Amended August 7, 2017 State of Iowa v. Eddie Lamont Virgil ( 2017 )


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  •                IN THE SUPREME COURT OF IOWA
    No.15–0971
    Filed May 25, 2017
    Amended August 7, 2017
    STATE OF IOWA,
    Appellee,
    vs.
    EDDIE LAMONT VIRGIL,
    Appellant.
    On review from the Iowa Court of Appeals.
    Appeal from the Iowa District Court for Black Hawk County,
    George L. Stigler, Judge.
    Defendant seeks further review of court of appeals decision
    affirming his conviction for domestic abuse assault.      DECISION OF
    COURT OF APPEALS AFFIRMED IN PART AND VACATED IN PART;
    DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED
    FOR NEW TRIAL.
    Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,
    Assistant Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Richard J. Bennett, Special
    Counsel (until withdrawal), Tyler J. Buller and Kyle P. Hanson, Assistant
    Attorneys General, Lucas A. Sterbick, Law Student, Tom Ferguson,
    County Attorney, and Michelle Wagner, Assistant County Attorney, for
    appellee.
    2
    WATERMAN, Justice.
    In this appeal, we must decide whether the defendant, convicted of
    domestic abuse assault, third offense, under Iowa Code section 708.2A(4)
    (2015), is entitled to a new trial because his trial counsel failed to request
    a jury instruction defining “household member.” The defendant argues
    the State failed to meet its burden to prove this “assault [was] between
    persons who have been . . . household members residing together within
    the past year” under sections 708.2A(4) and 236.2(2)(d).               He spent
    several nights a week at the victim’s home before their breakup without
    sharing expenses.       The first trial ended in a hung jury.             During
    deliberations in the second trial, the jury asked the court to “Define:
    Reside + Domestic” and was referred to their “ordinary meaning.”
    Defense counsel never requested a jury instruction defining “household
    members,” but moved for a judgment of acquittal based on the
    insufficiency of evidence on that issue, which the district court denied.
    The jury found the defendant guilty, and the court sentenced him to an
    indeterminate sentence of up to five years in prison.            The defendant
    appealed, seeking to “vacate the domestic portion of his conviction” 1 or a
    new trial.
    We transferred the defendant’s appeal to the court of appeals,
    which affirmed his conviction over a dissent.         The majority concluded
    defense counsel had breached an essential duty by failing to request the
    definitional instruction, but the defendant failed to show the prejudice
    required for a new trial because the State had presented sufficient
    evidence of cohabitation.      The dissent concluded the evidence “was a
    1Simple  assault was submitted to the jury as a lesser included offense. The
    nondomestic assault conviction would have been a simple misdemeanor with a
    maximum jail sentence of thirty days. Iowa Code § 708.2(6); 
    id. § 903.1.
                                                 3
    toss-up” on that element and found the defendant established prejudice.
    We granted the defendant’s application for further review.
    On our review, we conclude the defendant met his burden to show
    he received ineffective assistance of counsel in district court. The central
    issue at trial was whether the defendant and victim had been cohabiting.
    The jury should have been given the definitional instruction, which
    accurately sets forth the factors bearing on that issue. Defense counsel’s
    failure to request such an instruction was prejudicial, and defendant is
    entitled to a new trial.
    I. Background Facts and Proceedings.
    The jury could find the following facts from the evidence at trial.
    The defendant, Eddie Virgil, and the victim, N.J., age twenty-three, began
    a romantic relationship in late 2013 that included sexual intimacy. N.J.
    was an unemployed mother living in a house in Waterloo with her four
    children, none fathered by Virgil.            Virgil assaulted N.J. in May 2014.
    N.J. broke off her relationship with Virgil shortly thereafter. In August,
    Virgil again assaulted N.J.           He was charged with a third assault in
    October, and his conviction on that charge is the subject of this appeal. 2
    During their eight-month relationship, Virgil spent three to four
    nights every week at N.J.’s rented home. He was not named on her lease
    or utilities and did not pay any rent or household expenses. When he
    stayed over, they ate meals together. He kept a cell phone and a garbage
    bag with some clothes at N.J.’s, but no other possessions. He kept the
    rest of his belongings at his uncle or cousin’s home, where he stayed
    2On    September 12, Virgil pled guilty to assault causing bodily injury for the May
    offense and plead guilty to domestic abuse assault for the August offense. He did not
    testify at either jury trial for his October offense, and jurors were not informed about his
    guilty pleas or convictions.
    4
    three or four nights a week. He did not have a key to N.J’s, but could
    come and go as he pleased. He was not allowed to have guests. He did
    not receive mail or phone calls at N.J.’s, but she believed he gave his
    family her address as his own. He typically arrived in the evening for
    supper and spent the night in her room. He would usually leave the next
    morning about nine or ten, after she walked one of her children to
    school. On most days, he provided child care. Although N.J. claimed
    they were not living together, she acknowledged saying that to avoid
    jeopardizing her section 8 housing subsidy, which prohibits nonfamily
    cohabitants.
    Virgil assaulted N.J. the first time on May 14. N.J. told him he
    was no longer allowed to stay in her home, and their relationship ended
    by June. Virgil did not take it well. He assaulted her a second time on
    August 31. His third assault was on the morning of October 14. That
    day, N.J. walked her son to preschool a few blocks away. On her way
    home, Virgil confronted her, asking how she could do this to him and
    telling her he had no place to go. N.J. was frightened and walked faster
    to reach her doorway. He caught her and pushed inside, yelling at her.
    He struck her in the face, which bloodied her nose and blackened her left
    eye.   He took her phone, threw it, and ran away.      N.J. went to the
    hospital, where the police were called.   Waterloo police officer Randy
    Hammitt took her statement and photographed her injuries.
    The State charged Virgil with domestic abuse assault, third
    offense, in violation of Iowa Code section 708.2A(4), a class “D” felony.
    The case was tried to a jury on January 20–21, 2015. The marshaling
    instruction required the State to prove the assault occurred “between
    family or household members who resided together at the time of the
    incident or persons who have been family or household members
    5
    residing together within the past year but not residing together at the
    time of the incident.” 3 If that element was not proven, the instructions
    permitted the jury to convict him of simple assault.                      Virgil did not
    request an instruction defining “household member,” and the court did
    not give such an instruction. The jury deadlocked with three voting to
    convict and nine to acquit. The court declared a mistrial.
    The case was tried to a second jury on March 31. The State was
    unable to locate N.J.         The district court found N.J. unavailable and
    allowed her testimony from the first trial to be read into evidence.
    N.J.’s testimony described the assault and her earlier living
    arrangements with Virgil. The emergency room physician who examined
    N.J. testified her injuries were consistent with assault. A friend testified
    Virgil had lived with N.J. in 2014, and N.J. had called her crying after
    Virgil assaulted her.       Officer Hammitt testified about N.J.’s statement
    given at the hospital, and the State admitted the photographs of N.J.’s
    injuries.    Virgil did not testify or call any witnesses.           At the close of
    3The   marshaling instruction stated,
    The State must prove all of the following elements of the crime of
    Assault Domestic Abuse:
    1. On or about the 14th day of October, 2014, the defendant did
    an act which was intended to cause pain or injury or result in physical
    contact which was insulting or offensive or place [N.J.] in fear of
    immediate physical contact which would have been painful, injurious,
    insulting or offensive to [N.J.]
    2. The defendant had the apparent ability to do the act.
    3. The act occurred between family or household members who
    resided together at the time of the incident or person who have been
    family or household members residing together within the past year but
    not residing together at the time of the incident.
    If the State has proved all of these numbered elements, the
    defendant is guilty of Domestic Abuse Assault. If the State has proved
    only elements 1 and 2, the defendant is guilty of Assault. If the State has
    failed to prove either elements 1 or 2, the defendant is not guilty.
    6
    evidence, Virgil moved for a judgment of acquittal on grounds that the
    State had failed to prove “there was a domestic relationship” or that
    Virgil injured N.J. The district court denied the motion.
    The marshaling instruction at the second trial was the same as the
    first. Again, no instruction defining household member was requested or
    given.    During deliberation, the jury sent a note to the court, stating,
    “Define: Reside + Domestic.”        The court discussed the matter with
    counsel outside the presence of the jury:
    THE COURT: . . . There is no definition that I am
    aware of as to what reside means other than its common
    sense meaning. As far as domestic goes, I think the only
    instruction that I probably can do is to refer them to the
    marshaling instruction, numbered paragraph three, and
    they will have to go from there. What are your thoughts?
    Both counsel stated they “agree[d]” with the court. The court therefore
    told the jury,
    The only advice we can give you on that would be reside has
    its common ordinary every day meaning, so you will have to
    resolve that issue as to whether the state has established by
    evidence beyond a reasonable doubt whether Mr. Virgil
    resided [with N.J.] or not. As far as domestic goes, the best
    definition we can give you is in the marshaling instruction, I
    believe that’s [No.] 20, numbered paragraph 3[,] and you will
    have to make your determination on the basis of the
    evidence as to whether there has been a domestic
    relationship proven here by evidence beyond a reasonable
    doubt, domestic again being best defined by that numbered
    paragraph three, has the state proven one or the other of
    those matters.
    The jury found Virgil guilty of domestic abuse assault. Virgil had two
    prior domestic assault convictions.        The court sentenced him to an
    indeterminate term of up to five years in prison with a mandatory one-
    year minimum and a $750 fine.         If he had been convicted only of the
    lesser included offense of simple assault, he would have faced only thirty
    days in jail. Iowa Code § 708.2(6); 
    id. § 903.1.
                                               7
    Virgil appealed. He raised several issues on direct appeal that had
    been preserved by counsel, including whether the district court properly
    ruled N.J. was unavailable, whether substantial evidence existed to
    determine N.J. and Virgil resided together, and whether the court erred
    by striking two prospective jurors for cause. Virgil’s appellate counsel
    also raised an ineffective-assistance claim, arguing his trial counsel was
    ineffective for failing to request a jury instruction on the definition of
    “household member.” Neither the State nor Virgil argued the record was
    inadequate to decide the ineffective-assistance claim such that it should
    be reserved for postconviction proceedings.            And neither the State nor
    Virgil has argued that trial counsel could have made a strategic choice to
    refrain from requesting an instruction defining household member.
    We transferred the case to the court of appeals.                A three-judge
    panel affirmed Virgil’s conviction. The panel unanimously affirmed the
    district court’s ruling allowing N.J.’s testimony from the first trial based
    on her unavailability and the State’s reasonable efforts to locate her,
    affirmed the ruling striking prospective jurors for cause, and rejected
    Virgil’s claim the evidence was insufficient to support his conviction.4
    The panel unanimously concluded that counsel for Virgil had breached
    an essential duty by failing to request a jury instruction defining the
    term “household member.” The majority, however, determined “Virgil is
    unable to establish prejudice” because the State presented sufficient
    4In  his pro se brief, Virgil raised ten additional claims, including claims of
    exculpatory evidence, his right of confrontation, improper introduction of evidence of
    his criminal history, improper stipulation to prior abuse convictions, ineffective
    assistance for failing to take depositions, improper jury instructions, prosecutorial
    misconduct, witness competency, jurors not being allowed to review evidence, and the
    denial of his motion for judgment of acquittal. Each of these claims was rejected by the
    court of appeals.
    8
    evidence of the domestic relationship. The dissent opined that although
    “[t]he    evidence    was   strong   on   the   issues   of   identity   and   the
    assault[,] . . . it was a toss-up on the element of ‘household member.’ ”
    The dissent found that prejudice resulted from counsel’s failure to
    request an instruction defining the term. We granted Virgil’s application
    for further review.
    II. Standard of Review.
    “On further review, we can review any or all of the issues raised on
    appeal or limit our review to just those issues brought to our attention by
    the application for further review.” Papillon v. Jones, 
    892 N.W.2d 763
    ,
    769 (Iowa 2017) (quoting Woods v. Young, 
    732 N.W.2d 39
    , 40 (Iowa
    2007)). We elect to confine our review to Virgil’s ineffective-assistance
    claim. The court of appeals decision shall stand as the final decision on
    the other issues raised by Virgil.
    “Generally, claims of ineffective assistance of counsel are preserved
    for postconviction relief proceedings.” State v. Soboroff, 
    798 N.W.2d 1
    , 8
    (Iowa 2011). But if “the record is adequate, we may resolve the claim on
    direct appeal.” 
    Id. We conclude
    the record here is adequate to address
    Virgil’s ineffective-assistance claim.          Because ineffective-assistance
    claims are grounded in the Sixth Amendment and article I, section 9 of
    the Iowa Constitution, our review is de novo. See 
    id. III. Analysis.
    To establish ineffective assistance of counsel, Virgil must prove “by
    a preponderance of the evidence: (1) his counsel failed to perform an
    essential duty, and (2) prejudice resulted.”        
    Id. Virgil argues,
    and the
    court of appeals agreed, that counsel failed to perform an essential duty
    when he neglected to request a jury instruction defining “household
    member.” But the court of appeals majority determined Virgil had not
    9
    been prejudiced by counsel’s error.       Upon our de novo review, we
    disagree and conclude the resulting prejudice requires a new trial.
    A. Did Trial Counsel Fail to Perform an Essential Duty? “An
    attorney fails to perform an essential duty when the attorney ‘perform[s]
    below the standard demanded of a reasonably competent attorney.’ ”
    Millam v. State, 
    745 N.W.2d 719
    , 721 (Iowa 2008) (alteration in original)
    (quoting Ledezma v. State, 
    626 N.W.2d 134
    , 142 (Iowa 2001)). We begin
    with the presumption the attorney performed competently, measuring
    performance against “prevailing professional norms” based on the totality
    of the circumstances. 
    Ledezma, 626 N.W.2d at 142
    (quoting Strickland v.
    Washington, 
    466 U.S. 668
    , 688, 
    104 S. Ct. 2052
    , 2065 (1984)).
    “[I]neffective assistance is more likely to be established when the alleged
    actions or inactions of counsel are attributed to a lack of diligence as
    opposed to the exercise of judgment.”      
    Id. While miscalculated
    trial
    strategies or mistakes in judgment “normally do not rise to the level of
    ineffective assistance of counsel,” “strategic decisions made after a ‘less
    than complete investigation’ must be based on reasonable professional
    judgments which support the particular level of investigation conducted.”
    
    Id. at 143
    (quoting 
    Strickland, 466 U.S. at 690
    –91, 104 S. Ct. at 2066).
    In considering the breach-of-essential-duty element
    with respect to jury instructions, we have said that “not
    every right to insist that a particular instruction be given
    need be availed of by counsel in order to satisfy the standard
    of normal competency.”
    State v. Broughton, 
    450 N.W.2d 874
    , 876 (Iowa 1990) (quoting State v.
    Blackford, 
    335 N.W.2d 173
    , 178 (Iowa 1983)). Whether counsel breaches
    an essential duty by failing to offer or object to a particular instruction
    “must be determined with regard to the theory of defense which is being
    employed in the case.” 
    Id. “If the
    defense strategy is to deny that any
    10
    assaultive contact occurred, the individual elements of assault become
    unimportant.” State v. Fountain, 
    786 N.W.2d 260
    , 267 (Iowa 2010). In
    other words, if the missing instruction would not have aided the
    defendant, counsel may not be ineffective for failing to correct or offer the
    instruction.   See 
    id. (declaring counsel
    not ineffective if defense was
    “simply that [the assault] did not occur” because “the distinction between
    a general intent instruction and a specific intent instruction may not
    have aided [defendant]”).
    Virgil’s attorney failed to request a jury instruction defining
    “household member.” Neither “household members” nor “residing” was
    defined for this jury. We have said that “[i]n criminal cases, the court is
    required to instruct the jury on the definition of the crime.       Generally
    understood words of ordinary usage need not be defined; however,
    technical terms or legal terms of art must be explained.” State v. Kellogg,
    
    542 N.W.2d 514
    , 516 (Iowa 1996) (citation omitted); see also Iowa R. Civ.
    P. 1.924 (requiring the district court to “instruct the jury as to the law
    applicable to all material issues in the case”); Iowa R. Crim. P. 2.19(5)(f)
    (“The rules relating to the instruction of juries in civil cases shall apply to
    the trial of criminal cases.”).   “[T]he court is not required to give any
    particular form of an instruction; rather, the court must merely give
    instructions that fairly state the law as applied to the facts of the case.”
    State v. Marin, 
    788 N.W.2d 833
    , 837 (Iowa 2010), overruled on other
    grounds by Alcala v. Marriott Int’l, Inc., 
    880 N.W.2d 699
    , 708 n.3 (Iowa
    2016).
    Iowa Code section 708.2A defines a “domestic abuse assault” as an
    assault “which is domestic abuse as defined in section 236.2.”            Iowa
    Code § 708.2A(1). Chapter 236, known as the Domestic Abuse Act, in
    turn defines domestic abuse as an assault “between family or household
    11
    members who resided together at the time of the assault” or “family or
    household members residing together within the past year and are not
    residing together at the time of the assault.” Iowa Code § 236.2(2)(a), (d)
    (emphasis added).   The Act defines “[f]amily or household members” as
    “spouses, persons cohabiting, parents, or other persons related by
    consanguinity or affinity.”   
    Id. § 236.2(4)(a)
    (second emphasis added).
    The State had to prove Virgil and N.J. cohabited within a year preceding
    the alleged assault of October 14, 2014.
    In Kellogg, we defined “cohabiting” under sections 236.2 and
    
    708.2A. 542 N.W.2d at 517
    –18.      The central issue in that case was
    whether the defendant and victim were cohabiting.            See 
    id. at 516.
    Johanna Bunting and Francis Kellogg had lived together for about eight
    years. 
    Id. at 515.
    They initially were lovers but “the physical or romantic
    component of their relationship ended.”      
    Id. They continued
    to live
    together in separate bedrooms under the same roof, sharing “financial
    responsibilities, appliances, and household duties.”    
    Id. Kellogg called
    police after a drunken altercation left Bunting injured.        
    Id. He was
    charged with domestic abuse assault.        
    Id. The court
    gave a jury
    instruction defining “household members” as “persons living together or
    cohabiting with each other under the same roof.”       
    Id. The defendant
    objected to the term “living together” as insufficient and requested an
    instruction that stated “living together as ‘man and wife.’ ” 
    Id. The court
    overruled his objection and declined his requested instruction.           
    Id. During deliberations,
    the jury requested a “complete definition of
    cohabitation,” and the court, over defendant’s renewed objection, told the
    jury “cohabiting means dwelling or living together in the same place.” 
    Id. at 515–16.
    Kellogg was convicted and appealed. 
    Id. at 516.
                                        12
    We rejected Kellogg’s argument that domestic abuse was limited to
    couples living together as husband and wife. 
    Id. at 517
    (noting that the
    legislature had broadened chapter 236 to protect against abuse “in a
    variety of significant relationships”). However, we concluded the district
    court’s jury instruction, which encompassed mere roommates, was too
    broad.   
    Id. at 518.
      We adopted the following nonexclusive factors to
    determine whether parties were cohabiting within the meaning of the
    Domestic Abuse Act:
    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.
    
    Id. (quoting People
    v. Holifield, 
    252 Cal. Rptr. 729
    , 734 (Ct. App. 1988)).
    We made clear that whether two people were cohabiting is a question of
    fact for the jury. 
    Id. We conclude
    d the erroneous instruction prejudiced
    Kellogg and reversed and remanded the case for a new trial. 
    Id. The Kellogg
    factors can be outcome determinative. In Kellogg, we
    contrasted two cases addressing whether ex-wives cohabited with new
    boyfriends to trigger conditional relief for the ex-husband in the decree of
    dissolution. 
    Id. at 517
    . Compare In re Marriage of Gibson, 
    320 N.W.2d 822
    , 822–23 (Iowa 1982) (finding no cohabitation when boyfriend stayed
    over four nights a week with a change of clothes, but had no key and
    maintained separate residence where he paid rent, kept his possessions,
    and received mail), with In re Marriage of Harvey, 
    466 N.W.2d 916
    , 917–
    18 (Iowa 1991) (finding cohabitation when boyfriend sublet his
    13
    apartment, stayed over three to four nights at the ex-wife’s home,
    enjoyed free access, kept most possessions there, performed repairs,
    provided child care, and used her home as his address).
    We reaffirmed the Kellogg factors in Livingood v. Negrete, when we
    rejected a claim that prison cell mates were “cohabiting” under the
    Domestic Abuse Act. 
    547 N.W.2d 196
    , 197 (Iowa 1996) (per curiam). We
    noted that cohabitation “cannot be legally established solely by proving
    that the defendant and victim were living together.” 
    Id. We conclude
    d
    the Act did not apply to “nonvoluntary living arrangements such as
    prison cell mates,” noting the latitude afforded prison administrators. 
    Id. “From Kellogg
    we can . . . discern that cohabiting is more than simply
    living together, even though it is not tantamount to marriage.” State v.
    Mitchell, 
    757 N.W.2d 431
    , 438 (Iowa 2008) (applying Kellogg factors
    under child endangerment statute when mother accused of cohabiting
    with sex offender).
    The Domestic Abuse Act does not define “resides.” Root v. Toney,
    
    841 N.W.2d 83
    , 91 (Iowa 2013). “[R]esident . . . is an elastic word with
    varied statutory meanings, dependent upon the context of the statute in
    which it is used and the purpose and object to be attained.” 
    Id. at 90
    (alteration in original) (quoting Kroblin Refrigerated Xpress, Inc. v. Iowa
    Ins. Guar. Ass’n, 
    461 N.W.2d 175
    , 177 (Iowa 1990)). The Act is intended
    to “protect Iowa residents from abuse.” 
    Id. at 91.
    To that end, we give
    the statute “a reasonable or liberal construction which will best effect its
    purpose rather than one which will defeat it.” 
    Id. (quoting Christenson
    v.
    Christenson, 
    472 N.W.2d 279
    , 280 (Iowa 1991) (per curiam)).
    The jury in Kellogg asked for help defining “cohabitation,” just as
    Virgil’s jury asked for help defining 
    “reside.” 542 N.W.2d at 515
    . Those
    terms have specialized meanings under the Domestic Abuse Act that
    14
    warrant definitional instructions to guide the jury. See 
    id. at 516
    (stating
    “technical terms or legal terms of art must be explained” to jury but
    ordinary words need not be defined). The dictionary defines “reside” as
    “to dwell permanently or continuously : have a settled abode for a time.”
    Reside, Webster’s Third New International Dictionary (unabr. ed. 2002).
    But we have clarified that under the Domestic Abuse Act, merely
    remaining in the same household is not sufficient; more is required to
    show a “significant relationship[].” 
    Kellogg, 542 N.W.2d at 517
    . Simply
    referring the jury to the ordinary meaning of those terms was not
    enough.      See id.; State v. Hoffer, 
    383 N.W.2d 543
    , 548 (Iowa 1986)
    (noting “[t]echnical terms or words of art that have a technical legal
    meaning, as distinguished from their ordinary meaning, should be
    defined” in the jury instructions).
    The district court gave a marshaling instruction to set forth the
    elements of domestic abuse assault based on the Iowa State Bar
    Association Uniform Criminal Jury Instruction 830.4 (2015).                      But
    defense counsel failed to request, and the district court did not give,
    Uniform Instruction No. 830.5, which defines “household members” and
    “cohabiting,” using the Kellogg factors.” 5 Virgil argues his trial counsel
    5The   instruction states,
    830.5 Definition – Family Or Household Members. The law defines
    “family or household members” as persons cohabiting with each other.
    “Cohabiting” does not require a sexual relationship, but does require
    more than dwelling or living together in the same place. To determine if
    the defendant and (victim) were cohabiting at the time of the alleged
    offense, you may consider whether they had sexual relations while
    sharing the same living quarters; they shared income or expenses; they
    jointly used or owned property together; they held themselves out as
    husband and wife; the continuity and length of their relationship, and
    any other facts shown by the evidence bearing on their relationship with
    each other.
    15
    seemed to be unaware of Kellogg and Instruction No. 830.5. A lawyer
    defending domestic abuse charges should be aware of Kellogg and the
    readily available definitional instruction. See State v. Vance, 
    790 N.W.2d 775
    , 785–86 (Iowa 2010) (citing 16 Gregory C. Sisk & Mark S. Cady,
    Iowa Practice Series™: Lawyer and Judicial Ethics § 5:1(b), at 140 (2007)
    (discussing standards for a lawyer’s preparation and analysis of
    precedent)).
    We conclude that Virgil’s trial counsel breached an essential duty
    by initially failing to request a jury instruction outlining the Kellogg
    factors and then again by failing to request such an instruction after the
    jury asked the court to define “Reside + Domestic.”                  Importantly, no
    claim is made that Virgil’s defense counsel had a strategic reason to
    refrain from requesting the definitional instruction.            The key disputed
    factual issue was whether Virgil and N.J. cohabited within a year of the
    assault.    An instruction defining “household member” under Kellogg
    should have been requested and given to the jury.
    B. Was Virgil Prejudiced by Counsel’s Error? The defendant is
    prejudiced when “there is a reasonable probability that, but for counsel’s
    unprofessional errors, the result of the proceeding would have been
    different.” 
    Ledezma, 626 N.W.2d at 143
    (quoting 
    Strickland, 466 U.S. at 694
    , 104 S. Ct. at 2068).          “A reasonable probability is a probability
    sufficient to undermine confidence in the outcome.”                      Id. (quoting
    
    Strickland, 466 U.S. at 694
    , 104 S. Ct. at 2068).                    Specifically, the
    applicant must demonstrate that “absent the errors, the fact finder
    would have had a reasonable doubt respecting guilt” such that our
    ________________________
    Iowa State Bar Ass’n, Iowa Criminal Jury Instruction 830.5 (2015).
    16
    confidence in the outcome of the trial is undermined.               
    Id. (quoting Strickland,
    466 U.S. at 
    695, 104 S. Ct. at 2068
    ). “Unlike the situation in
    which error has been preserved and the court presumes prejudice,” in
    ineffective-assistance   claims,   “it    is   the    defendant’s   burden    to
    demonstrate a reasonable probability of a different result.”          Everett v.
    State, 
    789 N.W.2d 151
    , 158 (Iowa 2010) (quoting State v. Reynolds, 
    746 N.W.2d 837
    , 845 (Iowa 2008)).
    Defense counsel’s failure to request a definitional instruction may
    be prejudicial even if the evidence is sufficient to support the conviction.
    See 
    Soboroff, 798 N.W.2d at 8
    –9. Jeffrey Alan Soboroff was charged and
    convicted of making threats to contaminate a city’s water supply with a
    psychotropic drug. 
    Id. at 4–5.
    We rejected a claim that trial counsel had
    breached an essential duty by failing to move for a judgment of acquittal
    because we concluded there was “sufficient evidence for a reasonable
    jury to find” that the defendant had made a true threat. 
    Id. at 9
    (quoting
    State v. Lane, 
    743 N.W.2d 178
    , 183 (Iowa 2007)).              Nonetheless, we
    determined counsel was ineffective for failing to request an instruction
    that defined “threat.” 
    Id. at 10.
    “While there was substantial evidence of
    a real threat, there was also evidence from which a jury could have
    concluded that Soboroff’s statements were ‘idle talk.’ ” 
    Id. at 9
    (quoting
    State v. Milner, 
    571 N.W.2d 7
    , 10 (Iowa 1997)).             Had the jury been
    instructed on the standard for threats, “there [was] a reasonable
    probability the outcome of Soboroff’s trial would have been different.” 
    Id. We reach
    the same conclusion here.             While there was sufficient
    evidence to find Virgil and N.J. cohabited, there was also evidence from
    which a jury could have concluded otherwise.               The jury’s question
    indicated that it was confused about the meaning of the terms “reside”
    and “domestic.” See 
    Everett, 789 N.W.2d at 159
    (noting question from
    17
    jury can show confusion). Several of the Kellogg factors helped Virgil,
    and a jury instruction on those factors could have led the jury to acquit
    him. His relationship with N.J. lasted less than nine months, and they
    did not hold themselves out as husband and wife. Virgil never shared
    income or expenses with N.J., nor was he named on her lease or utilities.
    He was not allowed to have guests at her house.           He only kept some
    clothes there in a garbage bag and spent several nights a week at his
    uncle or cousin’s place, where he kept the rest of his possessions.      A
    reasonable juror could find the State failed to prove cohabitation. See
    
    Kellogg, 542 N.W.2d at 518
    (listing factors); In re Marriage of 
    Gibson, 320 N.W.2d at 822
    –24 (finding lack of cohabitation under similar facts).
    Virgil’s first trial ended in a hung jury, with nine jurors voting to
    acquit.   The evidence of cohabitation was not overwhelming.           See
    
    Ledezma, 626 N.W.2d at 148
    –49 (“It becomes easier to doubt the
    fundamental fairness of a trial, and to question the reliability of the
    verdict, when the evidence by the State is not overwhelming . . . .”). We
    conclude there is a reasonable probability the outcome of the trial would
    have been different if the jury had been given a Kellogg instruction.
    Virgil has established Strickland prejudice requiring a new trial.
    IV. Disposition.
    For these reasons, we vacate the court of appeals decision as to the
    ineffective-assistance-of-counsel claim and affirm its decision on the
    other issues. We reverse Virgil’s judgment and conviction and remand
    this case for a new trial consistent with this opinion.
    DECISION OF COURT OF APPEALS AFFIRMED IN PART AND
    VACATED IN PART; DISTRICT COURT JUDGMENT REVERSED AND
    CASE REMANDED FOR NEW TRIAL.