An unpublished opinion of the North Carolina Court of Appeals does not constitute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

NO. COA 13

- 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 d efendant 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 d efendant

- a ppellant
.

CALABRIA , Judge.

Kevin Lin Soude n (“defendant”) appeals judgment s entered upon jury verdict s finding him guilty of assault inflicting physical injury by strangulation (“assault by strangulation”) and assault on a female. We fin d no error.
I. Background On the evening of 31 August 2012, defendant and his wife Jessica Miller (“ Jessica ”) , began arguing while drinking Jim- 2

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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 slap ped her. In an effort to escape from defendant, Jessica locked herself in the bedroom . Defendant broke thro ugh the door, damaging the door frame , and put his hands around Jessica ’s neck, forcing he r down onto the bed. Defendant choked her with his hands until she lost consciousness. At 3:15 a.m. o n 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 s tepped 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

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Jessica test ified 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.
T he jury returned verdicts finding defendant guilty of assault by strangulation and assault on a female. The trial court sentenced defendant to 75 days f or 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 Correctio n for the assault by strangulation offense
. Defendant appeals.
II. Motion to Dismiss Defendant argues that the trial co urt erred in denying his motion to di smiss the charge of assault by strangulation at the close of all the evidence
. We disagree. This C ourt 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 ea ch essential element of the offense charged , and (2) that the defendant is the perpetrator of the offense. ” Id
. ( citation omitted )
. “Substantial evidence- 4
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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 in struction define s 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 t he 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
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a complete inability to breathe” in order to establish assault by strang ulation. 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 photog raphs of the victim’s neck depicting brui ses and abrasions on her neck . This Court held that the State’s evidence was

“ suffici ent for the finder of fact to determine that the act of strangulation caused the physical injuries[.]” ___ N.C. App.

___ , ___, 743 S.E.2 d 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 in cident. 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

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While defendant contends that t here 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. V iewing 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
D efendant 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 t he jury to convict him based on improper cons iderations of sympathy for the victim r ather than the relevant law applied to the evidence. We disagree. Since d efendant 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
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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, 41 7 , 545 S.E.2d 190, 20 1 (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 p rejudicial.” State v. Oliver , 309 N.C. 326, 3 60, 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

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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 d efendant ’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 t hat 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 l aw 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 a nd 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 fo r 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

mo t u . T he 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 femal e offenses
. Specifically, d efendant 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 ) (c itations omitted )
. Because the trial court had no opportuni ty to render a decision on the double- 10

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jeopardy issue in defendant’s sentencing, defendant has not properly preserved this iss ue 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 f undamentally prejudicial. Davis, 349 N.C. at 23, 506 S.E.2d at 467. D efenda nt also failed to preserve the issue of double jeopardy for appeal
. We hold defendant received a fair trial, free from error.
No e rror. Judges STROUD and DAVIS concur . Report per Rule 30(e).