State v. East, AC 34715

• Decision Date: 20 January 2015
• Docket Number: AC 34715
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. JAMES E.

STATE OF CONNECTICUT v. JAMES E.^*

AC 34715

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued September 11, 2014

January 20, 2015

DiPentima, C. J., and Keller and Sullivan, Js.

(Appeal from Superior Court, judicial district of New Haven, B. Fischer, J.)

Timothy H. Everett, assigned counsel, with whom, on the brief, were Lucas Nevola, Pamela List, John Shriver, Matthew Kalthoff and Nicholas Presto, certified legal interns, for the appellant (defendant).

Sarah Hanna, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and John Waddock, supervisory assistant state's attorney, for the appellee (state).

Opinion

DiPENTIMA, C. J. The defendant, James E., appeals from the judgment of conviction, rendered after a jury trial, of two counts of assault of an elderly person in the first degree in violation of General Statutes § 53a-59a, reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a), and risk of injury to a child in violation of General Statutes § 53-21 (a) (1). On appeal, the defendant claims that (1) there was insufficient evidence to support his conviction, (2) his right to due process was violated as a result of prosecutorial impropriety, (3) the court improperly denied his supplemental request to charge the jury, and (4) his conviction and sentencing for two counts of assault of an elderly person in the first degree violated the constitutional prohibition against double jeopardy. We are not persuaded by any of the defendant's claims, and, accordingly, affirm the judgment of the trial court.

Faced with conflicting testimony from several witnesses regarding the events in this case, the jury reasonably could have found the following facts.¹ The defendant rented an apartment in New Haven from the victim, Douglas E.,² to whom he is related. The victim had visited the defendant's apartment on three separate occasions to repair the kitchen floor. On March 23, 2010, the victim met David Haywood, Juan Louis LeBron and Nathan Green³ at the apartment to work on the floor. The defendant had not permitted Haywood, LeBron and Green entry into the apartment to start working; only after the victim had arrived were the men granted access to the apartment.

The defendant and his young child remained in the apartment while the men worked. At some point later that morning, the victim, sitting at the kitchen table, used a ratchet wrench to change a saw blade. The defendant informed the victim that all of the workers needed to leave so that he could prepare lunch for his child. The victim responded: "That is totally unacceptable." An argument between the victim and the defendant ensued. At one point, after the victim felt that the defendant had made a hostile gesture toward him, he told the defendant not to approach because he would hit the defendant with the ratchet wrench.⁴ The defendant asked if the victim was threatening him, to which the victim replied: "No."

The defendant walked by the victim, who believed that the argument had concluded. LeBron, who was present in the kitchen during the argument, also believed that the incident had ended.⁵ The defendant walked to a cabinet, retrieved a handgun,⁶ "racked" the gun,⁷ turned and immediately shot the victim, who had lunged toward the defendant. The victim grabbed the defendant's shirt, and again was shot. The victim rolled back and forth on the ground, and when he had stopped,the defendant pointed the gun at his head. The defendant told the victim that he had one more bullet in the gun and that he was going to kill the victim. The defendant's child was in the doorway of the adjacent room and shouting: "Daddy, don't shoot that gun." The defendant then picked up his child and left the room.

The victim was transported to the hospital and received medical treatment and surgery for the trauma resulting from the gunshot wounds, including damage to his transverse colon and liver. He remained in the hospital until June, 2010. At the time he sustained these injuries, the victim was more than sixty years old.

Following a jury trial, the defendant was convicted on all counts. The court ordered a total effective sentence of twenty years incarceration, execution suspended after ten years, and three years of probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the evidence was insufficient to support his conviction.⁸ Specifically, he argues that there was insufficient evidence to support each of the four counts set forth in the state's information. He also contends that the state failed to disprove the justification defense of self-defense beyond a reasonable doubt. We are not persuaded by these arguments.

At the outset, we note that the defendant preserved this claim by moving for a judgment of acquittal at the close of the state's case and his case.⁹ See State v. Calabrese, 279 Conn. 393, 401, 902 A.2d 1044 (2006). Next, we set forth the relevant legal principles regarding claims of insufficient evidence. "[T]he [d]ue [p]rocess [c]lause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. . . . The standard of review for a sufficiency of the evidence claim employs 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 [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support [its] verdict. . . .

"It is axiomatic 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, thejury 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. . . . 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 [jury's] verdict of guilty." (Citations omitted; internal quotation marks omitted.) State v. Reid, 123 Conn. App. 383, 391-92, 1 A.3d 1204, cert. denied, 298 Conn. 929, 5 A.3d 490 (2010); see also State v. Stephen J. R., 309 Conn. 586, 593-94, 72 A.3d 379 (2013); State v. Butler, 296 Conn. 62, 76-77, 993 A.2d 970 (2010).

We also are mindful that "[q]uestions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . Our review of factual determinations is limited to whether those findings are clearly erroneous. . . . We must defer to the [finder] of fact's assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude." (Internal quotation marks omitted.) State v. Pettigrew, 124 Conn. App. 9, 31, 3 A.3d 148, cert. denied, 299 Conn. 916, 10 A.3d 1052 (2010). Finally, we note that in "reaching its conclusions, a jury may draw reasonable and logical inferences from the facts proven, but it may not resort to speculation and conjecture." State v. Jupin, 26 Conn. App. 331, 337, 602 A.2d 12, cert. denied, 221 Conn. 914, 603 A.2d 404 (1992); see also State v. Smith, 185 Conn. 63, 71, 441 A.2d 84 (1981). Guided by these principles, we turn to the specifics of the defendant's sufficiency claims.

A

The defendant first argues that there was insufficient evidence to support his conviction for two counts of assault of an elderly person in the first degree in violation of § 53a-59a. Specifically, he contends that there was insufficient evidence that (1) he acted with the intent to cause a physical injury to the victim as charged in count one, or (2) he acted under circumstances evincing extreme indifference to human life, engaged in reckless conduct, or proximately caused the serious physical injuries suffered by the victim. We disagree.

For the defendant properly to be convicted of violating § 53a-59a, the jury had to have found that he had committed assault in the first degree under General Statutes § 53a-59 (a) (5) and (3), and the victim had attained at least sixty years of age. See General Statutes § 53a-59a (a); State v. Denby, 35 Conn. App. 609, 615-16, 646 A.2d 909 (1994) (§ 53a-59a provides for enhanced penalty if defendant commits assault in first degree and victim is sixty years of age or older), aff'd, 235 Conn.477, 668 A.2d 682 (1995). Subdivisions (5) and (3) of the cross-referenced statute, § 53a-59 (a), provide in relevant parts: "A person is guilty of assault in the first degree when . . . (5) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of the discharge of a firearm" or "(3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . . . " See, e.g., State v. Bivrell, 116 Conn. App. 556, 560, 976 A.2d 60 (2009), cert. denied, 295 Conn. 913, 990 A.2d 345 (2010).

Count one of the information charged the defendant with violating subdivision (5) of the assault in the first degree statute with respect to the elderly victim. The defendant claims that there...