Opinion
No. COA15-1007
04-19-2016
STATE OF NORTH CAROLINA v. KAROL VANCE GUIN, Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney General Mary L. Lucasse, for the State. Amanda S. Zimmer for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Union County, No. 14 CRS 53066 Appeal by defendant from judgment entered 18 May 2015 by Judge Martin B. McGee in Union County Superior Court. Heard in the Court of Appeals 11 April 2016. Attorney General Roy Cooper, by Special Deputy Attorney General Mary L. Lucasse, for the State. Amanda S. Zimmer for defendant-appellant. GEER, Judge.
Defendant Karol Vance Guin appeals from a judgment entered upon his conviction for assault by strangulation. On appeal, defendant contends that the trial court committed plain error by failing to instruct the jury on the definition of strangulation. Following our decision in State v. Braxton, 183 N.C. App. 36, 643 S.E.2d 637 (2007), we reject defendant's argument and hold that defendant has failed to establish that the trial court's instruction constituted plain error.
Facts
The State's evidence at trial established the following facts. On the evening of 27 June 2014, defendant and Sheila Kelly went to a party at a friend's house. The two had been dating for about eight months, and defendant was living in Ms. Kelly's home at the time. Both defendant and Ms. Kelly were drinking at the party. After approximately four hours, they left the party and defendant drove Ms. Kelly's car home. According to Ms. Kelly, defendant was "raging the whole time" during the drive home and the two "got into it about the way he was driving" Ms. Kelly's car.
After arriving home, defendant grabbed Ms. Kelly, threw her on the floor, and jumped on top of her. He put "one [hand] on [her] neck, one across [her] nose and [her] mouth to where [she] couldn't breathe." As a result, Ms. Kelly had hand prints around her throat and scratches on her arm. Ms. Kelly later attempted to dial 911, but hung up after defendant asked whether she was calling law enforcement. Defendant kept "ripping and raging," however, so Ms. Kelly called 911 a second time. At that point, defendant took off running.
Law enforcement officers responded 10 to 15 minutes later. Ms. Kelly gave a statement to the officers, and they took photos of bruises visible on both sides of her neck. In Ms. Kelly's statement, she indicated that defendant "choked" her and "put his hands on [her] mouth and [her] nose and [she] could not breathe." Deputy Samuel Clark of the Union County Sheriff's Office saw red marks and bruising on both sides of Ms. Kelly's face under her chin down to the base of her neck. The marks were consistent with her statement.
Defendant was indicted for assault by strangulation and assault on a female. On 18 May 2015, a jury found defendant guilty of both charges, but the trial court arrested judgment on the assault on a female charge. The trial court sentenced defendant to a presumptive-range term of eight to 19 months imprisonment. Defendant timely appealed to this Court.
Discussion
Defendant argues that the trial court erred in instructing the jury on the elements of assault by strangulation. The trial court gave the following instruction at trial:
The defendant has been charged with assault inflicting physical injury by strangulation. For you to find the defendant guilty of this offense, the State must prove two things beyond a reasonable doubt.This instruction tracks the pattern jury instruction on assault inflicting serious injury by strangulation. See N.C.P.I.-Crim. 208.61. The trial court, however, did not include footnote 1 of the instruction, which states that "[s]trangulation is defined 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 hanging, ligature, or the manual assertion of pressure." Id. n.1. Defendant argues that the trial court's failure to instruct the jury on this definition of strangulation was in error.
First, that the defendant assaulted the victim by intentionally strangling Sheila Kelly. Second, that the defendant inflicted physical injury upon Sheila Kelly.
If you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant intentionally assaulted Sheila Kelly inflicting physical injury by strangulation, it would be your duty to return a verdict of guilty. If you do not so find or have a reasonable doubt as to one or both of these things, it would be your duty to return a verdict of not guilty.
As defendant failed to object to the omission of the footnote at trial, he did not preserve any such error, and this Court's review is limited to whether the trial court's instruction amounted to plain error. See N.C.R. App. P. 10(a)(4).
For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice -- that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affect[s] the fairness, integrity or public reputation of judicial proceedings[.]State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations and quotation marks omitted). "Whether a jury instruction correctly explains the law is a question of law, reviewable by this Court de novo." State v. Barron, 202 N.C. App. 686, 694, 690 S.E.2d 22, 29 (2010).
Defendant asserts that strangulation is an essential element of the crime and therefore has a specific legal meaning -- the definition used by the pattern jury instruction. Consequently, defendant argues that omission of the definition in the jury instruction constitutes reversible error. We are not persuaded.
Of course, as defendant contends, strangulation is an essential element of the crime of assault by strangulation, as defined in N.C. Gen. Stat. § 14-32.4 (2015). "The elements of assault by strangulation are defined by N.C. Gen. Stat. § 14-32.4(b): (1) an assault and (2) infliction of 'physical injury by strangulation.' " State v. Little, 188 N.C. App. 152, 157, 654 S.E.2d 760, 764 (2008) (quoting N.C. Gen. Stat. § 14-32.4(b) (2005)). However, we reject defendant's assertion that the term "strangulation" has a specific legal meaning on which the jury must be instructed.
We find guidance in previous opinions by this Court in which N.C. Gen. Stat. § 14-32.4(b) was at issue. In Braxton, 183 N.C. App. at 41, 643 S.E.2d at 641, the defendant argued that the State presented insufficient evidence of strangulation. In furtherance of this argument, defendant submitted that the definition of "strangulation" should have been "interpreted according to definitions found in dictionaries which require proof of a complete closure of one's airway causing an inability to breathe." Id. at 42, 643 S.E.2d at 641. After reviewing several definitions of the term, including the pattern instruction's definition, this Court held that "the State was not required to prove that [the victim] had a complete inability to breathe in order to prove the elements of assault by strangulation." Id. at 43, 643 S.E.2d at 642. In rejecting the defendant's argument, we noted that N.C. Gen. Stat. § 14-32.4(b) does not define the term "strangulation," and that "[i]n interpreting statutory language, 'it is presumed the General Assembly intended the words it used to have the meaning they have in ordinary speech.' " Braxton, 183 N.C. App. at 41, 643 S.E.2d at 641 (quoting Nelson v. Battle Forest Friends Meeting, 335 N.C. 133, 136, 436 S.E.2d 122, 124 (1993)).
In subsequent cases, we again declined to adopt a rigid definition of the term and have looked at the facts of each case to determine whether there was sufficient evidence of strangulation. See, e.g., State v. Lowery, 228 N.C. App. 229, 229, 233, 743 S.E.2d 696, 697, 699 (2013) (finding "sufficient evidence to allow a reasonable juror to find Defendant guilty of assault inflicting physical injury by strangulation" and that "the act of strangulation caused the physical injuries to [the victim's] neck"); State v. Lanford, 225 N.C. App. 189, 197, 736 S.E.2d 619, 625 (2013) (holding that there was sufficient evidence of strangulation and concluding "[w]e do not believe that the statute [N.C. Gen. Stat. § 14-32.4(b)] requires a particular method of restricting the airways in the throat"); State v. Williams, 201 N.C. App. 161, 170-71, 689 S.E.2d 412, 417 (2009) (finding defendant's argument that "in order to constitute strangulation there must be evidence that the victim had difficulty breathing" interpreted the language of Braxton too narrowly and holding that there was sufficient evidence of assault by strangulation).
We acknowledge that the above-cited cases did not address the precise issue presented by defendant in the instant case. Instead, in each case, we were faced with determining whether the State presented sufficient evidence of strangulation. Nonetheless, we find these opinions instructive. Our Supreme Court has explained that "in giving jury instructions, 'the [trial] court is not required to follow any particular form,' as long as the instruction adequately explains 'each essential element of the offense.' " State v. Walston, 367 N.C. 721, 731, 766 S.E.2d 312, 319 (2014) (quoting State v. Avery, 315 N.C. 1, 31, 337 S.E.2d 786, 803 (1985)). To that end, while the appellate courts of this State have often approved of the pattern instructions, they have " 'neither the force nor the effect of law[.]' " Id., 766 S.E.2d at 318 (quoting State v. Warren, 348 N.C. 80, 119, 499 S.E.2d 431, 453 (1998)). Neither the statutory language nor the pertinent case law require the State to prove a specific definition of the term "strangulation"; they instead rely on the term's ordinary meaning. We therefore find that the trial court's instructions adequately explained the essential elements of the offense, and we discern no error in the trial court's failure to provide a specific definition.
We adopted a similar approach in State v. McLean, 211 N.C. App. 321, 712 S.E.2d 271 (2011). The defendant in McLean, who was charged with assault with a deadly weapon with intent to kill inflicting serious injury, argued that the trial court erred in failing to define "serious injury" in its jury instructions, as defined by footnote 4 to Pattern Jury Instruction 120.12. Id. at 326, 712 S.E.2d at 276. We found no error, explaining as follows:
Although the trial judge may have agreed to give the North Carolina Pattern Jury Instruction 120.12, defining "serious injury" as an injury that "causes great pain and suffering," N.C.P.I. Crim. 120.12 (1998), the omission thereof during his charge to the jury was not error. The trial court's instruction to the jury on the charge of assault with a deadly weapon with intent to kill inflicting serious injury tracked the North Carolina Pattern Jury Instruction on that offense. See N.C.P.I. Crim. 208.15 (2008). While this pattern instruction includes a footnote that suggests a trial court may define serious injury as one that causes great pain and suffering, see id. at n.4, our courts have also chosen not to narrowly define "serious injury" in the context of assaults, as explained above. Likewise, the trial court was not required to define the term as requested by Defendant and, accordingly, committed no error in omitting to do so.Id. at 326-27, 712 S.E.2d at 276.
Based on the foregoing, we find no error, let alone plain error, in the trial court's instruction to the jury on the charge of assault inflicting physical injury by strangulation.
NO ERROR.
Judges McCULLOUGH and ZACHARY concur.
Report per Rule 30(e).