State v. Ervin B., 122220 CTCA, AC 41482

Docket Nº:AC 41482
Opinion Judge:PRESCOTT, J.
Party Name:STATE OF CONNECTICUT v. ERVIN B.[*]
Attorney:Emily H. Wagner, assistant public defender, for the appellant (defendant). Brett R. Aiello, deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Joseph J. Harry, senior assistant state's attorney, for the appellee (state).
Judge Panel:Alvord, Prescott and DiPentima, Js.
Case Date:December 22, 2020
Court:Appellate Court of Connecticut

STATE OF CONNECTICUT

v.

ERVIN B.[*]

No. AC 41482

Court of Appeals of Connecticut

December 22, 2020

Argued September 16, 2020

Procedural History

Information charging the defendant with the crimes of assault in the first degree and threatening in the second degree, brought to the Superior Court in the judicial district of Fairfield, geographical area number two, and tried to the jury before Kavanewsky, J.; thereafter, the court denied the defendant's motion for a judgment of acquittal; verdict and judgment of guilty of threatening in the second degree, from which the defendant appealed to this court. Reversed; judgment directed.

Emily H. Wagner, assistant public defender, for the appellant (defendant).

Brett R. Aiello, deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Joseph J. Harry, senior assistant state's attorney, for the appellee (state).

Alvord, Prescott and DiPentima, Js.

OPINION

PRESCOTT, J.

The defendant, Ervin B., appeals from the judgment of conviction, rendered following a jury trial, of threatening in the second degree in violation of General Statutes § 53a-62 (a) (1). The defendant claims on appeal that the evidence was insufficient to prove beyond a reasonable doubt that he was guilty of threatening in the second degree. We agree with the defendant's insufficiency of the evidence claim and therefore remand the case to the trial court with direction to render a judgment of acquittal.1

The following procedural history and evidence presented at trial is relevant to the defendant's insufficiency claim. The defendant is married to the complaining witness, Wanda. On February 13, 2016, at approximately 3:40 a.m., Officer Christopher Smith was dispatched to the defendant's and Wanda's apartment building in Bridgeport to respond to a report of a domestic disturbance. Smith met the defendant at the front door of the building, and he then accompanied Smith to apartment number eight. Smith found Wanda standing on the second floor landing outside of the apartment and bleeding from a stab wound to her right thigh. Wanda was upset and crying, and she appeared to be in pain. Smith quickly called for medical assistance and for the assistance of a Spanish speaking officer because Wanda speaks only Spanish.

Officer Ariel Martinez arrived at the apartment shortly thereafter and began to speak to Wanda in Spanish. Martinez asked Wanda what had happened. Wanda stated that she had come home from a night out and the defendant stabbed her.[2] She also stated that the defendant ‘‘was gonna continue to hurt her more.'' The defendant, who was standing nearby, did not respond to Wanda's accusation that he had stabbed her. At the end of this conversation, the defendant was arrested and transported to the Bridgeport police station. He subsequently was charged with assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and threatening in the second degree in violation of § 53a-62 (a) (1).

Wanda was transported to a hospital for medical care. She received treatment for a serious laceration to her leg from a sharp object, and six staples were required to close the wound.3

Wanda did not testify at trial, and a portion of her hearsay statement to Martinez was admitted over the defendant's objection as an excited utterance. Following the conclusion of the state's case, the defendant made a motion for a judgment of acquittal on the ground that the evidence presented by the state was insufficient to prove beyond a reasonable doubt that the defendant had committed assault in the first degree or threatening in the second degree. The court denied the motion in its entirety.[4]

The jury subsequently found the defendant not guilty of assault in the first degree and guilty of threatening in the second degree. The court sentenced the defendant on the conviction of threatening in the second degree to one year of incarceration, suspended after four months, and two years of probation. This appeal followed.

The defendant claims on appeal that his conviction of threatening in the second degree must be reversed because the state failed to present sufficient evidence to prove beyond a reasonable doubt each element of the crime. Specifically, the defendant argues that the hearsay statement of Wanda relied on by the state to establish the existence of a threat only conveyed Wanda's subjective belief that the defendant would harm her in the future, and not that any actual threat of harm was made by the defendant or that he intended to place Wanda in fear of imminent physical injury.5 The state argues that the jury reasonably could have inferred that a threat was made, and advances three evidentiary bases in the record supporting such an inference: (1) the defendant stabbed Wanda; (2) Wanda stated that the defendant was going to ‘‘continue to hurt her more''; and (3) the defendant, who was present when Wanda made that statement and identified him as her assailant, offered no denial or explanation. We agree with the defendant that there was insufficient evidence of a threat.

‘‘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. . . .

‘‘Because [t]he only kind of an inference recognized by the law is a reasonable one [however] . . . any such inference cannot be based on possibilities, surmise or conjecture. . . . It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence. . . . [T]he line between permissible inference and impermissible speculation is not always easy to discern. When we infer, we derive a conclusion from proven facts because such considerations as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is reasonable. But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter of judgment. . . .

‘‘Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .

‘‘[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. . . .

‘‘Finally, [w]e . . . emphasize the weighty burden imposed on the state by the standard of proof beyond a...

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