State v. Pjura

• Citation: 240 A.3d 772,200 Conn.App. 802
• Decision Date: 20 October 2020
• Docket Number: AC 41869
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. John PJURA

200 Conn.App. 802

240 A.3d 772

STATE of Connecticut

v.John PJURA

AC 41869

Appellate Court of Connecticut.

Argued May 22, 2020

Officially released October 20, 2020

MarcAnthony Bonanno, with whom, on the brief, was James B. Streeto, senior assistant public defender, for the appellant (defendant).

Brett R. Aiello, special deputy assistant state's attorney, with whom, on the brief, were Dawn Gallo, state's attorney, and David R. Shannon, senior assistant state's attorney, for the appellee (state).

Prescott, Elgo and Devlin, Js.

PRESCOTT, J.

The defendant, John Pjura, appeals from the judgment of conviction, rendered after a jury trial, of one count of assault in the second degree in violation of General Statutes § 53a-60 (a) (1) and one count of larceny in the sixth degree in violation of General Statutes § 53a-125b. The defendant claims on appeal (1) that there was insufficient evidence to prove beyond a reasonable doubt that he intended to cause serious physical injury to the victim, and (2) that he was denied his right to a fair trial because the prosecutor committed improprieties during the trial by (a) attempting to place evidence of the defendant's postarrest silence before the jury, (b) arguing facts not in evidence, and (c) arguing to the jury that, in order to find the defendant not guilty, it would have to find that two eyewitnesses and the victim were lying. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to our discussion. On September 11, 2016, the defendant attended church with his girlfriend, her son, and her friends, Kim Barnard and Jay Barnard. At some point, Kim Barnard came up with the idea of going to a fair in Bethlehem. The defendant was reluctant to go to the fair because he had a hole in his shoes and was not comfortable with the idea of walking around a muddy fairground with them. Upon hearing this, Kim Barnard suggested that the defendant buy new shoes at a nearby Payless Shoes store. The defendant did not have the ability to pay for his own shoes, so Kim Barnard gave the defendant's girlfriend her credit card so the defendant could buy shoes.

Following the church service, the defendant left with his girlfriend and her son to buy some sneakers. They went to the Famous Footwear store in Torrington. The defendant found a pair of sneakers he liked, and he tried them on. The defendant believed that he could sneak out of the store without paying for the sneakers. To accomplish this, he put his old shoes into the shoe box, left the store, and entered the neighboring Target store.

The victim, Andrew Howe, an assistant store manager at Famous Footwear, observed the defendant trying on the shoes. He then saw the defendant put his old shoes into the shoe box and place the box back on the shelf. The victim and Anna Rogers, a cashier, saw the defendant leave the store without paying for the sneakers. The victim followed the defendant out of the store and into Target. He confronted the defendant, told him that there were cameras everywhere within the store and that if the defendant returned the stolen shoes that he would not call the police. The defendant complied with the victim's directions, and the two headed back to Famous Footwear without a struggle or argument. While heading back to the store, however, the victim, sensing that the mood had changed, became uncomfortable and radioed Rogers to call the police. The defendant then punched the victim in the head with his dominant right hand, sprinted to his vehicle, and drove away. The force of the punch was so strong that Mark Dalessandro, a shopper at Target, heard its impact from approximately fifteen to twenty feet away. The victim was unable to brace himself and immediately collapsed to the ground. He suffered serious injuries, including a depressed skull fracture and a subarachnoid hemorrhage. He underwent surgery to reconstruct his skull. As a result of his injuries, he had to relearn to walk and to talk and was unable to drive.

After the incident, Torrington police sent out a "be on the lookout" alert with a description of the suspect. They also published a photograph of the suspect on their Facebook page. On September 18, 2016, several members from the Barnards’ church approached Jay Barnard with the photograph of the suspect from the Facebook page. Jay Barnard recognized the defendant from the photograph. He confronted the defendant later that day and asked him either to turn himself in to the police or to clear up the matter. The defendant denied that the photograph was of him. Following this conversation, the defendant began walking in the direction of the police department. He did not, however, turn himself in to the police and instead began wandering around the area.

Later that day, the Torrington police were dispatched after a concerned citizen reported the presence of a suspicious person in her backyard. The police located the defendant, but he managed to flee from them. Later that evening, the Torrington police were dispatched to a house where a suspicious person was reported to have been sleeping on a pantry floor. The officers located the suspicious person, who was identified as the defendant, and arrested him.

The defendant was charged with robbery in the first degree in violation of General Statutes § 53a-134 (a) (1) and assault in the second degree in violation of § 53a-60 (a) (1). The jury found the defendant not guilty of robbery but returned a guilty verdict on the lesser included offense of larceny in the sixth degree. The jury also found the defendant guilty of assault in the second degree. The court, Danaher, J ., sentenced the defendant to six years of imprisonment. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that there was insufficient evidence to prove beyond a reasonable doubt that he intended to cause serious physical injury to the victim. Specifically, the defendant asserts that there was no direct or circumstantial evidence from which the jury reasonably could infer that he acted with the necessary intent. The defendant further argues that the evidence established only his intent to flee the scene to avoid being taken into police custody. We disagree.

We begin our analysis with the well established standard of review for assessing an insufficiency of the evidence claim. "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 [jury] 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." (Internal quotation marks omitted.) Statev. Papandrea , 302 Conn. 340, 348–49, 26 A.3d 75 (2011).

"A person is guilty of assault in the second degree when: (1) With intent to cause serious physical injury to another person, the actor causes such injury to such person or to a third person ...." General Statutes § 53a-60 (a). "Serious physical injury" is statutorily defined as "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 ...." General Statutes § 53a-3 (4). "Assault in the second degree under § 53a–60 (a) (1) is a specific intent, rather than a general intent, crime." Statev. Perugini , 153 Conn. App. 773, 780 n.7, 107 A.3d 435 (2014), cert. denied, 315 Conn. 911, 106 A.3d 305 (2015). "Intent is a question of fact, the determination of which should stand unless the conclusion drawn by the trier is an unreasonable one. ... [T]he [jury is] not bound to accept as true the defendant's claim of lack of intent or his explanation of why he lacked intent. ... Intent may be, and usually is, inferred from the defendant's verbal or physical conduct. ... Intent may also be inferred from the surrounding circumstances. ... The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused's state of mind is rarely available. ... Intent may be gleaned from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading up to and immediately following the incident. ... Furthermore, it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct." (Citations omitted; internal quotation marks omitted.) Statev. Andrews , 114 Conn. App. 738, 744–45, 971 A.2d 63, cert. denied, 293 Conn. 901, 975 A.2d 1277 (2009).

Next, we examine the circumstantial evidence presented at trial from which the state contends a jury reasonably could infer that the defendant punched the victim with the intent to cause serious injury. The victim caught the defendant stealing the sneakers from Famous Footwear and instructed him to return them. While heading back to the store, the defendant became fearful of the prospect of going to jail and wanted to flee to evade responsibility for his actions. The defendant believed that the victim would continue to follow him if...