                       IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0646
                               Filed April 4, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

NOEL JERMAINE BENDER,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Plymouth County, Steven J.

Andreasen, Judge.



       Noel Bender appeals his conviction of domestic abuse assault, third or

subsequent offense, as an habitual offender. AFFIRMED.



       Zachary S. Hindman of Mayne, Arneson, Hindman, Hisey & Daane, Sioux

City, for appellant.

       Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.



       Considered by Danilson, C.J., and Vaitheswaran and Bower, JJ.
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VAITHESWARAN, Judge.

       The State charged Noel Bender with domestic abuse assault, third or

subsequent offense, as an habitual offender.          See Iowa Code §§ 708.2A(1),

708.2A(4), 902.8, 902.9 (2015). A jury found him guilty, but this court reversed his

judgment and sentence and remanded for a new trial. See State v. Bender, No.

15-1595, 2016 WL 6396227, at *3 (Iowa Ct. App. Oct. 26, 2016). On remand,

Bender waived his right to a jury trial. Following a bench trial, the district court

found Bender guilty and imposed judgment and sentence.

       On appeal, Bender challenges the sufficiency of the evidence supporting

the district court’s finding of guilt. Our review of the district court’s fact findings is

for substantial evidence. State v. Abbas, 561 N.W.2d 72, 74 (Iowa 1997).

       The district court set forth the elements of the crime as follows:

              1. On or about April 28, 2015, in Plymouth County, Iowa,
       [Bender] did an act which was intended to:
                     a. Cause pain or injury to [the woman];
                     b. Result in physical contact which would be insulting
              or offensive to [the woman];
                     c. Place [the woman] in fear of immediate physical
              contact which would have been painful, injurious, insulting, or
              offensive to her.
              2. [Bender] had the apparent ability to do the act.
              3. The act occurred between household members who
       resided together at the time of the incident or between persons who
       have been household members residing together within the year
       prior to the incident but not residing together at the time of the
       incident.

Bender only challenges the “household member” element.                The district court

defined this element as follows:

       “Household members” are persons cohabiting with each other.
       “Cohabiting” does not require a sexual relationship; however, it does
       require more than dwelling or living together in the same place. To
       determine if [Bender] and [the woman] were cohabiting at the time of
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      the alleged offense or within the year prior, the Court considers
      whether they had sexual relations while sharing the same living
      quarters; whether they shared income or expenses; whether they
      jointly used or owned property together; whether 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. Although cohabiting does not
      have a specific definition, it is something more than persons just
      living together in the same place (“roommates”) and something less
      than persons living together as spouses.

See State v. Virgil, 895 N.W.2d 873, 880 (Iowa 2017); State v. Kellogg, 542 N.W.2d

514, 517-18 (Iowa 1996).

      The district court made detailed fact findings concerning this element,

considering evidence detracting from a finding of cohabitation and including

credibility findings where the evidence was conflicting. Preliminarily, the court

found “[Bender] and [the woman] were engaged in sexual relations.” But the court

rejected Bender’s assertion that the relationship was purely sexual. The court

found: (1) Bender “was staying or otherwise living with [the woman] for at least

three weeks, if not more”; (2) the two “were more than just roommates living

together at the same place during this time”; (3) the couple was “developing a

romantic relationship”; (4) Bender “also was developing a relationship with [the

woman’s] three children”; (5) Bender “did have . . . personal property items at the

apartment,” including “phone, tablet, and other such accessories; personal

hygiene   toiletry   items;   electronic   cigarette/vaporizer   items;   and   prior

mail/documents”; (6) “[a]lthough it was not a 50/50 split, [Bender and the woman]

also were essentially sharing expenses”; and (7) “there was no other place or

location where [Bender] lived or resided.” The court determined Bender “spent the

majority of his time, including the majority of overnights, at [the woman’s]
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apartment from mid-February until the day of the assault on April 28, 2015, and

was staying at the apartment continuously for approximately three weeks prior to

and to the day of the assault.”      While the court acknowledged the living

arrangement may not have been “permanent,” the court stated permanency was

not required.

      The district court’s fact findings are supported by substantial evidence. We

affirm Bender’s judgment and sentence.

      AFFIRMED.
