Bobby J. Cameron (the defendant) was found guilty in the Municipal Court, Hamilton County, of committing domestic violence. The Municipal Court judge sentenced Cameron for a violation of "R.C. 2919.25." Cameron was fined $50 plus court costs, and Cameron's shotguns were confiscated. The defendant appealed. The Court of Appeals, Walsh, J., held that the defendant did not commit domestic violence by telling his wife "I'd probably have to blow your head off to her you to shut up," and reversed the Municipal Judge's decision.

WALSH, J.

Cameron and his wife, Darlene Cameron ("Darlene"), had an argument on February 22, 1996. Darlene wanted to discuss matters involving their 12-year-old son. Darlene testified that Cameron did not want to discuss the matters at the time and that she continued to "push the issue." During the argument, Cameron claims that he said, "I'd probably have to blow your head off to get you to shut up."

Darlene testified, "He was telling me to shut up. He said something about blowing my head off that would necessitate, be necessary in order for that to occur, to get me to shut up." Deputy Michael Jacobs testified that Darlene told him that Cameron said that he was going to blow her head off.

After the argument had finished, Darlene went into another room of the house and called her mother because she was "still upset and angry." Darlene told her mother about the argument with Cameron. After the call, Darlene's mother called Darlene's sister, and then Darlene's sister called the police and reported that Cameron had threatened to shoot Darlene.

Officers arrived at Cameron's home approximately 45 minutes after the argument and found no disturbance at the home. The officers found Cameron in the living room working on a computer with their 12-year-old son, and Darlene in the back bedroom watching their 6-year-old play Nintendo. The officers noticed a shot gun on a gun rack in the home and asked if Cameron had any more weapons. Cameron told the officers that there was another shotgun in the closet. Both of the shotguns were loaded.

A complaint was filed against Cameron, which was signed by Darlene. The complaint states that Cameron violated R.C. 2919.25(A) [or] (B) by threatening "to shoot his wife, D, with a shotgun. Two shotguns were loaded and in reach of the couple's children." On the back of the complaint was a written statement that reads: "Mr. Cameron did threaten to shoot his wife, Darlene, with a shotgun. Two shotguns were loaded and available and in reach of the couple's children." During Cameron's trial, Darlene testified as to why she signed the complaint against Cameron

Q: Did you then subsequently come down [to the police station] and sign a complaint?

A: After the fact, [Cameron] and I [were] talking together, we were told someone had to go. There was I guess [a] new law because I had read it in the journal. But like, if they are called on a domestic violence call, someone gets arrested. We were told that someone had to go and I heard my husband in the living room, "No, I don't want to sign a complaint against my wife." So, I know one officer came in and asked [Officer] Jacobs will she sign a complaint, and he said yes. I said nothing.

Q: And you subsequently ended up signing it?

A: I did, but I didn't know I had the choice between doing it and not doing it.

Q:Did your complaint say that he threatened to shoot you with a loaded shotgun on February 22, 1996, at 9:30 P.M.?

A: Yes it does.

Q: That is your signature on the bottom of that correct?

A:That is my signature.

Q: You read that both the front and back where you signed that complaint twice with the same allegations?

A: Actually, I didn't read it. It was prepared. I believe that was the desk sergeant at the police station next door. My children and I waited in the lobby for over an hour and a half. We were very tired, very thirsty. Very upset, everyone. The kids, because of their tiredness. They were very testy. And when I [was] finally call[ed] in to sign it, I can real the person who presented it to me saying that he just wrote down what was in the report. I just signed it. I just wanted to go home. I knew [what] I was there for and I just signed it. I didn't read it.

Darlene also testified that she signed a restraining order against Cameron because "I was just thinking separation, distance at my control. If that's what it took, then I wanted time to think. I just wanted time." Darlene testified that at the time she was not in fear of Cameron and that he never made a movement toward the shotgun on the gun rack.

Darlene did not testify that she believed that Cameron intended to carry out the threat of shooting her, or that she believed that she was in imminent physical harm. No evidence was presented of prior acts by Cameron showing that he had harmed or had threatened to harm Darlene before the incident. Cameron claims that he did not make the statement intending to threaten Darlene.

OPINION

Cameron presents one assignment of error: "The trial court erred to the prejudice Cameron in finding Cameron guilty of domestic violence when an essential element of the crime is lacking."

The judgment entry states that Cameron violates "R.C. 2919.25." R.C. 2919.25 reads as follows:

-No person shall knowingly cause or attempt to cause physical harm to a family or household member.

-No person shall recklessly cause serious physical harm to a household member.

-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.

The elements of the crime of domestic violence (R.C. 2919.25[A]) are that a charged defendant must have "knowingly caused, or attempted to cause, physical harm to a family or household member." Physical harm is defined as "any injury, illness, or other physiological impairment, regardless of its gravity or duration" R.C. 2901.01(C). After reviewing the record, we cannot find any evidence that Cameron caused physical harm to Darlene, or even an allegation by Darlene that she had been physically harmed.

A violation of R.C. 2919.25(A) can also be demonstrated by showing that Cameron attempted to commit physical harm. The evidence in the record shows that the only act Cameron committed was the statement "I'd probably have to blow your head off to get you to shut up." No evidence was presented to show that Cameron knowingly attempted to carry out the threat. Accordingly, we hold that the trial court erred in finding Cameron had committed domestic violence by violating R.C. 2919.25 (A) or (B). R.C. 2919.25(B) substitutes the culpable mental state of "recklessly" or "intentionally" as described in paragraph (A). The analysis of the harm element is the same.

Although the complaint does not state that Cameron had violated R.C. 2919.25(C), the language of the complaint does state one of the elements of R.C. 2919.25(C) by stating that Cameron "threatened to shoot his wife." However, in order to show that a person violated R.C. 2919.25(C), it must be shown by the prosecution that "the victim believed the offender would cause her imminent physical harm at the time the incident tool place." The state of mind of the victim is an essential element of this crime. While it is true that victims may change their testimony to protect a spouse, there must be some evidence either that a victim stated, or that from other evidence it could be inferred, that the victim thought that the accused would cause imminent physical harm.

Under the facts of this case, we find no violation of R.C. 2919.25(C). The record shows that Darlene did not call the police and that she remained in the house. Further, when the police arrived, Darlene was watching the six-year-old play Nintendo, and the twelve-year-old was with Cameron. The only evidence presented is that Cameron uttered a statement which could at best be described as a conditional threat, and that the means to carry out the threat were available to Cameron. No evidence was presented that Cameron ever made a motion toward a shotgun, or that he took any other action or made any other statement in furtherance of the threat which would cause the victim to believe she would suffer imminent physical harm. The victim in the fact stated that she did not believe the threat.

Further, R.C. 2919.25(C) is not a lesser offense of R.C. 2919.25(A) or (B) because R.C. 2919.25(A) or (B) can be violated without the victim believing that the offender "will cause imminent physical harm." Because R.C. 2919.25(C) is not a lesser offense of R.C. 2919.25(A) or (B), the complaint against Cameron cannot be amended to show a violation of R.C. 2919.25(C) because it would change the identity of the crime, and would be a violation of Crim.R. 7(D).Id. at 628, 656 N.E. 2d at 373374. The court's order is hereby vacated.

Accordingly, the judgment of the trial court is reversed. All fines paid and/or property confiscated is to be returned to Cameron. Judgment is entered for Cameron.

Judgment reversed.

DISSENT

POWELL, J.

I must respectfully dissent. The record in this case shows simply that the defendant threatened to blow his wife's head off to get her to shut up; that the threat worked and the victim "shut up"; that the victim called her family , who in turn called the police; that the police arrived at the victim's home forty-five minutes later and found the victim in the bedroom with her child, still "visibly shaken"; that the officers found loaded firearms in the room with the defendant acknowledged making the statement; and that the victim signed the complaint and the restraining order so she would so she would have time to think.

Applying the standard advanced by the Ohio Supreme Court, I feel that there is ample evidence upon which the trial court could rely to find the essential elements of the crime proven beyond a reasonable doubt. The trial court judge is the fact finder, not this court. The trial judge clearly did not believe the victim's testimony that would protect her spouse, but rather shoes to believe the victim's testimony that would protect her spouse, but rather chose to believe the disinterested police officer's testimony as to the victim's state when they found her still "visibly shaken" forty-five minutes later. This evidence is sufficient for the fact finder to infer that the victim thought that the accused would cause her imminent physical harm.

1. State the elements of the offense of domestic violence that Bobby J. Cameron was convicted of.
2. List the facts relevant to deciding whether Cameron is guilty of domestic violence
3. Summarize the arguments of the majority opinion reversing the guilty verdict.
4. Summarize the dissent's argument in favor of upholding the trial court's judgment.
5. Which opinion do you think is "right"? Defend your answer.