District Court, West Jordan Department The Honorable Bruce C.
Lubeck No. 161401117
Nathalie S. Skibine and Marlene M. Mohn, Attorneys for
D. Reyes and William M Hains, Attorneys for Appellee
David N. Mortensen authored this Opinion, in which Judges
Gregory K. Orme and Kate A. Toomey concurred.
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.
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'
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
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.
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."
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
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 as well as testimony from Wife,
Officer, and a forensic nurse (Nurse).
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. Nurse further testified that 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.
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.
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.
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 ...