# State v. Rossi

> Ohio Court of Appeals · July 2, 2024 · 2024 Ohio 2566

URL: https://www.frixlaw.com/law-library/cases/10464086

## Case

- **Court:** Ohio Court of Appeals
- **Decided:** July 2, 2024
- **Citations:** 2024 Ohio 2566
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Robb
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10464086

## Opinion text

[Cite as State v. Rossi, 2024-Ohio-2566.]

IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

ZACHARY MARK-PHILLIP ROSSI,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY
Case No. 23 MA 0097

Criminal Appeal from the
Mahoning County Court #4 of Mahoning County, Ohio
Case No. 2023 CR B 00158 AUS

BEFORE:
Carol Ann Robb, Mark A. Hanni, Katelyn Dickey, Judges.

JUDGMENT:
Affirmed.

Atty. Gina DeGenova, Mahoning County Prosecutor, Atty. Edward A. Czopur, Assistant
Mahoning County Prosecutor, Mahoning County Prosecutor's Office, for Plaintiff-Appellee
and

Atty. Michael P. Ciccone, for Defendant-Appellant.

Dated: July 2, 2024
–2–

Robb, P.J.

{¶1} Defendant-Appellant Zachary Mark-Phillip Rossi appeals the decision of
Mahoning County Court No. 4 finding him guilty of domestic violence after a bench trial.
Appellant challenges the sufficiency of the evidence on the element of family or household
member. He argues the state failed to show cohabitation. For the following reasons,
Appellant’s conviction is affirmed.
STATEMENT OF THE CASE
{¶2} On March 14, 2023, police officers were dispatched to an apartment in
Austintown for a domestic disturbance. Based on their observations at the scene, they
arrested Appellant for domestic violence in violation of R.C. 2919.25(A), a first-degree
misdemeanor. At the bench trial, testimony was provided by the two responding police
officers, the victim, and Appellant’s mother.
{¶3} The first officer testified the victim was crying hysterically when he arrived
and appeared to be in a constant state of fear while describing Appellant as her live-in
boyfriend who attacked her after she accused him of cheating on her. (Tr. 7-9, 15). The
victim reported the following events to the officer: Appellant initially struck her face near
her mouth with a closed fist; he threw her phone across the room when she tried to call
911; he then delivered a series of punches, which landed on her face, head, and arms as
she attempted to defend herself; and he threw her to the ground (injuring her lower back)
and held her throat with one hand while striking her with the other hand. (Tr. 7-10). The
officer described redness and bruising on the victim’s face and a bleeding cut on her lip.
(Tr. 7-8). He identified and reviewed photographs depicting injuries to the victim’s lip,
face, neck, and arm. (St.Ex. A-D). He also observed her shattered phone screen. (Tr.
9).
{¶4} The second officer who arrived at the scene testified he spoke with
Appellant in the bedroom of the apartment where he was gathering his belongings. (Tr.
23-24). Appellant told him a friend would be picking him up. (Tr. 24). The prosecutor
asked the officer whether he asked Appellant if he resided in that apartment, and the
officer replied, “I believe so * * * I believe he said yes.” (Tr. 25). On cross-examination,

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the officer explained this type of question was his standard procedure. He also pointed
out Appellant’s address was listed as this apartment in the police report. (Tr. 26).
{¶5} The victim testified she was not married and had no children. She said
Appellant had been her best friend for over 10 years and they were both 23 years old.
(Tr. 28-30). According to the victim’s testimony, they had been living together for six or
seven months at the time of the March 14, 2023 offense. First, they spent four months
living together at the house where Appellant’s mother lived. Then, they moved to an
apartment. They did not stay in that apartment long, and in March of 2023, they moved
into the Austintown apartment where the offense occurred. (Tr. 30-31). The victim said
Appellant did not contribute to food or rent during their apartment living. She described
herself as his sole supporter, including by providing him with cash. (Tr. 31).
{¶6} The victim testified she reported to 911 that her boyfriend punched her in
the mouth. (Tr. 31). She confirmed she was shaking and “hysterically crying, distraught,
upset, and hurt” when the officers arrived. (Tr. 32, 34). When the prosecutor asked what
her boyfriend did to her, the victim initially stated, “It started off with me confronting him
about cheating.” She mentioned, “We weren’t sleeping together, were like just more –
we weren’t doing things a normal couple would do together.” She then answered the
question by explaining that ten seconds after confronting him about his cheating behavior,
he used a closed fist to punch her in the mouth, which resulted in a “busted” and bleeding
lip. (Tr. 33).
{¶7} Upon viewing her wound in the mirror, she started screaming at him to pack
his belongings and leave (and then told him to leave his belongings and she would deliver
them later). (Tr. 33-34). She tried to call 911, but he threw her phone, rendering it non-
operational. (Tr. 35-36). The victim testified Appellant started punching her again,
including in the side of her face where she suffered a bruised eye and swollen jaw. (Tr.
36). She ended up on the floor being “choked out, strangled, breathing, screaming, trying
to gasp for air while he was punching me.” (Tr. 37-38). She believed she was going to
die. (Tr. 38-39). She managed to knee Appellant, flee the apartment, bang on other
apartment doors, and find a neighbor to let her in to call the police. (Tr. 36-37, 39).
{¶8} On cross-examination, she confirmed her description of their relationship as
“boyfriend/girlfriend.” (Tr. 42). The defense presented the March 1, 2023 lease

Case No. 23 MA 0097
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agreement for the Austintown apartment to show the victim was the only person listed as
a tenant. Page two of the thirteen-page lease said the maximum occupancy was one
person, and “NA” was typed in the blank where authorized occupants could be listed. (Tr.
43-45, 49). The defense also presented the rental application as an exhibit to show the
victim listed her parents’ address as her “Current Address” on January 3, 2023. The
victim explained she was between residences and she was “free to come and go” to both
her parents’ residence and the residence of Appellant’s mother. (Tr. 43-44, 53). She
also pointed to her answer on this rental application that one person would be living with
her, testifying this answer was referring to Appellant. The victim said the rental agent
knew another person would be living with her and even asked her the name of the other
occupant. (Tr. 51).
{¶9} The defense called Appellant’s mother to the stand. She said the victim
was her son’s best friend who “periodically” stayed at her house when experiencing family
issues. (Tr. 56-57). This witness said Appellant stayed with her in Youngstown “[l]ike five
days a week, five nights a week” in March of 2023. (Tr. 57). Appellant’s mother said her
son’s mail comes to her house, her cable bill is in his name, and one of his three children
lives with her. (Tr. 58-59). She said Appellant only spent a couple of nights at the
Austintown apartment and opined it was not his residence, saying his “stuff was at home
except for some miscellaneous.” (Tr. 59). She said her son performs roofing and tarring
for a company and does odd jobs for the company when the weather does not allow for
those tasks. (Tr. 60).
{¶10} The court found Appellant guilty of domestic violence and sentenced him to
180 days in jail with 120 days suspended and 24 months of probation with various
requirements. (10/25/23 J.E.). The within appeal followed.
ASSIGNMENT OF ERROR
{¶11} Appellant sets forth the following assignment of error:
“The trial court committed reversible error when it found Defendant-Appellant,
Zachary Mark-Phillip Rossi, guilty of Domestic Violence in violation of R.C. 2919.25,
beyond a reasonable doubt when such a conviction was against the sufficiency of the
evidence.”

Case No. 23 MA 0097
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{¶12} Whether the evidence is legally sufficient to sustain a conviction is a
question of law dealing with adequacy. State v. Thompkins, 78 Ohio St.3d 380, 386, 678
N.E.2d 541 (1997). An evaluation of witness credibility is not involved in a sufficiency
review, as the question is whether the evidence is sufficient if it is believed. State v.
Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79, 82; State v.
Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001). In other words, sufficiency
involves the state's burden of production rather than its burden of persuasion.
Thompkins, 78 Ohio St.3d at 390 (Cook, J., concurring).
{¶13} In reviewing the sufficiency of the evidence, the court views the evidence,
including reasonable inferences, in the light most favorable to the prosecution to ascertain
whether “any” rational trier of fact could have found the elements of the offense proven
beyond a reasonable doubt. State v. Getsy, 84 Ohio St.3d 180, 193, 702 N.E.2d 866
(1998), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979) (consider all evidence in the light most favorable to the prosecution, including
reasonable inferences); State v. Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998).
See also State v. Filiaggi, 86 Ohio St.3d 230, 247, 714 N.E.2d 867 (1999) (viewing
reasonable inferences in favor of the state). Circumstantial evidence inherently
possesses the same probative value as direct evidence. State v. Treesh, 90 Ohio St.3d
460, 485, 739 N.E.2d 749 (2001).
{¶14} The statutory elements required for Appellant's domestic violence
conviction are as follows: knowingly cause or attempt to cause physical harm to a family
or household member. R.C. 2919.25(A). Appellant contests whether the state sufficiently
showed the victim qualified as a family or household member.
{¶15} In pertinent part, the statutory definition of “family or household member”
includes “[a]ny of the following who is residing or has resided with the offender: (i) A
spouse, a person living as a spouse, or a former spouse of the offender * * *.” R.C.
2919.25(F)(1)(a)(i). The statute further defines “person living as a spouse” 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)(2).

Case No. 23 MA 0097
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{¶16} Appellant argues the state was required to but did not present evidence of
the following two aspects of cohabitation: (1) sharing family or financial responsibilities
(which entails a consideration of factors such as shelter, food, clothing, utilities, and
commingling assets); and (2) consortium (which entails a consideration of factors such
as mutual responsibility, fidelity, affection, society, cooperation, solace, comfort, aid,
friendship, and conjugal relations). Citing, e.g., State v. Williams, 79 Ohio St.3d 459, 683
N.E.2d 1126 (1997); State v. Mauldin, 7th Dist. Mahoning No. 08-MA-92, 2010-Ohio-
4192, ¶ 31 (also observing, “The burden of establishing cohabitation is not substantial.”).
{¶17} The state points out a more recent case clarified the state need not put forth
evidence on these two items where the victim testified the offender was her boyfriend and
she lived with him for a period of time before the offense. State v. McGlothan, 138 Ohio
St.3d 146, 2014-Ohio-85, 4 N.E.3d 1021, ¶ 1 (reinstating a domestic violence conviction
and reversing an appellate court’s application of Williams while finding there were no
shared living expenses). The state points out the Williams holding was based on a case
where the victim testified they did not live together (but where she was staying more nights
at the defendant’s house than at her house in the past few months). Williams, 79 Ohio
St.3d at 460. The state concludes it had no obligation to show a sharing of responsibilities
and consortium in order to prove cohabitation due to the victim’s testimony that Appellant
was her boyfriend with whom she had been living on the date of the offense and for the
six or seven months prior to the offense. The state alternatively urges there was evidence
on a sharing of responsibilities and consortium in any event.
{¶18} The domestic violence statute has been broadly applied to emphasize the
parties’ relationship as opposed to their precise living arrangements in that the term
“family or household member” has not been narrowly construed to encompass only those
who share one residential address. McGlothan, 138 Ohio St.3d 146 at ¶ 14, 17, citing
Williams, 79 Ohio St.3d at 462, 464. “[I]n order to prove cohabitation when the victim and
the defendant do not share the same residence, evidence of shared financial or familial
responsibilities and consortium is required.” (Emphasis added.) Id. at ¶ 13, citing
Williams, 79 Ohio St.3d at 463-465.
{¶19} However, these two aspects of cohabitation are not required to be
demonstrated when the victim testified to sharing a residence. In McGlothan, the victim

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testified the defendant lived in her apartment for the past year (including on the day of the
offense) “thus establishing that they did share one residence.” Id. at ¶ 15. Accordingly,
the Supreme Court concluded:
Because the state demonstrated that the defendant was the victim's
boyfriend and that they had lived together for about a year, the state had no
obligation to demonstrate the sharing of familial or financial responsibilities
and consortium to prove cohabitation in this case. Instead, based on
Robinson's testimony, the trial court could have reasonably determined that
the state established cohabitation and thus that Robinson was a person
living as a spouse with McGlothan. Because the evidence also
demonstrates that Robinson resided with McGlothan at the time of the
incident, the trial court could have reasonably concluded that Robinson was
a family or household member.
Id. (indicating the appellate court misapplied Williams).
{¶20} The McGlothan decision also pointed out the Williams case provided a
“nonexhaustive list” of factors. Id. at ¶ 16. The Court then alternatively held, even under
the inapplicable Williams holding, the record contained circumstantial evidence on shared
familial or financial responsibilities (as they shared a shelter with utilities) and on the
consortium factors (including affection, society, and aid). Id.
{¶21} As the state urges, sufficient evidence was presented to allow some rational
person to find Appellant was residing with the victim under division (F)(1)(a)(i) of R.C.
2919.25 and to find the living arrangement qualified as cohabitation under division (F)(2)
as interpreted by McGlothan. The victim testified they had been living together for six or
seven months when the March 14, 2023 offense occurred. She discussed the following
sequence of living arrangements: they lived with Appellant’s mother for four months; they
moved to an apartment in February of 2023; and a month later, they moved to the
Austintown apartment where the offense occurred within weeks. A couple putting only
one name on a lease does not eliminate a victim’s attestation at trial that the couple lived
together. Notably, the victim disclosed in writing to the property manager before moving
in that another person would be living with her in the Austintown apartment. She testified
she was referring to Appellant by making this disclosure.

Case No. 23 MA 0097
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{¶22} Likewise, the victim described Appellant as her live-in boyfriend to the police
officer who responded to the 911 call while the victim was still visibly upset and
hysterically crying. The other officer saw Appellant attempting to gather his belongings
from the bedroom of the apartment before they arrived to arrest him. This officer also
testified to the following: he believed he asked Appellant if he lived in the Austintown
apartment; he believed Appellant answered in the affirmative; it was his standard practice
to ask this question; and the corresponding police report listed the Austintown apartment
as Appellant’s address. As outlined above, the sufficiency test does not involve a
weighing of witness credibility, and circumstantial evidence inherently possesses the
same probative value as direct evidence. Yarbrough, 95 Ohio St.3d 227 at ¶ 79, 82;
Treesh, 90 Ohio St.3d at 485.
{¶23} Even applying the inapplicable Williams test, there was additional direct and
circumstantial evidence demonstrating both a sharing of responsibilities and consortium.
We note the analyzed responsibilities can be either financial or familial. McGlothan, 138
Ohio St.3d 146 at ¶ 15; Williams, 79 Ohio St.3d at 465. In addition to the aforementioned
facts on their relationship and historical living arrangements, the victim testified Appellant
was not working at the time, she provided him with money, and she was his sole
supporter. The victim said Appellant was not contributing to food or rent while living in
the apartment they shared. A sharing of responsibilities does not necessarily mean both
parties must contribute money. One person in a couple can share the shelter they pay
for by letting the other person move in with them, resulting in the couple “sharing” a shelter
(with utilities), as opposed to merely one visiting the other’s residence. See generally
Williams, 79 Ohio St.3d at 465 (holding the factors related to cohabitation are unique to
each case and the weight to be assigned to each factor is left for the fact-finder); Mauldin,
7th Dist. No. 08-MA-92 at ¶ 36 (finding the evidence demonstrated more than simply
visiting each other’s houses). Compare McGlothan, 138 Ohio St.3d 146 at ¶ 24 (French,
J., dissenting) (seemingly arguing there should be evidence the defendant actually
contributed to the household). Moreover, through her testimony about hoping to retrieve
her car keys before he drove her car away after the assault, the victim indicated her belief
that Appellant felt entitled to drive the vehicle that belonged to her. There was sufficient
evidence on the sharing of family or financial responsibilities in this case.

Case No. 23 MA 0097
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{¶24} As to consortium, in addition to describing Appellant as her long-time best
friend, the victim said he was her live-in boyfriend. The fact that she mentioned they
“weren’t sleeping together * * * we weren’t doing things a normal couple would do
together” does not, as a matter of law, mean they were not cohabiting or that the
relationship lacked the quality of consortium. Notably, this statement was made in the
context of her disclosure related to her concerns about Appellant’s infidelity. The victim
reported, and thereafter testified, that Appellant attacked her after she accused him of
cheating on her. In addition to society, companionship, and friendship, fidelity is a factor
that can be considered in evaluating the existence of consortium. Hence, arguments over
infidelity constitute evidence of consortium. Furthermore, an outburst of anger and
violence prompted by an accusation of cheating is circumstantial evidence of a
relationship with a consortium feature. We also note the victim’s statement (“we weren’t
sleeping together”) read in context could be interpreted as a temporary situation caused
by the cheating issue she was discussing. In any event, the sexual aspect of “conjugal
relations” would merely be one consideration when consortium is at issue; a couple need
not be engaging in sex acts to be considered a part of a domestic relationship with the
consortium feature. See McGlothan, 138 Ohio St.3d 146 at ¶ 16 (non-exhaustive list of
factors); Williams, 79 Ohio St.3d at 465 (using permissive terms such as “Possible factors”
or “Factors that might establish” when listing potentially relevant considerations).
Additionally, as the state further emphasizes, defense counsel expressly conceded the
existence of consortium in closing arguments at trial (while claiming there was no sharing
of family and financial resources). (Tr. 65) (“consortium which we will concede in this
case”).
{¶25} Viewing the evidence in the light most favorable to the prosecution, a
rational person could find beyond a reasonable doubt that the victim was a family or
household member of Appellant. In accordance, Appellant's sufficiency argument is
without merit.
{¶26} Observing that Appellant’s brief contains arguments on credibility or
contradictions in evidence, we point out sufficiency of the evidence and weight of the
evidence are distinct concepts with different definitions and tests. Thompkins, 78 Ohio
St.3d at 386-387. Weight of the evidence concerns the effect of the evidence in inducing

Case No. 23 MA 0097
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belief, and our review would evaluate “the inclination of the greater amount of credible
evidence, offered in a trial, to support one side of the issue rather than the other.” Id. at
387. The question of weight asks whether the state met its burden of persuasion (as
opposed to the state's burden of production involved in a sufficiency review). Id. at 390
(Cook, J., concurring). When a defendant claims the conviction is contrary to the manifest
weight of the evidence, the appellate court reviews the entire record, weighs the evidence
and all reasonable inferences, considers the credibility of witnesses, and determines
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. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596,
¶ 220, citing Thompkins, 78 Ohio St.3d at 387.
{¶27} “[T]he weight to be given the evidence and the credibility of the witnesses
are primarily for the trier of the facts.” State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-
6524, 960 N.E.2d 955, ¶ 118, quoting State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
212 (1967), paragraph one of the syllabus. “We therefore generally proceed under the
premise that when there are two fairly reasonable views of the evidence or two conflicting
versions of events, neither of which is unbelievable, we do not choose which one we
believe is more credible.” State v. Carter, 2017-Ohio-7501, 96 N.E.3d 1046, ¶ 105 (7th
Dist.), citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist. 1999).
{¶28} The factors related to cohabitation “are unique to each case and how much
weight, if any, to give to each of these factors must be decided on a case-by-case basis
by the trier of fact.” Williams, 79 Ohio St.3d at 465. Contrary to Appellant’s suggestion,
the fact that the twenty-three-year-old victim listed her parents’ address on a rental
application did not diminish her credibility at the trial. She noted she was free to come
and go at the house of her parents and the house of Appellant’s mother. Likewise,
Appellant continued to receive his mail at his mother’s house, but this did not mean he
did not continue to live with the victim (after they moved from his mother’s house to an
apartment or after they moved a month later to a different apartment). The fact that
Appellant’s mother said the victim “was periodically” staying at her house with Appellant
does not require a court to find the victim lacked credibility when she said Appellant was
her live-in boyfriend with whom she lived for six or seven months. Moreover, the trier of

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fact was not required to believe Appellant stayed at his mother’s house five nights a week
in March of 2023; it was mid-March when Appellant was removed from the apartment
during his arrest.
{¶29} The trial court saw the testimony as it was presented at trial and occupied
the best position from which to weigh the evidence and judge the witnesses’ credibility by
observing their gestures, voice inflections, and demeanor. See Seasons Coal Co. v.
Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). The trial court reasonably
concluded the victim was a family or household member of Appellant as the state’s
version of the evidence corresponding to the cohabitation aspect of this element was “not
unbelievable.” See State v. Yerkey, 7th Dist. Mahoning No. 23 MA 0057, 2024-Ohio-724,
¶ 31 (where there are two reasonable interpretations of the evidence, we may not exercise
discretion to choose a version at odds with that chosen by the trial court who presided
over the bench trial). Therefore, the decision to find Appellant guilty of domestic violence
was not contrary to the manifest weight of the evidence.
{¶30} For the foregoing reasons, Appellant’s assignment of error is overruled, his
domestic violence conviction is upheld, and the trial court’s judgment is affirmed.

Hanni, J., concurs.

Dickey, J., concurs.

Case No. 23 MA 0097
[Cite as State v. Rossi, 2024-Ohio-2566.]

For the reasons stated in the Opinion rendered herein, the assignment of error is
overruled and it is the final judgment and order of this Court that the judgment of the
Mahoning County Court #4 of Mahoning County, Ohio, is affirmed. Costs waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10464086. Public record. Not legal advice.