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State v. Virgil

Supreme Court of Iowa

May 25, 2017

STATE OF IOWA, Appellee,

         On review from the Iowa Court of Appeals.

         Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.

         Defendant seeks further review of court of appeals decision affirming his conviction for domestic abuse assault.

          Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg, Assistant Appellate Defender, for appellant.

          Thomas 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.


         In this 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"[1] or a new trial.

         We 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.

         On our 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.

         I. Background Facts and Proceedings.

         The 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.[2]

         During 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 nonfamily cohabitants.

         Virgil 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.

         The 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."[3] 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.

         The 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.

         N.J.'s 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.

         The 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?

         Both 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.

         The 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 simple ...

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