[Cite as State v. Clark, 2019-Ohio-4303.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF MEDINA ) 

STATE OF OHIO 

 Appellee 

 v. 

TIMOTHY CLARK 

 Appellant 

C.A. No. 18CA0093-M 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF MEDINA, OHIO 

CASE No. 18CR0278 

DECISION AND JOURNAL ENTRY 

Dated: October 21, 2019 

 

HENSAL, Judge. 

{¶1} Timothy Dale Monte Clark appeals his conviction from the Medina County Court 

of Common Pleas. This Court affirms. 

I. 

{¶2} According to the victim, she began dating Mr. Clark while he was in prison for an 

unrelated crime. Approximately seven months later, Mr. Clark was released from prison, and 

they continued their relationship. After his release, Mr. Clark began living with her, and they 

began a sexual relationship. Within a few months, the relationship turned physically abusive. 

According to the victim, Mr. Clark became angry with her one evening, and struck her in the 

face with his closed fists. He also struck her with a broomstick, pulled her hair, and kicked her. 

The victim did not initially report the abuse, but took pictures of her injuries, including bruises 

and swelling on her face, the following day. 
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{¶3} About a week later, the victim picked up her nine-year-old son from school and 

was stopped in traffic when Mr. Clark approached her car while on a bicycle. He reached into 

her car, grabbed her cell phone from her, and told her to meet him at the apartment. The victim 

immediately drove to her mother’s apartment, which was directly across the street from her 

apartment. The victim told her son to run in and tell her mother to call the police while she 

followed closely behind him. Mr. Clark arrived shortly thereafter on his bicycle and spoke with 

the victim’s mother and sister. The victim’s sister persuaded Mr. Clark to give her the victim’s 

phone, which he did. The victim’s mother told Mr. Clark she was calling the police, at which 

point he left. 

{¶4} The police arrived shortly thereafter. While there, the victim explained what had 

happened and showed them threatening text messages that Mr. Clark had sent to her that day. In 

addition to the text messages, the victim allowed the police to listen to voicemails that Mr. Clark 

had left her that day. In one, Mr. Clark threatened to shoot the victim in the face if she called the 

police. 

{¶5} The police located Mr. Clark at the public library and arrested him. A grand jury 

subsequently indicted him on one count of domestic violence in violation of Revised Code 

Section 2919.25(A),(D)(4). Mr. Clark waived his right to a jury and the matter proceeded to a 

bench trial. At trial, Mr. Clark stipulated as to his two prior domestic-violence convictions, 

which are required for a conviction under Section 2919.25(D)(4), and the trial court found him 

guilty. He now appeals, raising two assignments of error for our review. 

II. 

ASSIGNMENT OF ERROR I 

THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE TRIAL COURT’S 

FINDING OF “GUILTY” AS TO THE SOLE COUNT OF FELONY 
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DOMESTIC VIOLENCE, IN VIOLATION OF R.C. 2919.25(A)(D)(4), WHERE 

THE STATE FAILED TO PROVE THE ESSENTIAL ELEMENT THAT 

DEFENDANT-APPELLANT AND THE ALLEGED VICTIM WERE “FAMILY 

OR HOUSEHOLD MEMBERS.” 

{¶6} In his first assignment of error, Mr. Clark argues that his conviction for domestic 

violence was not supported by sufficient evidence because the State failed to establish that he 

and the victim were family or household members. Upon review of the record, this Court 

disagrees. 

{¶7} Whether a conviction is supported by sufficient evidence is a question of law, 

which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In carrying out 

this review, our “function * * * 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.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. “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.” Id. 

{¶8} As previously noted, Mr. Clark was charged and convicted under Section 

2919.25(A). Relevantly, that Section provides that “[n]o person shall knowingly cause or 

attempt to cause physical harm to a family or household member.” R.C. 2919.25(A). There was 

no dispute at trial that Mr. Clark was not a family member. Instead, the dispute centered upon 

whether he and the victim were household members. Section 2919.25(F)(1) defines “household 

member[,]” in relevant part, as “a person living as a spouse[.]” R.C. 2919.25(F)(1)(a)(i). It then 

defines a “[p]erson living as a spouse” as “a person * * * 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). As the Ohio Supreme Court 
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has stated, “[t]he essential elements of ‘cohabitation’ are (1) sharing of familial or financial 

responsibilities and (2) consortium.” State v. Williams, 79 Ohio St.3d 459 (1997), paragraph two 

of the syllabus. It continued that: 

[p]ossible 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. at 465. The Ohio Supreme Court later clarified that the sharing of familial or financial 

responsibilities is not required when there is evidence that the victim and the offender lived 

together. State v. McGlothan, 138 Ohio St.3d 146, 2014-Ohio-85, ¶ 13. As this Court has stated, 

“[t]he burden of [production for] establishing cohabitation is not substantial.” (Alteration sic.) 

State v. Long, 9th Dist. Summit No. 25249, 2011-Ohio-1050, ¶ 6, quoting Dyke v. Price, 2d Dist. 

Montgomery No. 18060, 2000 WL 1546555, *3 (Oct. 20, 2000). “[I]t is a person’s 

determination to share some measure of life’s responsibilities with another that creates 

cohabitation.” State v. Carswell, 114 Ohio St.3d 210, 2007-Ohio-3723, ¶ 35. 

{¶9} Here, there is no dispute that the State set forth sufficient evidence regarding 

consortium; the victim testified that she and Mr. Clark had a sexual relationship. Mr. Clark 

argues, however, that the State presented insufficient evidence to establish that he cohabitated 

with the victim. We disagree. 

{¶10} The victim testified that she and Mr. Clark had been living together since his 

release from prison, and that they slept in the same bedroom. She testified that he shared in 

household responsibilities including cooking, cleaning, and taking out the trash. She further 

testified that he kept a toothbrush at the apartment, as well as the clothes he came home from 

prison with. The victim’s mother also testified that Mr. Clark lived with her daughter. 
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{¶11} Mr. Clark points to several facts in support of his position that he did not 

cohabitate with the victim, including that: (1) his name was not on the lease for the apartment; 

(2) they did not share a bank account; (3) he did not pay bills or contribute money toward 

groceries; (4) the victim’s mother only saw him at her daughter’s apartment one time over the 

course of two months; (5) the police had been unable to serve him with a no-trespass order 

issued by the apartment complex that stemmed from an unrelated incident; (6) he only kept a 

toothbrush and the clothes he was wearing that day at the apartment; and (7) the victim told one 

of the officers that she did not know where he was staying. While the foregoing are possible 

factors that a court can consider when determining the issue of cohabitation, none are required at 

the sufficiency stage. Instead, they relate to the weight of the evidence presented, which is 

legally distinct from sufficiency. State v. Johnson, 9th Dist. Lorain No. 13CA010496, 2015-

Ohio-1689, ¶ 11 (“A sufficiency challenge is legally distinct from a manifest weight challenge.”) 

Viewing the evidence presented in a light most favorable to the State, including the testimony of 

the victim and her mother, we hold that sufficient evidence existed to establish that Mr. Clark 

cohabitated with the victim. Accordingly, his first assignment of error is overruled. 

ASSIGNMENT OF ERROR II 

THE DEFENDANT-APPELLANT’S CONVICTION OF FELONY DOMESTIC 

VIOLENCE IN VIOLATION OF R.C. 2919.25(A)(D)(4), WAS AGAINST THE 

MANIFEST WEIGHT OF THE EVIDENCE, WHERE THE STATE FAILED 

TO PROVE THE ESSENTIAL ELEMENTS THAT DEFENDANTAPPELLANT AND THE ALLEGED VICTIM WERE “FAMILY OR 

HOUSEHOLD MEMBERS” OR THAT DEFENDANT-APPELLANT 

“CAUSED OR ATTEMPTED TO CAUSE PHYSICAL HARM” TO THE 

ALLEGED VICTIM. 

{¶12} In his second assignment of error, Mr. Clark argues that his conviction was 

against the manifest weight of the evidence on the issues of cohabitation, and whether he caused 
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or attempted to cause physical harm to the victim. For the reasons that follow, this Court 

disagrees. 

{¶13} When considering a challenge to the manifest weight of the evidence, this Court is 

required to consider the entire record, “weigh the evidence and all reasonable inferences, 

consider the credibility of witnesses and determine 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.” State v. Otten, 33 Ohio App.3d 

339, 340 (9th Dist.1986). Notably, “the weight to be given the evidence and the credibility of 

the witnesses are primarily for the trier of the facts[,]” who is “free to believe all, part, or none of 

the testimony of each witness.” State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the 

syllabus; Prince v. Jordan, 9th Dist. Lorain No. 04CA008423, 2004-Ohio-7184, ¶ 35. “This 

Court will not overturn the trial court’s verdict on a manifest weight of the evidence challenge 

only because the trier of fact chose to believe certain witness testimony over the testimony of 

others.” State v. Hill, 9th Dist. Summit No. 26519, 2013-Ohio-4022, ¶ 15. 

{¶14} Initially, we note that Mr. Clark’s argument as it relates to cohabitation is 

essentially the same argument he presented in his challenge to the sufficiency of the evidence. In 

this regard, he again argues that: (1) his name was not on the lease for the apartment; (2) he and 

the victim did not share a bank account; (3) he did not pay bills or contribute money toward 

groceries; (4) the victim’s mother only saw him at her daughter’s apartment one time over the 

course of two months; (5) the police had been unable to serve him with a no-trespass order 

issued by the apartment complex that stemmed from an unrelated incident; (6) he only kept a 

toothbrush and the clothes he was wearing that day at the apartment; and (7) the victim told one 
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of the officers that she did not know where he was staying. This Court will address each of the 

foregoing in turn. 

{¶15} While being on the lease, sharing a bank account, paying bills, and contributing 

money toward groceries are possible factors a court can consider when examining the issue of 

cohabitation, they are not required. Here, the victim testified that Mr. Clark lived with her, that 

they slept in the same bedroom, and that he cooked, cleaned, and took out the trash. 

Additionally, while the victim’s mother testified that she only saw Mr. Clark one time at the 

apartment, she also testified that her relationship with her daughter became more distant when 

she (the victim) started dating Mr. Clark. Regarding the police’s inability to serve him with a 

no-trespass order at the apartment, the trial court heard testimony from an officer who indicated 

that the police often serve no-trespass orders when they “happen upon” the person, and do not 

necessarily stop someone just to serve that person with the order. Regarding his argument that 

he only kept the clothes he was wearing that day at the apartment, his counsel’s questioning of 

the victim at trial indicated otherwise. When asked whether Mr. Clark only kept the clothes he 

was wearing that day at the apartment, she responded “[n]o,” and clarified that he kept the 

clothes he came home from prison with at the apartment. Lastly, regarding his argument that the 

victim told an officer that she did not know where he was staying, the officer that spoke with the 

victim clarified the context in which that response was elicited. Specifically, he indicated that 

when he asked the victim where Mr. Clark was staying, he “[m]eant where [Mr. Clark] would be 

hiding from [the police] or where he would run to, not where he was living.” In light of all of the 

evidence presented, we cannot say that the trial court clearly lost its way by determining that Mr. 

Clark cohabitated with the victim. We now turn to his argument regarding the evidence as it 

relates to whether he caused or attempted to cause physical harm to the victim. 
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{¶16} Mr. Clark challenges the evidence regarding whether he caused or attempted to 

cause physical harm to the victim by pointing out the fact that the victim did not initially report 

the abuse, that the victim kept in contact with him, and that the victim included new information 

when she submitted a second written statement to the police. These arguments relate to the 

credibility of the victim, who specifically testified that Mr. Clark punched her, kicked her, hit her 

with a broom, and pulled her hair. As previously noted, “the weight to be given the evidence and 

the credibility of the witnesses are primarily for the trier of the facts[,]” who is “free to believe 

all, part, or none of the testimony of each witness.” DeHass, 10 Ohio St.2d 230, at paragraph 

one of the syllabus; Jordan, 2004-Ohio-7184, at ¶ 35. This Court “will not overturn a conviction 

as being against the manifest weight of the evidence simply because the trier of fact chose to 

believe the State’s version of events[.]” State v. Pari, 9th Dist. Summit No. 28098, 2017-Ohio4165, ¶ 19. Accordingly, Mr. Clark’s second assignment of error is overruled. 

III. 

{¶17} Mr. Clark’s assignments of error are overruled. The judgment of the Medina 

County Court of Common Pleas is affirmed. 

Judgment affirmed. 

 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 
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period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellant. 

 

 JENNIFER HENSAL 

 FOR THE COURT 

CALLAHAN, P. J. 

SCHAFER, J. 

CONCUR. 

APPEARANCES: 

ERIC D. HALL, Attorney at Law, for Appellant. 

S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant 

Prosecuting Attorney, for Appellee.