Predominant/Dominant Aggressor Law
State v. Teresa Alires, 438 P.3d 984 (2019)
The court denied use of a self defense instruction because the defendant denied strangling her wife
The defendant and the victim got into an argument over fidelity. The defendant threatened to beat and kill the victim in the presence of an infant and a teenage niece. The defendant slapped, pushed, and punched her. She also lifted the victim by the throat and threw her on the couch. The defendant then placed both hands on the victim’s neck. The victim did not lose consciousness.
The victim could not breathe and could barely make any sounds. After 30 seconds, the defendant let go. The victim called 911.
The victim refused medical treatment. Someone saw a red marking around her neck, as well as a bump and bruise to her head. She had trouble eating and swallowing for several days; she was emotional, hysterical, and in distress
The officer saw no visible injury on the defendant. The defendant claimed she was stronger than her wife. She admitted to choking the victim, but only in self defense. She said that the victim slapped her first and that she had to restrain her in an effort to subdue her.
There were three issues on appeal: sufficiency, self defense instruction, and constitutional error.
A blind expert testified about strangulation generically. No objection. The defendant argued that 30 seconds of pressure is no big deal.
The defendant testified that everyone got it wrong. She was angry, but she had no intent to carry out any threats. The victim instigated the fight, but the defendant denied ever choking or squeezing the victim’s neck despite her admission to an officer. She claimed she was injured but that she didn’t tell anyone to protect the victim. She denied ever hitting the victim in their relationship.
The victim was called on rebuttal – domestic violence had happened frequently: sixty times.
The court denied the self defense instruction on strangulation but permitted it on the simple assault.
The court cited to White (2011 UT App 162) – any amount of strangulation is sufficient evidence of force adequate to cause serious bodily injury.
There was no need to prove serious bodily injury or death, only force likely to result in serious bodily injury, which strangulation is (citing to Speer 750 P2d 186 (1988), Fisher 680 P2d 35 (1984)).
A nurse testified that after 6-10 seconds, brain cells die and do not regenerate. They begin to die when they’re deprived of oxygen.
Here, the victim was strangled for 30 seconds. Therefore, the defendant’s actions amounted to force likely to cause serious bodily injury. Any error related to self defense was harmless. The evidence against the defendant was overwhelming.