State v. Anderson

• Decision Date: 28 January 2003
• Docket Number: No. 21322.,21322.
• Citation: 813 A.2d 1039,74 Conn.App. 633
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Fred John ANDERSON.

813 A.2d 1039

74 Conn.App. 633

STATE of Connecticut v. Fred John ANDERSON.

No. 21322.

Appellate Court of Connecticut.

Argued October 29, 2002.

Decided January 28, 2003.

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DRANGINIS, FLYNN and WEST, Js.

Kent Drager, senior assistant public defender, with whom were Raymond Durelli, certified legal intern, and, on the brief, Mary Boehlert, certified legal intern, for the appellant (defendant).

Paul E. Murray, state's attorney, with whom, on the brief, was Kevin T. Kane, state's attorney, for the appellee (state).

WEST, J.

The defendant, Fred John Anderson, appeals from the judgment of conviction, rendered after a trial to the jury, of unlawful restraint in the first degree in violation of General Statutes § 53a-95, assault in the first degree with intent to disfigure another person seriously and permanently in violation of General Statutes § 53a-59 (a)(2), and interfering with an officer in violation of General Statutes § 53a-167a. The defendant claims that the court improperly (1) denied his motion for a judgment of acquittal because there was insufficient evidence to prove beyond a reasonable doubt that (a) he had the requisite intent to disfigure the victim seriously and permanently, and (b) the victim in fact was seriously and permanently disfigured, and (2) admitted into evidence (a) the victim's statement pursuant to the Whelan doctrine¹ and (b) the victim's hospital records. We affirm the judgment of the trial court.

The charges against the defendant arose out of a physical altercation between the defendant and the victim, who had a romantic relationship. The altercation occurred during the early morning hours of January 9, 1999. The defendant, an admitted alcoholic, had been drinking and became physically abusive toward the victim. Officer James Kiako of the Groton police department responded to a 911 telephone call from the defendant's apartment. When he arrived, Kiako could see through a window a disheveled woman with blood around her mouth and nose. Kiako and another officer gained entry into the apartment after the defendant unlocked the interior deadbolt lock. After talking to the victim and the defendant separately, the officers arrested the defendant. The victim was hospitalized for several days for treatment of her injuries. Additional facts will be provided when they are needed to address the defendant's specific claims.

I

The defendant first claims that the court improperly denied his motion for a judgment of acquittal with respect to the charge of assault in the first degree.² At trial, the defendant claimed that there was insufficient evidence from which the jury reasonably could find that the victim had suffered serious and permanent disfigurement. On appeal, the defendant also claims that there was insufficient evidence from which the jury reasonably could find that he intended to cause the victim serious and permanent disfigurement. We will review the defendant's claim as to intent, although it was not raised at trial, because claims of insufficient evidence are of a constitutional nature and the record is adequate for our review. See State v. Adams, 225 Conn. 270, 275-76 n. 3, 623 A.2d 42 (1993); State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989); State v. Jefferson, 67 Conn.App. 249, 254-55, 786 A.2d 1189 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002). The defendant, however, cannot prevail on either claim of insufficient evidence.

"In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt....

"We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt." (Citation omitted; internal quotation marks omitted.) State v. Meehan, 260 Conn. 372, 377-78, 796 A.2d 1191 (2002).

"Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable." (Internal quotation marks omitted.) State v. Ford, 230 Conn. 686, 692, 646 A.2d 147 (1994). "Moreover, [i]n reviewing the jury verdict, it is well to remember that [j]urors are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct." (Internal quotation marks omitted.) Id., 693, 646 A.2d 147.

A

The defendant's first claim of insufficient evidence is that the state failed to prove beyond a reasonable doubt that he intended to disfigure the victim seriously and permanently. Specifically, the defendant claims that the state failed to prove that he had the conscious objective, as defined by General Statutes § 53a-3 (11),³ to cause the victim's face to be scarred because her scars are a long-term, secondary result of his action.⁴ In other words, a scar results only after a wound has healed completely. We disagree.

"To be guilty of assault in the first degree, of which the defendant was convicted, the defendant must intend to disfigure another person seriously and permanently. General Statutes § 53a-59 (a)(2). To act intentionally, the defendant must have had the conscious objective to harm the victim. General Statutes § 53a-3 (11)." (Emphasis in original.) State v. Smith, 35 Conn. App. 51, 63, 644 A.2d 923 (1994); see also State v. Austin, 244 Conn. 226, 235, 710 A.2d 732 (1998) ("`defendant must have had the conscious objective'").

"Intent may be, and usually is, inferred from the defendant's verbal or physical conduct.... Intent may also be inferred from the surrounding circumstances. ... The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused's state of mind is rarely available.... Intent may be gleaned from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading up to and immediately following the incident. ... Furthermore, it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct." (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Smith, supra, 35 Conn.App. 63-64, 644 A.2d 923.

The victim's testimony conflicted with other evidence presented about the events that occurred during the early morning hours of January 9, 1999, including some of the defendant's testimony. Credibility, however, is a matter solely within the province of the trier of fact. See State v. Jimenez, 73 Conn.App. 664, 668, 808 A.2d 1190 (2002). The victim's statement, given several days after the incident, contained her initial account of what occurred during the night of January 8 and the early morning of January 9, 1999. The victim's redacted statement was admitted into evidence; see part II A; and presented to the jury. The following portions of the victim's statement are relevant to the issue of the defendant's intent:

"The drinking problem was getting very bad, and [the defendant] got drunk almost every time we were together. I had told [the defendant] that I was tired of his drinking and I wanted him to stop. I told him if he didn't stop, I was going to leave him.

"On the evening of January 8, 1999, [the defendant] and I were together.... I drove him back to his apartment at [approximately] 2:30 a.m. I went inside the apartment to get my belongings. I told him inside the car, prior to entering the apartment, I was tired of his drinking and I had enough. I told him I didn't care any more, and I wanted to get my things from the apartment and I wanted to go home. Once we got inside the apartment, I gathered my things and I went to leave. [The defendant] locked the only exit from the inside, and he put the key in his mouth. I told him I wanted to leave, but he would not open the door. I continued to tell [the defendant] I had enough and I wanted out of the relationship. I think now he had a difficult time with my rejection.

"[The defendant] was standing in the kitchen against the washing machine. I walked over near him to go toward the door. When I was about two feet away, he

grabbed me and butted me in the head and face with his forehead. He said nothing when he did this. I immediately felt extreme pain, started bleeding and could feel that my nose was pushed to the side of my face. I started crying and yelling at him to look [at] what he had done. I knew my nose was broken, and I just wanted to get out of the apartment to get help. [The defendant] started taunting me, telling me I was fine and there was nothing wrong with me. He was saying Connecticut people are so weak. He told me to stay at the apartment and in the morning he would let me go. He said in the morning everything would be fine, and I should stop crying and making such a fuss over nothing.

"I continued asking [the defendant] to let me go. He refused. He became more angry and grabbed me again. He threw me to the floor and started banging my head against the floor. ...