State v. Souden
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-1151 NORTH CAROLINA COURT OF APPEALS Filed: 15 July 2014 STATE OF NORTH CAROLINA v. Wake County No. 12 CRS 219919 KEVIN LIN SOUDEN Appeal by defendant from judgments entered 9 April 2013 by Judge Reuben F. Young in Wake County Superior Court. Heard in the Court of Appeals 20 February 2014. Attorney General Roy Cooper, by Special General Amy Bircher, for the State. Deputy Attorney judgments entered William D. Spence, for defendant-appellant. CALABRIA, Judge. Kevin Lin Souden upon jury verdicts ( defendant ) appeals finding him guilty physical injury by strangulation of assault inflicting ( assault by strangulation ) and assault on a female. We find no error. I. Background On the evening of 31 August 2012, defendant and his wife Jessica Miller ( Jessica ), began arguing while drinking Jim -2Beam whiskey Carolina. at The consume alcohol. defendant s argument residence escalated as in Raleigh, defendant North continued to Defendant began pushing Jessica, then hit and slapped her. In an effort herself in the to escape bedroom. from Defendant defendant, broke Jessica through locked the door, damaging the doorframe, and put his hands around Jessica s neck, forcing her down onto the bed. Defendant choked her with his hands until she lost consciousness. At 3:15 a.m. on 1 September 2012, ( Officer Raleigh Miller ) Police and Marcus Department Kirk responded Officers Mark Miller ( Officer to possible fight in defendant s apartment. door. a Kirk ) call of the regarding a Jessica answered the She was crying and disoriented, and had visible injuries including a cut above her lip and a swollen right eye. Officer Miller stepped outside with her while defendant remained in the apartment with Officer Kirk. Jessica told Officer Miller that defendant had choked her with his hands around her neck until she lost consciousness. Officer Miller photographed her injuries, including markings around her neck. Defendant was subsequently arrested and charged assault by strangulation and assault on a female. with At trial, -3Jessica testified that she lost consciousness after defendant put both of his hands around her throat and forced her down onto the bed. Officer Miller testified regarding Jessica s injuries, including the markings around her neck. Officer Miller s photographs of Jessica s injuries were admitted into evidence. The jury returned verdicts finding defendant assault by strangulation and assault on a female. guilty of The trial court sentenced defendant to 75 days for the assault on a female offense, and a minimum of eight months to a maximum of nineteen months in the custody of the Division of Adult Correction for the assault by strangulation offense. Defendant appeals. II. Motion to Dismiss Defendant argues that the trial court erred in denying his motion to dismiss the charge of assault by strangulation at the close of all the evidence. We disagree. This Court reviews a trial court s motion to dismiss de novo. State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted). When ruling on a defendant s motion to dismiss, the trial court must determine whether there is substantial evidence (1) of each essential element of the offense charged, and (2) that the defendant is the perpetrator of the offense. Id. (citation omitted). Substantial evidence -4is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. If a jury could reasonably infer defendant s guilt when the evidence is viewed in the light most favorable to the State, then the motion must be denied. State v. Hines, 166 N.C. App. 202, 205, 600 S.E.2d 891, 894 (2004). To establish assault by strangulation, the State must prove that the defendant both assaulted the victim and inflict[ed] injury by strangulation. N.C. Gen. Stat. ยง 14-32.4(b) (2013). The statute does not define strangulation. However, the pattern jury instruction defines strangulation as a form of asphyxia characterized by closure of the blood vessels and/or air passages of the neck as a result of external pressure on the neck brought about by . . . the manual assertion of pressure. N.C.P.I. Crim. 208.61 n.1. In State v. Braxton, the State presented evidence that the defendant grabbed the victim by the throat several times during a struggle, causing her to have trouble breathing. App. 36, 43, 643 S.E.2d 637, 642 (2007). jury with the strangulation. pattern jury 183 N.C. The court provided the instruction Id. at 42, 643 S.E.2d at 642. definition for This Court held that the State was not required to prove that [the victim] had -5a complete inability to breathe in order to establish assault by strangulation. Id. at 43, 643 S.E.2d at 642. Instead, the State presented sufficient evidence showing that the defendant applied sufficient pressure to [the victim s] throat such that she had difficulty breathing. Id. In State v. Lowery, the State presented the victim s testimony as well as the testimony of a physician s assistant who examined the victim and photographs of the victim s neck depicting bruises and abrasions on her neck. This Court held that the State s evidence was sufficient for the finder of fact to determine that the act of strangulation caused the physical injuries[.] ___ N.C. App. ___, ___, 743 S.E.2d 696, 699 (2013). In the instant case, Jessica testified that defendant put both of his hands around her throat and that she subsequently lost consciousness. She also testified that her neck became completely swollen the morning after the fight, and that more bruising lasted for a week after the incident. Officer Miller corroborated Jessica s testimony when he testified that he saw markings photograph around for her neck evidence defendant s arrest. and that to were substantial establish probable enough to cause for -6While defendant contends that there is evidence to show that Jessica passed out because she had consumed alcohol, this argument relates sufficiency. to the weight of the evidence and not the Viewing the evidence in the light most favorable to the State, the State presented sufficient evidence to show assault by strangulation and substantial evidence for a jury to reasonably infer defendant s guilt. Therefore, the trial court properly denied defendant s motion to dismiss. III. Closing Argument Defendant also argues that the trial court erred by failing to intervene argument. ex mero motu Specifically, regarding defendant the contends State s that the closing State s closing argument encouraged the jury to convict him based on improper considerations of sympathy for the victim rather than the relevant law applied to the evidence. Since question defendant during failed closing to object argument, We disagree. to [t]he the statements impropriety of in the argument must be gross indeed in order for this Court to hold that a trial judge abused his discretion in not recognizing and correcting ex mero motu an argument which defense counsel apparently did not believe was prejudicial when he heard it. State v. McCollum, 177 N.C. App. 681, 685, 629 S.E.2d 859, 862 -7(2006) (citation omitted). To establish such an abuse, defendant must show that the prosecutor's comments so infected the trial with fundamentally unfairness unfair. that State v. they rendered Davis, 349 the N.C. conviction 1, 23, 506 S.E.2d 455, 467 (1998), cert. denied, 526 U.S. 1161, 144 L.Ed.2d 219 (1999). [O]n appeal we must give consideration to the context in which the remarks were made and the overall factual circumstances to which they referred. State v. Call, 353 N.C. 400, 417, 545 S.E.2d 190, 201 (2001). During the guilt phase of a trial, the focus is on guilt versus innocence . . . pity for the victim . . . may be an inappropriate basis for a jury decision as to guilt or innocence. Arguments which emphasize these factors are properly deemed prejudicial. State v. Oliver, 309 N.C. 326, 360, 307 S.E.2d 304, 326 (1983). In the instant case, defendant argues that the following excerpt from the State s closing argument was so grossly improper such that the trial court abused its discretion by failing to intervene: This time it s Jessica knocking. She s knocking for you. She wants to know is there finally going to be justice in this world for me. I m doing what I can. Can I count on my community and my society to help me out when I help myself? All we ask is you all answer with a resounding yes. -8Whether the State infected the jury with unfairness to render the conviction fundamentally unfair depends on whether or not the State emphasized pity for the victim. The State s argument focused on the elements of defendant s offenses, the evidence the State had presented to prove each of those elements, and refuted defendant s attempts to cast doubt upon that evidence. The prosecutor specifically asked the jury to apply the evidence they heard to the relevant law that the judge was about to tell them. His argument, in pertinent part, stated: You ve heard the evidence. What you haven t heard, what you re about to hear is the law that s given out in this case. That s what we told you the judge is about to tell you, you re going to have to apply this law to the facts that you heard. . . . Those are the elements. Those are the things that you all are going to have to find. This is what your job s going to be, take those elements and match it up to the facts and the evidence that you heard and determine whether we have this or not. The State s argument as a whole emphasized the facts and their application to the law, not that defendant should be convicted based on improper considerations of sympathy and pity for the evidence victim. for a Moreover, reasonable the jury State to presented infer substantial defendant s guilt. -9Therefore, argument defendant s could have contention rendered that [his] the State s conviction closing fundamentally unfair is without merit. Davis, 349 N.C. at 23, 506 S.E.2d at 467. The closing argument did not encourage the jury to convict defendant based on improper considerations of sympathy for the victim rather than the relevant law applied to the evidence. Furthermore, it was not so prejudicial or grossly improper as to warrant the trial court s intervention to correct it ex mero motu. The trial court did not abuse its discretion by failing to intervene. IV. Double Jeopardy Finally, defendant argues that the trial court erred in sentencing him for both the assault by strangulation and the assault on a female offenses. Specifically, defendant contends the sentencing constituted double jeopardy. We disagree. Defendant concedes that he failed to object or raise the constitutional issue at trial. It is well-established that appellate courts ordinarily will not pass upon a constitutional question unless it was raised and passed upon in the court below. State v. Cortes-Serrano, 195 N.C. App. 644, 658, 673 S.E.2d 756, 765 (2009) (citations omitted). Because the trial court had no opportunity to render a decision on the double -10jeopardy issue in defendant s sentencing, defendant has not properly preserved this issue for appeal. V. Conclusion Since the State presented substantial evidence of assault by strangulation sufficient for a jury to reasonably infer defendant s guilt, the trial court properly denied defendant s motion to dismiss. The trial court did not err in failing to intervene ex mero motu because the district attorney s closing argument did not so infect[] the trial with unfairness as to make it fundamentally prejudicial. S.E.2d at 467. Davis, 349 N.C. at 23, 506 Defendant also failed to preserve the issue of double jeopardy for appeal. We hold defendant received a fair trial, free from error. No error. Judges STROUD and DAVIS concur. Report per Rule 30(e).
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