An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Deputy Attorney
General Amy Bircher, for the State.
William D. Spence, for defendant-appellant.
CALABRIA, Judge.
Kevin Lin Souden (“defendant”) appeals judgments entered
upon jury verdicts finding him guilty of assault inflicting
physical injury by strangulation (“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
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Beam whiskey at defendant’s residence in Raleigh, North
Carolina. The argument escalated as defendant continued to
consume alcohol. Defendant began pushing Jessica, then hit and
slapped her.
In an effort to escape from defendant, Jessica locked
herself in the bedroom. Defendant broke through 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, Officers Mark Miller
(“Officer Miller”) and Marcus Kirk (“Officer Kirk”) of the
Raleigh Police Department responded to a call regarding a
possible fight in defendant’s apartment. Jessica answered the
door. 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 with
assault by strangulation and assault on a female. At trial,
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Jessica 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 guilty of
assault by strangulation and assault on a female. 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
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is 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. § 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. 183 N.C.
App. 36, 43, 643 S.E.2d 637, 642 (2007). The court provided the
jury with the pattern jury instruction definition for
strangulation. Id. at 42, 643 S.E.2d at 642. This Court held
that the State “was not required to prove that [the victim] had
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a 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 around her neck that were substantial enough to
photograph for evidence and to establish probable cause for
defendant’s arrest.
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While defendant contends that there is evidence to show
that Jessica “passed out” because she had consumed alcohol, this
argument relates to the weight of the evidence and not the
sufficiency. 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 ex mero motu regarding the State’s closing
argument. Specifically, defendant contends that the 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. We disagree.
Since defendant failed to object to the statements in
question during closing argument, “[t]he impropriety of 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
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(2006) (citation omitted). “To establish such an abuse,
defendant must show that the prosecutor's comments so infected
the trial with unfairness that they rendered the conviction
fundamentally unfair.” State v. Davis, 349 N.C. 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.
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Whether 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 victim. Moreover, the State presented substantial
evidence for a reasonable jury to infer defendant’s guilt.
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Therefore, defendant’s contention that the State’s closing
argument could have “rendered [his] conviction 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
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jeopardy 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. Davis, 349 N.C. at 23, 506
S.E.2d at 467. 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).
State v. Souden
Combined Opinion