Criminal Defense Lawyer in Virginia Beach

Felony Strangulation

The Commonwealth Attorney has to prove beyond a reasonable doubt that the strangulation act resulted in either wounding or bodily injury to the other person.

Notice here that the word resulting is modifying the previous element that we discussed regarding pressure being applied to the neck. Why is that relevant? It is relevant because the wound or bodily injury MUST be the RESULT of the direct pressure that was applied to the neck. In other words, if the alleged victim ONLY sustained wounding or injuries from an assault that occurred prior to or after the alleged strangulation then that would not be sufficient. For example, let’s say person A and person B are spouses and person A is accused of punching person B in the face three times in rapid succession and then person A is also accused of strangling person B right after they punched them. The prosecutor charges person A with one count of Felony Strangulation and one count of Domestic Assault and Battery. In the trial the prosecutor presents evidence of photos of person B’s injuries, they received two massive black eyes with the eyes swollen shut and a broken nose all sustained from the three punches. The photos or B’s neck do not show any marks to it. The alleged victim says they could not breath as they were being strangled but they never testify to any neck pain or neck injury. The defense lawyer asks the alleged victim if the injuries to their eyes and nose were all sustained from being punched in the face, and they say yes. The defense lawyer then asks the alleged victim if they received any additional injuries to their neck as a result of the alleged strangulation and they say no. In that scenario the accused should be found guilty only for the misdemeanor domestic assault and battery, but should be found not guilty on the Felony strangulation because the wounds and bodily injury were exclusively the result of the assault battery alone and were not at all connected to the strangulation.

Another way to beat this element is to simply establish that there was no wounding or bodily injury period. For example, let’s say that person A is accused of strangling person B. More specifically, person B says that person A put their hands around their throat and applied pressure to their neck and as a result of that pressure person B could not breathe and person B even blacked out as they were being choked. During the trial the prosecutor never introduces any photos of injuries and there are no mentions of photos of injuries. Moreover, the defense attorney asks person B if they had any physical injuries and they say no. The defense attorney asks if they have any medical records, they say no. The defense attorney asks if they had trouble swallowing foods or drinks after the fact, they say no. The defense lawyer asks if they were prescribed any medication as a result of this incident, they say no. The defense attorney ask if they experienced any pain during the incident, they say no, but they did black out during it, they saw pure black and they also saw stars temporarily, but they do not remember feeling any pain. In this case the defense attorney should motion to strike and argue that the Commonwealth failed to prove beyond a reasonable doubt that any wounding or bodily injury occurred as a result of the alleged act of strangulation. Here, the defense attorney should prevail because Virginia case law is clear that merely blacking out alone is not enough to prove bodily injury in a Felony strangulation case. Conversely, if the alleged victim clearly testifies to feeling actual pain and or receiving actual physical injuries as a result of the strangulation then any of that testimony would be sufficient to establish either wounding or bodily injury.