State v. Petion ( 2019 )

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STATE OF CONNECTICUT v. DIVENSON PETION
(SC 19938)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
Pursuant to statute (§ 53a-59 [a] [1]), a person is guilty of assault in the first
degree when, with intent to cause serious physical injury to another
person, he causes such injury to such person or to a third person by
means of a deadly weapon or a dangerous instrument.
Pursuant further to statute (§ 53a-3 [4]), ‘‘serious physical injury’’ means
physical injury that, inter alia, causes serious disfigurement.
Convicted of two counts of the crime of assault in the first degree in connec-
tion with a knife attack on two victims, B and R, the defendant appealed
to the Appellate Court, claiming, inter alia, that there was insufficient
evidence to support a conviction of first degree assault as to B because
the state failed to demonstrate that she suffered a serious physical injury
in the form of serious disfigurement. The defendant had attacked R
during a dispute, and B, in an attempt to stop the defendant from injuring
R, inserted herself between the two men. In the process, the defendant
cut B’s arm. At trial, the state introduced testimony from B’s treating
physician and two sets of photographs, one set taken shortly after
medical treatment had been rendered and one set taken thirty months
later, at the time of trial. Each set included one photograph magnifying
B’s injuries at close range and one photograph in which B displayed
the injured area of her arm from a sufficient distance to capture the
area from her torso to her head. The evidence established that B had
a 1.38 inch abrasion and a 0.30 inch laceration just above her left elbow,
and a 1.57 inch laceration just below her left elbow on her forearm.
The smaller laceration was closed with a single suture, whereas the
larger laceration required ten sutures. At the time of trial, the larger
laceration had left a scar approximately the same length as that lacera-
tion and was a slightly lighter tone than the surrounding skin. No other
injury was apparent, and B’s treating physician testified that the scar
would remain in its present condition. The Appellate Court affirmed the
judgment of conviction, and the defendant, on the granting of certifica-
tion, appealed to this court. Held:
1. The state failed to prove beyond a reasonable doubt that the defendant
had committed assault in the first degree by inflicting serious physical
injury on B with a dangerous instrument, the evidence having failed
to establish that B suffered serious disfigurement as a result of the
defendant’s assault, and, accordingly, the Appellate Court’s judgment
was reversed insofar as that court upheld the defendant’s conviction of
assault in the first degree as to B, and the case was remanded with
direction to vacate the defendant’s sentence and for resentencing on the
remaining count: although the defendant’s claim ordinarily is a factual
question for the jury, this court determined that there was a legal distinc-
tion between physical injury and serious physical injury that was not a
purely subjective matter, and, having determined that there was no
definition in the Penal Code of the foundational term, disfigurement, this
court looked to extratextual sources, including dictionary definitions,
Connecticut’s workers’ compensation scheme, and to definitions and
factors identified by other jurisdictions, to conclude that serious disfig-
urement is an impairment of or injury to the beauty, symmetry or appear-
ance of a person of a magnitude that substantially detracts from the
person’s appearance from the perspective of an objective observer;
moreover, the determination of whether a physical injury caused serious
disfigurement shall include consideration of such factors as the duration
of the disfigurement, its location, its size, and its overall appearance,
as well as the fact that serious disfigurement need not be permanent
or in a location of the body that is readily visible to others; applying
that definition and the relevant factors to B’s injuries, this court con-
cluded that the evidence established that, although B sustained a disfig-
urement, in the form of a permanent scar, that disfigurement was not
of a magnitude that objectively could be found to substantially detract
from B’s appearance, as B’s scar was not in a prominent location, and was
relatively small in size, uniform in shape and otherwise unremarkable
in its appearance.
2. The state could not prevail on its claim that, in light of this court’s
determination that the evidence was insufficient to sustain the defen-
dant’s conviction of first degree assault as to B, it should not direct a
judgment of acquittal on that charge but, instead, should direct that the
judgment be modified to reflect the defendant’s conviction of the lesser
included offense of assault in the second degree, the highest lesser
included offense that requires proof of physical injury rather than serious
physical injury: the state conceded that, in accordance with recent prece-
dent, State v. LaFleur (307 Conn. 115), this court must direct a judgment
of acquittal on the defendant’s conviction of first degree assault as to
B, when the evidence is insufficient to sustain that conviction and the
jury was not instructed on a lesser included offense, and the state failed
to provide sufficient justification for overruling LaFleur in favor of a rule
pursuant to which a conviction suffering from evidentiary insufficiency
would be modified to the highest lesser included offense supported by
the evidence, unless the defendant can prove that the absence of a jury
instruction on the lesser included offense was prejudicial; moreover,
there was no indication that the rule in LaFleur is unworkable, as the
state always can request an instruction on a lesser included offense that
is supported by the evidence, and, as both parties were aware at trial
that LaFleur was the controlling law, it would be unfair to the defendant
to change the law on appeal because, had the defendant known that
the judgment would be modified if he succeeded in challenging his
conviction on the ground of evidentiary insufficiency, he might have
sought an instruction not only on assault in the second degree but also
on other lesser offenses supported by the evidence.
(One justice concurring separately; three
justices dissenting in one opinion)
Argued November 13, 2018—officially released July 23, 2019
Procedural History
Substitute information charging the defendant with
two counts of the crime of assault in the first degree,
brought to the Superior Court in the judicial district of
Stamford-Norwalk and tried to the jury before White,
J.; verdict and judgment of guilty, from which the defen-
dant appealed to the Appellate Court, DiPentima, C.
J., and Prescott and Beach, Js., which affirmed the trial
court’s judgment, and the defendant, on the granting
of certification, appealed to this court. Reversed in part;
judgment directed in part; further proceedings.
Jennifer B. Smith, assigned counsel, for the appel-
lant (defendant).
James M. Ralls, assistant state’s attorney, with whom
were Richard J. Colangelo, Jr., state’s attorney, and
Maureen Ornousky, senior assistant state’s attorney,
for the appellee (state).
Opinion
McDONALD, J. Whether an assault results in physical
injury or serious physical injury can have profound
ramifications for the victim. Consequently, substantially
greater punishment may be imposed for the latter injury
than the former.1 Although this court has acknowledged
‘‘the difficulty of drawing a precise line as to where
physical injury leaves off and serious physical injury
begins’’ (internal quotation marks omitted); State v.
Ovechka, 292 Conn. 533, 546–47, 975 A.2d 1 (2009); see
also State v. Almeda, 211 Conn. 441, 451, 560 A.2d 389
(1989); the present case provides an opportunity to
illuminate that distinction. In particular, we use this
occasion to examine the parameters that should be
used by the trier of fact to assess whether a defendant
has inflicted serious physical injury in the form of seri-
ous disfigurement. See General Statutes § 53a-3 (4).
The defendant, Divenson Petion, appeals from the
Appellate Court’s judgment affirming his conviction of
two counts of assault in the first degree in violation of
General Statutes § 53a-59 (a) (1).2 See State v. Petion,
172 Conn. App. 668, 669–70, 687, 161 A.3d 618 (2017).
The defendant claims that the forearm scar sustained
by one of the two victims was an insufficient basis for
the jury to find the serious physical injury necessary
to support that charge. The state disagrees but requests,
in the event that we conclude otherwise, that a judg-
ment of acquittal not be rendered on that charge and,
instead, that the judgment be modified to reflect a con-
viction of the lesser included offense of assault in the
second degree; see General Statutes § 53a-60 (a) (2);
and the case be remanded for resentencing. We con-
clude that the evidence was insufficient to support the
challenged conviction. We further conclude that, under
State v. LaFleur, 307 Conn. 115, 51 A.3d 1048 (2012), the
state is not entitled to have the defendant’s conviction
modified. Therefore, we reverse in part the Appellate
Court’s judgment.
I
The Appellate Court’s opinion sets forth the facts
that the jury reasonably could have found; see State v.
Petion, supra, 172 Conn. App. 670–72; which we summa-
rize as follows. In 2008, the defendant began dating
Rosa Bran. Bran gave birth to the defendant’s daughter
in February, 2010. Bran also had a son from a prior
relationship. After the birth of his daughter, the defen-
dant’s romantic relationship with Bran ended. However,
they remained in contact, and the defendant occasion-
ally would visit his daughter, sometimes showing up
unannounced. The defendant told Bran that he did not
want other men around his daughter.
Shortly before the May, 2012 incident giving rise to
the criminal charges at issue, Bran resumed a friendship
with a former boyfriend, Robert Raphael. On the day
of the incident, Bran invited Raphael to her apartment,
and he arrived in the early afternoon. In addition to
Bran and her two children, her cousin’s two children
were present. Later that afternoon, there was a knock
on the door. Bran answered the door, expecting that it
was her cousin arriving to pick up her children, but it
was the defendant. He asked to see his daughter. Bran
explained that it was not a good time because the child
was asleep.
The defendant then saw Raphael. The defendant
became angry, pushed Bran aside, and entered the
apartment. He began to shout at Raphael to get out of
the apartment. Raphael did not want to leave Bran and
the children alone with the defendant in his agitated
state, and told the defendant that he was staying. In
response, the defendant began pushing and punching
Raphael. As Raphael retreated further into the apart-
ment, the defendant pursued him. The defendant pulled
out a knife from his pocket and slashed Raphael across
the face, cutting from Raphael’s ear to along his jaw
bone, deeply enough to damage a facial nerve and cut
a branch of his jugular vein. Bran inserted herself
between the two men during the confrontation, hoping
to stop the defendant from injuring Raphael. In the
process, the defendant cut Bran on her left arm.
Raphael, who was bleeding profusely, ran out of the
apartment, got in his car, and drove himself to the
hospital.3
The defendant repeatedly apologized to Bran and
then left the apartment. Bran was not immediately
aware that she had been cut. She realized that she had
been injured when her son came downstairs, alerted
Bran that she was bleeding, and grabbed a towel to
cover her wound. Shortly after the incident, Bran’s
cousin arrived to pick up her children, and she drove
Bran to the hospital.
When she arrived at the hospital, Bran had an abra-
sion and two lacerations on her left arm, one measuring
three-quarters of one centimeter and another measuring
four centimeters.4 The smaller laceration was treated
with a single suture. The larger laceration was closed
with ten sutures, which left a scar after the lacera-
tion healed.
The record reveals the following additional facts. The
state charged the defendant with two counts of assault
in the first degree in violation of § 53a-59 (a) (1). The
first count alleged that, with the intent to cause serious
physical injury to Raphael, the defendant caused such
injury to Raphael by means of a dangerous instrument.
The second count alleged that, with the intent to cause
serious physical injury to Raphael, the defendant
caused such injury to Bran by means of a dangerous
instrument.
At trial, the defendant presented an alibi witness, a
family friend. At the close of evidence, the defendant
moved for a judgment of acquittal on the charge of first
degree assault as to Bran. The court denied the motion.
Neither the defendant nor the state elected to have the
jury charged on any lesser included offense. The jury
returned a guilty verdict on both counts. On each count,
the trial court imposed a seventeen year term of impris-
onment, followed by three years of special parole, to
run concurrently.
The defendant appealed from the judgment of convic-
tion to the Appellate Court. He argued, in relevant part,
that there was insufficient evidence to support a convic-
tion of first degree assault as to Bran because the state
had failed to demonstrate beyond a reasonable doubt
that she suffered a ‘‘ ‘serious physical injury.’ ’’5 Id., 669.
The Appellate Court agreed with the state ‘‘that the
evidence presented to the jury showed that one of the
two lacerations that Bran received resulted in a signifi-
cant and readily visible scar and that, under our law,
a jury reasonably could have found that such scarring
constituted a serious disfigurement and, therefore, a
serious physical injury.’’ Id., 673. The Appellate Court
affirmed the judgment of conviction. Id., 687.
We thereafter granted the defendant’s petition for
certification to appeal, limited to the following issue:
‘‘In rejecting the defendant’s claim that there was insuf-
ficient evidence to support his conviction of assault in
the first degree in violation of . . . § 53a-59 (a) (1) with
respect to . . . Bran, did the Appellate Court properly
conclude that a jury reasonably could have found that
the one and one-half inch scar on her forearm consti-
tuted serious disfigurement and, therefore, a serious
physical injury?’’ State v. Petion, 326 Conn. 906, 163
A.3d 1205 (2017).
In their responses to this question, the parties devote
significant portions of their analyses to a comparison
between those injuries that the Appellate Court has
deemed sufficient to support a jury’s finding of serious
disfigurement in other cases and Bran’s injury in the
present case. Although they disagree as to which side
of the line the present case falls, they agree that juries
would be aided in making this determination by factors
to guide them.6
We do not find the comparative approach taken by
the parties to be useful here, particularly because the
Appellate Court had not examined the meaning of ‘‘seri-
ous disfigurement’’ in any of these cases,7 and this court
previously had given no guidance on the matter. Thus,
before we can consider the evidence, we must ascertain
the meaning of the legal standard against which we
assess that evidence. See State v. Drupals, 306 Conn.
149, 159, 49 A.3d 962 (2012). The statutory text is our
lodestar in this endeavor, and we consider relevant
extratextual sources to illuminate any ambiguity therein
to ascertain legislative intent. See General Statutes § 1-
2z. Insofar as any ambiguity exists, ‘‘[i]t is a fundamental
tenet of our law to resolve doubts in the enforcement
of a [P]enal [C]ode against the imposition of a harsher
punishment.’’ (Internal quotation marks omitted.) State
v. Drupals, supra, 160.
The defendant was convicted of violating § 53a-59 (a)
(1), which provides in relevant part: ‘‘A person is guilty
of assault in the first degree when . . . [w]ith intent
to cause serious physical injury to another person, he
causes such injury to such person or to a third person
by means of . . . a dangerous instrument . . . .’’8 The
Penal Code in turn defines certain essential terms.
‘‘ ‘Physical injury’ means impairment of physical condi-
tion or pain . . . .’’ General Statutes § 53a-3 (3). ‘‘ ‘Seri-
ous physical injury’ means physical injury which creates
a substantial risk of death, or which causes serious
disfigurement, serious impairment of health or serious
loss or impairment of the function of any bodily organ
. . . .’’ General Statutes § 53a-3 (4).
These definitions plainly reflect a legislative intention
to establish a material degree of difference between
mere physical injury and serious physical injury. This
differentiation is reflected in the severity of punishment
attendant to each. Assault resulting in physical injury,
unless inflicted by discharge of a firearm, carries a
maximum term of imprisonment of five years, whereas
assault resulting in serious physical injury carries a
maximum term of imprisonment of twenty years. See
General Statutes §§ 53a-35a (6) and (7), 53a-59 (b) and
53a-60 (b). Thus, ‘‘[a]lthough it may often be difficult
to distinguish between the two, such a distinction must
be drawn; a person can be found guilty of assault in
the first degree under . . . § 53a-59 [a] [1] only if he
‘causes serious physical injury to another person.’ ’’
(Emphasis in original.) State v. Rossier, 175 Conn. 204,
207, 397 A.2d 110 (1978).
We need not attempt, in the present case, to draw
comprehensive distinctions for general application. Our
focus is on one type of serious physical injury—serious
disfigurement. See General Statutes § 53a-3 (4).
We begin by examining the foundational term ‘‘disfig-
urement.’’ Our Penal Code does not define this term.
Neither did New York’s Penal Code, from which our
code’s relevant definitions and many of its core provi-
sions, such as our assault provisions, were drawn. See,
e.g., State v. Courchesne, 296 Conn. 622, 671–73, 998
A.2d 1 (2010); State v. Havican, 213 Conn. 593, 601,
569 A.2d 1089 (1990); Conn. Joint Standing Committee
Hearings, Judiciary, Pt. 1, 1969 Sess., p. 11; Report of
the Commission to Revise the Criminal Statutes (1967)
pp. 114–15, reprinted in 1 Law and Legislative Reference
Unit, Connecticut State Library, Connecticut Legislative
Histories Landmark Series: 1969 Public Act No. 828
(2005). Under the common meaning at the time our
code was adopted in 1969, ‘‘disfigurement’’ was defined
simply as ‘‘something that disfigures, as a scar.’’ The
Random House Dictionary of the English Language
(Unabridged Ed. 1966) p. 411. ‘‘Disfigure,’’ in turn, was
commonly defined as ‘‘to mar the appearance or beauty
of; deform’’; id.; ‘‘to spoil the appearance of’’; Webster’s
Seventh New Collegiate Dictionary (1969) p. 239; or ‘‘to
deform; to impair, as shape or form; to mar; to deface;
to injure the appearance or attractiveness of . . . .’’
Webster’s New Twentieth Century Dictionary (2d Ed.
1964) p. 524. Legal dictionaries of the day reflected
a similar definition for ‘‘disfigurement’’ that had been
adopted under workers’ compensation law in some
jurisdictions: ‘‘That which impairs or injures the beauty,
symmetry, or appearance of a person . . . that which
renders unsightly, misshapen, or imperfect, or deforms
in some manner.’’ Black’s Law Dictionary (4th Ed. 1968)
p. 554; accord Ballentine’s Law Dictionary (3d Ed. 1969)
p. 554. Our legislature subsequently adopted a substan-
tially similar definition for our workers’ compensation
scheme. See Public Acts 1991, No. 91-339, § 1, codified
as amended at General Statutes § 31-275 (8) (‘‘ ‘[d]isfig-
urement’ means impairment of or injury to the beauty,
symmetry or appearance of a person that renders the
person unsightly, misshapen or imperfect, or deforms
the person in some manner, or otherwise causes a detri-
mental change in the external form of the person’’).
Although this court has not previously considered
whether this statutory definition would apply to the
Penal Code, we note that every other jurisdiction that
has considered the term’s meaning as applied to penal
statutes generally or assault provisions specifically,
including New York, has adopted a definition of disfig-
urement that largely conforms to our workers’ compen-
sation definition.9 Therefore, we conclude that this
meaning should apply to our Penal Code. See General
Statutes § 1-1 (a) (directing that words that have
acquired particular and appropriate meaning in law be
construed as such and otherwise be construed in accor-
dance with commonly approved usage).
We next consider the difference between disfigure-
ment and serious disfigurement. At the time of the Penal
Code’s adoption, the common meaning of ‘‘serious,’’
specifically in relation to injury, was ‘‘having important
or dangerous possible consequences . . . .’’ Webster’s
Seventh New Collegiate Dictionary, supra, p. 792. Other
jurisdictions have applied similar definitions to ‘‘seri-
ous’’ as a modifier to ‘‘disfigurement’’ in their penal
statutes:10 ‘‘grave, or great’’; Williams v. State, 248 Ga.
App. 316, 318, 546 S.E.2d 74 (2001); ‘‘giving cause for
apprehension; critical’’; State v. Silva, 75 Haw. 419, 434,
864 P.2d 583 (1993); ‘‘grave and not trivial in quality or
manner.’’ State v. Clark, 974 A.2d 558, 573 (R.I. 2009).
Thus, just as inflicting serious physical injury is
deemed to be conduct of significantly greater culpabil-
ity than inflicting physical injury, it is evident that ‘‘ ‘to
disfigure . . . seriously’ must be to inflict some harm
substantially greater than the minimum required for
‘disfigurement.’ ’’ People v. McKinnon, 15 N.Y.3d 311,
315, 937 N.E.2d 524, 910 N.Y.S.2d 767 (2010). Other
jurisdictions that have given a unified definition to seri-
ous disfigurement under their penal laws, rather than
define each word separately, have defined it as ‘‘ ‘an
injury [that] mars the [victim’s] physical appearance
and causes a degree of unattractiveness sufficient to
bring negative attention or embarrassment’ ’’; Akaran
v. State, Docket No. A-8690, 2005 WL 1026992, *4
(Alaska App. May 4, 2005); an injury that would ‘‘make
the victim’s appearance distressing or objectionable to a
reasonable person observing her’’; People v. McKinnon,
supra, 316; or a ‘‘significant cosmetic deformity caused
by the injury.’’ Hernandez v. State, 946 S.W.2d 108, 113
(Tex. App. 1997). Cf. People v. McKinnon, supra, 315
(explaining that ‘‘serious’’ disfigurement would not rise
to level of ‘‘severe’’ disfigurement, such that it need
not be ‘‘ ‘abhorrently distressing, highly objectionable,
shocking or extremely unsightly’ to a reasonable per-
son’’). In defining a similar term in our workers’ com-
pensation scheme, our legislature defined ‘‘significant
disfigurement’’ as ‘‘any disfigurement that is of such a
character that it substantially detracts from the appear-
ance of the person bearing the disfigurement.’’11 Public
Acts 1991, No. 91-339, § 1, codified at General Statutes
(Rev. to 1993) § 31-275 (8). Because ‘‘serious’’ means,
at a minimum, ‘‘significant’’; see Webster’s Seventh New
Collegiate Dictionary, supra, pp. 792, 809 (defining ‘‘seri-
ous’’ as ‘‘having important or dangerous possible conse-
quences,’’ and ‘‘significant’’ as ‘‘important, weighty’’);
see also Fisher v. Blankenship, 286 Mich. App. 54, 66,
777 N.W.2d 469 (2009) (disfigurement will be consid-
ered serious if it is significant); we also conclude that
applying a similar definition to the Penal Code would
be appropriate.
In considering how to apply this definition to the
evidence in a given case, the present case requires con-
sideration of whether, and the extent to which, the
duration of the disfigurement is relevant. Unlike many
other jurisdictions, our Penal Code does not expressly
require an injury to persist for any particular duration
to qualify as a serious physical injury, including serious
disfigurement. See footnote 11 of this opinion. Early
drafts of our Penal Code defined ‘‘serious physical
injury’’ to include ‘‘serious and protracted disfigure-
ment, protracted impairment of health or protracted
loss or impairment of any of the bodily functions.’’
(Emphasis added.) Report of the Commission to Revise
the Criminal Statutes, supra, p. 6; Proposed House Bill
No. 7182, § 4 (4), 1969 Jan. Sess. In the substitute bill
that was favorably reported out of committee, ‘‘serious’’
was substituted for ‘‘protracted’’ where the former had
not been included; see Substitute House Bill No. 7182,
1969 Sess.; without explanation.
We do not view this change to mean that the duration
of the injury is not a proper consideration under § 53a-
59 (a) (1). The term ‘‘serious’’ is broader than ‘‘pro-
longed’’ in that it covers more than only the temporal
dimension, and it would appear that the legislature
decided that the broader term was all that was neces-
sary. See State v. Bledsoe, 920 S.W.2d 538, 540 (Mo.
App. 1996) (‘‘[a]lthough no longer statutorily required
. . . permanency of disfigurement is relevant, as a mat-
ter of evidence, on the element of seriousness’’ [cita-
tions omitted]). For example, a transitory blemish to
one’s appearance that heals without medical treatment
(e.g., a bruise, an abrasion) could hardly be deemed
serious disfigurement. See Williams v. State, supra, 248
Ga. App. 319 (‘‘[i]n every aggravated battery based upon
a serious disfigurement, including those in which the
disfigurement was temporary, the injury inflicted was
more than a superficial wound, that is, a scrape, bruise,
discoloration, or swelling’’). Conversely, injuries of
more lasting duration are more likely to be serious,
even when they heal without medical intervention.12
See, e.g., State v. Barretta, 82 Conn. App. 684, 689–90,
846 A.2d 946 (there was sufficient evidence to establish
serious disfigurement when, as result of being viciously
beaten with baseball bat, victim sustained contusions,
severe bruising, and abrasions all over his body), cert.
denied, 270 Conn. 905, 853 A.2d 522 (2004); State v.
Hughes, 469 S.W.3d 894, 901 (Mo. App. 2015) (there was
sufficient evidence to establish serious disfigurement
when victim was badly beaten in assault, but injuries
would all heal: victim had black eye, swollen eye barely
open, bruising around neck from scarf used to choke
her, bruising and discoloration on both cheeks,
scratches on right side of mouth, and abrasions to lip).
In the same way that permanence is not a necessary
condition for serious disfigurement; cf. General Statutes
§ 53a-59 (a) (2) (intent and effect of disfiguring another
person ‘‘seriously and permanently’’ is one basis of
assault in first degree [emphasis added]);13 neither is it a
sufficient condition, in and of itself, to establish serious
disfigurement. We are mindful that some of our Appel-
late Court’s decisions appear to suggest that, whenever
a defendant inflicts an injury that leaves a permanent
scar, the evidence would be sufficient to permit the
trier of fact to determine that serious disfigurement
exists. See, e.g., State v. Griffin, 78 Conn. App. 646,
655 n.3, 828 A.2d 651 (2003) (‘‘[a] permanent scar consti-
tutes serious and permanent disfigurement’’). But see
State v. Huckabee, 41 Conn. App. 565, 570–71, 677 A.2d
452 (‘‘[a] bullet wound is not per se serious physical
injury’’), cert. denied, 239 Conn. 903, 682 A.2d 1009
(1996). We agree with those jurisdictions that have rec-
ognized that, because any visible scar would mar the
victim’s appearance and thus constitute disfigurement,
the legislative choice of ‘‘serious’’ disfigurement evi-
dences an intent to require the presence of some other
factor(s) in addition to permanence to render a scar a
‘‘serious’’ disfigurement. See, e.g., Saelee v. State,
Docket No. A-10004, 2011 WL 807391, *9 (Alaska App.
March 2, 2011) (‘‘Even in the photographic exhibit, it
is difficult to see this scar if one is not looking closely. If
we were to declare this evidence sufficient to establish
a ‘serious and protracted disfigurement,’ we would
essentially be saying that any visible scar constitutes
a ‘serious physical injury’ for purposes of the assault
statutes. We do not believe that the legislature intended
this term to be interpreted so broadly.’’); State v. Silva,
supra, 75 Haw. 433 (‘‘[E]ven a small but noticeable scar
on a person’s face, for example, is a disfigurement.
However, such a scar would certainly not qualify as a
‘serious bodily injury’ under the statutory definition nor
should it.’’); Hernandez v. State, supra, 946 S.W.2d 113
(‘‘Simply that an injury causes a scar is not sufficient
to establish serious permanent disfigurement. . . .
There must be evidence of some significant cosmetic
deformity caused by the injury.’’ [Citation omitted.]);
see also State v. Hanes, 790 N.W.2d 545, 554 (Iowa
2010) (‘‘[s]carring may in some circumstances rise to
the level of serious permanent disfigurement’’); State
v. Bledsoe, supra, 920 S.W.2d 540 (‘‘permanency of dis-
figurement is relevant . . . on the element of seri-
ousness’’).
Factors identified by other jurisdictions as relevant
to the seriousness of a disfigurement in the form of a
scar include its permanence, but also its location, size,
and general appearance. See, e.g., State v. Roper, 136
S.W.3d 891, 898 (Mo. App. 2004); State v. Demers,
Docket No. CX-03-297, 2003 WL 22952813, *1 (Minn.
App. December 16, 2003), review denied, Minnesota
Supreme Court (February 25, 2004); People v. McKin-
non, supra, 15 N.Y.3d 316. If there is more than one
disfiguring feature, courts, including our Appellate
Court, have considered the cumulative effect of those
features to assess seriousness. See, e.g., State v. Ander-
son, 16 Conn. App. 346, 357, 547 A.2d 1368, cert. denied,
209 Conn. 828, 552 A.2d 433 (1988); Levin v. State, 334
Ga. App. 71, 74, 778 S.E.2d 238 (2015), cert. denied,
Georgia Supreme Court, Docket No. S16C0249 (January
11, 2016); Sloan v. State, Docket No. 49A02-1002-CR-
195, 2010 WL 4813600, *2 (Ind. App. November 24, 2010)
(decision without published opinion, 937 N.E.2d 938
[Ind. App. 2010]); State v. Roper, supra, 898. Similar
factors have been identified under our workers’ com-
pensation scheme. See General Statutes § 31-308 (c)
(‘‘[i]n making any award under this subsection, the com-
missioner shall consider [1] the location of the scar or
disfigurement, [2] the size of the scar or disfigurement,
[3] the visibility of the scar or disfigurement due to
hyperpigmentation or depigmentation, whether hyper-
trophic or keloidal, [4] whether the scar or disfigure-
ment causes a tonal or textural skin change, causes loss
of symmetry of the affected area or results in noticeable
bumps or depressions in the affected area, and [5] other
relevant factors’’).
On the basis of the foregoing analysis, we discern
the following distinction between disfigurement and
serious disfigurement. ‘‘Disfigurement’’ means impair-
ment of or injury to the beauty, symmetry or appearance
of a person that renders the person unsightly, mis-
shapen or imperfect, or deforms the person in some
manner, or otherwise causes a detrimental change in
the external form of the person. ‘‘Serious disfigure-
ment’’ is an impairment of or injury to the beauty, sym-
metry or appearance of a person of a magnitude that
substantially detracts from the person’s appearance
from the perspective of an objective observer. In
assessing whether an impairment or injury constitutes
serious disfigurement, factors that may be considered
include the duration of the disfigurement, as well as its
location, size, and overall appearance. Serious disfig-
urement does not necessarily have to be permanent or
in a location that is readily visible to others.14 The jury
is not bound by any strict formula in weighing these
factors, as a highly prominent scar in a less visible
location may constitute serious disfigurement, just as a
less prominent scar in a more visible location, especially
one’s face, may constitute serious disfigurement.
With these principles in mind, we turn to the defen-
dant’s claim that the evidence in the present case is
insufficient to establish that Bran suffered a ‘‘serious
physical injury’’ in the form of ‘‘serious disfigurement.’’
Although ordinarily a factual question for the jury; see,
e.g., State v. Almeda, supra, 211 Conn. 450; State v.
Miller, 202 Conn. 463, 489, 522 A.2d 249 (1987); there
is a legal distinction between physical injury and serious
physical injury that is not a purely subjective matter,
and it is ultimately our responsibility to draw that line.
See State v. Rossier, 175 Conn. 204, 207, 397 A.2d 110
(1978) (‘‘[a]lthough it may often be difficult to distin-
guish between [physical injury and serious physical
injury], such a distinction must be drawn’’ before defen-
dant can be found guilty of assault in first degree under
§ 53a-59 [a] [1] [emphasis added]); State v. Jeustiniano,
172 Conn. 275, 281, 374 A.2d 209 (1977) (‘‘[t]he degree
of the injuries suffered by [the victim] was a proper
question for the jury to decide if sufficient evidence
were introduced’’); Hernandez v. State, supra, 946
S.W.2d 113 (‘‘Disfigurement, like beauty, is in the eye
of the beholder. However, when distinguishing between
‘bodily injury’ and ‘serious bodily injury’ it is, again, a
matter of degree. Simply that an injury causes a scar
is not sufficient to establish serious permanent disfig-
urement. . . . There must be evidence of some signifi-
cant cosmetic deformity caused by the injury.’’ [Cita-
tion omitted.]).
‘‘In reviewing the [legal] sufficiency of the evidence
concerning this element of assault in the first degree,
our task is to construe the evidence in the light most
favorable to sustaining the jury’s verdict, and then to
determine whether any rational trier of fact could have
found that the harm suffered rose to the level of a
serious physical injury under the statute.’’ (Internal quo-
tation marks omitted.) State v. Almeda, supra, 211
Conn. 450; accord State v. Adams, 327 Conn. 297, 304–
305, 173 A.3d 943 (2017).
The evidence regarding Bran’s injuries principally
came from the testimony of her treating physician at
the hospital and two sets of photographs of the injured
area: one set taken shortly after medical treatment was
rendered and the other set taken thirty months later,
at the time of trial. Each set included one photograph
magnifying the injuries at close range and one photo-
graph in which Bran displayed the injured area of her
arm, taken from a sufficient distance to capture the area
from Bran’s upper torso to her head. Bran’s physician
testified that the scar would remain in its present con-
dition.
Bran testified that she was unaware that she had
been cut until her son told her that she was bleeding.
Her only testimony relating to the appearance of her
injury was her agreement that the photographs taken
after treatment accurately depicted her condition at
that time and her estimation of the approximate size of
the scar at the time of trial. No testimony was provided
regarding the impact of the scar on her appearance.
The state opted not to have Bran display her scar to
the jury directly, presenting the contemporaneous pho-
tographs instead.
The evidence collectively established the following
undisputed facts. Immediately following the incident,
Bran had an approximately 1.38 inch (three and one-
half centimeters) abrasion and an approximately 0.30
inch (three-quarters of one centimeter) laceration just
above her left elbow. Just below her left elbow, on her
forearm, Bran had an approximately 1.57 inch (four
centimeter) laceration. The smaller laceration was
closed with a single suture; the larger laceration was
closed with ten sutures. The closed lacerations appear
quite narrow.15 By the time of trial, the larger of the
two lacerations had left a scar approximately the same
length as the laceration, although it appears to be
slightly wider in the magnified close-up than when
sutured. The scar is a slightly lighter tone than the
surrounding skin. No other injury is apparent.
Our application of the factors previously identified as
relevant to assessing whether the victim has sustained
a serious disfigurement establishes that Bran sustained
a disfigurement, in the form of a permanent scar. That
scar is in a location that could be seen if Bran wears
anything shorter than a three-quarter sleeve top. The
scar is not, however, in a prominent location such as
her face or neck.16 It is relatively small in size, uniform
in shape (a straight line), and otherwise unremarkable
in its general appearance. Although the scar is visible
if one looks for it, in the photograph that appears to
have been taken from a distance of normal social inter-
action, its appearance is not such that one’s eye natu-
rally would be drawn to it. Serious disfigurement
requires something more than visibility, as it must be
visible to mar one’s appearance and, hence, meet the
threshold for disfigurement. See Akaran v. State, supra,
2005 WL 1026992, *3 (noting that ‘‘courts agree that if
a scar is observable from a normal social distance,
it constitutes a disfigurement,’’ and then considering
whether scar is also serious disfigurement); Thomas v.
State, 128 Md. App. 274, 303, 737 A.2d 622 (‘‘[d]isfigure-
ment is generally regarded as an externally visible blem-
ish or scar that impairs one’s appearance’’ [emphasis
added]), cert. denied, 357 Md. 192, 742 A.2d 521 (1999).
This evidence compels the conclusion that the disfig-
urement is not of a magnitude that objectively could be
found to substantially detract from Bran’s appearance.
We hold that the evidence is not legally sufficient to
meet the threshold for serious disfigurement.
We note that, while no two cases are precisely the
same, other jurisdictions considering a single scar of
roughly similar size, location, and/or appearance as the
one in the present case have concluded that the evi-
dence did not rise to the level of serious disfigurement.
See, e.g., Vo v. State, 612 So. 2d 1323, 1325 (Ala. App.
1992) (bullet wound through arm was not serious physi-
cal injury), cert. denied, Alabama Supreme Court,
Docket No. 1920350 (February 19, 1993); Davis v. State,
467 So. 2d 265, 266–67 (Ala. App. 1985) (scars on victim’s
hand from bullet going through it was not serious disfig-
urement); McDaniel v. Commonwealth, 415 S.W.3d 643,
659 (Ky. 2013) (small scar on victim’s wrist from bullet
wound, barely visible in video, was not serious disfig-
urement, consistent with cases in which court pre-
viously held that scar from small stab wound was not
serious disfigurement); People v. Stewart, 18 N.Y.3d 831,
832, 962 N.E.2d 764, 939 N.Y.S.2d 273 (2011) (six to
seven centimeter [approximately two and one-half inch]
wound on victim’s inner forearm requiring sutures was
not shown to be objectively distressing or objectionable
so as to justify conclusion that it constituted serious
disfigurement predicate for first degree assault); People
v. McKinnon, supra, 15 N.Y.3d 316 (two scars of moder-
ate size on victim’s inner forearm were not serious
disfigurement, in absence of evidence that there was
something unusually disturbing about scars); Bueno v.
State, 996 S.W.2d 406, 408 (Tex. App. 1999) (two inch
scar on abdomen was not sufficient to show serious,
permanent disfigurement); Hernandez v. State, supra,
946 S.W.2d 113 (one inch scar on abdomen did not
amount to serious, permanent disfigurement); McCoy
v. State, 932 S.W.2d 720, 724 (Tex. App. 1996) (scar on
victim’s lip that was permanent but not visible unless
individual looked for it was not sufficient to constitute
serious, permanent disfigurement). But cf. Sloan v.
State, supra, 2010 WL 4813600, *1–2 (five scars from
stab wounds in left arm and shoulder were sufficient
evidence of serious, permanent disfigurement); Thomas
v. State, supra, 128 Md. App. 303 (court could not con-
clude that there was insufficient evidence of serious
physical injury as result of bite wound on arm that left
scar because court did not see scar and, therefore, could
not say that reasonable jurors who did see it could
not conclude that it was serious, permanent/protracted
disfigurement); State v. Williams, 784 S.W.2d 309, 311
(Mo. App. 1990) (three inch laceration to victim’s neck,
described in hospital record as superficial, was held to
constitute serious disfigurement due to keloid forma-
tion of scar tissue); State v. Pettis, 748 S.W.2d 793, 794
(Mo. App. 1988) (four inch scar on arm constituted
serious disfigurement); State v. Williams, 740 S.W.2d
244, 246 (Mo. App. 1987) (five inch wound on neck with
resulting hypertrophic, or elevated, scar was held to
constitute serious disfigurement); People v. Ahearn, 88
A.D. 2d 691, 692, 451 N.Y.S.2d 318 (1982) (‘‘[i]t is
reasonable to characterize the extensive permanent
scar [on the victim’s arm] as a ‘serious and protracted
disfigurement’ ’’ [emphasis added]).
These cases reflect that, even though no bright line
can be drawn between simple disfigurement and serious
disfigurement, the courts have a role in ensuring that the
evidence meets a minimum threshold that distinguishes
the two. When reasonable minds could disagree as to
the side of the line on which the injury falls, it would
be improper for this court to act as a seventh juror and
to substitute its own view for that of the jury. However,
this is not such a case.
Although the state framed its disfigurement argument
to the jury solely in reference to Bran’s scar at the time
of trial, it asserts in its brief to this court that the jury
also was free to consider the appearance of Bran’s
injuries when inflicted, and properly could have ren-
dered its verdict on that basis. We agree that, in
assessing the seriousness of the disfigurement, the jury
was not limited to considering the injury in its final,
fully healed state. See, e.g., State v. Barretta, supra, 82
Conn. App. 686, 688–90 (contusions and severe bruising
all over body from beating with baseball bat established
serious disfigurement). But we are not persuaded that
this perspective changes the outcome. The nature of
the injury on Bran’s arm at the time it was inflicted and
at the time of the trial was not significantly different.
The forearm laceration was appreciably more apparent
immediately after the wound was sutured than after it
healed, but it still retained the relatively undistinguish-
ing features previously discussed.17 Consequently, this
evidence also was legally insufficient to support a find-
ing of serious disfigurement.
We emphasize that, in concluding that the evidence
was not legally sufficient to establish that the defendant
caused Bran to suffer serious disfigurement, we do not
intend to trivialize the assault or the physical legacy of
it that remains with Bran. However, it is clear that the
state failed to prove beyond a reasonable doubt that
the defendant committed assault in the first degree by
inflicting serious physical injury on Bran with a danger-
ous instrument. Therefore, the defendant’s conviction
of that charge must be reversed.
II
In light of this determination, we must consider the
state’s contention that we should not direct a judgment
of acquittal on this charge but, instead, that the judg-
ment should be modified to reflect the highest lesser
included offense that requires only physical injury, not
serious physical injury, i.e., assault in the second degree
in violation of § 53a-60 (a) (2),18 and the defendant
should be resentenced accordingly. The state concedes
that, under State v. LaFleur, supra, 307 Conn. 115, the
judgment of conviction must be reversed. It contends,
however, that we should reconsider this precedent—
despite its relatively recent vintage—because its rea-
soning is unsound. The state asks us, instead, to over-
rule LaFleur in favor of a rule under which a conviction
suffering from evidentiary insufficiency would be modi-
fied to the highest lesser included offense supported
by the evidence, unless the defendant can prove that
the absence of a jury instruction on that lesser included
offense was prejudicial. The state contends that the
fact that the jury was never charged on the lesser
offense does not demonstrate such prejudice because,
by finding that the evidence supported all the elements
of the greater offense, the jury necessarily found that
the evidence supported the elements of the lesser
included offense. We decline to overrule LaFleur.
Our decision in LaFleur hewed closely to the analysis
applied in State v. Sanseverino, 291 Conn. 574, 969 A.2d
710 (2009). That case involved an instructional error
based on a posttrial change to our long-standing inter-
pretation of the kidnapping statute under which the
defendant was convicted. Id., 577–78, 595. In light of
that error, this court considered the state’s contention
that, if it elected not to retry the defendant on the
kidnapping charge, it would be entitled to a modifica-
tion of the judgment to reflect the lesser included
offense of unlawful restraint in the second degree. Id.,
590. The court noted a split of authority in state and
federal courts as to whether modification is proper if
the jury had not been instructed on the lesser included
offense, as was the case in Sanseverino. Id., 593. One
group held that modification is never proper under
those circumstances; the other group held that modifi-
cation is proper as long as there is no prejudice to the
defendant. Id., 593–94. This court concluded in Sansev-
erino that, ‘‘[u]nder the unique circumstances’’ of the
case; id., 595; the judgment could be modified to reflect
the lesser included offense because (1) there was no
reason to believe that the state had opted against seek-
ing a jury instruction on that lesser included offense
for strategic purposes (because our precedent was so
well settled), (2) the defendant had benefited from our
holding in the case that had overruled precedent, even
though he had not raised a claim challenging that prece-
dent, (3) the defendant had not objected to the state’s
request for a modification of the judgment, and (4) we
could conceive of no reason why it would be unfair
to the defendant to impose a conviction of unlawful
restraint in the second degree (given the preceding cir-
cumstances and the fact that the jury ‘‘necessarily’’
found the defendant guilty of the lesser included offense
by finding him guilty of the greater offense). (Emphasis
in original.) Id., 595 and 596 n.17.
Three years later, in LaFleur, this court similarly was
faced with the question of whether instructional error
on an element of assault in the first degree required
the conviction to be reversed or the judgment to be
modified to the lesser included offense of assault in the
second degree when the jury had not been instructed
on that lesser offense. State v. LaFleur, supra, 307 Conn.
140–42. The instructional error in LaFleur stemmed
from an issue of first impression, whether a fist is a
‘‘dangerous instrument.’’ Id., 140. In a closely divided
decision, this court concluded that modification was
not appropriate. Id., 153–54; id., 164-85 (Palmer, J., dis-
senting). The majority pointed to the split of authority
on this issue that had been acknowledged in Sansever-
ino. Id., 142–43. It rejected the approach of the courts
permitting modification in the absence of evidence of
undue prejudice to the defendant because that
approach did not give any weight to the fact that the
jury had not been charged on the lesser included
offense, and did not consider that the state may have
had a strategic reason for not requesting the lesser
charge. Id., 145–47. Ultimately, the majority in LaFleur
looked to the circumstances that justified modification
in Sanseverino and concluded that, because these cir-
cumstances were not present in LaFleur, the court
could not conclude that it would be fair to the defendant
to allow modification. Id., 147–51.
The majority cited several reasons why, in the
absence of those unusual circumstances, a court should
not modify a conviction when the state did not request
a charge on the lesser included offense: ‘‘First, an appel-
late court does not sit as a [fact finder] in a criminal
case and should avoid resolving cases in a manner [that]
appears to place the appellate court in the jury box. . . .
‘‘Second . . . this view preserves the important dis-
tinction between an appellate determination [that] the
record contains sufficient evidence to support a guilty
verdict and a jury determination [that] the [s]tate proved
its case beyond a reasonable doubt. . . .
‘‘Third, when [a jury instruction on the lesser offense
has been given] . . . it can be said with some degree
of certainty that a [sentencing remand] is but effecting
the will of the fact finder within the limitations imposed
by law . . . and . . . that the appellate court is simply
passing on the sufficiency of the implied verdict. When,
however, no instruction at all has been offered on the
lesser offense, second guessing the jury becomes far
more speculative. . . .
‘‘Fourth, when the jury could have explicitly returned
a verdict on the lesser offense, the defendant is well
aware of his potential liability for the lesser offense
and usually will not be prejudiced by the modification of
the judgment from the greater to the lesser offense. . . .
‘‘Fifth, adopting a practice of remanding for sentenc-
ing on a lesser included offense when that offense has
not been submitted to the jury may prompt the [s]tate to
avoid requesting or agreeing to submit a lesser included
offense to the jury. . . .
‘‘Sixth, the [s]tate would obtain an unfair and
improper strategic advantage if it successfully prevents
the jury from considering a lesser included offense by
adopting an all or nothing approach at trial, but then
on appeal, perhaps recognizing [that] the evidence will
not support a conviction [of] the greater offense, is
allowed to abandon its trial position and essentially
concede [that] the lesser included offense should have
been submitted to the jury. . . .
‘‘Seventh . . . [t]he defendant may well have [for-
gone] a particular defense or strategy due to the trial
[court’s] rejection of a lesser included offense.’’ (Inter-
nal quotation marks omitted.) Id., 152 n.30, quoting
State v. Brown, 360 S.C. 581, 594–97, 602 S.E.2d 392
(2004); see State v. Brown, supra, 594–97 (explaining
why charge on lesser included offense is necessary
prerequisite to modification).
The majority’s analysis in LaFleur resulted in two
notable clarifications of the Sanseverino factors. First,
the majority effectively determined that it would pre-
sume that the state’s failure to request an instruction
on the lesser included offense was strategic unless the
evidentiary deficiency resulted from an unforeseeable
change in the law, not merely the resolution of an issue
of first impression, such that the state could not have
anticipated the change. Id., 147. Second, it effectively
presumed that the absence of an instruction on the
lesser included offense prejudiced the defendant:
‘‘Regardless of whether the defense challenged the
state’s claims as to elements of the lesser included
charge, trial strategy and jury deliberations are inevita-
bly colored by the inclusion of a lesser included charge
to the jury.’’ (Emphasis added.) Id., 151.
The dissent in LaFleur argued that the Sanseverino
factors were never intended to apply as a general frame-
work for assessing whether modification of the judg-
ment is proper in the absence of a jury charge on the
lesser included offense. Id., 166–67 (Palmer, J., dis-
senting). It contended that, as a general matter, modifi-
cation is not unfair to the defendant in such cases
because the greater offense puts the defendant on
notice of the lesser offense and a jury finding on the
greater offense necessarily means that the jury finds
the elements of the lesser offense satisfied. Id., 168,
173–74 (Palmer, J., dissenting). The dissent contended
that, unless the defendant can offer a legitimate reason
why it would be unfair to sentence him to the lesser
included offense, modification of the judgment achieves
the result most consonant with justice. Id., 166, 173–81
(Palmer, J., dissenting). It criticized the majority for
purporting to reject a bright line rule when, in reality,
it had adopted one, asserting that the state will be
unable to prove either that its failure to seek an instruc-
tion on the lesser included offense was not strategic
or that the defendant would not have altered his trial
strategy had such an instruction been given. Id., 173
(Palmer, J., dissenting).
Having thus provided a comprehensive review of the
precedent that the state seeks to overrule, we must
consider whether the prudential doctrine of stare deci-
sis counsels against that action. Stare decisis ‘‘counsels
that a court should not overrule its earlier decisions
unless the most cogent reasons and inescapable logic
require it. . . . Stare decisis is justified because it
allows for predictability in the ordering of conduct,
it promotes the necessary perception that the law is
relatively unchanging, it saves resources and it pro-
motes judicial efficiency.’’ (Internal quotation marks
omitted.) Graham v. Commissioner of Transportation,
330 Conn. 400, 417, 195 A.3d 664 (2018). ‘‘While stare
decisis is not an inexorable command . . . the doc-
trine carries such persuasive force that we have always
required a departure from precedent to be supported
by some special justification. . . . Dickerson v. United
States, 530 U.S. 428, 443, 120 S. Ct. 2326, 147 L. Ed. 2d
405 (2000). Such justifications include the advent of
subsequent changes or development in the law that
undermine[s] a decision’s rationale . . . the need to
bring [a decision] into agreement with experience and
with facts newly ascertained . . . and a showing that
a particular precedent has become a detriment to coher-
ence and consistency in the law . . . .’’ (Internal quota-
tion marks omitted.) Sepega v. DeLaura, 326 Conn. 788,
798–99 n.5, 167 A.3d 916 (2017). ‘‘When a prior decision
is seen so clearly as error that its enforcement [is] for
that very reason doomed . . . the court should seri-
ously consider whether the goals of stare decisis are
outweighed, rather than dictated, by the prudential and
pragmatic considerations that inform the doctrine to
enforce a clearly erroneous decision.’’ (Citation omit-
ted; internal quotation marks omitted.) Conway v. Wil-
ton, 238 Conn. 653, 659, 680 A.2d 242 (1996). In making
this determination, the court should consider whether
the parties acted in reliance on the rule at issue. See
Spiotti v. Wolcott, 326 Conn. 190, 202–203, 163 A.3d 46
(2017) (‘‘a departure from precedent may be justified
when the rule to be discarded may not be reasonably
supposed to have determined the conduct of the liti-
gants’’ [internal quotation marks omitted]).
We are not persuaded that the state has provided a
sufficient justification for overruling LaFleur. The
state’s reasons mirror those made by the dissent in
LaFleur, which did not carry the day. The state does
not argue that the split among both federal and state
courts on this issue has evolved to a greater consensus
favoring modification. The very fact that reasonable
jurists disagree on this matter suggests that LaFleur
has not been proven ‘‘clearly’’ wrong.
Nor is there any evidence that the rule in LaFleur is
unworkable. If the state wants to avoid the possibility
that the evidence will be deemed insufficient to support
the charge, whether by the jury or a reviewing court, it
can simply request an instruction on any lesser included
offense supported by the evidence. In fact, we agree
with the dissent in LaFleur that the practical effect of
the majority’s analysis is a bright line rule.
Reliance interests also favor application of the hold-
ing in LaFleur to the present case. Both parties were
on notice at trial that LaFleur was the controlling law.
Knowing this, the state chose to gamble that the evi-
dence would be found factually and legally sufficient
to support a conviction of assault in the first degree as
to both victims, despite the obvious disparity in the
seriousness of their injuries. It is fair to presume, under
these circumstances, that the defendant believed that
the evidence was insufficient to support a charge of
assault in the first degree as to Bran and that, in the
absence an instruction on a lesser included offense,
either (a) the jury would find him not guilty; see Fair
v. Warden, 211 Conn. 398, 404, 559 A.2d 1094 (‘‘[i]t may
be sound trial strategy not to request a lesser included
offense instruction, hoping that the jury will simply
return a not guilty verdict’’), cert. denied, 493 U.S. 981,
110 S. Ct. 512, 107 L. Ed. 2d 514 (1989); or (b) his
conviction would be vacated under LaFleur. It would
be unfair to the defendant to change the law on appeal.
Had he known that the judgment would be modified if
he succeeded on his evidentiary sufficiency challenge,
he might have sought an instruction not only on assault
in the second degree, a class D felony, but also on
assault in the third degree, a class A misdemeanor. See
General Statutes §§ 53a-60 (a) (2) and (b) and 53a-61.19
Under our law, the defendant would have been entitled
to instructions all the way down to the lowest offense
supported by the evidence. See, e.g., State v. Vasquez,
176 Conn. 239, 241, 244, 405 A.2d 662 (1978) (when
information charged defendant with robbery in first
degree, he was entitled to jury charge on robbery in
second degree, robbery in third degree, and larceny in
fourth degree on ground that those offenses are lesser
included crimes of robbery in first degree). We con-
clude, therefore, that the state has not provided a sub-
stantial justification for departing from the holding in
LaFleur.
The state contends, however, that there is evidence
here, unlike in LaFleur, to establish that the defendant
was not prejudiced by the lack of an instruction on the
lesser included offense of assault in the second degree.
The state points to the fact that the defendant submitted
proposed jury instructions on the first day of evidence
that included a request to charge on assault in the sec-
ond degree with respect to Bran but that he withdrew
that request at the charging conference at the close of
evidence.20 Given this timing, the state claims that ‘‘the
defendant put on his entire defense anticipating that a
lesser charge would be given before withdrawing the
request’’ and, therefore, could not have been prejudiced
by the absence of the instruction. We disagree. The
timing of the withdrawal does not necessarily correlate
to the timing of the defendant’s decision, as there was
no need to inform the court of that decision prior to
the charging conference. The defendant may have made
that determination during or at the close of the state’s
case-in-chief, after it likely became apparent that the
state’s proof as to Bran fell short of the evidence needed
for a conviction of assault in the first degree. Moreover,
as previously noted, had the state sought an instruction
on assault in the second degree at the charging confer-
ence, the defendant might have requested a charge on
a still lesser offense.
We therefore conclude that the defendant’s convic-
tion of assault in the first degree as to Bran must be
reversed. In light of this determination, one further
observation is warranted. ‘‘This court has endorsed the
. . . aggregate package theory of sentencing. . . .
Pursuant to that theory, we must vacate a sentence in
its entirety when we invalidate any part of the total
sentence. On remand, the resentencing court may
reconstruct the sentencing package or, alternatively,
leave the sentence for the remaining valid conviction
or convictions intact. . . . Thus, we must remand this
case for resentencing on the sole [count] on which the
defendant stands convicted.’’ (Citation omitted; internal
quotation marks omitted.) State v. LaFleur, supra, 307
Conn. 164.
The judgment of the Appellate Court is reversed only
with respect to the conviction of assault in the first
degree as to Bran and the case is remanded to that
court with direction to remand the case to the trial
court with direction to render judgment of acquittal on
that charge, to vacate the defendant’s sentence, and to
resentence him on the remaining charge; the judgment
of the Appellate Court is affirmed in all other respects.
In this opinion KAHN and ECKER, Js., concurred.
1
An exception, not relevant to the present case, arises when a defendant
inflicts physical injury by means of the discharge of a firearm. See footnote
2 of this opinion.
2
General Statutes § 53a-59 (a) provides: ‘‘A person is guilty of assault in
the first degree when: (1) With intent to cause serious physical injury to
another person, he causes such injury to such person or to a third person
by means of a deadly weapon or a dangerous instrument; or (2) with
intent to disfigure another person seriously and permanently, or to destroy,
amputate or disable permanently a member or organ of his body, he causes
such injury to such person or to a third person; or (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; or (4) with intent to cause serious
physical injury to another person and while aided by two or more other
persons actually present, he causes such injury to such person or to a third
person; or (5) with intent to cause physical injury to another person, he
causes such injury to such person or to a third person by means of the
discharge of a firearm.’’ (Emphasis added.)
3
Raphael was in critical condition when he was admitted to the hospital.
State v. Petion, supra, 172 Conn. App. 672 n.2. His injuries required immediate
surgery and resulted in permanent scarring and nerve damage to his face. Id.
4
Bran’s treating physician testified that Bran’s vital signs—blood pressure
and respiratory rate—were ‘‘grossly abnormal’’ when he first had contact
with her but acknowledged that the elevated levels were a function of
adrenaline when someone is injured. He offered no testimony as to whether
or how long these levels were sustained; nor did he suggest that these levels
created a substantial risk of death, or caused a serious impairment of health
or serious loss or impairment of the function of any bodily organ. See
General Statutes § 53a-3 (4) (defining serious physical injury). Bran was not
admitted to the hospital for observation and received no treatment other
than sutures for the lacerations.
5
The defendant challenged the sufficiency of the evidence only with
respect to the assault charge involving Bran. The defendant contended that
prosecutorial improprieties deprived him of a fair trial with respect to the
charges of assault as to both Raphael and Bran. The Appellate Court rejected
that claim; see State v. Petion, supra, 172 Conn. App. 678; and the defendant
has not challenged that aspect of the court’s decision.
6
Although the trial court’s charge provided no such factors to guide the
jury, the defendant does not raise a claim of instructional error.
7
In one earlier case, cited by the Appellate Court in the present case; see
State v. Petion, supra, 172 Conn. App. 674–75; the Appellate Court considered
dictionary definitions of ‘‘disfigurement’’ but did not further consider how
‘‘serious’’ modified that meaning. See State v. Barretta, 82 Conn. App. 684,
689, 846 A.2d 946, cert. denied, 270 Conn. 905, 853 A.2d 522 (2004). By
declining to use these cases as benchmarks, we do not intend to express
a view as to whether they were correctly decided.
8
‘‘ ‘Dangerous instrument’ means any instrument, article or substance
which, under the circumstances in which it is used or attempted or threat-
ened to be used, is capable of causing death or serious physical injury
. . . .’’ General Statutes § 53a-3 (7).
9
See, e.g., Akaran v. State, Docket No. A-8690, 2005 WL 1026992, *4
(Alaska App. May 4, 2005) (defining disfigurement as ‘‘an injury [that] mars
the [victim’s] physical appearance’’); Williams v. State, 248 Ga. App. 316,
318, 546 S.E.2d 74 (2001) (applying definition of disfigurement ‘‘as that which
impairs or injures the appearance of a person’’); State v. Silva, 75 Haw. 419,
433, 864 P.2d 583 (1993) (‘‘a ‘disfigurement’ is, in relevant part, ‘something
that disfigures, as a scar,’ while to ‘disfigure’ is ‘to mar the effect or excellence
of’ ’’); James v. State, 755 N.E.2d 226, 230 (Ind. App.) (applying definition
of disfigure as ‘‘ ‘to make less complete, perfect or beautiful in appearance
or character: deface, deform, mar’ ’’), appeal denied, 761 N.E.2d 423 (Ind.
2001); Thomas v. State, 128 Md. App. 274, 303, 737 A.2d 622 (applying
definition of disfigurement as ‘‘ ‘an externally visible blemish or scar that
impairs one’s appearance’ ’’), cert. denied, 357 Md. 192, 742 A.2d 521 (1999);
State v. Bledsoe, 920 S.W.2d 538, 540 (Mo. App. 1996) (disfigure ‘‘means to
deface or mar the appearance or beauty of someone’’); State v. Clark, 974
A.2d 558, 572 (R.I. 2009) (disfigurement means ‘‘ ‘that which impairs or
injures the beauty, symmetry or appearance of a person or thing; that which
renders unsightly, misshapen or imperfect or deforms in some manner’ ’’);
see also State v. Ferrer, Docket No. 47687-8-II, 2018 WL 4896669, *2 (Wn.
App. October 9, 2018) (trial court instructed jury that ‘‘[d]isfigurement means
that which impairs or injures the beauty, symmetry or appearance of a
person or thing; that which renders unsightly, misshapen, or imperfect, or
deforms in some manner’’ [internal quotation marks omitted]) (decision
without published opinion, 5 Wash. App. 2d 1034 [2018]).
10
Penal laws in the majority of jurisdictions also define serious physical
or bodily injury to include serious disfigurement, although many of those
jurisdictions add a durational term (e.g., protracted, prolonged, permanent).
See Ala. Code § 13A-1-2 (14) (2015) (‘‘serious and protracted disfigurement’’);
Alaska Stat. § 11.81.900 (b) (58) (B) (‘‘serious and protracted disfigurement’’)
(LexisNexis 2012); Ariz. Rev. Stat. Ann. (Cum. Supp. 2018) § 13-105 (39)
(‘‘serious and permanent disfigurement’’); Cal. Penal Code § 243 (‘‘serious
disfigurement’’ for purposes of assault statutes) (Deering Supp. 2018); Colo.
Rev. Stat. § 18-1-901 (3) (p) (2017) (‘‘substantial risk of serious permanent
disfigurement’’); Del. Code. Ann. tit. 11, § 222 (26) (Supp. 2012) (‘‘serious
and prolonged disfigurement’’); Ga. Code Ann. § 16-5-24 (a) (Supp. 2018)
(‘‘seriously disfiguring’’ for purposes of aggravated battery); Haw. Rev. Stat.
§ 707-700 (2014) (‘‘serious, permanent disfigurement’’); Ind. Code Ann. § 35-
31.5-2-292 (1) (LexisNexis 2012) (‘‘serious permanent disfigurement’’); Iowa
Code § 702.18 (2001) (‘‘serious permanent disfigurement’’); Ky. Rev. Stat.
Ann. § 500.080 (15) (LexisNexis Cum. Supp. 2018) (‘‘serious and prolonged
disfigurement’’); Me. Rev. Stat. Ann. tit. 17-a, § 2 (23) (Cum. Supp. 2018)
(‘‘serious, permanent disfigurement’’); Md. Code Ann., Criminal Law § 3-
201 (d) (2) (i) (LexisNexis 2012) (‘‘permanent or protracted serious . . .
disfigurement’’); Mass. Ann. Laws ch. 265, § 13A (c) (LexisNexis 2010) (‘‘per-
manent disfigurement’’ for purposes of assault and battery); Minn. Stat.
§ 609.02 (8) (West 2018) (‘‘serious permanent disfigurement’’); Mo. Rev. Stat.
§ 556.061 (44) (Cum. Supp. 2018) (‘‘serious disfigurement’’); Mont. Code
Ann. § 45-2-101 (66) (a) (ii) (2017) (‘‘serious permanent disfigurement’’);
Neb. Rev. Stat. § 21-109 (21) (2016) (‘‘serious permanent disfigurement’’);
Nev. Rev. Stat. 0.060 (1) (2017) (‘‘serious, permanent disfigurement’’); N.J.
Stat. Ann. § 2C:11-1 (b) (West 2015) (‘‘serious, permanent disfigurement’’);
N.M. Stat. Ann. § 30-1-12 (A) (2004) (‘‘serious disfigurement’’); N.Y. Penal
Law § 10.00 (10) (McKinney Cum. Supp. 2019) (‘‘serious and protracted
disfigurement’’); N.C. Gen. Stat. 14-32.4 (a) (2017) (‘‘serious permanent disfig-
urement’’ for purposes of assault); N.D. Cent. Code § 12.1-01-04 (27) (Supp.
2017) (‘‘serious permanent disfigurement’’); Or. Rev. Stat. § 161.015 (8)
(2017) (‘‘serious and protracted disfigurement’’); 18 Pa. Stat. and Const. Stat.
Ann. § 2301 (West 2015) (‘‘serious, permanent disfigurement’’); R.I. Gen.
Laws § 11-5-2 (c) (Cum. Supp. 2018) (‘‘serious permanent disfigurement’’);
S.C. Code Ann. § 16-3-600 (A) (1) (2015) (‘‘serious permanent disfigure-
ment’’); S.D. Codified Laws § 22-18-1.5 (2017) (‘‘serious permanent disfigure-
ment’’ for purposes of assault); Tex. Penal Code Ann. § 1.07 (a) (46) (Cum.
Supp. 2018) (‘‘serious permanent disfigurement’’); Utah Code Ann. § 76-1-
601 (11) (LexisNexis 2012) (‘‘serious permanent disfigurement’’); Wn. Rev.
Code Ann. § 9A.04110 (b) and (c) (West 2015) (substantial bodily harm
includes ‘‘temporary but substantial disfigurement’’; great bodily harm
includes ‘‘serious permanent disfigurement’’); Wis. Stat. § 939.22 (Cum. Supp.
2018) (‘‘serious permanent disfigurement’’).
Other jurisdictions that define serious physical injury to include disfigure-
ment but do not use the term ‘‘serious’’ include the following: Ark. Code
Ann. § 5-1-102 (21) (2013) (‘‘protracted disfigurement’’); Idaho Code § 18-
907 (West 2016) (‘‘permanent disfigurement’’ for purposes of aggravated
battery); 720 Ill. Comp. Stat. 5/12-3.05 (West 2017) (‘‘permanent . . . disfig-
urement’’ for purposes of aggravated battery); Kan. Stat. Ann. § 21-5413 (b)
(1) (A) (Cum. Supp. 2018) (‘‘disfigurement’’ for purposes of aggravated
battery); La. Rev. Stat. Ann. § 14:34.7 (B) (3) (2016) (‘‘protracted and obvious
disfigurement’’); Ohio Rev. Code Ann. § 2901.01 (A) (5) (d) (West Supp.
2018) (‘‘permanent disfigurement’’ or ‘‘temporary, serious disfigurement’’);
Okla. Stat. Ann. tit. 21, § 646 (B) (West 2018) (‘‘protracted and obvious
disfigurement’’); Tenn. Code Ann. § 39-11-106 (a) (34) (D) (West 2018) (‘‘pro-
tracted or obvious disfigurement’’); Wyo. Stat. Ann. § 6-1-104 (x) (C) (2013)
(‘‘severe disfigurement’’).
11
The legislature repealed this definition when it decided to limit the
circumstances under which compensation would be provided for serious
disfigurement or scarring, adding instead language to the statute prescribing
those particular limitations. See Public Acts 1993, No. 93-228, §§ 1, 19, codi-
fied at General Statutes (Rev. to 1995) § 31-308 (c) (precluding compensation
‘‘for any scar or disfigurement which is not located on [A] the face, head
or neck, or [B] any other area of the body which handicaps the employee
in obtaining or continuing to work’’).
12
Although we have no evidence that this substantive consideration moti-
vated the legislature’s decision to eliminate ‘‘prolonged,’’ the omission of
any specific durational requirement raises a question about the impact that
surgery has in terms of minimizing the period of disfigurement. In some
jurisdictions that require prolonged or permanent disfigurement, courts have
considered the seriousness of the condition only after surgery. See, e.g.,
State v. Malufau, 80 Haw. 126, 131, 906 P.2d 612 (1995) (under statute
requiring serious, permanent disfigurement, court expressed disapproval of
case relying on physician’s testimony regarding potential severity of victim’s
injuries in absence of medical treatment); People v. Rosado, 88 A.D.
3d 454, 454–55, 930 N.Y.S.2d 10 (2011) (assessing sufficiency of evidence
of serious disfigurement in relation to victim’s appearance after his broken
nose and chipped teeth were repaired by surgery; likelihood, and not possibil-
ity, of future adverse impact on appearance was relevant consideration),
appeal denied, 18 N.Y.3d 928, 965 N.E.2d 969, 942 N.Y.S.2d 467 (2012). In
some other jurisdictions, ‘‘the relevant issue was the disfiguring and
impairing quality of the bodily injury as it was inflicted, not after the effects
had been ameliorated or exacerbated by other actions such as medical
treatment.’’ (Emphasis in original; internal quotation marks omitted.)
Fancher v. State, 659 S.W.2d 836, 838 (Tex. App. 1983); see, e.g., Lenzy
v. State, 689 S.W.2d 305, 310 (Tex. App. 1985) (concluding that evidence
established protracted loss or impairment of function of any bodily member
when victim’s teeth were fractured and their utility was restored by perfor-
mance of root canals and installation of porcelain crowns, when dentist’s
testimony established that, ‘‘without his remedial work and treatment, the
teeth in question would have been lost or their use substantially impaired’’).
We note that the former approach would appear to allow the severity of
the crime to depend on the fortuity of the level of care that the victim
received or was able to afford.
13
This court has similarly concluded that other forms of serious physical
injury need not be permanent. See State v. Ovechka, supra, 292 Conn. 542
(deeming temporary but grave condition, loss of sight, to be serious physical
injury); State v. Barretta, supra, 82 Conn. App. 684, 689 (‘‘a victim’s complete
recovery is of no consequence’’ in assessing whether victim suffered serious
physical injury); State v. Denson, 67 Conn. App. 803, 811, 789 A.2d 1075
(‘‘[i]t is entirely possible to cause serious physical injury without causing
. . . a permanent injury’’), cert. denied, 260 Conn. 915, 797 A.2d 514 (2002).
14
The mere fact that a scar is in a location that may be seen only by
someone with whom the victim has an intimate relationship would not
preclude a finding of serious disfigurement.
15
The photograph magnifying the laceration at close range shows loose
threads from bandages that were removed to reveal the wounds. The width
of those threads appears to be roughly the same width as the laceration.
No evidence was proffered regarding the depth of the lacerations or their
appearance prior to suturing.
16
We disagree with the Appellate Court’s conclusion that the location of
Bran’s scar made it ‘‘no less observable than a facial scar.’’ State v. Petion,
supra, 172 Conn. App. 677. Other courts have recognized as much. See, e.g.,
State v. Hughes, supra, 469 S.W.3d 900 (‘‘[v]isibility of scarring, particularly
on the face, size of scars, and the presence of additional injuries are all
factors in determining disfigurement’’ [emphasis added]).
17
The state did not produce evidence to establish how long the laceration
remained in the condition reflected in the photographs or when the sutures
were removed, a fact from which such an inference arguably might be
drawn. Although the sutures undoubtedly make Bran’s appearance less
attractive than after they were removed, the state has not claimed that the
jury could properly assess the seriousness of the injury on the basis of the
treatment method selected by the victim’s physician (e.g., closing a wound
with glue, which would not be visible, versus with sutures or some other
visible means). Our review of case law from other jurisdictions has not
revealed any authority supporting that proposition.
18
General Statutes § 53a-60 (a) provides in relevant part: ‘‘A person is
guilty of assault in the second degree when . . . (2) with intent to cause
physical injury to another person, the actor causes such injury to such
person or to a third person by means of a deadly weapon or a dangerous
instrument other than by means of the discharge of a firearm . . . .’’
19
See footnote 18 of this opinion for the text of § 53a-60 (a) (2). General
Statutes § 53a-61 (a) provides in relevant part: ‘‘A person is guilty of assault
in the third degree when: (1) With intent to cause physical injury to another
person, he causes such injury to such person or to a third person . . . or
(3) with criminal negligence, he causes physical injury to another person
by means of a deadly weapon, a dangerous instrument or an electronic
defense weapon.’’
20
That request to charge was for an instruction under the subsection
requiring that ‘‘the actor recklessly causes serious physical injury to another
person by means of a deadly weapon or a dangerous instrument’’; (emphasis
added) General Statutes § 53a-60 (a) (3); whereas the state seeks to modify
the judgment to reflect a conviction under the subsection requiring that,
‘‘with intent to cause physical injury to another person, the actor causes
such injury to such person or to a third person by means of a deadly weapon
or a dangerous instrument other than by means of the discharge of a firearm
. . . .’’ General Statutes § 53a-60 (a) (2). The former is a class C felony
because it requires serious physical injury, whereas the latter is a class D
felony. See General Statutes § 53a-60 (b).