State v. Pauling

• Citation: 925 A.2d 1200,102 Conn.App. 556
• Decision Date: 17 July 2007
• Docket Number: No. 26973.,26973.
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Anthony PAULING.

925 A.2d 1200

102 Conn.App. 556

STATE of Connecticut v. Anthony PAULING.

No. 26973.

Appellate Court of Connecticut.

Argued March 21, 2007.

Decided July 17, 2007.

Deborah G. Stevenson, special public defender, for the appellant (defendant).

Timothy F. Costello, special deputy assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Kevin Dunn, assistant state's attorney, for the appellee (state).

FLYNN, C.J., and McLACHLAN and PETERS, Js.

McLACHLAN, J.

The defendant, Anthony Pauling, appeals from the judgment of conviction rendered after a jury trial, of unlawful restraint in the first degree in violation of General Statutes § 53a-95(a), assault in the third degree in violation of General Statutes § 53a-61(a)(1), failure to appear in the second degree in violation of General Statutes § 53a-173(a)(1) and failure to appear in the first degree in violation of General Statutes § 53a-172(a)(1).¹ On appeal, the defendant claims that the trial court improperly (1) denied his motion for a judgment of acquittal at the close of the state's case because (a) the evidence was insufficient to sustain his conviction as to all four crimes and (b) the state failed to disprove his claim of self-defense, and (2) instructed the jury on the presumption of innocence, reasonable doubt and self-defense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and Tamisha Davenport had a romantic relationship. It began when they were teenagers, but they parted after a few months and did not see each other for several years. Approximately seven to eight years before the date of the incident, they resumed their relationship. The relationship was good at first, but gradually it began to deteriorate. Nevertheless, Davenport allowed the defendant to move into her apartment approximately two to three months prior to the incident because he had no other place to live.

On the morning of July 7, 2002, the defendant gave Davenport a greeting card for her birthday. She thanked him, but he told her that she had "an attitude," and he angrily left the apartment. Sometime later that day, he telephoned Davenport and told her that he had hidden a birthday gift for her somewhere in the apartment. He hung up, then called her again and told her to wait for him. She told the defendant that she was going out with her neighbor for drinks. When the defendant returned to the apartment, Davenport was having a telephone conversation with Lou, a close male friend. Lou telephoned Davenport everyday, but they did not have a romantic relationship. According to Davenport, the defendant became upset whenever Lou called her.

That day, the defendant asked Davenport to whom she had been speaking, and she responded that the caller had been Lou. The defendant told Davenport that he was "tired of this shit," and he started gathering his clothes and belongings from the bedroom in the apartment. As he was stuffing his clothes into a bag, the defendant complained that Davenport had not given him anything for his birthday the month before. As they spoke, the defendant became more and more angry. Davenport started to walk out of the bedroom, and the defendant grabbed her by her hair and slapped her across the face. After he slapped her two more times, she hit him. He grabbed her neck, threw her down on the bed and began to choke her. He told her that he was going to kill her. She fought back and scratched him. At least three times she got off the bed, but he grabbed her and threw her back on the bed and continued to choke her.

At that point, Davenport began screaming for her neighbor, who occupied the apartment next to hers in the same building, to telephone the police. Davenport managed to free herself and was trying to get through the bedroom doorway to leave the apartment. The defendant grabbed her by the shoulder and threw her into the wall. The back of her head hit the wall first, followed by her entire body, leaving a large indentation in the Sheetrock. She kept screaming for her neighbor to telephone the police. Davenport then tried to run for the outside door in the kitchen and stumbled over a broom. The defendant threw her to the floor, punched her twice in the face and kicked her. One of the punches was with a closed fist to Davenport's left eye, and she felt the eyeball go back into her socket.

The neighbor and her boyfriend then came into Davenport's apartment, having already telephoned the police. The defendant left. After the police and paramedics arrived, Davenport went to the emergency department at a hospital. The next day her father took her to the police department to file charges and to meet with the victim's advocate. That same day, the defendant arrived at the police station. He spoke with the same officer who had responded to the neighbor's telephone call on the day of the incident. The officer had seen Davenport's injuries. The defendant told the officer that he had struck Davenport but that he had done so in self-defense. He showed the officer a scratch mark on his forearm. The officer determined that the scratch mark was a defensive wound from a victim, and he issued the defendant a summons to appear in court.

The following procedural history is also relevant to the defendant's claims on appeal. Initially, the defendant was charged with assault in the third degree, a misdemeanor.² The defendant first appeared in court on July 9, 2002, and his case was continued to August 7, 2002. After subsequent continuances, the case was continued to October 24, 2002. At that time, the defendant was present when the prosecutor requested and was granted a continuance to November 20, 2002. The prosecutor wanted additional time to speak with Davenport because he had been informed that the injury to her left eye might have affected her eyesight. When the defendant's case was called on November 20, 2002, there was no response. The court issued a rearrest order and set bond in the amount of $10,000.

The rearrest warrant was served on January 10, 2003. The defendant appeared in court on January 13, 2003, and was ordered to reappear on January 14, 2003. On that date, his case was continued to February 5, 2003, and then to March 13, 2003. On March 13, 2003, the state filed a substitute information charging assault in the second degree, a felony.³ The state also added a charge of failure to appear in the second degree⁴ because of the defendant's failure to appear in court on November 20, 2002. The case was continued to March 27, 2003, for a pretrial.

On March 27, 2003, the defendant arrived at the courthouse in the morning and spoke briefly with his public defender. He was not present, however, when the court called his case for the pretrial, and the court issued a rearrest order and set bond in the amount of $5000. The defendant was arrested on December 7, 2003. Two additional charges were added before trial, unlawful restraint in the first degree⁵ in connection with the original incident and failure to appear in the first degree⁶ for failing to appear at his pretrial on March 27, 2003.

Jury selection commenced on November 17, 2004, and the presentation of evidence began on November 19, 2004. At the conclusion of the state's case, the defendant moved for a judgment of acquittal on all four counts of the substituted information. The court denied that motion, and the defendant put on his case. Evidence concluded on November 23, 2004. The jury returned its verdict on November 24, 2004, finding the defendant guilty of the crimes of unlawful restraint in the first degree, assault in the third degree, failure to appear in the second degree and failure to appear in the first degree, and finding him not guilty of the crime of assault in the second degree. The court accepted the verdict and rendered judgment accordingly. This appeal followed.

I

The defendant first claims that there was insufficient evidence to convict him of unlawful restraint in the first degree, assault in the third degree, failure to appear in the second degree and failure to appear in the first degree. Additionally, he claims that the state failed to disprove his claim of self-defense.

"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. . . .

"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. . . .

"Finally, ...