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  1. 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 thismatter. Respectfully submitted,Dated: February 25, 2011 Cameron Waddell____________ 1
  2. 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 theState 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 andbleeding from the lips. Statement of the Facts Chuck and Larry have long been roommates at an apartment at 123 Fieldcrest, DesMoines, Iowa dating back to 2005. Exhibit A. While living in the apartment Chuck and Larryshared rent, utilities and had a joint bank account. Exhibit A. Further they were in an intimaterelationship and held a commitment ceremony in 2005. Exhibit A. A few years later, relationsturned sour and they both agreed to dissolve the written commitment they had signed, this wason July 4, 2009. Exhibit A. Although they had ended the intimate relationship, because of 2
  3. 3. financial reasons they agreed it was best to live together and share expenses. Exhibit A. Chuckthen began dating Mitchell Anderson. Exhibit A. Chuck testified that despite his relationshipwith Mitchell, within the past year a sexual encounter had occurred with Larry. Exhibit B. Larryfurther testified that in early 2010 they came to an understanding and were on good terms but asnothing more than friends. Exhibit A. Mitchell came to pick up Chuck for a date on December31st, 2010. Exhibit C. Shortly thereafter, Mitchell began provoking Larry with comments abouthis presence at the apartment. Exhibit C. Chuck then attempted to persuade Mitchell to leave andthey 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 byLarry. See, Exhibit A and Exhibit C. Larry left the premises to go cool off. Exhibit A. Chucksustained bruised and bloodied lips. Exhibit C. When the police arrived Chuck was alone havingtold 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 cohabitationare not supported strongly enough by the facts. The intimate relationship was terminated over ayear and a half before the incident. Neither party shared income with the other. Also, there hadbeen no sexual relations in nearly a year. These facts bring into question the sufficiency ofcontinuity of the relationship, length of the relationship, shared income and expenses and holdingeach other as man and wife. In addition an intimate relationship does not exist because of a lackof expectations of sexual involvement and the termination of the prior relationship. Furtherfelony assault would not apply because a bruised lip does not satisfy the requirement of a seriousinjury. Argument I 3
  4. 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 indiciaof cohabitation lacks strength. Domestic abuse in Iowa is governed by the Iowa Domestic AbuseAct. 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 assaultoccurs between household members. Iowa Code § 236.2 (2)(a). The statute then preciselydefines “household members” as “spouses, persons cohabiting, parents, or other persons relatedby consanguinity or affinity.” Iowa Code § 236.2(4)(a). Beyond the Iowa Code, case precedenthas 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 anabsolute in determining cohabitation. Kellogg, 542 N.W.2d at 518. In order to determine whethercohabitation exists the court may weigh each of the factors listed in Kellogg. Iowa courts havefound that there was no cohabitation, when the defendant and victim lived together but had notbeen 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 4
  5. 5. cohabitation by rejecting the idea that people simply “…dwelling or living together in the sameplace…” are in cohabitation. Kellogg, 542 N.W.2d at 518. The court simplifies cohabitation inGibson by making it a two step analysis. “First, the "unrelated male" was to live or reside in thedwelling. Second, the petitioner and the unrelated male were to live together in the manner ofhusband 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 assaultoccurred. Kellogg stated that one indication of cohabitation could be a couple “…holding eachother as man and wife…” Kellogg, 542 N.W.2d at 518. Iowa courts have considered the meaningof cohabitation and its relation to holding one another as “man and wife”. The court in Gibsonstates in its analysis of cohabitation that one of two major factors was the couple holding eachother 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 arelationship since July of 2009. Exhibit A. They did consider themselves as a couple “holdingeach other as husband and wife.”, however that was several years before the alleged assaultoccurred. Kellogg, 542 N.W.2d at 518. Larry testified that they “…considered going to Canadato 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 dissolvingour commitment agreement…” Exhibit A. The dissolving of the commitment showed thebreaking of the intimate relationship and thus they no longer “held each other as husband andwife”. Kellogg, 542 N.W.2d at 518. Exhibit A. Iowa’s Supreme Court legalized same sexmarriages in 2009. Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). In nearly two years since thedecision, Chuck and Larry made no attempt to get married, which demonstrates they did not 5
  6. 6. intend to be held as husband and wife. Therefore Chuck’s relationship with Larry was notanalogous 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, itwas a financial necessity, not a product of their relationship. Kellogg sets out that “joint use ofthe 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 theydissolved their commitment to one another. Exhibit C. Thus they were no longer sharing incomeat the time of the alleged assault. They did continue to share expenses but as Larry testifies, “Wedecided 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 theapartment. Chuck and Larry did share use of the property so it is most likely that a court wouldfind it indicative of cohabitation. However, because they no longer share income and only shareexpenses because it was necessary, these factors are not strong enough evidence for a findingthat 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 findcohabitation because their relationship ended a year and a half ago. Kellogg set forth that one ofthe indicia of cohabitation was “The continuity of the relationship.” and “The length of the 6
  7. 7. relationship.” Kellogg, 542 N.W.2d at 518. Thus the court can look at the length of the intimaterelationship and continuity to help determine if two people are in cohabitation. Chuck and Larry terminated the relationship in 2009 exhibiting a lack ofcontinuity. Exhibit A. Further exemplifying this lack of continuity is the fact that Chuck has beenseriously involved with Mitchell for a year. Exhibit A. Chuck being intimately involved withMitchell and the separation of intimate activity with Larry show a lack of continuity of therelationship. Chuck and Larry’s intimate relationship did last five years. Exhibit B. However inthis situation also the period of time between the relationship ending and the alleged assault isimportant. A period of time as long as a year or more would be evidence that the two partieswere no longer together in an intimate sense. Exhibit A. The substantial amount of time betweenthe end of the relationship and the assault combined with the lack of continuity make a strongcase 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 shouldnot merit strong consideration regarding cohabitation. Sexual relations between roommates maybe evidence of cohabitation. Kellogg, 542 N.W.2d at 518. The court has held that “…sexualconduct is not the lone determinative factor in cases of cohabitation.” Kellogg, 542 N.W.2d at518. Larry testified that in early 2010 they “decided it really was over.” Exhibit A. Chuckdoes testify that he and Larry have “engaged in sexual relations.” Exhibit B. Although sexualrelations did exist after the termination of the relationship, Chuck describes the sexual relationsas an “incident.” Exhibit B.. Thus when considering the sexual relations in the scope of the 7
  8. 8. cohabitation test provided by Kellogg, it should be treated as an isolated incident. Thereforebecause it was an isolated incident that should be taken into account along with the fact sexualrelations 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 onlyone isolated incident of intimate contact which both agreed was a mistake and that no furthersexual involvement was expected. The Iowa legislature has set out that one must consider fournon-exclusive factors regarding intimate relationships, 1)duration of the relationship,2)frequency of interaction, 3)whether the relationship has been terminated and 4) expectation ofsexual or romantic involvement. Iowa Code § 236.2 (2)(e) (2010). An intimate relationship was not found when two people had ended their relationship andthey 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 ifsexual relations have taken place within the year prior along with the other four factors of anintimate relationship. Benesh, 2010 Iowa App. LEXIS 140 at 17-21. Applying the factors to Larry and Chuck will reveal they have had sexual relations withinthe 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 anddetermined 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, whichproves that the relationship had been terminated. § 236.2 (2)(e) (2010). The discussion betweenChuck and Larry would be evidence that neither party expected romantic or intimate 8
  9. 9. involvement. § 236.2 (2)(e) (2010). Thus only the fact supporting an intimate relationship is thatthey had sexual relations one time nearly one year before the assault. Like Benesh where thecouple 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 sustainedby Chuck do not qualify as serious bodily injuries. The Iowa legislature through statute hasestablished 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 assaultthat 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 resultinginjury of each offense varies by crime, there is a rational basis in directing the punishment in 9
  10. 10. accordance to the severity of the resulting injury.” State v. Ostrander, 2010 Iowa App. LEXIS760 (Iowa Ct. App. July 14, 2010). In order to find serious injury, one must show evidence thatthe assault created a substantial risk of death, caused permanent disfigurement or loss of functionof a bodily member or organ. § 708.2. Welton says that, “We believe the term "serious injury" initself 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 thevictim 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 threetypes of serious bodily injury. According to the facts presented in the police report Larry did notreceive any medical treatment. Exhibit B. Unlike in Welton where the defendants conduct causedan injury so severe that it created a fracture and required surgery, Chuck’s injuries seem to beminor. See, Welton, 300 N.W.2d 157 at 159 and Exhibit B. An injury that was not seriousenough to require treatment does not “creates a substantial risk of death” , “causes seriouspermanent 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 normaldefinition 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 standardof 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 incomparison with the six indicia would not lead to a finding of cohabitation with Chuck. AlsoLarry could not be convicted with felony assault because the injury Chuck sustained wasinsufficient to meet the burden established by statute. The requirement is that the injury is seriousand in this case a bloodied lip would not be satisfactory for felony assault. 10