State v. Elson

• Decision Date: 04 August 2009
• Docket Number: No. 28007.,28007.
• Citation: 975 A.2d 678,116 Conn.App. 196
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Zachary Jay ELSON.

975 A.2d 678

116 Conn.App. 196

STATE of Connecticut v. Zachary Jay ELSON.

No. 28007.

Appellate Court of Connecticut.

Argued December 10, 2008.

Decided August 4, 2009.

Hubert J. Santos, with whom were Hope C. Seeley and Benjamin B. Adams, Hartford, for the appellant (defendant).

Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Warren C. Murray, supervisory assistant state's attorney, for the appellee (state).

BISHOP, HARPER and DUPONT, Js.

HARPER, J.

The defendant, Zachary Jay Elson, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59(a)(1) and unlawful restraint in the first degree in violation of General Statutes § 53a-95(a).¹ The trial court also found the defendant guilty of committing an offense while on pretrial release in violation of General Statutes § 53a-40b(1), as alleged in a part B information.² The defendant claims that (1) with regard to his assault conviction, the court improperly permitted the jury to find that his hands were dangerous instruments, (2) the court improperly admitted certain evidence, (3) the court, in its jury charge, improperly commented on his interest in the outcome of the case, improperly commented on the state's interest in protecting innocent persons from being convicted of crimes and delivered an instruction on reasonable doubt that diluted the state's burden of proof, (4) the evidence did not support the jury's verdict with regard to the assault charge and (5) the court considered improper factors at the time of sentencing. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. On September 3, 2004, the female victim was a student enrolled at Western Connecticut State University. During the late afternoon, the victim was working on a project in an empty classroom at the university's Danbury campus. The defendant, who was not a student enrolled at the university, entered the classroom, pretending to search for a lost cellular telephone. The defendant spoke with the victim about the telephone; the victim told him that she had not seen it and suggested that he speak with campus police or the maintenance staff. The defendant lingered in the classroom, inquired about the victim's project and asked if he could stay and watch her work. Also, the defendant asked the victim if she was dating anyone. The victim replied that she preferred to work alone and that she was happily married. The defendant stated that he was embarrassed and left the classroom.

Several minutes after this encounter, the defendant returned to the classroom. The defendant stated that he had forgotten to look on the floor for his telephone. The victim remained seated while she worked but soon sensed the defendant approach her. The victim turned her attention to the defendant and observed him holding a knife near her neck. The victim grabbed the knife and tried to pull it away from the defendant. In the struggle that ensued, the victim fell to the floor and attempted to crawl away. The defendant pursued the victim. He positioned her so that she was lying on her back and then positioned himself on top of her. He straddled her such that each of his knees were on either side of her body and, as the victim continued to resist, punched the victim in her face with his fist. For a brief period of time, the defendant prevented the victim from fleeing. Ultimately, the victim freed herself from the defendant and obtained assistance from others on campus.

Several days into their investigation, police detectives located and questioned the defendant. The defendant initially told the detectives that he had never been to the campus and had a spotty recollection of his activities on September 3, 2004. After being informed that a female had sustained injuries that were not life threatening on that date at the university, the defendant stated: "I don't remember why I did it. I got angry." He characterized what had occurred as "all a big mistake."

In a written statement that the defendant voluntarily provided to the detectives, he admitted that he had driven to the campus on September 3, 2004, emptied garbage from his automobile and began walking to "see what was going on around campus." The defendant stated that earlier that day he had consumed vodka and that after walking about the campus he returned to his automobile, where it is possible that he passed out for several minutes. The defendant stated that he then entered a classroom building to use a restroom and that at that time he was "very, very drunk."

The defendant recalled entering a classroom in which he observed a young female who was working on a sketch. He intended to initiate a conversation with her and recalled speaking with her. The defendant stated that when he began to walk away from her, the tip of a knife that he carried in the pocket of his pants poked his leg. According to the defendant, he removed the knife from his pocket, and, at that moment, the female turned to him, observed the knife and began yelling. The defendant stated that "everything went from a thick haze to a fearful blur" and that he "must have reached out to try to stop her but accidentally hurt her." The defendant stated: "I remember an overpowering feeling of fear; things speeding by, and [I] punched her in her head — she had fallen, and in doing so, maybe knocked the knife out of my hand — I had to pick it up. I punched her again, and my hands were bloody, I never said a word. I think she whimpered when I had rushed to pick up the knife and ran." The defendant stated that he returned to his automobile and quickly drove away from the scene. Following the incident, the defendant traveled to a fast food restaurant where he washed the victim's blood off his hands. He also traveled to a highway rest stop where he changed his clothing and discarded the clothing and sneakers that he had worn during the attack in a nearby wooded area.

The victim sustained numerous physical injuries. Those injuries included lacerations on the fingers of her right hand; one of her fingers required surgery to repair a severed tendon. The victim also sustained lacerations on her chin, near her left eye and on her left arm. At the time of trial in 2006, the physical effects of those injuries were still evident in that the victim experienced a limited degree of flexibility in her surgically repaired finger and exhibited scars on her fingers, right hand, arm and face. Additional facts will be set forth as necessary.

I

First, the defendant claims that, with regard to his assault conviction, the court improperly permitted the jury to find that his hands were dangerous instruments. We disagree.

The defendant posits that on the evidence presented at trial, it was reasonable for the jury to have found that he inflicted injury to the victim by the use of a knife and the use of his unclad hands. The defendant argues that the court's charge was ambiguous with regard to what constitutes a dangerous instrument and, consequently, that it reasonably was possible that the jury found that his hands were dangerous instruments for purposes of § 53a-59(a)(1). The defendant also argues that as a matter of law, an unclad hand cannot constitute a dangerous instrument and that because it is impossible to determine whether the jury relied on such a legally inadequate theory of conviction, the assault conviction must be set aside. The defendant further argues that if it was legally permissible for the jury to have found that his hand was a dangerous instrument, the court improperly failed to require the jury to reach a unanimous verdict with regard to which instrument, a hand or a knife, he used to commit the crime.

The gist of the claim is that the court's instruction concerning the "dangerous instrument" element of § 53a-59(a)(1) was unclear in that it did not draw the jury's attention solely to evidence related to the defendant's use of a knife during the attack. "It is well settled ... that a party may preserve for appeal a claim that an instruction ... was ... defective either by: (1) submitting a written request to charge covering the matter; or (2) taking an exception to the charge as given.... [T]he purpose of the [preservation requirement] is to alert the court to any claims of error while there is still an opportunity for correction in order to avoid the economic waste and increased court congestion caused by unnecessary retrials.... Thus, the essence of the preservation requirement is that fair notice be given to the trial court of the party's view of the governing law and of any disagreement that the party may have had with the charge actually given." (Emphasis in original; internal quotation marks omitted.) State v. King, 289 Conn. 496, 505, 958 A.2d 731 (2008); see also Practice Book § 42-16.

The defendant suggests that he preserved his claim for appellate review by means of his written request to charge. Several factors lead us to conclude otherwise. First, the defendant did not submit a requested instruction concerning § 53a-59(a)(1) and did not request an instruction that the jury consider only evidence of his use of a knife in connection with this crime.

Second, the defendant did request an instruction for the lesser included offense of assault in the second degree in violation of General Statutes § 53a-60(a)(3). To sustain a conviction of that crime, the state bears the burden of proving beyond a reasonable doubt that a defendant recklessly has caused serious physical injury to a victim "by means of a deadly weapon or a dangerous instrument ...." General Statutes § 53a-60(a)(3). In his requested instruction concerning the dangerous instrument component of that criminal offense, the defendant requested that the court instruct the jury as...