Predominant/Dominant Aggressor Laws
State v. Rosario (2017) 404 P.3d 701 Unpublished
The victim was raped, strangled, burned, bitten, beaten, sodomized, threatened, and kidnapped. There was a child present in the home. The victim drove the car into a ditch, escaped, flagged down a car, and reported to the police. The victim was examined by a forensic nurse. They swabbed a bite mark. There were no obvious injuries to genital area, but the forensic nurse testified that only 20% of sexual assault cases have injuries.
She had suffered manual strangulation and had difficulty breathing. She may have lost consciousness. She was having difficulty talking. Choking was never part of their past sexual relationship.
Forensic Nurse Jennifer Johnson testified that physical damage from strangulation only occurs in 24% or 34%. The defendant was charged with attempted murder, rape, sodomy, and kidnapping.
State v. Frazier (2016) 369 P.3d 341 Unpublished
Choking is not an accidental or reckless act; it is an intentional and knowing act to cause great bodily harm. The defendant was the victim’s ex-boyfriend. He asked the victim for help with his car. She helped him. He thought she was cheating and asked for her cell phone. He found stuff he doesn’t like. Then he started to beat the victim – punched, kicked, and choked her. He threatened to kill her and wrapped an antenna around her neck. She couldn’t breathe. Mom came up and saw her daughter. She called 911. The defendant was convicted of aggravated battery.
State v. Solis, 378 P.3d 532 (2016)
Death by manual strangulation requires a lot of neck pressure over a longer period of time, which doesn’t lend itself to an accidental or reckless intent. The court had previously considered that a manual strangulation incident was a potential factor to show intent.
State v. Johnson (2012) P.3d 1229 Unpublished
Loss of conscious amounts to great bodily harm. Strangulation of a person past loss of consciousness may result in brain damage or death and thus would support that element of aggravated battery. The defendant claimed that he briefly applied the chokehold to defend himself and that the victim’s red eyes were caused by her diabetes and hypertension rather than how long she had been strangled.
State v. Curreri, 42 Kan.App.2d 460 (2009)
The defendant followed the victim into the bathroom, pushed her to the floor, got on top of her, and strangled her to the point where she almost passed out. She felt she couldn’t breathe. It scared her, and she defended herself to break free.
The defendant was guilty of aggravated battery and criminal restraint. Whether an injury can cause great bodily harm is a question for the jury. The defendant agreed that choking can cause death, but he argued that the victim was fine and there was insufficient evidence for great bodily harm – at best, it was simple battery.
There was sufficient evidence that the defendant’s actions could have caused great bodily harm. There’s no need to show actual great bodily harm.
State v. Jones, 279 Kan. 395, 403, 109 P.3d 1158, 1163–64 (2005)
Strangulation could have been manual, but it was accomplished by an instrument for at least part of the time. This court has stated that death by strangulation can be strong evidence of premeditation.
State v. Tisdale, 30 Kan.App.2d 524 (2002)
The defendant was out of prison for one week and got into an argument with his girlfriend. The defendant repeatedly hit the victim and strangled her twice. She blacked out twice. At a bench trial, he was found guilty of aggravated assault and sentenced to 27 months. The defendant claimed there was no great bodily harm because she was okay. The Court of Appeals disagreed. The defendant acted in a manner that was likely to cause great bodily harm, disfigurement, or death, even if the victim did not receive bruises to her neck, drove away, and refused medical treatment.