State v. Bivrell

• Decision Date: 18 August 2009
• Docket Number: No. 29860.,29860.
• Citation: 976 A.2d 60,116 Conn.App. 556
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Susan BIVRELL.

976 A.2d 60

116 Conn.App. 556

STATE of Connecticut v. Susan BIVRELL.

No. 29860.

Appellate Court of Connecticut.

Argued June 2, 2009.

Decided August 18, 2009.

Kirstin B. Coffin, special public defender, for the appellant (defendant).

Sarah Hanna, deputy assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Linda F. Currie-Zeffiro, deputy assistant state's attorney, for the appellee (state).

FLYNN, C.J., and ALVORD and HENNESSY, Js.

FLYNN, C.J.

The defendant, Susan Bivrell, appeals from the judgment of conviction, rendered after a jury trial, of assault of an elderly person in the third degree in violation of General Statutes § 53a-61a(a)(1) and breach of the peace in the second degree in violation of General Statutes § 53a-181(a)(2). On appeal, the defendant claims that (1) the evidence was insufficient to support her conviction on either of the charges, (2) the court improperly diluted the state's burden of proof by repeatedly telling the jury not to be swayed by sympathy and (3) the court improperly denied the state's request to charge on the lesser included offense of assault in the third degree in violation of General Statutes § 53a-61. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. As of July 22, 2007, the defendant had been living at the Fairfield home of the victim, Edward Graves, a disabled veteran, who was seventy-one years old at the time of trial, for approximately six months because she was homeless. From time to time, the victim would provide transportation to the defendant on Sundays so that she could attend her regularly scheduled visitation with her children. On July 22, 2007, the defendant wanted the victim to give her a ride, but the victim refused because he had other things to do. As the victim was sitting on his front porch steps, talking with his boarder, Glenn Smith, the defendant paced back and forth on the porch. The defendant was in an agitated state, and the victim was alarmed because he saw this as a "volatile situation." The defendant, while wearing a ring on her finger, then struck the victim several times, first on the left ear, causing it to bleed, and then several times on the forehead, also causing it to bleed. Smith told the victim that the ring "looked like a weapon." The victim also injured his shin when it scraped against the porch as he tried to get up from the step. The victim attempted to grab the defendant by her ankles, eventually causing her to fall, but he did not strike her. The victim, frightened, agitated and alarmed, then telephoned the police. When Officer John Tyler arrived on the scene, the victim still was bleeding. The victim continues to suffer from a ringing in his ear, confusion, disorientation and some hearing loss.

The defendant was arrested at the scene, and she was charged with assault of an elderly person in the third degree and breach of the peace in the second degree. After a jury trial, she was convicted on both counts. The court sentenced the defendant to a total effective term of eighteen months imprisonment, execution suspended after twelve months, with one year of probation. This appeal followed.

I

The defendant claims that there was insufficient evidence to sustain her conviction of assault of an elderly person in the third degree and of breach of the peace in the second degree. She argues that the only evidence of the victim's age was his testimony, that the victim submitted no medical bills and that the victim did not attempt to get away from the defendant during the alleged attack. We conclude that the evidence was sufficient to support the conviction on each count.

"The standard of review we apply to a claim of insufficient evidence is well established. 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....

"Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt ... nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal.... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact's] verdict of guilty." (Internal quotation marks omitted.) State v Davis, 283 Conn. 280, 329-30, 929 A.2d 278 (2007). Furthermore, "we must defer to the jury's assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.... This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict." (Internal quotation marks omitted.) State v. Morgan, 274 Conn. 790, 800, 877 A.2d 739 (2005).

A

For the defendant properly to be convicted of the crime of assault of an elderly person in the third degree, the jury had to find that he "commit[ed] assault in the third degree under section 53a-61 and ... the victim of such assault ha[d] attained at least sixty years of age.... General Statutes § 53a-61a. The cross-referenced statute, General Statutes § 53a-61, provides in relevant part that a person is guilty of assault in the third degree when [w]ith intent to cause physical injury to another person, he causes such injury to such person.... General Statutes § 53a-61(a). General Statutes § 53a-3(11) provides that [a] person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.... General Statutes § 53a-3(3) defines physical injury as impairment of physical condition or pain...." (Internal quotation marks omitted.) State v. Towns, 114 Conn.App. 155, 160, 968 A.2d 975 (2009).

The evidence in this case was overwhelming. The victim testified that he was born on March 25, 1936, making him seventy-one years old on the date of the attack. Although the defendant argues that this evidence, standing alone and uncorroborated, was insufficient, the jury is the finder of fact and is free to credit or discredit any part of a witness' testimony. State v. Michael H., 291 Conn. 754, 761 n. 7, 970 A.2d 113 (2009) ("the matter of ... witness credibility [is] exclusively within the purview of the jury"). In this case, on the basis of the jury's finding of guilt, clearly it credited the victim's testimony as to his date of birth. Arguments regarding the victim's credibility generally are not properly the subject of an appeal. See State v. Antonio W., 109 Conn.App. 43, 53, 950 A.2d 580, cert. denied, 289 Conn. 923, 958 A.2d 153 (2008).

In this case, the evidence also showed that the defendant repeatedly struck the victim because he would not provide her transportation. The victim bled from his ear, his forehead and his shin. As a result of his injuries, he suffered from a ringing in his ear, confusion, disorientation and some hearing loss, and he continued to suffer from those ailments at the time of trial. Certainly, the jury could have inferred from the victim's testimony that he was in pain as a result of the defendant's beating. Furthermore, the jury also reasonably could have inferred that the defendant intended to injure the victim by inflicting this beating. Members of the jury are permitted to rely on their life experience; common sense and experience in the matters of everyday life are not left at the courthouse door. See State v. Mish, 110 Conn.App. 245, 263, 954 A.2d 854, cert. denied, 289 Conn. 941, 959 A.2d 1008 (2008); State v. Ramirez, 94 Conn. App. 812, 822, 894 A.2d 1032, cert. denied, 278 Conn. 915, 899 A.2d 621 (2006). On the basis of the foregoing, we conclude that the evidence was sufficient to prove beyond a reasonable doubt that the defendant was guilty of assault of an elderly person in the third degree.

B

For the defendant properly to be convicted of the crime of breach of the peace in the second degree pursuant to § 53a-181(a)(2), the jury had to find, beyond a reasonable doubt, that the defendant assaulted or struck the victim and that she had the "intent to cause inconvenience, annoyance or alarm, or recklessly creat[ed] a risk thereof...." The defendant does not analyze the elements of this crime or explain which element or elements she believes lacked sufficient proof, nor does her appellate brief contain any analysis whatsoever on this claim of insufficiency. Nevertheless, our review of the record reveals more than sufficient evidence to support the conviction.

As stated previously, the evidence was overwhelming to support the defendant's assault conviction. We further conclude that the jury reasonably could have inferred that by assaulting the victim, the defendant further intended to "cause inconvenience,...