review from the Iowa Court of Appeals.
from the Iowa District Court for Black Hawk County, George L.
seeks further review of court of appeals decision affirming
his conviction for domestic abuse assault.
C. Smith, State Appellate Defender, and Maria Ruhtenberg,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, Richard J. Bennett, Special
Counsel (until withdrawal), Tyler J. Buller and Kyle P.
Hanson, Assistant Attorneys General, Lucas A. Sterbick, Law
Student, Tom Ferguson, County Attorney, and Michelle Wagner,
Assistant County Attorney, for appellee.
appeal, we must decide whether the defendant, convicted of
domestic abuse assault, third offense, under Iowa Code
section 708.2A(4) (2015), is entitled to a new trial because
his trial counsel failed to request a jury instruction
defining "household member." The defendant argues
the State failed to meet its burden to prove this
"assault [was] between persons who have been . . .
household members residing together within the past
year" under sections 708.2A(4) and 236.2(2)(d).
He spent several nights a week at the victim's home
before their breakup without sharing expenses. The first
trial ended in a hung jury. During deliberations in the
second trial, the jury asked the court to "Define:
Reside Domestic" and was referred to their
"ordinary meaning." Defense counsel never requested
a jury instruction defining "household members, "
but moved for a judgment of acquittal based on the
insufficiency of evidence on that issue, which the district
court denied. The jury found the defendant guilty, and the
court sentenced him to an indeterminate sentence of up to
five years in prison. The defendant appealed, seeking to
"vacate the domestic portion of his
conviction" or a new trial.
transferred the defendant's appeal to the court of
appeals, which affirmed his conviction over a dissent. The
majority concluded defense counsel had breached an essential
duty by failing to request the definitional instruction, but
the defendant failed to show the prejudice required for a new
trial because the State had presented sufficient evidence of
cohabitation. The dissent concluded the evidence "was a
toss-up" on that element and found the defendant
established prejudice. We granted the defendant's
application for further review.
review, we conclude the defendant met his burden to show he
received ineffective assistance of counsel in district court.
The central issue at trial was whether the defendant and
victim had been cohabiting. The jury should have been given
the definitional instruction, which accurately sets forth the
factors bearing on that issue. Defense counsel's failure
to request such an instruction was prejudicial, and defendant
is entitled to a new trial.
Background Facts and Proceedings.
jury could find the following facts from the evidence at
trial. The defendant, Eddie Virgil, and the victim, N.J., age
twenty-three, began a romantic relationship in late 2013 that
included sexual intimacy. N.J. was an unemployed mother
living in a house in Waterloo with her four children, none
fathered by Virgil. Virgil assaulted N.J. in May 2014. N.J.
broke off her relationship with Virgil shortly thereafter. In
August, Virgil again assaulted N.J. He was charged with a
third assault in October, and his conviction on that charge
is the subject of this appeal.
their eight-month relationship, Virgil spent three to four
nights every week at N.J.'s rented home. He was not named
on her lease or utilities and did not pay any rent or
household expenses. When he stayed over, they ate meals
together. He kept a cell phone and a garbage bag with some
clothes at N.J.'s, but no other possessions. He kept the
rest of his belongings at his uncle or cousin's home,
where he stayed three or four nights a week. He did not have
a key to N.J's, but could come and go as he pleased. He
was not allowed to have guests. He did not receive mail or
phone calls at N.J.'s, but she believed he gave his
family her address as his own. He typically arrived in the
evening for supper and spent the night in her room. He would
usually leave the next morning about nine or ten, after she
walked one of her children to school. On most days, he
provided child care. Although N.J. claimed they were not
living together, she acknowledged saying that to avoid
jeopardizing her section 8 housing subsidy, which prohibits
assaulted N.J. the first time on May 14. N.J. told him he was
no longer allowed to stay in her home, and their relationship
ended by June. Virgil did not take it well. He assaulted her
a second time on August 31. His third assault was on the
morning of October 14. That day, N.J. walked her son to
preschool a few blocks away. On her way home, Virgil
confronted her, asking how she could do this to him and
telling her he had no place to go. N.J. was frightened and
walked faster to reach her doorway. He caught her and pushed
inside, yelling at her. He struck her in the face, which
bloodied her nose and blackened her left eye. He took her
phone, threw it, and ran away. N.J. went to the hospital,
where the police were called. Waterloo police officer Randy
Hammitt took her statement and photographed her injuries.
State charged Virgil with domestic abuse assault, third
offense, in violation of Iowa Code section 708.2A(4), a class
"D" felony. The case was tried to a jury on January
20-21, 2015. The marshaling instruction required the State to
prove the assault occurred "between family or household
members who resided together at the time of the incident or
persons who have been family or household members residing
together within the past year but not residing together at
the time of the incident." If that element was not proven, the
instructions permitted the jury to convict him of simple
assault. Virgil did not request an instruction defining
"household member, " and the court did not give
such an instruction. The jury deadlocked with three voting to
convict and nine to acquit. The court declared a mistrial.
case was tried to a second jury on March 31. The State was
unable to locate N.J. The district court found N.J.
unavailable and allowed her testimony from the first trial to
be read into evidence.
testimony described the assault and her earlier living
arrangements with Virgil. The emergency room physician who
examined N.J. testified her injuries were consistent with
assault. A friend testified Virgil had lived with N.J. in
2014, and N.J. had called her crying after Virgil assaulted
her. Officer Hammitt testified about N.J.'s statement
given at the hospital, and the State admitted the photographs
of N.J.'s injuries. Virgil did not testify or call any
witnesses. At the close of evidence, Virgil moved for a
judgment of acquittal on grounds that the State had failed to
prove "there was a domestic relationship" or that
Virgil injured N.J. The district court denied the motion.
marshaling instruction at the second trial was the same as
the first. Again, no instruction defining household member
was requested or given. During deliberation, the jury sent a
note to the court, stating, "Define: Reside
Domestic." The court discussed the matter with counsel
outside the presence of the jury:
THE COURT: . . . There is no definition that I am aware of as
to what reside means other than its common sense meaning. As
far as domestic goes, I think the only instruction that I
probably can do is to refer them to the marshaling
instruction, numbered paragraph three, and they will have to
go from there. What are your thoughts?
counsel stated they "agree[d]" with the court. The
court therefore told the jury,
The only advice we can give you on that would be reside has
its common ordinary every day meaning, so you will have to
resolve that issue as to whether the state has established by
evidence beyond a reasonable doubt whether Mr. Virgil resided
[with N.J.] or not. As far as domestic goes, the best
definition we can give you is in the marshaling instruction,
I believe that's [No.] 20, numbered paragraph 3[, ] and
you will have to make your determination on the basis of the
evidence as to whether there has been a domestic relationship
proven here by evidence beyond a reasonable doubt, domestic
again being best defined by that numbered paragraph three,
has the state proven one or the other of those matters.
jury found Virgil guilty of domestic abuse assault. Virgil
had two prior domestic assault convictions. The court
sentenced him to an indeterminate term of up to five years in
prison with a mandatory one-year minimum and a $750 fine. If
he had been convicted only of the lesser included offense of