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)).
    

Document Info

Docket Number: SC20547

Filed Date: 11/30/2021

Precedential Status: Precedential

Modified Date: 11/23/2021