author: SPALLONE, J.

text:
    STATE OF CONNECTICUT v. ANDREA JACKSON
    (AC 18439)
    Landau, Mihalakos and Spallone, Js.
    Argued November 1, 1999
    officially released January 4, 2000

      Francis A. Miniter, with whom were Brian D. Smith and, on the brief, Daniel S. Fabricant, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Mark S. Solak, state’s attorney, and Debra Hughes, deputy assistant state’s attorney, for the appellee (state).
   Opinion

SPALLONE, J.

The defendant, Andrea Jackson, appeals from the judgment of conviction, following a jury trial, of the crime of stalking in the third degree in violation of General Statutes § 53a-181e. On appeal, the defendant claims that the trial court improperly (1) failed to determine that General Statutes §§ SSa-lSld and 53a-181e are unconstitutionally vague and over-broad on their face and as applied to the defendant’s conduct, (2) failed to determine that there was insufficient evidence to support the defendant’s conviction for the offense of stalking in the third degree, (3) gave a “Chip Smith” charge when it instructed the jury on the elements of stalking in the third degree, (4) failed to instruct the jury adequately as to the element of the crime requiring that the defendant’s actions be repeated and (5) failed to determine that the prosecutor committed prejudicial misconduct during the state’s closing argument. We affirm the judgment of the trial court.

The defendant was charged in three separate informations with four counts of stalking in the second degree. The jury returned verdicts of not guilty of those charges and a verdict of guilty of the lesser included offense of stalking in the third degree on one information.

On the basis of the evidence adduced at trial, the jury reasonably could have found the following facts. In 1996, Richard Warner, the victim, was employed as an anesthesiologist at Day Kimball Hospital in Putnam. The victim was married and had two children. The defendant was one of his patients at the hospital, who suffered from chronic Lyme disease, and the victim provided the defendant with pain management treatment. The victim considered his relationship with the defendant to be, at all times, professional and that of physician-patient.

Nonetheless, certain instances caused the victim to feel uncomfortable when he was around the defendant. The defendant began to call the victim “Rich” or “Richard” rather than “Dr. Warner” or simply “doctor,” as did all of his other patients. On one occasion, the victim discovered that a rose had been put on his wife’s car when he arrived to watch his son’s karate lessons. His concern was heightened approximately one week later when roses were delivered to him at the hospital with an unsigned card that had a “smiling face” and simply stated, “guess who?”

At about the same time, the victim began to receive strange telephone calls at his office. For example, when the telephone rang and the victim picked up the receiver, he would hear the sound of a “raspberry” followed by the telephone being hung up. On other occasions, music would be played over the telephone with lyrics such as “doctor my eyes” and “love train” and, certainly more disconcerting, “we’ll be together forever or else” and “every step you take, every move you make, I’ll be watching you.” Eventually, the defendant admitted to Barbara Chubbuck, the victim’s office coordinator, that she was making the telephone calls.

As a result, the victim terminated his physician-patient relationship with the defendant. The situation, however, intensified. The telephone calls to his office, characterized by the sound of a raspberry followed by a hang up, escalated, occurring almost daily. On one occasion, the victim took his wife and two children to a restaurant in Putnam. While there, one of the restaurant employees announced that there was an emergency telephone call from the hospital for the victim. When the victim picked up the telephone, he heard a raspberry followed by laughing and a hang up. The victim and his family immediately left the restaurant, and, as they did, the victim’s wife observed the defendant’s car departing from a donut shop across the street.

Similar telephone calls were made repeatedly to the victim’s home telephone. When the victim’s wife answered the telephone, she heard silence or a raspberry. The victim’s wife sometimes received these telephone calls several times a week and at other times several times a day.

The defendant’s harassment of the victim also occurred in writing. One night, the victim’s wife obseived the defendant following her to a health club known as the “Healthy Lady.” A few days later, on Healthy Lady stationery, the victim’s wife received an unsigned letter stating: “Debbie, I have wanted to tell you so many times at the fitness center that Richard is fooling around on you. I did not know how to say it but I felt that you should know. I feel that it is important due to the risk of HIV AIDS. I wish to remain anonymous because I don’t want to lose my job over this. I hope that you can understand I’m only trying to help you. Often when he works late he has gone out with her. He turns his name light out and the two of them take off in her car. You deserve better. You’re a great girl. Take care of yourself and those three children.”

The victim also received a number of letters from the defendant. In one of the letters, signed by the defendant, she asked the victim to stop making the inference that the calls he was receiving in his office originated from her. In another letter, this one unsigned, the defendant warned the victim that his wife was watching the parking lot at the hospital to see if he was leaving with someone else. This letter further stated, “we think you’re great and don’t want to get you into any trouble at home so just be careful.” In a third letter, the defendant again warned the victim that his wife was watching the parking lot of the hospital late at night. The defendant also sent a letter to Charles Schneider, the president of the hospital, alleging improper conduct on the part of the victim. A copy of this letter was also put in the mailboxes of at least two of the victim’s neighbors. Finally, the defendant sent the victim a letter, stating in part, “Dr. Warner, I’m writing you a note of apology. I felt this was necessary in order to clear my conscience. First of all I am sorry for the flowers. I meant nothing other than kindness and appreciation. I chose not to sign my name and was going to let you know as soon as I saw you that they were from me. I didn’t want anyone creating a problem over it.”

During the trial, the victim described three incidents that occurred between June 10 and June 17, 1996, that formed the basis of the defendant’s conviction for stalking in the third degree. The first incident occurred on June 10. Sometime between 6 p.m. and 7:30 p.m., after having completed his hospital duties, the victim left the hospital and went to his car. As he got near his vehicle, he noticed that the defendant was standing approximately sixty feet away, staring at him. The defendant stared at the victim as he quickly got into his vehicle and continued to stare at him as he drove by the hospital entrance and exited the parking lot. During the ride home, the victim stopped a number of times to make sure that the defendant was not following him. The victim testified that as a result of that incident, he began to fear for his physical safety.

Four days later, on June 14, 1996, again between 6 p.m. and 7:30 p.m., the victim completed his hospital duties, exited the hospital through the physician’s entrance and went to his car. While sitting in his car for a few moments, he observed in an adjacent parking lot near the main entrance to the hospital, a black Nissan vehicle that had backed into a parking space and appeared to be slowly pulling out. As this vehicle started to pull out, the victim observed that the two female occupants of the car were staring at him. When the occupants of the Nissan became aware that the victim was looking in their direction, however, they quickly turned their heads and backed into the same parking space. The victim became concerned and fearful. As he began to pull out of the parking lot, the Nissan quickly pulled out in front of his vehicle and stopped. At that point, the victim observed that it was the defendant who was driving the Nissan. The victim feared for his physical safety. As a result, the victim panicked and instead of following the defendant to the exit, he drove the wrong way through a one way entrance and sped away. Again, as he had done the previous evening, he stopped numerous times during the ride home to make sure that the defendant was not following him.

A third incident occurred three nights later, on June 17, 1996. The victim’s five year old son took karate lessons at a fitness center on Main Street in downtown Putnam. The victim often went to the lessons to watch his son. The victim testified that “[m]any times while [he] was there, as [he] was either pulling into [the fitness center] or after, there were a number of incidents where the defendant would be there—parked either near [his] car or in that area, lying in wait—and would observe [him] or watch [him] or pull up to [him].” On this particular night, as they were leaving at approximately 7:15 p.m., the victim observed the defendant standing near the front desk. The victim stated that the defendant was “just staring at me and staring at my child.” The victim grabbed his son and ran out of the building to his car. The victim observed that the defendant had also exited the building, was standing next to her car and continued to stare at him as he drove away.

In explaining how all these incidents had affected his life, the victim testified: “Well, it’s affected my life in— well—my life tremendously. It’s—you know—it’s like living in prison. I mean, these things continue. The willfulness of it all. The continued lying-in-wait. Everywhere I go I—you know—there would be—I have incidents of phone calls, letters, letters to neighbors— I mean, it’s just awful. I mean—none of it—I mean, I’ve done nothing wrong. Here I am as a doctor trying to help a patient and this is—you know—this is the—what occurred. And it is horrible. I live every day still in fear that something’s going to happen to me. Fear that— you know—my children are going to be left alone if someday—you know—I’d drive up and meet her and she—or she’s there and—ah’m—she does bodily harm to me. Ah’m—I mean, it’s just awful. Nothing is changed. We still do the alarm, we still do the binoculars. At night—you know—you hear sounds and—normal sounds of the neighborhood and here I am running to the window—ah—trying to look out or going out and seeing—you know—what’s occurring. It’s just horrible. It’s a horrible way to live in fear of your life. . . . [It’s] a continued horrible experience in which every day I wake up I’m in fear of my safety.”

I

The defendant claims first that the trial court improperly failed to determine that §§ 53a-181d and 53a-181e are unconstitutionally vague and overbroad on their face and as applied to her, in violation of her right to due process as set forth in both the federal and state constitution. We disagree.

Initially, we note that one attacking a validly enacted statute bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt, and on appeal this court will indulge in eveiy presumption in favor of the statute’s constitutionality. State v. Jason B., 248 Conn. 543, 556, 729 A.2d 760 (1999). We note further that the only difference between §§ 53a-181d and 53a-181e is that the former section requires proof that the defendant intentionally caused the victim to fear for his safety, while the latter requires proof that the defendant recklessly caused such fear. All other elements of the two statutes are the same. The defendant makes no distinction between the two in her vagueness analysis.

A

This court has already considered, and rejected, the notion that § 53a-181d was facially void for vagueness. In State v. Marsala, 44 Conn. App. 84, 97, 688 A.2d 336, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997), this court stated: “We adopt the holding and reasoning set forth in State v. Culmo, [43 Conn. Sup. 46, 67, 642 A.2d 90 (1993)]: [O]n consideration of [§ 53a-181d] in its entirety, it cannot be said that a person of common understanding would fail to understand what conduct is prohibited. Section 53a-181d is relatively narrow in scope. It applies only to those who act with the specific intention of causing others to fear for their physical safety. The fear for one’s physical safety must be reasonable. The conduct must be undertaken wilfully, not mistakenly, and it must occur repeatedly. The statute on its face does not implicate speech or expression in any way; it criminalizes conduct only when undertaken with the requisite intent. The court concludes that any ambiguities in the statute’s language are not so significant as to render it void for vagueness.” (Internal quotation marks omitted.) See also State v. Cummings, 46 Conn. App. 661, 668-69, 701 A.2d 663, cert. denied, 243 Conn. 940, 702 A.2d 645 (1997). Thus, as we have previously held, § 53a-181d is not unconstitutionally vague on its face.

The defendant’s claim that § 53a-181e was impermissibly vague as applied to the facts in this case also fails. To obtain a conviction for a violation of § 53a-181e, the state was required to prove, beyond a reasonable doubt, as follows: The defendant (1) recklessly (2) caused the victim to reasonably fear for his physical safety when the defendant (3) wilfully and (4) repeatedly (5) followed or lay in wait for the victim. Here, the defendant claims that the words “repeatedly” and “followed” are indefinite and imprecise and, therefore, the stalking statutes are unconstitutionally vague on their face.

In State v. Marsala, supra, 44 Conn. App. 98, we adopted the definition of “following” as elucidated in State v. Culmo, supra, 43 Conn. Sup. 63, wherein the court stated, “Webster’s Ninth New Collegiate Dictionary defines ‘follow’ to mean ‘to go, proceed, or come after’ and ‘pursue in an effort to overtake.’ As used in § 53a-181d [and in § 53a-181e], which requires that any ‘following’ be ‘wilful’ ‘and ‘repeated,’ the ‘following’ must have a predatory thrust to it. The statute does not encompass ‘following’ that is aimless, unintentional, accidental or undertaken for a lawful purpose. Of course, ‘following’ implies proximity in space as well as time. Whether someone has deliberately maintained sufficient visual or physical proximity with another person, uninterrupted, over a substantial enough period of time to constitute ‘following’ will depend upon a variety of differing factors in each case. These are appropriate issues for the trier of fact to decide . . . .”

There was evidence presented from which the jury could have found that the defendant followed the victim on three occasions between June 10 and June 17, 1996. Specifically, on June 10, 1996, the defendant went to the victim’s place of employment, stood outside and, as the victim left work, stared continuously at him. On June 14, 1996, the defendant again went to the victim’s place of employment, sat in a car in the parking lot, and, as the victim left work for home, she stared continuously at him and then pulled her car out in front of his and stopped the vehicle. On June 17,1996, the defendant went to the fitness center, where the victim’s son had a karate lesson, stood at the front desk as the victim was walking his son out to the car and stared at them, then went outside and continued to stare at them as they departed. Here, the state adduced evidence that the defendant maintained uninterrupted visual and physical proximity with the victim for substantial periods of time, and, accordingly, we conclude that the statute is not vague as applied to her. See State v. Marsala, supra, 44 Conn. App. 98.

Moreover, although this court in Marsala did not specifically adopt the definition of “repeatedly” set forth in State v. Culmo, supra, 43 Conn. Sup. 62, we do so now: “Webster’s Ninth New Collegiate Dictionary defines ‘repeatedly’ as meaning ‘again and again.’ Acting ‘repeatedly’ in the context of the statute means precisely what the commonly approved usage of the word suggests—acting on more than one occasion. An isolated act of ‘following’ or ‘lying in wait’ cannot constitute ‘stalking.’ ” Given the facts adduced at trial, it is clear that the defendant acted on more than one occasion.

Furthermore, the defendant has failed to make a persuasive case that in assessing a vagueness claim, a different analysis or contrary result is mandated under our state constitution from that of the federal constitution. For the purposes of a vagueness challenge, the due process clauses of both the state and federal constitutions have the same meaning and impose similar limitations. See State v. Burke, 51 Conn. App. 328, 334, 723 A.2d 327 (1998), cert. denied, 248 Conn. 901, 732 A.2d 177 (1999); State v. Otero, 49 Conn. App. 459, 470 n.12, 715 A.2d 782, cert. denied, 247 Conn. 910, 719 A.2d 905 (1998). In State v. Linares, 232 Conn. 345, 377, 655 A.2d 737 (1995), our state Supreme Court expressly stated that “we have considered in detail the defendant’s vagueness claims under the federal constitution, and she has failed to persuade us that our state constitution mandates a different analysis or contrary result.” We likewise hold that the defendant’s claim in this case must fail.

B

The defendant alleges further that §§ 53a-181d and 53a-181e are unconstitutionally overbroad. We have already rejected the claim as it relates to § 53a-181d and have concluded that our stalking statutes regulate conduct and not expression and do not implicate, on their face, recognized first amendment rights. See State v. Marsala, supra, 44 Conn. App. 97-98; State v. Culmo, supra, 43 Conn. Sup. 71-76; see also Champagne v. Gintick, 871 F. Sup. 1527, 1532-34 (D. Conn. 1994). We, furthermore, reject the defendant’s claim as it relates to § 53a-181e for the same reasons elucidated in Marsala with regard to § 53a-181d. See State v. Marsala, supra, 97-98. The defendant’s claim of overbroadness, therefore, also fails.

II

The defendant argues next that the trial court improperly failed to determine that the state presented insufficient evidence to support her conviction for a violation of § 53a-181e. Specifically, the defendant claims that there was no evidence of repeated following or lying in wait, and, even if there was sufficient evidence of either of these elements, there was no evidence from which the jury could find that the victim had reasonable fear for his physical safety. There is no merit to this claim.

In analyzing a sufficiency of evidence claim, we first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, on the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 125 (1991); State v. Weinberg, 215 Conn. 231, 253, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990). Applying the analysis mandated by those cases to the evidence presented to the jury, which evidence is recited in our discussion of the defendant’s vagueness claims, we hold that the evidence presented to the jury fully supports its verdict that the defendant was guilty of stalking the victim. The defendant’s claim is therefore without merit.

Ill

The defendant next claims that the trial court improperly gave a “Chip Smith” instruction to the jury, thereby violating her rights to due process as guaranteed by article first, § 8, of the constitution of Connecticut. There is no merit to this claim.

Since 1881, the instruction in various forms has been upheld as constitutional and proper when a jury announces that it is unable to reach a unanimous verdict. See State v. Smith, 49 Conn. 376 (1881). “It is settled that a Chip Smith charge is an acceptable method of assisting the jury to achieve unanimity. [Id.]; see State v. O’Neill, 200 Conn. 268, 283, 511 A.2d 321 (1986); State v. Avcollie, 188 Conn. 626, 641, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983); State v. Stankowski, 184 Conn. 121, 147, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981). The purpose of the instruction is to prevent a hung jury by urging the jurors to attempt to reach agreement. It is a settled part of Connecticut jurisprudence. 5 Connecticut Practice, D. Borden & L. Orland, Connecticut Criminal Jury Instructions (1986) § 4.8, p. 137. Better than any other statement ... it makes clear the necessity, on the one hand, of unanimity among the jurors in any verdict, and on the other hand the duty of careful consideration by each juror of the views and opinions of each of his fellow jurors .... State v. Ralls, 167 Conn. 408, 424-25, 356 A.2d 147 (1974).” (Internal quotation marks omitted.) State v. Wooten, 227 Conn. 677, 707, 631 A.2d 271 (1993).

Our review of the “Chip Smith” instruction as a whole does not support the defendant’s arguments that the instruction as given was imbalanced and lacked critical additional instructions. In State v. Lyons, 36 Conn. App. 177, 188, 649 A.2d 1046 (1994), we stated that the “Chip Smith” charge “in no way coerces dissenting jurors into subverting their opinions to those of the majority, but urges each juror to consider the questions before the jury with due regard and deference to the opinions of each other in an effort to arrive at a unanimous verdict. Although the charge does call on dissenting jurors to reevaluate their conclusions, such a charge is not coercive when considered in its totality.” (Internal quotation marks omitted.) The instruction given here was that “each” juror give due regard to the opinion of other jurors. The charge in no way mandates that a juror accept the position of the majority; rather, it asks only that the jurors listen to each other and examine their positions in light of the argument of others. We conclude, therefore, that the “Chip Smith” charge as given in this case was appropriate and proper and the defendant’s claim that her due process rights were violated is, therefore, meritless.

IV

The defendant claims next that the trial court improperly failed to instruct the jury adequately as to the element of the crime requiring that an individual “repeatedly” follow or lie in wait, in violation of the state and federal constitutions. We disagree and adopt the well reasoned definition of “repeatedly” stated by the court in State v. Culmo, supra, 43 Conn. Sup. 62-63, where it held, in its statutory construction of § 53a-181d, that “repeatedly” meant acting on more than one occasion. “Webster’s Ninth New Collegiate Dictionary defines ‘repeatedly’ as meaning ‘again and again.’ Acting ‘repeatedly’ in the context of the statute means precisely what the commonly approved usage of the word suggests—acting on more than one occasion. An isolated act of ‘following’ or ‘lying in wait’ cannot constitute ‘stalking.’ ” Id., 62. Therefore, to find that a defendant has violated §§ 53a-181d or 53a-181e, the jury must find, beyond a reasonable doubt, that the defendant followed the victim on more than one occasion, or lay in wait of the victim on more than one occasion or a combination of lying in wait and following the victim. The legislative purpose obviously was to prevent an accidental or coincidental occurrence from being denominated a crime. The required element of “repeatedly” is to distinguish behavior that is random or unintentional from behavior that is intentional and purposeful. In light of the facts adduced at trial, therefore, the defendant’s claim is without merit and must fail.

V

The defendant’s final argument is that the trial court improperly failed to determine that the prosecutor committed prejudicial misconduct during final arguments, and that as a result of such misconduct, she was deprived of her due process right to afair trial as guaranteed by article first, §§ 8, 9 and 19 of the constitution of Connecticut. Specifically, the defendant claims that the prosecutor’s references during final arguments to (1) a telephone log that was not admitted into evidence, (2) the length of time it would take to drive from Chicopee, Massachusetts, where the defendant was a student, to Putnam, and (3) the fact that physical injury to the victim was not required under our stalking statutes, constituted misconduct.

“While it is possible for prosecutorial misconduct to occur in the course of closing argument . . . such alleged conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process in order to deprive the defendant of [her] constitutional right to a fair trial.” (Citation omitted.) State v. Santiago, 45 Conn. App. 297, 302, 696 A.2d 344, cert. denied, 241 Conn. 927, 697 A.2d 362 (1997).

In closing argument to a jury, counsel must be allowed a generous latitude, since the limits of legitimate argument and fair comment cannot be determined precisely by rule and line and there must be some allowance for the zeal of counsel in closing argument. State v. Richardson, 214 Conn. 752, 760, 574 A.2d 182 (1990); State v. Bowens, 24 Conn. App. 642, 655, 591 A.2d 433, cert. denied, 220 Conn. 906, 593 A.2d 971 (1991). “The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” (Internal quotation marks omitted.) State v. O'Brien, 29 Conn. App. 724, 727-28, 618 A.2d 50 (1992), cert. denied, 225 Conn. 902, 621 A.2d 285 (1993).

Our review of the prosecutor’s remarks indicate that such references by the prosecution were proper and within the parameters of the aforesaid applicable cases. There was no prosecutorial misconduct as alleged by the defendant and, as such, her claim is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-181d (a) provides: “A person is guilty of stalking in the second degree when, with intent to cause another person to fear for his physical safety, he wilfully and repeatedly follows or lies in wait for such other person and causes such other person to reasonably fear for his physical safety.”

       General Statutes § 53a-181e (a) provides: “A person is guilty of stalking in the third degree when he recklessly causes another person to reasonably fear for his physical safety by wilfully and repeatedly following or lying in wait for such other person.”

       The defendant later admitted that she sent these flowers to the victim.

       Merriam Webster’s Collegiate Dictionary (10th Ed.) defines raspberry as “a sound of contempt made by protruding the tongue between the lips and expelling air forcibly to produce a vibration . . . .”

       We agree with the state’s position that this claim seems to be more in the nature of a sufficiency claim rather than a claim that the statute is vague as applied, but that the defendant, nonetheless, cannot prevail.


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. CARMI KELLMAN
    (AC 19110)
    Foti, Mihalalcos and Healey, Js.
    Argued October 25, 1999
    officially released January 4, 2000

      Neal Cone, assistant public defender, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James Dinnan, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Carmi Kellman, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a, carrying a pistol without a permit in violation of General Statutes § 29-35, and criminal violation of a protective order in violation of General Statutes § 53a-110b (a). On appeal, the defendant claims that the trial court improperly (1) instructed the jury regarding intoxication and the affirmative defense of extreme emotional disturbance, (2) denied his counsel’s request for surrebuttal final argument and (3) instructed the jury on reasonable doubt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and the victim, Carmen Smith, began a two year romantic relationship sometime in 1992, which was marked by repeated domestic incidents, breakups and reconciliations. Numerous complaints were lodged with the police by the victim about the defendant. In July, 1993, after an arrest based on such a complaint, the defendant was ordered by the victim to move out of her residence. The defendant returned during a brief reconciliation, but was dispossessed permanently by the victim later that year.

As the defendant continued to pursue the relationship, his behavior became more hostile, and the domestic incidents increased in severity. In February, 1994, the defendant was arrested outside the victim’s residence after being pursued by the police. He had in his possession the victim’s house keys. Thereafter, the victim obtained a protective order from the Superior Court;, prohibiting the defendant from entering her home and from restraining, harassing or contacting her. The defendant, however, continued to harass the victim on many occasions. Later that month, he forced his way into her house and, in the presence of a witness, struck the victim and took her house keys. The defendant absconded before the arrival of the police following a 911 emergency call. A warrant for his arrest was prepared. Two days later, the defendant was arrested while calling the victim by telephone; he had her house keys in his pocket and her pocketbook was hanging from his neck. Around that time, the defendant purchased, on the street, a .22 caliber pistol with five live rounds and displayed it to the victim. On Saturday, March 12, 1994, the victim and her sister went shopping, had dinner and went to a club for the evening. At approximately 2 a.m. on March 13, they returned to the victim’s house, where the defendant was waiting in the driveway. He had his revolver in his pocket and, as he approached the two women, the victim cried out, “No Carmi, no,” and “No, don’t do it.” The defendant pulled out the gun and chased the victim down a walkway alongside the building. The defendant overtook the victim, who was screaming with fright, and exclaimed, “I got you now, bitch.” He then fired all five bullets into the victim, causing her death. The shooting occurred at close range, probably two and one-half feet from the victim.

The following day, the defendant admitted to a friend that he had been involved in the shooting that led to the victim’s death. After his arrest, he claimed that the shooting was an unintended mistake. At trial, the defendant claimed that he was suffering from extreme emotional disturbance and that he was intoxicated when he shot the victim.

I

The defendant claims first that the trial court improperly instructed the jury on intoxication, thereby invalidating the instruction on extreme emotional disturbance. The defendant seeks review of this unpreserved claim by invoking the guidelines of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and plain error review. Practice Book § 60-5.

The defendant testified that on the day of the murder, he had consumed two, forty ounce bottles of beer, smoked some marijuana and later had a number of cocktails. The state and the defense submitted identical written requests to charge on intoxication. The court instructed as follows: “Intoxication is not a defense to or an excuse for the commission of a crime. It is only relevant to negate the specific intent which is an element of that particular crime. If you find that the defendant was intoxicated at the time of a crime, you may take this fact into consideration in determining whether he was in such a state of intoxication as to be incapable of forming the required specific intent, which is a necessary element for the commission of that particular crime. If you believe that the defendant, although intoxicated, was still capable of possessing this specific criminal intent, then his responsibility as to that particular crime is the same as if he were not intoxicated. . . . Any degree of intoxication, not merely total intoxication, may be considered in determining whether the defendant possessed the requisite specific intent. Whether or not the defendant was so intoxicated that he could not and did not form the required intent is a question of fact for you to determine. This instruction does not apply to the defense of extreme emotional disturbance.” The defendant did not object or take exception to the instruction.

In explaining the affirmative defense of extreme emotional disturbance, the court instructed the jury in pertinent paid as follows: “Extreme emotional disturbance is the emotional state of an individual who was exposed to extremely unusual and overwhelming stress, and has such an extreme emotional reaction to it as a result of which there is a loss of self-control and reason is overborne by intense feelings such as passion, anger, distress, grief, excessive agitation or other similar emotions. ... It is your responsibility as the triers of fact to decide to what extent, if any, the defendant’s emotions governed his conduct at the time he intentionally caused the death of [the victim] if you reach that conclusion. In reaching that decision, you may consider all the feelings which you find, in fact, influence the defendant’s conduct, for example, passion, anger, distress, grief, resentment, fright, hatred, excessive agitation or other similar emotions.”

“ [A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

“[I]mproper jury instructions concerning the defense of extreme emotional disturbance are not of constitutional dimension. State v. Foreshaw, 214 Conn. 540, 546, 572 A.2d 1006 (1990); State v. Suggs, 209 Conn. 733, 751, 553 A.2d 1110 (1989).” State v. Austin, 244 Conn. 226, 244, 710 A.2d 732 (1998). Therefore, the defendant is not entitled to review of his claim under the Golding doctrine.

Under the plain error doctrine, we “may in the interests of justice notice plain error not brought to the attention of the trial court. . . .” Practice Book § 60-5. As a general rule, a party cannot be heard to complain about an instruction when he himself has requested it. State v. Shipman, 195 Conn. 160, 165, 486 A.2d 1130 (1985). “To prevail under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . This doctrine is not implicated and review of the claimed error is not undertaken unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Lindstrom, 46 Conn. App. 810, 817, 702 A.2d 410, cert. denied, 243 Conn. 947, 704 A.2d 802 (1997).

The court’s instruction on intoxication constitutes a legally and logically correct statement of the law. The distinct instruction as to the affirmative defense of extreme emotional disturbance did not, nor was it required to, specifically reference intoxication. It did properly reference and allow the jury to consider “all the feelings which . . . influence the defendant’s conduct, for example, passion, anger, distress, grief, resentment, fright, hatred, excessive agitation or other similar emotions.”

Our review of the jury instruction as a whole leads us to conclude that there is no reasonable possibility that it misled the jury; the instructions given on intoxication were substantially as requested, and the instruction overall was sufficient to guide the jury to a correct verdict.

II

The defendant next claims that the court improperly refused his counsel’s request to present a surrebuttal argument. Certain additional facts are necessary for the resolution of this issue. Before beginning final argument, defense counsel sought permission to be allowed a surrebuttal argument pertaining to the issue of extreme emotional disturbance, stating, “I have the burden of proof in that regard.” The state objected, and the court denied the request. The defendant alleges that the court abused its discretion in denying his request.

As a preliminary matter, let us indicate what this claim does not involve. The defendant’s claim does not attack the prosecution’s allowance of an opening and closing argument. The defendant makes no claim that the prosecutor’s closing arguments were improper. Nor does this claim in any manner implicate the defendant’s right to be fully heard during his one closing argument. The defendant’s claim is that because extreme emotional disturbance is an affirmative defense, which he has the burden of proving, the court abused its discretion in not allowing a divergence from the traditional order of argument. We do not agree.

The defendant bears a heavy burden in demonstrating that the court abused its broad discretion. “In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) State v. Rogers, 38 Conn. App. 777, 796, 664 A.2d 291, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995), cert. denied, 516 U.S. 1084, 116 S. Ct. 799, 133 L. Ed. 2d 747 (1996).

Although the defendant did not contest at trial that he shot the victim five times and caused her death, the burden to prove the elements of the charge beyond a reasonable doubt nonetheless rested squarely on the state. See State v. Deleon, 230 Conn. 351, 364, 645 A.2d 518 (1994). The defendant’s burden to prove his affirmative defense is by a mere preponderance of the evidence. The state’s burden is obviously greater and justifies the traditional positions in the allocation of argument. The defendant concedes that as of the present time, his burden of proof as to an affirmative defense does not entitle him as a matter of law to a surrebuttal argument. He does argue, however, that the ruling “infringed upon his state and federal constitutional rights to due process of law,” in addition to the abuse of discretion claim.

The court may vary the order or proceedings upon an adequate showing of cause. Practice Book § 42-35; see also General Statutes § 54-88. The federal constitution requires a strong showing to upset a settled practice on constitutional grounds. United States ex rel. Parsons v. Adams, 336 F. Sup. 340, 344 (D. Conn.), aff'd, 456 F.2d 257 (2d Cir. 1971), cert. denied, 405 U.S. 1070, 92 S. Ct. 1519, 31 L. Ed. 2d 802 (1972). The defendant neither presented such good cause as to demonstrate an abuse of discretion by the court nor made a strong showing that a surrebuttal argument was necessary to protect his constitutional right to due process of law.

Ill

The defendant next claims that the court improperly instructed the jury on reasonable doubt in that its charge diluted the state’s burden of proof, and infringed on his right to a fair trial and to fair assistance of counsel.

The court instructed as follows: “Reasonable doubt. The meaning of reasonable doubt can be arrived at by emphasizing the word reasonable. It is not a surmise, aguess or mere conjecture, nor is [it] a doubt suggested, by counsel or a juror not warranted by the evidence or the lack of evidence. It is such a doubt as in serious affairs that concern you, you would heed. That is such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance. It is not hesitations springing from any feelings of pity or sympathy for the accused or for any other person who might be influenced by your decision. It is, in other words, a real doubt,, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence. It is a doubt that is honestly entertained and is reasonable in light of the evidence after a fair comparison and careful examination of the entire evidence.

“Proof beyond a reasonable doubt does not mean proof beyond all doubt. The law does not require absolute certainty on the part of the jury before it returns a guilty verdict. The law requires that after hearing all the evidence, if there is something in the evidence or lack of evidence that leaves in the minds of the jurors as reasonable men and women a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted. Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.” (Emphasis added.)

Our Supreme Court has rejected as meritless challenges to instructions with identical or similar language. See State v. Delvalle, 250 Conn. 466, 473-76, 736 A.2d 125 (1999); State v. Hines, 243 Conn. 796, 816-20, 709 A.2d 522 (1998); State v. Small, 242 Conn. 93, 113-15, 700 A.2d 617 (1997); State v. Taylor, 239 Conn. 481, 504-505, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997).

The defendant’s unpreserved claim has failed to demonstrate that the challenged instructions unconstitutionally diluted the state’s burden of proof.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was found not guilty of one count of stalking in the first degree in violation of General Statutes § 53a-181c (a) (2).

       The arresting officer was unaware of the protective order in effect.

       The state and defense both requested as follows: “Our statute [General Statutes § 53a-7] provides, insofar as it is relevant here, that intoxication is not a defense to a criminal charge, but in any prosecution for an offense evidence of the defendant’s intoxication may be offered by the defendant whenever it is relevant to negate an element of the crime charged. ... As it applied here, it means that if you find that the defendant was so intoxicated that he was not mentally able even to form the intent to commit the crime, then the intent element of the crime charged would not be proven and you would be required to acquit the defendant of that charge. ... If, however, you find that he was not intoxicated, or that he was intoxicated but not so extremely so that he could not form the required intent, you should disregard the evidence of his intoxication and not consider it in his defense.”

       The defendant also argues that the trial court may have failed to exercise its discretion in denying his request. The brevity of the ruling alone cannot demonstrate that the trial court did not believe it had discretion. The trial court heard from both the defense and the state before ruling. We presume that the trial court acted properly; there is nothing before us to show that it did not exercise its discretion.

       The defendant has failed to provide an independent state constitutional analysis for his claim. Accordingly, we consider only his federal constitutional claim. State v. Toste, 198 Conn. 573, 576 n.3, 504 A.2d 1036 (1986).

       General Statutes § 54-88 provides: “In any criminal trial, the counsel for the state shall be entitled to open and close the argument.”

       Our Supreme Court, while rejecting constitutional challenges to the “ingenuity of counsel” instruction, invoked its supervisory authority over the administration of justice and directed trial courts to refrain from using the “ingenuity of counsel” language in the future. State v. Delvalle, supra, 250 Conn. 476.


author: HENNESSY, J.

text:
    IN RE CESAR G. ET AL.

    (AC 17972)
    Schaller, Spear and Hennessy, Js.
    Argued September 28, 1999
    officially released January 4, 2000

      Leon M. Kaatz, for the appellant (respondent mother).

      Benjamin Zivyon, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Lynn B. Cochrane, for the minor child Cesar G.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

HENNESSY, J.

The respondent mother of four minor children, Cesar, S, A and M, appeals from the judgment of the trial court denying her motion to revoke the commitment of the children to the petitioner, the commissioner of children and families (commissioner). The respondent claims that the court improperly (1) applied the statutory standards in ruling that the cause for commitment continued to exist and (2) found sufficient evidence that cause for the children’s commitment remained. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. On December 5, 1991, the commissioner filed petitions for orders of temporary custody of Cesar, A and S, along with neglect petitions, as a result of the death of then-sibling, R. R died from cardiopulmonary arrest. Her autopsy report suggested that at the time of her death, R was suffering from malnutrition and blunt trauma from beatings. The respondent subsequently was arrested and convicted of cruelty to persons under General Statutes § 53-20. Pursuant to the respondent’s plea of nolo contendere, Cesar, A and S were adjudicated to be neglected and were committed to the custody of the commissioner. Shortly thereafter, the respondent gave birth to another child, M, who later was adjudicated a neglected child and was committed to the care of the commissioner. The children’s commitment was extended three times.

In 1996, the respondent, the children and the father of M filed a joint motion with the court to revoke the children’s commitment. The court concluded that the cause to continue commitment remained and therefore denied the motion. The respondent appeals from that decision. The commissioner claims that the appeal should be dismissed as moot because subsequent to the filing of this appeal, the court once again extended the children’s commitment and the respondent did not appeal that decision.

I

We first address the question of mootness raised by the commissioner. The claim is based on the premise that subsequent to the respondent’s appeal of the denial of her motion for revocation of commitment, an extension of commitment was granted and the respondent did not appeal from that decision. The commissioner claims that the court’s action on the recent extension of commitment renders this appeal moot because even if the appeal is found to be meritorious, no practical relief can be granted by this court.

“When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” In re Romance M., 229 Conn. 345, 357, 641 A.2d 378 (1994). Mootness deprives this court of subject matter jurisdiction. Loisel v. Rowe, 233 Conn. 370, 378, 660 A.2d 323 (1995); In re Corey E., 40 Conn. App. 366, 369, 671 A.2d 396 (1996). Where a respondent appeals from an order of the court extending the commitment of his or her children and the commitment subsequently is extended, this court has concluded that the “case is not moot in light of the continuing commitment of the child. The extension allows this court to grant practical relief to the appellant should it be warranted on the merits.” In re Todd G., 49 Conn. App. 361, 362 n.4, 713 A.2d 1286 (1998). In this case, the children presently are committed to the custody of the commissioner. The practical relief of revocation of commitment is potentially available. We therefore hold that the respondent’s claim is not moot for purposes of this appeal.

II

The respondent first claims that the court improperly applied the statutory standards in ruling that the cause for commitment still exists. The gravamen of the claim is that the court based its ruling on the events that caused the original commitment of the children to the commissioner rather than on events subsequent thereto, and that the court relied too heavily on an expert witness who evaluated the respondent more than one year before the revocation of commitment hearing. We disagree.

General Statutes (Rev. to 1995) § 46b-129 (g), now § 46b-129 (m), provides in relevant part: “Any court by which a child . . . has been committed pursuant to the provisions of this section may, upon the application of a parent . . . upon finding that cause for commitment no longer exists, revoke such commitment. . . .” “The burden is clearly upon the persons applying for the revocation of commitment to allege and prove that cause for commitment no longer exists. Once that has been established, the inquiry becomes whether a continuation of the commitment will nevertheless serve the child’s best interests. On this point, when it is the natural parents who have moved to revoke commitment, the state must prove that it would not be in the best interests of the child to be returned to his or her natural parents. In re Juvenile Appeal (Anonymous), 177 Conn. 648, 659, 420 A.2d 875 (1979).” In re Thomas L., 4 Conn. App. 56, 57, 492 A.2d 229 (1985).

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses.” (Internal quotation marks omitted.) In re Tabitha T., 51 Conn. App. 595, 599, 722 A.2d 1232 (1999). “The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” (Internal quotation marks omitted.) In re Danuael D., 51 Conn. App. 829, 836, 724 A.2d 546 (1999).

In this case, the respondent argues that the court relied on facts and events that occurred years earlier, which resulted in the original commitment of the children to the commissioner. They are not events, she argues, that in the words of § 46b-129 (g), now § 46b-129 (m), are capable of “no longer [existing].” The list of facts contained in the court’s memorandum of decision cited by the respondent are those that referred to the abuse and death of R. The respondent avers that the use of those facts are inappropriate and suggests that R’s death is the reason that the motion for revocation of commitment was denied. We disagree.

The court, in determining whether cause for commitment no longer exists, would obviously look to the original cause for commitment to see whether the conduct or circumstances that resulted in commitment continue to exist. The trial court, in reviewing this case, would want to know if the evidence showed that those traits of the respondent that resulted in the death of R were addressed and corrected. The trial court, thereafter, “may consider if any cause for commitment still exists.” (Emphasis in original.) In re Juvenile Appeal (Anonymous), supra, 177 Conn. 659.

The court concluded that causes for commitment still remain; namely, the respondent’s anger, her inability to control it and her inability to parent the children adequately and safely. Although the court began its memorandum of decision with a recitation of the respondent’s actions that led to the death of R, thereby placing the motion in context, it then reviewed the testimony of the respondent’s therapist, the children’s therapist and Richard Sadler, a court-appointed psychiatrist. Most of the witnesses testified that the respondent’s anger control problems still remain.

The respondent contends that the court relied too heavily on the evaluation of Sadler, who had conducted an evaluation of the respondent more than one year before the revocation hearing. Sadler testified that the respondent had parenting problems and had not adequately addressed her deficits. According to the respondent, by relying on Sadler’s opinion, the court was in essence relying on past facts and events that cannot be altered by the respondent. We disagree. In its memorandum of decision, the court noted other witnesses who had opinions consistent with those of Sadler. For instance, the children’s therapist testified that the respondent had difficulty controlling her anger and even struck Cesar in front of her. Another therapist testified that the respondent’s parenting skills were poor and her methods of discipline were abusive. Upon consideration of the testimony of those witnesses, the court found that the respondent continued to have problems controlling her anger and could not adequately parent the children. The court did not rely on past events that are incapable of being changed. Instead, the court relied on the observations and evaluations of expert witnesses who stated that the respondent presently has problems with anger and with parenting her children. We hold that the court applied the proper statutory standard in determining that cause for commitment remained and that its factual findings were not clearly erroneous.

Ill

The respondent claims next that there was insufficient evidence for the court to find that cause for commitment remains. The respondent claims that the court (1) gave Sadler’s testimony too much weight because he relied on events that occurred before the commitment, and on an evaluation that was out-of-date and that contained errors of fact, (2) inappropriately relied on the testimony of Amaryllo Castro-Stevens of the Village for Families and Children, from whom the children received therapy and counseling, because her testimony was inconsistent and her conclusions contradictory, and (3) ignored the testimony of Betty Al-Sagaf of the Village for Families and Children, from whom the respondent received therapy and counseling. We find these arguments to be unavailing.

A

“The credibility of expert witnesses and the weight to be given to their testimony [is] determined by the trier of fact.” (Internal quotation marks omitted.) State v. Bruno, 236 Conn. 514, 539, 673 A.2d 1117 (1996). “On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. ... In re Marvin M., 48 Conn. App. 563, 577-78, 711 A.2d 756, cert. denied, 245 Conn. 916, 719 A.2d 900 (1998).” (Internal quotation marks omitted.) In re Natalia G., 54 Conn. App. 800, 802, 737 A.2d 506 (1999).

In concluding that cause for commitment remained, the court found that the respondent has anger control problems and an inability to parent her children adequately. Two of the therapists testified that the respondent struck one of the children during a supervised visit. Although the record shows that the respondent admitted to hitting her children, she does not understand that such behavior is inappropriate or appreciate the seriousness of R’s death. Sadler testified that the respondent continued to describe herself as a fine parent who does not have parenting deficits and needs no help.

Sadler conducted his evaluations of the respondent and the children during May and June, 1996, completed his report on June 21, 1996, and testified at the revocation hearing on April 10, 1997. We conclude that the length of time between the evaluation and the testimony did not render the report outdated to the extent that the court could not rely on it. Sadler did rely on events that took place before the children were committed, but the respondent’s arrest for the death of R was an event that any evaluator would necessarily take into consideration. Indeed, it was the reason the remaining children were taken from the respondent and eventually committed. The court also noted that any errors or mistakes of fact Sadler assumed in his report were vigorously attacked on cross-examination. Thereafter, the court found Sadler’s opinions to “be thorough and perceptive, and based on substantially accurate information and observations, and therefore, credible.” We hold that this decision by the court is not clearly erroneous.

B

The respondent also claims that the testimony of Castro-Stevens was so contradictory and confusing that the court should not have relied on any of it. The portion of testimony set forth by the respondent to demonstrate her point focuses on whether, in her opinion, Castro-Stevens, who was qualified as an expert on children with special needs, would return the children to the respondent. Castro-Stevens gave conflicting answers as to whether to return the children to the respondent, but she stated that the main problem in returning the children was that the respondent would be overwhelmed by having several special needs children returned to her before she made further progress in anger management and with parenting skills. The court, as the trier of fact, “is free to accept or reject, in whole or in part, the testimony offered by either party.” Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). The decision of the court to rely on the testimony of Castro-Stevens that the respondent would be overwhelmed by the responsibilities of having the children is supported by the record. Indeed, other witnesses gave testimony consistent with Castro-Stevens’ opinion. Therefore, we find that the court did not commit clear error in relying on part of Castro-Stevens’ testimony.

C

The respondent’s final claim that the court ignored the testimony of the respondent’s therapist, Al-Sagaf, is not supported by the facts. The court’s memorandum of decision recites Al-Sagaf s testimony that the respondent eventually made some progress in her ability to be less confrontational, and with anger control and parenting techniques relating to discipline, and in understanding the needs of the children. The court considered the opinion of Al-Sagaf that the respondent was able to parent the children appropriately and that it was in their best interest to return home to the respondent. The court, however, did not find Al-Sagaf s opinion persuasive in light of the respondent’s deep-seated and long-standing inability to control her anger and her doubtful commitment to the benefits of counseling. The court did not ignore the testimony of Al-Sagaf. Instead, the court properly weighed her testimony in light of the other witnesses who testified and decided to find it unpersuasive.

The judgment is affirmed.

In this opinion the other judges concurred.

       The respondent fathers are not involved in this appeal. We refer in this opinion to the respondent mother as the respondent.

       Although the respondent lists the placement of the children out of state as an issue on her appeal form, it is not included in her statement of issues and is not argued in her brief. Under these circumstances, we hold that the issue is abandoned. See State v. Barnett, 53 Conn. App. 581, 587, 734 A.2d 991 (1999).
      The attorney for the children was granted permission by this court to file a brief on behalf of the minor children, which supports the position of the respondent. The attorney for the children filed a brief on behalf of the child Cesar only, arguing that there is not sufficient evidence to conclude that a cause to continue Cesar’s commitment exists and as a result the trial court improperly denied the respondent’s motion to revoke Cesar’s commitment.

       For example, citing the court’s memorandum of decision, the respondent’s brief states: “Respondent was charged criminally with, inter alia, manslaughter and risk of injury to a [child]. . . . Respondent was found guilty of cruelty to persons and sentenced to a one year suspended sentence with probation .... The medical examiner concluded that [R] died from malnutrition and blunt trauma to the body .... Respondent beat [R] on more than one occasion . . . .”


author: LANDAU, J.

text:
    STATE OF CONNECTICUT v. SANTOS MIRANDA
    (AC 14439)
    Foti, Landau and Dupont, Js.

      Argued September 24, 1999
    officially released January 4, 2000

      Susan M. Cormier, with whom were Kenneth J. Bartschi and, on the brief, Daniel J. Krisch, Bageshree Ranade Blasius and Keith R. Rudzik, certified legal interns, for the appellant (defendant).

      Robert J. Scheinblum, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Elpedio Vitale, senior assistant state’s attorney, for the appellee (state).
   Opinion

LANDAU, J.

This case returns to us from our Supreme Court. On remand, the defendant, Santos Miranda, claims (1) that our Supreme Court has newly created a duty arising under General Statutes § 53a-59 (a) (3) requiring any person living in a family-like situation to protect a child from parental abuse or risk conviction under the statute; State v. Miranda, 245 Conn. 209, 230, 715 A.2d 680 (1998); and, that as applied to him, his right to due process under the fourteenth amendment to the United States constitution has been violated, (2) that the trial court had insufficient evidence to convict him of assault in the first degree in violation of § 53a-59 (a) (3) and risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21, and (3) that his multiple convictions violate the constitutional prohibition against double jeopardy. We affirm the trial court’s judgment as to the conviction under § 53-21 and reverse the judgment as to the conviction on the counts under § 53a-59 (a) (3).

The following facts and procedural history are necessary for our resolution of the defendant’s claims. In January, 1993, the defendant, who was twenty-one, resided in Meriden with his girlfriend, who was sixteen, and her two children, a boy, two years old, and a girl, four months old (baby). Although the defendant had been living with his girlfriend and her children for almost one year, he was not the biological father of either child. The trial court concluded, however, that the defendant had established a family-like relationship with the two children and their mother because he, along with his girlfriend, assumed responsibility for the care and welfare of the children.

On the night of January 27, 1993, the defendant telephoned 911 seeking emergency medical assistance because the baby was allegedly choking on milk. Steven Cushing, an emergency medical technician who responded, observed that the baby was seriously ill and her condition was not consistent with the reason for the emergency call, i.e., choking on milk. The baby was taken by ambulance to Veterans’ Memorial Hospital in Meriden and from there by Life Star helicopter to Hartford Hospital.

The medical personnel at Hartford Hospital found that the baby had multiple rib and skull fractures, soft tissue bruises in unusual places, a brachial plexus injury, a rectal tear and bilateral subconjunctival nasal hemorrhages. None of the injuries was the result of falling, accident, birth, efforts to resuscitate, blocked air passages or choking on milk. The baby had no clotting or platelet system pathology. According to expert medical testimony, the baby was suffering a textbook case of battered child syndrome.

The defendant and his girlfriend were interviewed by investigators from the department of children and families and the Meriden police. The defendant subsequently was arrested* ** and charged in a twenty-six count information. The information on the six counts of first degree assault charged the defendant with acts of omission, not commission. The trial court found the defendant guilty of assault in the first degree under the second, third, fifth, seventh, eighth and tenth counts, and risk of injury to a child under the twenty-sixth count of the information. The trial court found the defendant not guilty as to the remaining counts of the information. The defendant was sentenced to forty years incarceration.

The defendant appealed his conviction to this court. We upheld the defendant’s conviction on the risk of injury to a child charge due to inadequate briefing, but reversed the conviction on the first degree assault charges because we concluded that § 53a-59 (a) (3) did not impose a duty on the defendant to act under the circumstances of this case. See State v. Miranda, 41 Conn. App. 333, 341, 675 A.2d 925 (1996), rev’d, 245 Conn. 209, 715 A.2d 680 (1998). The state appealed. A divided Supreme Court reversed, holding that under the circumstances of this case, the defendant had a duty to protect the baby and to prevent further harm, and that by breaching that duty he could be found guilty of assault in the first degree in violation of § 53a-59 (a) (3). See State v. Miranda, supra, 245 Conn. 230. The Supreme Court remanded the case to us to consider the defendant’s remaining claims and his constitutional claims arising from his breach of the duty the Supreme Court concluded existed under § 53a-59 (a) (3). Id., 231-32 n.25.

I

The defendant’s first claim is that, as applied to him, the newly stated duty requiring any person living in a family-like situation to protect a child from parental abuse or to risk conviction of assault in the first degree in violation of § 53a-59 (a) (3) violates his right to due process under the fourteenth amendment to the United States constitution. Specifically, the defendant claims that no person of ordinaiy intelligence could have foreseen (1) that conduct within the meaning of § 53a-59 (a) (3) includes the failure to act, (2) that § 53a-59 (a) (3) imposes a duty on parents to act affirmatively to protect their children from abuse and (3) that this duty extends to a person who assumes a familial, although not a legal, relationship to the children. We agree with the last of the defendant’s claims.

The Supreme Court concluded that the defendant had a duty under § 53a-59 (a) (3) and that the trial court concluded correctly that he breached that duty. Our question is whether it is a violation of the defendant’s right to due process to uphold his conviction if, at the time of his alleged conduct, he could not have known that such a duty existed. The defendant claims that “ ‘[w]hen a[n] . . . unforeseeable state-court construction of a criminal statute is applied retroactively to subject a person to criminal liability for past conduct, the effect is to deprive him of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime.’ Bouie v. Columbia, 378 U.S. 347, 354-55, 84 S. Ct. 1697, 12 L. Ed. 2d 894 (1964); see Douglas v. Buder, 412 U.S. 430, 432, 93 S. Ct. 2199, 37 L. Ed. 2d 52 (1973).” State v. McGann, 199 Conn. 163, 177, 506 A.2d 109 (1986).

“ ‘The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.’ ” Bouie v. Columbia, supra, 378 U.S. 351, quoting United States v. Harriss, 347 U.S. 612, 617, 74 S. Ct. 808, 98 L. Ed. 989 (1954). “ ‘[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law’ . . . .” (Citation omitted.) Bouie v. Columbia, supra, 351, quoting Connally v. General Construction Co., 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 (1926). “There can be no doubt that a deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language.” Bouie v. Columbia, supra, 352.

“ ‘[T]he objection of vagueness is twofold: inadequate guidance to the individual whose conduct is regulated, and inadequate guidance to the triers of fact. The former objection could not be cured retrospectively by a ruling either of the trial court or the appellate court, though it might be cured for the future by an authoritative judicial gloss. . . .’ [P.] Freund, The Supreme Court and Civil Liberties, 4 Vand. L. Rev. 533, 541 (1951). See [A.] Amsterdam, Note, 109 U. Pa. L. Rev. 67, 73-74, n.34. If this view is valid in the case of a judicial construction which adds a ‘clarifying gloss’ to a vague statute, id., at 73, making it narrower or more definite than its language indicates, it must be a fortiori so where the construction unexpectedly broadens a statute which on its face has been definite and precise. Indeed, an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids. An ex post facto law has been defined by this Court as one ‘that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action,’ or ‘that aggravates a crime, or makes it greater than it was, when committed.’ Calder v. Bull, 3 Dall. 386, 390 [1798]. If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction.” Bouie v. Columbia, supra, 378 U.S. 353-54.

The question we must determine is whether applying our Supreme Court’s construction of § 53a-59 (a) (3), which held that any person living in a family-like situation has a duty to protect a child from parental abuse, violates the defendant’s due process rights because the defendant did not have fair warning of the prohibited conduct. See id., 350. More specifically, we must determine whether a person of ordinary intelligence in the defendant’s place would have known that he had a duty to help the baby in the circumstances of this case. We conclude that he would not have known.

When this case was initially appealed to this court, a panel of three judges were of the opinion that, as a matter of law, a person who is not the biological or legal parent of a child did not owe that child a duty such that the failure to act would sustain a criminal conviction of assault in the first degree in violation of § 53a-59 (a) (3). On appeal to our Supreme Court, in a concurrence, Justice Palmer noted that the legal duty the Supreme Court recognized in this case had never been expressly recognized in this state before. “In such circumstances, it is by no means clear that the due process clauses of the federal and state constitutions permit such a duty to be imposed on this defendant for purposes of criminal liability under the assault statute.” State v. Miranda, supra, 245 Conn. 232 (Palmer, J., concurring).

Likewise, then Justice McDonald, in the dissenting portion of his opinion wrote, “Whether one who does not personally inflict the physical injury may be held liable under the assault statute for failure to seek medical treatment and whether a worsening of the victim’s condition because of that failure is required, whether a failure to report continuing abuse may support liability for assault, and whether this doctrine should be restricted to cases of child abuse are questions I believe we must address.” Id., 235 (McDonald, J., concurring in part, dissenting in part).*

In an emotional dissent, Justice Berdon railed against the horrendous facts presented by this case, but stated, “The rule of law must be upheld even when confronted with alarming allegations of improper acts, indeed allegations of loathsome conduct on the part of the defendant.” Id., 236 (.Berdon, J., dissenting). Justice Berdon agreed with this court’s holding that “§ 53a-59 (a) (3) does not include the ‘omission to act.’ ” Id., 241.

“ ‘Duty is a legal conclusion about relationships between individuals, made after the fact .... The nature of the duty, and the specific persons to whom it is owned, are determined by the circumstances surrounding the conduct of the individual.’ ” Clohessy v. Bachelor, 237 Conn. 31, 45, 675 A.2d 852 (1996). “Although one generally has no legal duty to aid another in peril . . . there are four widely recognized situations in which the failure to act may constitute breach of a legal duty: (1) where one stands in a certain relationship to another; (2) where a statute imposes a duty to help another; (3) where one has assumed a contractual duty; and (4) where one voluntarily has assumed the care of another.” State v. Miranda, supra, 245 Conn. 221. Our Supreme Court recognized that the facts of this case as applied to the statute involved was an issue of first impression in this jurisdiction. Id., 220 n.13. Nonetheless, the Supreme Court created a common-law duty to act under the circumstances of this case based on a combination of factors one and four, after reviewing the case law from this jurisdiction and in several other jurisdictions concerning statutes other than § 53a-59 (a) (3). Id., 224-28.

Using the test enunciated in Bouie v. Columbia, supra, 378 U.S. 347, we conclude that no person of ordinary intelligence in the defendant’s place would have had fair notice that § 53a-59 (a) (3) imposed a duty on him to protect the baby from abuse, to secure medical help for her or to report the abuse to the authorities. Three judges of this court and one justice of our Supreme Court agree that under the facts of this case, the defendant had no duty to act and could not be subject to conviction under that statute. Two other justices of the Supreme Court had serious doubts as to whether the new duty could be applied to the defendant ■without violating his constitutional right to due process. The defendant was, at the time the baby suffered serious, deplorable and life-threatening injuries, a twenty-one year old high school dropout, who had no biological or legal relationship to the baby. If the judges and justices of our Appellate and Supreme Courts cannot agree as to whether the statute put the defendant on notice that he had a duty to protect the baby, we cannot conclude that the defendant would have known that he was committing assault in the first degree when he failed to protect the baby, to secure medical treatment for her or to report the situation to the authorities. We therefore reverse the trial court’s judgment convicting the defendant of assault in the first degree in violation of § 53a-59 (a) (3).

II

The defendant’s second claim is that the trial court had insufficient evidence to convict him of assault in the first degree in violation of § 53a-59 (a) (3) and risk of injury to a child in violation of § 53-21. In view of our resolution of the defendant’s constitutional due process claim in part I, we need address the sufficiency question only with respect to the risk of injury to a child conviction. Specifically, the defendant claims that the state failed to prove he had the requisite mental state. We disagree.

The following additional facts as set forth in the trial court’s memorandum of decision are relevant to our resolution of this claim. The trial court concluded that some of the injuries the baby sustained were serious physical injuries within the meaning of General Statutes § 53a-3 (4). Specifically, the baby had two skull fractures that were caused by great force and created a risk of death due to the risk of a lethal brain injury. The baby’s skull fractures, which were seven to ten days old when the baby was admitted to Hartford Hospital, were caused by two separate forces of severe magnitude. The baby also sustained serious physical injuries within the meaning of § 53a-3 (4) due to multiple rib fractures. The baby’s fractured ribs were caused by severe force and created a risk of death due to the risk of heart and lung perforations and death by asphyxiation. Her rib fractures were approximately three weeks old when the baby was admitted to Hartford Hospital.

The baby also suffered a rectal tear, which was oozing blood at the time of the Hartford Hospital examination and was, therefore, of recent origin. The tear, caused by the forceful insertion of a foreign body into the baby’s rectum, was a serious physical injury because it created a risk of death due to an intestinal perforation and overwhelming infection. The baby suffered a brachial plexus injury that affected the mobility of her left arm, which is a serious physical injury within the meaning of § 53a-3 (4). The age of the brachial plexus injury was unknown.

The trial court also found, on the basis of expert medical testimony, that as a result of these injuries, at the time they were sustained and subsequently, the baby would cry and scream. She would have noticeable physical deformities of swelling, bruising and poor mobility. Her ability to take food would be reduced, and at times, the baby’s pain would be so great that she could not be consoled. A person seeing the baby would notice her injuries, reactions and deformities.

The various bruises on the baby’s right cheek and the subconjunctival hemorrhages could be seen by anyone. The defendant knew of the rectal tear, and he observed swellings on the baby’s skull, which he knew should feel hard rather than like jelly. Although he told his girlfriend to take the baby to the hospital, he did nothing to ensure that the baby actually received proper medical attention.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e 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 [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. Crespo, 246 Conn. 665, 670, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999). 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 [trier of fact’s] verdict of guilty. ... State v. Torres, 242 Conn. 485, 490, 698 A.2d 898 (1997).” (Citation omitted; internal quotation marks omitted.) State v. Rolli, 53 Conn. App. 269, 271-72, 729 A.2d 245, cert. denied, 249 Conn. 926, 733 A.2d 850 (1999).

“We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. ... It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. Ingram, 43 Conn. App. 801, 810, 687 A.2d 1279 (1996), cert. denied, 240 Conn. 908, 689 A.2d 472 (1997).

“While the [trier of fact] must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be [proven] beyond a reasonable doubt. . . . If it is reasonable and logical for the [trier] to conclude that a basic fact or an inferred fact is true, the [trier] 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. . . . Moreover, [i]n evaluating evidence that could yield contrary inferences, the [trier of fact] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence.” (Citation omitted; internal quotation marks omitted.) State v. Schiappa, 248 Conn. 132, 177-78, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999).

“Each essential element of the crime must be proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. King, [216 Conn. 585, 601, 583 A.2d 896 (1990)]. Finally, in determining whether the [trier of fact] reasonably could have found guilt, we ask if any rational [fact finder] could have done so. State v. Montanez, [219 Conn. 16, 20, 592 A.2d 149 (1991)]; State v. King, supra [601].” State v. Jupin, 26 Conn. App. 331, 337-38, 602 A.2d 12, cert. denied, 221 Conn. 914, 603 A.2d 404 (1992).

Section 53-21 proscribes “two general types of behavior likely to injure physically or impair the morals of a minor under sixteen years of age: (1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor’s moral or physical welfare and (2) acts directly perpetrated on the person of the minor and injurious to [her] moral or physical well-being.” (Internal quotation marks omitted.) State v. Perruccio, 192 Conn. 154, 159, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984), quoting State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963). The former proscribed conduct applies to the indictment against the defendant in this case.

Unlike § 53a-59, the proscribed behavior is not limited to behavior that creates a risk of death or serious physical injury to another person. The language of § 53-21 applies to behavior that is merely likely to injure the health of the child. “The statute in so far as it applies here prohibits certain behavior likely to physically injure a minor .... The behavior which is prohibited is the creation of a situation inimical or harmful to the minor’s physical welfare. . . . The first element is that the defendant’s conduct was wilful. The word wilful means doing a forbidden act purposefully in violation of the law. It means that the defendant acted intentionally in the sense that his conduct was voluntary and not inadvertent and that he intended the resulting injury to the victim. Thus, wilful misconduct is intentional misconduct, which is conduct done purposefully and with knowledge of [its] likely consequences. . . . The second element is that the defendant created a situation that was likely to be harmful to the victim’s health. Health means the state of being hale, sound or whole in body, mind or well being. The focus is on whether the situation was such that harm to [the victim’s] health [was] likely to occur.” (Emphasis in original; internal quotation marks omitted.) State v. Peters, 40 Conn. App. 805, 824, 673 A.2d 1158, cert. denied, 237 Conn. 925, 677 A.2d 949 (1996) (trial court jury instruction held adequate).

In this case, the trial court heard evidence, which demonstrated beyond a reasonable doubt, that the defendant knew the baby had suffered injuries. The bruises on her face and subconjunctival hemorrhages were visible to anyone looking at her. The defendant saw and felt the swollen areas of the baby’s head. Such injuries endangered the baby’s health. Although he knew of those obvious injuries as well as the rectal tear, the defendant made the deliberate choice not to seek medical help for the baby prior to his 911 call or to report her injuries to the authorities.

For these reasons, we conclude that there was sufficient evidence for the trial court to find beyond a reasonable doubt that the defendant had the requisite intent to cause injury to the baby or, by failing to protect her, manifested a reckless disregard of the consequences, and to convict him of risk of injury to a child in violation of § 53-21.

The judgment is affirmed as to the conviction under § 53-21. The judgment is reversed as to the conviction on the six counts under § 53a-59 (a) (3) and the case is remanded with direction to render judgment of not guilty as to those counts.

In this opinion the other judges concurred.

       See State v. Miranda, 245 Conn. 209, 715 A.2d 680 (1998).

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . . . ”

       General Statutes (Rev. to 1993) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       Because of our resolution of the defendant’s first claim, it is not necessary to review his double jeopardy claim.

       In its brief on remand, the state agrees with the defendant that his assault convictions rested on two omissions, which led to two, not six, discrete injuries. The state consequently asked that we affirm the defendant’s conviction on counts five and ten of the information only, which charge the defendant with recklessly engaging in conduct that created a risk of death to another person resulting in multiple skull fractures and a rectal tear. The defendant was convicted of six counts of assault in the first degree. We reverse the judgment as to all of the counts.

       The defendant’s girlfriend was also arrested and charged with having caused the baby’s injuries. Following the defendant’s trial, she pleaded guilty pursuant to the Alford doctrine. See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       The information charges the defendant with first degree assault for three different acts: (1) failing to prevent the baby from living in a situation that created a risk of death and caused her serious physical injury; (2) causing the baby’s injuries by means of a dangerous instrument; and (3) engaging in conduct that created a risk of death to another person and thereby caused the baby serious physical injury that resulted in two distinct injuries, multiple skull fractures and a rectal tear.

       Our Supreme Court permitted the defendant to brief his claim of insufficient evidence concerning the risk of injury to a child conviction and any constitutional claims of due process and double jeopardy arising out of its decision. See State v. Miranda, supra, 245 Conn. 231-32 n.25.

       “A failure to act when one is under no legal duty to do so, thereby permitting a dangerous condition to exist, is not sufficient to support a conviction for assault in the first degree pursuant to § 53a-59 (a) (3).” State v. Miranda, supra, 41 Conn. App. 338.

       He is now Chief Justice of our Supreme Court.

       In distinguishing People v. Wong, 81 N.Y.2d 600, 619 N.E.2d 377, 601 N.Y.S.2d 440 (1993), Chief Justice McDonald noted that “New York’s penal law defines ‘omission’ as ‘a failure to perform an act as to which a duty of performance is imposed by law.’ N.Y. Penal Law § 15.00 [3] (McKinney 1998); see also People v. Steinberg, 79 N.Y.2d 673, 680, 595 N.E.2d 845, 584 N.Y.S.2d 770 (1992). Our penal code, however, contains no like provisions respecting omissions except as 1o criminal attempt under General Statutes § 53a-49.” State v. Miranda, supra, 245 Conn. 235 n.2.

       General Statutes § 53a-3 (4) provides: “ ‘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 . . .

       A perforated lung could cause hemorrhaging and thus drowning.