COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Benton and
Senior Judge Overton
Argued at Alexandria, Virginia
ANDRE ODELL HARRIS
MEMORANDUM OPINION * BY
v. Record No. 2818-01-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
OCTOBER 15, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Kathleen H. MacKay, Judge
Kelly E. P. Bennett, Assistant Public
Defender, for appellant.
Marla Graff Decker, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
The issue presented by this appeal is whether the evidence
was sufficient to prove Andre Odell Harris and Audrey Simpson
"cohabited," which is required to sustain Harris's conviction for
assault and battery against a family or household member pursuant
to Code § 18.2-57.2. We affirm the conviction.
I.
Audrey Simpson testified that on June 6, 2001 she lived in a
motel room in Fairfax County, Virginia, with Harris. That
evening, Simpson, Harris, and two of Harris's co-workers drank
beer and smoked cocaine in the motel room. According to Simpson,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Harris seemed agitated that evening. Although she did not recall
arguing, Simpson testified that she and Harris had a court case
scheduled the next day which had created stress. Sometime after
Harris's co-workers departed, Harris assaulted Simpson. He first
threw a plastic container at her without being verbally or
physically provoked. He then punched her in the eye and attempted
to strangle her. When they struggled into the hallway of the
motel, Harris repeatedly kicked Simpson in the head. Simpson fled
and telephoned the police.
When asked what the status of their relationship was at the
time of the incident, Simpson testified that she and Harris "had
been living together." She testified that they were "[j]ust
boyfriend and girlfriend," that they had been so for three years,
and that they were not engaged. Simpson also testified she was
living at the motel because she could not live with her mother.
The jury convicted Harris of assault and battery against a
household member for a third or subsequent conviction and fixed
his punishment at one year in prison. The judge sentenced
Harris to one year of imprisonment.
II.
In pertinent part, Code § 18.2-57.2(B), provides as follow:
On a third or subsequent conviction for
assault and battery against a family or
household member, where it is alleged . . .
that (i) such person has been previously
convicted twice of assault and battery
against a family or household member, or of
a similar offense under the law of any other
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jurisdiction, within ten years of the third
or subsequent offense, and (ii) each such
assault and battery occurred on different
dates, such person shall be guilty of a
Class 6 felony.
Code § 18.2-57.2. Subsection (D) of Code § 18.2-57.2,
incorporates the definition of "family or household member"
contained in Code § 16.1-228. That definition is as follows:
"Family or household member" means (i)
the person's spouse, whether or not he or
she resides in the same home with the
person, (ii) the person's former spouse,
whether or not he or she resides in the same
home with the person, (iii) the person's
parents, stepparents, children,
stepchildren, brothers, sisters,
grandparents and grandchildren, regardless
of whether such persons reside in the same
home with the person, (iv) the person's
mother-in-law, father-in-law, sons-in-law,
daughters-in-law, brothers-in-law and
sisters-in-law who reside in the same home
with the person, (v) any individual who has
a child in common with the person, whether
or not the person and that individual have
been married or have resided together at any
time, or (vi) any individual who cohabits or
who, within the previous twelve months,
cohabited with the person, and any children
of either of them then residing in the same
home with the person.
Code § 16.1-228.
Applying the definition of "cohabits" in Code § 16.1-228,
we have previously noted that a totality of the circumstances
test should be employed in assessing the defendant's
relationship with the assaulted individual. Rickman v.
Commonwealth, 33 Va. App. 550, 558, 535 S.E.2d 187, 191 (2000).
Here, the evidence proved Harris and Simpson were in a long-term
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romantic relationship and that they lived together in a motel
room. As we noted in Rickman, although the definitions of
"cohabitation" in the civil context are "instructive, . . . we
are not bound by them because '"cohabitation" takes on different
meanings in different contexts.'" 33 Va. App. at 556, 535
S.E.2d at 190. The evidence was sufficient for the jury to find
that Harris and Simpson were cohabiting when he assaulted her in
the motel.
Accordingly, we affirm the conviction.
Affirmed.
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Benton, J., dissenting.
As the Supreme Court's decisions demonstrate, the concept
of "cohabitation" has familiar meanings in established case law.
The Supreme Court long ago defined "cohabitation" in the context
of criminal prosecutions. See Johnson v. Commonwealth, 152 Va.
965, 970, 146 S.E. 289, 291 (1929); Jones v. Commonwealth, 80
Va. 18, 20 (1885) (reversing a conviction for unlawful
cohabitation). Indeed, more recently in Schweider v. Schweider,
243 Va. 245, 248, 415 S.E.2d 135, 137 (1992), the Supreme Court
reaffirmed that definition and further reaffirmed that the same
definition applies in the civil context. It held as follows:
We have said that the term "cohabit"
means "to live together in the same house as
married persons live together, or in the
manner of husband and wife." Johnson v.
Commonwealth, 152 Va. 965, 970, 146 S.E.
289, 291 (1929). While 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." Petachenko v. Petachenko,
232 Va. 296, 299, 350 S.E.2d 600, 602
(1986); see Colley v. Colley, 204 Va. 225,
228-29, 129 S.E.2d 630, 632 (1963).
Schweider, 243 Va. at 248, 415 S.E.2d at 137. Thus, to the
extent that our decision in Rickman v. Commonwealth, 33 Va. App.
550, 535 S.E.2d 187 (2000), "find[s] Schweider . . .
instructive" but "disagree[s] that [it] control[s]" the
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definition of "cohabit" in the criminal context, it misreads
Schweider. Id. at 556, 535 S.E.2d at 190.
Even with that obvious error, however, Rickman does not
support the conclusion that the evidence in this case is
sufficient to prove "cohabitation." Relying on the law from
other states, Rickman noted as follows:
"[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."
Other factors appropriate for
consideration include the length and
continuity of the relationship.
33 Va. App. at 557, 535 S.E.2d at 191 (citations omitted).
The circumstances of this case were insufficient to prove
that Harris and Simpson were cohabiting. The evidence proved
that Harris and Simpson were neither married nor engaged. The
evidence did not prove whether Harris and Simpson shared
familial or financial responsibilities. No evidence proved
whether both Harris and Simpson were responsible for the motel
room, and no evidence proved whether either was financially
dependant, in any manner, on the other.
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As to the element of consortium, no evidence proved the
relationship was sexual. Although the Commonwealth suggests the
jury could infer from the evening Simpson and Harris spent on
his mother's sofa that their relationship was sexual, that
incident occurred after the assault and thus would be irrelevant
to whether they were cohabiting at the time of the assault.
Although the evidence proved they had dated three years, no
evidence proved the length of time that Harris and Simpson lived
at the motel or the nature of their living arrangements.
Simpson merely said her reason for staying at the motel was that
she could not live with her mother.
An appellate court is "obligated to set aside the trial
court's judgment when it is contrary to the law and the evidence
and, therefore, the judgment is plainly wrong." Tarpley v.
Commonwealth, 261 Va. 251, 256, 542 S.E.2d 761, 763 (2001). In
light of the legislature's use of the term "resides" and
"cohabits" in Code § 16.1-228, the legislature obviously
intended "cohabits" to mean more than living together. The
language of the statute manifestly requires the Commonwealth to
prove that the parties are carrying out mutual responsibilities
consistent with that of a marital relationship. Schweider, 243
Va. at 248, 415 S.E.2d at 137. No evidence proved that element
of the offense in this case. Accordingly, I would reverse the
conviction and dismiss the indictment.
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