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. Mo rrison, 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 convicte d in a jury trial of domestic assault and battery, third offense, a felony, in viol ation of Code § 18.2-57.2. 1 On appeal, Cowell contends the trial court erred in refusing to grant his prop osed jury instruction defining the term “cohabitation.” Finding no error, we affirm the trial cour t’s judgment and Cowell’s conviction. As the parties are fully co nversant with the record in this case, and because this memorandum opinion carries no precedential value, th is opinion recites only those facts and incidents of the proceedings as ar e necessary to the parties’ unders tanding of the disposition of this appeal.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 We note that the sentencing order errone ously recites that the felony offense of “domestic asault [sic] and bettery [s ic] (third offense)” is a violatio n of Code § “18 .2-57.21 [sic].”- 2 - I. BACKGROUND The relevant facts in this a ppeal are not in disp ute. Lakelia Phonv ille met Cowell in May 2002. In June, Phonville moved into an efficien cy-style room at the In Town Suites hotel with Cowell. They lived there togeth er through the summer. At the end of the summ er, Cowell moved into the Union Mission and Phonville we nt 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 in tended to “make a life” with Cowell. The lease for the apartment was in Cowell’s name, and he was solely respon sible for payment of the rent, utilities, and food. Pho nville cooked their meal s, and the couple shar ed responsibility for the upkeep of the apartment. Cowell re lied on Phonville to take him to work and encouraged her to quit her job to “stay home.” Phonville and Cowell socia lized together and were intimate. Phonville was faithful to Cowell during their relationship, alth ough she did not know whet her he was faithful to her. Phonville lived cont inuously at the apartment with Cowell as “a couple” thro ugh December 1, 2002. On December 1, 2002, Cowell, wh o appeared to have been dri nking, came home in the “late night hours” and, during the co urse of a series of events, assaulted and ba ttered 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 tr ial, Cowell moved to strike the Co mmonwealth’s evidence. Relying on Rickman v. Commonwealth , 33 Va. App. 550, 535 S.E.2d 18 7 (2000), Cowell claimed there was insufficient evidence to prove that he and Phonville were “coha biting” at the time of the alleged offense or that they had cohabite d within the previous twelve mont hs. Specifically, Cowell argued: There were several factors that the Court could consider when deciding this issu e. The Rickman case broke it down to two- 3 - categories really, sharing financial resources/responsibilities and the second one was consortium. Under the first factor, the financial resources, Rickman talks about provisions for shel ter, food, utilities, an d commingled assets. Under the consortium element, the Rickman case talks about evidence of mutual resp ect, 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 as sets between the two, looking at those factors and the ot her factors mentioned, we did not feel there was sufficient evidence of cohabitation . . . . The trial court denied Co well’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 th e offense of assault and battery against a family or household member, the Commonwealth had to prove beyond a reasonable doubt th at Phonville was “an individual who was cohabiting with, or who, within the pr evious 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, yo u may consider whether any provisions were made between the Defe ndant and Lakelia Phon ville establishing shelter, food, clothing and utilities. Additiona lly, you may consider whether there were any co-mingled assets between the two. Additionally, you may cons ider the levels of mu tual respect, fidelity, affection, society, co-operation, so lace, comfort, aid between the two, friendship, and any conjugal re lations. 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 conv iction for assault and battery against a family or household member , where it is alleged . . . that- 4 - (i) such person has been previously convicted twice of assault and battery against a family or househol d member, or of a similar offense under the law of any other jurisdic tion, within ten years of the third or subsequent offense, and (ii) ea ch such assault and battery occurred on different dates, such person sh all be guilty of a Class 6 felony. Code § 18.2-57.2(D) incorporates the definition of “family or hous ehold member” set forth in Code § 16.1-228. Pursuant to that definition, “any individual who cohabits or who, within the previous twelve months, cohab ited with the person” is a “[f]amily or household memb er.” Code § 16.1-228. On appeal, Cowell contends the trial court e rred in refusing to give his proposed jury instruction “A,” which was proffe red “to aid the jury” in determining whethe r he and Phonville were cohabiting at the time of the alleged offense or had cohab ited within the previous twelve months of the alleged offense. In support of his contention, Cowell argues solely that the proposed jury instruction “mirrore d the considerations to be taken in to account when defining [the] term [“cohabitation”] as la id out by [this Cour t] in . . . Rickman .” Assuming, as Cowell’s argu ment implies, that Rickmanestablishes 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 instructio n “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 di scretion in giving or denying inst ructions 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 thatthe law has been clearly stated and that the instructions cover all issues whic h 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] corr ect statement of the law is one of the ‘“essentials of a fair trial.”’” Id. (quoting Dowdy v. Commonwealth , 220 Va. 114, 116, 255- 5 - 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 sufficie nt to sustain the defendant’s conviction for domestic a ssault and battery under Co de § 18.2-57.2, we noted that “‘[t]he essential elements of “cohabitation” ar e (1) sharing of familial or financial respons ibilities and (2) consortium.’” 33 Va. App. at 557, 535 S.E.2d at 1 91 (quoting State v. Williams , 683 N.E.2d 1126, 1130 (Ohio 1997)). We also noted that “‘[p]ossible factors establishing shar ed familial or financial responsibilities might include provi sions for shelter, fo od, clothing, utilities, and/or commingled assets’” and that “‘[f]actors th at might establish consortium include mutual respect, fidelity, affection, society, cooperation, solace, comfort, aid of each ot her, friendship, and conjugal relations.’” Id. (quoting Williams , 683 N.E.2d at 1130). “Oth er factors appropriate for consideration,” we added, “include the length an d continuity of the re lationship,” 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 relationsh ip itself, rather than th e exact living circumstances of the victim and perpetrator’” and emphasi zed 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 19 1 (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 guidan ce in assessing the relationship between the abuser and the victim; ot her factors may be cons idered in making that assessment. Thus, as we indicated in Rickman , the trier of fact must employ a- 6 - “totality-of-the-circumstances anal ysis” to determine whether the vi ctim 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 in struction fails to info rm the jury that the two requisite elements of cohabitation “‘are (1) sharing of familial or financial responsibilities an d (2) consorti um.’” Id. at 557, 535 S.E.2d at 191 (quoting Williams , 683 N.E.2d at 1130). Inst ead, the proposed instruction focuses the jury’s attention on specific factor s without drawing any connection between those factors and the requisite elements a nd without advising the ju ry that it must cons ider all the evidence in reaching a verdict. Thus, rather than elucidatin g the term “cohab itation” for the jury, as Cowell claims, proposed instruction “A” serves only to c onfuse the meaning of th e term and mislead the jury into believing it may consider only the specific factors lis ted in the instructio n, rather than the totality of the circumstances. Such an approach violates the clear mandate of Rickman that each case must be evaluated on its ow n 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 misleadi ng 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.