Phillip Eric Cowell v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Clements and Senior Judge Overton
Argued at Chesapeake, Virginia
PHILLIP ERIC COWELL
MEMORANDUM OPINION* BY
v. Record No. 3198-03-1 JUDGE JEAN HARRISON CLEMENTS
FEBRUARY 1, 2005
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Johnny E. Morrison, Judge
Andrew Kolp, Assistant Public Defender (Office of the Public
Defender, on brief), for appellant.
Alice T. Armstrong, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
Phillip Eric Cowell was convicted in a jury trial of domestic assault and battery, third
offense, a felony, in violation of Code § 18.2-57.2.1 On appeal, Cowell contends the trial court
erred in refusing to grant his proposed jury instruction defining the term “cohabitation.” Finding no
error, we affirm the trial court’s judgment and Cowell’s conviction.
As the parties are fully conversant with the record in this case, and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
appeal.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
We note that the sentencing order erroneously recites that the felony offense of
“domestic asault [sic] and bettery [sic] (third offense)” is a violation of Code § “18.2-57.21 [sic].”
I. BACKGROUND
The relevant facts in this appeal are not in dispute. Lakelia Phonville met Cowell in May
2002. In June, Phonville moved into an efficiency-style room at the In Town Suites hotel with
Cowell. They lived there together through the summer. At the end of the summer, Cowell moved
into the Union Mission and Phonville went to live at her mother’s house “until [an] apartment came
through” for them.
In mid-November 2002, Phonville and Cowell moved into a one-bedroom duplex apartment
at 1313 Hoover Street in Portsmouth. Phonville intended to “make a life” with Cowell. The lease
for the apartment was in Cowell’s name, and he was solely responsible for payment of the rent,
utilities, and food. Phonville cooked their meals, and the couple shared responsibility for the
upkeep of the apartment. Cowell relied on Phonville to take him to work and encouraged her to quit
her job to “stay home.” Phonville and Cowell socialized together and were intimate. Phonville was
faithful to Cowell during their relationship, although she did not know whether he was faithful to
her. Phonville lived continuously at the apartment with Cowell as “a couple” through December 1,
2002.
On December 1, 2002, Cowell, who appeared to have been drinking, came home in the “late
night hours” and, during the course of a series of events, assaulted and battered Phonville.
Cowell was subsequently indicted for committing assault and battery against a family or
household member, third offense, in violation of Code § 18.2-57.2. At the close of the
Commonwealth’s case at trial, Cowell moved to strike the Commonwealth’s evidence. Relying on
Rickman v. Commonwealth, 33 Va. App. 550, 535 S.E.2d 187 (2000), Cowell claimed there was
insufficient evidence to prove that he and Phonville were “cohabiting” at the time of the alleged
offense or that they had cohabited within the previous twelve months. Specifically, Cowell argued:
There were several factors that the Court could consider when
deciding this issue. The Rickman case broke it down to two
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categories really, sharing financial resources/responsibilities and the
second one was consortium.
Under the first factor, the financial resources, Rickman talks
about provisions for shelter, food, utilities, and commingled assets.
Under the consortium element, the Rickman case talks about
evidence of mutual respect, fidelity, affection, cooperation, solace,
comfort, aid of each other, friendship, and any kind of conjugal
relations. The Rickman case also talks about the length and
continuity of the relationship as well.
Based on the financial relationship, the length of the
relationship, the issue of any commingling of assets between the two,
looking at those factors and the other factors mentioned, we did not
feel there was sufficient evidence of cohabitation . . . .
The trial court denied Cowell’s motion to strike.
At the conclusion of the evidence, the trial court instructed the jury that, to establish
Cowell’s guilt with respect to the offense of assault and battery against a family or household
member, the Commonwealth had to prove beyond a reasonable doubt that Phonville was “an
individual who was cohabiting with, or who, within the previous twelve months (12) months,
cohabited with [Cowell].” Without argument by Cowell or explanation by the trial court on the
record, the trial court refused to grant Cowell’s “Instruction No. A,” which read:
While determining whether the Defendant and Lakelia
Phonville cohabited, you may consider whether any provisions were
made between the Defendant and Lakelia Phonville establishing
shelter, food, clothing and utilities. Additionally, you may consider
whether there were any co-mingled assets between the two.
Additionally, you may consider the levels of mutual respect, fidelity,
affection, society, co-operation, solace, comfort, aid between the two,
friendship, and any conjugal relations. Additionally, you may
consider the length and continuousness of the relationship.
The jury convicted Cowell of domestic assault and battery, third offense, and this appeal followed.
II. ANALYSIS
The version of Code § 18.2-57.2(B) applicable to this case provides, in pertinent part, as
follows:
On a third or subsequent conviction for assault and battery
against a family or household member, where it is alleged . . . that
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(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 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(D) incorporates the definition of “family or household member” set forth in Code
§ 16.1-228. Pursuant to that definition, “any individual who cohabits or who, within the previous
twelve months, cohabited with the person” is a “[f]amily or household member.” Code § 16.1-228.
On appeal, Cowell contends the trial court erred in refusing to give his proposed jury
instruction “A,” which was proffered “to aid the jury” in determining whether he and Phonville
were cohabiting at the time of the alleged offense or had cohabited within the previous twelve
months of the alleged offense. In support of his contention, Cowell argues solely that the proposed
jury instruction “mirrored the considerations to be taken into account when defining [the] term
[“cohabitation”] as laid out by [this Court] in . . . Rickman.”
Assuming, as Cowell’s argument implies, that Rickman establishes what constitutes
“cohabitation” within the meaning of Code § 18.2-57.2, we hold that the trial court did not abuse
its discretion in refusing to give Cowell’s proposed jury instruction “A,” because that instruction
does not provide a proper statement of the applicable law set forth in Rickman and would, thus,
confuse or mislead the jury.
“The trial judge has broad discretion in giving or denying instructions requested.” Gaines
v. Commonwealth, 39 Va. App. 562, 568, 574 S.E.2d 775, 778 (2003) (en banc). “A reviewing
court’s responsibility in reviewing jury instructions is ‘to see that the law has been clearly stated
and that the instructions cover all issues which the evidence fairly raises.’” Darnell v.
Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher,
223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)). “[A] correct statement of the law is one of the
‘“essentials of a fair trial.”’” Id. (quoting Dowdy v. Commonwealth, 220 Va. 114, 116, 255
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S.E.2d 506, 508 (1979) (quoting Limbaugh v. Commonwealth, 149 Va. 383, 400, 140 S.E. 133,
138 (1927))). “No instruction should be given that ‘incorrectly states the applicable law or
which would be confusing or misleading to the jury.’” Mouberry v. Commonwealth, 39
Va. App. 576, 582, 575 S.E.2d 567, 569 (2003) (quoting Bruce v. Commonwealth, 9 Va. App.
298, 300, 387 S.E.2d 279, 280 (1990)).
In determining in Rickman whether the evidence was sufficient to sustain the defendant’s
conviction for domestic assault and battery under Code § 18.2-57.2, we noted that “‘[t]he essential
elements of “cohabitation” are (1) sharing of familial or financial responsibilities and (2)
consortium.’” 33 Va. App. at 557, 535 S.E.2d at 191 (quoting State v. Williams, 683 N.E.2d 1126,
1130 (Ohio 1997)). We also noted that “‘[p]ossible factors establishing shared familial or financial
responsibilities might include provisions for shelter, food, clothing, utilities, and/or commingled
assets’” and that “‘[f]actors that might establish consortium include mutual respect, fidelity,
affection, society, cooperation, solace, comfort, aid of each other, friendship, and conjugal
relations.’” Id. (quoting Williams, 683 N.E.2d at 1130). “Other factors appropriate for
consideration,” we added, “include the length and continuity of the relationship,” as well its
“permanency.” Id. at 557-58, 535 S.E.2d at 191. We further noted, however, that “‘domestic
violence arises out of the nature of the relationship itself, rather than the exact living circumstances
of the victim and perpetrator’” and emphasized that “[t]he 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.’” Id. at 557, 535 S.E.2d at 191 (first emphasis added)
(quoting Williams, 683 N.E.2d at 1129-30 (second emphasis added)). In other words, the factors set
forth in Rickman are neither binding nor exclusive. They merely provide guidance in assessing the
relationship between the abuser and the victim; other factors may be considered in making that
assessment. Thus, as we indicated in Rickman, the trier of fact must employ a
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“totality-of-the-circumstances analysis” to determine whether the victim of the assault and battery
and the defendant “cohabited,” “as that term is used in Code § 18.2-57.2.” Id. at 558, 535 S.E.2d at
191.
In this case, Cowell’s proposed jury instruction “A” fails to inform the jury that it is required
to consider the totality of the circumstances in determining whether Cowell and Phonville were
cohabiting at the time of the assault and battery or had cohabited during the preceding twelve
months. Similarly, the proposed instruction fails to inform the jury that the two requisite elements
of cohabitation “‘are (1) sharing of familial or financial responsibilities and (2) consortium.’” Id. at
557, 535 S.E.2d at 191 (quoting Williams, 683 N.E.2d at 1130). Instead, the proposed instruction
focuses the jury’s attention on specific factors without drawing any connection between those
factors and the requisite elements and without advising the jury that it must consider all the evidence
in reaching a verdict. Thus, rather than elucidating the term “cohabitation” for the jury, as Cowell
claims, proposed instruction “A” serves only to confuse the meaning of the term and mislead the
jury into believing it may consider only the specific factors listed in the instruction, rather than the
totality of the circumstances. Such an approach violates the clear mandate of Rickman that each
case must be evaluated on its own unique facts. 33 Va. App. at 557, 535 S.E.2d at 191.
We conclude, therefore, that, because proposed jury instruction “A” “‘incorrectly states the
applicable law and would be confusing or misleading to the jury,’” the trial court did not abuse its
discretion in refusing to give that instruction. Mouberry, 39 Va. App. at 582, 575 S.E.2d at 569
(quoting Bruce, 9 Va. App. at 300, 387 S.E.2d at 280). Accordingly, we affirm Cowell’s
conviction.
Affirmed.
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