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State v. Lee

Court of Appeals of Iowa

February 21, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
KOHLVIDAS BRYANT LEE, Defendant-Appellant.

         Appeal from the Iowa District Court for Dubuque County, Monica L. Ackley, Judge.

         A defendant appeals his convictions, challenging the sufficiency of the evidence and asserting trial counsel had a conflict of interest.

          Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant Attorney General, for appellee.

          Considered by Vogel, P.J., Mullins, J., and Scott, S.J. [*]

          .

          SCOTT, Senior Judge.

         Kohlvidas Lee appeals his convictions for domestic abuse assault causing bodily injury, willful injury causing bodily injury, and child endangerment, in violation of Iowa Code sections 708.2A(1), 708.2A(3)(b), 708.4(2), 726.6(1)(a), and 726.6(7) (2016). On appeal, he asserts there is insufficient evidence to prove he was a household member as is necessary to establish both domestic abuse assault and child endangerment. He also claims the evidence was insufficient to prove he knowingly created a substantial risk to the minor's physical, mental, or emotional health, which is necessary for the child-endangerment conviction. Finally, he claims he should be granted a new trial because counsel made himself an unsworn necessary witness when he conducted a phone conversation with the complainant in this case. Because we conclude the evidence was sufficient and Lee did not prove counsel's conflict of interest adversely affected counsel's performance, we affirm.

         I. Sufficiency of the Evidence.

         We review Lee's challenge to the sufficiency of the evidence for correction of errors at law. State v. Ortiz, 905 N.W.2d 174, 179 (Iowa 2017).

We view the evidence "in the light most favorable to the State, including all reasonable inferences that may be fairly drawn from the evidence." State v. Huser, 894 N.W.2d 472, 490 (Iowa 2017) (quoting State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012)). We uphold the verdict if substantial evidence in the record supports it. State v. Neiderbach, 837 N.W.2d 180, 216 (Iowa 2013). "Evidence is . . . substantial if, when viewed in the light most favorable to the State, it can convince a rational jury that the defendant is guilty beyond a reasonable doubt." Id. (quoting Sanford, 814 N.W.2d at 615).

Ortiz, 905 N.W.2d at 180.

         Lee challenges both his convictions for domestic abuse assault and child endangerment as lacking substantial evidence.[1]

         A. Household Member. One of the ways for an assault to become a domestic abuse assault is for the assault to take place "between family or household members who resided together at the time of the assault." See Iowa Code § 232.6(2)(a). In addition, to be guilty of child endangerment, a person must be the "parent, guardian, or person having custody or control over a child . . . or a person who is a member of the household in which a child or such a minor resides." See Id. § 726.6(1). There is no allegation that Lee was a family member or that he was a parent, guardian, or person who had custody and control over the child, so both convictions rest on Lee's status as a "household member."

         Iowa Code § 236.2(4)(a) defines "family or household members" for the purpose of the domestic abuse chapter to mean "spouses, persons cohabiting, parents, or other persons related by consanguinity or affinity." In State v. Kellogg, the supreme court developed a nonexclusive lists of factors to help determine whether parties were "cohabiting, " which includes:

1. Sexual relations between the parties while sharing the same living quarters.
2. Sharing of income or expenses.
3. Joint use or ownership of property.
4. Whether the parties hold themselves out as husband and wife.
5. The continuity of the ...

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