North Carolina (2004)
Predominant/Dominant Aggressor Law
State v. Lowery, 228 N.C. App. 229, 231, 743 S.E.2d 696, 698 (2013)
A physician’s assistant was accepted as an expert in diagnosis of patients and assault victims related to potential strangulation. She stated that the victim’s injuries and stories were consistent.
State v. Williams, 315 N.C. 310, 338 S.E.2d 75, 80 (1986)
Police found the victim dead in her house. A cord was wrapped around her neck. There was evidence of a struggle, including blood spatter and a broken frying pan.
At autopsy, the victim had a fractured skull and died as a result of ligature strangulation and acute head injury.
Evidence showed that the daughter and her boyfriend (the defendant) killed the mom for insurance. The defendant was convicted, and he appealed on numerous grounds, including jury instruction for LIO and no premediation.
Dr. Wood testified that strangulation was done to silence the mother, which the court held showed proof of premeditation. The frying pan and cord were held to be dangerous weapons.
State v. Charles (1988) 92 N.C.App. 430
This case involved a rape and strangulation (both manual and ligature). The defendant used the cord to subdue the victim so he could sexually assault her. He also used the cord to choke her until she lost consciousness.
The court believed that the cord, as used by the defendant, was a dangerous weapon as a matter of law.
State v. Braxton (2007) 643 S.E.2d 637
The defendant and the victim were in a dating relationship and were staying at a hotel. The defendant was mad at the victim for going out with a friend. They got into an argument, and the defendant grabbed the victim by her hair, threw her onto the bed, and grabbed her throat five times. The defendant also put his hands over her mouth and nose. The victim broke free and locked herself in bathroom. The victim escaped when motel owners knocked on the door.
The victim reported to the police that the defendant tried to kill her. The victim had bruises to her neck, chest, and arms. The defendant was arrested. He called the victim from jail and threatened her.
The victim testified at the preliminary hearing and told the truth. The defendant called her repeatedly afterwards and asked her not to testify and to change her story. He tried to convince her to get back together with him. The victim later wrote a letter to the defendant claiming she lied. At trial, the victim admitted that the defendant was the one who convinced her to write letter.
The defendant was convicted of kidnapping, strangulation, assault and intimidation. On appeal, among other things, the defendant claimed there was insufficient evidence of strangulation.
On appeal, court held no statutory definition of strangulation. Therefore you have to go with the plain words of the statute. If the words are ambiguous, then judicial construction must be used.
The defendant claimed that the state was required to prove that victim had a complete inability to breathe in order to prove the elements of assault by strangulation.
The state argued that the defendant’s interpretation defies legislative intent and common sense. If the court accepted defendant’s definition of ‘‘strangulation,’’ then that would mean D would likely need to be tried for attempted murder or murder.
The court refused to accept the defendant’s definition. Otherwise, the state would be required to show that a defendant strangled his victim to the point of death or close to it in order to prove strangulation.
There is no requirement of complete inability to breathe in order prove strangulation.
State v. Little (2008) 188 N.C.App 152
While strangulation is not defined in the statute, what happened here fell within the definition of strangulation. The victim testified that she was attacked and afraid for her life. She also received cuts and bruises on her neck from the strangulation. These cuts and bruises were shown in pictures. The court found sufficient evidence of strangulation elements.
State v. Williams (2009) 201 N.C.App. 161
D was charged with multiple counts including rape, robbery, assault inflicting SBI, assault with deadly weapon inflicting SBI, first degree kidnapping and strangulation involving two victims.
Prostitution case gone bad. D ultimately took his money back, assaulted the V including pressing his foot on her neck and his full weight to her rib cage. Witness called 911.
As to strangulation, D argued there must be evidence the victim had difficulty breathing. In this case, V said she felt the D was trying to crush her throat, that he pushed down with his weight, that she thought he was trying to choke her out and she believe she was going to die. Court held there was sufficient evidence of strangulation.
Court also held that D’s used his hands as a deadly weapon
State v. Guin, 247 N.C. App. 247 (2016), Unpublished
The defendant and the victim were living together. They went to a party where they were drinking. The defendant got angry on the way home. They got into an argument about the defendant’s driving. When they got home, the defendant pushed the victim to the floor, sat on top of her, and put one hand on her neck. He put his other hand across her nose and mouth so she couldn’t breathe. There was a visible handprint on her throat. The victim called 911, and the defendant ran.
The police responded and saw the VI to her neck, as well as the red marks and bruising. The defendant was charged and convicted of strangulation under NC14-32.4(b). The issue on appeal was the jury instruction definition of strangulation, but the defendant didn’t object at the time.
The court held that they continued to decline to adopt a rigid definition of strangulation, instead choosing to continue to decide on a case-by-case fact basis. There was no error in this case.
State v. McMillan (2018) 817 S.E.2d 630 Unpublished.
The defendant was found guilty of burglary, kidnapping, and strangulation. Then PG to a habitual felon.
He appealed the judge’s denial of motion to dismiss and refusing to give LIO of simple assault. The holding was upheld.
In this case, the defendant went to the victim’s house unannounced at 4am and kidnapped her. The victim was screaming for her roommate. The defendant grabbed the victim by her neck and lifted her off the ground. She lost consciousness. The victim was unable to remember a lot of the details, but she did remember waking up in a motel room.
The roommate called the victim repeatedly. One call went through; she heard a struggle and the victim screaming for the defendant to get off her.
The defendant had a history of domestic violence, including prior choking to loss of consciousness.
Dr. Collins testified that the victim had a ruptured blood vessel in her right eye and that strangulation causes petechiae.
Strangulation is committed when one assaults another person and inflicts physical injury by strangulation. In another case, the court found that wrapping one’s hands around another’s throat and applying pressure until a loss of consciousness is strangulation. However, a loss of consciousness is not necessary to prove strangulation. Here, the victim was strangled to loss of consciousness, suffered petechiae – although she had no VI on her neck. The expert testified that petechiae is consistent with strangulation.
State v. Prevette (1986) 317 N.C. 148
Death by strangulation is vicious and brutal, and it is ample evidence of the use of grossly excessive force, as a matter of law
State v. Hall (1977) 293 N.C. 599
V was in an altercation with her BF. She was pushed to the pavement, hit her head and left unconsciousness.
D came to her rescue. V knew him and agreed to let him take her to his house to get cleaned up. As the V tried to leave, D wouldn’t let her go and said they needed to do something first. V told him she didn’t want to do it and tried to escape.
D grabbed V around the neck and strangled her until she lost consciousness. She testified she couldn’t get her breath. It was cutting my wind off. I was scared to death. When the V regained consciousness, D was having intercourse with her.
V testified she was too scared after that to fight him. She was afraid of him.
V convinced D to take her to hospital but he was going with her. V managed to tell her cousin what happened and they
drove to magistrate’s office and hospital to report the incident.
D was charged with second degree rape.
Rape is the carnal knowledge of a female person by force and against her will. The force necessary to constitute rape need not be physical force. Fear, frights or coercion may take the place of force.
D denied any force was used and V did not resist his advances (consent).
Court held evidence of strangulation was sufficient to show force was used and lack of consent. “While consent by the female is a complete defense, consent which is induced by fear of violence is void and is no legal consent.”
STATE v. William Curtis LOWERY, 228 N.C.App. 229 (2013)
Victim testified her physical injuries were result of defendant’s attack and he strangled her.
Expert (physician’s assistant) testified that victim’s injuries were consistent with strangulation
Photos depicted bruising, abrasions, and bite mark on and around victim’s neck.
Court held that extensive physical injury is not a requirement for assault by strangulation
Otherwise ‘‘the State would be required to show that a defendant strangled his or her victim to the point of death or close to it, in order to prove assault by strangulation.” That’s not necessary.
State v. Lanford (2013, North Carolina) 225 NC 189
D assaulted V’s 11 yo son by cutting his penis with a knife and strangulation.
Defendant argues that strangulation requires a closing of the windpipe through the direct application of force to the throat. Because he suffocated him, he cannot be convicted of strangulation.
The evidence showed that defendant grabbed him under the chin and pulled Joseph’s head “back by one hand while his nose and mouth were covered by the other hand, making it difficult to breathe.”
We do not believe that the statute requires a particular method of restricting the airways in the throat.
Here, defendant constricted Joseph’s airways by grabbing him under the chin, pulling his head back, covering his nose and mouth, and hyperextending his neck.
Dr. Cooper testified the V had mark under chin that was consistent with strangulation. He also had bleeding of the white of the eye called scleral hemorrhage which is caused by someone hitting you in the eye or from strangulation (bloodflow/venous pressure)
Although there was no evidence that defendant restricted Joseph’s breathing by direct application of force to the trachea (external pressure to the neck), he managed to accomplish the same effect (restriction of airflow) by hyperextending V’s neck and throat.
The fact that defendant restricted Joseph’s airway through the application of force to the top of his neck and to his head rather than the trachea itself is immaterial.
In other words, strangulation includes suffocation. Strangulation includes obstruction of blood flow or airflow.