasonable minds could not reach the conclusion reached by the trier-of-fact.”
(Citations omitted.) Id.
{¶ 14} As previously discussed, Yantis was convicted of domestic violence by
threats in violation of R.C. 2919.25(C), which provides that: “No person, by threat of force,
shall knowingly cause a family or household member to believe that the offender will
cause imminent physical harm to the family or household member.” Pursuant to R.C.
2901.22(B), “[a] person acts knowingly, regardless of purpose, when the person is aware -7-
that the person’s conduct will probably cause a certain result or will probably be of a
certain nature.” Pursuant to R.C. 2919.25(F)(1)(a)(i), a “family or household member”
includes a spouse who resides with the offender.
{¶ 15} “The victim’s state of mind is an essential element of domestic violence
under R.C. 2919.25(C).” State v. South, 2d Dist. Champaign No. 2017-CA-34, 2018-
Ohio-4146, ¶ 13, citing State v. Fisher, 197 Ohio App.3d 591, 2011-Ohio-5965, 968
N.E.2d 510, ¶ 16 (2d Dist.). “ ‘[T]here must be some evidence either that a victim stated,
or that from other evidence it could be inferred, that the victim thought that the accused
would cause imminent physical harm.’ ” Id., quoting Hamilton v. Cameron, 121 Ohio
App.3d 445, 449, 700 N.E.2d 336 (12th Dist.1997). “ ‘Imminent’ has been defined by
Ohio courts as near at hand or impending.” (Citation omitted.) Fisher at ¶ 17. “It has
also been defined as requiring the belief of the victim that harm would occur immediately
or, in the alternative, that the defendant will cause immediate physical harm.” Id.
{¶ 16} In this case, both Yantis and his wife testified that they were married and
living together at the time of the altercation in question; accordingly, there is no dispute
that the evidence established that Yantis’s wife was a family or household member. At
trial, Yantis’s wife testified that, during her argument with Yantis, Yantis pushed her out
of the way when she approached him to calm him down and punched a hole in their
daughter’s bedroom door. She also testified that Yantis pushed her against the hallway
cabinet, put his hands around her throat, and said: “Here bitch, is this what you wanted?”
Trial Tr., p. 13-14. Yantis’s wife further testified that her throat hurt for a few hours after
the incident. When asked if she thought Yantis intended to cause her harm, Yantis’s -8-
wife testified: “I do believe he did.” Trial Tr., p. 35.
{¶ 17} Given the nature of Yantis’s conduct as testified to by his wife, and given
that his wife specifically testified that she believed Yantis intended to cause her harm, we
find that a rational factfinder could have concluded that Yantis knowingly caused his wife
to believe that he would cause her imminent physical harm. The testimony of Yantis’s
wife indicating that Yantis had placed his hands around her throat and said: “Here bitch,
is this what you wanted?” sufficiently indicated that the physical harm she feared was
imminent. This was especially true since Yantis’s wife testified that her throat hurt for a
few hours after the incident, as this supported the notion that Yantis had applied enough
pressure on her throat to put her in fear of imminent physical harm. Therefore, when
viewing the testimony of Yantis’s wife in a light most favorable to the State, we find that a
rational factfinder could have found the essential elements of domestic violence by threats
proven beyond a reasonable doubt. Accordingly, Yantis’s claim that his conviction was
not supported by sufficient evidence lacks merit.
Manifest Weight of the Evidence
{¶ 18} “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.” (Citation omitted.) Wilson, 2d Dist. Montgomery No. 22581,
2009-Ohio-525, at ¶ 12. When evaluating whether a conviction was against the manifest
weight of the evidence, the appellate court must review the entire record, weigh the
evidence and all reasonable inferences, consider witness credibility, and determine -9-
whether, in resolving conflicts in the evidence, 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.’ ” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting State
v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A judgment of
conviction should be reversed as being against the manifest weight of the evidence only
in exceptional circumstances. Martin at 175.
{¶ 19} “The fact that the evidence is subject to different interpretations does not
render the conviction against the manifest weight of the evidence.” State v. Adams, 2d
Dist. Greene Nos. 2013-CA-61 and 2013-CA-62, 2014-Ohio-3432, ¶ 24, citing Wilson at
¶ 14. Also, because the trier of fact sees and hears the witnesses at trial, we must defer
to the factfinder’s decisions whether, and to what extent, to credit the testimony of
particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL
476684, *4 (Aug. 22, 1997). “This court will not substitute its judgment for that of the trier
of fac[t] on the issue of witness credibility unless it is patently apparent that the factfinder
lost its way.” (Citation omitted.) State v. Bradley, 2d Dist. Champaign No. 1997-CA-3,
1997 WL 691510, *4 (Oct. 24, 1997). Therefore, “[t]he credibility of the witnesses and
the weight to be given to their testimony are matters for the trier of fac[t] to resolve.” State
v. Hammad, 2d Dist. Montgomery No. 26057, 2014-Ohio-3638, ¶ 13, citing State v.
DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967).
{¶ 20} In this case, after reviewing the entire record, weighing all the evidence and
reasonable inferences, and considering witness credibility, we do not find that the
evidence weighed heavily against finding Yantis guilty of domestic violence by threats. -10-
At trial, Yantis admitted to becoming angry at his wife, to moving his wife out of his way,
and to punching a hole in his daughter’s bedroom door. Although Yantis denied putting
his hands around his wife’s throat, the trial court, as trier of fact, found the testimony of
Yantis’s wife claiming otherwise to be more credible. Upon review, we do not find it
patently apparent that the trial court lost its way or created a manifest miscarriage of
justice by crediting the wife’s version of events over Yantis’s. “ ‘A verdict is not against
the manifest weight of the evidence [simply] because the finder of fact chose to believe
the State’s witnesses rather than the defendant’s version of the events.’ ” State v.
McCary, 2d Dist. Montgomery No. 28250, 2019-Ohio-4596, ¶ 33, quoting State v. Oswald,
9th Dist. Summit No. 28633, 2018-Ohio-245, ¶ 25. (Other citations omitted.) Therefore,
Yantis’s conviction for domestic violence by threats was not against the manifest weight
of the evidence.
{¶ 21} Yantis’s first, second, and third assignments of error are overruled.
Fourth Assignment of Error
{¶ 22} Under his fourth assignment of error, Yantis claims that his conviction for
domestic violence by threats under section (C) of R.C. 2919.25 should be vacated
because the trial court erroneously found that offense to be a lesser included offense of
domestic violence under section (A) of R.C. 2919.25. According to Yantis, this error
resulted in his being found guilty of an offense for which he had not been charged. Upon
review, we disagree with Yantis’s claim.
{¶ 23} As a preliminary matter, we note that Yantis failed to raise this issue in the -11-
trial court and has waived all but plain error for appeal. Plain error exists when there is
“an obvious defect in the trial proceedings that affected the defendant’s substantial rights,
meaning that the trial court’s error must have affected the outcome of the trial.” State v.
Petticrew, 2d Dist. Clark No. 2022-CA-29, 2023-Ohio-159, ¶ 18, citing State v. Payne,
114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 16. Multiple courts have held
that plain error exists when a trial court convicts a defendant of an offense that was not a
lesser included offense of the crime charged. See, e.g., State v. Lampela, 2016-Ohio-
8007, 67 N.E.3d 836, ¶ 10, 11, and 21 (6th Dist.); State v. Gary, 117 Ohio App.3d 286,
289, 690 N.E.2d 572 (8th Dist.1996); State v. Campbell, 8th Dist. Cuyahoga No. 73643,
1998 WL 827601, *1-2 (Nov. 25, 1998).
{¶ 24} Generally speaking, “a defendant cannot be convicted of a charge not
contained in the complaint or indictment.” Cleveland v. Jenkins, 8th Dist. Cuyahoga No.
80758, 2002-Ohio-6046, ¶ 15, citing State v. Broughton, 51 Ohio App.3d 10, 553 N.E.2d
1380 (12th Dist.1988); State v. Myers, 119 Ohio App.3d 642, 646, 695 N.E.2d 1226 (12th
Dist.1997). “It is axiomatic that a conviction upon a charge not made or upon a charge
not tried constitutes a denial of due process.” (Citations omitted.) Jackson v. Virginia,
443 U.S. 307, 314, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{¶ 25} That said, “[w]hen a lesser included offense is included within the offense
charged in a complaint or indictment, the defendant may be found guilty of the lesser
included offense even though the lesser included offense was not separately charged in
the complaint or indictment.” Cleveland Hts. v. Cohen, 2015-Ohio-1636, 31 N.E.3d 695,
¶ 32 (8th Dist.), citing Crim.R. 31(C), R.C. 2945.74, and State v. Lytle, 49 Ohio St.3d 154, -12-
157, 551 N.E.2d 950 (1990). “Lesser included offenses need not be separately charged
because when an indictment or complaint charges a greater offense, ‘ “it necessarily and
simultaneously charges the defendant with lesser included offenses as well.” ’ ” Cohen
at ¶ 32, quoting State v. Smith, 121 Ohio St.3d 409, 2009-Ohio-787, 905 N.E.2d 151,
¶ 15, quoting Lytle at 157. Accord In re S.W., 2d Dist. Montgomery No. 24525, 2011-
Ohio-5291, ¶ 11.
{¶ 26} “In determining whether an offense is a lesser included offense of another,
a court shall consider [1] whether one offense carries a greater penalty than the other, [2]
whether some element of the greater offense is not required to prove commission of the
lesser offense, and [3] whether the greater offense as statutorily defined cannot be
committed without the lesser offense as statutorily defined also being committed.” State
v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, paragraph two of the
syllabus.
{¶ 27} As previously discussed, the trial court in this case found that domestic
violence by threats under section (C) of R.C. 2919.25 is a lesser included offense of
domestic violence under section (A) of R.C. 2919.25. R.C. 2919.25(A) provides that:
“No person shall knowingly cause or attempt to cause physical harm to a family or
household member.” R.C. 2919.25(C) provides that: “No person, by threat of force, shall
knowingly cause a family or household member to believe that the offender will cause
imminent physical harm to the family or household member.”
{¶ 28} Domestic violence under R.C. 2919.25(A) is a first-degree misdemeanor
and thus carries a greater penalty than domestic violence by threats under R.C. -13-
2919.25(C), which is a fourth-degree misdemeanor. R.C. 2919.25(D)(2). Accordingly,
the first part of the lesser-included-offense test is satisfied. The second part of the
lesser-included-offense test is also satisfied because the element of causing or
attempting to cause physical harm in the greater offense of domestic violence under R.C.
2919.25(A) is not required for the lesser offense of domestic violence by threats under
R.C. 2919.25(C).
{¶ 29} The third part of the lesser-included-offense tests requires us to determine
whether “ ‘the greater offense as statutorily defined cannot be committed without the
lesser offense as statutorily defined also being committed.’ ” State v. Owens, 162 Ohio
St.3d 596, 2020-Ohio-4616, 166 N.E.3d 1142, ¶ 8, quoting State v. Evans, 122 Ohio St.3d
381, 2009-Ohio-2974, 911 N.E.2d 889, ¶ 26. “In making this assessment, a court
compares the elements of each crime.” Id., citing Evans at ¶ 14. More specifically, it
“requires a comparison of the elements of the respective offenses in the abstract to
determine whether one element is the functional equivalent of the other. If so, and if the
other parts of the test are met, one offense is a lesser included offense of the other.”
Evans at ¶ 25. “An offense that includes an element that another offense lacks cannot
be a lesser included offense of that other offense.” Owens at ¶ 8.
{¶ 30} In State v. Rihm, 101 Ohio App.3d 626, 656 N.E.2d 372 (2d Dist.1995), this
court held that a violation of R.C. 2919.25(C) is not a lesser included offense of R.C.
2919.25(A) because:
* * * R.C. 2919.25(A), as statutorily defined, can be committed
without also committing the lesser offense of R.C. 2919.25(C), as statutorily -14-
defined. For example, a defendant who knowingly causes or attempts to
cause physical harm to a family or household member by “blind-siding” her
or attacking her while she is asleep, and then leaves immediately thereafter,
has not caused the victim to believe that he will cause her imminent physical
harm; he has already done so and then broken off the attack. In such an
instance, the defendant may be convicted under R.C. 2919.25(A) but not
2919.25(C). Hence, R.C. 2919.25(C) is not a lesser included offense of
R.C. 2919.25(A)[.]
Id. at 629-630. Accord State v. Howard, 2d Dist. Montgomery No. 17502, 1999 WL
960587, *1 (July 30, 1999).
{¶ 31} The State argues, however, that since our decision in Rihm, the Supreme
Court of Ohio has modified the lesser-included-offense test in a manner that no longer
justifies finding that a violation of R.C. 2919.25(C) is not a lesser included offense of R.C.
2919.25(A). Specifically, the State points to Evans, 122 Ohio St.3d 381, 2009-Ohio-
2974, 911 N.E.2d 889, wherein the Supreme Court modified a prior version of the lesser-
included-offense test that was announced in State v. Deem, 40 Ohio St.3d 205, 533
N.E.2d 294 (1988). The Deem version of the lesser-included-offense test provided, in
relevant part, that “the greater offense cannot, as statutorily defined, ever be committed
without the lesser offense, as statutorily defined, also being committed[.]” (Emphasis
added.) Deem at paragraph three of the syllabus. Evans thereafter modified the
version in Deem to omit the word “ever.” Evans at ¶ 25.
{¶ 32} The question in Evans was whether robbery as defined in R.C. -15-
2911.02(A)(2) was a lesser included offense of aggravated robbery as defined in R.C.
2911.01(A)(1). “Under [those] statutes, robbery required proof of a threat or an attempt
to inflict harm or actual infliction of harm during a theft offense, and aggravated robbery
required proof of displaying, brandishing, indicating possession of, or actually using a
deadly weapon during a theft offense.” State v. Deanda, 136 Ohio St.3d 18, 2013-Ohio-
1722, 989 N.E.2d 986, ¶ 13. “The defendant-appellee [in Evans] argued that one could
commit theft while indicating possession of a deadly weapon without threatening to inflict
harm, such as a scenario where one shoplifts while purchasing the deadly weapon.” Id.,
citing Evans at ¶ 24. The Supreme Court, however, “rejected this argument as far-
fetched and implausible.” Id. To ensure that such implausible scenarios would not
derail a proper lesser-included-offense analysis in the future, the Supreme Court deleted
the word “ever” from the Deem version of the lesser-included-offense test. Evans at
¶ 25. Therefore, as previously noted, the portion of the test in question currently provides
that “the greater offense as statutorily defined cannot be committed without the lesser
offense as statutorily defined also being committed.” Id. at paragraph two of the syllabus.
{¶ 33} The State argues that this court’s holding in Rihm was based on the same
type of implausible scenario that has since been rejected in Evans. Although this court
has not addressed the holding in Rihm since Evans was decided, this court has rejected
the unaware victim rationale on which the holding in Rihm was based. For example, in
In re S.W., 2d Dist. Montgomery No. 24525, 2011-Ohio-5921, this court rejected the
following rationale used in State v. Schaefer, 2d Dist. Greene No. 1999-CA-88, 2000 WL
492094 (Apr. 28, 2000), a rationale which relied on the Deem version of the lesser- -16-
included-offense test:
In our view, it is possible to commit the offense of domestic violence
without committing disorderly conduct. In particular, it is apparent that one
may attempt to cause physical harm to another without his or her
knowledge, in which case the victim will not have suffered inconvenience,
annoyance, or alarm. We concede that, in most cases, the actions by
which one causes or attempts to cause physical harm to another may also
cause inconvenience, annoyance, or alarm to that person. But a victim
might be wholly unaware of an attempt to cause physical harm where, for
example, the perpetrator throws an object at the victim, who is not looking
at the perpetrator, but misses his target, and thus the victim suffers no
inconvenience, annoyance, or alarm.
Schaefer at *3.
{¶ 34} In S.W., this court held that “the holding in Evans undermines our rationale
in Schaefer, to the extent that we relied on the possibility that a victim may, in some
circumstances, be wholly unaware of an attempt to cause physical harm.” S.W. at ¶ 37.
We explained that, “[u]nless the evidence in a particular case demonstrates that the victim
was unaware, there is now no basis to hold that the minor misdemeanor form of domestic
violence that R.C. 2917.11(A)(1) prohibits cannot be a lesser included offense of domestic
violence, in violation of R.C. 2919.25(A)[.]” Id. At least one other court has similarly
rejected the unaware victim rationale. See, e.g., Cohen, 2015-Ohio-1636, 31 N.E.3d
695, at ¶ 32 (“We believe that the unaware victim and did-not-take-threat-seriously -17-
hypotheticals are the very types of ‘implausible scenarios’ and ‘remote possibilit[ies]’ that
the Evans court sought to address in clarifying the Deem test.”).
{¶ 35} Based on the foregoing, we agree with the State’s claim that the blindsided,
unaware victim scenario that Rihm advanced was the type of implausible scenario that
Evans sought to preclude from the lesser-included-offense analysis. Although the
holding in Rihm was appropriate under the Deem version of the lesser-included-offense
analysis, that holding is no longer appropriate under the Supreme Court’s modified
analysis in Evans. Accordingly, we expressly overrule our holding in Rihm.
{¶ 36} Applying the modified analysis in Evans, we find that, in most
circumstances, when an offender engages in conduct that causes or attempts to cause
physical harm to a family or household member, that conduct in turn causes the family or
household member to believe that the offender will cause them imminent physical harm.
In other words, the belief of imminent physical harm required for domestic violence by
threats under R.C. 2919.25(C) typically goes hand in hand with the physical harm or
attempted physical harm that is required for domestic violence under R.C. 2919.25(A).
Therefore, when comparing the elements of these offenses in the abstract, they are the
functional equivalent of one another.
{¶ 37} Based on the foregoing reasoning, and having overruled our holding in
Rihm, we now find that the greater offense, i.e., domestic violence under R.C. 2919.25(A),
as statutorily defined cannot be committed without the lesser offense, i.e., domestic
violence by threats under R.C. 2919.25(C), as statutorily defined also being committed.
That being the case, the third part of the lesser-included-offense test set forth in Evans is -18-
satisfied. Because all three parts of the test in Evans are satisfied, we hold that domestic
violence by threats under R.C. 2919.25(C) is a lesser included offense of domestic
violence under R.C. 2919.25(A). Accordingly, we find no error, let alone plain error, with
regard to Yantis’s conviction under R.C. 2919.25(C).
{¶ 38} Yantis’s fourth assignment of error is overruled.
Conclusion
{¶ 39} Having overruled all four of Yantis’s assignments of error, the judgment of
the trial court is affirmed.
EPLEY, J. and LEWIS, J., concur.