State v. Ovechka

• Decision Date: 14 July 2009
• Docket Number: No. 17895.,17895.
• Citation: 292 Conn. 533,975 A.2d 1
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Paul OVECHKA.

975 A.2d 1

292 Conn. 533

STATE of Connecticut v. Paul OVECHKA.

No. 17895.

Supreme Court of Connecticut.

Argued October 23, 2008.

Decided July 14, 2009.

Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Nicholas J. Bove, Jr., senior assistant state's attorney, for the appellant (state).

Ruth Daniella Weissman, special public defender, for the appellee (defendant).

NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA, SCHALLER and McLACHLAN, Js.^*

NORCOTT, J.

[292 Conn. 635]

The dispositive issue in this certified appeal is whether there was sufficient evidence for a jury to find that a person assaulted with pepper spray had suffered "`[s]erious physical injur[ies],'" as defined by General Statutes § 53a-3(4),<sup>1</sup> that would permit the inference that the spray was a "`[d]angerous instrument,'" as defined by General Statutes § 53a-3(7).² The state appeals, upon our grant of its petition for certification,³ from the judgment of the Appellate Court reversing the trial court's judgment convicting the defendant, Paul Ovechka, of assault in the second degree in violation of General Statutes § 53a-60(a)(2).⁴ State v. Ovechka, 99 Conn.App. 679, 680-81, 915 A.2d 926 (2007). We conclude that the Appellate Court's determination that the evidence was insufficient to sustain a conviction of assault in the second degree in violation of § 53a-60(a)(2) improperly invaded the fact-finding province of the jury. Accordingly, we reverse the judgment of the Appellate Court and remand this case to that court for consideration of the defendant's remaining claims on appeal.

The Appellate Court's opinion sets forth the following facts and procedural history. "The defendant and Michael Rynich, a Bridgeport police officer, were next door neighbors.⁵ Three separate incidents occurred between the neighbors resulting in charges being brought against the defendant. These incidents occurred on December 26, 2002, and June 10 and July 2, 2003. The July 2, 2003 incident, in which the defendant sprayed Rynich in the eyes with either pepper spray or weed killer after Rynich had entered the defendant's yard, is the incident we are concerned with in this appeal." Id., at 681, 915 A.2d 926.

With respect to the July 2, 2003 incident, "[t]he defendant conceded that he was on his lawn spraying weed killer on weeds, within the fence line of his property, when he saw Rynich leave his house and get into his vehicle. The jury also heard testimony from Rynich. Rynich testified that when he stopped his vehicle at the stop sign near the defendant's property, he saw the defendant's wife. Because Rynich wanted to talk with the defendant's wife about the issues that had occurred between the defendant and himself, Rynich drove his car to the side of the road in front of the defendant's house and got out of his vehicle. Rynich walked onto the defendant's property. The defendant and Rynich exchanged insults. Rynich yelled to the defendant's wife about the defendant being crazy. The defendant sprayed Rynich in the eyes and face. The defendant retreated onto his porch and eventually into his house. Rynich continued to follow the defendant up to the defendant's front door, even after being sprayed in the face and eyes. The defendant sprayed Rynich for the last time when the defendant was inside his house. The defendant claims he sprayed pepper spray, which he had in his pocket. The state claims the defendant may have sprayed weed killer, which he had in his hands. The defendant testified that he intended to spray Rynich and that he did in fact spray Rynich. Rynich testified to severe pain and burning in the chest, neck, face and eyes along with temporary blindness."⁶ Id., at 683-84, 915 A.2d 926.

"On July 23, 2003, the defendant was charged in an information⁷ with assault in the third degree in violation of General Statutes § 53a-61(a)(1) and breach of the peace in the second degree in violation of General Statutes § 53a-181(a)(1), both in connection with an incident on December 26, 2002; public indecency in violation of General Statutes § 53a-186(a)(2) in connection with an incident on June 10, 2003; and assault in the second degree in violation of § 53a-60(a)(2) in connection with an incident on July 2, 2003. On September 10, 2003, following a jury trial, the defendant was found not guilty of assault in the third degree, breach of the peace in the second degree and public indecency, and guilty of assault in the second degree. On February 18, 2004, the court denied the defendant's written motion for both a judgment of acquittal and a new trial and sentenced the defendant to a term of five years imprisonment, execution suspended after twenty-eight months, with five years of probation. On December 10, 2004, the defendant appealed from the judgment of conviction."⁸ Id., at 681-82, 915 A.2d 926.

The defendant raised numerous claims on appeal to the Appellate Court,⁹ including that the evidence was insufficient to support his conviction of assault in the second degree in violation of § 53a-60(a)(2) "because the state did not prove that he used a dangerous instrument" since it had "failed to prove that the substance,¹⁰ under the circumstances it was used, was capable of causing death or serious physical injury...." Id., at 682, 915 A.2d 926. The Appellate Court agreed with the defendant in a divided opinion, and rejected the state's argument that "the severity of the injuries Rynich suffered permitted the jury to infer that Rynich's injuries were attributable to weed killer and that weed killer was a dangerous instrument." (Internal quotation marks omitted.) Id., at 684, 915 A.2d 926. The Appellate Court majority further concluded that Rynich's burns on his face, neck and chest, and temporary blindness and eye irritation, did not constitute "`[s]erious physical injur[ies]'" under § 53a-3(4), to justify the inference that the substance used was a "`[d]angerous instrument'" as defined by § 53a-3(7). Id., at 684-85, 915 A.2d 926. Accordingly, the Appellate Court rendered judgment reversing the defendant's conviction of assault in the second degree in violation of § 53a-60(a)(2) and did not reach the remainder of the defendant's claims on appeal because it had directed the trial court to render a judgment of not guilty on that count. Id., at 681 and n. 2, 915 A.2d 926. This certified appeal followed. See footnote 3 of this opinion.

On appeal, the state claims that the Appellate Court improperly concluded that the evidence was insufficient to prove that the pepper spray; see footnote 10 of this opinion; that the defendant had sprayed on Rynich's eyes, face, clothing and body was a "`[d]angerous instrument'" within the meaning of §§ 53a-60(a)(2) and 53a-3(7). Specifically, the state, relying on the opinion of the dissenting Appellate Court judge, argues that the injuries that Rynich had incurred were serious physical injuries, which meant that the substance used clearly was "capable of causing serious physical injury,"¹¹ and that the Appellate Court's decision to the contrary resulted from its failure to view the evidence in the light most favorable to sustaining the jury's verdict. In particular, the state notes that Rynich had been blinded by the pepper spray, which also caused burns to his face, neck and chest that remained painful for several days and caused severe eye irritation and blurry vision for the rest of the day. In response, the defendant claims that Rynich's injuries did not rise to the level of serious physical injury, and also that pepper spray is not a dangerous instrument as a matter of common or medical knowledge. We conclude that the jury reasonably could have inferred that Rynich's injuries were serious physical injuries resulting from the use of a dangerous instrument, thus permitting it to convict the defendant of assault in the second degree in violation of § 53a-60(a)(2).

"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.... [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury's function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Citation omitted; internal quotation marks omitted.) State v. Jones, 289 Conn. 742, 754-55, 961 A.2d 322 (2008).

"To prove the defendant guilty of assault in the second degree [under § 53a-60(a)(2)], the state was required to prove beyond a reasonable doubt that (1) the defendant intended to cause physical injury to another person, (2) he did in fact cause injury to such person and (3) he did so by means of a dangerous instrument." (Internal quotation marks omitted.) State v. Bosse, 99 Conn.App. 675, 678, 915 A.2d 932, cert. denied, 282 Conn. 906, 920 A.2d 310 (2007). "Section 53a-3(7) requires that the circumstances in which the instrument is used be considered to determine its potential as an instrument of death or serious physical injury, but the instrument need not actually cause death or serious physical injury.... Serious physical injury is not itself ... an essential element of the crime charged. It is but a definitional component of an essential element." (Citation omitted; emphasis in original; internal quotation marks omitted.) Id. If, however, an instrument has, in fact, caused a serious physical injury, it is considered dangerous ipso facto. Section 53a-3(4) defines "`[s]erious...