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.

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”

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

Simple 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.

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.

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

On 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.

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

residing together within the past year but not residing together at the

time of the incident.”

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

The 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.

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.

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.

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

In 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.

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

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

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

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.

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 concluded 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

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 concluded

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

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.”

Virgil argues his trial counsel

The 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.

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).

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

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.