State v. Nash ( 2015 )

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STATE OF CONNECTICUT v. KEVIN NASH
(SC 19265)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.
Argued October 22, 2014—officially released May 5, 2015
Mark Rademacher, assistant public defender, with
whom, on the brief, was Heather Wood, former assistant
public defender, for the appellant (defendant).
Margaret Gaffney Radionovas, senior assistant
state’s attorney, with whom, on the brief, were Gail
P. Hardy, state’s attorney, and Anthony J. Spinella,
assistant state’s attorney, for the appellee (state).
Opinion
PALMER, J. After the defendant, Kevin Nash, learned
that Tyrell Knott (Tyrell) had been spreading rumors
about him, the defendant retaliated by firing several
shots into the second story of Tyrell’s East Hartford
home. One of the shots struck Tyrell’s sister, Tyrikah
Knott (Tyrikah), seriously injuring her. Thereafter, a
jury found the defendant guilty of, inter alia, intentional
assault in the first degree in violation of General Stat-
utes § 53a-59 (a) (1) and reckless assault in the first
degree in violation of § 53a-59 (a) (3) in connection with
that shooting.1 On appeal to this court,2 the defendant
claims that (1) his convictions of intentional and reck-
less assault in the first degree, which were based on
the same conduct, are legally inconsistent and therefore
cannot stand, and (2) the evidence was insufficient to
support his conviction of intentional assault in the first
degree. We disagree with both claims and, accordingly,
affirm the judgment of the trial court.
The record reveals the following facts that the jury
reasonably could have found. In or around 2005, Tyrell
met Duane Brown while they were in high school
together, and the two young men, both of whom are of
Jamaican descent, became close friends. Brown spent
a considerable amount of time at Tyrell’s home, where
Tyrell resided with his mother, stepfather and three
sisters. At some point in the spring of 2008, Brown
moved in with the defendant and the defendant’s wife,
and Brown and the defendant, who is also of Jamaican
descent, began spending a lot of time together. Because
Tyrell and the defendant did not get along well, Brown
and Tyrell saw less of each other. At some point, Brown
and the defendant learned that Tyrell was spreading a
rumor that Brown and the defendant were in a homo-
sexual relationship. On July 6, 2008, Brown called Tyrell
and left him an angry voice mail message in which he
berated Tyrell for spreading this rumor.3
On the evening of July 10, 2008, the defendant asked
Brown to show him where Tyrell lived. The defendant,
who also was angry about the rumor, told Brown that
they needed to ‘‘teach [Tyrell] a lesson.’’ Brown obliged,
and the two men drove to the Knotts’ house. Once there,
they walked into the backyard to survey the premises.
After returning home, the defendant retrieved a hand-
gun from his bedroom and told Brown that they had
to go back to the house and ‘‘shoot it up’’ to ‘‘give [Tyrell]
a warning.’’ Brown agreed and drove the defendant back
to the house. When they arrived, Brown waited in the
car while the defendant walked to the backyard and,
from there, fired four or five shots into the second story
of the Knotts’ three story house.
At the time of the shooting, two of Tyrell’s sisters,
Tyrikah and S,4 were in S’s second floor bedroom. One
of the bullets penetrated through the bedroom wall
and struck Tyrikah in the left buttock. Tyrikah was
transported by ambulance to the hospital, where she
was treated for the gunshot wound and released. After
leaving the hospital, Tyrikah and her family provided
the East Hartford police with information about the
shooting. At that time, Tyrell told the police about the
angry voice mail message that he had received from
Brown a few days before the shooting.
That same day, several East Hartford police officers
visited Brown at his apartment for the purpose of ques-
tioning him about his possible involvement in the shoot-
ing. After being permitted to enter the apartment, the
police interviewed Brown and the defendant, who also
was present at the time. Both men denied any knowl-
edge of the shooting.5 Brown later accompanied the
police to the station to give a written statement, in
which he again denied knowledge of the shooting. A
few days later, however, Brown gave the police a second
written statement admitting his involvement in the
crime and implicating the defendant as the shooter.
Thereafter, the defendant was arrested and charged
with one count each of intentional assault in the first
degree in violation of § 53a-59 (a) (1), reckless assault
in the first degree in violation of § 53a-59 (a) (3), con-
spiracy to commit assault in the first degree in violation
of General Statutes §§ 53a-59 (a) (1) and 53a-48, risk
of injury to a child in violation of General Statutes
(Supp. 2008) § 53-21 (a) (1), and carrying a pistol with-
out a permit in violation of General Statutes (Rev. to
2007) § 29-35 (a), and four counts of reckless endanger-
ment in the first degree in violation of General Statutes
§ 53a-63 (a).6 Following a jury trial, the jury found the
defendant not guilty of the conspiracy charge but guilty
of all other charges. In addition, because the state
sought to enhance the defendant’s sentence pursuant
to General Statutes § 53-202k; see footnote 6 of this
opinion; the jury also found that the defendant had used
a firearm in the commission of the underlying felonies.
The trial court rendered judgment in accordance with
the jury verdict and sentenced the defendant to a total
effective sentence of sixteen years imprisonment.7
On appeal, the defendant claims that his convictions
of both intentional and reckless assault in the first
degree are legally inconsistent because they required
mutually exclusive findings regarding his mental state
at the time of the shooting. He further claims that the
state failed to adduce evidence sufficient to support
his conviction of intentional assault in the first degree
because the evidence adduced at trial did not support
a finding that he intended to cause serious physical
injury to another person, as § 53a-59 (a) (1) requires.
We disagree with both claims and, accordingly, affirm
the judgment of conviction.
I
The defendant first claims that his convictions of
intentional and reckless assault in the first degree can-
not stand because they are legally inconsistent. In sup-
port of this claim, the defendant relies primarily on
State v. King, 216 Conn. 585, 592–95, 583 A.2d 896
(1990), in which this court concluded that the convic-
tions of the defendant, Roy Anthony King, of attempted
murder and reckless assault of the same victim were
legally inconsistent because the jury verdict required a
finding that King simultaneously possessed mutually
exclusive mental states, that is, he intended to kill the
victim and he recklessly created a risk of the victim’s
death. According to the defendant in the present case,
his convictions of intentional and reckless assault must
be reversed because, like the convictions in King, they,
too, required the jury to find that he simultaneously
acted intentionally and recklessly in causing Tyrikah’s
injury. The state argues that this case is distinguishable
from King because, in contrast to King, the charges in
this case required the jury to find that the defendant
acted intentionally and recklessly with respect to differ-
ent results. In particular, the state argues that, because
a person may intend to seriously injure a person within
the meaning of § 53a-59 (a) (1) while simultaneously
recklessly creating a risk of that person’s death within
the meaning of § 53a-59 (a) (3), the defendant’s convic-
tions are not legally inconsistent. We agree with the
state.8
The following legal principles guide our analysis of
the defendant’s claim. It is well established that factu-
ally inconsistent verdicts are permissible. ‘‘[When] the
verdict could have been the result of compromise or
mistake, we will not probe into the logic or reasoning of
the jury’s deliberations or open the door to interminable
speculation.’’ (Internal quotation marks omitted.) State
v. Hinton, 227 Conn. 301, 313, 630 A.2d 593 (1993). Thus,
‘‘claims of legal inconsistency between a conviction and
an acquittal are not reviewable [on appeal].’’ State v.
Arroyo, 292 Conn. 558, 586, 973 A.2d 1254 (2009), cert.
denied, 559 U.S. 911, 130 S. Ct. 1296, 175 L. Ed. 2d 1086
(2010). ‘‘We employ a less limited approach, however,
when we are confronted with an argument that [two
convictions] are inconsistent as a matter of law or when
the [convictions] are based on a legal impossibility.’’
State v. Hinton, supra, 313. A claim of legally inconsis-
tent convictions, also referred to as mutually exclusive
convictions, arises when a conviction of one offense
requires a finding that negates an essential element of
another offense of which the defendant also has been
convicted. State v. Arroyo, supra, 584 n.21. ‘‘In response
to such a claim, we look carefully to determine whether
the existence of the essential elements for one offense
negates the existence of [one or more] essential ele-
ments for another offense of which the defendant also
stands convicted. If that is the case, the [convictions]
are legally inconsistent and cannot withstand chal-
lenge.’’ State v. Hinton, supra, 313. Whether two convic-
tions are mutually exclusive presents a question of law,
over which our review is plenary. See State v. McFar-
lane, 128 Conn. App. 730, 735–36, 17 A.3d 1131, cert.
denied, 301 Conn. 931, 23 A.3d 725 (2011).
Because the defendant contends that his convictions
of intentional and reckless assault are mutually exclu-
sive under State v. King, supra, 216 Conn. 585, we begin
our analysis with an examination of that case. King,
an inmate at the Bridgeport Community Correctional
Center, was convicted of, inter alia, attempt to commit
murder and reckless assault in the first degree after he
set fire to a fellow inmate’s cell and rigged the cell
door shut to prevent him from escaping. Id., 586–88.
On appeal, King claimed that his convictions of attempt
to commit murder and reckless assault of the same
victim based on the same conduct were legally inconsis-
tent because they required mutually exclusive findings
with respect to his mental state. See id., 592–93. We
agreed with this claim, explaining that King’s conviction
for attempt to commit murder required the jury to find
that he acted with the intent to cause the death of
the victim, whereas his conviction for reckless assault
required the jury to find that he acted recklessly and
thereby created a risk that the victim would die. Id.,
593. We further explained that ‘‘the statutory definitions
of ‘intentionally’ and ‘recklessly’ are mutually exclusive
and inconsistent.’’9 Id., 593–94. ‘‘ ‘Reckless conduct is
not intentional conduct because [a person] who acts
recklessly does not have a conscious objective to cause
a particular result.’ ’’ Id., 594, quoting State v. Beccia,
199 Conn. 1, 4, 505 A.2d 683 (1986). Thus, we observed
that ‘‘[t]he intent to cause death required for a convic-
tion of attempted murder . . . necessitated a finding
that the defendant acted with the conscious objective
to cause death . . . [whereas] [t]he reckless conduct
necessary to be found for a conviction of assault under
[§ 53a-59 (a) (3)] . . . required a finding that the defen-
dant acted without such a conscious objective.’’ State
v. King, supra, 593. We concluded, therefore, that ‘‘the
jury verdicts [with respect to attempt to commit murder
and reckless assault in the first degree] each of which
requires a mutually exclusive and inconsistent state
of mind as an essential element for conviction cannot
stand.’’ Id., 594.
Subsequently, in State v. Hinton, supra, 227 Conn.
301, we again addressed a claim of legal inconsistency
in the context of convictions for attempt to commit
murder and assault in the first degree. In Hinton, the
defendant, Ronnie Hinton, fired a shotgun into a large
group of people, killing three of them and injuring a
fourth victim, Jason Diaz. Id., 305. On the basis of the
nonfatal injuries to Diaz the jury found Hinton guilty
of attempt to commit murder in violation of General
Statutes §§ 53a-54a (a) and 53a-49 (a), and three counts
of assault in the first degree in violation of subdivisions
(1), (2) and (3) of § 53a-59 (a).10 Id., 311–12. On appeal,
Hinton claimed that his convictions were legally incon-
sistent because attempted murder and assault in the
first degree under subdivisions (1) and (2) of § 53a-59
(a) required the jury to find that he acted intentionally
in causing Diaz’ injuries, whereas reckless assault in
the first degree under § 53a-59 (3) required the jury
to find that he acted recklessly in causing the same
injuries.11 Id., 312.
In addressing Hinton’s claim, we noted that ‘‘two
possible factual scenarios were available to the jury
regarding the attempted murder and assault counts: (1)
[Hinton] intended to kill or injure someone else and,
in attempting to do so, injured Diaz inadvertently; or
(2) [Hinton] intended to kill or injure Diaz and, in
attempting to do so, injured him.’’ Id., 314. We then
concluded that Hinton’s convictions were legally incon-
sistent under either scenario. Id., 318, 320. We explained
that, if Hinton had intended to injure someone else but
accidentally injured Diaz, the jury could have found
Hinton guilty of intentionally assaulting Diaz under a
theory of transferred intent,12 while also finding him
guilty of reckless assault for recklessly creating a risk
of death as to Diaz. See id., 315. We further explained,
however, that the jury could not have found Hinton
guilty of attempting to murder Diaz under this scenario
because Hinton would not have had the intent to kill
Diaz, as required for a conviction of attempted murder,
and because transferred intent does not apply to an
attempt to commit a crime. See id., 316–18.
With respect to the second possible factual scenario,
that is, that Hinton intended to kill Diaz but only injured
him, we observed, first, that ‘‘an assault in violation of
§ 53a-59 (a) (1) and (2) would be consistent with an
attempted murder count . . . if Diaz were [Hinton’s]
intended victim, because those statutory [subdivisions]
require intentional conduct.’’ Id., 318–19. We also
explained, however, that the jury could not have found
Hinton guilty of recklessly assaulting Diaz under this
factual scenario because King precluded convictions
of attempt to commit murder and reckless assault of
the same victim when they are based on the same con-
duct. See id., 319. In reaching our determination, we also
rejected the state’s argument that Hinton’s recklessness
toward an unintended victim may be transferred to
Diaz because the doctrine of transferred intent does not
apply to recklessness. See id., 319–20. Because Hinton’s
convictions for attempt to commit murder and reckless
assault in the first degree were inconsistent under either
of the two scenarios, we concluded that he was entitled
to a new trial. Id., 320–21.
The decisions in King and Hinton were predicated
on two general principles applicable to all claims of
legally inconsistent verdicts. First, as is evident from
our discussion of the alternative factual scenarios in
Hinton, courts reviewing a claim of legal inconsistency
must closely examine the record to determine whether
there is any plausible theory under which the jury rea-
sonably could have found the defendant guilty of both
offenses. See id., 314; see also State v. Morascini, 62
Conn. App. 758, 761–62, 772 A.2d 703, cert. denied, 256
Conn. 921, 774 A.2d 141 (2001). This principle guided
our analysis in State v. Williams, 237 Conn. 748, 679
A.2d 920 (1996), in which the defendant, Gregory Wil-
liams, claimed that his convictions of attempt to commit
murder, which requires the intent to kill, and intentional
assault in the first degree, which requires the intent to
cause serious physical injury, were legally inconsistent
because a person cannot simultaneously intend to cause
both results to the same victim. See id., 754–55. In
rejecting this claim, we undertook a thorough examina-
tion of the facts to ascertain whether the jury reasonably
could have found that Williams simultaneously pos-
sessed both mental states with respect to the same
victim. Id., 750–51, 757. We concluded that, on the basis
of Williams’ actions of ‘‘repeatedly [striking] the victim
over the head with a baseball bat until the bat broke
. . . [t]he jury reasonably could have inferred . . .
that [Williams] had possessed, at the same time and by
the same acts, the intent to cause the victim’s death
and the intent to cause the victim serious physical injury
while he was attempting to kill her.’’ Id., 757. Because
there was a plausible theory under which the jury could
have found Williams guilty of both crimes—namely, by
finding that he intended to cause the victim serious
physical injury while attempting to kill her—we con-
cluded that Williams’ convictions were not legally
inconsistent.13
The second principle that we recognized in King
and Hinton is that, in determining whether two mental
states are mutually exclusive, the court must consider
each mental state as it relates to the particular result
described by the statute. In King, for example, the con-
victions of attempt to commit murder and reckless
assault necessarily reflected a finding by the jury that
King acted both intentionally and recklessly with
respect to the victim’s death. We explained that those
convictions were mutually exclusive because they were
predicated on findings that King both intended to cause
the victim’s death and that he did not intend to cause
the victim’s death. See State v. King, supra, 216 Conn.
593–94. In Hinton, however, we reaffirmed our holding
in King but also explained that a defendant could simul-
taneously act intentionally and recklessly with respect
to different results. See State v. Hinton, supra, 227
Conn. 315. We observed, for example, that, when Hinton
fired into the group of people, he could have intended to
kill or injure one member of the group while recklessly
creating a risk of death with respect to the other mem-
bers, and that, in such circumstances, the jury reason-
ably could have found him guilty of the attempted
murder of one victim and reckless assault of another
victim because the mental states required for each con-
viction would have related to different results. See id.
(‘‘[a]lthough we said in [King] that a person could not
act intentionally and recklessly with regard to the same
act and the same result, here we have two different
victims and therefore two different results’’ [emphasis
added]). Thus, Hinton makes clear that a person can
simultaneously act intentionally and recklessly with
respect to the same criminal conduct as long as each
mental state relates to a different result.14 Moreover,
there is no reason why a person cannot simultaneously
act intentionally and recklessly with respect to the same
conduct and the same victim if each of those two mental
states pertains to a different result.15
Applying the foregoing principles to the present case,
we conclude that the defendant’s convictions for inten-
tional and reckless assault in the first degree are not
legally inconsistent because the two mental states
required to commit the offenses relate to different
results. More specifically, in order to find the defendant
guilty of those offenses, the jury was required to find
that the defendant intended to injure another person
and that, in doing so, he recklessly created a risk of
that person’s death.16 In light of the state’s theory of
the case, there was nothing to preclude a finding that
the defendant possessed both of these mental states
with respect to the same victim at the same time by
virtue of the same act or acts.17 In other words, the jury
could have found that the defendant intended only to
injure another person when he shot into S’s bedroom
but that, in doing so, he recklessly created a risk of that
person’s death in light of the circumstances surrounding
his firing of the gun into the dwelling. Accordingly,
because the jury reasonably could have found that the
defendant simultaneously possessed both mental states
required to convict him of both intentional and reckless
assault, he cannot prevail on his claim that the convic-
tions were legally inconsistent.
In support of his claim to the contrary, the defendant
argues that the mental states required to commit each
of the offenses did relate to the same result, namely,
serious physical injury to the victim. He contends that
two convictions are mutually exclusive if they require
the jury to find that a defendant simultaneously acted
intentionally and recklessly and, in doing so, caused
the same result to the victim. This argument reflects a
fundamental misunderstanding of the nature of legally
inconsistent verdicts. ‘‘[M]ental states . . . exist only
with reference to particular results or circumstances.
Thus, it is necessary to examine the mental state ele-
ment as it arises in each particular statute defining
an offense to determine whether actual inconsistency
exists.’’ (Internal quotation marks omitted.) State v.
Flynn, 14 Conn. App. 10, 27, 539 A.2d 1005, cert. denied,
488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988).
The relevant inquiry in determining whether two convic-
tions are mutually exclusive is whether the opposing
mental states relate to the same result, not whether
both convictions relate to the same injury.
This principle is demonstrated by a comparison of
the elements of the two statutes at issue in this case.
Intentional assault in the first degree in violation of
§ 53a-59 (a) (1) requires proof that the defendant (i)
had the intent to cause serious physical injury to a
person, (ii) caused serious physical injury to such per-
son or to a third person, and (iii) caused such injury with
a deadly weapon or dangerous instrument. Reckless
assault in the first degree in violation of § 53a-59 (a)
(3) requires proof that the defendant (i) acted under
circumstances evincing an extreme indifference to
human life, (ii) recklessly engaged in conduct that cre-
ated a risk of death to another person, and (iii) caused
serious physical injury to another person. As we pre-
viously explained, the mental state elements in the two
provisions—’’intent to cause serious physical injury’’
and ‘‘recklessly engag[ing] in conduct which creates a
risk of death’’—do not relate to the same result. More-
over, under both provisions, the resulting serious physi-
cal injury is an element of the offenses that is separate
and distinct from the mens rea requirements.18 Because
the defendant’s convictions for intentional and reckless
assault in the first degree required the jury to find that
the defendant acted intentionally and recklessly with
respect to different results, the defendant cannot pre-
vail on his claim that those convictions are mutually
exclusive and, therefore, legally inconsistent.19
II
We next consider the defendant’s contention that the
evidence did not support a finding that he acted with
the ‘‘intent to cause serious physical injury to another
person,’’ as required under § 53a-59 (a) (1). We reject
the defendant’s claim.20
The following additional facts are relevant to our
resolution of this claim. Viewing the Knotts’ house from
the backyard, there are three bedroom windows on the
second floor. Tyrikah occupied the bedroom on the far
left, S occupied the bedroom on the far right, and K,
their youngest sister, occupied the middle bedroom.
Testimony indicated that, prior to the shooting, Tyrikah
and S had been in their respective bedrooms with the
lights on, that K was asleep in her room, and that Tyri-
kah had left the light on in her bedroom when she went
to S’s room. According to Brown, when he and the
defendant were outside the house earlier in the evening,
there were no lights on in the second floor bedrooms.
The evidence also established that the defendant shot
only toward the bedrooms that appeared to be occu-
pied—that is, the two bedrooms with lights on—which
is where all of the bullet holes were found. Brown
further testified that the defendant had told him that
he shot into the window on the far right because the
light was on and he thought he saw a curtain move.
When Tyrikah was shot, she was standing with her back
against S’s dresser, which is directly in front of that
window. Finally, the bullet that struck Tyrikah pene-
trated the wall and passed through the dresser just
below the window, and a second bullet entered S’s
room immediately to the left of the window.
We begin our analysis by setting forth the legal princi-
ples governing our review of the defendant’s claim. ‘‘In
reviewing the sufficiency of the evidence to support a
criminal conviction we apply a two-part test. First, we
construe the evidence in the light most favorable to
sustaining the verdict. Second, we determine whether
upon the facts so construed and the inferences reason-
ably drawn therefrom the [finder of fact] reasonably
could have concluded that the cumulative force of the
evidence established guilt beyond a reasonable doubt.
. . . In evaluating evidence, the trier of fact is not
required to accept as dispositive those inferences that
are consistent with the defendant’s innocence. . . .
The trier may draw whatever inferences from the evi-
dence or facts established by the evidence it deems to
be reasonable and logical. . . . This does not require
that each subordinate conclusion established by or
inferred from the evidence, or even from other infer-
ences, be proved beyond a reasonable doubt . . .
because this court has held that a jury’s factual infer-
ences that support a guilty verdict need only be reason-
able.’’ (Internal quotation marks omitted.) State v.
Taylor, 306 Conn. 426, 432, 50 A.3d 862 (2012).
The defendant challenges the sufficiency of the evi-
dence only with regard to the intent element of § 53a-
59 (a) (1). ‘‘A person acts ‘intentionally’ with respect
to a result . . . described by a statute defining an
offense when his conscious objective is to cause such
result . . . .’’ General Statutes § 53a-3 (11). As we fre-
quently have observed, ‘‘[i]ntent is generally proven by
circumstantial evidence because direct evidence of the
accused’s state of mind is rarely available. . . . There-
fore, intent is often inferred from conduct . . . and
from the cumulative effect of the circumstantial evi-
dence and the rational inferences drawn therefrom.’’
(Citations omitted.) State v. Tomasko, 238 Conn. 253,
257, 681 A.2d 922 (1996); see also State v. Rodriguez,
180 Conn. 382, 404, 429 A.2d 919 (1980) (‘‘The state
of mind of one accused of a crime is often the most
significant and, at the same time, the most elusive ele-
ment of the crime charged. . . . Because it is practi-
cally impossible to know what someone is thinking
or intending at any given moment, absent an outright
declaration of intent, a person’s state of mind is usually
proved by circumstantial evidence . . . and is, except
in rare cases, a question of fact.’’ [Citation omitted.]).
We agree with the state that the evidence was suffi-
cient to support a finding that the defendant intended
to cause serious physical injury to another person when
he shot into S’s room. Brown testified that the defendant
told him after the shooting that he had shot into the
window on the far right because the lights were on
and because he thought he saw a curtain move. A fair
inference may be drawn from this statement that,
because of the light and movement, the defendant
thought that a person was in front of or near S’s window,
and that he intended to shoot that person when he fired
in the direction of the window. The location of the
bullet holes and Tyrikah’s location at the time of the
shooting support this interpretation of the defendant’s
statement. The evidence also established that there was
a dresser in front of S’s window and that Tyrikah was
standing directly in front of the dresser when she was
shot. The bullet that struck Tyrikah entered the room
directly below the window, and a second bullet entered
just to the left of the window. The fact that Tyrikah was
directly in front of the window corroborates Brown’s
testimony that the defendant told him that he saw move-
ment near the window just before the shooting and
further supports the finding that the defendant intended
to shoot whomever was near that window. On the basis
of this evidence, the jury reasonably could have found
that the defendant intended to cause serious physical
injury to another person.21 Cf. State v. Wells, 100 Conn.
App. 337, 345–46, 917 A.2d 1008 (evidence that defen-
dant believed that person was behind door through
which he fired shotgun supported finding that he
intended to cause serious physical injury), cert. denied,
282 Conn. 919, 925 A.2d 1102 (2007).
We find no merit in the defendant’s contention that a
person cannot have the intent to cause serious physical
injury to another person under § 53a-59 (a) (1) unless
he is ‘‘substantially certain’’ that he is aiming at a visible,
identifiable person. This argument conflates two sepa-
rate and distinct concepts under our Penal Code,
namely, intent and knowledge. We previously have
stated that ‘‘[a]n ‘intent’ element is not synonymous with
a ‘knowledge’ element, each of which is specifically
defined in the [P]enal [C]ode.’’ State v. Denby, 235 Conn.
477, 482, 668 A.2d 682 (1995). Under our Penal Code,
‘‘[a] person acts ‘intentionally’ with respect to a result
or to conduct described by a statute defining an offense
when his conscious objective is to cause such result
or engage in such conduct’’; General Statutes § 53a-3
(11); whereas ‘‘[a] person acts ‘knowingly’ with respect
to conduct or to a circumstance described by a statute
defining an offense when he is aware that his conduct
is of such nature or that such circumstance exists
. . . .’’ General Statutes § 53a-11 (12). In other words,
a specific intent element requires proof that the defen-
dant’s objective or purpose was to achieve a particular
result, whereas a knowledge element requires proof
that the defendant was aware of a particular fact or cir-
cumstance.
Because a person’s intent reflects his subjective pur-
pose in carrying out his actions, that person may intend
to accomplish a particular result without necessarily
knowing that physical realities will make it possible for
him to do so. See, e.g., 1 W. LaFave, Substantive Crimi-
nal Law (2d Ed. 2003) § 5.2 (b), pp. 343–44 (noting that
person may act with intent to cause particular result
without necessarily knowing that his conduct will cause
intended result). Thus, a jury could find that a defendant
who committed a drive-by shooting had the intent to
kill a person inside the targeted dwelling, even if the
defendant was unsure where inside the dwelling the
intended victim was located, or even if that person was
not present in the dwelling. See Puckett v. Costello,
111 Fed. Appx. 379, 383–84 (6th Cir. 2004) (evidence
supported finding that defendant who aided in drive-
by shooting had intent to kill when defendant told gun-
man to shoot at specific apartment in which he knew
rival gang members lived, even though evidence did not
establish whether defendant knew that apartment was
occupied at that time), cert. denied, 543 U.S. 1160, 125
S. Ct. 1320, 161 L. Ed. 2d 131 (2005); People v. Migliore,
170 Ill. App. 3d 581, 585–86, 588, 525 N.E.2d 182 (evi-
dence was sufficient to support finding of intent to kill
when defendant fired at door behind which he believed
intended victim might be standing), appeal denied, 122
Ill. 2d 569, 530 N.E.2d 257 (1988). A jury also could find
that a defendant who set fire to a home intended to kill
the inhabitants of the home even if he was not certain
that they were present at the time. See People v. Adams,
169 Cal. App. 4th 1009, 1022–23, 86 Cal. Rptr. 3d 915
(2008) (defendant who set fire to home for purpose of
killing particular person or persons may be found to
have had intent to kill all inhabitants even if he did not
know whether they were present at that time), review
denied, California Supreme Court, Docket No. S170399
(Cal. April 1, 2009); cf. Commonwealth v. Waters, 27
Mass. App. 64, 67–69, 534 N.E.2d 802 (evidence was
sufficient to support finding that defendant intended
to kill all inhabitants of home by throwing Molotov
cocktails at house when inhabitants were likely to be
asleep), review denied, 404 Mass. 1104, 537 N.E.2d 1248
(1989). To prove that the defendant was guilty of inten-
tional assault, therefore, the state was not required to
establish that the defendant knew with certitude that
he was shooting at a person but only that he believed
his intended target was a person when he fired his
weapon. The jury reasonably could have found that
the defendant intended to cause serious physical injury
even if he was not substantially certain that he was
aiming at a specific person.
The defendant’s argument that the evidence sup-
ported a finding that he acted only recklessly, rather
than intentionally, is similarly unavailing. In support
of this contention, the defendant maintains that the
evidence demonstrates that his shots were entirely ran-
dom because all of the bullets entered through the back
wall of the house rather than through the windows. He
further relies on the testimony of Brown, who was with
the defendant on the night of the shooting, that Brown
himself believed that the defendant discharged his
weapon at the house solely to send a message to Tyrell
and not to actually injure someone. For the reasons that
we previously discussed, however, the jury reasonably
could have found that the defendant’s shots were not
random but that the defendant targeted only the bed-
rooms that appeared to be occupied, and that he specifi-
cally targeted S’s bedroom because he believed that a
person was near the window. The fact that the defen-
dant’s shots did not enter through the windows does
not compel a finding that the defendant did not intend
to injure anyone. Indeed, the fact that both of the shots
that the defendant fired into S’s room penetrated the
wall in the area immediately surrounding the window
suggests that he was trying to shoot the person he
believed was nearby, rather than firing randomly solely
to frighten Tyrell or the occupants of the house. As the
state argues, if the gunfire had been entirely random,
the bullet holes likely would have been scattered
throughout the house rather than concentrated in the
only two bedrooms that appeared to be occupied at the
time of the shooting.
We recognize, of course, that the jury reasonably
could have credited the defendant’s argument that he
did not intend to physically injure anyone but that he
only did so recklessly. The fact that the jury could have
elected to believe the defendant’s alternative explana-
tion of the evidence, however, does not mean that the
jury was required to accept that explanation. As we
often have observed, when reviewing a claim of eviden-
tiary insufficiency, ‘‘we give deference not to the
hypothesis of innocence posed by the defendant, but
to the evidence and the reasonable inferences drawable
therefrom that support the jury’s determination of
guilt.’’ State v. Sivri, 231 Conn. 115, 134, 646 A.2d 169
(1994); see also id., 134–36 (court would not second-
guess jury’s rejection of defendant’s theory that he had
acted recklessly when reasonable view of evidence sup-
ported jury’s finding that defendant acted with intent
to kill). When considered in the light most favorable to
the state, the evidence supported the jury’s finding that
the defendant intended to cause serious physical injury
to another person, and we therefore will not disturb
that determination on appeal.
The judgment is affirmed.
In this opinion the other justices concurred.
1
General Statutes § 53a-59 (a) provides in relevant part: ‘‘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 dangerous instrument
. . . or (3) under circumstances evincing an extreme indifference to human
person, and thereby causes serious physical injury to another person . . . .’’
2
The defendant appealed to the Appellate Court, and we transferred the
appeal to this court pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-1.
3
Testimony indicated that, in Jamaica, many consider it a serious affront
to accuse a man of being homosexual.
4
In accordance with our policy of protecting the privacy interests of
victims of the crime of risk of injury to a child, we decline to identify any
child victim in this case or others through whom the victim’s identity may
be ascertained.
5
Because the defendant was in his underwear when the police arrived,
one of the officers handed him a pair of pants that were lying on the floor
of his bedroom. Police found a pair of black gloves in one of the pant
pockets, and those gloves subsequently tested positive for gunshot residue.
When questioned by the police, the defendant acknowledged that he had
worn those same pants the previous day.
6
The state also sought to enhance the defendant’s sentence and charged
him with three counts of commission of a class A, B or C felony with a
firearm in violation of General Statutes § 53-202k.
General Statutes § 53-202k provides: ‘‘Any person who commits any class
A, B or C felony and in the commission of such felony uses, or is armed
with and threatens the use of, or displays, or represents by his words or
conduct that he possesses any firearm, as defined in section 53a-3, except
an assault weapon, as defined in section 53-202a, shall be imprisoned for a
term of five years, which shall not be suspended or reduced and shall
be in addition and consecutive to any term of imprisonment imposed for
conviction of such felony.’’
As this court previously has explained, § 53-202k is a sentence enhance-
ment provision and not a separate crime. E.g., State v. Patterson, 276 Conn.
452, 476, 886 A.2d 777 (2005). We have interpreted § 53-202k to require that
the jury, rather than the court, determine whether a firearm was used in
the commission of the underlying felony. Id., 477.
7
The trial court merged the two assault convictions for purposes of sen-
tencing and subsequently imposed a sentence only for intentional assault
in the first degree. In State v. Polanco, 308 Conn. 242, 255, 61 A.3d 1084
(2013), we concluded that, when a defendant is convicted of both a greater
and lesser included offense, the appropriate remedy is to vacate the convic-
tion for the lesser offense rather than to merge the convictions. Although
stating that we saw ‘‘no reason why our holding, of logical necessity, would
not apply with equal force to other scenarios in which cumulative convictions
violate the double jeopardy clause’’; id., 249 n.3; we ultimately reserved
judgment on that issue. Because the defendant in the present case does
not claim that the approach that we employed in Polanco applies to his
convictions of intentional and reckless assault in the first degree, we do
not address that issue in this appeal.
8
Because the defendant did not raise this claim in the trial court, he seeks
to prevail under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),
which governs our consideration of unpreserved constitutional claims.
Although, as the state concedes, the defendant is entitled to review of his
unpreserved claim under Golding, he cannot prevail on the claim because,
contrary to his contention, his convictions of intentional and reckless assault
are not legally inconsistent.
9
General Statutes § 53a-3 provides in relevant part: ‘‘(11) A person acts
‘intentionally’ with respect to a result or to conduct described by a statute
defining an offense when his conscious objective is to cause such result or
to engage in such conduct;
***
‘‘(13) A person acts ‘recklessly’ with respect to a result or to a circumstance
described by a statute defining an offense when he is aware of and con-
sciously disregards a substantial and unjustifiable risk that such result will
occur or that such circumstance exists. The risk must be of such a nature and
degree that disregarding it constitutes a gross deviation from the standard of
conduct that a reasonable person would observe in the situation . . . .’’
10
General Statutes § 53a-59 (a) provides in relevant part: ‘‘A person is
guilty of assault in the first degree when . . . (2) with intent to disfigure
another person seriously or 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 . . . .’’
For the text of subdivisions (1) and (3) of § 53a-59 (a), see footnote 1 of
this opinion.
11
As we explained in Hinton, ‘‘§ 53a-59 (a) specifies three separate and
exclusive definitions of assault in the first degree. . . . The state charged
[Hinton] with committing assault in the first degree against Diaz under
subdivision (1), subdivision (2) and subdivision (3) of [§ 53a-59 (a)]. The
trial court instructed the jury to consider each of these three subdivisions
and its lesser included offenses. The court did not instruct the jury that the
three subdivisions were alternative methods of committing the same crime,
and that it could [find Hinton guilty] under only one subdivision. The jury
returned separate guilty verdicts under each of the three subdivisions
charged by the state. The trial court accepted all three verdicts.’’ (Citation
omitted.) State v. Hinton, supra, 227 Conn. 312 n.14. The court imposed
only one sentence on the first degree assault convictions, however, and
Hinton raised no double jeopardy claim. Id., 314 n.16.
12
‘‘[T]he principle of transferred intent was created to apply to the situation
of an accused who intended to kill [or injure] a certain person and by
mistake killed [or injured] another. His intent is transposed from the person
to whom it was directed to the person actually killed [or injured].’’ (Internal
quotation marks omitted.) State v. Higgins, 265 Conn. 35, 51, 826 A.2d 1126
(2003); see also State v. Hinton, supra 227 Conn. 306 n.8.
13
In accordance with this principle, the Appellate Court has upheld convic-
tions involving allegedly inconsistent mental states when the jury reasonably
could have found that a defendant’s single course of conduct actually ‘‘consti-
tuted different crimes that occurred on an escalating continuum.’’ (Internal
quotation marks omitted.) State v. Jones, 68 Conn. App. 562, 569, 792 A.2d
148, cert. denied, 260 Conn. 917, 797 A.2d 515 (2002); see also State v.
Bjorklund, 79 Conn. App. 535, 567–68, 830 A.2d 1141 (2003), cert. denied,
268 Conn. 920, 846 A.2d 882 (2004); State v. Mooney, 61 Conn. App. 713,
720–22, 767 A.2d 770, cert. denied, 256 Conn. 905, 772 A.2d 598 (2001). In
these cases, the Appellate Court concluded that the jury, in determining
guilt, was not required to find that the defendant simultaneously possessed
the conflicting mental states in order to find him guilty of the two offenses.
For example, in Jones, the Appellate Court held that the jury reasonably
could have found that the defendant, who had fired two rounds of gunfire
into the victim’s front windshield, recklessly created a risk of serious physical
injury to the victim during the first round of shots and intended to cause
the victim serious physical injury during the second round of shots. See
State v. Jones, supra, 569–70.
14
This principle is also reflected in several Appellate Court decisions
in which that court concluded that a defendant could simultaneously act
intentionally and recklessly with respect to different results. See, e.g., State
v. Morascini, supra, 62 Conn. App. 762–63 (convictions of public indecency
in violation of General Statutes [Rev. to 2001] § 53a-186 [a] [2], which required
finding of ‘‘intent to arouse or to satisfy the sexual desire of the person,’’
and of breach of peace in violation of General Statutes § 53a-181 [a] [5],
which required finding that, inter alia, defendant ‘‘recklessly creat[ed] a risk
[of causing inconvenience, annoyance, or alarm],’’ not legally inconsistent
because jury could have found that defendant had intent to arouse or to
satisfy his own sexual desire while simultaneously recklessly creating risk
of inconvenience, annoyance or alarm to another); State v. Flynn, 14 Conn.
App. 10, 27, 539 A.2d 1005 (convictions of assault of peace officer in violation
of General Statutes [Rev. to 1983] § 53a-167c [a], which requires ‘‘intent to
prevent a . . . peace officer . . . from performing his duty,’’ and of reck-
less endangerment in violation of General Statutes § 53a-64 [a], which
requires ‘‘recklessly engag[ing] in conduct which creates a risk of physical
injury,’’ not legally inconsistent because mental states related to different
results), cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988).
Although these cases involve factual scenarios in which the defendant acted
intentionally and recklessly toward different individuals, there is no reason
why a defendant may not simultaneously possess two different mental states
with respect to a single victim, as long as each mental state relates to a
different result.
15
For example, if A shoots B in the arm intending only to injure B, A
nevertheless may recklessly expose B to a risk of death if A’s conduct also
gave rise to an unreasonable risk that the bullet would strike B in the chest
and thereby kill him. In such circumstances, a jury could find both that A
intended to injure B and, in doing so, recklessly created an undue risk of
B’s death.
16
Other courts that have considered this issue have concluded that convic-
tions are not legally inconsistent under the facts presented even though
they required a finding that the defendant simultaneously intended to injure
a person and recklessly created a risk of the same person’s death. See, e.g.,
People v. Noble, 635 P.2d 203, 211–13 (Colo. 1981); Commonwealth v. Walker,
442 Mass. 185, 203–204, 812 N.E.2d 262 (2004); People v. Trappier, 87 N.Y.2d
55, 58–59, 660 N.E.2d 1131, 637 N.Y.S.2d 352 (1995); People v. Pitterson, 45
A.D. 3d 308, 309, 845 N.Y.S.2d 255 (2007), appeal denied, 10 N.Y.3d
770, 883 N.E.2d 1266, 854 N.Y.S.2d 331 (2008).
17
Although the defendant does not rely on it, the state draws our attention
to Griffin v. Parker, 219 Conn. 363, 593 A.2d 124 (1991), a civil case in
which we endorsed the position advanced by the defendant, namely, that
convictions for intentional and reckless assault in the first degree are incon-
sistent as a matter of law. See id., 370. In Griffin, the plaintiff, Theodore
E. Griffin, brought a civil action against the defendant, Claude L. Parker,
seeking to recover for injuries he sustained when Parker shot him. See id.,
366. Based on the allegations in his complaint, Griffin was required to prove
that Parker intentionally assaulted him. See id., 366–68. Parker previously
had been convicted of assaulting Griffin in connection with the shooting.
See id., 370. In the civil case, the trial court granted Griffin’s motion for
summary judgment on the basis of its determination that Parker was pre-
cluded from relitigating the issue of whether he intentionally had assaulted
Griffin because the criminal jury had found Parker guilty of both intentional
and reckless assault. Id., 367. In reversing the trial court’s judgment, we
concluded that Parker’s convictions for intentional and reckless assault
were legally inconsistent because they required the jury to find that Parker
‘‘simultaneously acted intentionally and recklessly with regard to the same
act and the same result, namely, the firing of the shotgun and the consequent
serious physical injury to [Griffin].’’ (Emphasis added.) Id., 370. We con-
cluded, therefore, that, because the jury could not properly have found
Parker guilty of both intentional and reckless assault, and because there
was no way ‘‘of determining from the record which state of mind the jury
found that [Parker] possessed when he shot [Griffin]’’; id., 371; Parker was
not precluded from relitigating the issue of whether the shooting was inten-
tional. See id. To the extent that our statement in Griffin suggests that the
jury could not have found Parker guilty of both intentional and reckless
assault because the two crimes require proof that a defendant simultaneously
acted intentionally and recklessly with respect to the same result, we dis-
avow any such suggestion because, as we have explained, the state’s evi-
dence may establish that the defendant acted intentionally and recklessly
with regard to a different result.
18
We recognize that there is language in King and Williams that, if read
in isolation, may be interpreted as supporting the defendant’s position. See
State v. Williams, supra, 237 Conn. 756 (‘‘[t]he holding in King was premised
on the conclusion that, because a defendant cannot act recklessly and
intentionally at the same time toward the same victim, a guilty verdict
based on a finding that a defendant acted with recklessness is inconsistent
with a guilty verdict based on a finding that the defendant acted intentionally’’
[emphasis added]); State v. King, supra, 216 Conn. 593 (‘‘[t]o return verdicts
of guilty for both attempted murder and [reckless] assault in the first degree,
therefore, the jury would have had to find that the defendant simultaneously
acted intentionally and recklessly with regard to the same act and the same
result, i.e., the injury to the victim’’ [emphasis added]). Although these
statements, when considered out of context, could be construed as a mis-
characterization of the relevant inquiry for determining the existence of
mutually exclusive verdicts, our analysis in those cases correctly focused
on whether the convictions required mutually exclusive findings regarding
the defendant’s mental state with respect to the same result. Nothing that
we said in King or Williams should be read to mean that a person cannot
act intentionally and recklessly toward the same person, or that the relevant
inquiry is whether the statutes at issue require findings that the defendant
caused the same injury to the victim. Rather, as we have explained, when
two convictions require a finding that the defendant simultaneously acted
intentionally and recklessly, they are legally inconsistent only if they require
that the defendant possess the opposing mental states with respect to the
same objective, as identified by the relevant statutes.
19
We emphasize that our conclusion that the defendant’s convictions of
intentional and reckless assault in the first degree were not mutually exclu-
sive does not mean that a defendant lawfully may be punished for both
offenses. As we previously discussed; see footnote 7 of this opinion; the trial
court in the present case merged the two assault convictions for purposes of
sentencing and sentenced the defendant only on his intentional assault
conviction. The defendant has not claimed that this approach violates his
right against double jeopardy.
20
We note that, although the trial court instructed the jury in accordance
with § 53a-59 (a) (1) that the state was required to prove that the defendant
intended to cause serious physical injury ‘‘to another person,’’ who, in fact,
was Tyrikah, on one occasion, the court indicated that the state was required
to prove that the defendant caused serious physical injury to Tyrikah while
intending to cause such injury to Tyrell. Contrary to the court’s latter instruc-
tion, the state was required to demonstrate only that the defendant intended
to cause serious physical injury to another person and caused such injury
to that person or another person; the state was not required to establish
that the defendant intended to cause serious physical injury to Tyrell in
particular. Moreover, the defendant’s argument that the evidence was insuffi-
cient to support his conviction under § 53a-59 (a) (1) is not predicated on
the claim that the state failed to prove that the defendant intended to cause
serious physical injury to Tyrell specifically.
21
At oral argument, the defendant’s appellate counsel noted that photo-
graphs of the crime scene show that a mirror above the dresser in S’s
bedroom obscured a large portion of the window and argued that this shows
that the defendant could not have been certain that he was aiming at a
person inside the bedroom. As counsel conceded, however, the mirror did
not block the entire window, and enough of the window was left unob-
structed that the defendant clearly could have seen someone moving inside
the bedroom.