COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Elder
Argued at Salem, Virginia
JAMES EDWARD RICKMAN
OPINION BY
v. Record No. 2265-99-3 JUDGE LARRY G. ELDER
OCTOBER 10, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROANOKE COUNTY
Diane McQ. Strickland, Judge
Thomas P. Lloyd for appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
James Edward Rickman (appellant) appeals from his bench
trial conviction for assault and battery against a family or
household member in violation of Code § 18.2-57.2, his third
such conviction within ten years, making it punishable as a
Class 6 felony. On appeal, appellant contends the evidence was
insufficient to establish the woman he was convicted of
assaulting and battering was a "family or household member"
within the meaning of the statute. We hold the evidence was
sufficient to bring appellant's victim within the statutory
definition, and we affirm his conviction.
I.
BACKGROUND
On March 13, 1999, appellant "hit" and "smacked" Yvonne
Brickey, "jerked [her] shirt," and pushed her to the ground.
According to Brickey, appellant was residing with her on
the date of the offense, and they had resided together for "a
couple months." Appellant repeatedly told one of the officers
who responded to the scene that he and Brickey "had lived
together for about three months." Appellant worked out of town
on an intermittent basis and stayed with Brickey "off and on,
when [he] would come into town." Although Brickey testified
that appellant sometimes stayed with her and sometimes stayed
with his ex-wife, appellant testified that he and his wife were
not "living together" during March 1999 and that some of his
furniture was in storage. Brickey said she and appellant
started living together in this "off and on" fashion "a long
time ago."
Other evidence established that when appellant was in
Brickey's home, she and appellant were "boyfriend and
girlfriend," slept in the same bed and had sexual relations.
Although Brickey would not take money appellant offered her for
living expenses, appellant bought food and "tried to just help
out." While appellant was at Brickey's, he stored clothes and
other items of personal property there. Brickey's mother, who
lived next door to Brickey, washed appellant's clothes for him,
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and appellant used the telephone at Brickey's mother's home
because Brickey did not have a phone.
Appellant admitted to staying with Brickey "off and on" but
said he did not reside there. He considered the trailer he and
his wife owned as his residence during that time but admitted he
was not actually living there. He said that most of the time he
was in town, he stayed with his cousin Wanda, but he admitted
that both his wife and Brickey also would come to Wanda's to
stay. He denied having a contemporaneous sexual relationship
with Brickey but admitted the March 13 altercation arose because
Brickey became jealous when her daughter told her appellant had
been out with a younger woman. Appellant said Brickey's
daughter, a minor, became angry with him when he asked her and
her friends not to consume alcohol or use illegal drugs in the
house.
Appellant moved to strike at the close of the
Commonwealth's evidence and again at the close of all the
evidence. In denying the motions, the trial court made the
following observations:
It is the finding of this Court that
[appellant] was as much a member of the
household where Ms. Brickey resides as he
was of any household.
. . . [C]ertainly, the intent of the
General Assembly in passing this legislation
was to cover circumstances such as this
where he was residing [in even an] on again
and off again relationship with Ms. Brickey
. . . .
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The court found, in addition, the evidence was sufficient to
prove that appellant assaulted and battered Brickey, a household
member, and that he had two previous convictions for the same
offense. It convicted him of a Class 6 felony pursuant to Code
§ 18.2-57.2(B).
II.
ANALYSIS
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). The fact finder is not required to
believe all aspects of a witness' testimony; it may accept some
parts as believable and reject other parts as implausible. See
Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24
(1993).
The version of Code § 18.2-57.2 applicable to these
proceedings provided as follows:
A. Any person who commits an assault
and battery against a family or household
member shall be guilty of a Class 1
misdemeanor.
B. On a third or subsequent conviction
for assault and battery against a family or
household member, where it is alleged in the
warrant, information, or indictment on which
a person is convicted, that (i) such person
has been previously convicted twice of
assault and battery against a family or
household member . . . within ten years of
the third or subsequent offense, and . . .
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(ii) each such assault and battery occurred
on different dates, such person shall be
guilty of a Class 6 felony.
* * * * * * *
D. As used in this section, "family or
household member" means . . . (vi) any
individual who cohabits or who, within the
previous twelve months, cohabited with the
defendant . . . .
Code § 18.2-57.2 (1995 Repl. Vol. (version effective July 1,
1997)) (emphasis added).
What constitutes cohabiting under Code § 18.2-57.2 is a
question of first impression in Virginia. "[W]e construe a
statute to promote the end for which it was enacted, if such an
interpretation can reasonably be made from the language used."
Woolfolk v. Commonwealth, 18 Va. App. 840, 847, 447 S.E.2d 530,
533 (1994). "The plain, obvious, and rational meaning of a
statute is always preferred to any curious, narrow or strained
construction." Branch v. Commonwealth, 14 Va. App. 836, 839,
419 S.E.2d 422, 424 (1992). "Although penal laws are to be
construed strictly [against the Commonwealth], they 'ought not
to be construed so strictly as to defeat the obvious intent of
the legislature.'" Willis v. Commonwealth, 10 Va. App. 430,
441, 393 S.E.2d 405, 411 (1990) (citation omitted).
Our prior consideration of the meaning of the term
"cohabitation" has been limited mainly to the civil arena in the
context of divorce and spousal support. Interpreting a property
settlement agreement in Schweider v. Schweider, 243 Va. 245, 415
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S.E.2d 135 (1992), the Virginia Supreme Court noted that,
"[w]hile engaging in sexual relations is a factor in determining
cohabitation, '"matrimonial cohabitation" consists of more than
sexual relations. It also imports the continuing condition of
living together and carrying out the mutual responsibilities of
the marital relationship.'" Id. at 248, 415 S.E.2d at 137
(quoting Petachenko v. Petachenko, 232 Va. 296, 299, 350 S.E.2d
600, 602 (1986)).
We revisited this issue in Frey v. Frey, 14 Va. App. 270,
416 S.E.2d 40 (1992), noting that financial support is "a factor
which tends to prove the assumption of duties or obligations
attendant to marriage" but that "other factors exclusive of
support may be sufficient to establish that a relationship is
analogous to marriage." Id. at 275, 416 S.E.2d at 43. We
acknowledged the holding of the Supreme Court in Schweider that
phrases such as "cohabitation, analogous to marriage," have been
"consistently interpreted . . . as encompassing both a
permanency or continuity and an assumption of marital duties."
Id.
Appellant contends these principles are applicable to his
conviction for domestic assault and battery and preclude a
finding that he cohabited with Brickey because the evidence
failed to establish the necessary permanence or any other
characteristics of a marital relationship or common law
marriage. Although we find Schweider and Frey instructive, we
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disagree that they control our interpretation of Code
§ 18.2-57.2. While we look to these interpretations for
guidance, we are not bound by them because "'cohabitation' takes
on different meanings in different contexts." State v. Yaden,
692 N.E.2d 1097, 1100 (Ohio Ct. App. 1997); see also Elizabeth
Trainor, Annotation, "Cohabitation" For Purposes of Domestic
Violence Statutes, 71 A.L.R.5th 285, 294 (1999). Compare Colley
v. Colley, 204 Va. 225, 228-29, 129 S.E.2d 630, 632-33 (1963)
(under divorce jurisdiction statute, construing "cohabiting" to
mean "having dwelled together under the same roof with more or
less permanency"), with Tarr v. Tarr, 184 Va. 443, 448, 35
S.E.2d 401, 403-04 (1945) (in assessing what acts amount to
condonation of adultery, construing "cohabiting" to mean "single
voluntary act of sexual intercourse").
We also seek guidance from the interpretations other courts
have given "cohabitation" in the domestic abuse context. These
courts acknowledge the obvious conclusion of their legislatures
that "assault involving a family or household member deserves
further protection than assault on a stranger." See, e.g.,
State v. Williams, 683 N.E.2d 1126, 1129 (Ohio 1997). In
Virginia, the legislature also has concluded that assault on a
family or household member is more serious than assault on a
stranger. See Code §§ 18.2-57, 18.2-57.2. 1
1
Although the first and second offenses of assault and
battery of a family or household member are punished as Class 1
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In surveying the varying definitions of cohabitation in
this context, the Ohio Supreme Court noted the prevailing view
that "domestic violence arises out of the nature of the
relationship itself, rather than the exact living circumstances
of the victim and perpetrator." Williams, 683 N.E.2d at 1129.
[T]he essential elements of "cohabitation"
are (1) sharing of familial or financial
responsibilities and (2) consortium.
Possible factors establishing shared
familial or financial responsibilities might
include provisions for shelter, food,
clothing, utilities, and/or commingled
assets. Factors that might establish
consortium include mutual respect, fidelity,
affection, society, cooperation, solace,
comfort, aid of each other, friendship, and
conjugal relations.
Id. at 1130 (citations omitted).
Other factors appropriate for consideration include the
length and continuity of the relationship. See, e.g., State v.
Kellogg, 542 N.W.2d 514, 518 (Iowa 1996). Although "a person
may have only one legal domicile at one time, . . . he may have
more than one residence" for purposes of a statute proscribing
domestic assault. State v. Archuletta, 946 P.2d 620, 622 (Haw.
Ct. App. 1997).
[A] defendant may cohabit simultaneously
with two or more people at different
locations, during the same time frame, if he
misdemeanors in Virginia--the same punishment imposed for
assault and battery on a non-family member who does not belong
to any other special class--a third offense for assault and
battery of a family or household member within ten years is
subject to heightened punishment as a Class 6 felony. See Code
§§ 18.2-57, 18.2-57.2.
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maintains substantial ongoing relationships
with each and lives with each for
significant periods. A defendant who
physically abuses a cohabitant cannot
immunize himself from criminal liability
merely by living part-time elsewhere with
one or more other persons while continuing
to reside the rest of the time with the
first partner and maintaining a substantial
relationship with that person.
People v. Moore, 52 Cal. Rptr. 2d 256, 264 (Cal. Ct. App. 1996).
The factors to be applied "are unique to each case and how much
weight, if any, to give to each of these factors must be decided
on a case-by-case basis by the trier of fact." Williams, 683
N.E.2d at 1130 (emphasis added); see Kellogg, 542 N.W.2d at 518.
In construing Code § 18.2-57.2 to achieve the obvious
intent of the legislature, we apply these same factors to a
totality-of-the-circumstances analysis in appellant's case.
Under this analysis, we hold the evidence supports the trial
court's finding that appellant and Brickey cohabited as that
term is used in Code § 18.2-57.2. Under the first prong of the
Ohio Supreme Court's test, the sharing of familial or financial
responsibilities, the evidence established that appellant
desired to contribute money to cover a portion of Brickey's
household expenses and gave her grocery money whenever he stayed
at the residence. Brickey's mother, who lived next door, washed
appellant's laundry and allowed appellant to use her phone.
Appellant also felt comfortable enough in Brickey's home to ask
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her daughter, a minor, not to consume alcohol or illegal drugs
in Brickey's house.
Under the second prong, consortium, the evidence supported
a finding that Brickey and appellant slept in the same bed and
had a sexual relationship. Although appellant insisted their
relationship was platonic, he admitted they were very close and
said they fought because Brickey thought he had been out with a
younger woman and became jealous.
Finally, in addressing the duration, continuity and
permanency of the relationship, as the holdings in Schweider and
Frey suggest we should, see also Kellogg, 542 N.W.2d at 518, the
evidence, viewed in the light most favorable to the
Commonwealth, supported a finding that appellant had resided
with Brickey continuously for three months prior to March 13,
1999 and that he had stayed with her sporadically before that
for "a long time," as well. Although appellant said he remained
married to another woman, he reported that some of his furniture
was in storage and that he was not living with his wife during
that period of time. Based on this evidence, the trial court
concluded that appellant "was as much a member of the [victim's]
household . . . as he was of any household" and that this was
sufficient to establish cohabitation under Code § 18.2-57.2. We
agree and hold the fact that appellant sometimes worked out of
town and may periodically have stayed elsewhere when in town did
not preclude a finding that he cohabited with Brickey. See
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Archuletta, 946 P.2d at 622. The evidence supported the trial
court's implicit finding that appellant maintained a
"substantial ongoing relationship[]" with Brickey during this
period of time. Moore, 52 Cal. Rptr. 2d at 264.
For these reasons, we hold the evidence of cohabitation was
sufficient to support appellant's conviction under Code
§ 18.2-57.2. Therefore, we affirm the conviction.
Affirmed.
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