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You Don’t Have to Beat Someone Up to be Guilty. A common misconception is that you have to beat someone up in order to be prosecuted and convicted for Domestic Violence. Let’s take a quick look at the statute against Domestic Violence in Ohio and its distinctions between types of harm:
(A) No person shall knowingly cause or attempt to cause physical harm to a family or household member. (B) No person shall recklessly cause serious physical harm to a family or household member. (C) 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.
There are some important distinctions in sections (A), (B) and (C) that might not jump out at you at the first reading. First, the harm required, when you purposely try to hurt someone under section (A), is “physical harm.” But when you act recklessly instead of intentionally under section (B), then the harm has to be in the nature of “serious physical harm.” Third, no harm at all is required under section (C) so long as you knowingly threaten force that will cause the victim to believe he or she is in imminent danger of physical harm.
Thus the harm that is required to rise to the level of domestic violence under section (A) when you intentionally harm someone in Ohio is not great. Physical harm to persons is defined as "any injury … regardless of its gravity or duration." R.C. 2901.01(A)(3). That means that some pretty minor stuff can be charged as domestic violence. Let’s look at some facts from the case law.
You don’t have to actually hit someone under R.C. 2919.25(A). In State v. Miller, 2015-Ohio-956, the defendant snatched a cell phone from his wife and threw it at her, hitting her in the back:
Here, Stephanie testified that, while appellant was angry with her, he called her a "loser," grabbed his cell phone from their daughter, and threw it at her. By throwing the phone at Stephanie, it can reasonably be inferred that appellant was aware his conduct would probably result in injury. Evidence was thus presented that he acted knowingly. State v. Dickson, 7th Dist. Columbiana No. 12 CO 50, 2013-Ohio-5293, 20 (by throwing piece of wood at victim defendant was aware it would probably result in injury and he thus acted knowingly); State v. Zarlenga, 8th Dist. Cuyahoga No. 55414, 1989 Ohio App. LEXIS 1999, *8 (June 1, 1989) (when defendant threw projectile at an occupied car, there was a probability injury would result and he acted knowingly).
Further, by throwing the phone at Stephanie and hitting her with it, appellant caused her to sustain physical harm. The bruises to Stephanie's back and the back of her arm are evidence of physical harm. Finally, because Stephanie is appellant's spouse and resides with him, she is a family or household member. The state thus presented evidence, which, if believed, was sufficient to prove that appellant was guilty of domestic violence. State v. Miller, 2015-Ohio-956, at Paragraphs 31-32
Contrast this with the case of State v. Berry, 2007-Ohio-7082. In that case, the defendant did not throw anything at anyone. Rather, he threw a glass at the floor, and a few of the pieces of the broken glass hit his wife, causing injury. Though he was convicted at the trial court level, Ohio’s 12th District Court of Appeals reversed the conviction. The Court reasoned that it is a defendant's state of mind and perception which are measured at the time of the actions charged as domestic violence; not an objective reasonable expectation. State v. Hancock, 2004 Ohio 1492, P44-47.
So while it is a defense to a charge under 2919.25(A) that you did not mean to injure another person but rather you were only acting recklessly, this defense only works if the harm that the other victim suffered was not serious.
Holding a knife against a victim's arm so tightly, and with such pressure, that a red indentation remains after the knife is no longer present, without any cutting of the skin, has been held to constitute physical harm pursuant to the definition contained in R.C. 2901.01(C). State v. Goble (1982), 5 Ohio App. 3d 197, 199.
How far does “knowingly” go? In the case of State v. Kelly, 2013-Ohio-4755, the defendant was in a fight on his porch with a neighbor (who was trying to stop him from hurting the defendant’s wife and son). During the fight with the neighbor, the defendant’s son jumped on the defendant’s back and the defendant hit him. The defendant argued at trial that he was aiming for the neighbor but hit his son instead by accident, thus the punch was not made “knowingly.” But the Court of Appeals was having none of it:
Second, there is sufficient evidence to support a finding that appellant "knowingly" punched E.S., even if it was not purposeful. R.C. 2901.22(B) provides: "[a] person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist." Kelly at Paragraph 38.
Under Section (B), if you are not acting purposely, but hurt someone while you are acting recklessly, then the prosecution must prove a higher standard of harm. This is higher standard of harm is “serious physical harm.” There isn’t much case law on this because most serious physical harm is the result of a defendant acting “knowingly” rather than accidentally. But in cases brought under Section (B), it is important to note that not just every bump, bruise or scrape will suffice. R.C. 2901.05(5) defines "serious physical harm to persons".
(5) “Serious physical harm to persons” means any of the following:
(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;
(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;
(d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement;
(e) Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.
So bruises on the arm are likely not going to qualify here, but a broken arm surely would. Defendants need to be aware though that Courts are not very sympathetic to people who violate R.C. 2919.25(B) and that makes them tend to inflate the seriousness of the injury when something is a close call.
Under 2919.25(C), the victim need not suffer actual injury, but need only believe that he or she is under imminent threat of one. But how “imminent” is imminent”? Ohio’s First Appellate District, in analyzing a case under R.C. 2919.25(C), has noted that "'imminent' means 'threatening to occur immediately.'" State v. Collie (1996), 108 Ohio App.3d 580, 583, 671 N.E.2d 338, quoting Webster's Second International Dictionary (1959) 1245. Ohio’s Tenth Appellate District has applied a definition of "'imminent' as 'about to occur at any moment.'" In re Jenkins, 10th Dist. No. 2003CA00330, 2004 Ohio 2657, at P14, quoting Webster's II New Riverside University Dictionary (1984) 611.
Once a threat is made to a person of the type protected under R.C. 2919.25(C), there are two questions for the court to answer: (1) was the threat "imminent" and (2) did the victim believe that he or she was in danger of physical harm. State v. Diroll, 2007-Ohio-6930.
In Cincinnati v. Baarlaer (1996), 115 Ohio App.3d 521, the defendant made threats of harm during a phone call that he made from jail. The defendant argued that such a threat made over the telephone from jail is not sufficient for a violation of R.C. 2919.25(C), because it is not imminent. Ohio’s First District Court of Appeals agreed that it was important to note that the threatening phone call in that case was made by the defendant while incarcerated. Id. at 523. As such, the threat was not sufficiently imminent to qualify as an imminent threat under the DV statute.
In State v. Diroll, 2007-Ohio-6930, Ohio’s 11th District Court of Appeals also looked at a case wherein the defendant made threats over the phone. The Trial Court found that:
[T]here was evidence presented that he was at his mother's residence when he made the threat. Diroll's mother's house and Smith's house are several miles apart, making it less likely that Diroll could "immediately" or "at any moment" inflict physical harm upon Smith.
Moreover, Smith's testimony suggests that she did not believe Diroll's threat was imminent. She testified that after Diroll made the threat, she called him back and told him to get his things. She testified that she gathered Diroll's things, placed them on her front porch, locked her doors, and then left her residence. The fact that Smith felt she had enough time to gather Diroll's belongings and place them on her front porch strongly suggests that she did not believe Diroll's threat was imminent.
So we see from the passage above that in addition to imminence of the threat, the victim must believe he or she is in danger. Courts scrutinize the actions of the victim with regard to the defendant after the threat has been made to see if the victim is acting like someone who is taking the threat seriously. In the Diroll case, the evidence presented did not support the state's position that the victim believed she was in danger of imminent physical harm. The victim testified that she and Diroll were mutually arguing during the 16-minute phone call. During that time, Diroll made the threat at issue in this matter. Following the threat, the victim testified that she "might have argued for a few minutes with him." The victim testified that she hung up on Diroll to end the call. Then, after Diroll's threat, she called Diroll a second time and told him to come to her house and retrieve his belongings. Ohio’s 11th District Court of appeals found that this action was entirely inconsistent with a belief that she was in danger of imminent physical harm.
Further still, after telling Diroll to come to her residence and get his things, she gathered Diroll's belongings and placed them on her front porch. “This action suggests either (1) she did not believe she was in danger of physical harm as a result of a potential encounter with Diroll at her residence or (2) she did not believe Diroll could get to her residence prior to her placing his things on the front porch, locking her doors, and leaving. Either way, it cannot be said that Smith believed she was in danger of imminent physical harm.” Diroll at paragraphs 59 and 60.
A further complication for a prosecutor is when the threats made by the defendant are conditional. A conditional threat is one where "a prerequisite must occur before the actor intends or is empowered to carry out the threat. In re Jenkins, 2004 Ohio 2657, at P26. The threat in the Diroll case was, "if [Smith] would try and contact his oldest daughter again, that he would kick [her] ass." This threat was a conditional threat, in that the prerequisite for Diroll's threatened action was Smith contacting his daughter.
"[G]enerally, a conditional threat, standing alone, is insufficient to satisfy the imminent physical harm element." Jackson v. Adams, 4th Dist. No. 01 CA2, 2001 Ohio 2617, 2001 Ohio App. LEXIS 5134, at *7.
Another important part of the statute is how it applies only to people in certain relationships with each other. Ohio Revised Code § 2919.25 defines a “family or household member” as any person related by blood, marriage, former marriage, step-, foster, or biological parents of a common child (regardless of whether or not they have ever lived together), or any individual(s) who presently or have previously resided in the home within the past five (5) years.
So if you are just boyfriend and girlfriend and have never lived together nor have any children together, then you cannot be convicted under the statute. Further, even if you once lived together, if you have not done so for the last five years before the incident, then you cannot be convicted unless you somehow meet some other category.
But keep in mind, just because you might be able to show that you were not properly charged under the Domestic Violence statute, the State of Ohio could attempt to recharge you under the assault statute which has no special person requirement.
Domestic violence defense is a complex process. Each criminal charge has its own legal elements or requirements for conviction. It is highly recommended to consult a proven criminal defense attorney to prepare a quality defense.
Attorney Brian Joslyn is an experience criminal defense attorney. He proudly represents clients faced with complex criminal issues, including domestic violence. He and the team of attorneys at Joslyn Law Firm will work tirelessly to prepare the best defense in your case.
The Joslyn Law Firm represents clients throughout the state of Ohio, including Columbus, Sunbury, Dublin, Reynoldsburg, Worthington, Groveport, Plain City, Heath, Granville, Baltimore, Bremen, South Bloomfield, New Holland and Commercial Point.