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State v. Harold B.
STATE OF CONNECTICUT v. HAROLD B.*
(AC 47910)
Elgo, Suarez and Seeley, Js.
Syllabus
Convicted of several crimes, including assault in the second degree as a result of a physical altercation with the victim, M, that resulted in a scar on her forehead, the defendant appealed. He claimed, inter alia, that the evidence was insufficient to support the assault conviction because M did not suffer a serious physical injury in the form of a serious disfigurement. Held:
The evidence was insufficient to support the defendant’s conviction of assault in the second degree, as the jury could not reasonably have determined that the scar that resulted from the altercation with the defendant rose to the level of a serious disfigurement as defined under State v. Petion (332 Conn. 472) in that the scar was small and barely noticeable, a person’s eye would not be naturally drawn to it, and a reasonable person would not find it distressing or objectionable, as the injury was not of a magnitude that could be found to substantially detract from M’s appearance; accordingly, the conviction of second degree assault was reversed.
The evidence, viewed cumulatively, provided a sufficient basis from which the jury reasonably could have inferred that the defendant acted with the specific intent to cause serious physical injury to M required for a conviction of assault in the second degree pursuant to statute (§ 53a-60 (a) (1)), as the record showed that he choked her, expressed anger and rage toward her and repeatedly punched her in the forehead, and, contrary to the defendant’s assertion that the evidence did not show that he intended to cause serious physical injury, the act of punching M in the head three times was strongly corroborative of an intention to cause serious physical injury.
The evidence was sufficient to support the defendant’s conviction of unlawful restraint in the first degree, as the jury reasonably could have inferred from the defendant’s words and conduct, in grabbing M from behind, holding her around the neck and making it difficult for her to breathe, that he had restrained M with the conscious objective to restrict her movements in such a manner as to interfere substantially with her liberty.
*
In accordance with our policy of protecting the privacy interests of the victims of family violence, we decline to use the defendant’s full name or to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2024); we decline to identify any person protected or sought to be protected under a protection order, protective order, or a restraining order that was issued or applied for, or others through whom that person’s identity may be ascertained.
State v. Harold B.
This court determined that, although the evidence was insufficient with respect to the element of serious physical injury for purposes of the defendant’s conviction of assault in the second degree, because the jury’s verdict necessarily included a determination that, in the absence of serious physical injury, all the elements of second degree assault had been proven, the appropriate remedy was to remand the case to the trial court with direction to modify the judgment to reflect a conviction of attempt to commit assault in the second degree and to resentence the defendant in accordance with that conviction.
Argued April 21—officially released September 15, 2026
Procedural History
Substitute information charging the defendant with
the crimes of assault in the second degree, unlawful
restraint in the first degree, strangulation in the third
degree, risk of injury to a child and disorderly conduct,
brought to the Superior Court in the judicial district
of New Haven and tried to the jury before Weiner, J.;
verdict and judgment of guilty of assault in the second
degree, unlawful restraint in the first degree, risk of
injury to a child and disorderly conduct, from which
the defendant appealed to this court. Reversed in part;
judgment directed; further proceedings.
Naomi T. Fetterman, assigned counsel, for the appellant (defendant).
Christopher A. Alexy, senior assistant state’s attorney,
with whom, on the brief, were John P. Doyle, Jr., state’s
attorney, and Kathleen E. Morgan, assistant state’s
attorney, for the appellee (state).
Opinion
SEELEY, J. The defendant, Harold B., appeals from
the judgment of conviction, rendered following a jury
trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (1),1 unlawful restraint in the
1
General Statutes § 53a-60 (a) provides in relevant part: “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 . . . .”
State v. Harold B.
first degree in violation of General Statutes § 53a-95 (a),2 risk of injury to a child in violation of General Statutes § 53-21 (a) (1), and disorderly conduct in violation of General Statutes § 53a-182 (a) (1). On appeal, the defendant
challenges the sufficiency of the evidence to support his
conviction of assault in the second degree and unlawful
restraint in the first degree. Specifically, with respect
to his conviction of assault in the second degree, the
defendant claims that the evidence was insufficient for
the jury reasonably to find that (1) the victim, M, suffered a serious physical injury in the form of a serious
disfigurement and (2) he acted with the specific intent to inflict serious physical injury on M. With respect to his
conviction of unlawful restraint in the first degree, the
defendant claims that the evidence was insufficient for
the jury reasonably to find that he acted with the specific intent to substantially interfere with M’s liberty. We
agree with the defendant’s claim that the evidence was
insufficient on the element of serious physical injury to
support his conviction of assault in the second degree and, accordingly, reverse in part the judgment of conviction.
The jury reasonably could have found the following
facts. M had been in a relationship with the defendant,
who was living with her, for about two months when the
incident underlying the charges occurred. During the
evening of July 12, 2022, M and the defendant had gotten into an argument, which agitated the defendant. The
next morning, July 13, 2022, M and the defendant got
into another argument in the kitchen of the apartment
after the defendant refused to help make something to
eat for M’s youngest daughter. The defendant became
aggravated with M after she asked him why he would
not help make something to eat for her daughter, and
he called M “lazy,” told her to “shut up,” and “doused
her with water,” after which she told him that he had to
leave. At that point, the defendant “blew out into a full
2
General Statutes § 53a-95 (a) provides: “A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury.”
State v. Harold B.
rage” and grabbed a knife to try to cut a microwave that
he bought for M, who asked him not to do that in front
of her children. Thereafter, the defendant broke a wok
that he had bought, grabbed M from behind and choked
her and, in the process, pushed M’s oldest daughter, E,
away, causing E to fall.
At that point, M went to her bedroom, and the defendant followed M there. Along the way, M and the
defendant engaged in a “shoving match” because he
was grabbing things, including plants, and throwing
them to the floor in an effort to destroy anything he had
bought for M. In the bedroom, the defendant asked M to
get the clothes that he had bought her for Mother’s Day,
and, when M “went to open up the closet, [she] ended up
getting cornered by [the defendant].” According to M,
the defendant cornered her against the closet door and
tried to bite her finger as she told him he had to leave.
At that point, the defendant punched M in her forehead
when her back was against the closet, causing M to fall.
When M got back up, the defendant punched her again
in the forehead, causing M to fall once more. After M got
back up again, the defendant punched her a third time
in the forehead, at which point M felt a “warm sensation
on [her] forehead” and realized that she was bleeding.3
At approximately 1:50 p.m., Sheila Villegas, a 911
dispatcher employed by the city of New Haven, received
a telephone call from a distressed fifteen year old, E, in which E reported that her mother, M, was being hit by
M’s boyfriend, the defendant, and that the defendant had
also “put his hands on” E. On the basis of that information, New Haven police officers were dispatched to M’s
apartment.
Shortly thereafter, Sergeant Christopher Lawrence of
the New Haven Police Department arrived at the scene.4
3
Two photographs of the injury to M’s forehead at the time of the incident were admitted into evidence. See footnote 6 of this opinion.
4
A DVD containing Lawrence’s body camera footage and still photographs captured from the body camera footage were admitted into evidence at trial.
State v. Harold B.
When Lawrence went upstairs to the third floor of the
apartment building, he could hear arguing coming from
inside M’s apartment. Upon entering M’s apartment,
Lawrence first encountered the defendant, who stated
to Lawrence, “just take me.” Next, Lawrence saw M and
noticed that she had “apparent injuries” and was “very
upset,” “quiet,” and “very sweaty.” With respect to the
state of M’s apartment, Lawrence saw “potted plants and
dirt all over the ground, and there was also blood on the
ground.” While at the scene, Lawrence spoke with the
defendant and received a statement from M.5 At that
time, medical personnel had arrived and were treating
M’s injuries. Specifically, M had a laceration on her
forehead that was bleeding.6 As a result of her injuries,
M was transported to Yale-New Haven Hospital, Saint
Raphael campus (hospital), where she received treatment
for her injuries, which included a computerized tomography (CT) scan of her head and facial bones.7 After M
was taken to the hospital, the defendant was arrested
and charged in connection with the incident.
The defendant was charged by way of a five count
information dated October 23, 2023, with assault in the
second degree in violation of § 53a-60 (a) (1), unlawful
restraint in the first degree in violation of § 53a-95 (a), strangulation in the third degree in violation of General
5
M’s statement to Lawrence was not marked for identification or admitted into evidence.
6
Still photographs of M’s injuries and how she looked when Lawrence first encountered her, which were taken from footage from Lawrence’s body camera, were admitted into evidence at trial. The photographs show a small laceration on M’s forehead, and blood from the laceration running down her face and chest.
7
Specifically, M received three sutures to close the laceration on her forehead, which was 2.5 centimeters in length, she was given pain medication for head pain, and the CT scan of M’s head and facial bones was performed to ensure that she had not suffered any fractures or bleeding in her brain. Mark Kantrowitz Rollins, the attending physician at the hospital who treated M’s injuries, testified at the defendant’s trial. When asked what the results of the CT scan showed, if anything, he stated: “I believe that they saw the superficial laceration on the scalp, but nothing else.”
State v. Harold B.
Statutes § 53a-64cc (a),8 risk of injury to a child in violation of § 53-21 (a) (1), and disorderly conduct in violation of § 53a-182 (a) (1).9 The defendant elected to be tried by a jury, which heard evidence on November 15 and 16, 2023.
At trial, the state presented testimony from Villegas;
Lawrence; M; and Mark Kantrowitz Rollins, an attending
physician who treated M for her injuries in the hospital’s emergency department. The defendant did not testify or
present any witnesses in his defense.
The jury found the defendant guilty of assault in the
second degree in violation of § 53a-60 (a) (1), unlawful
restraint in the first degree in violation of § 53a-95 (a),10 risk of injury to a child in violation of § 53-21 (a) (1), and disorderly conduct in violation of § 53a-182 (a) (1).
The defendant was sentenced on February 5, 2024, to
a total effective term of twelve years of incarceration,
execution suspended after seven years, with five years
of probation. This appeal followed. Additional facts and
procedural history will be set forth as necessary.
On appeal, the defendant claims that the state failed
to present sufficient evidence to support his conviction
of assault in the second degree and unlawful restraint in
the first degree.11 We begin with our well settled standard of review for assessing an insufficiency of the evidence
claim.
8
See footnote 10 of this opinion.
9
The defendant also was charged in a part B information with being a persistent serious felony offender in violation of General Statutes § 53a-40 (c) and (k), and a persistent assault offender in violation of General Statutes § 53a-40d (a) and (b). The state, however, withdrew the part B information after the jury returned its verdict.
10
With respect to the charge of strangulation in the third degree, the court instructed the jury as follows: “You will only consider this count if you first unanimously find the defendant not guilty of count two, unlawful restraint in the first degree.” Because the jury found the defendant guilty of the unlawful restraint charge, it did not consider the strangulation charge.
11
We note that the defendant does not challenge his conviction of disorderly conduct and that his appellate counsel acknowledged at oral argument before this court that she was not challenging his conviction of risk of injury to a child.
State v. Harold B.
“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. . . .
“[T]he 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. . . .
“[P]roof 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 [jury], 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 [jury’s] verdict of guilty. . . .
“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 [that] 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
State v. Harold B.
draw whatever inferences from the evidence or facts
established by the evidence it deems to be reasonable and
logical.” (Citation omitted; internal quotation marks
omitted.) State v. Ragalis, 235 Conn. App. 538, 547–48,
345 A.3d 844, cert. denied, 353 Conn. 934, 347 A.3d 877
(2025); see also State v. Franqui, 354 Conn. 400, 418–19,
354 A.3d 201 (2026). “When reviewing a sufficiency
of the evidence claim, [appellate courts] construe the
evidence in the light most favorable to sustaining the
verdict.” (Internal quotation marks omitted.) State v.
Dixon, 353 Conn. 382, 420, 342 A.3d 161 (2025).
I
The defendant claims on appeal that the state failed
to present sufficient evidence to support his conviction
of assault in the second degree because the state failed
to present evidence demonstrating that (1) M suffered a
serious physical injury and (2) he acted with the specific intent to inflict serious physical injury on M. We address each claim in turn.
A
We begin with the defendant’s claim that the state
failed to present sufficient evidence from which the jury
reasonably could have found that M suffered a serious
physical injury in the form of a serious disfigurement, as required for a conviction of assault in the second degree. Specifically, the defendant claims that the injury to M’s
forehead does not rise to the level of serious disfigurement as defined by our Supreme Court in State v. Petion,
332 Conn. 472, 491–92, 211 A.3d 991 (2019), as the
laceration was superficial and the resulting scar does not substantially detract from M’s appearance. We agree.
We first briefly summarize the evidence at trial concerning the injury to M’s forehead. M testified that she
had received treatment for her injuries at the hospital.
Specifically, M testified that she had received “one and
[one-half] to two sutures” and a CT scan. M stated that,
when sutures were removed approximately seven days
State v. Harold B.
later, she experienced pain and discomfort, and that she
“had headaches for a while for . . . at least three to four days . . . .” M stated that she has a permanent scar from
the incident. Photographs of the scar on M’s forehead,
which were taken approximately one week prior to her
testimony at the trial, were admitted into evidence.
The photographs show a small, barely visible scar in the
center of M’s forehead. M testified that the photographs
accurately depicted her scar from one week prior to the
trial, and that, when she squints, you can see the “dent
still [there] . . . .” The prosecutor did not have M display her scar to the jury directly and presented the contemporaneous photographs instead.12
Rollins, the attending physician at the hospital, testified that M presented with complaints of a “ten out of
ten headache” and had a 2.5 centimeter13 laceration to
her forehead, which “was thoroughly irrigated to clean
it out . . . [a]nd then repaired with [three] sutures.” Rollins testified that M received pain medication and a CT
scan of her head and facial bones to ensure that she had
not suffered any fractures or brain bleeding. Rollins
explained that M’s CT scan did not indicate that she
suffered from brain bleeding, and, when asked what the
results of the CT scan showed, if anything, he stated: “I
12
Although M testified at trial, there is no evidence that M’s injury was visible to the jury as she testified. See State v. Leveille, 232 Conn. App. 687, 698, 337 A.3d 797 (2025) (“[a]t trial, the victim stepped down from the witness stand and showed the jury the ‘piece missing’ from his ear”). Accordingly, to the extent the state maintains that the jury accurately categorized M’s injury as a serious disfigurement because the jury saw M’s injury when she testified, we decline to consider this claim, as there is nothing in the record to substantiate it.
13
We note that 2.5 centimeters is equivalent to just less than one inch. See https://www.nist.gov/pml/owm/metric-si/unit-conversion/ approximate-conversions-us-customary-measures-metric (last visited September 10, 2026); see also State v. Jeffrey Z., 240 Conn. App. 1, 28, ___ A.3d ___ (2026) (court may take judicial notice of matters of established fact), petition for cert. filed (Conn. July 21, 2026) (No. 260113); see also Moore v. Moore, 173 Conn. 120, 123 n.1, 376 A.2d 1085 (1977) (“types of facts considered suitable for the taking of judicial notice [are] those which are common knowledge and those which are capable of accurate and ready demonstration” (internal quotation marks omitted)).
State v. Harold B.
believe that they saw the superficial laceration on the
scalp, but nothing else.” (Emphasis added.) Additionally, Rollins testified that M had not experienced any
fractures, did not complain of loss of consciousness or
breathing trouble, and did not require a blood transfusion as a result of blood loss. When asked whether M would
have a permanent scar, Rollins testified that “everybody
heals differently. . . . [B]ased on my review of the photo and the chart, I think that most people would probably
have a scar permanently. But everybody heals differently, so I can’t say for sure.” On cross-examination,
Rollins stated that his examination findings included
“that 2.5 centimeter laceration surrounding swelling.
There was a very superficial abrasion above the right
eyebrow. There was tenderness around the left orbit,
which is the . . . bones around the eye, as well as the left temple.” Finally, Rollins testified on cross-examination
that, in his training and experience, three sutures is not “a lot to close a wound . . . .”
Next, we set forth the legal principles that guide our
resolution of this claim. “ ‘To convict the defendant
of assault in the second degree under § 53a-60 (a) (1),
the state was required to prove 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.’ ” State v. Kenneth B., 223 Conn. App. 270, 274–75, 308 A.3d 82,
cert. denied, 348 Conn. 952, 308 A.3d 1038 (2024); see
also General Statutes § 53a-60 (a) (1); State v. Fisher, 342 Conn. 239, 250, 269 A.3d 104 (2022). “For purposes of
[§ 53a-60 (a) (1)], ‘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).” State v. Kenneth B., supra, 275. In the present case, the
state’s theory of the case was that M sustained a serious
physical injury in the form of a serious disfigurement.
State v. Harold B.
In State v. Petion, supra, 332 Conn. 475, our Supreme
Court “examine[d] the parameters that should be used
by the trier of fact to assess whether a defendant has
inflicted serious physical injury in the form of serious
disfigurement.” In doing so, the court first noted the difference in the definition of “ ‘“[p]hysical injury” [which] means impairment of physical condition or pain’ ”; id.,
481; see General Statutes § 53a-3 (3); and that of “ ‘“[s]erious physical injury” [which] 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
. . . .’ ” State v. Petion, supra, 481. “These definitions plainly reflect a legislative intention to establish a material degree of difference between mere physical injury and serious physical injury. This differentiation is reflected in the severity of punishment attendant to each. Assault
resulting in physical injury, unless inflicted by discharge of a firearm, carries a maximum term of imprisonment
of five years, whereas assault resulting in serious physical injury carries a maximum term of imprisonment of
twenty years. See General Statutes §§ 53a-35a (6) and
(7), 53a-59 (b) and 53a-60 (b). Thus, [a]lthough it may
often be difficult to distinguish between the two, such a
distinction must be drawn; a person can be found guilty of assault in the first degree under . . . § 53a-59 [a] [1] only if he causes serious physical injury to another person.”14 (Emphasis in original; internal quotation marks omitted.) State v. Petion, supra, 481.
14
See State v. Stone, 326 Or. App. 200, 207–208, 532 P.3d 90 (“The difference between ‘physical injury’ and ‘serious physical injury’ is substantial, not slight. The 1970 commentary of the commission that drafted the definitions describes ‘serious physical injury’ as synonymous with ‘serious bodily harm’ and cites the Restatement of Torts for the proposition that ‘serious bodily harm’ is harm that ‘“is so grave that it is regarded as differing in kind, and not merely in degree, from other bodily harm.” ’ Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report §§ 3, 4 (July 1970) (quoting Restatement of Torts § 63 (b)) . . . .” (Citation omitted.)), opinion adhered to as modified on reconsideration, 328 Or. App. 203, 536 P.3d 1094 (2023).
State v. Harold B.
Focusing on one type of physical injury in particular—
serious disfigurement—the court in Petion distinguished
between disfigurement and serious disfigurement, and
established “a multifactor test to consider in determining whether a jury reasonably could decide that a victim
has suffered a serious physical disfigurement.” State
v. Stepherson, 237 Conn. App. 65, 74, 350 A.3d 1174
(2026). Specifically, the court in Petion stated: “ ‘Disfigurement’ means impairment of or injury to the beauty,
symmetry or appearance of a person that renders the
person unsightly, misshapen or imperfect, or deforms the
person in some manner, or otherwise causes a detrimental
change in the external form of the person. ‘Serious disfigurement’ is an impairment of or injury to the beauty,
symmetry or appearance of a person of a magnitude
that substantially detracts from the person’s appearance from the perspective of an objective observer. In
assessing whether an impairment or injury constitutes
serious disfigurement, factors that may be considered
include the duration of the disfigurement, as well as its
location, size, and overall appearance. Serious disfigurement does not necessarily have to be permanent or in a
location that is readily visible to others. The jury is not bound by any strict formula in weighing these factors,
as a highly prominent scar in a less visible location may
constitute serious disfigurement, just as a less prominent scar in a more visible location, especially one’s face, may constitute serious disfigurement.” (Footnote omitted.)
State v. Petion, supra, 332 Conn. 491.
In reaching that conclusion, the court in Petion
explained that the permanence of an injury is not a necessary condition for serious disfigurement, nor is it, by
itself, sufficient to establish serious disfigurement. See id., 489. It then stated: “We are mindful that some of
our Appellate Court’s decisions appear to suggest that,
whenever a defendant inflicts an injury that leaves a permanent scar, the evidence would be sufficient to permit
the trier of fact to determine that serious disfigurement
exists. See, e.g., State v. Griffin, 78 Conn. App. 646, 655 n.3, 828 A.2d 651 (2003) (‘[a] permanent scar constitutes
State v. Harold B.
serious and permanent disfigurement’). But see State v.
Huckabee, 41 Conn. App. 565, 570–71, 677 A.2d 452
(‘[a] bullet wound is not per se serious physical injury’), cert. denied, 239 Conn. 903, 682 A.2d 1009 (1996). We
agree with those jurisdictions that have recognized that,
because any visible scar would mar the victim’s appearance and thus constitute disfigurement, the legislative
choice of ‘serious’ disfigurement evidences an intent to
require the presence of some other factor(s) in addition
to permanence to render a scar a ‘serious’ disfigurement.
See, e.g., Saelee v. State, Docket No. A-10004, 2011 WL
807391, *9 (Alaska App. March 2, 2011) (‘Even in the
photographic exhibit, it is difficult to see this scar if one is not looking closely. If we were to declare this evidence sufficient to establish a “serious and protracted disfigurement,” we would essentially be saying that any visible
scar constitutes a “serious physical injury” for purposes
of the assault statutes. We do not believe that the legislature intended this term to be interpreted so broadly.’); State v. Silva, [75 Haw. 419, 433, 864 P.2d 583 (1993)]
(‘[E]ven a small but noticeable scar on a person’s face,
for example, is a disfigurement. However, such a scar
would certainly not qualify as a “serious bodily injury”
under the statutory definition nor should it.’); Hernandez v. State, [946 S.W.2d 108, 113 (Tex. App. 1997)]
(‘Simply that an injury causes a scar is not sufficient to establish serious permanent disfigurement. . . . There
must be evidence of some significant cosmetic deformity
caused by the injury.’ . . . [S]ee also State v. Hanes, 790 N.W.2d 545, 554 (Iowa 2010) (‘[s]carring may in some
circumstances rise to the level of serious permanent
disfigurement’); State v. Bledsoe, [920 S.W.2d 538,
540 (Mo. App. 1996)] (‘permanency of disfigurement is
relevant . . . on the element of seriousness’).
“Factors identified by other jurisdictions as relevant
to the seriousness of a disfigurement in the form of a
scar include its permanence, but also its location, size,
and general appearance. See, e.g., State v. Roper, 136
S.W.3d 891, 898 (Mo. App. 2004); State v. Demers,
Docket No. CX-03-297, 2003 WL 22952813, *1 (Minn.
State v. Harold B.
App. December 16, 2003), review denied, Minnesota
Supreme Court (February 25, 2004); People v. McKinnon, [15 N.Y.3d 311, 316, 937 N.E.2d 524, 910 N.Y.S.2d
767 (2010)]. If there is more than one disfiguring feature, courts, including our Appellate Court, have considered
the cumulative effect of those features to assess seriousness. See, e.g., State v. Anderson, 16 Conn. App. 346,
357, 547 A.2d 1368, cert. denied, 209 Conn. 828, 552
A.2d 433 (1988); Levin v. State, 334 Ga. App. 71, 74,
778 S.E.2d 238 (2015), cert. denied, Georgia Supreme
Court, Docket No. S16C0249 (January 11, 2016); Sloan
v. State, Docket No. 49A02-1002-CR-195, 2010 WL
4813600, *2 (Ind. App. November 24, 2010) (decision
without published opinion, 937 N.E.2d 938 [Ind. App.
2010]); State v. Roper, supra, 898.” State v. Petion,
supra, 332 Conn. 489–91.
Before our Supreme Court in Petion applied those
factors to the facts of that case, it noted: “Although
ordinarily a factual question for the jury; see, e.g., State v. Almeda, [211 Conn. 441, 450, 560 A.2d 389 (1989)];
State v. Miller, 202 Conn. 463, 489, 522 A.2d 249 (1987);
there is a legal distinction between physical injury and
serious physical injury that is not a purely subjective
matter, and it is ultimately our responsibility to draw
that line. See State v. Rossier, 175 Conn. 204, 207, 397
A.2d 110 (1978) (‘[a]lthough it may often be difficult to
distinguish between [physical injury and serious physical injury], such a distinction must be drawn’ before
defendant can be found guilty of assault in first degree
under § 53a-59 [a] [1] . . .); State v. Jeustiniano, 172
Conn. 275, 281, 374 A.2d 209 (1977) (‘[t]he degree of
the injuries suffered by [the victim] was a proper question for the jury to decide if sufficient evidence were
introduced’); Hernandez v. State, supra, 946 S.W.2d
113 (‘Disfigurement, like beauty, is in the eye of the
beholder. However, when distinguishing between “bodily
injury” and “serious bodily injury” it is, again, a matter of degree. Simply that an injury causes a scar is not sufficient to establish serious permanent disfigurement. .
State v. Harold B.
. . There must be evidence of some significant cosmetic
deformity caused by the injury.’ . . .).
“ ‘In reviewing the [legal] sufficiency of the evidence
concerning this element of assault in the [second] degree, our task is to construe the evidence in the light most
favorable to sustaining the jury’s verdict, and then to
determine whether any rational trier of fact could have
found that the harm suffered rose to the level of a serious physical injury under the statute.’ ” (Emphasis in
original.) State v. Petion, supra, 332 Conn. 492–93.
In Petion, the victim suffered “an approximately
1.38 inch (three and one-half centimeters) abrasion
and an approximately 0.30 inch (three-quarters of one
centimeter) laceration just above her left elbow. Just
below her left elbow, on her forearm, [the victim] had an
approximately 1.57 inch (four centimeter) laceration. The
smaller laceration was closed with a single suture; the
larger laceration was closed with ten sutures. The closed
lacerations appear quite narrow. By the time of trial, the larger of the two lacerations had left a scar approximately the same length as the laceration, although it appears to
be slightly wider in the magnified close-up than when
sutured. The scar is a slightly lighter tone than the surrounding skin. No other injury is apparent.” (Footnote
omitted.) Id., 493–94.
Our Supreme Court in Petion determined that a jury
could not reasonably have concluded that the injuries sustained by the victim constituted a serious disfigurement.
See id., 495. In particular, our Supreme Court clarified
that the victim had suffered a disfigurement in the form
of a permanent scar on her forearm; however, the scar
was not in a prominent location, was “relatively small
in size, uniform in shape (a straight line), and otherwise unremarkable in its general appearance.” Id., 494. The
court observed that, “[a]lthough the scar is visible if one looks for it . . . its appearance is not such that one’s eye would naturally be drawn to it. Serious disfigurement
requires something more than visibility, as it must be
visible to mar one’s appearance and, hence, meet the
State v. Harold B.
threshold for disfigurement.” Id. Accordingly, the court
found that the evidence of the victim’s injury “compels
the conclusion that the disfigurement is not of a magnitude that objectively could be found to substantially
detract from [the victim’s] appearance.” (Emphasis in
original.) Id., 495.
Applying the factors set forth in Petion to the present
case, we conclude that the jury could not reasonably have
determined that the injury to M’s forehead and resulting
scar constituted a serious disfigurement. The evidence
before the jury shows that M sustained a 2.5 centimeter
laceration to her forehead that required three sutures to
close. The laceration resulted in a permanent scar to M’s
forehead. The scar is in a prominent location in the center of M’s forehead and is visible if one looks for it, but the scar itself is not prominent or otherwise remarkable,15
nor is it of the appearance that a person’s eye would be
naturally drawn to it. See id. Indeed, Rollins referred to it as a “superficial laceration on the scalp, but nothing
else.” (Emphasis added.) Superficial means “affecting
only the outer part or surface: not deep or serious . . .
.” Merriam-Webster’s Collegiate Dictionary (12th Ed.
2026) p. 1580. Although the small and barely noticeable
scar on M’s forehead constitutes a disfigurement, as
that term was defined in Petion, we conclude that the
evidence before the jury was insufficient for it to have
determined that it rose to the level of a serious disfigurement, as required for a conviction of assault in the
second degree. As in Petion, the injury to M’s forehead
in the present case “is not of a magnitude that objectively could be found to substantially detract from [M’s] appearance.” (Emphasis in original.) State v. Petion, supra, 332 Conn. 495; see, e.g., State v. Silva, supra, 75 Haw. 433
(“According to the Random House College Dictionary 380
(1979), a ‘disfigurement’ is, in relevant part, ‘something that disfigures, as a scar,’ while to ‘disfigure’ is ‘to mar the effect or excellence of.’ . . . Therefore, it follows
that even a small but noticeable scar on a person’s face,
15
Prominent is defined as “standing out” or “readily noticeable.” Merriam-Webster’s Collegiate Dictionary (12th Ed. 2026) p. 1269.
State v. Harold B.
for example, is a disfigurement. However, such a scar
would certainly not qualify as a ‘serious bodily injury’
under the statutory definition nor should it. ‘Serious’
is defined in the dictionary as ‘giving cause for apprehension; critical.’ . . . Conversely, a large, permanent
scar on a person’s face from the corner of the eye to the
jaw, for example, would clearly be considered ‘serious
bodily injury’ under the statutory definition.” (Emphasis
added.)). But see State v. Leveille, 232 Conn. App. 687,
690, 695, 699, 337 A.3d 797 (2025) (there was sufficient
evidence from which jury reasonably could have found
that victim suffered serious physical injury in form of
serious disfigurement from scarring on his jaw, ear, and
top of his head, as “victim sustained four lacerations to
his head and face that required twenty-eight sutures
and six staples to close” after defendant struck victim in face repeatedly with empty beer glass). Accordingly, the
evidence of M’s injury is not legally sufficient to meet
the threshold for serious disfigurement to support the
defendant’s conviction of assault in the second degree.
Our determination is supported by case law from
other jurisdictions with similar definitions of serious
physical injury and serious disfigurement, which demonstrates that a small, less noticeable scar to a victim’s face, although in a prominent location but which is not
otherwise distinguishable or jarring in appearance, is
generally not sufficient to constitute a serious disfigurement, and that, for an injury resulting in a facial scar
to rise to the level of a serious disfigurement, it must
be more significant in nature and of the kind that a reasonable person would find distressing or objectionable.
Compare Anderson v. Commonwealth, 352 S.W.3d 577,
582 (Ky. 2011) (evidence was insufficient to establish
that defendant, by cutting victim’s face along jawbone
with straight razor, inflicted serious physical injury on
victim to support conviction of assault in first degree, as evidence showed only that victim sustained cut to jaw,
with no proof as to severity of blood loss, laceration was repaired and victim was sent home from hospital on same
day, and there was no proof of any additional treatment,
State v. Harold B.
and, even though scar on victim’s face constituted disfigurement, it was not of sufficient severity to support finding of serious physical injury), People v. Harris, 186 App. Div. 3d 907, 911–12, 127 N.Y.S.3d 655 (2020) (evidence
was insufficient to demonstrate that two facial scars
sustained by victim constituted serious physical injury to support defendant’s conviction of assault in first degree; although victim sustained laceration to cheek that was
four centimeters long and similarly sized laceration
transversing tip of victim’s nose to his right nostril,
both of which were sutured by plastic surgeon, record
was imprecise as to extent and nature of any resulting
scars, state did not make contemporaneous record of what
jury observed when victim displayed scars to jury, and,
“despite their prominent locations, there [was] no indication that the relatively small facial lacerations produced jagged, uneven or ‘unusually disturbing’ scars”), appeal
denied, 36 N.Y.3d 1120, 169 N.E.3d 577, 146 N.Y.S.3d
219 (2021), People v. Trombley, 97 App. Div. 3d 903,
903–904, 947 N.Y.S.2d 686 (2012) (although victim
sustained two scars on his face from assault, with larger
one being one inch in length and located under victim’s
lower lip, “given their relatively small size, location and appearance, [court could not] conclude that they [were]
‘objectively “distressing or objectionable” ’ ” and, thus, evidence was legally insufficient to establish that victim sustained serious physical injury to support conviction
of assault in second degree), People v. Rosado, 88 App.
Div. 3d 454, 454–55, 930 N.Y.S.2d 10 (2011) (evidence of
broken nose that had to be surgically repaired and three
chipped teeth did not qualify as serious and protracted
disfigurement, and “indentation” in victim’s nose following surgery, while qualifying as disfigurement, did
not constitute serious disfigurement, which “requires
something more, and is established only upon proof that
‘a reasonable observer would find [the injured person’s]
altered appearance distressing or objectionable’ ”), appeal denied, 18 N.Y.3d 928, 965 N.E.2d 969, 942 N.Y.S.2d
467 (2012), and McCoy v. State, 932 S.W.2d 720, 724
(Tex. App. 1996) (evidence was insufficient to establish
State v. Harold B.
serious bodily injury when victim had “ ‘lasting and permanent’ ” scar on mouth that was barely visible), with
State v. Greene, 182 Ariz. 576, 578, 898 P.2d 954 (1995)
(victim suffered “serious and permanent disfigurement”
when record indicated that she suffered open nasal fracture, whereby top part of her nose had separated at bridge causing quarter-inch hole, she suffered severe bruising
and swelling below her left eye, her bruises and black eyes took three to four months to heal, and appearance of her
nose was “ ‘completely changed,’ ” as she had “ ‘lumps all down [her] nose,’ including what one physician described
as ‘a sharp bump,’ ” along with two scars on her nose),
People v. Harwood, 183 App. Div. 3d 1281, 1281–83,
121 N.Y.S.3d 500 (2020) (in light of evidence showing
that victim “sustained ‘two significant lacerations to her anterior neck,’ which were [three to four] and [five to six] centimeters long, respectively, with soft tissue defects
and exposure of underlying subcutaneous fat,” which
“required at least [ten] sutures to close” and “resulted
in permanent scars,” grand jury reasonably could have
inferred that “scars would ‘make the victim’s appearance distressing or objectionable to a reasonable person
observing her,’ ” and, thus, evidence before grand jury
was sufficient to demonstrate that victim suffered serious disfigurement), People v. Reitz, 125 App. Div. 3d
1425, 1425–26, 3 N.Y.S.3d 228 (evidence showing that
victim sustained wound to cheek that was four inches
long and left permanent scar in prominent location was
sufficient to establish serious physical injury and serious disfigurement), appeal denied, 26 N.Y.3d 934, 38 N.E.3d
843, 17 N.Y.S.3d 97 (2015), State v. Drew, 302 Or. App.
232, 248, 460 P.3d 1032 (2020) (wound to victim’s face
and scalp that was “large, highly visible . . . four to six inches in length and half an inch wide, with five staples
in it, and . . . readily apparent to others, [was] the type of disfigurement that the legislature intended to qualify
as ‘serious’ under” statute governing assault in second
degree, as “ ‘a reasonable observer would find [the victim’s] altered appearance distressing or objectionable’ ”), review denied, 368 Or. 560, 494 P.3d 933 (2021), State v.
State v. Harold B.
Clark, 974 A.2d 558, 573 (R.I. 2009) (evidence showing
that victim suffered bleeding head wounds that required
eight staples to close and resulted in permanent scars was sufficient to establish that victim sustained serious permanent disfigurement), and Porter v. State, Docket No.
08-24-00393-CR, 2026 WL 1639229, *14–16 (Tex. App.
June 5, 2026) (victim sustained serious bodily injury
when evidence showed she had been hit in face, causing
her to lose consciousness, awoke with swollen face and
in pain and pool of blood, underwent surgery and spent
three days in hospital recovering, sustained broken nose
and orbital plate in her face had been shattered, requiring its replacement with metal plate, needed twenty-three
to twenty-four stitches down bridge of her nose, and
sustained scar that ran length of her face), petition for
discretionary review filed July 6, 2026.
Our conclusion today is, in no way, meant to minimize
the assault and resulting injuries that M endured. To sustain a conviction of assault in the second degree, however, the law requires more than a physical injury resulting in
a small scar that is otherwise unremarkable. See Porter
v. State, supra, 2026 WL 1639229, *15 (“[s]maller,
less visible scars are generally considered insufficient
to constitute serious bodily injury”). In this case, the
state has failed to prove beyond a reasonable doubt that
the defendant committed assault in the second degree
by inflicting serious physical injury on M in the form
of a serious disfigurement. Therefore, the defendant’s
conviction of assault in the second degree cannot stand.16
B
The defendant next claims that the state failed to
present sufficient evidence to demonstrate that he acted
with the specific intent to inflict serious physical injury on M. Specifically, the defendant claims that “the record
is bereft of any evidence that [he] specifically intended
to cause [M] serious physical injury.”17 He asserts that
16
We address the appropriate remedy in part III of this opinion. 17
In support of his claim, the defendant contends that the state presented insufficient evidence of his intent to cause serious physical injury
State v. Harold B.
the evidence, instead, shows only that he and M “were
engaged in [a] conflict [that] became physical . . . [and] not that [he] intended to cause [M] serious physical injury.”
He also contends that, even if the evidence is sufficient
to show that he intended to cause M “physical injury,”
“there was no evidence presented that he intended to
cause her serious physical injury as required by statute.” (Emphasis in original.) We do not agree.
At the outset, we note that, although our conclusion
in part I A of this opinion concerning the insufficiency of the evidence to establish the element of serious physical
injury is dispositive with respect to the defendant’s conviction of assault in the second degree, which ordinarily
to M because the prosecutor, in her closing argument, “urged the jury to find evidence of [the defendant’s] intent to cause serious physical injury based on” testimony from Rollins in response to a hypothetical question posed by the prosecutor, which defense counsel argued was not relevant to the case, and that, in the absence of the state’s misplaced reliance on Rollins’ testimony in response to the irrelevant hypothetical, there was no evidence demonstrating an intent on the defendant’s part to cause serious physical injury to M. The prosecutor asked Rollins the following hypothetical on direct examination: “Assuming that there’s an individual five foot eight, two hundred pounds, assume there’s another individual approximately five foot one and half the weight. Assume that these facts are evidence and, based on your training and experience, assume that the individual who is five foot eight punched the individual who is five foot one in the forehead and she fell to the ground [and] gets back up. Assume that she gets punched again in the forehead, falls back—falls down and gets back up. Assume that there’s a third punch to the forehead, [she] falls down and now feels a warm sensation and there’s a laceration on her face. Would you have concerns, in your training and experience, regarding significant head injuries?” Defense counsel objected to the hypothetical on the ground that it called for speculation. The court overruled the objection and permitted Rollins to answer, and he answered in the affirmative.
In his appellate brief, the defendant acknowledges that “[t]he impropriety of this expert testimony is not raised as an independent claim of error on appeal due to the lack of preservation.” Accordingly, we do not address the propriety of the hypothetical or whether the court erred in admitting Rollins’ response to the hypothetical, which appears to relate more to the issue of the nature of M’s injuries rather than to any intent on the defendant’s part. Regardless, we need not address the hypothetical in our analysis because we conclude that the record contains sufficient other evidence demonstrating the defendant’s intent to inflict serious physical injury on M.
State v. Harold B.
would obviate the need to address whether there also was
sufficient evidence to demonstrate that the defendant
had the requisite intent to inflict serious physical injury on M, we nevertheless address the defendant’s sufficiency
of the evidence claim concerning the intent element of
the assault in the second degree charge, as our resolution of this issue will impact our determination of the
appropriate remedy for our reversal of the defendant’s
conviction of assault in the second degree.18
We next set forth the relevant legal principles that
guide our resolution of this claim. As we stated previously in this opinion, to convict the defendant of assault in the second degree, the state had to prove beyond a reasonable doubt, inter alia, that the defendant intended to
cause serious physical injury to M. See General Statutes § 53a-60 (a). “Assault in the second degree under § 53a-60
(a) (1) is a specific intent, rather than a general intent, crime. State v. 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. . . . State v. Andrews, 114 Conn.
App. 738, 744–45, 971 A.2d 63, cert. denied, 293 Conn.
901, 975 A.2d 1277 (2009).” (Internal quotation marks
18
See part III of this opinion.
State v. Harold B.
omitted.) State v. Pjura, 200 Conn. App. 802, 808–809,
240 A.3d 772, cert. denied, 335 Conn. 977, 241 A.3d
131 (2020); see also State v. Leveille, supra, 232 Conn.
App. 693.
“Regarding the intent requirement, an individual acts
intentionally with respect to a result or to conduct . . . when his conscious objective is to cause such result or to engage in such conduct . . . . Intent may be, and usually is, inferred from [a] defendant’s verbal or physical conduct
[as well as] the surrounding circumstances. . . . Nonetheless, [t]here is no distinction between circumstantial and direct evidence so far as probative force is concerned. . . . Moreover, [i]t is not one fact, but the cumulative impact
of a multitude of facts which establishes guilt in a case
involving substantial circumstantial evidence. . . .
Finally, we underscore that intent [can] be formed instantaneously and [does] not require any specific period of
time for thought or premeditation for its formation. . . . Intent is a question of fact, the determination of which
should stand unless the conclusion drawn by the trier is
an unreasonable one.” (Internal quotation marks omitted.) State v. Antwon B., 236 Conn. App. 428, 442–43,
348 A.3d 814 (2025), cert. denied, 354 Conn. 910, 349
A.3d 1094 (2026).
Our Supreme Court has stated: “Our courts previously
have held that evidence of a defendant’s anger or rage
toward a victim . . . supported the jury’s finding that a
defendant intended to inflict serious physical injury on
the victim. See, e.g., State v. Perugini, [supra, 153 Conn. App. 782–83] (evidence of intent was sufficient to support defendant’s conviction of assault in second degree
when record reflected that defendant ‘“wasn’t happy” ’
about victim’s statements to defendant’s fiancée, sped
to bar where victim was working, threw beer bottle at
wall near victim, slammed victim into table, punched and
choked victim, hit victim with mop handle, and left without summoning medical assistance) . . . State v. Aviles,
107 Conn. App. 209, 218–19, 944 A.2d 994 (evidence of
intent was sufficient to support defendant’s conviction
State v. Harold B.
of murder when record reflected that defendant was
angry at victim for taking his money and refusing to
give him marijuana, and for swearing at defendant’s
girlfriend and slamming door in her face), cert. denied,
287 Conn. 922, 951 A.2d 570 (2008); State v. Corona,
69 Conn. App. 267, 269, 277–79, 794 A.2d 565 (evidence of intent was sufficient to support defendant’s
conviction of manslaughter in first degree when record
reflected that defendant was angry at victim for telling
defendant’s girlfriend to ‘shut up,’ was initial aggressor, approached victim in threatening manner with his hands
in fists, knocked victim to ground, kicked and punched
victim, and subsequently renewed attack while victim
was unsteady on his feet and not making any effort to
struggle or resist attack), cert. denied, 260 Conn. 935,
802 A.2d 88 (2002).
“In every such case, it is the role of the jury to determine whether the state has proven beyond a reasonable
doubt that the defendant . . . intended to . . . cause serious or deadly physical injury to the victim. Our only task on
appeal is to determine whether, on the basis of the record before us, the jury reasonably could have found as it did.” State v. Fisher, supra, 342 Conn. 252–53.
We conclude, on the basis of the evidence presented and
the reasonable inferences that could be drawn therefrom;
see State v. Antwon B., supra, 236 Conn. App. 446 (“ ‘[i]t is within the province of the jury to draw reasonable and
logical inferences from the facts proven’ ”); that the jury reasonably could have found that the defendant intended
to cause M serious physical injury when he punched her
three times in the forehead. The record shows that the
defendant expressed anger and rage toward M. According to M’s testimony, which the jury was free to credit;
see id. (jury was free to credit victim’s testimony); see
also State v. Fisher, supra, 342 Conn. 251 (it is exclusive province of jury to make determinations of credibility
and to credit all, some or none of witness’ testimony);
she had gotten into an argument with the defendant
the night before the incident at issue, which caused the
State v. Harold B.
defendant to be agitated, and he became even further
aggravated the next morning when he and M got into
another argument concerning his failure to help make
something to eat for M’s youngest daughter, as evidenced
by his telling M that she was lazy and to “shut up,” and
then dousing M with water. When M told the defendant
to leave, he “blew out into a full rage,” after which he
grabbed a knife to try to cut a microwave that he had
bought for M and, thereafter, proceeded to break a wok
that he had bought and throw plants and other things to
the floor in an effort to destroy anything he had bought
for M. He also grabbed M from behind and choked her
while in the kitchen. After the two went to the bedroom,
the defendant cornered M against her closet door, tried
to bite her finger when she told him that he had to leave, and then punched her in the forehead three times, causing M to fall to the ground multiple times. See State v.
Pjura, supra, 200 Conn. App. 809–10 (“the jury reasonably could have found that the act of punching the victim directly and with great force in the head is strongly
corroborative of an intention to cause serious physical
injury”). This evidence, when viewed cumulatively and
in the light most favorable to sustaining the verdict,
provided a sufficient basis from which the jury reasonably could have inferred that the defendant had acted
with the specific intent to cause serious physical injury
to M. See State v. Miller, 229 Conn. App. 435, 456–57,
327 A.3d 448 (2024), cert. denied, 351 Conn. 909, 330
A.3d 880 (2025); see also State v. Leveille, supra, 232
Conn. App. 694.
Nor are we persuaded by the defendant’s argument
that the evidence, at best, shows only an intent to cause
physical injury, not serious physical injury. As we stated in part I A of this opinion, for purposes of § 53a-60 (a)
(1), “ ‘[s]erious 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). In State v.
Pjura, supra, 200 Conn. App. 809–10, this court held
State v. Harold B.
that “the jury reasonably could have found that the act
of punching the victim directly and with great force
in the head is strongly corroborative of an intention
to cause serious physical injury.” In the present case,
such a finding was even more compelling given that the
defendant had punched M in the forehead three times.
Moreover, the defendant has not directed this court to
any authority that would support a contrary finding.
His claim, therefore, is unavailing.
For these reasons, the defendant’s claim that the evidence was insufficient for the jury reasonably to find
that he intended to cause M serious physical injury fails.
II
Next, the defendant claims that the evidence was insufficient to support his conviction of unlawful restraint in the first degree because the state failed to prove that he intended to restrain M. We disagree.
The following additional facts are relevant to the
unlawful restraint charge. At trial, M testified that
the defendant “grabb[ed] me from behind and chok[ed]
me from behind . . . .” M elaborated, stating that, “[i]t
turned physical almost right away because, after I specifically told him to leave, that’s when he tried to grab
the knife. He grabbed a knife, and I was telling him don’t do this in front of my daughter, and then that’s when
he started . . . shoving me. And, when [E] came out to
tell him to stop, he grabbed me from behind to show her
. . . she was basically helpless, she couldn’t help.” When asked to describe how the defendant grabbed her from
behind, M testified that, “[h]e basically—I could recall
just like a quick swift, like this, and I was trying to . . . hold his arm up, like, away from . . . my neck so there
won’t be so much pressure on my neck.” At that time,
the defendant was yelling at E, “saying, what you gonna
do . . . trying to antagonize her . . . .” M testified that it was “difficult” to breathe while the defendant held her in what the prosecutor referred to as a “chokehold.” She testified that she was able to get away from the defendant’s
State v. Harold B.
hold on her only after he let go to push E. M also stated
that the defendant “was trying to prove to [E] that she
couldn’t do anything [to help M].”
We next set forth the relevant legal principles governing our resolution of this claim. Under § 53a-95 (a),
“[a] person is guilty of unlawful restraint in the first
degree when he restrains another person under circumstances which expose such other person to a substantial
risk of physical injury.” General Statutes § 53a-95 (a).
“ ‘Restrain’ means to restrict a person’s movements
intentionally and unlawfully in such a manner as to
interfere substantially with his liberty by moving him
from one place to another, or by confining him either in
the place where the restriction commences or in a place
to which he has been moved, without consent.”19 General
Statutes § 53a-91 (1).
“Unlawful restraint in the first degree is a specific
intent crime. . . . A jury cannot find a defendant guilty
19
In the present case, the trial court charged the jury that, to find the defendant guilty of unlawful restraint in the first degree, “the state [had to] prove the following elements beyond a reasonable doubt: Element number one, intent to restrain. The first element is that the defendant specifically intended to restrain [M]. A person acts intentionally with respect to a result when his conscious objective is to cause such result. Please refer to my prior instructions regarding specific intent and evidence of intent.
“Element two, restrained another person. The second element is that the defendant restrained [M] by confining her in some place in such a manner as to interfere substantially with her liberty. There is no requirement that the confinement last any specific period of time. There need not be any movement at all. The person could be confined by preventing her from leaving a place where she was. The state alleges that the defendant restrained [M] by allegedly holding her with his arm around her neck.
“Element three, without consent. The third element is that [M] did not consent to the restraint. Consent must have been actual and not simply acquiescence brought about by force, fear, shock, or deception. The act must have been truly voluntary. Consent may be express or you may find that it is implied from the circumstances that you find existed. Whether there was consent is a question of fact for you to determine. The defendant has no burden to prove consent. The state must prove the lack of consent.
“Element four, substantial risk of physical injury. The fourth element is that the restraint exposed the person to a substantial risk of physical
State v. Harold B.
of unlawful restraint unless it first [finds] that he . . . restricted the victim’s movements with the intent to
interfere substantially with her liberty. . . . [A] restraint is unlawful if, and only if, a defendant’s conscious objective in . . . confining the victim is to achieve that prohibited result, namely, to restrict the victim’s movements
in such a manner as to interfere substantially with his
or her liberty. . . . To convict a defendant of unlawful
restraint in the first degree, no actual physical harm
must be demonstrated; the state need only prove that
the defendant exposed the victim to a substantial risk
of physical injury.” (Citation omitted; internal quotation marks omitted.) State v. Morlo M., 206 Conn. App.
660, 678, 261 A.3d 68, cert. denied, 339 Conn. 910, 261
A.3d 745 (2021).
As we have indicated, “[b]ecause direct evidence of
an accused’s state of mind typically is not available, his intent often must be inferred from his conduct, other
circumstantial evidence and rational inferences that
may be drawn therefrom. . . . For example, intent may be
inferred from the events leading up to, and immediately
following, the conduct in question . . . the accused’s physical acts and the general surrounding circumstances. . . .
[W]hen a jury evaluates evidence of a defendant’s intent,
it properly rel[ies] on its common sense, experience and
knowledge of human nature in drawing inferences and
reaching conclusions of fact.” (Internal quotation marks
omitted.) State v. Williams, 172 Conn. App. 820, 828,
162 A.3d 84, cert. denied, 326 Conn. 913, 173 A.3d 389
injury. Physical injury is defined as impairment of physical condition or pain. A substantial risk of physical injury means considerable risk of physical injury. Actual injury need not be proved.
“In summary, the state must prove beyond a reasonable doubt that [the defendant], one, specifically intended to restrain [M], two, restrained [M] by placing his arm around her neck, three, without her consent, and four, under circumstances that exposed her to a substantial risk of physical injury. If you unanimously find that the state has proved beyond a reasonable doubt each of the elements of the crime of unlawful restraint in the first degree, then you shall find [the defendant] guilty. On the other hand, if you unanimously find that the state has failed to prove beyond a reasonable doubt any of the elements, you shall then find [the defendant] not guilty.”
State v. Harold B.
(2017); see also State v. Rice, 167 Conn. App. 615, 621,
142 A.3d 1267 (“[a]n accused’s own words . . . constitute
particularly compelling, direct evidence of his intent”
(internal quotation marks omitted)), cert. denied, 323
Conn. 932, 150 A.3d 232 (2016).
On appeal, the defendant challenges only the intent
element of the unlawful restraint charge.20 He contends
that, assuming he “placed [M] in a ‘chokehold,’ the state
. . . failed to establish that his specific intent in doing so was . . . ‘to interfere substantially with her liberty . . . .’ ” (Emphasis omitted.) The defendant further asserts that,
because he “exercised his constitutional right not to
testify, [M] was the only witness who presented the jury
with her recitation of events” and that “[t]he dispositive question before this court is whether [M’s] testimony
provided the jury with a reasonable basis on which it
could conclude” that he acted with the requisite intent
for purposes of the unlawful restraint charge.21 We conclude that M’s testimony, when construed in a light most
favorable to sustaining the jury’s verdict, provided a sufficient basis from which the jury reasonably could have
found beyond a reasonable doubt that the defendant had
restricted M’s movements with the intent to interfere
substantially with her liberty. See State v. Williams,
supra, 172 Conn. App. 830.
20
We note that the defendant’s briefing on this claim is confusing, as it vacillates between focusing on the intent element only and asserting that the evidence was insufficient to establish all of the “essential elements,” plural, of the crime beyond a reasonable doubt. Because the defendant’s briefing on the claim is bereft of legal analysis or argument, beyond those bare assertions, concerning other elements of the crime such as restraint and exposure to a substantial risk of physical injury, and because the defendant makes multiple assertions that the intent element has not been satisfied, we construe his claim as challenging the intent element only. To the extent the defendant challenges any of the other elements of unlawful restraint in the first degree; see footnote 19 of this opinion; we deem any such challenge abandoned due to inadequate briefing. See, e.g., State v. Antwon B., supra, 236 Conn. App. 449 n.14 (claims not briefed are deemed abandoned).
21
We note that the defendant’s briefing on this claim is scant and primarily includes conclusory assertions that the state failed to prove the element of intent to support his conviction of unlawful restraint in the first degree.
State v. Harold B.
M’s testimony, which the jury was free to credit, establishes that the defendant “grabbed [her] from behind”
and held his arm tightly around her neck, making it difficult for her to breathe. While doing so, the defendant
taunted E about the fact that she could not do anything
to help M while he had his arm about M’s neck, which
prevented M from being able to move freely. M testified
that it was “difficult” to breathe as the defendant held her in that position and that she was not able to move freely
until “he let go to push [her] daughter.” On the basis of
this testimony, the jury reasonably could have inferred
from the defendant’s conduct and words that he had
restrained M with the conscious objective to restrict her
movements in such a manner as to interfere substantially
with her liberty. See, e.g., State v. Morlo M., supra,
206 Conn. App. 679 (“the jury reasonably could have
found that the defendant evinced an intent to restrict
the victim’s liberty, namely, her liberty to move freely
within the house,” when he “seized [the victim] by her
hair and dragged her down into the basement, where he
proceeded to beat her”); State v. Fredrik H., 197 Conn.
App. 213, 220, 231 A.3d 371 (2020) (jury reasonably
could have found that defendant specifically intended
to substantially interfere with victim’s liberty when he
held victim down on bed by her neck as she “was ‘flailing’ to try to free herself”), cert. denied, 338 Conn. 906, 258 A.3d 1279 (2021); State v. Rice, supra, 167 Conn.
App. 621–22 (jury could have inferred from defendant’s
conduct in blocking victim’s egress from public restroom
that he intended to cause confinement of victim, who he
believed had stolen his bag).
Accordingly, construing the evidence in the light most
favorable to sustaining the verdict, we conclude that the
jury reasonably could have found beyond a reasonable
doubt that the defendant specifically intended to restrain M. Accordingly, the defendant’s claim challenging the
sufficiency of the evidence relating to his conviction of
unlawful restraint in the first degree fails.
State v. Harold B.
III
Finally, in light of our determination that the evidence
was legally insufficient to establish that the defendant
had caused M to suffer a serious physical injury in the
form of a serious disfigurement, we must address the
appropriate remedy for our reversal of the defendant’s
conviction of assault in the second degree. The state
argues that, in the event this court finds insufficient
evidence on the element of serious physical injury for
the charge of assault in the second degree, this court
should reverse the judgment in part and remand the
case with direction to render a judgment of conviction
of attempt to commit assault in the second degree. We
agree with the state.22
At the outset, we note that the court instructed the
jury that, if it “unanimously found the defendant not
guilty of the crime of assault in the second degree, [it
should] consider the offense of attempted assault in the
second degree,”23 and it provided instructions concerning the elements of attempt to commit assault in the
second degree,24 namely, that, for the defendant to be
found guilty of that crime, the jury had to find beyond a
22
The defendant did not file a reply brief addressing the state’s argument regarding the offense of attempt to commit assault in the second degree, and his principal appellate brief lacks any discussion of this issue and merely asserts summarily that this court should vacate his conviction of assault in the second degree and order “such other relief as this court deems equitable and just.”
23
See General Statutes § 54-60 (“[w]henever any indictment, information or complaint is pending before any court, a conviction may be had for any offense sufficiently alleged therein or for an attempt to commit such offense, and the accused may be convicted or such court may accept a plea of guilty for any of such offenses”); Practice Book § 42-29 (“[t]he defendant, if found not guilty of the offense charged, may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein, if the attempt is an offense”).
24
General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”
State v. Harold B.
reasonable doubt that he had the intent to cause serious
physical injury as required for the crime of assault in
the second degree and that he intentionally engaged in
conduct “constituting a substantial step in a course of
conduct planned to culminate in his commission of the
crime of assault in the second degree.”25
In this case, the jury found the defendant guilty of
assault in the second degree. Even though we have found
insufficient evidence with respect to the element of serious physical injury to sustain that conviction, the verdict necessarily includes a determination that, in the
absence of serious physical injury, all of the elements
of attempt to commit assault in the second degree had
been proven.26 See State v. Haywood, 109 Conn. App.
460, 466, 952 A.2d 84 (“because the jury unanimously
found the defendant guilty of a completed robbery, it
necessarily found him guilty of attempt to commit robbery”), cert. denied, 289 Conn. 928, 958 A.2d 161 (2008).
Under these circumstances, the appropriate remedy is
to remand the case to the trial court with direction to
25
The trial court also instructed the jury with respect to the lesser offense of assault in the third degree, stating: “If you have unanimously found the defendant not guilty of the crime of assault in the second degree and not guilty of attempted assault in the second degree, you shall then consider the lesser offense of assault in the third degree. Do not consider the lesser offense unless and until you have unanimously acquitted the defendant of the greater offense of assault in the second degree.”
26
We note that, in part I B of this opinion, we determined that the evidence was sufficient to demonstrate that the defendant had intended to cause serious physical injury to M. Moreover, “[t]he standard for the substantial step element of criminal attempt focuse[s] on what the actor has already done and not what remains to be done. . . . The substantial step must be at least the start of a line of conduct which will lead naturally to the commission of a crime.” (Internal quotation marks omitted.) State v. Juarez, 179 Conn. App. 588, 600, 180 A.3d 1015 (2018), cert. denied, 331 Conn. 910, 203 A.3d 1245 (2019). “An attempt is complete and punishable . . . when an act is done with intent to commit the crime . . . whether the purpose fails by reason of interruption . . . or for other extrinsic cause.” (Internal quotation marks omitted.) State v. Andrews, supra, 114 Conn. App. 747. When the jury found that the defendant had committed assault in the second degree, it necessarily determined that he had completed a substantial step in the commission of the crime.
State v. Harold B.
modify the judgment to reflect a conviction of attempt
to commit assault in the second degree and to resentence
the defendant in accordance with that conviction. See
id. (because jury, which unanimously found defendant
guilty of completed robbery, necessarily found him guilty
of attempt to commit robbery, “[w]e . . . conclude that the defendant’s conviction of robbery in the first degree as
an accessory should be reversed and the case remanded
to the trial court with direction to modify the judgment
to reflect a conviction of attempt to commit robbery
in the first degree as an accessory, and to resentence
the defendant in accordance with that conviction”); see
also State v. Carpenter, 214 Conn. 77, 85, 570 A.2d 203
(1990) (although evidence was insufficient to prove that
defendant had specific intent to cause victim’s death to
support murder conviction, remand for new trial was not
necessary, as trial court had instructed jury regarding
elements of manslaughter in first degree and, “[b]ecause
the jury’s verdict necessarily include[d] a determination
that, absent a specific intent, all the elements of [manslaughter in the first degree] ha[d] been proven beyond a
reasonable doubt, the defendant would not be prejudiced
by a modification of the judgment to reflect a conviction
of that charge”); see generally State v. Greene, 274 Conn. 134, 162, 174, 874 A.2d 750 (2005), cert. denied, 548
U.S. 926, 126 S. Ct. 2981, 165 L. Ed. 2d 988 (2006).
The judgment is reversed as to the conviction of assault
in the second degree and the case is remanded with direction to modify the judgment to reflect a conviction of
attempt to commit assault in the second degree and to
resentence the defendant in accordance with that conviction; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.