I have been getting several questions lately about the crime of assault by strangulation, a Class H felony under G.S. 14-32.4(b). This crime can be tricky because two of its four elements are not statutorily defined. This post explains those elements in more detail.
What are the elements? North Carolina Crimes (on page 119) breaks down the statutory requirements of assault by strangulation into the following elements:
- an assault
- on another
- inflicting physical injury
- by strangulation
The first two elements are straightforward. The requirement that the act be committed against another does not need to be explained. As for the assault element, North Carolina has many decisions on the meaning of assault generally. The more critical elements of the crime are strangulation and physical injury, neither of which is defined in the statute.
What is strangulation? Although the word “strangulation” has not been statutorily defined, we can presume its definition to be what we typically think of when we hear the word. Ordinarily, strangulation involves placing hands around someone’s neck, although an object such as clothing, a cord, or something else could be used instead. Placing hands on someone’s neck alone is an assault but more is necessary for strangulation to occur.
North Carolina Criminal Pattern Jury Instruction (N.C.P.I.) 208.61 (Feb. 2005) recognizes that strangulation involves “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.” This language aligns with the dictionary definition. Merriam-Webster defines strangulation as “excessive or pathological constriction or compression of a bodily tube that interrupts its ability to act as a passage.”
Our courts have recognized that the key is constriction or compression, with some interruption of breathing, swallowing, or blood flow. A complete interruption is not required. For example, in State v. Braxton, 183 N.C. App. 36 (2007), the defendant grabbed the victim by the throat five separate times during a physical altercation. The victim testified that she had difficulty breathing, and she suffered bruises on her neck, chest, and arms as a result of the incident. Id. at 37–38. The court rejected the defendant’s argument that “strangulation” should be interpreted to require proof of a complete closure of one’s airway causing an inability to breathe, and found there was sufficient evidence that the defendant applied sufficient pressure to the victim’s throat such that she had difficulty breathing. Id. at 42–43. The 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.
Other cases are consistent with this interpretation. The court in State v. Lanford, 225 N.C. App. 189 (2013), rejected the defendant’s argument that strangulation requires a closing of the windpipe through the direct application of force to the throat. In this case, the evidence showed that the defendant constricted the victim’s airways by grabbing him under the chin, pulling his head back, covering his nose and mouth, and hyperextending his neck. Id. at 197. The court held that although there was no evidence that the defendant restricted the victim’s breathing by direct application of force to the trachea, he managed to accomplish the same effect by hyperextending the victim’s neck and throat, and that the method by which the airway restriction occurred was ultimately immaterial. Id.
In another decision, State v. Williams, 201 N.C. App. 161 (2009), the court rejected the defendant’s argument that strangulation required there to be evidence that the victim had difficulty breathing where the victim stated that she felt that defendant was trying to crush her throat; that he pushed down with his weight on her neck with his foot; that she thought he was trying to “choke her out” or make her go unconscious; and that she thought she was going to die.
What Is physical injury? Assault by strangulation requires, in addition to “strangulation,” some “physical injury.” This element sets a lower threshold than the injury requirements in other statutes.
For example, the felony of assault inflicting serious bodily injury under G.S. 14-32.4(a) requires “serious bodily injury,” which includes bodily injury that creates a substantial risk of death, that causes serious permanent disfigurement, or that results in prolonged hospitalization. The misdemeanor of assault inflicting serious injury under G.S. 14-33(c)(1) does not have a statutory definition, but decisions have held that serious injury can be shown by, for example, hospitalization, pain, blood loss, and time lost at work. See State v. McCoy, 174 N.C. App. 105, 113–14 (2005); State v. Hedgepeth, 330 N.C. 38, 53 (1991).
Cases interpreting the physical injury requirement for assault by strangulation have required less than serious injury and certainly less than serious bodily injury. For example, in State v. Little, 188 N.C. App. 152 (2008), the defendant choked the victim until she passed out, resulting in cuts and bruises on her neck. The court held that cuts and bruises were sufficient evidence of physical injury to satisfy the element. Id. Likewise, in State v. Lowery, 228 N.C. App. 229 (2013), the court held that the evidence was sufficient to establish assault by strangulation where the defendant strangled the victim twice; a medical expert testified that the victim’s injuries were consistent with strangulation; and photographic evidence showed bruising, abrasions, and a bite mark on and around the victim’s neck. The court rejected the defendant’s arguments that the statute required either “physical injury beyond what is inherently cause by every act of strangulation” or extensive injury.
This view of physical injury is consistent with the definition of physical injury for assault inflicting physical injury on an officer under G.S. 14-34.7(c). That statute defines physical injury as “cuts, scrapes, bruises, or other physical injury which does not constitute serious injury.”
So, merely placing hands around one’s neck is not enough. But, if there is evidence of some interruption of the airway or blood flow and some physical injury, which often could occur in that circumstance, then that would be enough to satisfy each element of assault by strangulation.
Is it possible for more serious crimes to apply? Assault by strangulation is a Class H felony, but more serious offenses might arise if the assault involves extensive or severe injuries. G.S. 14-32.4(b) recognizes the possibility of more serious charges, stating that the conduct is a Class H felony unless it is covered under some other provision of law providing greater punishment. This provision indicates that more extensive or severe injuries, whether caused by strangulation or another type of assault, might be charged as assault inflicting serious bodily injury, a Class F felony under G.S. 14-32.4(a), assault inflicting serious injury with a deadly weapon, a Class E felony under G.S. 14.32(b), or attempted first-degree murder, a Class B2 felony under G.S. 14-17 and G.S. 14-2.5. The language also means that if the greater offenses are charged, the defendant may not also be punished for assault by strangulation for the same conduct. See State v. Williams, 201 N.C. App. 161, 173 (2009) (“the language ‘unless the conduct is covered under some other provision of law providing greater punishment’ indicated legislative intent to punish certain offenses at a certain level, but that if the same conduct was punishable under a different statute carrying a higher penalty, defendant could only be sentenced for that higher offense”); State v. Braxton, 183 N.C. App. 36, 43 (2007) (evidence showing that a defendant strangled his or her victim to the point of death or close to is provided for by other criminal offenses in our State’s statutes).
I welcome your thoughts and invite your comments. If you have questions about this offense, please feel free to send me an email at bwilliams@sog.unc.edu.