State v. Petion, AC 37884

• Decision Date: 02 May 2017
• Docket Number: AC 37884
• Citation: 161 A.3d 618,172 Conn.App. 668
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Divenson PETION

172 Conn.App. 668

161 A.3d 618

STATE of Connecticut

v.Divenson PETION

AC 37884

Appellate Court of Connecticut.

Argued January 6, 2017

Officially released May 2, 2017

Jennifer B. Smith, assigned counsel, for the appellant (defendant).

Jonathan M. Sousa, special deputy assistant state's attorney, with whom, on the brief, were Richard J. Colangelo, Jr., state's attorney, and Maureen Ornousky, senior assistant state's attorney, for the appellee (state).

DiPentima, C.J., and Prescott and Beach, Js.

PRESCOTT, J.

The defendant, Divenson Petion, appeals from the judgment of conviction, rendered after a jury trial, of two counts of assault in the first degree in violation of General Statutes § 53a–59(a)(1).¹ On appeal, the defendant claims that (1) there was insufficient evidence to support a conviction for first degree assault as to one of the two victims because the state failed to demonstrate beyond a reasonable doubt that that victim had suffered a "serious physical injury," and 2) prosecutorial improprieties during closing argument violated his right to a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 2008, the defendant began dating Rosa Bran. Bran later became pregnant with the defendant's daughter, who was born in February, 2010. Bran also had a son from a prior relationship. After the birth of his daughter, the defendant's romantic relationship with Bran ended, although they remained in contact.

In 2012, Bran and the two children lived in an apartment in Norwalk that they shared with Bran's mother, her brother, and her brother's fiancée. The defendant occasionally would visit his daughter, sometimes showing up unannounced. Just prior to these assaults, Bran and the defendant had argued about his relationship with another woman and his failure to provide support for their daughter. Although the defendant had no interest in renewing his relationship with Bran, he told her that he did not want other men around his daughter. Bran recently had resumed a friendship with a former boyfriend, Robert Raphael. The defendant and Raphael met in the spring of 2012, at which time the defendant identified himself as the father of Bran's daughter.

On May 26, 2012, Raphael, who was celebrating his birthday, called Bran to see if she would like to spend the day with him. Bran agreed and invited Raphael to the apartment. Raphael came over to the apartment in the early afternoon. In addition to Bran and her two children, her cousin's two children were also at home at the time.

Later that afternoon, there was a knock on the door. Bran answered the door believing it would be her cousin picking up her two children, but it was the defendant. He asked to see his daughter. Bran explained that it was not a good time because she was asleep on the couch. The defendant then saw Raphael, who was planning to leave and coming toward the door. The defendant became angry, pushed Bran aside, and entered the apartment. He began to shout at Raphael to get out of the apartment. Raphael, who did not want to leave Bran and the children alone with the defendant while he was so agitated, told the defendant that he was staying. At that point, the defendant "got in his face" and began pushing and punching him. Raphael retreated into the living room.

Meanwhile, the defendant's daughter, who was sleeping on the couch, woke up. Raphael told Bran to make sure the children were all right. The defendant became more and more aggressive, continuing to yell at Raphael, and, eventually, he pulled out a knife from his pocket and slashed Raphael across the face. Bran jumped in between the defendant and Raphael, apparently hoping this would prevent the defendant from cutting Raphael. The defendant cut Bran on her left arm in the process.

Bran was not immediately aware that she had been cut, and she grabbed her daughter to get her away from the situation. Raphael, who was bleeding heavily, ran out of the apartment, got in his car, and drove himself to the hospital. Bran's son came downstairs and, observing his mother's bleeding arm, grabbed a towel to cover her wound. The defendant apologized several times to Bran and left the apartment. Bran's cousin arrived shortly thereafter to retrieve her two children and drove Bran to the hospital.

Bran and Raphael both were admitted to Norwalk Hospital at around 4:30 p.m. At the time she was admitted, Bran had "grossly abnormal" vital signs for someone her age. She had a three and one-half centimeter abrasion and two lacerations on her left arm that were consistent with being cut by a sharp object. The smaller of the two lacerations was less than a centimeter long and required one suture. The other laceration was four centimeters in length and required ten sutures to close. The injury left a permanent and visible scar on her left arm.² While at the hospital, Bran and Raphael gave statements to the police, and the defendant was arrested shortly thereafter.

On October 15, 2014, the state charged the defendant in a long form information with two counts of assault in the first degree in violation of § 53a–59(a)(1). The first count alleged that, with the intent to cause serious physical injury to Raphael, the defendant caused such injury to Raphael by means of a dangerous instrument. The second count alleged that, with the intent to cause serious physical injury to Raphael, the defendant caused such injury to Bran by means of a dangerous instrument. The jury found the defendant guilty on both counts of assault. The court sentenced the defendant on the assault convictions to two concurrent terms of seventeen years of incarceration, followed by three years of special parole.³ This appeal followed.

I

The defendant first claims that, with respect to Bran, there was insufficient evidence to sustain a conviction of assault in the first degree in violation of § 53a–59(a)(1) because the state failed to prove beyond a reasonable doubt that she suffered a "serious physical injury." The defendant argues that Bran's injuries were limited to "an abrasion and two small lacerations on her left forearm." The defendant describes Bran's injuries as "unremarkably negligible," arguing that they were so minor that Bran was not immediately aware of the injuries and that she did not call 911 for help. The state, on the other hand, argues that the evidence presented to the jury showed that one of the two lacerations that Bran received resulted in a significant and readily visible scar and that, under our law, a jury reasonably could have found that such scarring constituted a serious disfigurement and, therefore, a serious physical injury. We agree with the state.

We begin with our well-settled standard of review and relevant legal principles. "The appellate standard of review [for] sufficiency of the evidence claims is well established. 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....

"The evidence must be construed in a light most favorable to sustaining the [court's] verdict.... Our review is a fact based inquiry limited to determining whether the inferences drawn by the [fact finder] are so unreasonable as to be unjustifiable.... [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence ... established guilt beyond a reasonable doubt.... Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Internal quotation marks omitted.)

State v. Whitnum–Baker , 169 Conn.App. 523, 525–26, 150 A.3d 1174 (2016), cert. denied, 324 Conn. 923, 155 A.3d 753 (2017).

Section 53a–59(a) provides in relevant part: "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 or to a third person by means of a deadly weapon or a dangerous instrument ...." A "serious physical injury" is defined by statute as a "physical 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." (Emphasis added.) General Statutes § 53a–3(4) (defining terms used throughout our penal code).

"Whether a victim has suffered serious physical injury is a question of fact for the jury. ... Although our case law ... does not require expert medical testimony to establish the element of serious physical injury, there must be sufficient direct or circumstantial evidence or a combination of both presented to the jury from which it may find such injury." (Citation omitted.) State v. Rumore , 28 Conn.App. 402, 414, 613 A.2d 1328, cert. denied, 224 Conn. 906, 615 A.2d 1049 (1992) ; accord State v. Lewis , 146 Conn.App. 589, 608, 79 A.3d 102 (2013), cert. denied, 311 Conn. 904, 83 A.3d 605 (2014).

This court, in considering whether the state presented sufficient evidence to support a jury finding of "serious disfigurement," has relied on the following definitions. "To ‘disfigure’ is to ‘blemish or spoil the appearance or shape of’; American Heritage Dictionary (New College Ed. 1976); and ‘disfigurement’ is ‘[t]hat which impairs or injures the beauty, symmetry, or appearance of a person or ... which renders unsightly, misshapen, or imperfect, or deforms in some manner.’ Ballentine's Law Dictionary (3d Ed. 1969)."

State v. Barretta , 82 Conn.App. 684, 689, 846 A.2d 946, cert. denied, 270 Conn. 905, 853 A.2d...