An unpublished opinion of the North Carolina Court of Appeals does not constitute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).
