State v. Newman
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[Cite as State v. Newman, 2006-Ohio-4160.] IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 21264 v. : T.C. NO. 2005 CR 1116 BRETT A. NEWMAN : (Criminal Appeal from Common Pleas Court) Defendant-Appellant : : .......... OPINION Rendered on the 11th day of August , 2006. .......... JOHNNA M. SHIA, Atty. Reg. No. 0067685, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee STACEY J. BROWN, Atty. Reg. No. 0071297, Assistant Public Defender, 117 South Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellant .......... BROGAN, J. {¶ 1} Brett A. Newman was indicted with one count of domestic violence, a felony of the fourth degree, arising out of the assault of his live-in girlfriend on March 19, 2005. Newman 2 moved to dismiss the charge, arguing that it violated the so-called Defense of Marriage amendment to the Ohio Constitution, Article XV, Section 11. On July 11, 2005, the court overruled the motion. Newman subsequently entered a plea of no contest to the domestic violence charge. The court found him guilty and sentenced him to community control sanctions. Newman appeals. {¶ 2} Newman s sole assignment of error is as follows: {¶ 3} THE TRIAL COURT ERRED IN OVERRULING APPELLANT S MOTION TO DISMISS AND CONVICTING APPELLANT OF DOMESTIC VIOLENCE AS SUCH PROSECUTION AND CONVICTION VIOLATES ARTICLE XV, SECTION 11 OF THE OHIO CONSTITUTION. {¶ 4} Newman claims that the trial court erred when it found that R.C. 2919.25 was constitutional as it applies to persons living as spouses and denied his motion to dismiss. {¶ 5} It is undisputed that Newman and the victim lived together for a period of time, but that they were never married and they did not have any children together. Accordingly, based on the record, the victim was a person living as a spouse under R.C. 2919.25. {¶ 6} This court has recently determined that, to the extent that R.C. 2919.25 extended its protection to a person living as a spouse, it was rendered unconstitutional by the Defense of Marriage amendment, which became effective on December 2, 2004. State v. Ward, 166 Ohio App.3d 188, 2006-Ohio-1407, N.E.2d . For the reasons set forth in Ward, Newman s argument is meritorious. {¶ 7} The assignment of error is sustained. {¶ 8} The judgment of the trial court will be reversed and the cause remanded for further 3 proceedings consistent with this opinion. .......... WALTERS, J., (visiting judge) concurring in judgment only: {¶ 9} I write separately to state that, although I disagree with this Court s precedents, I must concur on the basis of stare decisis. DONOVAN, J., dissenting: {¶ 10} I disagree for the reasons set forth in my dissent in State v. Ward. . . . . ... ... (Hon. Sumner E. Walters, retired from the Third District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio). Copies mailed to: Johnna M. Shia Stacey J. Brown Hon. G. Jack Davis, Jr.
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