An unpublished opinion of the North Carolina Court of Appeals does not constitute 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