State v. Alires , 438 P.3d 984 ( 2019 )

2019 UT App 16THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
TERESA MARIE ALIRES,
Appellant.
Amended Opinion 1
No. 20160966-CA
Filed January 17, 2019
Third District Court, West Jordan Department
The Honorable Bruce C. Lubeck
No. 161401117
Nathalie S. Skibine and Marlene M. Mohn, Attorneys
for Appellant
Sean D. Reyes and William M Hains, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and KATE APPLEBY concurred.
MORTENSEN, Judge:
¶1 After accusing her wife (Wife) of infidelity, Defendant
Teresa Marie Alires threatened to beat and kill Wife in the
presence of their infant child and teenage niece. As their
argument escalated, Alires threatened to strangle Wife—and
then proceeded to do so. She slapped Wife, pushed her up
1. This Amended Opinion replaces the Opinion in Case No.
20160966-CA that was issued on September 7, 2018. After our
original opinion issued, the State of Utah and Defendant Teresa
Marie Alires filed petitions for rehearing. We grant the petitions
as reflected now in Part II.
State v. Alires
against the wall, struck her in the head, lifted her by the throat,
and threw her onto the couch. Placing both hands on Wife’s
neck, Alires pushed down until Wife could not breathe and
could barely make any sounds. After thirty seconds, Alires let go
of Wife, who then left the house and called the police. The State
charged Alires with two counts of domestic violence in the
presence of a child and one count of aggravated assault. At trial,
Alires requested a self-defense instruction, but the court denied
it. The jury convicted her on all charges. Alires now appeals on
three grounds. First, she contends that the trial court erred in
holding that the evidence presented was sufficient to prove,
beyond a reasonable doubt, that she used force likely to cause
death or serious bodily injury. Second, she argues that she was
erroneously denied a self-defense instruction. Third, she claims
constitutional error. We affirm.
BACKGROUND 2
Domestic Incident
¶2 Alires and Wife married in 2010 and had a child together
in 2014. Wife described their marriage as “fearful,” stating that
they had committed acts of domestic violence upon each other
throughout their marriage, though Wife claimed that she had
only ever acted in self-defense against Alires’s abuse. One
morning, an argument between Alires and Wife erupted into
physical violence. The disagreement—which their fifteen-year-
old niece (Niece) recorded on a cell phone—escalated after Wife
told Alires that she would not get custody of their
fourteen-month-old child in the event of a divorce. Alires threw
a plate of fruit at Wife, calling her a “fucking slut,” a “dumb
bitch,” and a “true whore.” She told Wife that she was “very,
2. “On appeal from a criminal conviction, we recite the facts
from the record in the light most favorable to the jury’s verdict.”
State v. Pham, 2015 UT App 233, ¶ 2, 359 P.3d 1284.
20160966-CA 2 2019 UT App 16State v. Alires
very replaceable” and said, “[T]he only thing that works is
fuckin’ smackin’ you.”
¶3 When Wife said she would take their infant child away
from Alires, she responded, “Keep fucking talking about how
you’re gonna keep [him] from me . . . and I will fucking choke
you out right fucking now.” As the argument continued, Alires
threatened, “Shut up . . . or else I’ll fucking kill you.” When Wife
told Alires to get a lawyer, Alires threw a hairbrush at Wife, who
was holding their child. Niece took the child from Wife and left
the room.
¶4 After Niece departed, Alires told Wife, “Come get your
beat-down bitch,” and then forced Wife against the wall and
began slapping and punching her in the head. Wife tried to stop
her, but Alires lifted Wife up by the neck, threw her on the
couch, and pinned her there. Alires then placed both of her
hands around Wife’s neck and began strangling her, pressing
with “weight galore.” Although Wife did not lose consciousness,
she could not breathe, speak, or scream for help. Wife tried to
free herself, but was unable. After approximately thirty seconds,
Alires let go of Wife’s neck. Wife immediately took their child
and Niece outside and called the police.
¶5 The police arrived and examined Wife. Although Wife
refused formal medical treatment, the officer who responded to
the call (Officer) observed several injuries, including a bump and
bruise on Wife’s head, a scratch on her chest, and red markings
around her neck. For a couple of days following the incident,
Wife’s throat hurt and she could not eat or swallow. Wife was
“emotional,” “hysterical,” and “in distress.”
¶6 Officer also interviewed Alires, but Officer did not notice
any injuries or marks on Alires’s body. In fact, Alires said that
she “couldn’t be injured because she was stronger than [Wife].”
Officer testified that Alires admitted to choking Wife but
claimed that she acted in self-defense. Alires alleged that she and
Wife had gotten into an argument and Wife had slapped her, so
20160966-CA 3 2019 UT App 16State v. Alires
“she slapped [Wife] back, and then had to restrain her.” Alires
further asserted that, in an effort to subdue Wife, Alires had
“grabbed onto [Wife’s] throat, sort of lifted her up, and then
pushed her down onto the couch,” holding her there by the neck
until Wife had “calmed down.”
Summary of Proceedings
¶7 The State charged Alires with one count of aggravated
assault and two counts of commission of domestic violence in
the presence of a child. Alires was tried by a jury. At trial, the
State presented evidence against Alires, including an audio
recording of the fight 3 as well as testimony from Wife, Officer,
and a forensic nurse (Nurse).
¶8 Without ever examining, interviewing, or reviewing
Wife’s injuries, Nurse explained that, in general, strangulation is
“any sort of outside force applying pressure to the neck” that
prevents oxygenated blood from reaching the brain, either by
restricting blood flow or air intake. 4 Nurse further testified that
3. Niece did not testify, but neither party disputes the validity of
the recording of the argument between Alires and Wife.
4. According to Nurse, blocking oxygenated blood from the
brain requires eleven pounds per square inch (PSI) of pressure to
the carotid arteries, four PSI of pressure to the jugular veins, or
thirty-three PSI of pressure to the trachea. Nurse explained that
opening a can of soda takes twenty PSI of pressure, and using
just one hand can produce between forty and fifty PSI of
pressure. She further testified that if someone were to lift an
adult by the neck, the pressure used would “[a]bsolutely”
exceed thirty-three PSI of pressure. Utah case law supports the
assertion that strangulation—“outside force applying pressure to
the neck”—is sufficient evidence of serious bodily injury. See
State v. Walker, 2017 UT App 2, ¶¶ 25–26, 30–31, 34, 391 P.3d 380(clarifying that there is “a distinction between determining
(continued…)
20160966-CA 4 2019 UT App 16State v. Alires
symptoms of strangulation included loss of consciousness,
bowel release, urination, difficulty swallowing, hoarseness,
shortness of breath, voice changes, scratches, claw marks,
and bruises. She elaborated that it would take only three
minutes of complete obstruction of the carotid arteries to
cause death, but some cells in the brain can begin to die
within six to ten seconds if deprived of oxygen—and once brain
cells die, they do not regenerate. Additionally, she testified that
lack of oxygen to the brain may have a “traumatic brain effect”
that is “similar to a concussion,” especially if the event is
recurring.
¶9 At the close of the State’s presentation of evidence, Alires
moved for a directed verdict, arguing that the evidence was
insufficient on all counts. Responding to the charge of
aggravated assault, Alires argued that there was no evidence
that the alleged force used—thirty seconds of pressure on Wife’s
neck—was likely to produce death or serious bodily injury.
Additionally, Alires argued that even if there was an aggravated
assault, it did not occur in the presence of a child, and therefore
she could not be convicted on the charges of domestic violence
in the presence of a child. The court denied the motion.
(…continued)
whether the evidence [of serious bodily injury by way of
strangulation] is sufficient to support a . . . conviction and
instructing the jury [that strangulation requires a finding of
serious bodily injury] as a matter of law . . . .”); State v. Speer, 750
P.2d 186, 191 (Utah 1988) (holding that choking the victim until
she “almost passed out” was “force likely to cause death or
serious bodily injury” (cleaned up)); State v. Peterson, 681 P.2d
1210, 1219 (Utah 1984) (noting that placing hands around the
neck and applying sufficient pressure to cause a person to black
out is force that “could have caused . . . death or serious bodily
injury”); State v. Fisher, 680 P.2d 35, 37 (Utah 1984) (holding that
“strangulation constitutes serious bodily injury” (cleaned up)).
20160966-CA 5 2019 UT App 16State v. Alires
¶10 Alires then testified on her own behalf, stating that Wife’s
account and Officer’s account of what Alires told him after the
accident were inaccurate. Alires said that she was angry but did
not intend to literally carry out the threats against Wife.
Notwithstanding her alleged admission to Officer that she had
strangled Wife, Alires later claimed that after Wife instigated the
fight, Alires’s hand might have hit Wife’s neck “when [they] fell
over the couch,” but she did not choke or squeeze Wife’s neck.
Alires further testified that Officer asked her repeatedly if she
restrained Wife by grabbing her neck, and she responded that
she did not. She also testified that she was injured in the fight
but withheld that information from Officer to protect Wife.
¶11 Finally, Alires claimed that other than this incident, she
had never hit Wife—though she had “restrained” her several
times throughout the course of their relationship—and until
recently, it had been a “very happy marriage.” The State recalled
Wife as a rebuttal witness, and she testified that prior to this
incident Alires had punched her on sixty separate occasions
throughout the course of their relationship. Wife added, “[S]he
made me believe that it was my fault that I was getting hit.”
¶12 Alires requested a self-defense instruction, but the trial
court determined that such an instruction was improper when
“someone denies the conduct that is the heart of the charge.”
And because Alires testified that she did not squeeze Wife’s
neck, the court determined that the situation did not “call
for a justification instruction.” But the court did give a
lesser-included-offense instruction for simple assault. A jury
convicted Alires on all counts as charged, and Alires timely
appeals.
ISSUES AND STANDARDS OF REVIEW
¶13 Alires first argues that there was insufficient evidence for
the jury to conclude that her strangulation of Wife constituted
means or force likely to cause death or serious bodily injury. We
20160966-CA 6 2019 UT App 16State v. Alires
“will reverse a jury conviction for insufficient evidence only
when the evidence, viewed in the light most favorable to the
jury’s verdict, is sufficiently inconclusive or inherently
improbable that reasonable minds must have entertained a
reasonable doubt that the defendant committed the crime of
which [she] was convicted.” State v. Lucero, 2012 UT App 202,
¶ 2, 283 P.3d 967 (cleaned up). “The court’s inquiry ends when
there is some evidence, including reasonable inferences, from
which findings of all the requisite elements of the crime can
reasonably be made.” State v. White, 2011 UT App 162, ¶ 8, 258
P.3d 594 (cleaned up).
¶14 Alires also argues that the trial court erred when it
declined to give the jury a self-defense instruction. A trial court’s
“refusal to give a jury instruction is reviewed for abuse of
discretion.” State v. Berriel, 2013 UT 19, ¶ 8, 299 P.3d 1133(cleaned up). 5 However, in order for a party to prevail, they
must also show that the error harmed, or prejudiced, the
5. At times, this court has been inexact when explaining the
standard of review in cases where the trial court has refused to
give a self-defense jury instruction, see, e.g., State v. Dozah, 2016
UT App 13, ¶ 12, 368 P.3d 863 (reviewing the “district court’s
refusal to give a requested jury instruction for correctness”), but
our supreme court has been relatively clear and thus, we follow
its lead, see State v. Berriel, 2013 UT 19, ¶¶ 9–10, 299 P.3d 1133(“A district court’s refusal to instruct the jury on a defendant’s
theory of the case presents questions on both sides of the
spectrum. The issue of whether the record evidence, viewed in
its totality, supports the defendant’s theory of the case is
primarily a factual question. . . . Trial courts are better factfinders
than appellate courts. . . . In contrast, the issue of whether to
instruct the jury on a theory that is supported by the evidence
presents a legal question. . . . In those circumstances, refusal
constitutes an error of law, and an error of law always
constitutes an abuse of discretion.” (cleaned up)).
20160966-CA 7 2019 UT App 16State v. Alires
outcome of the proceeding. State v. Reece, 2015 UT 45, ¶ 39, 349
P.3d 712 (“[W]e have applied harmless-error review to
erroneous self-defense instructions and the complete failure to
instruct the jury on an affirmative defense.” (cleaned up)).
¶15 Finally, Alires argues that if the denial of her self-defense
instruction does not result in reversal as a matter of law, it
should be reversed on the basis of “constitutional” error. 6 Her
argument is not preserved and, accordingly, we decline to
address it. “As a general rule, claims not raised before the trial
court may not be raised on appeal.” See State v. Holgate, 2000 UT
74, ¶ 11, 10 P.3d 346.
ANALYSIS
I. Strangulation Evidence
¶16 Alires contends that the trial court incorrectly held that
the evidence presented was sufficient to prove, beyond a
reasonable doubt, that Alires used force likely to cause death or
serious bodily injury—and therefore she could not properly be
convicted of aggravated assault or domestic violence in the
presence of a child. The burden of bringing an insufficiency
claim is high, State v. White, 2011 UT App 162, ¶ 8, 258 P.3d 594,
and here, Alires’s argument fails because any amount of
strangulation is sufficient evidence of force adequate to cause
serious bodily harm, see supra ¶ 8 n.4. Moreover, in the case at
6. Alires also suggests the possibility of structural error, which
we reject in full. “[A] defendant claiming constitutional error
who did not object at trial may only argue plain error . . . on
appeal and thus must prove prejudice, even if the constitutional
error claimed on appeal is structural in nature.” State v. Cruz,
2005 UT 45, ¶ 18, 122 P.3d 543. Here, we conclude that prejudice
has not been shown and, accordingly, any error was harmless.
See supra Part II.
20160966-CA 8 2019 UT App 16State v. Alires
hand, the unrefuted testimony likewise established that the
duration and force of strangulation was adequate to cause
serious bodily injury.
¶17 We begin by reviewing the elements of the charged
crimes. 7 Utah Code section 76-5-103 states that aggravated
assault is an actor’s conduct that is
(i) an attempt, with unlawful force or violence,
to do bodily injury to another;
(ii) a threat, accompanied by a show of
immediate force or violence, to do bodily injury
to another; or
(iii) an act, committed with unlawful force or
violence, that causes bodily injury to another or
creates a substantial risk of bodily injury to
another; and
includes the use of a dangerous weapon or “other means or force
likely to produce death or serious bodily injury.” Utah Code
Ann. § 76-5-103 (LexisNexis Supp. 2015).
¶18 Similarly, a person commits the crime of domestic
violence in the presence of a child if, among other circumstances,
the person uses “means or force likely to produce death
or serious bodily injury” in the presence of a child.
Id. § 76-5-109.1(2)(b). Therefore, all three charges against
Alires require a finding of serious bodily injury—
a “trigger necessary to convict.” See White, 2011 UT App 162,
¶ 10.
7. The relevant statutory provisions have been amended since
the time of the offenses. We therefore refer to the version of the
Utah Code in effect in 2015.
20160966-CA 9 2019 UT App 16State v. Alires
¶19 Serious bodily injury is any “bodily injury that creates or
causes serious permanent disfigurement, protracted loss or
impairment of the function of any bodily member or organ, or
creates a substantial risk of death.” Utah Code Ann.
§ 76-1-601(11) (LexisNexis 2015). Alires challenges the
sufficiency of the evidence presented to support the jury’s
finding that Wife’s injury—thirty seconds of pressure to her
neck—constituted serious bodily injury.
¶20 But to find serious bodily injury “[i]t is not necessary to
prove that death or serious bodily injury occurred”; it is only
necessary to prove that “the actor used means or force likely to
have that result.” State v. Peterson, 681 P.2d 1210, 1219 (Utah
1984). It is well settled that strangulation, even if performed
without the intent to kill, constitutes sufficient evidence of force
likely to cause death or serious bodily injury. See State v. Speer,
750 P.2d 186, 191 (Utah 1988) (holding that strangling a victim
until she almost lost consciousness is uncontroverted testimony
that “establishes that [the defendant] used force likely to cause
death or serious bodily injury” (cleaned up)); State v. Fisher, 680
P.2d 35, 37 (Utah 1984) (“In other words, defendant intentionally
committed an act that is dangerous to human life (strangulation),
intending to cause serious bodily injury (protracted loss or
impairment of both the heart and the brain, i.e.,
unconsciousness).”).
¶21 Here, the fact that Wife did not lose consciousness,
experience severe physical symptoms, or die does not preclude
the jury from finding that the force was likely to have that result.
See Peterson, 681 P.2d at 1219. The jury heard that Alires
strangled Wife for thirty seconds, in addition to threatening to
“choke [her] out” and “fucking kill her.” Additionally, Nurse
testified that after six to ten seconds, brain cells, which do not
regenerate, begin to die if deprived of oxygen. From this
evidence, a reasonable juror could find that Alires’s actions were
evidence of serious bodily injury or force likely to have that
result. Therefore, the jury could properly convict her of both
aggravated assault and domestic violence in the presence of a
20160966-CA 10 2019 UT App 16State v. Alires
child. We therefore deny Alires’s appeal on this point and affirm
the denial of her directed verdict motion.
II. Self-Defense Instruction
¶22 Alires next contends that the trial court erred in
declining to give the jury a self-defense instruction regarding her
conduct. Assuming without deciding that the trial court erred in
refusing to give a self-defense instruction, 8 Alires’s claim fails
due to the fact that even if error occurred, the error was harmless
because the jury was not reasonably likely to acquit after hearing
Wife’s testimony and listening to a recording of the altercation
between Alires and Wife.
¶23 Harmless errors do not require reversal. State v. Reece,
2015 UT 45, ¶ 33, 349 P.3d 712. “An error is harmless . . . if it is
sufficiently inconsequential that we conclude there is no
reasonable likelihood that the error affected the outcome of the
proceedings. . . . Errors are often harmless where there is
overwhelming evidence in the record of the defendant’s guilt.”
Id. ¶ 33 (cleaned up). Even if one were to conclude that the
evidence was sufficient to justify giving the self-defense
instruction, we do not reverse where the error is harmless. See id.
¶ 39 (“[W]e have applied harmless-error review to erroneous
self-defense instructions and the complete failure to instruct the
8. While the threshold showing necessary to entitle a party to an
instruction is a relatively “low[] bar,” State v. Garcia, 2017 UT 53,
¶ 44, 424 P.3d 171 (stating that a party is entitled to a self-defense
instruction if there is “any reasonable basis in the evidence” to
justify it (cleaned up)), we note—without deciding the issue—
that the evidence presented to the jury weighs against Alires.
“[A] court need not instruct the jury on the requested affirmative
defense where the evidence is so slight as to be incapable of
raising a reasonable doubt in the jury’s mind as to whether the
defendant acted in accordance with that affirmative defense.”
State v. Burke, 2011 UT App 168, ¶ 81, 256 P.3d 1102 (cleaned up).
20160966-CA 11 2019 UT App 16State v. Alires
jury on an affirmative defense.” (cleaned up)). Alires has failed
to persuade us that the alleged trial court error harmed her for
two reasons.
¶24 First, based on the defense Alires presented at trial—in
particular, her own testimony—there is “no reasonable
likelihood that the error affected the outcome of the proceedings.
Id. ¶ 33 (cleaned up). It must be acknowledged that Alires’s main
defense at trial was that she did not choke Wife. Alires insisted
that she did not choke or squeeze Wife’s neck, that she did not
restrain Wife by grabbing her by the neck, and that her hand
might have hit Wife’s neck “when [they] fell over the couch.”
However, to claim self-defense, Alires would have asked the
jury to conclude that she did, in fact, choke or squeeze Wife’s
neck, or restrain Wife by grabbing her by the neck—albeit in self-
defense. But this assertion would have contradicted her actual
trial testimony and her primary defense entirely. Accordingly,
had the jury been permitted to consider Alires’s proposed self-
defense theory, the jury would have also had to acknowledge the
discrepancy between her testimony at trial and other evidence,
and conclude that Alires was not credible.
¶25 Second—and more importantly—any alleged error was
harmless because “there [wa]s overwhelming evidence in the
record of the defendant’s guilt.” Id. ¶ 33 (cleaned up). When
viewed against the evidence presented by the State, Alires’s
evidence and arguments in support of her self-defense theory
were “so slight as to be incapable of raising a reasonable doubt
in the jury’s mind.” See State v. Burke, 2011 UT App 168, ¶ 81, 256
P.3d 1102 (cleaned up); see also State v. Piansiaksone, 954 P.2d 861,
872 (Utah 1998). The evidence Alires presented in support of her
self-defense theory was comprised wholly of: (1) Alires’s
testimony that Wife was the aggressor and (2) Officer’s
testimony that Alires said that Wife had slapped her, so she had
to “slap[] [Wife] back, and then had to restrain her.” This
evidence is not likely to have raised a reasonable doubt in the
jury’s mind after considering the State’s evidence, which
included: (1) presentation to the jury of the recording in which
20160966-CA 12 2019 UT App 16State v. Alires
Alires threatened Wife’s life and shouted profanities at her; (2)
Alires’s admission that she slapped Wife while simultaneously
claiming, “I would never hurt her. I would never dream about
hurting her. I’ve never hurt her before, nor after, nor would I
ever”; (3) Alires’s assertion that she did not like fighting “[but
Wife] likes to scream really loud when we’re fighting,” while
acknowledging that she was the one screaming on the recorded
incident; (4) inconsistencies involving Alires’s claim that her
marriage was “very happy”; (5) Officer’s testimony that Wife
had several physical injuries, whereas Alires had none; and (6)
Alires’s prior conviction for giving a false report to a law
enforcement officer, which further eroded Alires’s credibility in
the eyes of the jury. Again, as a result, any alleged error the trial
court made is harmless.
¶26 Accordingly—even assuming without deciding that the
trial court erred in failing to give the self-defense instruction—
the trial court’s error was harmless because, based on the
overwhelming evidence presented against Alires at trial, there is
no reasonable likelihood that the jury would have acquitted
Alires. As a result, our confidence in the verdict is not
undermined and thus, reversal is not warranted.
III. Constitutional Error
¶27 Lastly, Alires contends that if the denial of her self-
defense instruction does not result in reversal as a matter of law,
it should be reversed on the basis of “constitutional” error. “As a
general rule, claims not raised before the trial court may not be
raised on appeal.” See State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d
346. To preserve any claim of error, “the issue must be presented
to the trial court in such a way that the trial court has an
opportunity to rule on that issue.” Brookside Mobile Home Park,
Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48 P.3d 968.
¶28 Alires points to two places in the record in an attempt to
demonstrate preservation, but both are insufficient to raise a
general argument regarding her constitutional right to a self-
20160966-CA 13 2019 UT App 16State v. Alires
defense jury instruction such that the trial court would have had
the opportunity to rule on the issue. First, Alires contends that
denial of her self-defense instruction was a constitutional error
preserved by the following statement made at trial by her
attorney: “Your Honor, based on the testimony, a self defense
instruction might be warranted. I have some self defense
instructions in here.” Second, Alires points to her submission of
proposed jury instructions to the court. Using these two passing
instances, Alires attempts to elevate the issue to federal
constitutional status.
¶29 But she has failed to show how these two instances would
“have alerted the trial court that denying [her request for jury
instructions] would deprive [her] of [her] due process right.”
State v. Sanchez, 2018 UT 31, ¶ 32, 422 P.3d 866 (cleaned up).
Neither of these instances even mentions a constitutional
argument, let alone raises the issue sufficient to a “level of
consciousness” before the trial court. Id. (cleaned up). As such,
the issue is not preserved.
CONCLUSION
¶30 We hold that the jury was presented with sufficient
evidence to find that Alires’s actions constituted serious bodily
injury. Additionally, assuming without deciding that the trial
court erred in denying Alires’s proposed self-defense
instruction, any error was harmless. Lastly, because it was not
preserved, we decline to address Alires’s argument regarding
constitutional error.
¶31 Affirmed.
20160966-CA 14 2019 UT App 16