                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0413
                            Filed February 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KOHLVIDAS BRYANT LEE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Monica L. Ackley,

Judge.



      A defendant appeals his convictions, challenging the sufficiency of the

evidence and asserting trial counsel had a conflict of interest. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., Mullins, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
                                        2


SCOTT, Senior Judge.

      Kohlvidas Lee appeals his convictions for domestic abuse assault causing

bodily injury, willful injury causing bodily injury, and child endangerment, in

violation of Iowa Code sections 708.2A(1), 708.2A(3)(b), 708.4(2), 726.6(1)(a),

and 726.6(7) (2016). On appeal, he asserts there is insufficient evidence to prove

he was a household member as is necessary to establish both domestic abuse

assault and child endangerment. He also claims the evidence was insufficient to

prove he knowingly created a substantial risk to the minor’s physical, mental, or

emotional health, which is necessary for the child-endangerment conviction.

Finally, he claims he should be granted a new trial because counsel made himself

an unsworn necessary witness when he conducted a phone conversation with the

complainant in this case. Because we conclude the evidence was sufficient and

Lee did not prove counsel’s conflict of interest adversely affected counsel’s

performance, we affirm.

I. Sufficiency of the Evidence.

      We review Lee’s challenge to the sufficiency of the evidence for correction

of errors at law. State v. Ortiz, 905 N.W.2d 174, 179 (Iowa 2017).

      We view the evidence “in the light most favorable to the State,
      including all reasonable inferences that may be fairly drawn from the
      evidence.” State v. Huser, 894 N.W.2d 472, 490 (Iowa 2017)
      (quoting State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012)). We
      uphold the verdict if substantial evidence in the record supports it.
      State v. Neiderbach, 837 N.W.2d 180, 216 (Iowa 2013). “Evidence
      is . . . substantial if, when viewed in the light most favorable to the
      State, it can convince a rational jury that the defendant is guilty
      beyond a reasonable doubt.” Id. (quoting Sanford, 814 N.W.2d at
      615).

Ortiz, 905 N.W.2d at 180.
                                           3


       Lee challenges both his convictions for domestic abuse assault and child

endangerment as lacking substantial evidence.1

       A. Household Member. One of the ways for an assault to become a

domestic abuse assault is for the assault to take place “between family or

household members who resided together at the time of the assault.” See Iowa

Code § 232.6(2)(a). In addition, to be guilty of child endangerment, a person must

be the “parent, guardian, or person having custody or control over a child . . . or a

person who is a member of the household in which a child or such a minor resides.”

See Id. § 726.6(1). There is no allegation that Lee was a family member or that

he was a parent, guardian, or person who had custody and control over the child,

so both convictions rest on Lee’s status as a “household member.”

       Iowa Code § 236.2(4)(a) defines “family or household members” for the

purpose of the domestic abuse chapter to mean “spouses, persons cohabiting,

parents, or other persons related by consanguinity or affinity.” In State v. Kellogg,

the supreme court developed a nonexclusive lists of factors to help determine

whether parties were “cohabiting,” which includes:

             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.




1
  Lee does not specifically challenge the evidence supporting his conviction for willful
injury.
                                          4

542 N.W.2d 514, 518 (Iowa 1996) (quoting People v. Holifield, 252 Cal. Rptr. 729,

731 (Cal. Ct. App. 1988)); see also State v. Mitchell, 757 N.W.2d 431, 438 (Iowa

2008) (applying Kellogg factors in a child endangerment case to determine

whether mother was cohabiting with a sex offender). The jury was instructed on

these factors,2 and Lee contests the sufficiency of the evidence to support them.

       The complaining witness in this case testified she met Lee through mutual

friends in January 2016 and was initially friends with Lee, but soon after meeting,

the two began a dating relationship. Not long after they started dating, Lee “moved

in” with her and her three children. Officer Dane Cox testified to his investigation

of the incident and stated the complaining witness told him she had been dating

Lee for several months and Lee would stay at her house five nights out of the

week. However, Lee would get his mail at another address. Officer Cox did not

go into the bedrooms of the house in order to determine whether Lee’s belongings

were present. Another officer, Corporal Stan Ryan, was able to determine by

reviewing prior police contacts that Lee and the complaining witness had a

relationship. In addition, the complaining witness left her children in Lee’s care,

including leaving her one-year-old child with Lee the morning following the assault.


2
  The jury instruction given in this case that related to “family or household members”
stated:
        [T]he 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 [complaining witness] 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.
                                         5


       Based on this testimony and the inferences the jury could have drawn from

this testimony, we conclude the evidence was sufficient to generate a jury question

on whether Lee was cohabiting with the complaining witness and her children on

the day of the incident. See State v. Virgil, 895 N.W.2d 873, 883 (Iowa 2017)

(“While there was sufficient evidence to find [the defendant and the complaining

witness] cohabited, there was also evidence from which a jury could have

concluded otherwise.”); State v. Laffey, 600 N.W.2d 57, 59 (Iowa 1999) (“[I]t is for

the jury to judge the credibility of the witnesses and weigh the evidence.”). We

therefore affirm Lee’s convictions on this ground.

       B. Knowingly Create Substantial Risk. The jury was instructed to find

Lee guilty of child endangerment, it had to find:

              1. On or about September 2, 2016, the defendant was a
       person who is the parent, guardian, or person having custody or
       control of [the child], or was a person who is a member of the
       household in which [the child] resides.
              2. [The child] was under the age of 14 years.
              3. The defendant acted with knowledge that his actions were
       creating a substantial risk to [the child’s] mental, physical, or
       emotional health or safety.

Lee challenges the final element. He claims the evidence does not show his

actions created a substantial risk to the child’s physical, mental, or emotional

health or safety, or that he knew his actions would create any such risk. The jury

was provided an instruction defining knowledge: “For the defendant to know or

have knowledge of something means he had a conscious awareness that his

actions were creating a substantial risk to one’s mental, physical, or emotional

health or safety.”
                                            6


       The supreme court has defined substantial risk to the child’s health or safety

as “[t]he very real possibility of danger to a child’s physical health or safety.” State

v. Anspach, 627 N.W.2d 227, 233 (Iowa 2001). “It does not require proof that the

conduct was negligent or reckless, although such actions may create a substantial

risk. . . . [I]t [is] unnecessary to prove that the physical risk to a child’s health or

safety is likely. Rather a showing that the risk is real or articulable will suffice.” Id.

at 232–33.

       The complaining witness told investigators that when she arrived home the

night of the assault, Lee “kicked the babysitters out” of the house and began yelling

at her.   Her five-year-old child was asleep in the bedroom upstairs, and the

complaining witness testified Lee was aware of the child’s location. While she

testified she blacked out during some of the assault, she estimated the assault

lasted “a really long time,” “for an hour or two.” The five-year-old woke up and

witnessed what was happening. The complaining witness testified she believed

her screams and cries for help woke the child.              The complaining witness

remembered the child saying, “Leave mommy alone” and “trying to grab [her] and

like jumped onto [her].” The complaining witness testified that Lee “tried to just

describ[e] the situation, ‘Oh, mommy and me got in a fight, and clean her off.’” The

child then took the complaining witness to the bathroom, and used a washcloth to

clean the blood off her face and arms. The complaining witness further testified

that her five-year-old child “is terrified of a lot of things now, men in general. [The

child] doesn’t trust anybody, or, um, [the child is] still in counseling over it.”

       Lee asserts the evidence is lacking in expert testimony, who would have

testified regarding the impact Lee’s actions may have had on the child’s mental or
                                          7


emotional health. Absent this testimony, he asserts any evidence his actions

created a substantial risk to the child’s mental or emotional health is speculative at

best. He also asserts there is no indication Lee was aware of the child’s presence

before the child came into the room.

       The jury was instructed to “[c]onsider the evidence using your observations,

common sense, and experience.” The complaining witness testified Lee kicked

the babysitters out upon her arrival at home, so it is reasonable to conclude that

Lee was aware of the complaining witness’s children’s presence in the home. It is

also common sense that a violent altercation will cause noise that would wake a

sleeping child. The complaining witness testified the child told Lee to “[l]eave

mommy alone,” so it is reasonable to assume the child saw and heard at least

some of the assault. Even without expert testimony, it is also reasonable for the

jury to conclude there is a “real or articulable” risk or a “very real possibility of

danger” to a child’s mental, physical, or emotional health or safety from witnessing

the child’s mother assaulted. See State v. Schneider, No. 14-1113, 2015 WL

2394127, at *3 (Iowa Ct. App. May 20, 2015) (“Jurors are not asked to check their

common sense at the courthouse doors.”). Viewing the evidence in the light most

favorable to the State, including all reasonable inferences to be drawn from the

evidence, we conclude the evidence was sufficient to support the third element of

child endangerment, and we affirm that conviction.
                                            8


II. Unsworn Necessary Witness.

       Finally, Lee asserts he is entitled to a new trial because his trial counsel

made himself an unsworn necessary witness when he conducted a private phone

conversation with the complaining witness and then used that phone conversation

to cross-examine the complaining witness. Lee contends counsel created an

actual conflict of interest or a serious potential for a conflict of interest, which was

evident during the cross-examination.           He claims the trial court should have

conducted an inquiry into the conflict and the failure to do so deprived him of his

constitutional right to counsel.

       In support of his claim, Lee cites the case of State v. Vanover, 559 N.W.2d

618, 629–31 (Iowa 1997), where the supreme court affirmed the district court’s

decision to disqualify defense counsel after defense counsel obtained a confession

from a codefendant that also exculpated his client. In affirming the district court’s

decision to disqualify defense counsel, the court noted the then Iowa Code of

Professional Responsibility for Lawyers3 required an attorney to withdraw from a

case when the attorney knows, or should know, that the attorney may be called as

a witness in a case. 559 N.W.2d at 629. The court noted the conflict is not typically

what we understand to be a conflict of interest where a lawyer may have divided



3
  The current rule regarding an advocate potentially acting as a witness in the Iowa Rules
of Professional Conduct states, in part:
                 (a) A lawyer shall not act as advocate at a trial in which the lawyer
        is likely to be a necessary witness unless:
                 (1) the testimony relates to an uncontested issue;
                 (2) the testimony relates to the nature and value of legal services
        rendered in the case; or
                 (3) disqualification of the lawyer would work substantial hardship on
        the client.
Iowa R. of Prof’l Conduct 32:3.7.
                                         9


loyalties between multiple clients, but a conflict where “counsel has been placed

in the position of having to worry about allegations of his own misconduct.” Id. at

631 (quoting United States v. Arrington, 867 F.2d 122, 129 (2d Cir.1989)).

       Even if the attorney will not be called as a witness, the Vanover court noted

the attorney would be acting as “an unsworn witness” because the attorney has

“first-hand knowledge of events presented at trial.” Id. at 632. Disqualification of

the attorney is warranted in such a case for two reasons. Id. at 633.

       First, counsel may be “constrained from making certain arguments
       on behalf of his client because of his own involvement, or may be
       tempted to minimize his own conduct at the expense of his client.”
       Second, counsel’s role “as advocate may give his client an unfair
       advantage, because the attorney can subtly impart to the jury his
       first-hand knowledge of the events without having to swear an oath
       or be subject to cross-examination.”

Id. (quoting United States v. Locascio, 6 F.3d 924, 933 (2d Cir. 1993)).

       The Locascio court explained that when an attorney is an unsworn witness

the detriment is to the government and the court because “the defendant gains an

unfair advantage” and “the factfinding process is impaired.” 6 F.3d at 934. “Waiver

[of that conflict] by the defendant is ineffective in curing the impropriety in such

situations, since he is not the party prejudiced.” Id.; see also United States v.

McKeon, 738 F.2d 26, 35 (2d Cir. 1984) (“If counsel were to cross-examine the

witness as to her conversations with him, argue the credibility of her testimony to

the jury, or suggest alternative interpretations of her account of the conversation,

he would place himself in the position of an unsworn witness and implicitly put his

own credibility at issue.”).
                                           10


       In this case, during cross-examination when defense counsel was

questioning the complaining witness about the changes she made to her story, the

following exchange took place:

               Q. In your first deposition, you also talked about calling me,
       correct? A. Yes.
               Q. And you called me, at my office, a couple weeks after this
       incident? A. Yes.
               Q. You had reached out to me, I hadn’t reached out to you,
       had I? A. Kohlvidas had asked me to call you.
               Q. But—but you reached out to me? A. I did reach out to you,
       yes.
               Q. And you explained to me that Kohlvidas did not assault
       you? A. Yes.
               Q. You said you were assaulted by these women? A. I didn’t
       tell you that. I said that I wasn’t going to testify to anything like that,
       I just wanted it all to go away. I didn’t want to deal with it, at that
       point.
               Q. Well, you told me that you had lied to the police, when you
       said Kohlvidas assaulted you, didn’t you? A. I don’t recall telling you
       that.

There was no objection or motion to disqualify the defense counsel made during

trial. Lee asserts this is not fatal to his claim because the court should have sua

sponte inquired regarding the conflict and should have disqualified his attorney.

       In State v. Watson, our supreme court noted “[a] trial court has the duty sua

sponte to inquire into the propriety of defense counsel’s representation when it

‘knows or reasonably should know that a particular conflict exists.’” 620 N.W.2d

233, 238 (Iowa 2000). Thus, when a conflict of interest claim is raised for the first

time on appeal, the claim must be addressed in one of three ways:

       If an actual conflict existed and the trial court knew or should have
       known of the conflict, yet failed to make inquiry, reversal is required.
       If the record on appeal shows only the possibility of a conflict, then
       the case must be remanded for a determination as to whether an
       actual conflict existed and/or whether the defendant made a valid
       waiver of his right to independent counsel. If, on remand, an actual
       conflict is found, prejudice is presumed and reversal is mandated. If
                                        11


       there is no indication that the trial court knew or should have known
       of an actual conflict, and defendant made no objection to his
       representation, then the defendant, in order to obtain a reversal on
       appeal, must prove that his counsel rendered ineffective assistance
       by proving that an actual conflict adversely affected counsel’s
       performance.

Id. (citations omitted).

       Lee asserts his case falls under the first prong requiring automatic reversal

because the court knew or should have known of the conflict based on defense

counsel’s cross-examination of the complaining witness. We disagree. As noted

above, this type of conflict is not a typical conflict of interest where counsel

represents different clients with competing interests. See Vanover, 559 N.W.2d at

629. We conclude this particular conflict, between defense counsel’s credibility as

an unsworn witness and counsel’s role as an advocate, is not one that the trial

court “knew or should have known” based on the limited cross-examination that

took place regarding defense counsel’s phone conversation with the complaining

witness. Thus, we conclude, to warrant a new trial, Lee must show the conflict

“adversely affected counsel’s performance.” Watson, 620 N.W.2d at 238.

       When defense counsel acts as an unsworn witness, it is the State that

suffers a disadvantage. Locascio, 6 F.3d at 934. In such a situation, the defense

actually gains an advantage because the defense attorney here could “subtly

impart to the jury his first-hand knowledge of the events without having to swear

an oath or be subject to cross-examination.” Id. at 933. There is no claim that

counsel was “constrained from making certain arguments” on Lee’s behalf

because of counsel’s involvement or any evidence counsel attempted “to minimize

his own conduct at the expense of” Lee. See Vanover, 559 N.W.2d at 633 (quoting
                                        12

Locascio, 6 F.3d at 933). Counsel vigorously cross-examined the complaining

witness concerning the phone conversation at issue and brought out all of the other

times the complaining witness made inconsistent statements regarding who

caused her injuries. Upon our review of the record, we fail to find evidence that

defense counsel’s conflict of acting as an unsworn witness adversely affected

defense counsel’s performance or prejudiced Lee. Therefore, we deny Lee’s

request for a new trial.

       Because sufficient evidence supports the jury’s guilty verdicts for domestic

abuse assault causing bodily injury and child endangerment and because Lee

cannot demonstrate prejudice based on his claim his defense counsel acted as an

unsworn necessary witness, we affirm.

       AFFIRMED.
