I have a few FV assaults (felony) on the same defendant. The further we delve into trial prep, the more adamant our victim is that she and the defendant were never in a dating relationship, only that they would occasionally have sex for drugs. The defendant "lived" with her during the week for a few days, but only because they would do drugs together, he was homeless, and refused to leave her house. They would not sleep in the same room.

However, the defendant has always maintained that the victim was his girlfriend and commonly refers to her as his wife. All jail mail from him to her (she doesn't respond, she just turns it over to us) even has him addressing the letter to her with his last name.

I have concerns about proving up my FV factor in my impeding breath cases. Are they, or aren't they? Is it the defendant's thoughts on the relationship that control, or is it hers? He darn near killed her and promised to do so while choking her, so I would hate to miss out on the FV factor and have only a misdemeanor. We have multiple felonies on him, but this gives me great pause. I've considered taking the case back to allege a different charge of AADW, the DW being his hands.

Maybe it's too early in this morning and I'm overthinking this. Thoughts?

Ultimately, I think it boils down to whether you actually gain anything by alleging the case as an agg assault dw. It seems that you'd just be trading one question mark for another - instead of worrying whether you can prove a dating relationship you'd worry about whether the strangulation entailed the risk of SBI or death. If you have really solid evidence that the complainant was legitimately placed in danger of SBI or death, it might be worth it. Otherwise, I think nailing the the facts down on the factors in 71.0021 would be a better choice. Don't forget that dating relationship is a factor based analysis and just because your victim doesn't think they were dating, doesn't mean that their relationship doesn't meet the criteria under the law. Also, I'm curious about the whole "staying a couple days a week" thing. If that's over a long period time, I'd be skeptical that she was trying to kick him out over the entire period. You may be able to argue they were cohabiting.

Here's the tricky thing about that FV finding: it's not an element unless you're trying to enhance what would otherwise be a misdemeanor assault to a felony based on a previous ACBI-FV conviction.

It sounds like you're basing the felony on the occlusion. In that case, you don't have to prove FV for the conviction. The judge is required to make a finding of FV even without a motion from the State if the judge thinks the evidence established there was a family relationship under the different family code definitions.

quote:

Originally posted by JohnE:
Ultimately, I think it boils down to whether you actually gain anything by alleging the case as an agg assault dw. It seems that you'd just be trading one question mark for another - instead of worrying whether you can prove a dating relationship you'd worry about whether the strangulation entailed the risk of SBI or death. If you have really solid evidence that the complainant was legitimately placed in danger of SBI or death, it might be worth it. Otherwise, I think nailing the the facts down on the factors in 71.0021 would be a better choice. Don't forget that dating relationship is a factor based analysis and just because your victim doesn't think they were dating, doesn't mean that their relationship doesn't meet the criteria under the law. Also, I'm curious about the whole "staying a couple days a week" thing. If that's over a long period time, I'd be skeptical that she was trying to kick him out over the entire period. You may be able to argue they were cohabiting.

Arguing cohabitation was a consideration as well, but for the odd fact pattern in this case. Between her testimony and that of 5 others, it is pretty clear that they weren't living together and that he truly would not leave.

I feel the evidence is solid on danger of SBI or death. We are doing some digging now, be he confessed to her during this episode to killing another female and covering it up with arson by the same manner/means. If I can get that in, we should be good.

She's finally comfortable opening up about a lot of this, so this case should really only get stronger from this point. He raped her multiple times over the course of about 5 hours, plus his prior pen trips, so I've got bigger charges as well. I just want to make sure it sticks. He's a bad dude.

Why don't you just go with "member of a household" under Fam. Code sec. 71.005? That cuts out the dating relationship questions. Another thought on that is, wouldn't he be estopped to disclaim a dating relationship?

For purposes of this title, "dating relationship" means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of:
(1) the length of the relationship;
(2) the nature of the relationship; and
(3) the frequency and type of interaction between the persons involved in the relationship.
(c) A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a "dating relationship" under Subsection (b).

So she is saying they didn't have an intimate relationship, even though she was having sex with him? Is she instead saying she is a prostitute that had sex in exchange for drugs?