State v. Haughwout ( 2021 )

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STATE OF CONNECTICUT v. AUSTIN
GRANT HAUGHWOUT
(SC 20547)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker and Keller, Js.
Syllabus
The defendant was convicted of one count of interfering with an officer,
one count of disobeying the direction of an officer while increasing the
speed of a motor vehicle in an attempt to escape or elude, and two
counts of assault of a peace officer in connection with two separate
incidents between him and certain police officers. During the first inci-
dent, an officer, S, turned his cruiser into a parking lot adjacent to a
library at about 9 p.m. S observed the defendant walking quickly from
a picnic table near the library to a parked vehicle in the lot. Once in
the vehicle, the defendant took a few moments to set up a dashboard
camera in order to record the incident. Shortly thereafter, the defendant
drove his vehicle toward the exit, S turned his cruiser’s light bar on
briefly, and S motioned with his hand for the defendant to pull alongside
the cruiser, which he did. After a brief dialogue, S told the defendant
to put his vehicle in park. The defendant ignored S’s command and
abrubtly began to drive toward the exit. S turned on his lightbar again
and pulled his cruiser behind the defendant’s vehicle. The defendant
stopped, shouted to S, ‘‘hey asshole,’’ and then proceeded to exit the
parking lot and to drive north on a local road. Another officer, who had
just arrived at the scene, and S pursued the defendant, and the defendant
stopped a short distance up the road. After the defendant continued to
argue with the officers and declined a request to provide his operator’s
license and registration, the officers let him leave the scene and applied
for an arrest warrant. The second incident occurred when the defendant,
in response to being informed by the police that they had obtained a
warrant for his arrest, arrived at the police station. The defendant
brought a video camera with him and began recording. The defendant
was told by an officer, V, that he was in custody and under arrest. V
also told the defendant that he had to secure the camera and that it
would be returned. The defendant declined to surrender the camera
and attempted to leave. A struggle between the defendant and V ensued,
shortly after which another officer, D, came to V’s assistance. Once the
defendant was subdued, he was carried to the booking area. Before trial,
the defendant moved to suppress evidence derived from the encounter
relating to the first incident, claiming that S lacked a reasonable and
articulable suspicion that the defendant had been engaged in criminal
activity and that his detention was therefore illegal. The trial court
denied that motion. On appeal from the judgments of conviction, the
defendant claimed, inter alia, that the trial court improperly denied his
motion to suppress and that the evidence was insufficient to support
his conviction of both counts of assault of a peace officer. Held:
1. The trial court improperly denied the defendant’s motion to suppress
evidence relating to the first incident, as the defendant’s detention by
S in connection with that incident was unlawful, and, accordingly, the
judgment of conviction of interfering with an officer and disobeying the
direction of an officer was reversed; the defendant’s conduct could not,
in and of itself, give rise to a reasonable and articulable suspicion of
criminal activity, as the totality of circumstances did not objectively
indicate that the defendant was attempting to elude detection, there
were no signs limiting access to the parking lot, members of the public
frequently used the area after the library was closed in order to use the
book drop and to access the library’s free Wi-Fi, the fact that crimes
previously occurred nearby did not alter this conclusion, and S’s observa-
tion that the defendant walked quickly toward his vehicle fell short of
the type of flight that has been found to indicate criminal behavior.
2. There was no merit to the defendant’s claim that there was insufficient
evidence to support his conviction of both counts of assault of a peace
officer in connection with the second incident on the ground that the
jury could not have reasonably found that the defendant had intended
to interfere with the performance of either V’s or D’s duties or to cause
D’s injuries, and on the ground that the evidence did not support a
finding that V’s use of force was reasonable: the context afforded by
the argument preceding the struggle at the police station, the defendant’s
attempt to leave the lobby, the fact that he kicked V multiple times, and
the length of the struggle were facts from which the jury reasonably
could have inferred that the defendant’s resistance was undertaken with
an intent to delay his arrest, and not the result of mere reflex; moreover,
the evidence was sufficient to support the conclusion that V’s use of
force was reasonable, as V testified that he grabbed the defendant, who
had been informed that he was under arrest, in order to prevent him
from leaving the lobby and brought him to the ground only after the
defendant began to struggle, V was outsized and alone at the moment
the struggle began, and V never struck the defendant or resorted to the
use of any type of weapon; furthermore, the jury could have reasonably
concluded that the defendant injured D during the struggle, as D testified
that he experienced neck and back pain as a result of the defendant’s
resistance and that he took time off from work to recover from those
injuries.
3. The defendant was entitled to a new trial with respect to the count
charging him with the assault of V, as the trial court improperly declined
to instruct the jury that, to find the defendant guilty of that assault, it must
first determine that V’s use of force was reasonable, and, accordingly,
the defendant was entitled to a new trial with respect to that count;
nevertheless, the defendant could not prevail on his claim that the trial
court committed reversible error by failing to instruct the jury, with
respect to the charge relating to the assault of D, that the defendant’s
conduct must have been the proximate cause of D’s injuries, as the trial
court’s instruction on causation was both legally correct and adequate
when viewed in the context of the evidence presented at trial.
Argued February 24—officially released July 23, 2021*
Procedural History
Substitute information, in the first case, charging the
defendant with the crimes of disobeying the direction
of an officer while increasing the speed of a motor
vehicle in an attempt to escape or elude an officer and
interfering with an officer, and substitute information,
in the second case, charging the defendant with two
counts of the crime of assault of public safety personnel
and one count of the crime of interfering with an officer,
brought to the Superior Court in the judicial district of
Middlesex, where the cases were consolidated and tried
to the jury before Suarez, J.; thereafter, the court,
Suarez, J., denied the defendant’s motion to suppress
certain evidence; subsequently, verdicts of guilty; there-
after, the court, Suarez, J., vacated the conviction of
interfering with an officer in the second case and ren-
dered judgments of conviction on the remaining counts
in both cases, from which the defendant appealed.
Affirmed in part; reversed in part; judgment directed
in part; further proceedings.
Jennifer Bourn, supervisory assistant public defender,
for the appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Michael A. Gailor, state’s
attorney, and Russell C. Zentner, senior assistant state’s
attorney, for the appellee (state).
Opinion
KAHN, J. The defendant, Austin Grant Haughwout,
appeals from judgments of conviction on charges aris-
ing from, respectively, two separate incidents between
him and various officers of the Clinton Police Depart-
ment in July, 2015. The defendant claims that evidence
of certain events during the first incident, which
occurred in the parking lot of a local library on the
night of July 19, 2015, should have been suppressed
because those events were the result of an unconstitu-
tional investigatory detention. The state responds to
this claim by arguing that, in light of the totality of the
circumstances presented, the police had a reasonable
and articulable suspicion that the defendant had been
engaged in criminal activity and that an investigatory
detention was, therefore, constitutional under Terry v.
Ohio, 392 U.S. 1, 21–22, 88 S. Ct. 1868, 20 L. Ed. 2d 889(1968).1 We disagree with the state and, accordingly,
reverse the trial court’s judgment of conviction as to
the offenses relating to the incident that occurred on
July 19, 2015. The defendant also claims that his convic-
tion of two counts of assault of public safety personnel,
specifically a peace officer, related to the second inci-
dent, which occurred inside of the Clinton Police
Department on July 22, 2015, is infirm because (1) the
state’s evidence was insufficient to support his convic-
tion, and (2) the trial court erred when instructing the
jury. The state concedes that a new trial is required with
respect to one of the assault charges due to instructional
error but contends that the defendant’s remaining
claims lack merit. We agree with the state and, there-
fore, affirm in part and reverse in part the trial court’s
judgment of conviction related to the incident that
occurred on July 22, 2015.
The following facts and procedural history are rele-
vant to our consideration of the present appeal. Shortly
after 9 p.m. on the evening of July 19, 2015, Officer
Alexieff Adrian Santiago drove past the Henry Carter
Hull Library in the town of Clinton and observed a
vehicle parked in an unlit corner of an adjacent parking
lot.2 Although the library had closed earlier that day,
Santiago testified that the public frequented the parking
lot after hours to use the book drop and to access the
library’s free Wi-Fi.3 Santiago turned his police cruiser
around, drove into the parking lot, and observed a per-
son walking ‘‘quickly’’ in the direction of the parked
vehicle.4 A few moments later, that vehicle began to
drive toward the exit of the parking lot.5 Santiago turned
his cruiser’s light bar on briefly and then motioned with
his hand for the approaching vehicle to pull alongside
of his cruiser. Santiago immediately recognized the
defendant and asked him what he had been doing there.
The defendant responded that he had been using the
library’s Wi-Fi at a picnic table adjacent to the parking
lot but had left because he was being bothered by bugs.6
Santiago then decided to look behind the library and
ordered the defendant to put his vehicle in park. The
defendant then began to ask, repeatedly and continu-
ously, whether Santiago suspected him of a crime. Santi-
ago responded by telling the defendant, at least two
more times, to put the vehicle in park. The defendant
ignored those commands and abruptly began to drive
toward the exit of the parking lot. While Santiago was
turning his cruiser around to pursue the defendant, he
noticed that a fence gate leading to a patio behind the
library was open.7 Santiago then turned on his light bar,
pulled his cruiser up behind the defendant at the exit of
the parking lot, and radioed for backup. The defendant
stopped his vehicle, called out to Santiago by exclaiming,
‘‘hey asshole,’’ and then continued to shout out of the
window. As another officer arrived, the defendant
pulled out of the parking lot and began to drive north
on Killingworth Turnpike. The officers engaged their
sirens and followed. Although the defendant came to
a halt a short distance away, he thereafter continuously
argued with the officers, refused to put the transmission
of his vehicle into park, and repeatedly declined to
provide his license and registration when requested.
The police officers ultimately decided to let the defen-
dant leave the scene and to apply for an arrest warrant
based on his conduct.
On July 22, 2015, the police called the defendant and
informed him that they had obtained a warrant for his
arrest in connection with the preceding events. The
defendant arrived at the police station at approximately
8 p.m. that evening. Prior to entering the police station,
the defendant, using a small video camera, began a
recording of the event by noting the date, time, location,
and purpose of his visit and reviewing an inventory of
items he was taking with him into the station. After
entering the station, he was explicitly told by Officer
Christopher Varone that he was in police custody and
under arrest. At that time, Varone noticed that the defen-
dant was carrying a small video camera and stated that,
for safety reasons, it would not be allowed into the
booking area. At least twice, Varone patiently stated
that he would secure the device and return it after the
defendant was released on a promise to appear. Varone
repeatedly indicated that, if the defendant did not com-
ply, he would soon be forced to do so. During the course
of this discussion, the defendant declined to give up
the camera several times. At first, the defendant
asserted that he needed to keep the camera for his own
safety but then later stated that he was just going to
leave the camera in the lobby. The defendant then
walked a short distance away and placed his camera
down on top of a display case. Varone told the defendant
that the police department would not be responsible
for the camera if the defendant chose to leave it in
the lobby. Shortly thereafter, the defendant picked his
camera back up and turned to leave the station, stating
that he was going to secure the camera himself.
Varone grabbed the defendant in order to prevent
him from leaving the station, the defendant resisted,
and a struggle ensued. Varone forced the defendant to
the floor while the defendant began kicking Varone
repeatedly. Moments later, Officer James DePietro, Jr.,
ran into the lobby and joined the struggle in order to
assist Varone. DePietro audibly ordered the defendant,
who was still ‘‘flailing about,’’ ‘‘kicking,’’ and ‘‘strug-
gling’’ at the time, to put his hands behind his back.
The defendant refused to comply and was eventually
restrained. The defendant then repeatedly ignored com-
mands to get up off of the floor and walk on his own
into the booking area. As a result, he was carried to the
booking area with the assistance of additional officers.
The jury’s understanding of the events in the lobby
that day was informed by no less than three separate
recordings: (1) a video from the camera in the defen-
dant’s hand, which had audio; (2) a video from a security
camera in the lobby, which did not; and (3) an audio
recording from a cell phone hidden inside of the defen-
dant’s pants. The defendant’s camera was turned off
shortly after DePietro joined the struggle in the lobby.
The cell phone hidden in the defendant’s pants recorded
audio for the duration of the relevant events that day.
The security camera recorded most of the events in the
lobby, but was positioned at an angle that did not cap-
ture the portion of the incident that occurred after the
defendant was on the floor. In addition, the evidence
also included recordings from a camera in the booking
area’s cell block, which contain both video and audio,
that show the defendant after he was carried out of
the lobby.
Testimony offered at trial indicated that the defen-
dant was about six feet tall and weighed approximately
160 pounds. Varone and DePietro were both physically
smaller than the defendant. DePietro generally described
the confrontation to the jury as follows: ‘‘It . . . just
wasn’t, you know, going to the ground and putting hand-
cuffs on [the defendant]. It was a fight, a full on fight.
And he’s a little bigger than I am. But, even with . . .
Varone and I, it was a full on fight.’’ The defendant was
eventually transported to a hospital by ambulance and
then he was released back into the custody of the police.
He was then taken back to the police station and pro-
cessed without further incident.
Both Varone and DePietro sustained minor injuries
that day. Specifically, Varone testified that the defen-
dant had kicked him in the chest, face, and arm. Varone
indicated that he experienced pain as a result of the
kick to his arm, and a photograph was admitted into
evidence showing light red bruising on the inside of his
left bicep. Varone also testified that he injured one of
his fingers while struggling with the defendant and that
it went numb for a period of time. DePietro testified
that his neck and back were ‘‘very sore from the fight’’
and that he ended up taking time off from work as
a result.
The defendant was subsequently charged with vari-
ous offenses for his conduct on both July 19 and July
22, 2015. Specifically, with respect to the incident that
started in the library parking lot, the defendant was
charged with interfering with an officer in violation
of General Statutes § 53a-167a (a) and disobeying the
direction of an officer while increasing the speed of a
motor vehicle in an attempt to escape or elude in viola-
tion of General Statutes § 14-223 (b). With respect to
the altercation at the police department, the defendant
was charged with two counts of assault of a peace
officer in violation of General Statutes § 53a-167c (a),
relating to Varone and DePietro, respectively, and an
additional count of interfering with an officer in viola-
tion of § 53a-167a (a), which related only to DePietro.
The two informations were consolidated for trial, and
the jury returned verdicts finding the defendant guilty
on all counts. The trial court vacated the defendant’s
conviction as to the interfering charge in the second
case on double jeopardy grounds. The trial court
imposed separate sentences of one year of incarcera-
tion, execution suspended, and one year of probation
in connection with both of the charges in the first case.
As to each count alleging assault of a peace officer in
the second case, the trial court imposed a sentence of
seven years of incarceration, execution suspended after
one year, and five years of probation. The trial court
specified that all four of the sentences were to run
concurrently for a total effective sentence of seven
years of incarceration, execution suspended after one
year, and five years of probation. This appeal followed.8
Additional facts and procedural history will be set forth
as necessary.
In the present appeal, the defendant claims that (1)
evidence of his conduct on the evening of July 19, 2015,
should have been suppressed by the trial court because
it was obtained as a result of an unconstitutional investi-
gatory detention by the police, and (2) the judgment of
conviction arising out of the events that occurred at
the police station on July 22, 2015, should be reversed
because of insufficient evidence and instructional error.
We address these claims in turn.
I
We begin with the defendant’s claim that the trial
court improperly denied his motion to suppress evi-
dence relating to the events of July 19, 2015. In support
of this claim, the defendant argues that Santiago lacked
a reasonable and articulable suspicion that he had been
engaged in criminal activity. The state expressly con-
ceded at oral argument before this court that a reason-
able person in the defendant’s position would have
believed that he was not free to leave the parking lot
once Santiago motioned for the defendant’s vehicle to
pull alongside of his cruiser and that, as a result, a
seizure had occurred within the meaning of our state
constitution. See, e.g., State v. Oquendo, 223 Conn. 635,
653, 613 A.2d 1300 (1992). The state further conceded
at oral argument that, if this court were to conclude
that the trial court erroneously denied the motion to
suppress, that conclusion would be dispositive with
respect to the conviction relating to the events of July
19, 2015. However, the state claims that the investiga-
tory detention of the defendant was reasonable in light
of the totality of the circumstances known to Santiago
at the time. For the reasons that follow, we disagree
with the state.
The following additional facts and procedural history
are relevant to our consideration of this issue. Before
trial, the defendant moved to suppress ‘‘any and all
evidence, including electronic audio and video
recordings, and any statements obtained from the
defendant, that [derived from the] unlawful and uncon-
stitutional seizure on July 19, 2015.’’ In support of that
motion, defense counsel argued that Santiago lacked a
reasonable and articulable suspicion that the defendant
had been engaged in criminal activity that evening. In
response, the prosecutor argued that the defendant’s
presence in the parking lot, his movements after Santi-
ago arrived, the explanation he subsequently gave for
his presence, and the history of criminal activity in the
area were sufficient to permit an investigative deten-
tion.
The trial court ultimately denied the defendant’s
motion to suppress, concluding, inter alia, that Santi-
ago’s initial orders were supported by a reasonable and
articulable suspicion. In reaching this conclusion, the
trial court reasoned: ‘‘Santiago saw a vehicle, it was in
a dark area of the public library, and after hours, saw
an individual getting into the car. Based on his beliefs
of prior criminal activity in that area, based on his
knowledge as a police officer that criminal activity
occurred at the . . . [mall] next door, he had a suspi-
cion, a reasonable and [articulable] suspicion to
approach the car and [ask the defendant] some ques-
tions.’’
‘‘Our standard of review of a trial court’s findings and
conclusions in connection with a motion to suppress
is well defined. A finding of fact will not be disturbed
unless it is clearly erroneous in view of the evidence
and pleadings in the whole record . . . . [W]here the
legal conclusions of the court are challenged, we must
determine whether they are legally and logically correct
and whether they find support in the facts set out in
the memorandum of decision . . . .’’ (Internal quota-
tion marks omitted.) State v. Davis, 331 Conn. 239,
246, 203 A.3d 1233 (2019). The question of whether a
particular set of facts gives rise to a reasonable and
articulable suspicion is a question of law over which
we exercise plenary review. Id., 246–47.
‘‘Under the fourth amendment to the United States
[c]onstitution and article first, §§ 7 and 9, of our state
constitution, a police officer is permitted in appropriate
circumstances and in an appropriate manner to detain
an individual for investigative purposes if the officer
believes, based on a reasonable and articulable suspi-
cion that the individual is engaged in criminal activity,
even if there is no probable cause to make an arrest.
. . . Reasonable and articulable suspicion is an objec-
tive standard that focuses not on the actual state of
mind of the police officer, but on whether a reasonable
person, having the information available to and known
by the police, would have had that level of suspicion.
. . .
‘‘[I]n justifying [a] particular intrusion the police offi-
cer must be able to point to specific and articulable
facts which, taken together with the rational inferences
from those facts, reasonably warrant that intrusion.
. . . In determining whether a detention is justified in
a given case, a court must consider if, relying on the
whole picture, the detaining officers had a particular-
ized and objective basis for suspecting the particular
person stopped of criminal activity. When reviewing
the legality of a stop, a court must examine the specific
information available to the police officer at the time
of the initial intrusion and any rational inferences to
be derived therefrom.’’ (Citations omitted; internal quo-
tation marks omitted.) State v. Clark, 297 Conn. 1, 9–10,
997 A.2d 461 (2010).
Our analysis in the present case is guided in particular
by this court’s decision in State v. Santos, 267 Conn.
495, 838 A.2d 981 (2004). In that case, police officers
reported seeing four men pacing nervously back and
forth in a dark parking lot at night and stated that
one of them smelled of alcohol. Id., 505–506. Several
municipal athletic fields adjacent to that parking lot
remained open to the public after sunset, but the area
was routinely patrolled at night because of previous
criminal activity involving both drugs and prostitution.
Id., 498. When questioned, the group of men told the
police that they were ‘‘ ‘just driving around’ ’’ and that
they had been wrestling with each other on the ground
before the police arrived. Id., 499–500.
Although we acknowledged that the time of day and
the history of criminal activity in an area can be relevant
factors to consider in the course of such an analysis,
we concluded that those factors alone were insufficient
to create a reasonable suspicion that the defendant had
been committing a crime. Id., 508–509, citing Brown v.
Texas, 443 U.S. 47, 52, 99 S. Ct. 2637, 61 L. Ed. 2d
357 (1979) (‘‘[t]he fact that [the defendant] was in a
neighborhood frequented by drug users, standing alone,
is not a basis for concluding that [the defendant] himself
was engaged in criminal conduct’’); see also State v.
Scully, 195 Conn. 668, 679 n.15, 490 A.2d 984 (1985)
(‘‘[t]he lesson from Brown . . . is simply that physical
presence in a geographical area where the police may
have reason to anticipate possible violations of the law
does not in and of itself justify arbitrary investigatory
stops’’).
Our decision in State v. Donahue, 251 Conn. 636, 742
A.2d 775 (1999), cert. denied, 531 U.S. 924, 121 S. Ct.
299, 148 L. Ed. 2d 240 (2000), reached the same conclu-
sion. In that case, the state argued that the police had
reasonable suspicion to detain a defendant after his
vehicle made an abrupt, but legal, turn into an unlit
parking lot at 1:50 a.m. Id., 639–41, 647. As in Santos,
the state relied on testimony demonstrating that the
social club next to that parking lot had already closed
for the evening and that the surrounding area had
recently experienced a rise in criminal activity. Id., 639,
641. The trial court in Donahue declined to suppress
the evidence that was discovered as a result of that
detention, concluding that ‘‘there’s a reasonable and
articulable suspicion that criminal activity was afoot
when given the vicinity, the time of night the defendant
pulls into the dirt parking lot of a club that is closed.
And there’s no other businesses in the area that could
have been opened at that time. So I find that there was
[a] reasonable suspicion to justify the stop at that time.’’
(Internal quotation marks omitted.) Id., 641. This court
reversed the judgment of the Appellate Court, which
affirmed the trial court’s judgment, concluding that the
defendant’s detention ‘‘was based on nothing more than
the location of the defendant’s vehicle at an early hour
of the morning.’’ Id., 637, 645. In reaching that conclu-
sion, we noted that the defendant had committed no
traffic violations, had not engaged in furtive conduct
of any kind, and that the vehicle was unconnected to
any ongoing police investigations. Id., 647.
The reasoning of both Santos and Donahue compels
the conclusion that the defendant’s mere use of the
library’s parking lot and picnic table at 9 p.m. on a
Sunday evening cannot, in and of itself, give rise to a
reasonable and articulable suspicion of criminal activ-
ity. See, e.g., State v. Edmonds, 323 Conn. 34, 68, 145
A.3d 861 (2016) (‘‘[i]t is well established that the fact
that a citizen chooses to stand outside at the dinner
hour, in a neighborhood plagued by crime, does not
warrant any reasonable and articulable suspicion that
he himself is engaged in criminal activity’’). As pre-
viously stated in this opinion, there were no signs lim-
iting access to the parking lot, and members of the
public frequently used the area after the library was
closed. The fact that crimes had previously occurred
nearby; see footnote 2 of this opinion; does not alter
this conclusion. See, e.g., State v. Oquendo, 223 Conn.
635, 655 n.11, 613 A.2d 1300 (1992) (‘‘[a] history of past
criminal activity in a locality does not justify suspension
of the constitutional rights of everyone, or anyone, who
may subsequently be in that locality’’ (internal quotation
marks omitted)).
The additional facts relied on by the state to demon-
strate the existence of a reasonable and articulable
suspicion are insufficient to warrant a different result.
First, Santiago’s observation that the defendant was
walking quickly toward his vehicle is of limited value.
Even if that movement was occasioned by Santiago’s
arrival, a point that is neither specifically resolved by
the trial court’s factual findings nor entirely clear from
the record, it would still fall short of the type of headlong
flight that has been found to be indicative of criminal
behavior in other contexts. See, e.g., State v. Edmonds,
supra, 323 Conn. 72–73 (‘‘[t]he mere fact that a citizen
turns and walks away from an approaching police offi-
cer does not . . . support a reasonable and articulable
suspicion of criminality’’ (emphasis omitted)); cf. Illi-
nois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 145
L. Ed. 2d 570 (2000). The totality of the circumstances
presented in this case also do not objectively indicate
that the defendant was attempting to elude detection.
Cf. State v. Wilkins, 240 Conn. 489, 493, 692 A.2d 1233(1997) (ducking down in car to avoid being seen by
police); State v. Januszewski, 182 Conn. 142, 144–45,
438 A.2d 679 (1980) (avoiding police by crawling out
of passenger door of vehicle and under adjacent motor-
cycle) (overruled in part on other grounds by State v.
Hart, 221 Conn. 595, 609, 605 A.2d 1366 (1992)), cert.
denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005(1981); State v. Watson, 165 Conn. 577, 581, 585–86, 345
A.2d 532 (1973) (four individuals exiting vehicle behind
closed restaurant and, minutes later, hurrying out from
behind adjacent establishment to reenter same vehicle),
cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d
311 (1974). Indeed, after returning to his vehicle, the
defendant sat, stationary, for several moments in order
to set up his dashboard camera and then promptly
brought his vehicle to a stop when signaled to do so
by Santiago.
Santiago’s initial reaction to the defendant’s explana-
tion that he had been using the library’s Wi-Fi also does
little to support the state’s position given that Santiago
himself recognized that members of the public fre-
quently used the parking lot after hours for that exact
purpose. Further, Santiago acknowledged that the Wi-
Fi signal could well have been strong enough at the
picnic tables for at least some purposes.9 In light of
these facts, we see no reason to conclude that the defen-
dant’s explanation for his presence was any more suspi-
cious than the ones given to the police in Santos.10
In sum, Santiago’s suspicion appears to have been
based principally on the fact that the defendant hap-
pened to be present in the library parking lot at night
and began to leave when Santiago arrived. Our prece-
dent firmly establishes that such factors are, without
more, insufficient to support a reasonable and articula-
ble suspicion that criminal activity was afoot. Conse-
quently, we conclude that the defendant’s detention was
unlawful and that, as a result, the trial court improperly
denied his motion to suppress. The state has conceded,
for the purpose of the present appeal, that this conclu-
sion forecloses the imposition of criminal liability for
the conduct that followed during the investigatory stop
on July 19, 2015. The judgment of conviction as to the
charges of interfering with and disobeying an officer
related to that conduct, therefore, cannot stand.
II
The defendant’s remaining claims of error relate to
the two counts of the information in the second case
alleging assault of a peace officer, which concerned
the confrontation between the defendant, Varone, and
DePietro that occurred at the Clinton Police Depart-
ment on July 22, 2015.11 The defendant argues that there
was insufficient evidence to support either of those
charges and that the trial court improperly declined to
instruct the jury as to both counts. For the reasons that
follow, with the exception of the claim of instructional
error as to the assault count relating to Varone, we
reject these claims.
A
Sufficiency Claims
The defendant raises three distinct claims relating to
the sufficiency of the state’s evidence. First, the defen-
dant argues that he is entitled to a judgment of acquittal
on both of the assault charges in the second case
because the jury, based on the evidence presented at
trial, could not have reasonably found that the defen-
dant intended to interfere with the performance of
either Varone’s or DePietro’s duties. Second, the defen-
dant claims that his conviction for assaulting Varone
must, likewise, be reversed because there was insuffi-
cient evidence to show that Varone’s use of force was
reasonable.12 Finally, the defendant claims that his con-
viction for assaulting DePietro must be reversed because
the jury could not have reasonably concluded that he
had caused DePietro’s injuries. The state disagrees with
each of these claims, arguing that the various video
recordings of the event and the testimony offered by
the two officers at trial were sufficient to support the
defendant’s conviction. We agree with the state and
conclude that the defendant’s sufficiency claims lack
merit.
The relevant standard of review is well established.
‘‘When reviewing a sufficiency of the evidence claim, we
do not attempt to weigh the credibility of the evidence
offered at trial, nor do we purport to substitute our
judgment for that of the jury. . . . [W]e construe the
evidence in the light most favorable to sustaining the
verdict . . . . We then determine whether the jury rea-
sonably could have concluded that the evidence estab-
lished the defendant’s guilt beyond a reasonable doubt.
. . . [W]e do not ask whether there is a reasonable
view of the evidence that would support a reasonable
hypothesis of innocence. We ask, instead, whether there
is a reasonable view of the evidence that supports the
[finder of fact’s] verdict of guilty.’’ (Citations omitted;
internal quotation marks omitted.) State v. Lamantia,
336 Conn. 747, 755, 250 A.3d 648 (2020); see also State
v. Ford, 230 Conn. 686, 693, 646 A.2d 147 (1994) (‘‘[w]e
do not sit as the ‘seventh juror’ when we review the
sufficiency of the evidence’’). ‘‘A party challenging the
validity of the jury’s verdict on grounds that there was
insufficient evidence to support such a result carries a
difficult burden.’’ (Internal quotation marks omitted.)
State v. Rhodes, 335 Conn. 226, 233, 249 A.3d 683 (2020).
In order to prove a violation of § 53a-167c (a) (1),
the state must establish that the defendant ‘‘(1)
inten[ded] to prevent (2) a reasonably identifiable offi-
cer (3) from performing his duty (4) by causing physical
injury to such officer . . . .’’ State v. Flynn, 14 Conn.
App. 10, 21, 539 A.2d 1005, cert. denied, 488 U.S. 891,
109 S. Ct. 226, 102 L. Ed. 2d 217 (1988); see also State
v. Casanova, 255 Conn. 581, 592, 767 A.2d 1189 (2001),
overruled in part on other grounds by State v. Brocuglio,
264 Conn. 778, 826 A.2d 145 (2003). ‘‘If [a] police officer
does not reasonably believe that his use of physical
force is necessary, then his use of force is not within
the performance of his duties and a citizen may properly
resist that use of force.’’ State v. Davis, 261 Conn. 553,
570–71, 804 A.2d 781 (2002).
The defendant first claims that no jury could reason-
ably conclude that he possessed an intent to prevent
Varone and DePietro from performing their duties. Spe-
cifically, the defendant contends that the evidence pre-
sented at trial could reasonably support a finding only
that he had panicked and lost control.13 We disagree.
The context afforded by the argument preceding the
fight, the defendant’s attempt to leave the lobby, the
number of times he kicked Varone, and the overall
length of the struggle that followed are all facts from
which the jury could have reasonably inferred that the
defendant’s resistance was undertaken with an intent
to delay his own arrest and not mere reflex. See, e.g.,
State v. Porter, 76 Conn. App. 477, 490–91, 819 A.2d 909(sufficient evidence of intent to interfere with duties
of officer in case in which defendant responded to
attempted arrest by struggling with officer and striking
him in face and shoulder) (overruled in part on other
grounds by State v. Polanco, 308 Conn. 242, 61 A.3d 1084(2013)), cert. denied, 264 Conn. 910, 826 A.2d 181 (2003).
The defendant’s next claim is that the evidence admit-
ted at trial was insufficient to support a conclusion
that Varone’s use of force was reasonable. Again, we
disagree. Varone testified that he initially grabbed the
defendant in order to prevent him from leaving the
lobby and that he brought the defendant to the ground
only after the defendant began to struggle in response.14
The police had obtained an arrest warrant for the defen-
dant, and, as stated previously in this opinion, Varone
had already told the defendant multiple times that he
was under arrest and in the custody of the police. Var-
one repeatedly offered to secure the camera for the
defendant and to return it to him after he was processed
and released on a promise to appear. At the moment
the struggle began, Varone was outsized and alone.
The testimony and exhibits offered at trial indicate that
Varone never struck the defendant or resorted to the
use of any type of weapon. These facts, although per-
haps not conclusive, would have been sufficient to
allow a properly instructed jury to conclude that Var-
one’s decision to physically prevent the defendant from
leaving the lobby and his decision to bring the defendant
to the ground during the course of the struggle that
followed were both reasonable when considered in con-
text.
The defendant’s final sufficiency claim is that the jury
could not have reasonably concluded that he caused
injuries to DePietro. This argument is adequately dis-
posed of by DePietro’s testimony that he experienced
neck and back pain as a direct result of the defendant’s
resistance and that he took time off from work to
recover from that injury.15 See General Statutes § 53a-
3 (3) (‘‘ ‘[p]hysical injury’ means impairment of physical
condition or pain’’); State v. Cruz, 71 Conn. App. 190,
214–15, 800 A.2d 1243 (concluding that definition of
physical injury under § 53a-3 (3) applies to charge of
assault of peace officer under General Statutes (Rev.
to 1997) § 53a-167c), cert. denied, 261 Conn. 934, 806
A.2d 1067 (2002); see also Commission to Revise the
Criminal Statutes, Penal Code Comments, Conn. Gen.
Stat. Ann. § 53a-3 (West 2007), commission comment
(noting that statutory definition of physical injury is
‘‘intentionally broad’’). Neither the absence of an
observable physical condition nor the delayed onset of
pain requires the conclusion that the state’s evidence
was insufficient to support the defendant’s conviction.16
See, e.g., State v. Downey, 69 Conn. App. 213, 217, 796
A.2d 570 (2002) (pain caused by kick to officer’s leg
was sufficient to support conviction); State v. Mims,
61 Conn. App. 406, 408–409 and n.2, 764 A.2d 222 (pain
caused by kick to officer’s left testicle was sufficient
to support conviction notwithstanding fact that injured
officer sought no medical attention and took no time
off from work), cert. denied, 255 Conn. 944, 769 A.2d
60 (2001); State v. Henderson, 37 Conn. App. 733, 743–
44, 658 A.2d 585 (testimony that victim experienced
pain after being struck by defendant in her chest was
sufficient evidence of physical injury to support convic-
tion of third degree assault), cert. denied, 234 Conn.
912, 660 A.2d 355 (1995).
B
Instructional Error Claims
The defendant raises two separate claims of instruc-
tional error. First, with respect to the charge relating
to the assault on Varone, the defendant claims that the
trial court erred in failing to instruct the jury that, in
order to find him guilty of that offense, it must first
determine that Varone’s use of force was reasonable.
Second, with respect to the charge relating to the
assault on DePietro, the defendant claims that the trial
court improperly declined to instruct the jury that the
defendant’s conduct must have been the proximate
cause of DePietro’s injuries. We set forth the relevant
standard of review and then address the defendant’s
two claims in turn.
‘‘The standard of review for claims of instructional
impropriety is well established. [I]ndividual jury instruc-
tions should not be judged in artificial isolation . . .
but must be viewed in the context of the overall charge.
. . . The pertinent test is whether the charge, read in
its entirety, fairly presents the case to the jury in such
a way that injustice is not done to either party under
the established rules of law. . . . Thus, [t]he whole
charge must be considered from the standpoint of its
effect on the [jurors] in guiding them to the proper
verdict . . . and not critically dissected in a micro-
scopic search for possible error. . . . Accordingly, [i]n
reviewing a constitutional challenge to the trial court’s
instruction, we must consider the jury charge as a whole
to determine whether it is reasonably possible that the
instruction misled the jury. . . . In other words, we
must consider whether the instructions [in totality] are
sufficiently correct in law, adapted to the issues and
ample for the guidance of the jury. . . . A challenge
to the validity of jury instructions presents a question
of law over which [we have] plenary review.’’ (Internal
quotation marks omitted.) State v. Campbell, 328 Conn.
444, 528–29, 180 A.3d 882 (2018).
We begin with the first claim of instructional error,
relating to the count of assault on Varone. On February
23, 2021, this court issued an order granting the defen-
dant permission to file a supplemental brief addressing
this additional claim of instructional error. In his supple-
mental brief filed pursuant to that order, the defendant
claimed that the trial court improperly declined his
request to instruct the jury as to whether it found that
Varone’s use of force was reasonable. See, e.g., State
v. Davis, 261 Conn. 553, 570–71, 804 A.2d 781 (2002)
(‘‘If [a] police officer does not reasonably believe that
his use of physical force is necessary, then his use of
force is not within the performance of his duties and
a citizen may properly resist that use of force. . . . [A]
detailed instruction that the state must establish that
the police officer had been acting in the performance
of his duty and that a person is not required to submit
to the unlawful use of physical force during the course
of an arrest, whether the arrest itself is legal or illegal,
stands in lieu of a self-defense instruction in such cases.
. . . [T]he failure to provide such instructions when
the defendant has presented evidence, no matter how
weak or incredible, that the police officer was not acting
in the performance of his duty, effectively operates to
deprive a defendant of his due process right to present
a defense.’’). The state, in response, concedes that the
trial court committed reversible error by omitting the
requested instruction. Having reviewed the record, we
agree with the parties and conclude that, as a result,
the defendant is entitled to a new trial with respect to
the assault on Varone charged in the first count of the
information in the second case.
The defendant’s second claim of instructional error
relates to the charge arising out of the assault on DePie-
tro. In particular, the defendant claims that the trial
court committed reversible error by failing to specifi-
cally instruct the jury that, in order to find the defendant
guilty of assault of a peace officer, as alleged in the
second count of the information in the second case,
the defendant’s conduct must have been the proximate
cause of DePietro’s injuries. The state responds by
arguing that the instruction given by the trial court on
the topic of causation was both legally correct and
adequate when viewed in the context of the evidence
presented at trial. For the reasons that follow, we agree
with the state.
The following additional procedural history is rele-
vant to our consideration of this issue. The defendant
submitted a request to charge on the counts of the
information in the second case alleging assault of a
peace officer. That proposed instruction indicated that
the state bore the burden of demonstrating not only
that the defendant’s conduct caused the injuries to
DePietro’s neck and back, but also that the defendant’s
conduct ‘‘was the proximate cause’’ of those injuries.17
The trial court declined that request.
The trial court ultimately provided the following gen-
eral instruction with respect to the first two counts of
the information in the second case: ‘‘[A] person is guilty
of assault of a peace officer when, with intent to prevent
a reasonably identifiable peace officer from performing
his duties and while such said peace officer was acting
in the performance of his duties, such person caused
physical injury to the peace officer.’’ In a series of more
specific instructions that followed, the trial court
expressly informed the jury that the state bore the bur-
den of proving that (1) ‘‘the defendant . . . caused
physical injury to [DePietro],’’ and (2) the conduct spe-
cifically intended to prevent the performance of
DePietro’s duties must have been accomplished ‘‘by
means of causing physical injury to [DePietro].’’18 We
note that this language mirrors the relevant model crimi-
nal instruction. See Connecticut Criminal Jury Instruc-
tions 4.3-3, available at https://www.jud.ct.gov/JI/Crimi
nal/Criminal.pdf (last visited July 22, 2021).
Although the briefing on the question is not entirely
clear, the defendant appears to contend that the jury
could have possibly been misled in at least two distinct
ways. First, the defendant argues that the trial court’s
instructions ‘‘virtually eliminated’’ the element of causa-
tion and that, as a result, the jury was given a false
impression that DePietro’s injuries need not have actu-
ally been connected to the defendant’s conduct in any
way. (Internal quotation marks omitted.) In support
of this argument, the defendant has hypothesized that
DePietro’s injuries could have been caused by ‘‘shovel-
ing snow’’ or ‘‘sleeping wrong.’’ (Internal quotation
marks omitted.) This argument is completely without
merit. The court’s charge, set forth previously in this
opinion, clearly required the state to prove beyond a
reasonable doubt that ‘‘the defendant . . . caused
physical injury to [DePietro].’’
Reduced to its essence, the defendant’s principal
argument on the point appears instead to be that, in
the absence of the requested instruction on proximate
causation, the jury was effectively relieved of the need
to consider whether DePietro’s injuries were a suffi-
ciently direct result of an action undertaken with the
requisite specific intent. We reject this argument as
well. The trial court expressly instructed the jury that
the specific intent required by the statute—namely, an
intent to prevent DePietro from performing his duties—
must have been effectuated ‘‘by means of causing physi-
cal injury to [DePietro].’’ In light of this instruction, we
perceive no reasonable possibility that the jury could
have been misled to believe that an injury caused with-
out the required intent would suffice.19 For the foregoing
reasons, we conclude that the trial court’s instructions,
viewed as a whole, fairly presented the issues raised
at trial and that, therefore, there is no reasonable possi-
bility that the jury was misled. As a result, the defen-
dant’s claim of instructional error with respect to this
charge must fail.20
In summary, we conclude that the trial court incor-
rectly concluded that Santiago possessed a reasonable
and articulable suspicion to detain the defendant in the
library parking lot on the evening of July 19, 2015. As
a result of the state’s concession that this conclusion
is dispositive, the defendant is entitled to a judgment
of acquittal on the two counts charged in the informa-
tion in the first case. Because the state has also con-
ceded the existence of a reversible instructional error
with respect to the charge related to the defendant’s
assault on Varone, the defendant is entitled to a new
trial on the first count of the information in the second
case. Having concluded that the defendant’s various
claims with respect to the assault on DePietro lack
merit, the conviction on the second count of assault in
the second case must stand.
The judgment of conviction in the case relating to
the events of July 19, 2015, is reversed and that case
is remanded with direction to render a judgment of
acquittal on all counts charged in that information; the
judgment of conviction in the case relating to the events
of July 22, 2015, is reversed only with respect to the
count pertaining to the assault on Varone, and the case
is remanded for a new trial with respect to that count;
the judgment of conviction in the case relating to the
events of July 22, 2015, is affirmed with respect to the
count pertaining to the assault on DePietro.
In this opinion the other justices concurred.
* July 23, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
Each of the charges related to this event stem from the defendant’s
refusal to comply with various orders by the police after his detention. In
addition to his argument related to the motion to suppress, the defendant
also argues that, if the initial detention was unconstitutional, he cannot
legally be punished for ignoring the orders that followed.
2
Santiago was conducting a routine patrol of the area in a marked police
cruiser. Although Santiago testified that the library had been broken into
once several years before and that a series of more recent larcenies had
occurred at a nearby mall, the record contains no indication that the police
had received any reports of crimes or other suspicious activity in the area
on that particular evening.
3
Numerous photographs of the parking lot admitted into evidence at trial
depict no posted rules restricting access to the parking lot or any signage
prohibiting trespassing.
4
Santiago gave the following specific testimony on this point: ‘‘By the
time I got back, I saw the person was quickly going to their car and pulling
out of the parking space as I pulled in . . . .’’
5
At this point, the defendant began recording a video on a dashboard
camera. That video recording, which ran for the duration of the relevant
events that evening, was admitted into evidence at trial.
6
Santiago testified that he was skeptical of this explanation because
individuals who access the library’s Wi-Fi from the parking lot typically
park closer to the entrance of the library in order to get a stronger signal.
Santiago also testified, however, that there were no picnic tables near the
entrance and that, although the signal might not be strong enough for tasks
like ‘‘web surfing or streaming,’’ a connection from that location was still pos-
sible.
7
The record contains conflicting evidence about precisely when Santiago
first observed the open gate. At some points, Santiago testified that he
noticed the gate when he first entered the parking lot that evening. At
other points, he testified that he had noticed the gate only after his initial
conversation with the defendant. Although the trial court made no factual
finding on this particular point, on appeal, the parties agree that Santiago’s
latter testimony reflects the actual sequence of events that evening.
8
The defendant appealed to the Appellate Court from the judgments of
the trial court, and we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.
9
Although the defendant may not have parked in the same spot typically
used by other Wi-Fi users, it is undisputed that he was still located on the
side of the parking lot closest to the library and that the picnic tables were
only approximately thirty feet away from the building. There is also no
indication in the record that the defendant would have known that a stronger
signal might have been available at another location.
10
Because the parties agree that Santiago was unaware of the open fence
gate when he seized the defendant; but see footnote 7 of this opinion; we
need not consider that fact in our analysis. See State v. Clark, supra, 297
Conn. 9–10.
11
As noted previously in this opinion, the trial court vacated the defen-
dant’s conviction of interfering with DePietro in violation of § 53a-167a (a)
on double jeopardy grounds prior to sentencing.
12
Although the state has conceded that the defendant’s conviction with
respect to the assault on Varone must be reversed because of instructional
error, we must still address the defendant’s first two sufficiency claims
because they would, if successful, entitle him to a judgment of acquittal on
that charge. See, e.g., State v. Padua, 273 Conn. 138, 178, 869 A.2d 192 (2005)
(‘‘sound appellate policy and fundamental fairness require a reviewing court
to address a defendant’s insufficiency of the evidence claim prior to remanding
a matter for retrial because of trial error’’).
13
We observe that defense counsel also made this particular argument
during the course of closing arguments and that, in returning verdicts finding
the defendant guilty, the jury implicitly rejected it.
14
The defendant’s briefing appears to assume that Varone’s decision to
prevent the defendant’s egress and his decision to bring the defendant to
the ground were made simultaneously. Although the various recordings
admitted into evidence undoubtedly show a rapid progression of events,
the jury reasonably could have credited Varone’s specific testimony to
the contrary.
15
The full colloquy between DePietro and the prosecutor reads as follows:
‘‘Q. Now, as a result of this you were assisting . . . Varone did you,
yourself, sustain any kind of an injury or any kind of pain, anything of
that nature?
‘‘A. Well, the next day, when I came into work, I had some neck pain and
some back pain, I was very sore from the fight. It . . . just wasn’t, you
know, going to the ground and putting handcuffs on [the defendant]. [I]t
was a fight, a full on fight. And he’s a little bigger than I am. But even with
. . . Varone and I, it was a full on fight. And the next day, you know, I was
sore. My neck hurt and my back hurt.
‘‘Q. Okay. And how long . . . did your back hurt you?
‘‘A. Oh, I reported to Sergeant Dunn the next day that I was having the
pain. Then I went into my days off, and I ended up taking one extra day
off, which was a Sunday before I returned to work.
‘‘Q. Because of the pain?
‘‘A. Oh, yes, because of the pain.’’
16
The defendant’s initial briefing of this sufficiency claim focused on the
issue of whether the state had proven a type of injury punishable under
§ 53a-167c, arguing that an interpretation of physical injury that encompasses
an officer who merely feels ‘‘sore’’ would ‘‘lead to absurd and unworkable
results . . . .’’ The state’s brief responded in kind. In his reply brief, the
defendant contended that his sufficiency claim with respect to DePietro
had also focused on the issue of whether the defendant’s own volitional
acts had caused DePietro’s injuries. Even if this latter claim had been raised
distinctly in the context of the defendant’s initial sufficiency argument,
which it was not, we would reject it. DePietro testified that he was injured
during the course of the fight itself; see footnote 15 of this opinion; and, as
discussed previously, the jury could have reasonably concluded that the
defendant had engaged in that struggle with the conscious purpose of
delaying his own arrest.
17
The defendant’s proposed instruction on causation provided: ‘‘It is neces-
sary . . . that the defendant’s conduct is the cause without which the injury
would not have occurred and the predominating cause or the substantial
factor from which the injury follows as a natural direct and immediate
consequence. In other words, the state must prove that [the defendant’s
deliberate conduct] . . . was the proximate cause of the [injury claimed].’’
18
The trial court’s initial recitation of this instruction related to the first
count of the second information, which alleged that the defendant had
assaulted Varone. The trial court’s instructions on the second count of that
same information, which related to the assault on DePietro, simply referred
the jury back to the instructions previously provided.
19
Even if some ambiguity remained on the point, the defendant still would
not have been entitled to a more detailed instruction on causation because
the evidence actually adduced at trial did not sufficiently develop an alterna-
tive theory of causation. Although testimony offered during the state’s case-
in-chief established that DePietro, together with the assistance of multiple
other officers, had helped to move the defendant after the struggle in the
lobby, the defendant made no attempt—through cross-examination or other-
wise—to suggest that this activity had actually been the source of DePietro’s
injuries. Defense counsel’s questioning of DePietro focused, instead, on the
question of whether those injuries existed at all.
20
In the closing pages of his principal brief, the defendant identifies a
series of thirteen allegedly improper statements made by the prosecutor
during the course of closing arguments. Of those, only four relate to the
events that occurred in the lobby of the police department. In three of those
four statements, the prosecutor simply prefaces an argument that the actions
taken by the police that day were reasonable with the phrase, ‘‘I respectfully
submit’’ or other language to the same effect. The state bore the burden of
proving the point; see, e.g., State v. Davis, supra, 261 Conn. 570–71; and
each of these three particular statements appears to reference only evidence
contained within the record. Viewed in context, we do not believe that these
remarks can be fairly characterized as a form of unsworn testimony. See,
e.g., State v. Luster, 279 Conn. 414, 436, 902 A.2d 636 (2006). The singular
comment that remains is a statement in which the prosecutor argued to the
jury that the defendant would have been aware of the policy prohibiting the
retention of personal effects in the booking area because he had previously
reviewed the Clinton Police Department’s manual pursuant to a freedom of
information request. The defendant’s briefing, however, contains no analysis
as to how this particular comment, as distinct from his broader allegations
that the prosecutor was ‘‘vouching’’ for the reasonableness of the conduct
of the police, deprived him of his due process right to a fair trial. As a result,
we conclude that the claim of prosecutorial impropriety with respect to
that statement was inadequately briefed. See, e.g., State v. Buhl, 321 Conn.
688, 724, 138 A.3d 868 (2016) (‘‘[a]nalysis, rather than mere abstract assertion,
is required in order to avoid abandoning an issue by failure to brief the
issue properly’’ (internal quotation marks omitted)).