State v. Watson ( 2021 )

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STATE OF CONNECTICUT v. JAMES
HENRY WATSON
(SC 20400)
Robinson, C. J., and McDonald, D’Auria, Ecker and Vertefeuille, Js.
Syllabus
Pursuant to statute ((Rev. to 2015) § 53a-64bb (b)), ‘‘[n]o person shall be
found guilty of strangulation in the second degree and unlawful restraint
or assault upon the same incident . . . .’’
Convicted of assault in the third degree, unlawful restraint in the first degree,
strangulation in the second degree, and threatening in the second degree,
the defendant appealed to the Appellate Court. The defendant and the
victim had been socializing and drinking together in an apartment build-
ing in which the defendant lived. When the victim indicated that she
need to go to the bathroom, the defendant told her that he could use his
bathroom. When the victim finished using the bathroom, the defendant
prevented her from leaving, restrained her and, over the course of eight
or nine hours, alternated between hitting and choking her in various
areas of his apartment. After the jury returned its verdict, the defendant
moved for a judgment of acquittal on the assault and unlawful restraint
charges on the ground that they were ‘‘upon the same incident’’ as the
strangulation charge for purposes of § 53a-64bb (b). The trial court
denied the motion, concluding that the evidence was sufficient to sup-
port the jury’s verdict because the incident occurred over an extended
period of time and the acts of assault and unlawful restraint were readily
separable from the acts of strangulation. The Appellate Court affirmed
the judgment of conviction, and the defendant, on the granting of certifi-
cation, appealed to this court, claiming, inter alia, that the language in
§ 53a-64bb (b) prohibiting a person from being found guilty of strangula-
tion in the second degree ‘‘upon the same incident’’ as unlawful restraint
or assault is an element of the offense of strangulation that must be
found by the jury beyond a reasonable doubt, rather than by the trial
court, pursuant to Apprendi v. New Jersey (530 U.S. 466). Held that the
Appellate Court correctly concluded that the defendant’s constitutional
right to a jury trial was not violated when the trial court, rather than
the jury, determined that the assault and unlawful restraint charges
were not ‘‘upon the same incident’’ as that giving rise to the strangulation
charge, as that determination did not implicate the constitutional princi-
ples underlying Apprendi and its progeny: the core concern of Apprendi
and its progeny is to safeguard the constitutional rights of a criminal
defendant to a jury determination that he or she is guilty of every element
of the crime charged beyond a reasonable doubt, those cases generally
define an element as any fact, other than a prior conviction, that
increases the maximum punishment that may be imposed on a defen-
dant, and whether a fact constitutes an element is informed by whether
the jury had a historical role in finding that fact; in the present case,
an analysis of the statutory design revealed that the ‘‘upon the same
incident’’ prohibition in § 53a-64bb (b) did not constitute an element
within the scope of Apprendi, as that language was not included in
subsection (a) of the statute, which defines the crime of second degree
strangulation and its three elements, or in subsection (c), which classifies
that offense as a class D felony, but was included in subsection (b), a
separate, procedural subsection that included no act, mental state, or
attendant circumstances that must be present for the crime to occur;
moreover, the legislature routinely has employed, and this court consis-
tently has interpreted, the same ‘‘upon the same incident’’ language or
similar language in other penal statutes to express the intention to bar
multiple punishments for double jeopardy purposes, and this court was
aware of no evidence that juries historically played any role in resolving
double jeopardy issues, which the applicable rule of practice (§ 42-20)
commits to the judicial authority for resolution; furthermore, in light of
the evidence that the defendant attacked the victim in multiple locations
in the apartment over an extended period of time and that, in addition
to restraining the victim by the throat, he punched her and prevented
her from leaving the apartment, the trial court correctly determined that
the defendant’s conduct was readily separable and sufficient to support
the jury’s verdict as to each of the offenses, that determination did not
increase the defendant’s sentencing exposure, and the defendant’s total
effective sentence fell within the maximum sentence he could receive
for the crimes of which he was convicted.
Argued November 18, 2020—officially released June 29, 2021*
Procedural History
Substitute information charging the defendant with
the crimes of sexual assault in the first degree, strangu-
lation in the second degree, assault in the third degree,
unlawful restraint in the first degree and threatening
in the second degree, brought to the Superior Court in
the judicial district of Fairfield and tried to the jury
before Kavanewsky, J.; verdict and judgment of guilty
of strangulation in the second degree, assault in the
third degree, unlawful restraint in the first degree and
threatening in the second degree, from which the defen-
dant appealed to the Appellate Court, DiPentima, C. J.,
and Keller and Noble, Js., which affirmed the trial
court’s judgment, and the defendant, on the granting
of certification, appealed to this court. Affirmed.
Alice Osedach, assistant public defender, for the
appellant (defendant).
Timothy F. Costello, senior assistant state’s attorney,
with whom, on the brief, were Joseph T. Corradino,
state’s attorney, and Marc R. Durso, senior assistant
state’s attorney, for the appellee (state).
Opinion
ECKER, J. A jury found the defendant, James Henry
Watson, guilty of three distinct crimes in connection
with his attack on a single victim over the course of
an eight or nine hour period on a single day in October,
2016, namely, assault in the third degree in violation of
General Statutes § 53a-61 (a) (1), unlawful restraint in
the first degree in violation of General Statutes § 53a-
95 (a), and strangulation in the second degree in viola-
tion of General Statutes (Rev. to 2015) § 53a-64bb (a).1
This verdict implicates the provision in § 53a-64bb (b)
providing in relevant part that ‘‘[n]o person shall be
found guilty of strangulation in the second degree and
unlawful restraint or assault upon the same incident
. . . .’’ The trial court determined that the jury’s find-
ings were not ‘‘based upon the same incident’’ and ren-
dered a judgment of conviction on all three counts
in accordance with the jury’s verdict. The defendant
appealed on the ground that the prohibition in § 53a-
64bb (b) designates an element of the offense of stran-
gulation that must be decided by the jury. See Apprendi
v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147
L. Ed. 2d 435 (2000).
In this certified appeal,2 we consider whether the
Appellate Court correctly concluded that the defen-
dant’s constitutional right to a jury trial was not violated
when the trial court rather than the jury determined that
the charges of assault in the third degree and unlawful
restraint in the first degree were not ‘‘upon the same
incident’’ as that giving rise to the charge of strangula-
tion in the second degree. See State v. Watson, 192
Conn. App. 353, 361, 217 A.3d 1052 (2019). We affirm
the judgment of the Appellate Court.
I
The jury could reasonably have found the following
facts.3 On October 19, 2016, at approximately 3 p.m.,
the defendant, the victim and some others were ‘‘hang-
ing out’’ and drinking beer on the front porch of the
Bridgeport apartment building where the defendant
lived. When the victim said that she needed to use the
bathroom, the defendant told her that she could use
his bathroom upstairs. The defendant let her into his
apartment, and the victim went into the bathroom.
When she was finished, she opened the bathroom door,
but the defendant blocked her exit and said, ‘‘I’m going
to get some of your fucking pussy.’’ The defendant
allowed the victim to leave the bathroom, but he used
his body to block the apartment’s exit, forcing her into
the living room. He closed the curtains, grabbed the
victim, and pushed her onto the smaller of the two sofas
in the living room. She tried to push him off her, but
he held her down, pulled off her pants and ripped off
her underpants. Then he punched her and hit her in
the face.
The defendant continued his assault, alternating
between hitting the victim in the face and choking her.
The victim described the defendant’s conduct as follow-
ing a pattern. He would choke her until she could not
breathe, at which point she began kicking her feet,
causing the defendant to loosen his chokehold a bit.
Then he would resume choking and hitting her. At one
point during this lengthy sequence of events, the defen-
dant said, ‘‘I want to kill you,’’ and, ‘‘I know I’m going
to pay for this.’’ The victim tried to fight back and
pleaded with the defendant to return her cell phone,
which he had taken from her, telling him that she
wanted to call her son. The defendant refused to give the
victim her phone and continued to hit her repeatedly.
In an attempt to resist the defendant, the victim bit his
pinky finger. She also tried to run toward the door in
order to escape from the apartment, but the defendant
prevented her from doing so by grabbing the hood of
the sweatshirt she was wearing.
The defendant then moved the victim to his bedroom.
He threw her on the bed and again choked and beat
her. He removed her T-shirt, which she wore under the
sweatshirt, and choked her with it. The defendant told
her repeatedly that he wanted to kill her. The defendant
moved the victim back to the living room and threw
her onto the larger sofa. He resumed beating and chok-
ing her. The defendant finally stopped choking and beat-
ing the victim, but he continued to prevent her from
leaving the apartment.
Many hours later—sometime after midnight—the vic-
tim, hoping to find a chance to escape, told the defen-
dant that she wanted a type of drink called an Icee,
which was sold at a nearby convenience store. He
agreed and accompanied her out of the apartment. Once
outside the building, the victim was able to flee. She
flagged down a passing ambulance, which brought her
to the hospital, where she received medical attention
and spoke with the police.
The state charged the defendant with sexual assault
in the first degree in violation of General Statutes § 53a-
70 (a) (1) (sexual assault), assault in the third degree
in violation of § 53a-61 (a) (1) (assault), unlawful
restraint in the first degree in violation of § 53a-95 (a)
(unlawful restraint), strangulation in the second degree
in violation of § 53a-64bb (a) (strangulation), and threat-
ening in the second degree in violation of General Stat-
utes § 53a-62 (a) (1) (threatening). Following a jury trial,
the defendant was found guilty of strangulation, assault,
unlawful restraint, and threatening, and found not guilty
of sexual assault. Prior to the sentencing hearing, the
court directed the parties to submit memoranda address-
ing whether and to what extent § 53a-64bb (b) applies
in the present case and, if so, the appropriate remedy to
be implemented by the court at the time of sentencing.
In response to the court’s order, the defendant filed
a motion for a judgment of acquittal as to the charges
of assault and unlawful restraint. He contended that the
court was required to acquit him of those two charges
pursuant to § 53a-64bb (b) because the entire sequence
of events giving rise to the charges against him consti-
tuted a single transaction and therefore triggered the
statute’s prohibition against such guilty verdicts ‘‘upon
the same incident . . . .’’4 In response, the state argued
that the prohibition contained in § 53a-64bb (b) was
not implicated because the jury’s verdict finding the
defendant guilty of unlawful restraint, assault and stran-
gulation was supported by sufficient evidence establish-
ing that the defendant committed separate acts support-
ing each of the distinct offenses.
The court denied the defendant’s motion for a judg-
ment of acquittal on the ground that the evidence was
sufficient to support the jury’s verdict of guilty as to the
counts of assault, unlawful restraint and strangulation.
The court explained: ‘‘This is not a situation [in which]
the factual predicates for the convictions were so inter-
twined under any view of the evidence, temporally or
physically or otherwise . . . as to make them, as a
matter of law, one and the same incident.’’ The court
emphasized that the defendant’s actions took place over
an extended period of time and that the acts of assault
and unlawful restraint were readily separable from the
acts of strangulation. Consistent with its ruling on the
motion, the court sentenced the defendant on each of
the counts of conviction, imposing ‘‘a total effective
term of twelve years of incarceration, execution sus-
pended after seven years of mandatory incarceration,
followed by three years of probation.’’ State v. Watson,
supra, 192 Conn. App. 361; see footnote 13 of this opin-
ion.
The defendant appealed to the Appellate Court,
claiming, among other things, that the federal constitu-
tion required that the jury, not the trial court, determine
whether the charges of assault in the third degree and
unlawful restraint in the first degree were ‘‘upon the
same incident’’ as the charge of strangulation in the
second degree. General Statutes § 53a-64bb (b); see
State v. Watson, supra, 192 Conn. App. 361. The Appel-
late Court disagreed with the defendant’s claim and
held that, because there was no constitutional violation,
the defendant’s unpreserved claim failed on the third
prong of State v. Golding, 213 Conn. 233, 239–40, 567
A.2d 823 (1989), as modified by In re Yasiel R., 317
Conn. 773, 781, 120 A.3d 1188 (2015). See State v. Wat-
son, supra, 363. The court relied on its decision in State
v. Morales, 164 Conn. App. 143, 160, 136 A.3d 278, cert.
denied, 321 Conn. 916, 136 A.3d 1275 (2016), to conclude
that, ‘‘in the present case, it was proper for the trial
court, rather than the jury, to determine whether the
charges were ‘upon the same incident’ for the purposes
of § 53a-64bb (b).’’ State v. Watson, supra, 365. This
certified appeal followed.
II
A
The defendant argues that the language in § 53a-64bb
(b) prohibiting a person from being found guilty of
strangulation in the second degree ‘‘upon the same inci-
dent’’ as unlawful restraint or assault sets forth an ele-
ment of the offense of strangulation and, therefore,
presents a factual issue that must be decided by a jury
pursuant to Apprendi. See Apprendi v. New Jersey,
supra, 530 U.S. 490 (holding that, ‘‘[o]ther than the fact
of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a rea-
sonable doubt’’). We disagree.
As the Appellate Court correctly observed, because
the defendant did not object to the trial court determin-
ing whether the charges of assault and unlawful
restraint were ‘‘upon the same incident’’ as the charge
of strangulation, his claim is not preserved for appeal,
and review is available, if at all, pursuant to Golding.5
See State v. Watson, supra, 192 Conn. App. 363. Applying
the Golding analysis, we conclude, as did the Appellate
Court, that the record is adequate for review and the
issue is one of constitutional magnitude, but the defen-
dant’s claim fails because there was no constitutional
violation.
The core concern of Apprendi and its progeny is to
safeguard the constitutional rights entitling ‘‘a criminal
defendant to a jury determination that [he or she] is
guilty of every element of the crime . . . charged,
beyond a reasonable doubt.’’ (Internal quotation marks
omitted.) Apprendi v. New Jersey, supra, 530 U.S. 477.
In particular, Apprendi involved application of this prin-
ciple to ensure that a jury, not a judge, finds any fact
that increases the length of a defendant’s sentence. See
id., 490. The defendant in Apprendi was convicted of
possession of a firearm for an unlawful purpose in viola-
tion of N.J. Stat. Ann. § 2C:39-4 (a) (West 1995), an
offense that carried a maximum penalty of ten years.
See id., 468. A separate statute, N.J. Stat. Ann. § 2C:44-
3 (e) (West Supp. 1999–2000), authorized the trial court
to impose an extended term of imprisonment of
between ten and twenty years if the court found by a
preponderance of the evidence that the defendant
‘‘acted with a purpose to intimidate . . . because of
race, color, gender, handicap, religion, sexual orienta-
tion or ethnicity.’’ (Internal quotation marks omitted.)
Id., 468–69. The state defended the procedure on the
basis that the trial court’s finding pertained, not to
whether the state had proven an element of an offense,
but to the imposition of a sentencing factor. See id., 492.
The court rejected that argument and held that the
procedure violated the sixth and fourteenth amend-
ments to the federal constitution. See id., 475–76. In its
analysis, the court reviewed the historical foundations
of the ‘‘indisputabl[e]’’ right enjoyed by a criminal defen-
dant to have a jury make those findings necessary to
establish the defendant’s guilt beyond a reasonable
doubt as to every element of the crime charged. Id.,
477. The court explained that the ‘‘distinction between
an ‘element’ . . . and a ‘sentencing factor’ was
unknown’’ when our nation was founded. Id., 478.
Judges at that time had little discretion in sentencing—
the jury’s verdict essentially determined the nature and
extent of the punishment. See id., 478–79. Therefore,
‘‘[j]ust as the circumstances of the crime and the intent
of the defendant at the time of commission were often
essential elements to be alleged in the indictment, so
too were the circumstances mandating a particular pun-
ishment.’’ Id., 480.
The court in Apprendi reviewed its own precedent
on the subject, including the landmark case In re
Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368(1970), in which the court held that ‘‘the [d]ue [p]rocess
[c]lause protects the accused against conviction except
upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is
charged.’’ Id., 364; see Apprendi v. New Jersey, supra,530 U.S. 477–78, 484–88. If the historical foundations
of the reasonable doubt standard left any doubt that
its protections extended to the length of a defendant’s
sentence, the court stated, In re Winship and its prog-
eny made it ‘‘clear beyond peradventure’’ that the con-
stitutional protection extended to the circumstances
mandating a particular punishment. Apprendi v. New
Jersey, supra, 484; see, e.g., Mullaney v. Wilbur, 421
U.S. 684, 699, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975)
(rejecting narrow, formalistic reading of In re Winship
in favor of extending its protections to determinations
that went to length of defendant’s sentence).
Apprendi holds that, ‘‘[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable
doubt.’’ Apprendi v. New Jersey, supra, 530 U.S. 490.
Following Apprendi, in Sattazahn v. Pennsylvania, 537
U.S. 101, 123 S. Ct. 732, 154 L. Ed. 2d 588 (2003), the
court offered additional insight into the connection
between elements of the offense and the Apprendi rule:
‘‘Our decision in Apprendi . . . clarified what consti-
tutes an ‘element’ of an offense for purposes of the
[s]ixth [a]mendment’s [jury trial] guarantee. Put simply,
if the existence of any fact (other than a prior convic-
tion) increases the maximum punishment that may be
imposed on a defendant, that fact—no matter how the
[s]tate labels it—constitutes an element, and must be
found by a jury beyond a reasonable doubt.’’ Id., 111.
Under Apprendi, therefore, a fact that increases a
defendant’s punishment beyond the statutory maximum
constitutes an element of the offense.
In subsequent decisions, the United States Supreme
Court has clarified the contours of the Apprendi rule.
For example, in the context of sentencing guidelines,
a trial court properly may make factual findings and
exercise its discretion to select a specific sentence
within a defined range supported by the jury’s verdict
without violating a defendant’s constitutional right to
a jury trial. See United States v. Booker, 543 U.S. 220,
233, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). On the
other hand, the court has repeatedly rejected the propo-
sition that facts found by the court may properly sup-
port a sentence outside the range supported by the
jury’s verdict. ‘‘[T]he ‘statutory maximum’ for Apprendi
purposes is the maximum sentence a judge may impose
solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant. . . . In other
words, the relevant ‘statutory maximum’ is not the max-
imum sentence a judge may impose after finding addi-
tional facts, but the maximum he may impose without
any additional findings.’’ (Citations omitted; emphasis
omitted.) Blakely v. Washington, 542 U.S. 296, 303–304,
124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); see also Cun-
ningham v. California, 549 U.S. 270, 274–75, 127 S. Ct.
856, 166 L. Ed. 2d 856 (2007) (holding that California’s
sentencing scheme, which authorized judges to find
facts in support of applying upper sentencing range, as
opposed to lower or middle range defined for offense,
violated Apprendi).
The United States Supreme Court has also extended
the Apprendi rule to judicial fact-finding that triggers
mandatory minimum sentences. See Alleyne v. United
States, 570 U.S. 99, 108, 133 S. Ct. 2151, 186 L. Ed. 2d 314(2013) (‘‘Apprendi’s definition of ‘elements’ necessarily
includes not only facts that increase the ceiling, but
also those that increase the floor’’); see also United
States v. Haymond, U.S. , 139 S. Ct. 2369, 2381,
204 L. Ed. 2d 897 (2019) (extending Alleyne to imposi-
tion of mandatory minimum sentence for violation of
conditions of supervised release based on judicially
found facts, where mandatory minimum exceeded
range authorized by original conviction); cf. State v.
Evans, 329 Conn. 770, 798–99, 189 A.3d 1184 (2018)
(rejecting defendant’s claim that, under Apprendi and
Alleyne, state was required to prove defendant’s lack
of drug dependency beyond reasonable doubt to jury
because drug dependency, rather than element of
offense, was affirmative defense that would mitigate
sentence), cert. denied, U.S. , 139 S. Ct. 1304,
203 L. Ed. 2d 425 (2019).
Finally, as part of its jury right analysis, the court
has emphasized the importance of the historical role
played by the jury to set limits on the reach of Apprendi
in particular contexts. In Oregon v. Ice, 555 U.S. 160,
163–64, 129 S. Ct. 711, 172 L. Ed. 2d 517 (2009), the
court held that a sentencing judge’s factual findings in
support of the imposition of consecutive rather than
concurrent sentences did not violate the defendant’s
constitutional right to a jury trial. In rejecting the defen-
dant’s argument that Apprendi precluded judicial fact-
finding in support of the imposition of consecutive sen-
tences, the court relied heavily on the fact that the jury
historically ‘‘played no role in the decision to impose
sentences consecutively or concurrently.’’ Id., 168. The
court observed that the decision to impose consecutive
sentences has rested in the sound discretion of trial
judges since before the founding of our nation. See id.,
168–69. Accordingly, ‘‘[t]here is no encroachment . . .
by the judge upon facts historically found by the jury,
nor any threat to the jury’s domain as a bulwark at trial
between the [s]tate and the accused.’’ Id., 169. The scope
of the constitutional right to a jury trial, the court
explained, ‘‘must be informed by the historical role of
the jury at common law.’’ Id., 170.
B
In the present case, the Appellate Court relied largely
on its holding in State v. Morales, supra, 164 Conn. App.
143, to conclude that Apprendi did not require the jury,
rather than the trial judge, to determine whether the
strangulation conviction was part of the ‘‘same inci-
dent’’ as the unlawful restraint and assault for purposes
of § 53a-64bb (b). See State v. Watson, supra, 192 Conn.
App. 364–65. In Morales, as in the present case, the
defendant was convicted of strangulation in the second
degree, unlawful restraint in the first degree and assault
in the third degree. State v. Morales, supra, 146. On
appeal to the Appellate Court, the defendant claimed
that the sentencing court’s determination that the three
charges were based on distinct and separate ‘‘ ‘inci-
dents,’ ’’ for purposes of § 53a-64bb (b), violated his
right to a jury trial under Apprendi. Id., 159. The court
rejected the claim, concluding that, at sentencing, the
trial court ‘‘simply looked at the evidence and con-
cluded that the evidence [was sufficient to support] the
jury’s verdict on each of the separate charges,’’ and then
sentenced the defendant within the statutory maximum
for each offense. Id., 161. The court in Morales reasoned
that the Apprendi rule was not violated because the
trial court did not ‘‘find any fact that enhanced the
defendant’s sentence beyond the statutory maximum
permitted by the jury’s verdict.’’ Id.
The defendant contends that Morales was wrongly
decided. To resolve that claim, we must decide whether
the ‘‘upon the same incident’’ prohibition contained in
§ 53a-64bb (b) sets forth an element of the offense of
strangulation in the second degree within the scope of
the Apprendi rule. As we previously mentioned, the
United States Supreme Court has supplied a succinct
definition of what constitutes an ‘‘element’’ of a criminal
offense in this context: ‘‘Put simply, if the existence of
any fact (other than a prior conviction) increases the
maximum punishment that may be imposed on a defen-
dant, that fact—no matter how the [s]tate labels it—
constitutes an element, and must be found by a jury
beyond a reasonable doubt.’’ Sattazahn v. Pennsylva-
nia, supra, 537 U.S. 111. Other definitions vary in focus
and level of detail. See, e.g., Almendarez-Torres v.
United States, 523 U.S. 224, 240, 118 S. Ct. 1219, 140 L.
Ed. 2d 350 (1998) (element of offense is ‘‘a fact neces-
sary to constitute the crime’’ (internal quotation marks
omitted)).
The traditional, common-law definition is somewhat
more elaborate: ‘‘It is commonly stated that a crime
consists of both a physical part and a mental part; that
is, both an act or omission (and sometimes also a pre-
scribed result of action or omission, or prescribed atten-
dant circumstances, or both) and a state of mind.’’ 1
W. LaFave, Substantive Criminal Law (3d Ed. 2018)
§ 5.1, p. 446; see also United States v. Apfelbaum, 445
U.S. 115, 131, 100 S. Ct. 948, 63 L. Ed. 2d 250 (1980)
(‘‘both a culpable mens rea and a criminal actus reus
are generally required for an offense to occur’’); Moris-
sette v. United States, 342 U.S. 246, 251, 72 S. Ct. 240,
96 L. Ed. 288 (1952) (prerequisite of criminal conduct
is ‘‘concurrence of an evil-meaning mind with an evil-
doing hand’’); State v. Pond, 315 Conn. 451, 461–62, 108
A.3d 1083 (2015) (recognizing ‘‘the well established
. . . distinction between three types or categories of
essential elements that define each criminal offense
[i.e.] conduct, results, and attendant circumstances,’’
and describing ‘‘attendant circumstances’’ as encom-
passing ‘‘elements such as the time or location of a
crime, characteristics of the perpetrator or victim (e.g.,
the victim’s age or the perpetrator’s status as a con-
victed felon), or circumstantial features of the weapon
used (e.g., whether a firearm is registered or opera-
tional)’’).6
With this guidance in mind, we turn to the language
and structure of § 53a-64bb to assess whether the ‘‘same
incident’’ prohibition contained in subsection (b) of the
statute sets forth an element of the offense of strangula-
tion in the second degree within the meaning of Appre-
ndi and its progeny.
The language of subsection (b) itself, read in a vac-
uum, provides no clear answer to the question. It pro-
vides in relevant part: ‘‘No person shall be found guilty
of strangulation in the second degree and unlawful
restraint or assault upon the same incident, but such
person may be charged and prosecuted for all three
offenses upon the same information. . . .’’ General
Statutes (Rev. to 2015) § 53a-64bb (b). On the one hand,
by prohibiting a finding of guilty for the related offenses
upon the same incident, the provision suggests that the
determination is one for the jury because it is ordinarily
the jury, not the judge, that finds a defendant guilty.7
On the other hand, the ‘‘same incident’’ proviso exhibits
none of the usual indicia that denote an element of
a crime.
First, as we will discuss shortly in greater detail, the
prohibition is not included as part of the substantive
portion of the statute defining the crime and its ele-
ments, § 53a-64bb (a); nor is it included as a sentencing
factor in the statute’s sentencing provision, § 53a-64bb
(c). Instead, it is contained in a procedural provision
instructing the court and prosecuting authority that the
crime defined in subsection (a) may be charged in the
same information as assault or unlawful restraint but
that a person may not be found guilty of that crime and
either of the other two designated offenses for the same
incident. The operative portion of subsection (b) is a
single sentence containing two parts; reading the sen-
tence as a whole indicates that it contains an administra-
tive directive regarding the proper procedure for charg-
ing and adjudicating the designated offenses. It
establishes a particular limitation on the prosecution
of the crime by prohibiting the state from obtaining
guilty verdicts on a specified combination of designated
charges; a person may be found guilty, convicted and
punished for the crime of strangulation in the second
degree, even if he also engaged in conduct that could
support a jury finding that he committed the crime of
unlawful restraint or assault as part of the same inci-
dent, as long as he is not prosecuted and found guilty
of either of those two other crimes. The statutory provi-
sion at issue, in other words, does not define the ele-
ments of the crime; it limits the state’s ability to success-
fully prosecute the crime.
Second, the ‘‘same incident’’ proviso does not set
forth a circumstance that must be present for the crime
to come into being but, instead, focuses on a procedural
occurrence that must be absent at the conclusion of
the trial. That is, a defendant can be found guilty of the
crime of strangulation in the second degree only if he
or she is not also found guilty of either of the two
related crimes enumerated in the statute. This statutory
limitation does not categorically preclude the ‘‘same
incident’’ determination from being an element of the
crime, but it would be very unusual for a legislature to
define an element in such a manner. The defendant has
not pointed to any statute that has been construed to
do so.
Third, as noted, the structure of § 53a-64bb lends
substantial force to the conclusion that subsection (b)
does not set forth an element of the crime. The statute
contains three subsections. See footnote 1 of this opin-
ion. Subsection (a) defines the offense: ‘‘A person is
guilty of strangulation in the second degree when such
person restrains another person by the neck or throat
with the intent to impede the ability of such other per-
son to breathe or restrict blood circulation of such other
person and such person impedes the ability of such
other person to breathe or restricts blood circulation
of such other person.’’ General Statutes (Rev. to 2015)
§ 53a-64bb (a). This provision plainly and unambigu-
ously sets forth three elements of the offense of strangu-
lation in the second degree. The state must prove that
(1) the defendant restrained the victim by the neck or
throat, (2) the defendant did so with the intent to
impede the victim’s ability to breathe or to restrict her
blood circulation, and (3) the victim’s breathing or
blood flow was impeded as a result of the prohibited
conduct. See, e.g., State v. Dubuisson, 183 Conn. App.
62, 69, 191 A.3d 229, cert. denied, 330 Conn. 914, 193
A.3d 560 (2018); State v. Linder, 172 Conn. App. 231,
239, 159 A.3d 697, cert. denied, 326 Conn. 902, 162 A.3d
724 (2017). These three elements describe the conduct,
mens rea and result necessary to commit the offense.
Subsection (b) sets forth the prohibition at issue in
this appeal: ‘‘No person shall be found guilty of strangu-
lation in the second degree and unlawful restraint or
assault upon the same incident, but such person may
be charged and prosecuted for all three offenses upon
the same information.’’ General Statutes (Rev. to 2015)
§ 53a-64bb (b). Subsection (b) also identifies which stat-
utory violations constitute ‘‘unlawful restraint’’ and
‘‘assault’’ for purposes of the prohibition.
Finally, subsection (c) of § 53a-64bb provides that
strangulation in the second degree is a class D felony.
This statutory design illuminates the nature of the
‘‘same incident’’ prohibition for purposes of Apprendi.
Rather than including the prohibition as one of the
elements of the offense in subsection (a), the legislature
chose to locate the provision in a separate subsection
devoted to procedural issues involving the proper treat-
ment of designated related offenses, namely, strangula-
tion in the second degree, unlawful restraint and
assault. Subsection (b)—unlike subsection (a)—identi-
fies no conduct, result, attendant circumstances or men-
tal state required as elements of strangulation in the
second degree. The provision, instead, establishes the
purely procedural limitations discussed previously.
C
It is readily apparent that the ‘‘same incident’’ prohibi-
tion was included by the legislature in subsection (b)
rather than subsection (a) because the provision is not
intended to set forth an element of the crime but, rather,
to express legislative intentions relating specifically to
double jeopardy. Indeed, the Appellate Court recently
identified nineteen penal statutes using the same basic
verbal formulation for precisely this purpose. See State
v. Burgos, 170 Conn. App. 501, 555 n.37, 155 A.3d 246(citing General Statutes §§ 53a-55a (a), 53a-56a (a), 53a-
59a (b), 53a-59b (b), 53a-60a (a), 53a-60b (b), 53a-60c
(b), 53a-61a (b), 53a-61aa (a), 53a-64aa (b), 53a-64bb
(b), 53a-64cc (b), 53a-70a (a), 53a-72b (a), 53a-92a (a),
53a-94a (a), 53a-102a (a), 53a-103a (a) and 53a-216 (a)),
cert denied, 325 Conn. 907, 156 A.3d 538 (2017).8 Both
this court and the Appellate Court consistently have
construed the meaning of such statutory language to
trigger the protections of the double jeopardy clause.9
The purpose and meaning of this legislative formula-
tion are so well understood that its absence in a particu-
lar statutory scheme has been construed to indicate a
legislative intention to permit multiple convictions for
related crimes arising out of the same incident. In State
v. Bernacki, 307 Conn. 1, 23–24, 52 A.3d 605 (2012),
cert. denied, 569 U.S. 918, 133 S. Ct. 1804, 185 L. Ed.
2d 811 (2013), for example, we considered the absence
of any such language in either General Statutes (Rev.
to 2005) § 53a-217 (a) or General Statutes (Rev. to 2005)
§ 53a-223 (a) to support our conclusion, following our
application of the two-pronged test established in
Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct.
180, 76 L. Ed. 306 (1932), that the defendant’s conviction
under both statutes did not violate his federal and state
constitutional protections against double jeopardy. Spe-
cifically, we relied on the absence of express statutory
language signifying a legislative intent to preclude multi-
ple punishments as support for our conclusion that
the defendant had failed to rebut the presumption of
legislative intent created by our application of the
Blockburger test. See State v. Bernacki, supra, 23–24.
We explained that ‘‘the statutory scheme lacks language
expressly indicating that the legislature intended to pre-
clude multiple punishments for violating both [General
Statutes (Rev. to 2005)] §§ 53a-223 (a) and 53a-217 (a)
(3) (A), when those violations arise out of the same act
or transaction. We repeatedly have observed that the
lack of statutory language providing that the conviction
of one offense precludes conviction of, or punishment
for, committing a separate offense in the same act or
transaction is a strong indication that the legislature
intended to permit multiple punishments.’’ Id.10
We have interpreted this statutory language in pre-
cisely this manner for thirty years. In State v. Greco,
216 Conn. 282, 287–88, 579 A.2d 84 (1990), this court
rejected the defendant’s claim that the double jeopardy
clause barred the trial court from imposing consecutive
sentences for his convictions of felony murder, first
degree robbery and first degree burglary.11 In our analy-
sis of the felony murder statute, General Statutes (Rev.
to 1989) § 53a-54c, we noted the absence of any lan-
guage prohibiting a defendant from being found guilty
or being convicted upon the same transaction or inci-
dent as the offenses of first degree burglary or first
degree robbery. See id., 295. We cited examples of such
prohibitions in twelve different statutes employing lan-
guage similar to that in § 53a-64bb (b); id., 295 n.14;
and concluded that, ‘‘[s]ince the legislature has shown
that it knows how to bar multiple punishments
expressly when it does not intend such punishment,
the absence of similar language in § 53a-54c provides
evidence that the legislature intended cumulative pun-
ishment.’’ Id., 295; see also State v. Kirsch, 263 Conn.
390, 418–19, 820 A.2d 236 (2003) (rejecting defendant’s
claim that his dual convictions under General Statutes
§§ 53a-55 (a) (3) and 53a-56b (a) violated his right
against double jeopardy in part due to absence of lan-
guage prohibiting multiple punishment, noting that ‘‘our
Penal Code is replete with other statutes in which the
legislature expressly has barred conviction of two
crimes for one action,’’ and citing statutes with language
similar to § 53a-64bb (b)); State v. Re, 111 Conn. App.
466, 471, 959 A.2d 1044 (2008) (relying on absence of
prohibitory language in statute to reject defendant’s
double jeopardy claim and citing as contrast multiple
statutes with language similar to that in § 53a-64bb (b)),
cert. denied, 290 Conn. 908, 964 A.2d 543 (2009); State
v. Quint, 97 Conn. App. 72, 80–81, 904 A.2d 216 (same),
cert. denied, 280 Conn. 924, 908 A.2d 1089 (2006); State
v. Servello, 80 Conn. App. 313, 323, 835 A.2d 102 (2003)
(same), cert. denied, 267 Conn. 914, 841 A.2d 220 (2004).
D
It should be clear by now that the trial court’s determi-
nation at sentencing that the offenses of strangulation,
assault and unlawful restraint were not ‘‘upon the same
incident’’ simply does not implicate the constitutional
principles underlying Apprendi. The statutory provi-
sion, rather, is directed at double jeopardy concerns.
The defendant, moreover, has not provided us with
any evidence that the jury historically played a role in
resolving double jeopardy issues, and we have found
none. See Oregon v. Ice, supra, 555 U.S. 168–69 (relying
on absence of historical role played by jury in imposi-
tion of consecutive versus concurrent sentences to
reject defendant’s reliance on Apprendi). His claim on
appeal fails as a result.
The defendant’s legal argument ultimately rests on a
flawed syllogism: (1) factual findings in criminal cases
must be made by the jury as matter of constitutional
right, (2) the ‘‘upon the same incident’’ determination
required by § 53a-64bb (b) is a factual determination,
and (3) the jury did not make the required factual deter-
mination in this case. The flaw in this reasoning, of
course, is that not all factual questions presented for
adjudication during the life of a criminal case must be
decided by the jury. Apprendi and its progeny require
no such thing. To the contrary, the trial court is required
to make many factual findings as part of its obligation
to decide legal issues arising before, during and after
trial. A claim of double jeopardy is among the legal
issues that are committed to the judicial authority for
resolution. See, e.g., Practice Book § 42-20 (‘‘[t]he judi-
cial authority shall decide all issues of law and all ques-
tions of law arising in the trial of criminal cases’’); State
v. Cody M., 337 Conn. 92, 99, 259 A.3d 576 (2020) (‘‘[a]
defendant’s double jeopardy claim presents a question
of law’’ (internal quotation marks omitted)); State v.
Butler, 262 Conn. 167, 174, 810 A.2d 791 (2002) (defen-
dant’s double jeopardy ‘‘claim presents an issue of
law’’).
The trial court in the present case found that the
evidence presented to the jury established that an
extended length of time passed between the victim’s
initial unlawful restraint by the defendant and her even-
tual escape, from approximately 3 p.m. to sometime
after midnight. The evidence also revealed that the
defendant attacked the victim in multiple locations in
the apartment and that, in addition to restraining the
victim by the throat, the defendant engaged in distinct
conduct that did not constitute strangling, namely, hit-
ting and punching the victim and preventing her from
leaving the apartment. The trial court correctly deter-
mined that this assaultive conduct was readily separa-
ble from the defendant’s conduct of restraining the vic-
tim by the throat. Given this evidence, the trial court
correctly concluded that the charges of assault and
unlawful restraint were not ‘‘upon the same incident’’ as
the charge of strangling for purposes of § 53a-64bb (b).
The trial court’s postverdict factual findings under
§ 53a-64bb (b) did not determine an element of the
crime of strangulation in the second degree; nor did
they lengthen the sentence to which the defendant was
exposed with respect to any of the counts of conviction.
Based on the jury’s verdict finding the defendant guilty
of the charges of strangulation, assault, unlawful restraint
and threatening, the maximum sentence to which the
court could have sentenced the defendant was twelve
years.12 The defendant’s total effective sentence of
twelve years, execution suspended after seven years,
followed by three years of probation—which the court
arrived at after determining that the evidence was suffi-
cient to support the jury’s verdict as to each of the four
separate offenses—fell within that maximum.13
Under these circumstances, we agree with the Appel-
late Court that the defendant failed to demonstrate a
violation of his constitutional rights.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* June 29, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
General Statutes (Rev. to 2015) § 53a-64bb provides: ‘‘(a) A person is
guilty of strangulation in the second degree when such person restrains
another person by the neck with the intent to impede the ability of such
other person to breathe or restrict blood circulation of such other person
and such person impedes the ability of such other person to breathe or
restricts blood circulation of such other person.
‘‘(b) No person shall be found guilty of strangulation in the second degree
and unlawful restraint or assault upon the same incident, but such person
may be charged and prosecuted for all three offenses upon the same informa-
tion. For the purposes of this section, ‘unlawful restraint’ means a violation
of section 53a-95 or 53a-96, and ‘assault’ means a violation of section 53a-
59, 53a-59a, 53a-59b, 53a-59c, 53a-60, 53a-60a, 53a-60b, 53a-60c, 53a-61 or
53a-61a.
‘‘(c) Strangulation in the second degree is a class D felony.’’
Hereinafter, all references to § 53a-64bb in this opinion are to the 2015
revision of the statute.
2
This court granted the defendant’s petition for certification to appeal
from the judgment of the Appellate Court, limited to the following issue:
‘‘Should this court overrule State v. Morales, 164 Conn. App. 143, 136 A.3d
278, cert. denied, 321 Conn. 916, 136 A.3d 1275 (2016), in which the Appellate
Court held that a trial court’s postverdict determination of whether the
crimes of strangulation, unlawful restraint, and assault occurred ‘upon the
same incident’ under . . . § 53a-64bb (b) does not violate a criminal defen-
dant’s constitutional right to a jury trial?’’ State v. Watson, 333 Conn. 941,
218 A.3d 1049 (2019).
3
For the sake of clarity, our recitation of the facts does not include the
testimony and other evidence pertaining to the allegations of sexual assault
because that evidence is not relevant to the issue on appeal in light of the
jury verdict of not guilty with respect to the charge of sexual assault.
4
The defendant did not argue in the trial court that the jury rather than
the court was required to decide the issue.
5
Pursuant to Golding, ‘‘a defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim of error; (2) the claim
is of constitutional magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless error analysis, the
state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail.’’ (Emphasis in original; footnote
omitted.) State v. Golding, supra, 213 Conn. 239–40; see also In re Yasiel
R., supra, 317 Conn. 781 (modifying third prong of Golding).
6
The Model Penal Code defines an ‘‘ ‘element of an offense’ ’’ more broadly
as ‘‘(i) such conduct or (ii) such attendant circumstances or (iii) such a
result of conduct as (a) is included in the description of the forbidden
conduct in the definition of the offense; or (b) establishes the required kind
of culpability; or (c) negatives an excuse or justification for such conduct;
or (d) negatives a defense under the statute of limitations; or (e) establishes
jurisdiction or venue . . . .’’ 1 A.L.I., Model Penal Code and Commentaries
(1985) § 1.13 (9), p. 209. With respect to each of the ‘‘material element[s]’’—
conduct, attendant circumstances and result—the state must prove that the
defendant acted with the legally required type of culpability, or mens rea.
See id., § 2.02 (1), p. 225.
7
The defendant suggests that, if the legislature had intended for the court
rather than a jury to make the required determination, it could have written
the statute to provide that no person may be ‘‘convicted’’ of strangulation
upon the same incident as assault or unlawful restraint. A person is ‘‘con-
victed’’ only when a judgment of conviction has been rendered by a court
of competent jurisdiction. See, e.g., General Statutes § 53a-217 (a) (‘‘[f]or the
purposes of this section, ‘convicted’ means having a judgment of conviction
entered by a court of competent jurisdiction’’); General Statutes § 54-250
(1) (‘‘ ‘[c]onviction’ means a judgment entered by a court upon a plea of
guilty, a plea of nolo contendere or a finding of guilty by a jury or the court
notwithstanding any pending appeal or habeas corpus proceeding arising
from such judgment’’); General Statutes § 54-280 (2) (‘‘ ‘[c]onvicted’ means
that a person has a judgment entered in this state against such person by
a court upon a plea of guilty, a plea of nolo contendere or a finding of guilty
by a jury or the court notwithstanding any pending appeal or habeas corpus
proceeding arising from such judgment’’). We shall see, upon further analysis,
that the legislature uses the terms ‘‘found guilty’’ and ‘‘convicted’’ inter-
changeably in this particular context. See footnote 8 of this opinion.
8
We note that, although many of these statutes prohibit a conviction upon
the same incident; see, e.g., General Statutes § 53a-70a (a) (‘‘[n]o person
shall be convicted of sexual assault in the first degree and aggravated sexual
assault in the first degree upon the same transaction’’); many others, like
53a-64bb (b), prohibit a finding of guilty upon the same incident. See,
e.g., General Statutes § 53a-55a (a) (‘‘[n]o person shall be found guilty of
manslaughter in the first degree and manslaughter in the first degree with
a firearm upon the same transaction’’); General Statutes § 53a-60b (b) (‘‘[n]o
person shall be found guilty of assault in the second degree or larceny in
the second degree under section 53a-123 (a) (3) and assault of an elderly,
blind, disabled or pregnant person or a person with intellectual disability
in the second degree upon the same incident of assault or larceny’’); General
Statutes § 53a-60c (b) (‘‘[n]o person shall be found guilty of assault in the
second degree or assault in the second degree with a firearm and assault
of an elderly, blind, disabled or pregnant person or a person with intellectual
disability in the second degree with a firearm upon the same incident of
assault’’). Although the term ‘‘convicted’’ conveys the intended meaning
more effectively than ‘‘guilty,’’ it is clear that the legislature uses the terms
interchangeably for this purpose.
9
We have thoroughly examined the legislative history of § 53a-64bb to
ensure that the legislature did not reveal a different intention when it enacted
that statute. There is nothing in the legislative history indicating any contrary
or conflicting intention in this regard. In addition, we conducted a similar
review of the legislative history of the many statutes with similar wording.
See State v. Burgos, supra, 170 Conn. App. 555 n.37 (citing statutes). That
research yielded the same result.
10
To illustrate the point, the court in State v. Bernacki, supra, 307 Conn.
24 n.18, cited numerous statutes with language similar to that in § 53a-64bb
(b). See General Statutes § 53a-55a (a) (‘‘[n]o person shall be found guilty
of manslaughter in the first degree and manslaughter in the first degree
with a firearm upon the same transaction’’); General Statutes (Rev. to 2011)
§ 53a-59a (b) (‘‘[n]o person shall be found guilty of assault in the first degree
and assault of an elderly, blind, disabled, pregnant or mentally retarded
person in the first degree upon the same incident of assault’’); General
Statutes § 53a-59b (b) (‘‘[n]o person shall be found guilty of assault in the
first degree and assault of an employee of the Department of Correction in
the first degree upon the same incident of assault’’); General Statutes § 53a-
72b (a) (‘‘[n]o person shall be convicted of sexual assault in the third degree
and sexual assault in the third degree with a firearm upon the same transac-
tion’’); General Statutes § 53a-92a (a) (‘‘[n]o person shall be convicted of
kidnapping in the first degree and kidnapping in the first degree with a
firearm upon the same transaction’’).
11
In Greco, the trial court had calculated the maximum sentence that the
defendant faced consistent with its conclusion that consecutive sentences
would be permissible. On appeal, the defendant challenged the trial court’s
denial of his motion to withdraw his plea. See State v. Greco, supra, 216
Conn. 286–87. The defendant conceded at oral argument before this court
that his challenge to the trial court’s decision depended on whether this
court agreed with his double jeopardy claim. Id., 288.
12
Strangulation in the second degree and unlawful restraint are class D
felonies, each carrying a maximum sentence of five years incarceration. See
General Statutes (Rev. to 2015) § 53a-64bb (c); General Statutes §§ 53a-35a
(8) and 53a-95 (b). Assault in the third degree and threatening in the second
degree are class A misdemeanors, each carrying a maximum sentence of
one year incarceration. See General Statutes §§ 53a-36 (1), 53a-61 (b) and
53a-62 (c).
13
The court sentenced the defendant to a term of five years incarceration,
execution suspended after four years, followed by three years probation,
for strangulation in the second degree; five years incarceration, execution
suspended after three years, followed by three years probation, for unlawful
restraint in the first degree; one year incarceration, execution suspended,
and three years probation, for assault in the third degree; and one year
incarceration, execution suspended, and three years probation, for threaten-
ing in the second degree, all counts to run consecutive to each other.