author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. SHARON PATTERSON
    (AC 31597)
    DiPentima, C. J., and Beach and Schaller, Js.

      Argued May 26
    officially released August 30, 2011

      Mary Beattie Schairer, special public defender, for the appellant (defendant).

      Michele C. Lukban, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael A. Pepper, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Sharon Patterson, appeals from the judgment of conviction, following a trial to the court, of one count of criminally negligent homicide in violation of General Statutes § 53a-58, two counts of risk of injury to a child in violation of General Statutes § 53-21 and two counts of cruelty to persons in violation of General Statutes § 53-20. The defendant claims that because of her mental disability there was insufficient evidence to support her conviction of (1) criminally negligent homicide, (2) cruelty to persons and (3) risk of injury to a child under the “situation prong” of § 53-21 (a) (l). She also claims (4) that there was insufficient evidence to support her conviction of risk of injury to a child under the “act prong” of § 53-21 (a) (1) because her use of hot sauce to discipline the victim did not constitute an “act likely to impair the health” of the victim. We agree that there is insufficient evidence to support a conviction under the act prong of our risk of injury statute, but disagree in all other respects. Accordingly, we affirm in part and reverse in part the judgment of the trial court.

The court found or reasonably could have found from the evidence presented the following facts. The victim, a two year old boy, was placed in the care of the defendant by his mother on February 18, 2008. On that date, the victim was in good health.

Shortly thereafter, the defendant began to restrict the victim’s access to fluids in order to correct certain behavioral problems. Specifically, the defendant did not allow the victim to consume liquids after 8 p.m. in order to prevent him from wetting the bed. The defendant also prevented the victim from consuming liquids at other times in order to encourage him to consume solid food. As a result of such restrictions, the defendant gave the victim little or nothing to drink from the morning of February 22, 2008, to the morning of February 26, 2008.

Moreover, at some point during the victim’s stay, the defendant attempted to discourage him from drinking out of cups belonging to other people. In order to accomplish this, the defendant placed a small amount of hot sauce in a cup and left it on the kitchen table. The victim consumed hot sauce from a cup on at least one occasion.

In the days immediately preceding his death, the victim began to exhibit numerous symptoms of dehydration. He had dry, cracked lips, a sunken face and a diminished appetite. He also had lost a significant amount of weight. On the morning of February 26,2008, the defendant discovered that the victim was not breathing. Shortly thereafter, the defendant contacted emergency personnel by telephone. During this call, the defendant stated that the victim was “dehydrated.” The deputy chief medical examiner later confirmed that the child had died due to insufficient fluid intake.

The defendant possesses an IQ of 61. This score places her within the bottom one half of 1 percent of the population. Due to this cognitive disability, the defendant did not know that withholding liquids could cause the victim to die. The defendant did, however, generally understand that depriving someone of fluids can cause dehydration. Additional facts will be set forth as necessary.

The state charged the defendant with one count of manslaughter in the first degree pursuant to General Statutes § 53a-55, two counts of risk of injury to a child and two counts of cruelty to persons. The trial court found the defendant not guilty of manslaughter in the first degree and of the lesser included offense of manslaughter in the second degree in violation of General Statutes § 53a-56. The trial court, however, convicted the defendant of the lesser included offense of criminally negligent homicide, two counts of risk of injury to a child and two counts of cruelty to persons. The court imposed a total effective sentence of ten years incarceration, suspended after five years, with five years probation. This appeal followed.

We begin our analysis by setting forth the standard of review that governs our resolution of the present case. “Appellate analysis of [a sufficiency of the evidence claim] requires us to undertake a well defined, twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the . . . verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the [finder of fact] could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Monahan, 125 Conn. App. 113, 118-19, 7 A.3d 404 (2010), cert. denied, 299 Conn. 926, 11 A.3d 152 (2011).

To the extent that the defendant calls upon this court to determine the precise mental state required for conviction of various statutory offenses, we are presented with an issue of statutory interpretation, over which our review is plenary. See State v. Gonzalez, 300 Conn. 490, 499, 15 A.3d 1049 (2011).

I

The defendant claims that her diminished mental capacity prevented her from forming the mental state associated with criminally negligent homicide and, consequently, that there is insufficient evidence to support her conviction on that charge. We disagree.

Section 53a-58 (a) provides in relevant part: “A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person . . . .” General Statutes § 53a-3 (14) provides: “A person acts with ‘criminal negligence’ with respect to a result or to a circumstance described by a statute defining an offense when [she] fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation

A failure to perceive the risks created by one’s actions distinguishes criminal negligence from the more culpable mental state of recklessness. General Statutes § 53a-3 (13) provides: “A person acts ‘recklessly’ with respect to a result or to a circumstance described by a statute defining an offense when [she] is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation . . . .” Consequently, in order for a defendant to possess the mental state of recklessness, he or she must be aware of the risk created. A defendant need not, however, possess such knowledge to be convicted of criminal negligence. Section 53a-3 (14) requires simply that the defendant fail “to perceive a substantial and unjustifiable risk . . . .”

These two statutory definitions, however, are similar in that they both require a gross deviation from the standard of conduct that a reasonable person would observe in the situation. See State v. Salz, 26 Conn. App. 448, 455, 602 A.2d 594 (1992), aff'd, 226 Conn. 20, 627 A.2d 862 (1993). Although it is undoubtedly true that conviction of a crime containing the mental state of criminal negligence requires proof of a more substantial deviation from this standard than necessary to establish civil negligence; State v. Ortiz, 29 Conn. App. 825, 833, 618 A.2d 547 (1993); the standard remains inherently objective in nature. Consequently, the “[peculiarities of a given individual, such as intelligence, experience, and physical capabilities, are irrelevant in determining criminal negligence, since the standard is one of the reasonably prudent person.” 40 C.J.S. 524, Homicide § 136 (2006).

The defendant argues that the factual finding made by the trial court pertaining to recklessness within the context of manslaughter in the first and second degrees also precludes conviction on the charge of criminally negligent homicide. Specifically, the defendant draws our attention to the following statement made by the trial court: “The reason I don’t think the state proved recklessness is because I don’t think the state proved beyond a reasonable doubt that the defendant was aware of—consciously aware of the fact that by withholding liquids from this child, that the child could become dehydrated and die. I don’t think, due to her cognitive disabilities, she was aware of that, and that’s an element of [manslaughter in the first and second degrees].” According to the defendant, this finding implies that she was cognitively unable to perceive the risks created by her actions. Absent this ability, the defendant argues, she cannot be found guilty of criminally negligent homicide.

Even if we were to agree that this statement necessarily implies that the defendant was incapable of perceiving the risk of death created by her actions, as we have just explained, we cannot consider the defendant’s diminished mental capacity in the context of criminally negligent homicide because we employ an objective standard. Construing, as we must, the evidence presented previously in the light most favorable to sustaining the court’s finding of guilt, a reasonable finder of fact could have concluded that the defendant failed to perceive a substantial and unjustifiable risk and that this failure constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. On the basis of the facts so construed, the defendant’s conviction of criminally negligent homicide is supported by sufficient evidence.

II

The defendant next claims that a conviction of cruelty to persons pursuant to § 53-20 (a) (1) and (b) (1) requires proof of specific intent and that, in light of her cognitive disability, there was insufficient evidence contained within the record to support her conviction under that statute. We disagree.

Section 53-20 provides in relevant part: “(a) (1) Any person who intentionally tortures, torments or cruelly or unlawfully punishes another person or intentionally deprives another person of necessary food, clothing, shelter or proper physical care shall be fined not more than five thousand dollars or imprisoned not more than five years or both. . . . (b) (1) Any person who, having the control and custody of any child under the age of nineteen years, in any capacity whatsoever, intentionally maltreats, tortures, overworks or cruelly or unlawfully punishes such child or intentionally deprives such child of necessary food, clothing or shelter shall be fined not more than five thousand dollars or imprisoned not more than five years or both.” Section 53a-3 (11), in turn, provides: “A person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct . . . .”

“In deciding whether a criminal statute requires general or specific intent, our Supreme Court regularly has invoked the following distinction. When the elements of a crime consist of a description of a particular act and a mental element not specific in nature, the only issue is whether the defendant intended to do the proscribed act. If he did so intend, he has the requisite general intent for culpability. When the elements of a crime include a defendant’s intent to achieve some result additional to the act, the additional language distinguishes the crime from those of general intent and makes it one requiring a specific intent.” (Emphasis in original; internal quotation marks omitted.) State v. Nixon, 32 Conn. App. 224, 249, 630 A.2d 74 (1993), aff'd, 231 Conn. 545, 651 A.2d 1264 (1995).

Section 53-20 (a) (1) and (b) (1) each proscribe a series of particular acts. These statutory provisions do not, on their face, make reference to a defendant’s intent to achieve some resxxlt additional to the acts proscribed. Consequently, conviction under § 53-20 (a) (1) and (b) (1) requires proof of general intent. The evidence contained within the record indicates that the defendant intentionally withheld fluids from the victim in order to prevent him from wetting the bed and to encourage him to eat more diiring meals. The court’s conclusion that the defendant possessed the mental state required for conviction pursuant to § 53-20 (a) (1) and (b) (1) is therefore supported by sxxfficient evidence.

Ill

The defendant next claims that, in light of her diminished mental capacity, there was insufficient evidence that she possessed the mental state required for a conviction of risk of injury to a child under the situation prong of § 53-21 (a) (1). We disagree.

Section 53-21 (a) provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired . . . shall be guilty of a class C felony . . . .”

“In order to establish the crime of risk of injury to a child under the situation prong of § 53-21 (a) (1), the state must prove that the defendant wilfully or unlawfully caused or permitted a child under the age of sixteen years to be placed in a situation where the life or limb of the child was endangered, the health of the child was likely to be injured, or the morals of the child were likely to be impaired. Conduct is wilful when done purposefully and with knowledge of [its] likely consequences. ... A defendant’s failure to act when under a duty to do so, which causes a dangerous situation to exist or continue, may be sufficient to support a conviction under § 53-21 (a) (1).” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Na’im B., 288 Conn. 290, 297, 952 A.2d 755 (2008).

“Specific intent is not a necessary requirement of [§ 53-21]. Rather, the intent to do some act coupled with a reckless disregard of the consequences ... of that act is sufficient to [establish] a violation of the statute.” (Internal quotation marks omitted.) State v. Sorabella, 277 Conn. 155, 173, 891 A.2d 897, cert. denied, 549 U.S. 821, 127 S. Ct. 131, 166 L. Ed. 2d 36 (2006). In order to be found guilty of risk of injury to a child, the defendant must have been aware of and consciously disregarded a substantial and unjustifiable risk that withholding liquids could cause the victim harm. General Statutes § 53a-3 (13).

The court’s conclusion that the defendant possessed the mental state necessary for conviction under § 53-21 is supported by the evidence contained within the record. The defendant, on the morning of the victim’s death, observed the victim’s body and correctly indicated to emergency personnel that the child was dehydrated. From this, the court reasonably could have concluded that the defendant understood the causal relationship between depriving the victim of liquids and the physiological condition known as dehydration that he suffered as a result. The defendant’s decision to deprive the victim of fluids for four days, in light of her understanding that dehydration could result, demonstrates a reckless disregard for the possibility that the victim might be harmed by her actions. Consequently, the defendant’s conviction under the situation prong of § 53-21 (a) (1) is supported by sufficient evidence.

IV

Finally, the defendant argues that the evidence presented at trial was insufficient to support the trial court’s conclusion that giving “a few drops” of hot sauce to the victim was likely to impair his health and, therefore, her conviction of risk of injury to a child under the act prong of § 53-21 (a) (1) should be reversed. We agree.

The court found or reasonably could have found from the evidence presented at trial the following additional facts relevant to our analysis. On at least one occasion, the defendant placed hot sauce in a cup and left it on the kitchen table in order to discourage the victim from drinking out of cups belonging to other people. Later, the victim picked up the cup and drank “a few drops” of hot sauce from it. At trial, the victim’s pediatrician, Lisa Visscher, testified: “If a child continually tries to drink something that is hot and painful, he or she will learn not to drink the thing that is painful to them . . . .” From these facts, the court expressly found that “giving a child of the age of twenty-three months, of those tender years, hot sauce to [drink] would constitute blatant physical abuse.”

Section 53-21 (a) provides in relevant part: “Any person who (1) . . . does any act likely to impair the health or morals of any such child . . . shall be guilty of a class C felony. ...” Under the act prong of our risk of injury statute “[t]he four elements the [fact finder] needed to find to return a verdict of guilty are: (1) the victim was less than sixteen years old; (2) the defendant committed an act upon the victim; (3) the act was likely to be injurious to the victim’s health . . . and (4) the defendant had the general intent to commit the act upon the victim.” (Emphasis added.) State v. March, 39 Conn. App. 267, 275, 664 A.2d 1157, cert. denied, 235 Conn. 930, 667 A.2d 801 (1995).

“The relevant inquiry is whether the defendant committed any act that was likely to endanger the life or limb, or impair the health, of the [victim], not whether the [victim] actually [was] injured. Lack of an actual injury to either the physical health or morals of the victim is irrelevant . . . actual injury is not an element of the offense.” (Internal quotation marks omitted.) State v. Davila, 75 Conn. App. 432, 437, 816 A.2d 673, cert. denied, 264 Conn. 909, 826 A.2d 180 (2003), cert. denied, 543 U.S. 897, 125 S. Ct. 92, 160 L. Ed. 2d 166 (2004).

The state argues that “in all probability, the victim would have been injured because he would have felt pain or would have suffered impairment to breathing, swallowing or blurry vision in reaction to ingesting the hot sauce.” Our review of the record reveals that the state presented no evidence indicating that the victim suffered, or was likely to suffer, these consequences. The victim’s pediatrician testified as to what she believed the victim’s reaction to drinking something “hot and painful” would be. She did not testify that a few drops of hot sauce would have been likely to cause the victim pain. The state argues, however, that such effects may be inferred from the inherently spicy nature of hot sauce. We are not persuaded.

In State v. Padua, 273 Conn. 138, 869 A.2d 192 (2005), the defendants were convicted of violating § 53-21 for packaging marijuana next to boxes of food in a communal dining area when two young children were present. In upholding the conviction, the court stated that finders of fact “are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) Id., 157. After a detailed analysis of laws criminalizing the possession and distribution of marijuana and depictions of marijuana consumption contained in various media sources, the court concluded that “it was reasonable for the jury to infer, on the basis of its own common knowledge and experience, that the ingestion of raw marijuana would likely be harmful to the health of a child.” Id.

The present case is distinguishable from Padua by the nature and the amount of the substance provided to the child. Unlike marijuana and other drugs, hot sauce is not a controlled substance. Indeed, it is often consumed in small amounts as a condiment on foods with no ill effect. Although it is possible that forcing a child to consume a larger volume of hot sauce could constitute a violation of § 53-21, the evidence presented at trial indicates only that the victim consumed “a few drops.” Although a reasonable finder of fact could infer from his or her own observations and experience that hot sauce is spicy, and therefore inherently unpalatable to many individuals, one cannot assume that a small quantity is likely to result in injury absent additional evidence. Accordingly, there is insufficient evidence to support the defendant’s conviction under the act prong of § 53-21 (a) (1).

The judgment is reversed only as to the second count of risk of injury to a child and the case is remanded to the trial court with direction to render judgment of acquittal on that charge and for resentencing. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       “[W]e long have recognized that subdivision (1) of § 53-21 [(a)] prohibits two different types of behavior: (1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the [child’s] moral or physical welfare . . . and (2) acts directly perpetrated on the person of the [child] and injurious to his [or her] moral or physical well-being. . . . Thus, the first part of § 53-21 [(a) (1)] prohibits the creation of situations detrimental to a child’s welfare, while the second part proscribes injurious acts directly perpetrated on the child.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Gewily, 280 Conn. 660, 668, 911 A.2d 293 (2006). We distinguish these separate provisions by using the terms “situation prong” and “act prong.” See State v. Aziegbemi, 111 Conn. App. 259, 267, 959 A.2d 1, cert. denied, 290 Conn. 901, 962 A.2d 128 (2008).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       On at least three occasions, the victim’s mother agreed to extend the victim’s stay with the defendant. These extensions occurred on February 18,19, and 21,2008. Each of these extensions occurred pursuant to a request or at the express invitation of the defendant.

       The trial court heard testimony relating to one incident in which the defendant’s brother had given the victim something to drink, but the defendant took it away. According to the defendant’s brother, “she wasn’t going to give him nothing to drink until he ate his food.”

       The deputy chief medical examiner testified at trial that there was “no evidence of natural disease, chronic or acute, that would have caused dehydration” and concluded that the child’s death was caused by improper care.

       The trial court merged the two counts alleging cruelty to persons and sentenced the defendant as follows: one year imprisonment on the charge of criminally negligent homicide; ten years imprisonment, suspended after five, with five years probation on the first count of risk of injury to a child; one year imprisonment on the second count of risk of injury to a child; and three years imprisonment for cruelty to persons.

       In State v. Salz, supra, 26 Conn. App. 455, this court noted that the second prong of § 53a-3 (13), “incorporates an objective element by defining a ‘substantial and unjustifiable risk’ to ‘be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.’ ” The definition of criminal negligence utilizes the same standard when it states that “[t]he risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation . . . .” General Statutes § 53a-3 (14).

       The defendant’s reliance on State v. Burge, 195 Conn. 232, 487 A.2d 532 (1985), is misplaced. In that case, our Supreme Court concluded that evidence pertaining to mental capacity is relevant to show the absence of recklessness. Id., 240-41. This holding represents an expansion of State v. Hines, 187 Conn. 199, 445 A.2d 314 (1982), in which the Supreme Court held that similar evidence was admissible to show an absence of specific intent. Id., 204. Both Burge and Hines may, however, be distinguished from the present case in that the definition of “criminal negligence,” unlike the definitions of “intentionally,” “knowingly” and “recklessly,” does not require the defendant to be subjectively aware of the existence of a substantial and upjustifiable risk. General Statutes § 53a-3 (11) through (14).

       This conclusion also forecloses the defendant’s alternative argument that conviction pursuant to § 53-20 (a) (1) and (b) (1) requires evidence that the defendant possessed a “general intent” to deprive the victim of necessary food. General intent requires only that the proscribed act taken by the defendant be volitional in nature. State v. Charles, 78 Conn. App. 125, 131, 826 A.2d 1172 (“[gjeneral intent is the term used to define the requisite mens rea for a crime that has no stated mens rea; the term refers to whether a defendant intended deliberate, conscious or purposeful action, as opposed to causing a prohibited result through accident, mistake, carelessness, or absent-mindedness” [internal quotation marks omitted]), cert. denied, 266 Conn. 908, 832 A.2d 73 (2003).

       In a single paragraph, the defendant appears to argue that § 53-20 is unconstitutionally vague when applied to the facts of the present case. This paragraph is, however, devoid of citations to relevant principles of law and application of those principles to § 53-20. To the extent that this argument presents a separate claim, we decline to afford it review. See State v. Claudio C., 125 Conn. App. 588, 600, 11 A.3d 1086 (2010) (“[W]e are not required to review claims that are inadequately briefed. . . . We consistently have held that [ajnalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [F]or this court judiciously and efficiently to consider claims of error raised on appeal ... the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited. . . . [Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” [Internal quotation marks omitted.]), cert. denied, 300 Conn. 910, 12 A.3d 1005 (2011).

       Risk of injury also requires proof of general intent. State v. Sorabella, supra, 277 Conn. 172-73. This requires evidence that the defendant committed a volitional act. See State v. Charles, 78 Conn. App. 125, 131, 826 A.2d 1172, cert. denied, 266 Conn. 908, 832 A.2d 73 (2003). The evidence contained within the record indicates that the defendant intentionally withheld liquids from the victim in order to prevent him from wetting the bed and to encourage him to eat more during meals. Consequently, this element has been met.

       This is logically consistent with the court’s conclusion that the defendant lacked the mental state of recklessness in relation to the charges of manslaughter in the first and second degrees. Although the defendant has demonstrated the ability to understand that withholding fluids from the victim could cause him to become dehydrated, this conclusion does not necessarily compel a finding that the defendant was aware of the risk that dehydration could cause the victim to die.

       It is important to note at the outset of this inquiry that the state did not pursue conviction on this count under a theory that the hot sauce contributed to the victim’s dehydration. Indeed, the prosecutor clearly stated to the court: “I’m not saying that the cause of death was related to the hot sauce. I’m saying that giving a child hot sauce ... is an act which constitutes risk of injury for a [twenty-three month old child].”

       It is unclear how many times this sequence of events occurred. Although the defendant indicated to the police that it happened twice, the court found that it occurred “on at least one occasion.”

       See State v. March, supra, 39 Conn. App. 267 (giving four year old child cup containing nun violates § 53-21).

       This conclusion is consistent with our ruling in State v. Winot, 95 Conn. App. 332, 897 A.2d 115 (2006), rev’d in part on other grounds, 294 Conn. 753, 988 A.2d 188 (2010). In that case, the defendant forcibly took a child by her arm and attempted to pull her toward his car. Id., 336. The defendant was convicted of violating § 53-21. On appeal to this court, the state urged us to uphold the defendant’s conviction under a theory that the defendant’s “conduct was culpable because it created a cognizable risk that the victim would be hit by traffic in the street.” Id., 361. We disagreed, stating: “The only evidence before the jury regarding traffic . . . was the victim’s testimony on direct examination that, when the defendant let go of her arm and ran back to his car, ‘he almost got hit by a lady in a maroon car.’ The state failed to present any other evidence regarding the flow of traffic ... in general or on the night of [the incident], or the victim’s proximity to such traffic if it existed.” Id., 361-62. Although we noted that “[jjurors are expected to bring their common sense and common experience to the deliberation process,” we concluded “that the victim’s statement alone, viewed in the light most favorable to the prosecution could not permit a rational trier of fact to conclude, without resorting to speculation and coryecture, that the defendant’s conduct was likely to jeopardize the victim’s physical health.” Id., 362.


source: Caselaw Access Project

author: ESPINOSA, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. GARY WILLIAM STOCKING
    (AC 31902)
    Gruendel, Espinosa and Lavery, Js.

      Argued May 19
    officially released August 30, 2011

      Daniel J. Foster, special public defender, for the appellant (defendant).

      Melissa Patterson, assistant state’s attorney, with whom, on the brief, were Timothy J. Liston, state’s attorney, and Maureen Platt Temchin, senior assistant state’s attorney, for the appellee (state).
   Opinion

ESPINOSA, J.

The defendant, Gary William Stocking, appeals from the judgment of conviction rendered by the trial court, following his guilty plea under the Alford doctrine, for possession of child pornography in the second degree in violation of General Statutes § 53a-196e (a). The defendant claims that the court improperly denied his motion to withdraw his guilty plea. We affirm the judgment of the trial court.

The record reflects the following relevant procedural history. On July 28,2009, the defendant appeared before the court and pleaded guilty under the Alford doctrine to one count of possession of child pornography in the second degree. The prosecutor set forth the factual basis for the plea, which may be summarized as follows. On April 24,2008, Middletown police officers responded to a domestic dispute complaint at a residential address. Upon their arrival at the scene, the police learned that the defendant had physically assaulted his elderly stepfather, was armed and dangerous, and had barricaded himself in a bedroom.

After a one-half hour standoff, the police apprehended the defendant. The police entered the residence and, specifically, the defendant’s bedroom, where they observed child pornography, in plain view, in the form of photographic images of very young nude children. Based on their observations in the bedroom, the police also had a reason to suspect that, during the standoff, the defendant had attempted to destroy or hide computer equipment. After the police took the defendant into custody, he voluntarily told police that he had been in an argument with his stepfather. Additionally, the defendant told the police that he had a sexual interest in children and that, although he had not had sexual contact with a child, he believed that such contact should be lawful. He opined that the images of children in his possession were not pornographic in nature, but were art. The police applied for and obtained a search warrant for the residence. The search yielded photographic images of children in the nude or posed in sexually provocative ways, as well as photographic storage devices, such as DVDs, CDs and floppy discs, all of which contained digital images of a similar nature.

The prosecutor represented that, in exchange for the defendant’s guilty plea, the state would enter a nolle prosequi with regard to any pending charges against the defendant related to the domestic dispute with his stepfather, that there would not be a federal prosecution related to the defendant’s possession of child pornography and that the state would recommend a sentence of ten years incarceration, execution suspended after four years, followed by five years of probation on the possession of child pornography charge. The recommended sentence included mandatory sex offender registration as well as mandatory sex offender evaluation and treatment.

After the court conducted a lengthy canvass of the defendant concerning the nature of his plea, the court found that the plea was “voluntary, understandably made, with the assistance of competent counsel.” The court found that there was a factual basis for the plea, accepted the plea and made a finding of guilt.

On November 24, 2009, prior to the sentencing hearing, the defendant filed a motion for permission to withdraw his guilty plea. The defendant asserted that he was dissatisfied with the representation afforded him by his attorney, James McKay, and that McKay had pressured him into entering his guilty plea. He also claimed that the police entry into his home following his arrest was illegal and that the images of children seized by the police were the fruit of police illegality. The defendant argued that McKay failed to apprise him of the legal issues relevant to his case, that McKay “deceived him into pleading guilty” and that his guilty plea was made without the effective assistance of counsel.

The court conducted an evidentiary hearing on the defendant’s motion on December 10, 2009, and issued an oral ruling denying the motion. The court found that prior to the plea, McKay discussed with the defendant issues related to the legality of the police search and seizure. However, while the court briefly identified issues related to the legality of the search and seizure, it did not resolve those constitutional issues. Rather, the court focused on the defendant’s responses to its canvass at the time of the plea. The court emphasized the fact that the defendant, at the time of the plea, stated that he understood that in accepting the plea agreement, he was giving up his right to present defenses. The court noted that the defendant bargained for a favorable sentence in that he was to be sentenced on only one count, that he had been exposed to a five year mandatory minimum sentence and that he would not face prosecution by the federal government. The court stated that, at the time of his plea, the defendant represented that he was satisfied with McKay’s advice and that nobody had forced or threatened him to plead guilty. On the basis of its review of the record and the evidence, the court concluded that the defendant, exercising “his own free choice,” decided to forgo his right to raise a viable defense on search and seizure grounds in exchange for the certainty of a lesser punishment. The court concluded that the favorable plea agreement was not the result of ineffective assistance of counsel and that it would not permit the defendant to withdraw the plea based upon his mere dissatisfaction with his earlier, voluntary decision to accept the plea agreement offered by the state. This appeal followed. By way of an articulation, dated July 23, 2010, the court found that McKay had not rendered ineffective assistance, that there had been adequate time for the defendant to make a decision concerning the state’s plea agreement and that McKay had not exerted any improper pressure on the defendant.

Before turning to the merits of the defendant’s claim, we set forth our standard of review. “A . . . plea, once accepted, may be withdrawn only with the permission of the court. . . . The court is required to permit the withdrawal of a guilty plea upon proof of any ground set forth in Practice Book § [39-27]. . . . Whether such proof is made is a question for the court in its sound discretion, and a denial of permission to withdraw is reversible only if that discretion has been abused. . . . The burden is always on the defendant to show a plausible reason for the withdrawal of a plea of guilty.” (Internal quotation marks omitted.) State v. Turner, 91 Conn. App. 17, 21, 879 A.2d 471, cert. denied, 276 Conn. 910, 886 A.2d 424 (2005). Practice Book § 39-27 provides in relevant part: “The grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance are as follows ... (4) The plea resulted from the denial of effective assistance of counsel . . . .”

Generally, ineffective assistance of counsel claims are not properly raised in a direct appeal, but, rather, by a petition for a new trial or a writ of habeas corpus, which provide an opportunity for the trial court to conduct an evidentiary hearing related to the claim of ineffective assistance. See, e.g., State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480 (“a claim of ineffective assistance of counsel is more properly pursued on a petition for new trial or on a petition for a writ of habeas corpus rather than on direct appeal” [internal quotation marks omitted]), cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91L. Ed. 2d 550 (1986). Practice Book § 39-27 “provides an exception to that general rule when ineffective assistance of counsel results in a guilty plea. A defendant must satisfy two requirements ... to prevail on a claim that his guilty plea resulted from ineffective assistance of counsel. . . . First, he must prove that the assistance was not within the range of competence displayed by lawyers with ordinary training and skill in criminal law .... Second, there must exist such an interrelationship between the ineffective assistance of counsel and the guilty plea that it can be said that the plea was not voluntary and intelligent because of the ineffective assistance.” (Internal quotation marks omitted.) State v. Gray, 63 Conn. App. 151, 161-62, 772 A.2d 747, cert. denied, 256 Conn. 934, 776 A.2d 1151 (2001).

The gist of the defendant’s argument is that McKay was ineffective in that he failed to adequately research the issue of whether the images seized from the defendant’s bedroom were the fruit of police illegality and that he failed to advise the defendant that there was “a very strong likelihood that all of the evidence of the crime to which [he] pled guilty would have been suppressed.” The defendant argues that McKay’s failure to accurately advise him of his favorable chances of prevailing on a motion to suppress the images seized from his bedroom rendered his plea unknowing and involuntary, and that “if [he] had been advised that literally all of the evidence against him would likely be suppressed, he would not have pled guilty.”

The evidence presented at the hearing on the motion to withdraw the plea amply supports the court’s finding that on numerous occasions McKay advised the defendant that he had the right to challenge the legality of the search of his bedroom. Although the defendant claims that McKay was deficient in failing to advise him that there was a “very strong likelihood” that the trial court would have suppressed this evidence, the evidence and the court’s findings make clear that the defendant was well aware that a motion to suppress the evidence would have been pursued by McKay, had the defendant elected to proceed to trial.

In denying the defendant’s motion to withdraw the plea, the court properly focused on the fact that the plea bargain accepted by the defendant did not merely cover the possession of child pornography charge, but all of the charges related to his criminal conduct on April 24, 2008. For his possession of images of nude children in electronic format, the defendant had been charged with possession of child pornography in the first degree, a felony offense that carried a penalty of up to twenty years incarceration. See General Statutes §§ 53a-196d and 53a-35a. He was charged with several criminal offenses related to his domestic dispute with his stepfather, offenses that subjected him to an additional ten year term of incarceration. The prosecutor represented, as part of the plea bargain, that the defendant would not be subject to federal prosecution on child pornography charges and that, if federal prosecutors pursued the matter, the state would agree to the defendant’s withdrawal of the plea. Additionally, there was evidence that the defendant had rejected an earlier plea offer from the state that would have subjected him to a greater sentence of twelve years incarceration, suspended after five years, followed by five years of probation.

Thus, the record amply supports the finding that the defendant, having rejected an earlier plea offer, received the benefit of a reduced term of incarceration in return for his guilty plea. He agreed to a significantly lesser term of incarceration than that to which he was exposed by virtue of the charges against him. The plea agreement included a representation by the state that federal charges would not be pursued, a representation that significantly lessened the likelihood that the defendant would be exposed to multiple prosecutions for the same offense. Moreover, the record reflects that the defendant was well aware that in exchange for a favorable sentence, he was forgoing the right to pursue defenses to the charges pending against him.

In denying the motion to withdraw, the court placed a great deal of emphasis on the defendant’s responses to inquiries at the time he entered his plea. Specifically, the court emphasized the defendant’s representations that he was not rushed into entering the plea, that he was satisfied with the advice given him by McKay and that he recognized that he was not merely giving up his right to proceed to trial, but to present any types of defenses to the charges pending against him.

The court’s exercise of discretion in denying the motion to withdraw the plea rested upon its finding that the defendant knowingly, intelligently and voluntarily decided, at the time that he entered the plea, “to cut his losses” and accept a favorable offer from the state. The court reasonably determined that the defendant’s motion was not premised on a showing that McKay had forced him to accept an unfavorable plea agreement, but was premised on his subjective belief that he had a stronger argument in favor of suppressing evidence seized from his bedroom than he realized at the time that he entered his plea. In examining the court’s exercise of discretion, we are mindful that “[i]n general, abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors.” (Internal quotation marks omitted.) State v. Jacobson, 283 Conn. 618, 627, 930 A.2d 628 (2007). The court logically considered the relevant facts and reasonably concluded that the defendant’s change of heart, based on his subjective view of the suppression issue months after he entered his plea, was not a sufficient basis on which to grant the motion. On the basis of all of the circumstances apparent in the record, we conclude that the court’s ruling reflected a sound exercise of discretion. Accordingly, we reject the defendant’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       “Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), a criminal defendant is not required to admit his guilt . . . but consents to being punished as if he were guilty to avoid the risk of proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless.” (internal quotation marks omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 558 n.2, 941 A.2d 248 (2008).

       At a hearing on September 22, 2009, the defendant’s attorney, James McKay, informed the court that the defendant was requesting the appointment of a different attorney and that he wanted to withdraw his plea. Subsequently, on October 20, 2009, the court appointed attorney William Paetzold to represent the defendant in connection with his motion to withdraw his plea.

       The court subsequently signed a transcript of its ruling, thereby complying with Practice Book § 64-1.

       The court stated that, in its consideration of the motion for permission to withdraw the plea, it had not conducted an evidentiary hearing with regard to the search and seizure issues. Nonetheless, the court credited the testimony of McKay that, had the case proceeded to trial, he would have filed and litigated motions to suppress evidence.

       In his principal brief, the defendant divides his claim into two distinct claims; first, whether he received ineffective assistance and, second, whether the court improperly denied his motion to withdraw on the basis of ineffective assistance. We do not view these claims as separate and distinct, but intertwined in our analysis of whether the court properly denied the motion to withdraw and, thus, we shall analyze the claims as one claim.


text:
    ALISON BARLOW v. COMMISSIONER OF CORRECTION
    (AC 31861)
    Gruendel, Bear and Schaller, Js.

      Argued May 24
    officially released August 30, 2011

      Naomi Fetterman, with whom, on the brief, was Aaron J. Romano, for the appellant (petitioner).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, former

      state’s attorney, and John J. Davenport, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

SCHALLER, J.

The petitioner, Alison Barlow, appeals following the habeas court’s denial of his petition for certification to appeal from the judgment denying his second amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion when it denied his petition for certification to appeal and improperly rejected his claim that his appellate counsel had provided ineffective assistance. More specifically, the petitioner argues that his appellate counsel’s performance was deficient because she failed to raise claims that the trial court improperly instructed the jury (1) by giving an incorrect definition of intent and (2) by failing to include the necessary elements of the charged criminal offenses. We dismiss the appeal.

The following facts and procedural history are relevant to the resolution of the petitioner’s appeal. On January 9, 1997, the petitioner and two acquaintances rented a Geo Tracker vehicle and drove to a grocery store on Willow Street in Waterbury, where the petitioner intended to retaliate against several unidentified persons who had attempted to kill him. Shortly thereafter, two people, Joel Mercado and Naomi Williams, were wounded and hospitalized as a result of gunshots fired from the Geo Tracker. During a search of the area, detectives found thirteen shell casings; ten were .22 caliber, and three were ten millimeter. The police investigation led them to the residence of Demetrice Chapman, the mother of the petitioner’s daughter. While interviewing Chapman, two officers encountered the petitioner and arrested him on charges unrelated to the present appeal. After obtaining a search warrant, the police searched his Thunderbird and recovered a ten millimeter Colt pistol with its serial number obliterated. They subsequently determined that three ten millimeter shell casings found at the crime scene were from that pistol. The petitioner was charged with offenses related to the shooting.

In 1998, following a jury trial, the petitioner was convicted of attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a, conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a, two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and alteration of a firearm identification number in violation of General Statutes § 29-36. The court sentenced the petitioner to a prison term of thirty-five years. The petitioner, represented by attorney Lori Welch-Rubin, unsuccessfully appealed his conviction. See State v. Barlow, 70 Conn. App. 232, 797 A.2d 605, cert. denied, 261 Conn. 929, 806 A.2d 1067 (2002).

On September 14,2009, the petitioner filed his second amended petition for a writ of habeas corpus, alleging the ineffective assistance of Welch-Rubin. After trial, the habeas court issued a memorandum of decision on December 7, 2009, denying the petition for a writ of habeas corpus. The habeas court concluded that the petitioner had failed to establish either deficient performance or prejudice with respect to his counsel’s decision not to raise any claims with respect to the trial court’s jury instructions. On December 18, 2009, the habeas court denied his petition for certification to appeal.

“We begin by setting forth the applicable standard of review. Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . .

“We examine the petitioner’s underlying claim of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Earl G. v. Commissioner of Correction, 106 Conn. App. 758, 760-61, 943 A.2d 1118, cert. denied, 288 Conn. 901, 952 A.2d 809 (2008).

“In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel's performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense.” (Internal quotation marks omitted.) McClam v. Commissioner of Correction, 98 Conn. App. 432, 436, 909 A.2d 72 (2006), cert. denied, 281 Conn. 907, 916 A.2d 49 (2007). “A reviewing court need not address both components of the inquiry if the [petitioner] makes an insufficient showing on one.” (Internal quotation marks omitted.) Smith v. Commissioner of Correction, 89 Conn. App. 134, 139, 871 A.2d 1103, cert. denied, 275 Conn. 909, 882 A.2d 676 (2005).

With this standard in mind, we review the petitioner’s first claim that Welch-Rubin’s performance was deficient because she failed to raise, as an issue in his direct appeal, the trial court’s improper jury instruction with respect to intent. The record reflects that the trial court initially charged the jury on both specific and general intent. Because the charged offenses were all specific intent crimes, the petitioner claims that the court’s reading of the entire statutory definition of intent, which included language applicable only to general intent crimes, was improper and confused the jury. He argues that he “likely [would] have received a reversal of his conviction or a new trial” if Welch-Rubin had raised this issue in his direct appeal.

After reciting applicable case law, the habeas court noted that it had reviewed all of the jury instructions. According to the habeas court, the trial court had read the improper instruction to the jury once as part of a general definition of intent and then referred back to the improper instruction once during the remainder of the charge. It also determined, however, that the trial court had given the proper instruction on specific intent numerous times when instructing the jury as to the elements of each charged offense. Furthermore, when the trial court referred back to the improper instruction, it had instructed the jury properly on the requisite specific intent for the assault charges immediately before and immediately after that reference. Given the foregoing, the habeas court determined: “[I]t is not reasonably possible that the jury disregarded the proper instructions given by the trial court on the specific intent required for the crimes charged because of its improper recitation of the intent to ‘engage in conduct’ language in its general definition of intent and its single reference thereto later in its charge.” Accordingly, the habeas court concluded that Welch-Rubin’s performance was not deficient in failing to raise that claim and that the petitioner did not demonstrate prejudice because he had failed to show that he would have succeeded on his direct appeal if the jury instructions had been challenged.

Our review of the record supports the habeas court’s determinations. The case was tried on the theory that the petitioner had the specific intent required for conviction of the crimes of attempted murder, conspiracy to commit murder and first degree assault. The information, which was read to the jury, alleged that he had the requisite specific intent in the commission of the charged offenses. The petitioner’s defense was not that he fired the pistol inadvertently but that he had not been present at the time of the shooting. We agree with the habeas court’s statement that “it is unlikely that the jury was misled” when the jury instructions are read in their entirety. For the reasons articulated by the habeas court, we reject the petitioner’s first claim.

The petitioner’s next claim is that Welch-Rubin’s performance was deficient because she failed to raise, as an issue in his direct appeal, the trial court’s failure to include in its jury instructions the necessary elements of the crimes of attempted murder and conspiracy to commit murder. Specifically, he claims that the trial court omitted an essential element from the charge by failing to identify the victims by name, and he cites State v. DeJesus, 92 Conn. App. 92, 883 A.2d 813 (2005), appeal dismissed, 282 Conn. 783, 928 A.2d 533 (2007), in support of his argument.

The petitioner was charged with participating in a “drive-by” shooting. With respect to the attempted murder charge, the information alleged that the petitioner “intentionally engaged in conduct, which, under the circumstances as he believed them to be, was a substantial step in the course of conduct planned to culminate in the death of another person, to wit: the shooting of pedestrians from a moving motor vehicle.” With respect to the charge of conspiracy to commit murder, the information alleged that the petitioner “with the intent [that] the crime of murder be performed . . . agreed with one or more persons to engage in and cause the performance of such conduct, and one of them commit[ed] the overt act in pursuance of such conspiracy, to wit: the shooting of pedestrians from a motor vehicle.”

After distinguishing the factual circumstances in DeJesus, the habeas court concluded that the charges of attempted murder and conspiracy to commit murder were appropriate because “the focus of the gun assault was on unknown pedestrians. The attack was not for the puipose of targeting named individuals. . . . Unlike . . . DeJesus, in the present case, the state did not charge the petitioner with conspiring and attempting to kill a certain person. Therefore, it is not likely that the jury was misled by the trial court’s failure to name a specific victim of the attempt to commit murder and conspiracy to commit murder charges while naming a specific victim for each of the assault in the first degree charges, as the jury could have found that the petitioner conspired and intended to murder either Williams or Mercado or anyone else that was present on Willow Street at the time of the offense.” (Citation omitted; emphasis in original.) The habeas court also concluded that the petitioner failed to prove any prejudice from the alleged deficient performance of appellate counsel. Our review reveals that the record clearly supports the determinations of the habeas court.

For the reasons set forth previously, we conclude that the petitioner has not demonstrated that the issues raised with regard to the court’s denial of his petition for a writ of habeas corpus are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserved encouragement to proceed further. See Simms v. Warden, supra, 230 Conn. 616. Accordingly, the habeas court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       In determining whether a petitioner has satisfied the prejudice prong in cases involving claims of ineffective assistance of appellate counsel, the question is whether there is a reasonable probability that but for the error of counsel, the petitioner would have prevailed on his appeal. Small v. Commissioner of Correction, 286 Conn. 707, 717-28, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008).

       The trial court’s initial instruction to the jury provided in relevant part: “All of the five counts today essentially have the element of intent. These are not accidental things that are done. Let me tell you what intent is, and this will apply to all five charges, five counts. Intent relates to the condition of the mind of a person who commits the act, his purpose in doing it. As defined by our statute, a person 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." (Emphasis added.) The court read the entire statutory definition of intent contained in General Statutes § 53a-3 (11), including the language “to engage in such conduct,” even though that portion of the statute is inapplicable to a specific intent crime. See State v. Prioleau, 235 Conn. 274, 321-22, 664 A.2d 743 (1995); State v. DeBarros, 58 Conn. App. 673, 682-84, 755 A.2d 303, cert. denied, 254 Conn. 931, 761 A.2d 756 (2000). “It has become axiomatic, through decisional law, that it is improper for a court to refer in its instruction to the entire definitional language of § 53a-3 (11), including the intent to engage in conduct, when the charge relates to a crime requiring only the intent to cause a specific result.” (Internal quotation marks omitted.) State v. Broum, 97 Conn. App. 837, 848, 907 A.2d 118, cert. denied, 280 Conn. 944, 912 A.2d 477 (2006).

       “Our standard of review with regard to claims of instructional error is well established. [I]ndividual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that ii\justice is not done to either party under the established rules of law. . . . [T]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Where . . . the challenged jury [instruction involves] a constitutional right, the applicable standard of review is whether there is a reasonable possibility that the jury was misled in reaching its verdict.” (Internal quotation marks omitted.) State v. Weaving, 125 Conn. App. 41, 51-52, 6 A.3d 203 (2010), cert. denied, 299 Conn. 929, 12 A.3d 569 (2011).

       The petitioner’s reliance on State v. DeBarros, 58 Conn. App. 673, 755 A.2d 303, cert. denied, 254 Conn. 931, 761 A.2d 756 (2000), is misplaced. In DeBarros, the trial court’s references to the principle of general intent were “too numerous to be rectified by the court’s proper instructions”; id., 683; and its charge indicated that general intent was an element of the crime rather than merely “part of [the] general definition of intent.” Id. DeBarros, therefore, is readily distinguishable from the present case for the reasons discussed.

       Williams and Mercado were identified as the victims in the counts that charged assault in the first degree.