State v. Dickson

• Decision Date: 14 April 1987
• Docket Number: No. 5077,5077
• Citation: 10 Conn.App. 462,523 A.2d 935
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Marion Lee DICKSON.

Page 935

523 A.2d 935

10 Conn.App. 462

STATE of Connecticut v. Marion Lee DICKSON.

No. 5077.

Appellate Court of Connecticut.

Argued Dec. 9, 1986.

Decided April 14, 1987.

Raymond Kelly, Sp. Public Defender, for appellant (defendant).

Robert B. Clark, Certified Legal Intern, with whom, on the brief, were Michael E. O'Hare, Bruce Hudock, Asst. State's Attys., and James G. Clark, Deputy Asst. State's Atty., for appellee (State).

Before HULL, DALY and BIELUCH, JJ.

BIELUCH, Judge.

The defendant appeals from a judgment rendered in accordance with a jury verdict of guilty of assault in the first degree, a violation of General Statutes § 53a-59(a)(1). His sole claim of error challenges the sufficiency of the evidence produced at trial to support his conviction. He alleges that there was no evidence that the victim of the assault sustained "serious physical injury," as defined in General Statutes § 53a-3(4). We find no error.

The jury could reasonably have found the following facts. On December 16, 1983, the defendant became involved in a verbal altercation with his wife, Betty Dickson, in the kitchen of their home. Betty Dickson's sister, Louise Dunmore, was lying on the couch in the living room at that time. Betty Dickson entered the living room and sat down across from her sister. Shortly thereafter, the defendant entered the room with a pistol and fired at his wife and at her sister. Dunmore was struck twice in her thigh and immediately lost consciousness. When she awoke, she was in severe pain and unable to walk.

The defendant was arrested and charged with assault in the second degree, a violation of General Statutes § 53a-60(a)(2); attempted assault in the first degree, a violation of General Statutes §§ 53a-49(a)(2) and 53a-59(a)(1); and assault in the first degree, a violation of General Statutes § 53a-59(a)(1). The first two counts related to assaults against the defendant's wife and the third count involved his sister-in-law. The defendant was convicted on all three counts. Only the conviction on the third count of assault in the first degree is before this court.

The charge of assault in the first degree arose from the injuries inflicted upon Louise Dunmore. The defendant claims that there was no evidence that Dunmore sustained "serious physical injury." See General Statutes §§ 53a-59(a)(1) and 53a-3(4). He alleges, therefore, that the jury's verdict and judgment of conviction on that count were erroneous. Although the defendant concedes that this claim was not presented to the trial court, he seeks review of this claim under State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973).

Both the federal and state constitutions guarantee that a criminal defendant may only be convicted upon proof of each element of the offense beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970); State v. Little, 194 Conn. 665, 671, 485 A.2d 913 (1984); State v. Smith, 194 Conn. 213, 217, 479 A.2d 814 (1984). The record adequately supports the defendant's allegation that his claim is of constitutional proportions. See State v. Huff, 10 Conn.App. 330, 334, 523 A.2d 906 (1987); State v. Thurman, 10 Conn.App. 302, 306, 523 A.2d 891 (1987). We shall, therefore, review this claim.

Our standard of review of a claim of insufficient evidence is well established. Reviewing the evidence in the light most favorable to sustaining the jury's verdict, we must determine whether any rational trier of fact could have found as they did. See State v. Mandrell, 199 Conn. 146, 153-54, 506 A.2d 100 (1986); State v. McCulley, 5 Conn.App. 612, 615, 501 A.2d 392 (1985).

The defendant claims that there was insufficient evidence to support the jury's finding that the defendant caused "serious physical injury" to Louise Dunmore. See General Statutes § 53a-59(a)(1). "Serious physical injury" is defined as "physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ...." General Statutes § 53a-3(4).

Medical evidence confirmed that Louise Dunmore was shot twice in her left thigh. After she was hit, she lost consciousness. When she awoke, she was unable to walk and required hospitalization and surgery to remove a shell fragment located at the base of her breast bone, one and one-half inches from her heart and one inch from her liver. After the operation, she walked with a limp for approximately six weeks. She still experiences pain from her wounds.

The surgeon initially considered leaving the bullet lodged in the abdominal area at the lower end of the sternum because the surgical risks exceeded the benefits of removing the shell fragment. The proximity of the bullet to the heart and other vital organs added to the risk of surgery. Because of the great pain and discomfort caused by the shell fragment, however, surgical removal took place...