The Akron Legal News

Appeal denied for man who attacked his ex-wife

ANNIE YAMSON
Special to the Legal News
Published: May 27, 2015

A Montgomery County man who was found guilty on several charges relating to a domestic violence incident had his convictions affirmed recently when the 2nd District Court of Appeals considered the case out of the Montgomery County Court of Common Pleas.

The defendant, Rodney Perander, appealed to the 2nd District court challenging his convictions and sentences for kidnapping, a firearm specification and domestic violence.

The lower court sentenced Perander to three years in prison for the kidnapping, a consecutive three years for the firearm specification and a concurrent 180-day jail term for the domestic violence.

The charges against Perander were based on allegations by his ex-wife that, in the early morning hours of March 23, 2013, while in possession of a gun, Perander prevented her from leaving their residence, threatened her physically and sexually, put the gun in her mouth and hit her with the gun over a period of two or three hours.

The matter went to trial by jury in March 2014.

Although Perander received six years in prison for his felony and specification, his subsequent appeal mostly took issue with the domestic violence conviction, a misdemeanor.

He first challenged the trial court’s categorization of his ex-wife as a family member.

Perander argued that he should have been acquitted on the domestic violence charge since he and the victim were not married.

Presiding Judge Jeffrey Froelich, who wrote the opinion on behalf of the court of appeals, cited R.C. 2919.25(A), the domestic violence statute.

“No person shall knowingly cause or attempt to cause physical harm to a family or household member,” the statute states. “Family or household member means any of the following: Any of the following who is residing or has resided with the offender: A spouse, a person living as a spouse, or a former spouse of the offender.”

According to the record, Perander and the victim were married in September 2010 and divorced one year later.

They then resumed their romantic relationship and moved back in together at Perander’s father’s house in November 2012.

Though neither of them paid rent, the victim testified that she helped with household expenses and assisted in the care of Perander’s father.

The two continued to live together until the incident for which Perander was charged, though they both admitted that, at that point, they were staying in separate rooms and were no longer romantically involved.

“Perander argues that he and (the victim) were not ‘living together as husband and wife,’ but as ‘roommates’ when the alleged offenses occurred in March 2013,” Froelich wrote. “He contends that the term ‘former spouse,’ as used in the statute, ‘would only indicate and attempt to protect such persons in cases of offenses occurring prior to the end of such a relationship.’”

To the best of the appellate panel’s understanding, Perander’s argument was that the term “former spouse” only applied to someone who was a spouse at the time of the offense, but was a former spouse at the time of prosecution.

“Perander does not cite any authority for his narrow interpretation of the term ‘former spouse,’” Froelich wrote. “If the language of the statute in question is clear and definite, we must apply the statute as it is written.”

The appellate panel held that the domestic violence statute explicitly prevents assault against a former spouse and against a household member. The victim was both.

“We reject Perander’s suggestion that any additional characteristics of the relationship, such as the timing of the divorce or a change in marital status since the time of the alleged domestic violence, can reasonably be inferred from the use of the term ‘former spouse,’” Froelich wrote. “The jury could have reasonably concluded that (the victim) was a ‘person living as a spouse’ who was cohabitating with the offender; neither the sharing of a bedroom nor conjugal relations is a prerequisite to a finding of cohabitation.”

The court of appeals proceeded to rule that the victim was properly identified as a household member and former spouse and it overruled Perander’s first three assignments of error.

The reviewing court also held that Perander received adequate representation from his counsel, overruling his fourth assignment of error, and proceeded to address Perander’s last argument in which he claimed that cumulative error deprived him of a fair trial.

According to Perander’s appellate brief, “By elevating this incident to the level of a domestic dispute, it gave the jury a rationale for an otherwise inexplicable event.”

Apparently, because he had no history of violence, Perander claimed that “in the context of (his) life, the purported incident is inexplicable.”

He continued, “But give it the context of a domestic dispute, and what was otherwise inexplicable becomes mundane.”

“Perander argues ... that his conviction was somehow unfairly boot-strapped from the characterization of the offense as domestic violence,” Froelich wrote. “The jury’s verdict demonstrates its conclusion that Perander had knowingly caused or attempted to cause physical harm to (the victim).”

“Such conduct constitutes a criminal offense,” Froelich concluded.

The judgment of the Montgomery County court was subsequently affirmed. Judges Michael Hall and Jeffrey Welbaum joined Froelich to form the majority.

The case is cited State v. Perander, 2015-Ohio-1752.

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