State v. Simonovich

• Decision Date: 19 January 2010
• Docket Number: No. COA09-585.,COA09-585.
• Parties: STATE of North Carolina v. Dimitry SIMONOVICH.
• Court: North Carolina Court of Appeals

688 S.E.2d 67

STATE of North Carolina v. Dimitry SIMONOVICH.

No. COA09-585.

Court of Appeals of North Carolina.

January 19, 2010.

Appeal by Defendant from judgment entered 7 August 2008 by Judge James U. Downs in Superior Court, Buncombe County. Heard in the Court of Appeals 27 October 2009.

Attorney General Roy Cooper, by Special Deputy Attorney General Richard L. Harrison, for the State.

M. Alexander Charns, Durham, for Defendant-Appellant.

McGEE, Judge.

Dimitry Simonovich (Defendant) was convicted on 7 August 2008 of second-degree murder of his wife, Inna Simonovich (Inna). The trial court sentenced Defendant to an active term of 196 months to 245 months. Defendant appeals.

The evidence at trial tended to show that Defendant and Inna were natives of Belarus and were married to each other in Belarus on 8 August 2003. Inna emigrated to the United States with her parents less than three months later, while Defendant remained in Belarus. Defendant and Inna communicated regularly by telephone and Inna provided clothing and other material support to Defendant. Defendant's relationship with Inna began to deteriorate. They argued and Inna told Defendant she no longer loved him. They contemplated divorce, but Defendant remained hopeful and continued to work toward reuniting with Inna in the United States.

Defendant came to the United States on 1 March 2007 and began to teach himself English. At the time of trial, he could not speak English. Defendant and Inna shared an apartment in Asheville, which was located in the same apartment complex as Inna's family. At trial, Defendant testified through an interpreter that he found a job installing marble and granite countertops. Inna's mother testified through an interpreter that Inna worked as a cleaner at various locations around Asheville. During April of 2007, Inna became pregnant with Defendant's child. Defendant testified that he had been praying for Inna to become pregnant and that, when she told him about the pregnancy, he "was very excited."

Defendant further testified to the following at trial. Inna told Defendant that, while Defendant was still living in Belarus, she had sexual relationships with several men in the United States. On the evening Defendant arrived in the United States, Inna said to him: "Please forgive me. I have cheated on you." Defendant told Inna to "[f]orget everything that was before me — that happened before me. I came here; now let's start a new life together." Inna told Defendant about her relationships with other men and she continued to receive telephone calls from a man Defendant identified as Inna's "boyfriend." Defendant testified that Inna kept pornographic materials in their apartment and used a computer to view pornographic web sites and Russian dating web sites. Defendant wanted Inna to stop seeing other men and had several arguments with Inna about that.

Inna's mother and sister testified at trial through interpreters. Inna's mother testified that she did not know what Inna used the computer for. Inna's sister, Larisa, testified that she was not aware of Inna having any relationships outside of her marriage to Defendant nor was she aware of Inna's use of the internet for pornographic or dating purposes. Larisa also testified that she did not hear Inna tell Defendant that Inna had sex with other men.

Defendant testified that at times the arguments were heated and physically threatening to Inna. During one argument, Defendant took Inna's telephone, intending to erase her boyfriend's telephone number from the telephone's memory, but became angry and broke the telephone instead. During another argument, Defendant broke Inna's discs containing pornographic materials and threw a pornographic magazine at her.

Defendant described another incident during which Inna took Defendant's passport and locked herself in the bedroom. Defendant kicked open the bedroom door and Inna called out for her sister, who was a neighbor, to help. Inna refused to return Defendant's passport, and Defendant "grabbed her by the neck." Defendant and Inna struggled until Inna reached for a pair of scissors and Defendant then released her. Defendant again grabbed Inna and she bit him. Inna ran to her sister's apartment and Defendant went to sleep.

Defendant testified that he and Inna fought again on 27 July 2007. Defendant wanted to have sex with Inna, but she was not interested. Inna told Defendant that she did not love him and that they could no longer live together. Inna also told Defendant that "[i]f [she] wanted to have sex [she] could find [herself] another man." When Defendant told her that he did not want her to find another man, Defendant said Inna replied, "I will do it just to make you angry. I will go with someone else or I will make a phone call and they will come and get me." Defendant took Inna's telephone and car keys and left the apartment for the night. Defendant worked all the next day.

Defendant testified that when he returned home from work the next day, Inna was not there. She returned later with her mother and demanded that Defendant return her keys. Defendant and Inna argued and Inna again threatened to leave. After some time, Defendant asked Inna to forgive him and she replied, "[n]ever." Defendant and Inna continued to argue, and at one point, Defendant testified he said: "If you don't want to stay with me, then give me half of the money and I will pack up my things and I will leave." Defendant testified Inna said they had no money to divide because she had taken their $5,000 savings and had rented and furnished a new apartment. Defendant testified that he "got really mad at her for this."

The argument escalated and Inna began making threats to "go with another man." Defendant replied "[i]f you ... do this, then I would probably choke you." Defendant testified that he "wanted to gather my clothes and go, maybe get in the car and go to sleep just like [the night before], but [he] thought `tomorrow is the church services,' so [he] didn't want to go anywhere." Defendant remained in the apartment and the argument continued. Inna began to threaten to inflict bruises on herself, go to the courthouse where she worked, and have Defendant put in jail as an abusive spouse. Defendant testified he eventually said, "Inna, do not annoy me because you don't even realize how angry you're making me." Inna responded, "[w]ell, I am going to create [sic] this for you."

Defendant testified that he grabbed Inna at her throat because he wanted "to close her mouth, to keep her quiet[.]" Defendant "did not know what [he] was doing at that moment[,]" but he testified that he put his hands on Inna's throat because he "simply wanted her to shut up, not to aggravate [him], not to make [him] mad." Defendant held onto Inna's throat until she began to slide off the bed. Defendant then noticed that Inna's face was bloody and she was not breathing. Defendant could not feel Inna's pulse. He got dressed and drove toward the courthouse looking for a police officer.

Defendant found an officer, made gestures indicating strangulation, and said "my wife." Defendant showed the officer his identification with his address on it and the officer began to understand what Defendant was trying to tell him. Defendant presented his hands to the officer and the officer placed him in handcuffs.

Defendant was charged with first-degree murder and was tried on 28 July 2008. A jury found Defendant guilty of second-degree murder. The jury further found that Defendant "knew at the time he committed the offense (2nd Degree Murder) that the victim was pregnant and that the foregoing was an aggravating factor."

Voluntary Manslaughter

Defendant first argues that the trial court erred by denying Defendant's request for a voluntary manslaughter jury instruction. We disagree.

"First-degree murder is the unlawful killing — with malice, premeditation and deliberation — of another human being." State v. Arrington, 336 N.C. 592, 594, 444 S.E.2d 418, 419 (1994) (citations omitted). "Voluntary manslaughter is the killing of another human being without malice and without premeditation and deliberation under [1] the influence of some passion or [2] heat of blood produced by adequate provocation." State v. Watson, 338 N.C. 168, 176, 449 S.E.2d 694, 699 (1994), cert. denied, 514 U.S. 1071, 115 S.Ct. 1708, 131 L.Ed.2d 569, overruled on other grounds by State v. Richardson, 341 N.C. 585, 461 S.E.2d 724 (1995).

Voluntary manslaughter is a lesser included offense of first-degree murder. State v. Woodard, 324 N.C. 227, 232, 376 S.E.2d 753, 756 (1989). "A jury must be instructed on a lesser included offense only when evidence has been introduced from which the jury could properly find that the defendant had committed the lesser included offense." Woodard, 324 N.C. at 232, 376 S.E.2d at 756 (citations omitted). "In order to receive an instruction on voluntary manslaughter, there must be evidence tending to show `[a] killing [was] committed in the heat of passion suddenly aroused by adequate provocation, or in the imperfect exercise of the right of self-defense[.]'" State v. Vincent, ___ N.C.App. ___, ___, 673 S.E.2d 874, 876 (2009) (quoting State v. Huggins, 338 N.C. 494, 497, 450 S.E.2d 479, 481 (1994)).

Defendant does not argue that he acted "in the imperfect exercise of the right of self defense," Id., but rather that Inna's "sexual taunting was tantamount to her being in bed with another man[,]" and that, as a result of this taunting, Defendant "snapped and grabbed his wife around the neck." Defendant requests us to consider these facts as sufficient to warrant a jury instruction on voluntary manslaughter. Specifically, Defendant argues the following factors support such an interpretation of the events:

[(1)] [Inna] and [Defendant] were married when the adultery took place.

[(2)] They were married when the threat to commit adultery again was made.

[(3)] The passion suddenly aroused in [Def...