State v. Kenneth B.

308 A.3d 82

223 Conn.App. 270

STATE of Connecticut

v.KENNETH B.^*

(AC 45975)

Appellate Court of Connecticut.

Argued October 11, 2023

Officially Released January 9, 2024

Tamar Birckhead, Hamden, for the appellant (defendant).

Rocco A. Chiarenza, senior assistant state’s attorney, with whom, on the brief, were Christian M. Watson, state’s attorney, and David Clifton, senior assistant state’s attorney, for the appellee (state).

Clark, Seeley and DiPentima, Js.

DiPENTIMA, J.

₂₇₁The defendant, Kenneth B., appeals from the judgment of conviction, rendered after a jury ₂₇₂trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (1). On appeal, the defendant claims that (1) there was insufficient evidence presented at trial to support his conviction of assault in the second degree, and (2) the trial court abused its discretion in admitting into evidence two photographs of the victim. 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 resolution of this appeal. On the night of November 21, 2020, the defendant was in the apartment of his sister, Emma S. (Emma). The victim, who is the defendant’s adult daughter, was living with Emma during this time. At approximately 9:45 p.m., while Emma was in her bedroom, she heard the defendant and the victim arguing in the living room. Emma shouted for the victim to go into the bedroom, and when she did not, Emma heard the argument continue and get louder.

Emma went into the living room and observed the defendant standing over the victim, who was sitting on the floor. The defendant was hitting the victim and holding a small object in his left hand, which Emma believed to be a handgun.¹ Emma used a "grabber"² to strike the defendant to get him off the victim. When she told the defendant that she was going to call the police, he left the apartment. Emma subsequently called 911.

₂₇₃Officer Ryan Bailen of the New Britain Police Department arrived at the apartment to find the victim bleeding. Officer Bailen observed that there was blood on the coffee table, blood and locks of hair on the floor of the living room, and blood on the floor of the bathroom. A paramedic who subsequently arrived at the scene observed that the victim was "bloodied up" and "[d]istraught." The victim reported to the paramedic that she was in "severe" pain and that she was missing a tooth. The paramedic bandaged the victim’s wounds and looked for the tooth.³ The victim was then transported by ambulance to the Hospital of Central Connecticut in New Britain.

At the hospital, the victim was treated by Theodore Sherry, an emergency room physician. Dr. Sherry observed that the victim had a "fairly deep" four centimeter laceration on her forehead, had two lacerations on her lips and was missing a tooth. Dr. Sherry used approximately twelve sutures to close all of the lacerations and sutured the laceration on the victim’s forehead in two separate layers. The victim reported to Dr. Sherry that she had experienced a brief loss of consciousness. Dr. Sherry ordered a computerized tomography scan as a result of the victim's head trauma, to assess if there was bleeding in the victim’s brain or facial fractures; the results of the scan showed neither.

As a result of this incident, the defendant was arrested and charged, by way of a substitute information, with one count of assault in the second degree in violation of § 53a-60 (a) (1). After a trial, the jury found the defendant guilty as charged. The defendant then pleaded guilty to a part B information, which charged him as a persistent serious felony offender in violation ₂₇₄of General Statutes § 53a-40 (c). The court subsequently sentenced the defendant to fifteen and one-half years of incarceration followed by four and one-half years of special parole. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that there was insufficient evidence to establish that he had caused serious physical injury to the victim, as required for a conviction of assault in the second degree. We conclude there was sufficient evidence to sustain the conviction.

[1, 2] "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 …. " (Internal quotation marks omitted.) State v. Luciano, 204 Conn. App. 388, 396, 253 A.3d 1005, cert. denied, 337 Conn. 903, 252 A.3d 362 (2021). "As we previously have explained, proof beyond a reasonable doubt does not mean proof beyond all possible doubt … nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. … 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 [fact finder’s] verdict of guilty." (Internal quotation marks omitted.) State v. Fisher, 342 Conn. 239, 249, 269 A.3d 104 (2022).

[3] "To convict the defendant of assault in the second degree under § 53a-60 (a) (1), the state was required to ₂₇₅prove that (1) the defendant intended to cause serious physical injury to another person, and (2) acting with such intent, the defendant caused serious physical injury to that person." Id., at 250, 269 A.3d 104. For purposes of that statute, "serious physical injury" means "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).

At trial, the state presented evidence regarding the victim’s injuries primarily through the testimony of Dr. Sherry. Dr. Sherry testified about the "surgical intervention" required to close the lacerations with approximately twelve sutures and explained that, as to the fairly deep laceration to the victim’s forehead, he "had to suture the deeper layer first and then the superficial layer." As to the forehead laceration, Dr. Sherry testified that he "[t]ypically" would expect a scar to be formed, which would be "[t]he same length [as] the wound," but that he could not say whether the victim had a scar in the present case because he had not seen her since he performed the surgical procedure. Dr. Sherry explained the risks that would be present if the victim’s injuries had gone untreated, specifically, that "any kind of external wound that’s not treated has a risk of infection. … [T]he skin is an organ; the largest in the body, and it serves many functions, one of which is … a barrier against infection," and, as to "cosmetic effect … if it wasn’t fixed, then there would be a larger scar." Dr. Sherry further testified as to his observation that the victim was missing a tooth and that he did not provide any treatment related to the tooth, as it would be appropriate for the victim to follow up with a dentist. In addition to Dr. Sherry’s testimony, the state presented testimony from the paramedic about the victim’s missing tooth and photographic evidence of the victim’s lacerations.

₂₇₆Dr. Sherry also testified that the victim had reported a brief loss of consciousness. On cross-examination, defense counsel elicited testimony from Dr. Sherry that certain medical records indicated that the victim had denied any loss of consciousness to a registered nurse who treated her at the hospital. On redirect examination, Dr. Sherry testified that he was not present when the victim talked to the registered nurse, and he confirmed that the victim did report directly to him that she had lost consciousness.

The victim did not testify at trial. An inspector with the New Britain State’s Attorney’s Office testified regarding his efforts to serve a subpoena on the victim and his inability to locate her despite those efforts. After the state rested, defense counsel made an oral motion for a judgment of acquittal, which the court denied.

During the state’s closing argument, the prosecutor argued that there were multiple theories under which the jury could find that the defendant had caused serious physical injury to the victim. Specifically, the prosecutor argued that the victim’s forehead laceration and missing tooth constituted serious disfigurement, the laceration constituted a serious impairment of the victim’s health, and the laceration and the victim’s brief loss of consciousness constituted a serious impairment of the function of her bodily organs, i.e., her skin and her brain.

On appeal, the defendant argues that the evidence of the victim's loss of consciousness was insufficient to support a finding that the victim suffered a serious physical injury because the evidence constituted hearsay and there was conflicting evidence as to whether the victim had in fact suffered a loss of consciousness. The defendant also argues that there was no evidence ₂₇₇that the forehead laceration or missing tooth caused serious disfigurement to the victim.⁴

[4] We conclude that there was sufficient evidence that the victim suffered a serious physical injury on the basis of the evidence regarding her loss of consciousness. Because the jury reasonably could have concluded that the victim suffered a serious physical injury on the basis of the evidence of her loss of consciousness, we do not address the defendant’s remaining arguments as to the victim’s forehead laceration and missing tooth.

This court previously has held that loss of consciousness may constitute a serious loss...