from the Iowa District Court for Dubuque County, Monica L.
defendant appeals his convictions, challenging the
sufficiency of the evidence and asserting trial counsel had a
conflict of interest.
C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Genevieve Reinkoester,
Assistant Attorney General, for appellee.
Considered by Vogel, P.J., Mullins, J., and Scott, S.J.
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.
Sufficiency of the Evidence.
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.
challenges both his convictions for domestic abuse assault
and child endangerment as lacking substantial
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."
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
5. The continuity of the ...