State v. Ramirez

• Decision Date: 15 April 2008
• Docket Number: No. 27707.,27707.
• Citation: 943 A.2d 1138,107 Conn.App. 51
• Parties: STATE of Connecticut v. Sean RAMIREZ.
• Court: Connecticut Court of Appeals

943 A.2d 1138

107 Conn.App. 51

STATE of Connecticut v. Sean RAMIREZ.

No. 27707.

Appellate Court of Connecticut.

Argued November 28, 2007.

Decided April 15, 2008.

Jodi Zils Gagne, special public defender, for the appellant (defendant).

Kathryn Ward Bare, deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Brian J. Leslie, assistant state's attorney, for the appellee (state).

BISHOP, LAVINE and McDONALD, Js.

BISHOP, J.

The defendant, Sean Ramirez, appeals from the judgment of conviction, following a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a)(2) and threatening in the second degree in violation of General Statutes § 53a-62 (a)(1). On appeal, the defendant claims that (1) the trial court improperly denied his posttrial motion for a judgment of acquittal, (2) the court improperly instructed the jury on self-defense and (3) the evidence was insufficient to sustain his conviction of assault in the second degree and threatening in the second degree. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim¹ was driving on College Street in New Haven during the afternoon of October 29, 2003, when he noticed a black sport utility vehicle, driven by the defendant, weaving erratically. Both the victim and the defendant stopped their vehicles for a red traffic signal in adjacent lanes at the intersection of College Street and Chapel Street. When the traffic signal turned green, the defendant accelerated rapidly and switched into the victim's lane, cutting him off. In response, the victim moved his car into the neighboring lane, but the defendant also switched lanes, cutting the victim off a second time. The victim was forced to brake to avoid a collision and, consequently, flashed his high beam headlights to alert the defendant to his presence. The defendant then braked abruptly, forcing the victim also to brake swiftly to avoid hitting the defendant's car. After the defendant resumed traveling forward, he changed lanes and slowed his vehicle. When the victim drove past him, the defendant immediately switched back into the victim's lane. The defendant twice accelerated toward the victim's car as if intending to ram it, slowing down just before contact. The victim, concerned for his safety, changed lanes two more times to avoid the defendant. When the victim came to a stop at a red traffic signal at the intersection of College Street and North Frontage Road in the center lane, the defendant drove abreast of him in the right lane. Through his closed windows, the victim could see that the defendant was angrily yelling and gesticulating at him.

The defendant then exited his car, ran to the victim's driver side window and began pounding his fists against the glass. The victim, afraid that the defendant would hurt him, reached between the front seats and into the back of his car and grabbed his baseball bat to protect himself. Just after the victim got the bat, the defendant punched his fist through the driver's side window, reached into the victim's car and wrenched the bat out of his hands. The defendant stated: "I'm glad you gave me this bat because now I'm going to beat the hell out of you and kill you with it." The defendant then began hitting the victim, while the victim tried to deflect the blows with his feet. After striking the victim about half a dozen times, the defendant ran back to his car, reversed quickly down College Street and drove away.

The defendant was stopped in his vehicle by the police approximately half an hour later. The defendant's right hand was lacerated and swollen, and he explained that he had just been in an altercation with the victim on College Street. Additionally, the victim's baseball bat was found inside the defendant's car.

The defendant was ultimately arrested and charged with attempt to commit assault in the first degree, assault in the second degree, threatening in the second degree and carrying a dangerous weapon.² At trial, the defendant testified and admitted to hitting the victim with the baseball bat and punching him in the face. The defendant claimed, however, that he was acting in self-defense. The jury found the defendant guilty of assault in the second degree and threatening in the second degree. He was acquitted of attempt to commit assault in the first degree, carrying a dangerous weapon and failure to appear in the first degree. On March 8, 2004, the defendant filed a motion for a judgment of acquittal notwithstanding the verdict in which he sought relief on the ground that the verdict was both legally and factually inconsistent. On March 20, 2006, the court denied the defendant's motion. The court sentenced the defendant to six years incarceration, execution suspended after four years and two years of probation. This appeal followed.

I

The defendant first claims that the court improperly denied his motion for a judgment of acquittal because the jury's guilty verdict on the charge of assault is legally and factually inconsistent with the jury's finding of not guilty on the charge of carrying a dangerous weapon.³ The defendant argues that assault with a dangerous instrument or deadly weapon required the state to prove that he used a dangerous or deadly weapon in the commission of the assault and that the jury's finding of not guilty on the charge of carrying a dangerous or deadly weapon or instrument can not be factually or legally harmonized with the assault conviction. We disagree.

Preliminarily, we note that, "The resolution of a claim of inconsistent verdicts presents a question of law.... Our review is therefore plenary." (Internal quotation marks omitted.) State v. Mourning, 104 Conn.App. 262, 269, 934 A.2d 263, cert. denied, 285 Conn. 903, 938 A.2d 594(2007).

We first consider the defendant's claim that the verdict was legally inconsistent. Generally, a legal inconsistency arises when an essential element for one conviction negates an essential element for another conviction. "[W]here the inconsistent verdicts claim involves a simultaneous conviction and acquittal on different offenses [however], the court, in testing the verdict of guilty for inconsistency as a matter of law, is necessarily limited to an examination of the offense charged in the information and the verdict rendered thereon without regard to what evidence the jury had for consideration.... If the offenses charged contain different elements, then a conviction of one offense is not inconsistent on its face with an acquittal of the other." (Citation omitted; internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 244, 745 A.2d 800 (2000).

A conviction of assault in the second degree in violation of § 53a-60 (a)(2) requires that an offender intend to cause physical injury to another person and that he actually cause such injury by means of a deadly weapon or dangerous instrument. No such requirement of intent to cause physical injury or causing such injury is contained in § 53-206, which prohibits the carrying of a dangerous or deadly weapon or instrument.

Also, for a defendant to be found guilty of carrying a dangerous weapon under § 53-206, the state must prove that the defendant carried on his person a dangerous or deadly weapon or instrument. As the court charged in its instructions to the jury: "[C]arry means what it means in its everyday sense, including any method of carrying, which renders the weapon or instrument readily acceptable and available for use irrespective of whether the person moves from place to place while having the weapon or instrument rather [than] in [one's] possession. It also means to bear, to bear about, sustain, transport, remove or convey. Carry is further defined as to have or bear upon or about one's person as a watch or weapon.... A person does not have to move in order to carry an object." The court's charge to the jury has an adequate foundation in decisional law as well as in common usage. See State v. Hopes, 26 Conn.App. 367, 374, 602 A.2d 23, cert. denied, 221 Conn. 915, 603 A.2d 405 (1992); Black's Law Dictionary (5th Ed.1979) (defining carry as, "[t]o bear, bear about, sustain, transport, remove, or convey.... To have or bear upon or about one's person, as a watch or weapon"); Ballentine's Law Dictionary (3d Ed.1969) (defining carrying a weapon as "[a]ny method of carrying which renders the weapon readily accessible and available for use, irrespective of whether the person moves from place to place while having the weapon in possession"). Thus, carrying a dangerous instrument on one's person and assaulting someone by means of a dangerous instrument are not identical concepts, as use does not necessitate carrying. Consequently, because the crimes of assault in the second degree and carrying a dangerous weapon contain different elements, a conviction of one is not legally inconsistent with an acquittal of the other.

The defendant also claims that the verdict was factually inconsistent. The defendant argues that because the jury found him not guilty of carrying a dangerous weapon, in this case, a baseball bat, the jury's verdict of guilty of assault in the second degree with this same baseball bat is illogical.

The law is well settled that a factually inconsistent verdict will not be overturned on appeal. State v. DeCaro, supra, 252 Conn. at 242, 745 A.2d 800. "The law permits inconsistent verdicts because of the recognition that jury deliberations necessarily involve negotiation and compromise.... [I]nconsistency of the verdicts is immaterial.... As Justice Holmes long ago observed in the case of Dunn v. United States, 284 U.S. 390, 393-94, 52 S.Ct. 189, 76 L.Ed. 356 (1932): The most that can be said in such cases ... is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not...