State v. Pagan

• Decision Date: 21 July 2015
• Docket Number: No. 35994.,35994.
• Citation: 119 A.3d 1259,158 Conn.App. 620
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. William PAGAN.

158 Conn.App. 620

119 A.3d 1259

STATE of Connecticut

v.William PAGAN.

No. 35994.

Appellate Court of Connecticut.

Argued Jan. 13, 2015.

Decided July 21, 2015.

Janice N. Wolf, assistant public defender, for the appellant (defendant).

Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Chris Pelosi, senior assistant state's attorney, for the appellee (state).

SHELDON, PRESCOTT and HARPER, Js.

Opinion

HARPER, J.

The defendant, William Pagan, appeals from the judgment of conviction, rendered after a jury trial, of one count of assault in the first degree in violation of General Statutes § 53a–59(a)(1). On appeal, the defendant claims that: (1) there was insufficient evidence to establish that he intended to cause the victim serious physical injury, which is an essential element of assault in the first degree as charged in this case; (2) the trial court improperly admitted the testimony of a domestic violence expert to explain why certain victims of domestic violence initially fail to name their abusers when reporting injuries resulting from domestic violence; and (3) the prosecutor made improper remarks in closing argument by arguing facts not in evidence, impugning defense counsel's integrity, and bolstering the credibility of the victim, in violation of the defendant's right to a fair trial. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to this appeal. The victim, Tashawna Gamble, lived with her mother, Johnnie Partin, in an apartment in Hartford. Gamble began dating the defendant approximately four months before the incident that gave rise to the present appeal. Partin disliked the defendant, and did not permit him inside her apartment while she was home.

Between 4 and 5 p.m. on September 30, 2010, the defendant called Gamble and asked her for the personal identification number (PIN) for her debit card so that he could use some of her money to repair her car's brakes. Gamble refused to give him the PIN because once before when she had given him the PIN to another bank card, he used it without her permission to withdraw $900 from her bank account. Upon this refusal, the defendant became upset with Gamble and they argued over the telephone.

After Gamble left her place of employment at 6 p.m., she picked up the defendant at a nearby housing project and then drove him to her apartment. Her mother was not at home. After the defendant and Gamble entered her bedroom, the defendant brought up Gamble's refusal to give him her PIN. When Gamble refused to argue with the defendant, he grew angry and left the room. When he returned, the defendant poured a flammable liquid onto Gamble's shoulder, arm and chest.¹

Gamble stood up from her bed, but the defendant stated that he was not finished talking to her and she sat down. After Gamble sat back down on the bed, the defendant lit a small piece of paper. The defendant then used the burning paper to set Gamble on fire.

The flames spread quickly. Gamble screamed and ran into the bathroom, while the defendant followed her, shouting, “[o]h my gosh, oh my gosh, I didn't know it was going to be like that,” as he attempted to remove Gamble's burning shirt. Gamble asked the defendant to turn on the shower, but instead he left the bathroom. Although she was in pain, Gamble managed to get into the shower. When the defendant returned to the bathroom, Gamble asked him to call for emergency assistance. The defendant, however, wondered aloud what he should tell the dispatcher, and delayed calling for help. The defendant, who was on probation, stated that he did not want to return to jail and that he would say that Gamble had been smoking a cigarette. He continued to delay calling for help. Gamble then asked the defendant to call her cousin. As soon as he left to do so, she called emergency assistance herself.

Gamble told the dispatcher that she had been smoking a cigarette, which she had dropped on herself, starting a fire. When the defendant returned to the bathroom and learned that Gamble had called for help, he stated that they “didn't have no whole legitimate reason of what happened....” The defendant instructed Gamble to tell emergency responders that she had been using nail polish remover and lit a cigarette, which she had dropped into her lap, starting the fire.² When the emergency responders arrived, the defendant opened the door, identified himself and Gamble, and stated that Gamble had suffered a burn. Gamble told emergency responders, as the defendant had instructed her, that she had burned herself by accidentally dropping a cigarette. She then was transported to Saint Francis Hospital and Medical Center in Hartford for treatment.³

During Gamble's hospitalization, she did not reveal to anyone that the defendant was responsible for her injuries. One reason she did not do so was because she was being given high doses of pain medication and could not communicate effectively. Another reason, however, was that she was afraid that the defendant might attempt to harm her mother. The defendant was driving Gamble's motor vehicle, and had keys to her apartment. Although the defendant never visited Gamble in the hospital, Partin claimed that he repeatedly drove by the apartment at night and called her, asking questions about Gamble.

After being released from the hospital, Gamble told her mother the truth about what had occurred and that the defendant was responsible for her injuries. Partin had never believed Gamble's initial story because Gamble does not smoke. She encouraged Gamble to report the incident to the police, which she did on November 15, 2010. Subsequently, the defendant was arrested.

On November 1, 2012, the defendant was charged by long form information with one count each of assault in the first degree in violation of § 53a–59(a)(1), assault in the first degree in violation of § 53a–59(a)(3), and assault in the second degree in violation of General Statutes § 53a–60(a)(3). Following a jury trial, the defendant was found guilty of intentional assault in the first degree in violation of § 53a–59(a)(1).⁴ The court rendered judgment in accordance with the verdict, sentencing the defendant to a term of seventeen years incarceration to be served consecutively to an unrelated sentence that he was then serving. This appeal followed.

I

The defendant first claims that there was insufficient evidence to support his conviction of assault in the first degree in violation of § 53a–59(a)(1). Specifically, he argues that the evidence presented at trial was insufficient to establish, as an essential element of that offense, that he intended to cause Gamble serious physical injury. We disagree.

We begin with the well established principles that guide our review. “In reviewing a sufficiency of the evidence claim, 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 [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 the jury's verdict....

“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.” (Internal quotation marks omitted.) State v. Stephen J. R., 309 Conn. 586, 593–94, 72 A.3d 379 (2013).⁵

Section 53a–59 provides in relevant part: “(a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person ... by means of a deadly weapon or a dangerous instrument....”⁶ As defined in General Statutes § 53a–3(11), a person acts intentionally with respect to a result demanded in a statute defining an offense when his conscious objective is to cause the result as defined by the statute. See State v. Perugini, 153 Conn.App. 773, 780, 107 A.3d 435 (2014), cert. denied, 315 Conn. 911, 106 A.3d 305 (2015). We have long recognized that “direct evidence of the accused's state of mind is rarely available.... Therefore, intent is often inferred from conduct ... and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.” (Internal quotation marks omitted.) State v. Hedge, 297 Conn. 621, 658–59, 1 A.3d 1051 (2010) ; State v. Silva, 285 Conn. 447, 460, 939 A.2d 581 (2008) ; State v. Fagan, 280 Conn. 69, 80–81, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S.Ct. 1491, 167 L.Ed.2d 236 (2007).

In the present case, the jury was instructed in accordance with the definition of “serious physical injury,” as defined in § 53a–3(4). A “serious physical injury” is an “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.” (Internal quotation marks omitted.) State v. Mendez, 154 Conn.App. 271, 277, 105 A.3d 917 (2014). Thus, to be convicted of assault in the first degree, there must be sufficient evidence presented for the jury to conclude beyond a reasonable doubt that the defendant seriously injured Gamble by creating a substantial risk of death, or that he caused serious disfigurement, or impairment of health or function of a bodily organ, while acting with the conscious objective of causing her such serious physical injury. See State v. Perugini, supra, 153 Conn.App. at 780, 107 A.3d 435.

The defendant claims that the record contains insufficient evidence to establish his intent to cause Gamble to suffer a serious physical injury. We are not persuaded. The...