State v. Alires, 20160966-CA
| Decision Date | 07 September 2018 |
| Docket Number | No. 20160966-CA,20160966-CA |
| Citation | 2018 UT App 173 |
| Parties | STATE OF UTAH, Appellee, v. TERESA MARIE ALIRES, Appellant. |
| Court | Utah Court of Appeals |
Third District Court, West Jordan Department
The Honorable Bruce C. Lubeck
Nathalie S. Skibine and Marlene M. Mohn, Attorneys for Appellant
Sean D. Reyes and William M Hains, Attorneys for Appellee
¶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 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.
¶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, 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 chokeyou 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 "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."
¶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 fight2 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.3 Nurse further testified thatsymptoms 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.
¶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 hadstrangled 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.
¶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 "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 areasonable 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).4
¶15 Finally, Alires argues that if the denial of her self-defense instruction does not result in reversal as a matter of law, itshould be reversed on the basis of "constitutional" error.5 Her argument is not preserved and 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.
¶16 Alires contends that the trial court incorrectly...
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