State v. Souden

• Court: Court of Appeals of North Carolina
• Decided: July 15, 2014
• Docket: 13-1151
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 -2- 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, -3- 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 -4- 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 -5- 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. -6- 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 -7- (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. -8- 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. -9- 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 -10- 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).