                       COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Benton and
          Senior Judge Overton
Argued at Alexandria, Virginia


ANDRE ODELL HARRIS
                                          MEMORANDUM OPINION * BY
v.   Record No. 2818-01-4        CHIEF JUDGE JOHANNA L. FITZPATRICK
                                            OCTOBER 15, 2002
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                    Kathleen H. MacKay, Judge

           Kelly E. P. Bennett, Assistant Public
           Defender, for appellant.

           Marla Graff Decker, Assistant Attorney
           General (Jerry W. Kilgore, Attorney General,
           on brief), for appellee.


     The issue presented by this appeal is whether the evidence

was sufficient to prove Andre Odell Harris and Audrey Simpson

"cohabited," which is required to sustain Harris's conviction for

assault and battery against a family or household member pursuant

to Code § 18.2-57.2.   We affirm the conviction.

                                 I.

     Audrey Simpson testified that on June 6, 2001 she lived in a

motel room in Fairfax County, Virginia, with Harris.    That

evening, Simpson, Harris, and two of Harris's co-workers drank

beer and smoked cocaine in the motel room.   According to Simpson,


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Harris seemed agitated that evening.    Although she did not recall

arguing, Simpson testified that she and Harris had a court case

scheduled the next day which had created stress.   Sometime after

Harris's co-workers departed, Harris assaulted Simpson.   He first

threw a plastic container at her without being verbally or

physically provoked.   He then punched her in the eye and attempted

to strangle her.   When they struggled into the hallway of the

motel, Harris repeatedly kicked Simpson in the head.   Simpson fled

and telephoned the police.

     When asked what the status of their relationship was at the

time of the incident, Simpson testified that she and Harris "had

been living together."   She testified that they were "[j]ust

boyfriend and girlfriend," that they had been so for three years,

and that they were not engaged.    Simpson also testified she was

living at the motel because she could not live with her mother.

     The jury convicted Harris of assault and battery against a

household member for a third or subsequent conviction and fixed

his punishment at one year in prison.    The judge sentenced

Harris to one year of imprisonment.

                                  II.

     In pertinent part, Code § 18.2-57.2(B), provides as follow:

             On a third or subsequent conviction for
          assault and battery against a family or
          household member, where it is alleged . . .
          that (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

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          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.   Subsection (D) of Code § 18.2-57.2,

incorporates the definition of "family or household member"

contained in Code § 16.1-228.   That definition is as follows:

             "Family or household member" means (i)
          the person's spouse, whether or not he or
          she resides in the same home with the
          person, (ii) the person's former spouse,
          whether or not he or she resides in the same
          home with the person, (iii) the person's
          parents, stepparents, children,
          stepchildren, brothers, sisters,
          grandparents and grandchildren, regardless
          of whether such persons reside in the same
          home with the person, (iv) the person's
          mother-in-law, father-in-law, sons-in-law,
          daughters-in-law, brothers-in-law and
          sisters-in-law who reside in the same home
          with the person, (v) any individual who has
          a child in common with the person, whether
          or not the person and that individual have
          been married or have resided together at any
          time, or (vi) any individual who cohabits or
          who, within the previous twelve months,
          cohabited with the person, and any children
          of either of them then residing in the same
          home with the person.

Code § 16.1-228.

     Applying the definition of "cohabits" in Code § 16.1-228,

we have previously noted that a totality of the circumstances

test should be employed in assessing the defendant's

relationship with the assaulted individual.   Rickman v.

Commonwealth, 33 Va. App. 550, 558, 535 S.E.2d 187, 191 (2000).

Here, the evidence proved Harris and Simpson were in a long-term

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romantic relationship and that they lived together in a motel

room.    As we noted in Rickman, although the definitions of

"cohabitation" in the civil context are "instructive, . . . we

are not bound by them because '"cohabitation" takes on different

meanings in different contexts.'"    33 Va. App. at 556, 535

S.E.2d at 190.    The evidence was sufficient for the jury to find

that Harris and Simpson were cohabiting when he assaulted her in

the motel.

        Accordingly, we affirm the conviction.

                                                          Affirmed.




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Benton, J., dissenting.

     As the Supreme Court's decisions demonstrate, the concept

of "cohabitation" has familiar meanings in established case law.

The Supreme Court long ago defined "cohabitation" in the context

of criminal prosecutions.   See Johnson v. Commonwealth, 152 Va.

965, 970, 146 S.E. 289, 291 (1929); Jones v. Commonwealth, 80

Va. 18, 20 (1885) (reversing a conviction for unlawful

cohabitation).   Indeed, more recently in Schweider v. Schweider,

243 Va. 245, 248, 415 S.E.2d 135, 137 (1992), the Supreme Court

reaffirmed that definition and further reaffirmed that the same

definition applies in the civil context.   It held as follows:

             We have said that the term "cohabit"
          means "to live together in the same house as
          married persons live together, or in the
          manner of husband and wife." Johnson v.
          Commonwealth, 152 Va. 965, 970, 146 S.E.
          289, 291 (1929). While engaging in sexual
          relations is a factor in determining
          cohabitation, "'matrimonial cohabitation'
          consists of more than sexual relations. It
          also imports the continuing condition of
          living together and carrying out the mutual
          responsibilities of the marital
          relationship." Petachenko v. Petachenko,
          232 Va. 296, 299, 350 S.E.2d 600, 602
          (1986); see Colley v. Colley, 204 Va. 225,
          228-29, 129 S.E.2d 630, 632 (1963).

Schweider, 243 Va. at 248, 415 S.E.2d at 137.   Thus, to the

extent that our decision in Rickman v. Commonwealth, 33 Va. App.

550, 535 S.E.2d 187 (2000), "find[s] Schweider . . .

instructive" but "disagree[s] that [it] control[s]" the




                               - 5 -
definition of "cohabit" in the criminal context, it misreads

Schweider.   Id. at 556, 535 S.E.2d at 190.

     Even with that obvious error, however, Rickman does not

support the conclusion that the evidence in this case is

sufficient to prove "cohabitation."    Relying on the law from

other states, Rickman noted as follows:

             "[T]he essential elements of
          'cohabitation' are (1) sharing of familial
          or financial responsibilities and (2)
          consortium. Possible factors establishing
          shared familial or financial
          responsibilities might include provisions
          for shelter, food, clothing, utilities,
          and/or commingled assets. Factors that
          might establish consortium include mutual
          respect, fidelity, affection, society,
          cooperation, solace, comfort, aid of each
          other, friendship, and conjugal relations."

             Other factors appropriate for
          consideration include the length and
          continuity of the relationship.

33 Va. App. at 557, 535 S.E.2d at 191 (citations omitted).

     The circumstances of this case were insufficient to prove

that Harris and Simpson were cohabiting.   The evidence proved

that Harris and Simpson were neither married nor engaged.    The

evidence did not prove whether Harris and Simpson shared

familial or financial responsibilities.    No evidence proved

whether both Harris and Simpson were responsible for the motel

room, and no evidence proved whether either was financially

dependant, in any manner, on the other.




                               - 6 -
     As to the element of consortium, no evidence proved the

relationship was sexual.   Although the Commonwealth suggests the

jury could infer from the evening Simpson and Harris spent on

his mother's sofa that their relationship was sexual, that

incident occurred after the assault and thus would be irrelevant

to whether they were cohabiting at the time of the assault.

Although the evidence proved they had dated three years, no

evidence proved the length of time that Harris and Simpson lived

at the motel or the nature of their living arrangements.

Simpson merely said her reason for staying at the motel was that

she could not live with her mother.

     An appellate court is "obligated to set aside the trial

court's judgment when it is contrary to the law and the evidence

and, therefore, the judgment is plainly wrong."    Tarpley v.

Commonwealth, 261 Va. 251, 256, 542 S.E.2d 761, 763 (2001).     In

light of the legislature's use of the term "resides" and

"cohabits" in Code § 16.1-228, the legislature obviously

intended "cohabits" to mean more than living together.   The

language of the statute manifestly requires the Commonwealth to

prove that the parties are carrying out mutual responsibilities

consistent with that of a marital relationship.    Schweider, 243

Va. at 248, 415 S.E.2d at 137.    No evidence proved that element

of the offense in this case.   Accordingly, I would reverse the

conviction and dismiss the indictment.



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