1. IN THE IOWA DISTRICT COURT
FOR FOLK COUNTY, IOWA
____________________________________
)
STATE OF IOWA, )
)
Plaintiff, )
)
v. ) Case No. 00-cv-0000 CSL
)
LARRY JONES, ) PRE-TRIAL BRIEF
)
Defendant. )
____________________________________ )
Defendant, Larry Jones, submits the following Pre-trial Brief setting forth the issues presented in this
matter.
Respectfully submitted,
Dated: February 25, 2011 Cameron Waddell____________
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2. IN THE IOWA DISTRICT COURT
FOR FOLK COUNTY, IOWA
____________________________________
)
STATE OF IOWA, )
)
Plaintiff, )
)
v. ) Case No. 00-cv-0000 CSL
)
LARRY JONES, ) PRE-TRIAL BRIEF
)
Defendant. )
____________________________________ )
Question Presented
Whether the domestic abuse act and felonious assault would apply to an individual in the
State of Iowa, when that person, during an argument with his roommate and former partner,
pushes the roommate and the roommate is unintentionally hit in the mouth causing bruising and
bleeding from the lips.
Statement of the Facts
Chuck and Larry have long been roommates at an apartment at 123 Fieldcrest, Des
Moines, Iowa dating back to 2005. Exhibit A. While living in the apartment Chuck and Larry
shared rent, utilities and had a joint bank account. Exhibit A. Further they were in an intimate
relationship and held a commitment ceremony in 2005. Exhibit A. A few years later, relations
turned sour and they both agreed to dissolve the written commitment they had signed, this was
on July 4, 2009. Exhibit A. Although they had ended the intimate relationship, because of
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3. financial reasons they agreed it was best to live together and share expenses. Exhibit A. Chuck
then began dating Mitchell Anderson. Exhibit A. Chuck testified that despite his relationship
with Mitchell, within the past year a sexual encounter had occurred with Larry. Exhibit B. Larry
further testified that in early 2010 they came to an understanding and were on good terms but as
nothing more than friends. Exhibit A. Mitchell came to pick up Chuck for a date on December
31st, 2010. Exhibit C. Shortly thereafter, Mitchell began provoking Larry with comments about
his presence at the apartment. Exhibit C. Chuck then attempted to persuade Mitchell to leave and
they began to argue. Exhibit C. During the argument Larry tried to separate Mitchell and Chuck.
Exhibit A. The argument escalated to shoving and Chuck was accidentally hit in the mouth by
Larry. See, Exhibit A and Exhibit C. Larry left the premises to go cool off. Exhibit A. Chuck
sustained bruised and bloodied lips. Exhibit C. When the police arrived Chuck was alone having
told Mitchell to leave after the incident. Exhibit B.
Statement of the Argument
A person would not be guilty of domestic abuse because the six factors of cohabitation
are not supported strongly enough by the facts. The intimate relationship was terminated over a
year and a half before the incident. Neither party shared income with the other. Also, there had
been no sexual relations in nearly a year. These facts bring into question the sufficiency of
continuity of the relationship, length of the relationship, shared income and expenses and holding
each other as man and wife. In addition an intimate relationship does not exist because of a lack
of expectations of sexual involvement and the termination of the prior relationship. Further
felony assault would not apply because a bruised lip does not satisfy the requirement of a serious
injury.
Argument I
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4. Larry’s alleged assault would not fall under the Domestic Abuse Act in Iowa because he
and Chuck were not in cohabitation.
Chuck and Larry were not in cohabitation because the evidence concerning the six indicia
of cohabitation lacks strength. Domestic abuse in Iowa is governed by the Iowa Domestic Abuse
Act. Iowa Code § 236.2 (2009). Iowa code 236.2 defines domestic abuse as follows:
Domestic abuse is committing assault as defined in section 708.1 of the Iowa code
under any of the following circumstances:
The assault is between family or household members who resided together at
the time of the assault.
Iowa Code § 236.2 (2010).
Larry’s alleged assault would not meet the requirements of Iowa Code § 236.2 (2)(a), because
he would not fall under the category of household or family member residing together.
Under Iowa Code § 236.2, it is stated that domestic abuse will apply where an assault
occurs between household members. Iowa Code § 236.2 (2)(a). The statute then precisely
defines “household members” as “spouses, persons cohabiting, parents, or other persons related
by consanguinity or affinity.” Iowa Code § 236.2(4)(a). Beyond the Iowa Code, case precedent
has set forth six non-exclusive indicia for the jury to consider in cases involving cohabitation,
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 relationship. 6. The length of the relationship.
State v. Kellogg, 542 N.W.2d 514, 518 (Iowa 1996).
The court went on to say that the presence or lack of sexual relations or any other factor is not an
absolute in determining cohabitation. Kellogg, 542 N.W.2d at 518. In order to determine whether
cohabitation exists the court may weigh each of the factors listed in Kellogg. Iowa courts have
found that there was no cohabitation, when the defendant and victim lived together but had not
been sexually active for over a year, did not hold each other as spouses and shared no expenses.
State v. Benesh, 2010 Iowa App. LEXIS 140 (Iowa Ct. App. Mar. 10, 2010). The court limits
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5. cohabitation by rejecting the idea that people simply “…dwelling or living together in the same
place…” are in cohabitation. Kellogg, 542 N.W.2d at 518. The court simplifies cohabitation in
Gibson by making it a two step analysis. “First, the "unrelated male" was to live or reside in the
dwelling. Second, the petitioner and the unrelated male were to live together in the manner of
husband and wife.” In re Marriage of Gibson, 320 N.W.2d 822, 824 (Iowa 1982).
Chuck and Larry did not hold each other as man and wife.
Chuck and Larry did not hold each other as an intimate couple when the alleged assault
occurred. Kellogg stated that one indication of cohabitation could be a couple “…holding each
other as man and wife…” Kellogg, 542 N.W.2d at 518. Iowa courts have considered the meaning
of cohabitation and its relation to holding one another as “man and wife”. The court in Gibson
states in its analysis of cohabitation that one of two major factors was the couple holding each
other as “husband and wife.” In re Marriage of Gibson, 320 N.W.2d at 824.
Chuck and Larry have not considered themselves intimate with one another or in a
relationship since July of 2009. Exhibit A. They did consider themselves as a couple “holding
each other as husband and wife.”, however that was several years before the alleged assault
occurred. Kellogg, 542 N.W.2d at 518. Larry testified that they “…considered going to Canada
to get married…” however in lieu of that they had a, “…commitment ceremony…” instead.
Exhibit A. Also the testimony of Larry shows that “In July, we signed an agreement dissolving
our commitment agreement…” Exhibit A. The dissolving of the commitment showed the
breaking of the intimate relationship and thus they no longer “held each other as husband and
wife”. Kellogg, 542 N.W.2d at 518. Exhibit A. Iowa’s Supreme Court legalized same sex
marriages in 2009. Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). In nearly two years since the
decision, Chuck and Larry made no attempt to get married, which demonstrates they did not
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6. intend to be held as husband and wife. Therefore Chuck’s relationship with Larry was not
analogous to that of a husband and wife at the time of alleged assault.
Larry and Chuck split expenses only because they could not afford to live alone.
Although Larry and Chuck did continue to split expenses and joint use of the property, it
was a financial necessity, not a product of their relationship. Kellogg sets out that “joint use of
the property” and “sharing of income or expenses” are considerations in cohabitation. Kellogg,
542 N.W.2d at 518.
Chuck and Larry did share a bank account but they closed it in July of 2009, when they
dissolved their commitment to one another. Exhibit C. Thus they were no longer sharing income
at the time of the alleged assault. They did continue to share expenses but as Larry testifies, “We
decided to keep the apartment because…neither of us could afford to live in that area alone.”
Exhibit A. Thus the decision to live together after breaking up was a financially driven decision.
Neither party could afford to live in that particular area alone, so they just remained in the
apartment. Chuck and Larry did share use of the property so it is most likely that a court would
find it indicative of cohabitation. However, because they no longer share income and only share
expenses because it was necessary, these factors are not strong enough evidence for a finding
that Chuck and Larry were in cohabitation.
Larry and Chuck’s relationship had been over for a year and a half, thus there was no
continuity or length of relationship to demonstrate cohabitation.
Chuck and Larry would not have continuity or length of relationship necessary to find
cohabitation because their relationship ended a year and a half ago. Kellogg set forth that one of
the indicia of cohabitation was “The continuity of the relationship.” and “The length of the
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7. relationship.” Kellogg, 542 N.W.2d at 518. Thus the court can look at the length of the intimate
relationship and continuity to help determine if two people are in cohabitation.
Chuck and Larry terminated the relationship in 2009 exhibiting a lack of
continuity. Exhibit A. Further exemplifying this lack of continuity is the fact that Chuck has been
seriously involved with Mitchell for a year. Exhibit A. Chuck being intimately involved with
Mitchell and the separation of intimate activity with Larry show a lack of continuity of the
relationship. Chuck and Larry’s intimate relationship did last five years. Exhibit B. However in
this situation also the period of time between the relationship ending and the alleged assault is
important. A period of time as long as a year or more would be evidence that the two parties
were no longer together in an intimate sense. Exhibit A. The substantial amount of time between
the end of the relationship and the assault combined with the lack of continuity make a strong
case that cohabitation is not present between Chuck and Larry.
Chuck and Larry did have sexual relations while living together, but it was nearly a year ago
diminishing its importance towards cohabitation.
Larry and Chuck did have sexual relations however they were not recent and thus should
not merit strong consideration regarding cohabitation. Sexual relations between roommates may
be evidence of cohabitation. Kellogg, 542 N.W.2d at 518. The court has held that “…sexual
conduct is not the lone determinative factor in cases of cohabitation.” Kellogg, 542 N.W.2d at
518.
Larry testified that in early 2010 they “decided it really was over.” Exhibit A. Chuck
does testify that he and Larry have “engaged in sexual relations.” Exhibit B. Although sexual
relations did exist after the termination of the relationship, Chuck describes the sexual relations
as an “incident.” Exhibit B.. Thus when considering the sexual relations in the scope of the
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8. cohabitation test provided by Kellogg, it should be treated as an isolated incident. Therefore
because it was an isolated incident that should be taken into account along with the fact sexual
relations is not necessarily a determinative fact in cohabitation.
Argument II
Larry and Chuck were not in an intimate relationship because they only had one isolated
sexual encounter and neither expected further romantic involvement.
An intimate relationship between Larry and Chuck does not exist because they had only
one isolated incident of intimate contact which both agreed was a mistake and that no further
sexual involvement was expected. The Iowa legislature has set out that one must consider four
non-exclusive factors regarding intimate relationships, 1)duration of the relationship,
2)frequency of interaction, 3)whether the relationship has been terminated and 4) expectation of
sexual or romantic involvement. Iowa Code § 236.2 (2)(e) (2010).
An intimate relationship was not found when two people had ended their relationship and
they had no further sexual contact and remained living in the same house sharing the same bed.
Benesh, 2010 Iowa App. LEXIS 140 at 17-21. The Benesh court ruled that one may consider if
sexual relations have taken place within the year prior along with the other four factors of an
intimate relationship. Benesh, 2010 Iowa App. LEXIS 140 at 17-21.
Applying the factors to Larry and Chuck will reveal they have had sexual relations within
the past year and were in an intimate relationship in the past for four years. Exhibit C. However,
the sexual relations within a year were an isolated incident and they discussed the situation and
determined it was a mistake. Exhibit A. Therefore there were no frequent intimate relations. §
236.2 (2)(e) (2010). The intimate relationship had been officially terminated in 2009, which
proves that the relationship had been terminated. § 236.2 (2)(e) (2010). The discussion between
Chuck and Larry would be evidence that neither party expected romantic or intimate
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9. involvement. § 236.2 (2)(e) (2010). Thus only the fact supporting an intimate relationship is that
they had sexual relations one time nearly one year before the assault. Like Benesh where the
couple maintained a residence together but were no longer intimate. Benesh, 2010 Iowa App.
LEXIS 140 at 17-21. Chuck and Larry were not in an intimate relationship.
Argument III
Larry should not have been charged with felony assault because the act did not cause
serious bodily injury to Chuck.
It would be an error to charge Larry with felonious assault because the injuries sustained
by Chuck do not qualify as serious bodily injuries. The Iowa legislature through statute has
established what punishments will be the result of an assault in Iowa Code 708.2 below:
1. A person who commits an assault, as defined in section 708.1, with the
intent to inflict a serious injury upon another, is guilty of an aggravated
misdemeanor.
2. A person who commits an assault, as defined in section 708.1, and who
causes bodily injury or mental illness, is guilty of a serious misdemeanor.
4. A person who commits an assault, as defined in section 708.1, and who
causes serious injury, is guilty of a class "D" felony.
6. Any other assault, except as otherwise provided, is a simple
misdemeanor.
Iowa Code § 708.2.
Further, § 702.18 defines the term “serious injury” which defines the difference between assault
that is a misdemeanor and assault that is felonious. The statute is listed as follows:
1. "Serious injury" means any of the following:
b. Bodily injury which does any of the following:
(1) Creates a substantial risk of death.
(2) Causes serious permanent disfigurement.
(3) Causes protracted loss or impairment of the function of any bodily member or
organ.
Iowa Code § 702.18
The Iowa courts have stated that punishment for assault will vary, “Because the resulting
injury of each offense varies by crime, there is a rational basis in directing the punishment in
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10. accordance to the severity of the resulting injury.” State v. Ostrander, 2010 Iowa App. LEXIS
760 (Iowa Ct. App. July 14, 2010). In order to find serious injury, one must show evidence that
the assault created a substantial risk of death, caused permanent disfigurement or loss of function
of a bodily member or organ. § 708.2. Welton says that, “We believe the term "serious injury" in
itself denotes a greater injury than the "pain or injury…" included in the definition of assault.”
State v. Welton, 300 N.W.2d 157, 160 (Iowa 1981). Serious injury has been shown when the
victim had a broken jaw and needed surgery. Welton, 300 N.W.2d 157 at 159.
One must consider the injuries sustained by Chuck and how they would apply to the three
types of serious bodily injury. According to the facts presented in the police report Larry did not
receive any medical treatment. Exhibit B. Unlike in Welton where the defendants conduct caused
an injury so severe that it created a fracture and required surgery, Chuck’s injuries seem to be
minor. See, Welton, 300 N.W.2d 157 at 159 and Exhibit B. An injury that was not serious
enough to require treatment does not “creates a substantial risk of death” , “causes serious
permanent disfigurement” or “Causes protracted loss or impairment…” of any body part. §
702.18. The court in Welton, also made note that a serious injury was one beyond the normal
definition of “pain and injury” within the assault statute. Welton, 300 N.W.2d 157 at 159.
Therefore Chuck’s bruised lip that requires no medical attention is unlikely to meet the standard
of beyond “pain and injury” so felony assault would not apply.
Conclusion
Larry could not be convicted of domestic abuse because the weight of the evidence in
comparison with the six indicia would not lead to a finding of cohabitation with Chuck. Also
Larry could not be convicted with felony assault because the injury Chuck sustained was
insufficient to meet the burden established by statute. The requirement is that the injury is serious
and in this case a bloodied lip would not be satisfactory for felony assault.
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