State v. Ruiz-Pacheco ( 2021 )

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STATE OF CONNECTICUT v. JOESENIER
RUIZ-PACHECO
(SC 20206)
Palmer, McDonald, D’Auria, Kahn and Ecker, Js.*
Syllabus
Convicted of two counts each of the crimes of assault in the first degree
as a principal and assault in the first degree as an accessory, among
other crimes, in connection with the stabbings of the victims, T and
R, the defendant appealed to the Appellate Court, claiming that his
convictions of assault in the first degree as both a principal and an
accessory as to T and R violated the prohibition against double jeopardy
under the United States constitution. During a fight in a parking lot
involving the defendant, the defendant’s brother, E, and T and R, the
defendant and E each stabbed T at least once, and R was stabbed two
or three times, at least once by the defendant. Upon realizing that he
had been stabbed, T departed for the hospital, and the defendant and
E walked away from the area where the fight occurred to another area
of the parking lot. After a brief break, R approached the defendant and
E, made a comment, and turned away, and the defendant and E then
ran after R. E stabbed R in the back, causing him to fall and tumble to
a grassy area adjacent to the parking lot. The defendant then approached
R and stabbed him in the chest, stating, ‘‘that’s for hitting [E].’’ On
appeal, the Appellate Court concluded that the defendant’s double jeop-
ardy claim failed because his multiple punishments for assault as to
each victim were premised on distinct repetitions of the same crime
rather than on a single criminal act. On the granting of certification,
the defendant appealed to this court, claiming that his principal and
accessory convictions stemmed from one continuous course of conduct
as to each victim and, therefore, that each set of assault convictions as
to T and R violated the double jeopardy clause’s prohibition against the
imposition of multiple punishments for the same offense. Held:
1. This court determined that, because Connecticut law treats the commis-
sion of a substantive crime as a principal and the commission of that
same substantive crime as an accessory as alternative means of commit-
ting the same substantive crime, they arise under the same substantive
criminal statute for purposes of the double jeopardy inquiry, and the
proper inquiry when a defendant is convicted of multiple violations of
the same substantive criminal statute is whether the legislature intended
to punish the individual acts separately or to punish the course of action
that they constitute; moreover, because neither the language nor the
legislative history of the substantive criminal statute (§ 53a-59 (a) (1))
under which the defendant was convicted indicated whether the legisla-
ture intended to punish individual assaultive acts separately or to punish
only the course of action that those acts constitute, this court resolved
that ambiguity by applying the rule of lenity to avoid turning a single
transaction into multiple offenses and, accordingly, interpreted § 53a-
59 (a) (1) as embracing a course of conduct offense; furthermore, in
determining whether the defendant engaged in distinct courses of con-
duct and, thus, separately punishable assaults as to T and R, this court
considered the amount of time separating the assaultive acts, whether
the acts occurred at different locations, the defendant’s intent or motiva-
tion behind the acts, and whether any intervening events occurred
between the acts, such that the defendant had the opportunity to recon-
sider his actions.
2. The Appellate Court incorrectly concluded that the defendant’s conviction
of and punishment for assault in the first degree as a principal and
assault in the first degree as an accessory as to T did not violate the
double jeopardy clause, as the defendant’s assaultive acts against T
were part of the same continuing course of conduct, and, accordingly,
this court reversed the judgment of the Appellate Court insofar as it
upheld the defendant’s conviction of assault in the first degree as an
accessory as to T: there was a single, uninterrupted fight in which the
defendant and E both stabbed T in a discrete area of the parking lot,
all of T’s stab wounds were inflicted within seconds of each other, and
there was no evidence of a break in the fight with T or any other
intervening event separating one stabbing of T from another that would
have afforded the defendant an opportunity to reconsider his actions
and to formulate the intent to commit an additional assault; moreover,
the actus rei underlying both of the defendant’s assault convictions as
to T were the same because the conduct that, according to the state,
intentionally aided E in the commission of the assault, namely, the
defendant’s participation in the fight with a knife, either by stabbing T
and R or through his armed presence, was the very same conduct
that constituted the defendant’s commission of the crime of assault as
a principal.
3. The Appellate Court properly upheld the defendant’s conviction of assault
in the first degree as a principal and assault in the first degree as an
accessory as to R, as the defendant’s stabbings of R constituted two
distinct courses of assaultive conduct: after the defendant inflicted at
least one initial stab wound on R, the defendant and E walked away
from R and to a different area of the parking lot, no blows were
exchanged during the interlude, and this break afforded the defendant
an opportunity to reconsider his actions and to formulate a distinct
criminal intent; moreover, when the fight resumed after R approached
the defendant and E, the defendant’s final stabbing of R in the grassy
area next to the parking lot was distinct both geographically and tempo-
rally from the first series of stabbings that occurred before the break
in the fight, and the defendant’s declaration that the final stabbing of
R was ‘‘for hitting [E]’’ suggested the defendant’s formulation of a new
criminal intent that was separate and distinct from the intent behind
the defendant’s initial stabbing of R; furthermore, the defendant’s convic-
tion as a principal did not categorically preclude his conviction as an
accessory for the same substantive crime, as multiple convictions of
the same offense are permissible under the double jeopardy clause, as
long as each conviction is based on distinct acts or transactions that
constitute separately completed units of prosecution under the statute
in question, and, in the present case, the defendant’s stabbings of R
constituted two distinct courses of conduct under § 53a-59 (a) (1).
Argued November 20, 2019—officially released July 9, 2020**
Procedural History
Substitute information charging the defendant with
four counts of the crime of assault in the first degree
and two counts each of the crimes of attempt to commit
murder and conspiracy to commit assault in the first
degree, brought to the Superior Court in the judicial
district of Danbury and tried to the jury before Eschuk,
J.; verdict of guilty of four counts of assault in the first
degree, two counts of conspiracy to commit assault in
the first degree, and one count of attempt to commit
murder; thereafter, the court vacated the verdict as to
one count of conspiracy to commit assault in the first
degree and rendered judgment thereon, from which the
defendant appealed to the Appellate Court, Prescott,
Elgo and Harper, Js., which affirmed the trial court’s
judgment, and the defendant, on the granting of certifi-
cation, appealed to this court. Reversed in part; judg-
ment directed.
Pamela S. Nagy, assistant public defender, for the
appellant (defendant).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Stephen J. Sedensky III, state’s attor-
ney, Warren C. Murray, former supervisory assistant
state’s attorney, and Jennifer F. Miller, assistant state’s
attorney, for the appellee (state).
Opinion
ECKER, J. The defendant, Joesenier Ruiz-Pacheco,
was convicted of, inter alia, two counts of assault in
the first degree as a principal in violation of General
Statutes § 53a-59 (a) (1)1 and two counts of assault in
the first degree as an accessory in violation of General
Statutes §§ 53a-8 (a)2 and 53a-59 (a) (1) on the basis of
a joint physical assault involving two perpetrators, the
defendant and his brother, and two victims, Kenneth
Tucker and Luis Rodriguez. On appeal, the defendant
claims that the Appellate Court improperly affirmed the
judgment of conviction because he committed only one
assault per victim (for a total of two assaults), and,
therefore, his conviction of four assaults violates his
right to be free from double jeopardy under the United
States constitution. We agree with the defendant’s claim
as to Tucker, but we disagree with the defendant’s claim
as to Rodriguez and, therefore, affirm in part and
reverse in part the judgment of the Appellate Court.
The jury reasonably could have found the following
facts relevant to the defendant’s appeal. Shortly after
2 a.m. on December 1, 2012, a fight occurred in the
parking lot of the C-Town Supermarket, which is adja-
cent to the El Milenio nightclub in Danbury. The defen-
dant and his brother, Eliezer Ruiz-Pacheco, had been
at El Milenio with two friends that night. Also patroniz-
ing the nightclub that night was a group of four women,
including the defendant’s ex-girlfriend, Samantha
Medina. When the club closed at 2 a.m., both groups
made their way to the C-Town parking lot, where their
cars were parked. A number of other nightclub patrons
had also parked in the C-Town lot and were present
during the ensuing events. Tucker was waiting in the
parking lot to meet the women in Medina’s group.
Another young man, Rodriguez, also was present,
although he was not associated with either group or
with Tucker.
As the two groups arrived in the C-town parking lot,
an argument broke out between Eliezer and one of
the women in Medina’s group. Medina approached the
defendant, and the defendant pushed or punched her.
Medina struck back, and the defendant put her in a
headlock. At this point, both Tucker and Rodriguez
attempted to intervene. Tucker saw the defendant hold-
ing Medina in a headlock, and he approached the defen-
dant, punched him, and told him to let her go. At approx-
imately the same time, Rodriguez saw the defendant
strike Medina. Rodriguez ‘‘bum-rushed’’ the defendant
and attempted to hit him. There was conflicting testi-
mony as to whether Tucker or Rodriguez reached the
defendant first. In any event, a brief melee ensued in
which Tucker was stabbed multiple times, at least once
by each of the two assailants.
Eliezer immediately became involved in the melee in
support of his brother. At some point, the defendant and
Eliezer produced knives. Multiple stab wounds were
inflicted on Tucker, at least one by the defendant.
Tucker, upon realizing that he had been stabbed, backed
away from the fight and left for the hospital. Rodriguez
also received two or three stab wounds soon after the
fight began, at least one of which was inflicted by the
defendant. At about the same time that Tucker left
the fight, and after Rodriguez had sustained his initial
wounds, the defendant and Eliezer walked away from
the area of the parking lot where the fight had occurred
and toward a nearby light pole. There was a brief break
in the action at this point.
The altercation did not end there, however, because
Rodriguez followed the defendant and his brother in
order to ‘‘attack [the defendant]’’ because ‘‘we were
still fighting . . . .’’ As Rodriguez approached the
defendant and Eliezer, Rodriguez ‘‘said something to
them.’’ The defendant and Eliezer then ran after Rodri-
guez, who had turned away after speaking his mind.
Eliezer stabbed Rodriguez in the back, causing him to
fall to the ground and tumble to a grassy area adjacent
to the parking lot. While Rodriguez was lying on his
back unable to move, the defendant stabbed him in
the chest, saying, ‘‘that’s for hitting my brother.’’ The
defendant and Eliezer fled the scene in a vehicle. The
entire fight, from the point when Tucker and Rodriguez
first confronted the defendant and his brother to the
time when the defendant stabbed Rodriguez in the
chest, lasted approximately seventy seconds.
In an eight count, long form information, the state
charged the defendant with four counts relating to each
victim: criminal attempt to commit murder, in violation
of General Statutes §§ 53a-49 and 53a-54a (a); assault
in the first degree as a principal, in violation of § 53a-
59 (a) (1); assault in the first degree as an accessory,
in violation of §§ 53a-8 and 53a-59 (a) (1); and conspir-
acy to commit assault in the first degree, in violation
of General Statutes §§ 53a-48 and 53a-59 (a) (1). After
a jury trial, the defendant was convicted on all counts
except attempt to commit murder against Tucker. At
sentencing, the trial court vacated the defendant’s con-
viction of conspiracy to commit assault against Tucker.
The court then sentenced the defendant to a total effec-
tive term of twenty-two years of incarceration and five
years of special parole.3
The defendant appealed from the judgment of the
trial court to the Appellate Court, claiming, among other
things, that his multiple assault convictions as to each
victim violated his right to be free from double jeopardy.
State v. Ruiz-Pacheco, 185 Conn. App. 1, 5, 196 A.3d 805(2018). The Appellate Court reviewed the defendant’s
unpreserved constitutional claim under State v. Gold-
ing, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),4 and
determined that the defendant could not prevail on his
claim because he had failed to establish the existence
of a double jeopardy violation. State v. Ruiz-Pacheco,
supra, 21. Specifically, the Appellate Court held that
‘‘the defendant’s multiple punishments for assault as to
each victim were premised not on a single criminal act
but distinct repetitions of the same crime . . . .’’ Id.
The Appellate Court therefore upheld the defendant’s
assault convictions. Id., 53. We granted the defendant’s
petition for certification to appeal to determine whether
‘‘the Appellate Court [correctly] conclude[d] that the
defendant’s convictions of assault in the first degree as
both a principal and as an accessory, for a joint assault
on the same victim, do not violate the double jeopardy
clause of the United States constitution . . . .’’ State v.
Ruiz-Pacheco, 330 Conn. 938, 938, 195 A.3d 385 (2018).
On appeal, the defendant argues that the principal
and accessory charges stemmed from one continuous
course of conduct as to each victim, and, therefore,
his two assault convictions for each victim violate the
double jeopardy clause’s prohibition against the imposi-
tion of multiple punishments for the same offense. The
state argues in response that the defendant’s convic-
tions arose from the repetition of separate and distinct
acts, and, therefore, his assaultive conduct as both a
principal and an accessory with respect to each victim
is separately punishable. Specifically, the state claims
that the defendant committed an assault on each victim
as a principal by stabbing each victim and an assault
on each victim as an accessory by assisting his brother
in stabbing each victim.
I
The defendant’s double jeopardy claim presents a
question of law, over which we exercise plenary review.
See, e.g., State v. Brown, 299 Conn. 640, 650, 11 A.3d
663 (2011). ‘‘The fifth amendment to the United States
constitution provides in relevant part: No person shall
. . . be subject for the same offense to be twice put in
jeopardy of life or limb . . . . The double jeopardy
clause of the fifth amendment is made applicable to the
states through the due process clause of the fourteenth
amendment.’’5 (Internal quotation marks omitted.) Id.,650–51; see also Benton v. Maryland, 395 U.S. 784, 794,
89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969) (double jeopardy
clause is applicable to states through fourteenth amend-
ment to United States constitution).
The defendant contends that he has been subjected
to multiple punishments for the same offense in viola-
tion of the double jeopardy clause. ‘‘Double jeopardy
prohibits not only multiple trials for the same offense,
but also multiple punishments for the same offense.’’
(Internal quotation marks omitted.) State v. Brown,
supra, 299 Conn. 651. We have articulated two different
approaches to the double jeopardy analysis of multiple
punishments. Which approach applies in any given case
depends on the statutory basis of the underlying
charges. When the defendant is charged with the viola-
tion of two distinct statutes in a single criminal proceed-
ing arising from a single underlying set of events, we
have employed a two part analysis. ‘‘First, the charges
must arise out of the same act or transaction. Second,
it must be determined whether the charged crimes are
the same offense. Multiple punishments are forbidden
only if both conditions are met.’’ (Internal quotation
marks omitted.) Id., 652. We ‘‘[t]raditionally . . . have
applied the Blockburger6 test to determine whether two
statutes criminalize the same offense, thus placing a
defendant prosecuted under both statutes in double
jeopardy: [W]here the same act or transaction consti-
tutes a violation of two distinct statutory provisions,
the test to be applied to determine whether there are
two offenses or only one, is whether each provision
requires proof of a fact which the other does not.’’
(Footnote altered; internal quotation marks omitted.)
State v. Porter, 328 Conn. 648, 655, 182 A.3d 625 (2018).
In contrast, ‘‘[t]he proper double jeopardy inquiry
when a defendant is convicted of multiple violations of
the same statutory provision is whether the legislature
intended to punish the individual acts separately or to
punish only the course of action which they constitute.’’
(Emphasis added; internal quotation marks omitted.)
State v. Miranda, 260 Conn. 93, 120, 794 A.2d 506, cert.
denied, 537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175(2002). This analysis essentially asks what ‘‘unit of pros-
ecution’’ the legislature intended as the punishable act
under the statute. See State v. Garvin, 242 Conn. 296,
306–308, 699 A.2d 921 (1997) (determining what legisla-
ture intended unit of prosecution to be for charge of
failure to appear); State v. Tweedy, 219 Conn. 489, 497–
99, 594 A.2d 906 (1991) (unit of prosecution for first
degree robbery); State v. Hearl, 182 Conn. App. 237,
272–73, 190 A.3d 42 (unit of prosecution for animal
cruelty statute), cert. denied, 330 Conn. 903, 192 A.3d
425 (2018). The unit of prosecution analysis involves an
effort to determine the legislature’s intent as to whether
and how a course of prohibited conduct can be ‘‘sepa-
rat[ed] into parts, each of which in itself constitutes a
completed offense.’’ (Internal quotation marks omit-
ted.) State v. Brown, supra, 299 Conn. 652. In some
instances, the legislature will intend to punish a continu-
ous course of conduct as a single unit of prosecution.
See, e.g., State v. Benson, 153 Conn. 209, 218, 214 A.2d
903 (1965) (larceny is continuing crime); State v. Licari,
132 Conn. 220, 226, 43 A.2d 450 (1945) (operating auto-
mobile under influence of liquor is continuing crime);
see also, e.g., In re Snow, 120 U.S. 274, 281, 7 S. Ct.
556, 30 L. Ed. 658 (1887) (offense of ‘‘cohabiting with
more than one woman’’ is, ‘‘in the sense of the . . .
statute . . . inherently . . . a continuous [offense],
having duration . . . and not an [offense] consisting
of an isolated act’’). In other instances, the legislature
intends to punish separately each discrete act that con-
stitutes a completed offense. See, e.g., State v. Frazier,
185 Conn. 211, 229, 440 A.2d 916 (1981) (legislature
intended to punish ‘‘each separate act of forcible sexual
intercourse’’), cert. denied, 458 U.S. 1112, 102 S. Ct.
3496, 73 L. Ed. 2d 1375 (1982);7 State v. Miranda, 142
Conn. App. 657, 663–65, 64 A.3d 1268 (2013) (legislature
intended to punish separately each distinct act of stran-
gulation in second degree), appeal dismissed, 315 Conn.
540, 109 A.3d 452 (2015).
Selecting between these two approaches is simple
enough in the ordinary case because it will be clear
whether the defendant stands charged with violating
two different criminal statutes or two violations of the
same criminal statute. The analysis in the present case
is complicated by the fact that, with respect to both
victims, the defendant was convicted of assault as a
principal offender under § 53a-59 (a) (1) and as an
accessory under §§ 53a-8 and 53a-59 (a) (1). We there-
fore must determine as a threshold matter whether a
conviction of a crime as a principal offender is a convic-
tion under the same statute, or a different statute, as
a conviction of that same crime as an accessory. We
conclude that, because Connecticut law treats the two
violations as alternative means of committing the same
crime, they arise under the same substantive criminal
statute for double jeopardy purposes.
Section 53a-8 (a) provides: ‘‘A person, acting with the
mental state required for commission of an offense,
who solicits, requests, commands, importunes or inten-
tionally aids another person to engage in conduct which
constitutes an offense shall be criminally liable for such
conduct and may be prosecuted and punished as if he
were the principal offender.’’ This statute deems the
accessory to be the same as the principal for purposes
of criminal liability and punishment. Thus, although a
separate and distinct provision in our criminal statutes
defines a category of conduct commonly known as
accessory liability, ‘‘[t]here is no such crime as being
an accessory . . . . The accessory statute merely pro-
vides alternate means by which a substantive crime
may be committed.’’ (Emphasis in original; internal quo-
tation marks omitted.) State v. Montanez, 277 Conn.
735, 755–56, 894 A.2d 928 (2006); see also State v. Foster,
202 Conn. 520, 527, 522 A.2d 277 (1987) (‘‘both attempt
and conspiracy are offenses in and of themselves, while
accessorial liability is not’’). In this way, Connecticut
follows the ‘‘modern approach’’ to accessory liability,
which ‘‘is to abandon completely the old [common-law]
terminology and simply provide that a person is legally
accountable for the conduct of another when he is an
accomplice of the other person in the commission of
the crime.’’ (Internal quotation marks omitted.) State
v. Harris, 198 Conn. 158, 164, 502 A.2d 880 (1985). Thus,
‘‘there is no practical significance in being labeled an
‘accessory’ or a ‘principal’ for the purpose of determin-
ing criminal responsibility.’’ Id.Our prior double jeopardy cases involving accessory
crimes illustrate the point. In conducting a double jeop-
ardy analysis when the defendant has been charged as
an accessory, we typically look to the elements of the
principal offense underlying the accessory charge, not
to the elements of accessory liability. See, e.g., State
v. James, 247 Conn. 662, 671–74, 725 A.2d 316 (1999)
(applying precedential double jeopardy analysis for
crime of felony murder as principal to determine
whether defendant may be retried for felony murder as
accessory after being convicted of robbery); State v.
Nixon, 231 Conn. 545, 551–55, 651 A.2d 1264 (1995)
(looking to elements underlying principal offense to
determine whether convictions as accessory violated
double jeopardy); Harris v. Commissioner of Correc-
tion, 107 Conn. App. 833, 841–42, 947 A.2d 7 (applying
Blockburger test to principal crime of robbery when
defendant challenged his convictions of robbery in first
degree as accessory and conspiracy to commit robbery
in first degree), cert. denied, 288 Conn. 908, 953 A.2d
652 (2008); State v. Fudge, 20 Conn. App. 665, 669, 569
A.2d 1145 (same), cert. denied, 214 Conn. 807, 573 A.2d
321 (1990).8 Conducting the double jeopardy analysis on
the basis of the principal crime underlying an accessory
conviction is in accordance with the axiom that ‘‘[t]here
is no such crime as being an accessory . . . .’’9
(Emphasis in original; internal quotation marks omit-
ted.) State v. Montanez, supra, 277 Conn. 755. Because
a conviction as an accessory is the same as a conviction
as a principal offender, we conclude that the defendant
in the present case was convicted and punished for
‘‘multiple violations of the same statutory provision’’;
(internal quotation marks omitted) State v. Miranda,
supra, 260 Conn. 120; namely, assault in the first degree
in violation of § 53a-59 (a) (1).
To determine whether the defendant’s multiple
assault convictions violate the double jeopardy clause,
we must ascertain the unit of prosecution that the legis-
lature intended to punish under § 53a-59 (a) (1). See id.
(proper inquiry when defendant is convicted of multiple
violations of same statutory provision is whether legis-
lature intended to punish individual acts separately or
to punish course of conduct that they constitute). ‘‘This
is because [t]he role of the constitutional guarantee
[against double jeopardy] is limited to [en]suring that
the court does not exceed its legislative authorization
by imposing multiple punishments for the same offense.
. . . The issue, though essentially constitutional,
becomes one of statutory construction.’’ (Internal quo-
tation marks omitted.) State v. Bernacki, 307 Conn. 1,
10, 52 A.3d 605 (2012), cert. denied, 569 U.S. 918, 133
S. Ct. 1804, 185 L. Ed. 2d 811 (2013).
The question of what unit of prosecution the legisla-
ture intended to punish under § 53a-59 (a) (1) presents
an issue of statutory construction, over which we exer-
cise plenary review. See State v. Garvin, supra, 242
Conn. 304–305 (exercising plenary review over question
of statutory interpretation when defendant was con-
victed of multiple violations of same statute); State v.
Hearl, supra, 182 Conn. App. 272 (question of correct
unit of prosecution under statute is ‘‘a question of law
subject to plenary review’’). ‘‘When construing a statute,
[o]ur fundamental objective is to ascertain and give
effect to the apparent intent of the legislature. . . . In
other words, we seek to determine, in a reasoned man-
ner, the meaning of the statutory language as applied
to the facts of [the] case . . . . In seeking to determine
that meaning, General Statutes § 1-2z directs us first to
consider the text of the statute itself and its relationship
to other statutes. If, after examining such text and con-
sidering such relationship, the meaning of such text is
plain and unambiguous and does not yield absurd or
unworkable results, extratextual evidence of the mean-
ing of the statute shall not be considered.’’ (Internal
quotation marks omitted.) Trinity Christian School v.
Commission on Human Rights & Opportunities, 329
Conn. 684, 694, 189 A.3d 79 (2018).
Section 53a-59 (a) (1) provides: ‘‘A person is guilty
of assault in the first degree when . . . [w]ith intent
to cause serious physical injury to another person, he
causes such injury to such person or to a third person
by means of a deadly weapon or a dangerous instrument
. . . .’’ The defendant does not dispute that a separate
assault occurs with respect to each victim who suffers
a serious physical injury inflicted with the requisite
intent. As we explained in State v. Lytell, 206 Conn.
657, 539 A.2d 133 (1988), ‘‘[a] fundamental purpose of
the criminal law is to protect individual citizens from
the criminal conduct of another. People are neither
fungible nor amorphous. Where crimes against persons
are involved, a separate interest of society has been
invaded for each violation. Therefore, when two or
more persons are the victims of a single episode there
are as many offenses as there are victims.’’ (Internal
quotation marks omitted.) Id., 666; see also State v.
Bunkley, 202 Conn. 629, 659–60, 522 A.2d 795 (1987)
(rejecting defendant’s claim that conviction and consec-
utive punishment for manslaughter and assault ‘‘arising
from one accident violated his constitutional protection
against double jeopardy,’’ reasoning that ‘‘there are as
many offenses as there are victims’’ (internal quotation
marks omitted)); State v. Madera, 198 Conn. 92, 109–10,
503 A.2d 136 (1985) (there was no double jeopardy
violation when defendant was convicted and punished
for fourteen counts of arson murder arising out of single
fire); State v. Couture, 194 Conn. 530, 565-66, 482 A.2d
300 (1984) (concluding that ‘‘[t]here are no double jeop-
ardy obstacles’’ to convicting and punishing defendant
for multiple violations of felony murder statute on basis
of multiple victims), cert. denied, 469 U.S. 1192, 105 S.
Ct. 967, 83 L. Ed. 2d 971 (1985).
The defendant’s double jeopardy claim relates to his
conviction of two assaults as to each victim. He argues
that the constitutional prohibition was violated when
he was convicted and punished for assaulting each indi-
vidual victim twice because the ‘‘charges arose from a
continuous course of conduct that occurred in a very
short time span . . . .’’ The state disagrees, arguing
that the defendant committed at least two separate and
distinct completed assaults with respect to each victim,
and, therefore, his multiple convictions do not violate
the double jeopardy clause.
We previously have not analyzed the unit of prosecu-
tion under § 53a-59 (a) (1), but the Appellate Court has
addressed the issue with respect to the crime of assault
in the second degree in violation of General Statutes
§ 53a-60 (a) (2),10 and we find its approach instructive
as a starting point. In State v. Nixon, 92 Conn. App.
586, 886 A.2d 475 (2005), the Appellate Court concluded
that a continuous course of conduct involving multiple
stabbings of a single victim forms a single unit of prose-
cution under § 53a-60 (a) (2). Id., 589, 597. The court
explained that the language of the second degree assault
statute was ambiguous with respect to the intended
unit of prosecution because the statute did not specify
whether the legislature intended to punish every injury
inflicted as a separate crime. See id., 594 (‘‘although
the statute does not say ‘with intent to cause injuries,’
it also does not say ‘with intent to cause an injury’ ’’
(emphasis in original)). The court rejected the state’s
argument that every stab wound inflicted by a defendant
always constitutes a separate assault, reasoning that,
‘‘[t]o say, for example, that our legislature intended that
a defendant charged with simple assault, where ten
blows were thrown, could be tried and found not guilty
at one trial relating only to the first punch thrown and
then, following the state’s argument, subsequently
charged and brought to trial nine more times, all on
the basis of one fight with one victim in one place in
one very short period of time, simply does not comport
with our reading of the statute, nor does it comport
with the history of the prosecution of similar offenses
in our case law.’’ Id., 594–95.
Like § 53a-60 (a) (2), neither the language nor the
legislative history of § 53a-59 (a) (1) indicates the unit of
prosecution intended by the legislature. As previously
explained, § 53a-59 (a) (1) provides: ‘‘A person is guilty
of assault in the first degree when . . . [w]ith intent
to cause serious physical injury to another person, he
causes such injury to such person or to a third person
by means of a deadly weapon or a dangerous instrument
. . . .’’ General Statutes § 53a-3 (4) defines ‘‘ ‘[s]erious
physical injury’ ’’ as ‘‘physical injury which creates a
substantial risk of death, or which causes serious disfig-
urement, serious impairment of health or serious loss
or impairment of the function of any bodily organ
. . . .’’ General Statutes § 53a-3 (3), in turn, defines
‘‘ ‘[p]hysical injury’ ’’ as ‘‘impairment of physical condi-
tion or pain . . . .’’ Notably, the legislature has conspic-
uously declined to use either the singular, such as ‘‘a
physical injury’’ or ‘‘an impairment of physical condi-
tion,’’ or the plural, such as ‘‘physical injuries’’ or
‘‘impairments of physical condition.’’ See State v.
Nixon, supra, 92 Conn. App. 594. ‘‘[I]t is a well settled
principle of statutory construction that the legislature
knows how to convey its intent expressly . . . or to
use broader or limiting terms when it chooses to do
so.’’ (Citation omitted.) Scholastic Book Clubs, Inc. v.
Commissioner of Revenue Services, 304 Conn. 204, 219,
38 A.3d 1183, cert. denied, 568 U.S. 940, 133 S. Ct. 425,
184 L. Ed. 2d 255 (2012). In the absence of such limiting
language in § 53a-59 (a) (1), we cannot conclude that
the statute unambiguously defines the unit of prosecu-
tion for assault in the first degree.
The legislative history of § 53a-59 does not resolve
the ambiguity in the text of the statute. The limited
legislative history of § 53a-59 reflects that the purpose
of the assault statute was to grade the seriousness of
the offense on the basis of the intent of the actor, the
means used to commit the assault, and the seriousness
of the injuries inflicted.11 Nothing in the legislative his-
tory addresses the legislature’s intended unit of prose-
cution.12
In the absence of a clear legislative intent to impose
multiple punishments for violations of the same crimi-
nal statute arising out of a single transaction or occur-
rence, the unit of prosecution question must be resolved
in favor of the rule of lenity. In Bell v. United States,
349 U.S. 81, 75 S. Ct. 620, 99 L. Ed. 905 (1955), the United
States Supreme Court explained: ‘‘When Congress has
the will it has no difficulty in expressing it—when it
has the will, that is, of defining what it desires to make
the unit of prosecution . . . . When Congress leaves
to the Judiciary the task of imputing to Congress an
undeclared will, the ambiguity should be resolved in
favor of lenity. . . . [I]f Congress does not fix the pun-
ishment for a federal offense clearly and without ambi-
guity, doubt will be resolved against turning a single
transaction into multiple offenses, when we have no
more to go on than the present case furnishes.’’ Id.,83–84; see also Simpson v. United States, 435 U.S. 6,
14–16, 98 S. Ct. 909, 55 L. Ed. 2d 70 (1978) (relying in
part on rule of lenity to conclude that Congress did not
intend to subject defendant to multiple punishment for
single criminal transaction); Ladner v. United States,
358 U.S. 169, 177, 79 S. Ct. 209, 3 L. Ed. 2d 199 (1958)
(when federal assault statute was susceptible of multi-
ple reasonable interpretations, ‘‘the [c]ourt applies a
policy of lenity and adopts the less harsh meaning’’);
United States v. Chipps, 410 F.3d 438, 449 (8th Cir.
2005) (‘‘We conclude that Congress has not specified
the unit of prosecution for simple assault with clarity,
and so we apply the rule of lenity and resolve the doubt
in favor of [the defendant]. Applying the rule of lenity
here means interpreting assault to be a [course of con-
duct] offense, as that limits his sentencing exposure.’’).
Following Bell, we have applied the rule of lenity to
avoid turning a single transaction into multiple offenses
when the governing statutes and legislative history are
ambiguous. See, e.g., State v. Ruscoe, 212 Conn. 223,
257–58, 563 A.2d 267 (1989) (‘‘because [General Stat-
utes] § 53-132 is ambiguous in respect to whether sepa-
rate punishments were intended for the possession of
more than one item with defective identification marks,
the rule of lenity dictates that the issue be resolved in
the defendant’s favor, and that two of the defendant’s
convictions under § 53-132 must be vacated’’), cert.
denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d
1049 (1990); State v. Rawls, 198 Conn. 111, 122, 502 A.2d
374 (1985) (‘‘[u]nless a clear intention to fix separate
penalties for each narcotic substance involved is
expressed, the issue should be resolved in favor of lenity
and against turning a single transaction into multiple
offenses’’).
The courts of our sister states also consistently have
applied the rule of lenity in cases involving ambiguous
statutes to determine the applicable unit of prosecution
under the double jeopardy clause. See, e.g., Mill v. State,
585 P.2d 546, 552 n.4 (Alaska 1978) (‘‘[i]n marginal cases
doubts should be resolved against turning a single trans-
action into multiple offenses’’), cert. denied, 444 U.S.
827, 100 S. Ct. 51, 62 L. Ed. 2d 34 (1979); Walker v.
State, 53 Md. App. 171, 201, 452 A.2d 1234 (1982) (‘‘If
the [l]egislature intended two crimes arising out of a
single act to be punished separately, we defer to that
legislated choice. . . . If the [l]egislature intended but
a single punishment, we defer to that legislated choice.
If we are uncertain as to what the [l]egislature intended,
we turn to the so-called ‘[r]ule of [l]enity,’ by which we
give the defendant the benefit of the doubt.’’ (Citations
omitted.)); People v. Wakeford, 418 Mich. 95, 139, 341
N.W.2d 68 (1983) (‘‘a clear legislative intent is required
to overcome what is in effect the rebuttable presump-
tion against multiple punishment contained in the [d]ou-
ble [j]eopardy [c]lause, which works as a particularized
version of the rule of lenity’’ (emphasis omitted; internal
quotation marks omitted)); State v. Tvedt, 153 Wn. 2d
705, 711, 107 P.3d 728 (2005) (‘‘if the legislature fails
to define the unit of prosecution or its intent is unclear,
under the rule of lenity any ambiguity must be resolved
against turning a single transaction into multiple
offenses’’ (internal quotation marks omitted)).
Our analysis does not end there, of course, because
not every criminal activity inflicting repetitive harm
directed against a single victim on the same occasion
involves a continuous course of conduct. It depends on
the facts. To determine when one course of conduct
ends (or is ‘‘completed’’) and another begins for double
jeopardy purposes, our case law looks to whether the
defendant’s acts took place at different times or loca-
tions, whether the defendant was motivated by different
criminal intents, and whether the acts were interrupted
by intervening events or circumstances. See, e.g., State
v. Brown, supra, 299 Conn. 653 (‘‘[t]he attempted rob-
bery became a complete transaction when the attempt
failed and the victim escaped’’); State v. Licari, supra,132 Conn. 226 (defendant did not commit two distinct
offenses of operating automobile under influence of
liquor because ‘‘nothing occurred . . . to interrupt the
offense from the time he started in New Haven until
he stopped his car in Woodbridge’’); State v. Ayala, 154
Conn. App. 631, 655, 106 A.3d 941 (2015) (‘‘the charges
of interference were based on two separate, distinct
acts of alleged interference occurring at separate
places, and separated by the transporting of the defen-
dant from one location to another’’), aff’d, 324 Conn.
571, 153 A.3d 588 (2017); State v. Nixon, supra, 92 Conn.
App. 591 (‘‘the defendant twice stabbed the same victim,
at the same place and during the same time period,
with the same instrument, with the same common intent
to inflict physical injury during one continuous, uninter-
rupted assault’’).
The courts of other jurisdictions rely on similar fac-
tors. Other courts commonly consider, as we do, the
length of time between acts,13 the locations of the acts
or victims,14 evidence of separately formed criminal
intents,15 or some combination thereof.16 The Supreme
Courts of Washington and New Mexico have reviewed
and summarized the factors used across jurisdictions
to determine when a defendant’s acts are sufficiently
distinct to constitute multiple offenses. In State v. Vil-
lanueva-Gonzalez, 180 Wn. 2d 975, 329 P.3d 78 (2014),
the Supreme Court of Washington explained, ‘‘[t]here
is no bright-line rule for when multiple assaultive acts
constitute one course of conduct. While any analysis
of this issue is highly dependent on the facts, courts in
other jurisdictions generally take the following factors
into account: [1] [t]he length of time over which the
assaultive acts took place, [2] [w]hether the assaultive
acts took place in the same location, [3] [t]he defen-
dant’s intent or motivation for the different assaultive
acts, [4] [w]hether the acts were uninterrupted or
whether there were any intervening acts or events, and
[5] [w]hether there was an opportunity for the defen-
dant to reconsider his or her actions.’’ Id., 985. The New
Mexico Supreme Court applies a similar set of factors,
drawn from its review of double jeopardy cases in other
jurisdictions, in order to determine whether the defen-
dant’s acts were ‘‘separated by sufficient indicia of dis-
tinctness.’’ (Internal quotation marks omitted.) State v.
DeGraff, 139 N.M. 211, 223, 131 P.3d 61 (2006). ‘‘Such
indicia include the timing, location, and sequencing of
the acts, the existence of an intervening event, the
defendant’s intent as evidenced by his conduct and
utterances, and the number of victims.’’ Id.To summarize, because the relevant statute does not
clearly authorize us to treat each separate act as a
separate crime, we apply the rule of lenity to resolve any
doubt against turning a single transaction into multiple
offenses. We look to the following factors to determine
whether, on this record, the defendant engaged in dis-
tinct courses of conduct and, therefore, separately pun-
ishable assaults as to each victim: (1) the amount of
time separating the acts; (2) whether the acts occurred
at different locations; (3) the defendant’s intent or moti-
vation behind the acts; and (4) whether any intervening
events occurred between the acts, such that the defen-
dant had the opportunity to reconsider his actions.
II
We first address whether the defendant’s conviction
and punishment for two counts of assault in the first
degree as to Tucker violate the double jeopardy clause.
The record shows that there was a single, uninterrupted
fight in which the defendant and Eliezer both stabbed
Tucker in a discrete area of the parking lot. All of Tuck-
er’s stab wounds were inflicted within seconds of each
other. There is no evidence of a break in the fight with
Tucker or any other intervening event separating one
stabbing from another, which would have provided the
defendant an opportunity to reconsider his actions and
to formulate the intent to commit an additional assault.
See State v. Nixon, supra, 92 Conn. App. 591 (‘‘the
defendant twice stabbed the same victim, at the same
place and during the same time period, with the same
instrument, with the same common intent to inflict
physical injury during one continuous, uninterrupted
assault’’). Without evidence to meaningfully distinguish
the acts such that they are ‘‘susceptible of separation
into parts, each of which in itself constitutes a com-
pleted offense’’; (internal quotation marks omitted)
State v. Brown, supra, 299 Conn. 652; we conclude that
the defendant’s assaultive acts against Tucker were part
of the same continuing course of conduct. For that
reason, the imposition of multiple punishments on the
defendant for the assault on Tucker violates the double
jeopardy clause of the fifth amendment to the United
States constitution.
The state argues that the defendant committed two
distinct and complete assaults against Tucker because
he intentionally stabbed Tucker and, by doing so, also
intentionally aided Eliezer in the stabbing of Tucker.
This argument misses the point. Double jeopardy is
triggered because, on the state’s own theory, the defen-
dant has been convicted twice of committing the same
crime on the same victim for the same conduct. More
particularly, the conduct that is alleged to have inten-
tionally aided the defendant’s coperpetrator in the com-
mission of an assault is the very same conduct that
constitutes the defendant’s commission of the crime of
assault as a principal. The state’s theory of the defen-
dant’s accessorial liability was that, by participating in
the fight with a knife, either by actually stabbing each
victim or simply through his armed presence, the defen-
dant simultaneously aided Eliezer in committing the
crime of assault. The actus rei underlying both of the
defendant’s assault convictions as to Tucker are one
and the same. Because it is axiomatic that the double
jeopardy clause prohibits the imposition of multiple
punishments for the same offense; State v. Brown,
supra, 299 Conn. 651; the defendant’s two convictions
of assault based on the same actus reus violate the
double jeopardy clause.17 We therefore reverse the judg-
ment of the Appellate Court insofar as it affirmed the
defendant’s conviction of assault in the first degree as
an accessory with respect to Tucker.
III
We next consider whether the double jeopardy clause
was violated when the defendant was convicted and
punished for two counts of assault in the first degree
as to Rodriguez. Rodriguez received five stab wounds.
Two or three of those wounds occurred in rapid succes-
sion following Rodriguez’ intervention in the fight
between the defendant and Medina, and the defendant
inflicted at least one of those initial wounds. The defen-
dant and Eliezer then walked away from the fight to
a different area of the parking lot near the sidewalk.
Rodriguez and the defendant were in separate areas of
the parking lot, and no blows were exchanged during
the interlude. This break provided an opportunity for
the defendant to reconsider his actions and to formulate
a distinct criminal intent.
The fight resumed after Rodriguez approached the
defendant and Eliezer a second time. Rodriguez said
something to the men, then turned away. At that point,
the defendant and Eliezer ran after Rodriguez, and
Eliezer stabbed Rodriguez in the back, causing him to
fall to the ground in a grassy area adjacent to the parking
lot. Rodriguez was lying on his back unable to move
after this second and distinct phase of the attack. As
Rodriguez lay on the ground, the defendant then pro-
ceeded to stab Rodriguez in the chest while saying
‘‘that’s for hitting my brother.’’ This final stabbing was
distinct in a number of ways from the first series of
stabbings that occurred before the break in the fight.
Geographically, although the locations were proximate,
the defendant and his victim were in a grassy area
outside the parking lot where the first stabbing took
place. In addition, a sufficient amount of time had
elapsed to give the defendant an opportunity to recon-
sider his actions during the break in the fighting. As
suggested by the defendant’s declaration that the final
stab was ‘‘for hitting [Eliezer],’’ the defendant had for-
mulated a new criminal intent that was separate and
distinct from the intent behind the initial stabbings.
We acknowledge that the two criminal acts involving
Rodriguez plainly arose out of the same general alterca-
tion, and the separation between the two events, in
both time and place, is not great. The entire fight, from
the time that Tucker and Rodriguez intervened to the
defendant’s final stabbing of Rodriguez, lasted approxi-
mately seventy seconds. In many instances, multiple
stabbings occurring within a similarly brief time period
may not be sufficiently distinct to constitute separate
and completed assaults. See, e.g., United States v.
Chipps, supra, 410 F.3d 447 (‘‘no more than a few sec-
onds elapsed between [the] two instances of assaultive
conduct’’); State v. Nixon, supra, 92 Conn. App. 591(rapid stabbings); State v. Harris, 243 S.W.3d 508, 510
(Mo. App. 2008) (when attack with knife ‘‘lasted about
one minute,’’ defendant committed one assault, not
three). In this case, however, the distinct break in the
fighting, the clear opportunity provided by that
intervening period of time and physical separation for
the defendant to reconsider his actions, and the evi-
dence establishing a separate and distinct criminal
intent behind the final stabbing make these acts suffi-
ciently distinct to constitute two separate courses of
assaultive conduct.
The defendant argues that State v. Nixon, supra, 92
Conn. App. 586, controls the outcome of the present
case because, under the factors considered by the court
in Nixon, the defendant’s multiple stabbings of Rodri-
guez are part of the same act or transaction. We dis-
agree. In Nixon, the defendant stabbed the victim twice
in rapid succession without any intervening events or
break in the attack. See id., 591. In contrast, the defen-
dant’s stabbings of Rodriguez are distinguished by the
break in the fighting, the movement from one area of
the parking lot to another, and the defendant’s own
articulation of a distinct criminal intent. On these facts,
we conclude that the defendant’s separate stabbings of
Rodriguez constituted two distinct courses of conduct
for double jeopardy purposes.
We are similarly unconvinced by the defendant’s
argument that his conviction as a principal categorically
precludes his conviction as an accessory for the same
crime. It is true that ‘‘[t]here is no such crime as being
an accessory . . . . The accessory statute merely pro-
vides alternate means by which a substantive crime
may be committed.’’ (Emphasis in original; internal quo-
tation marks omitted.) State v. Montanez, supra, 277
Conn. 755–56. But this does not mean that a defendant
can never be convicted of the same substantive crime
as both a principal and an accessory. Multiple convic-
tions of the same offense are permissible under the
double jeopardy clause, as long as each conviction is
based on distinct acts or transactions that constitute
separately completed units of prosecution under the
statute in question. See State v. Brown, supra, 299 Conn.
652 (‘‘distinct repetitions of a prohibited act, however
closely they may follow each other . . . may be pun-
ished as separate crimes without offending the double
jeopardy clause’’ (internal quotation marks omitted)).
We conclude that the defendant’s stabbings of Rodri-
guez constituted two distinct courses of conduct under
§ 53a-59 (a) (1).
The defendant has failed to establish that his two
convictions of assault in the first degree with respect
to Rodriguez violate the double jeopardy clause. We
therefore affirm the judgment of the Appellate Court
insofar as it affirmed the defendant’s assault convic-
tions as to Rodriguez.18
The judgment of the Appellate Court is reversed inso-
far as it affirmed the defendant’s conviction of first
degree assault as an accessory as to Kenneth Tucker;
the case is remanded to the Appellate Court with direc-
tion to reverse the trial court’s judgment only as to that
conviction and to remand the case to the trial court
with direction to vacate the defendant’s conviction of
first degree assault as an accessory as to Tucker; the
judgment of the Appellate Court is affirmed in all
other respects.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** July 9, 2020, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
General Statutes § 53a-59 (a) provides in relevant part: ‘‘A person is
guilty of assault in the first degree when: (1) With intent to cause serious
physical injury to another person, he causes such injury to such person or
to a third person by means of a deadly weapon or a dangerous instru-
ment . . . .’’
2
General Statutes § 53a-8 (a) provides: ‘‘A person, acting with the mental
state required for commission of an offense, who solicits, requests, com-
mands, importunes or intentionally aids another person to engage in conduct
which constitutes an offense shall be criminally liable for such conduct and
may be prosecuted and punished as if he were the principal offender.’’
3
Specifically, with respect to the offenses committed against Rodriguez,
the court sentenced the defendant to sixteen years incarceration on count
one (attempt to commit murder); sixteen years on count two (assault in
the first degree as a principal), concurrent to count one; sixteen years on
count three (assault in the first degree as an accessory), concurrent to
counts one and two; and sixteen years on count four (conspiracy to commit
assault in the first degree), concurrent to counts one through three. With
respect to the offenses committed against Tucker, the court sentenced the
defendant to six years incarceration followed by five years of special parole
on count six (assault in the first degree as a principal), consecutive to counts
one through four, and to six years incarceration followed by five years of
special parole on count seven (assault in the first degree as an accessory),
consecutive to counts one through four but concurrent to count six.
4
It is undisputed that the defendant’s unpreserved constitutional claim
is reviewable under Golding.
5
The defendant has not invoked the protections of our state constitution.
6
Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed.
306 (1932).
7
‘‘Our case law has long established that each act of criminal sexual
conduct, as defined by our criminal statutes, is separately punishable under
those statutes and, therefore, in such cases there is no double jeopardy
violation because they do not arise out of the same act or transaction.’’
State v. Scott, 270 Conn. 92, 99, 851 A.2d 291 (2004), cert. denied, 544 U.S.
987, 125 S. Ct. 1861, 161 L. Ed. 2d 746 (2005); see, e.g., State v. Kulmac,
230 Conn. 43, 68–69, 644 A.2d 887 (1994) (separate acts of vaginal penetration
by finger and penis); State v. Snook, 210 Conn. 244, 260–62, 555 A.2d 390(multiple acts of risk of injury to child), cert. denied, 492 U.S. 924, 109 S.
Ct. 3258, 106 L. Ed. 2d 603 (1989); State v. Frazier, 185 Conn. 211, 228–30,
440 A.2d 916 (1981) (multiple forcible sexual assaults during course of
burglary), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375(1982); ; see also State v. Albert, 252 Conn. 795, 805, 750 A.2d 1037 (2000)
(sexual assault statutes designed to punish fact, not degree, of penetration).
8
An exception to this approach is found in State v. Johns, 184 Conn. 369,
439 A.2d 1049 (1981), in which we applied the Blockburger test to the
elements of the accessory statute to determine whether the imposition of
multiple punishments for the crimes of burglary in the third degree as an
accessory and conspiracy to commit burglary violated the double jeopardy
clause. See id., 375–80. We did so, however, only because the defendant
had argued that the intent elements of conspiracy and accessory liability
were the same. See id., 374. Moreover, we noted that our rejection of the
defendant’s claim would have been the same had we applied Blockburger
to the substantive burglary statute. Id., 378–79. Johns has no bearing on the
present case.
9
Because there is no such crime as being an accessory, § 53a-8 contains
no punishment provision of its own. Instead, a defendant convicted as an
accessory is punished ‘‘as if he were the principal offender’’; General Statutes
§ 53a-8 (a); according to the punishment provision of the principal offense.
See State v. Flemke, 315 Conn. 500, 509, 108 A.3d 1073 (2015) (‘‘§ 53a-8 . . .
provides that an accomplice is subject to exactly the same liability and
punishment as the principal’’ (emphasis in original)).
10
General Statutes § 53a-60 (a) provides in relevant part: ‘‘A person is
guilty of assault in the second degree when . . . (2) with intent to cause
physical injury to another person, the actor causes such injury to such
person or to a third person by means of a deadly weapon or a dangerous
instrument other than by means of the discharge of a firearm . . . .’’
11
See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1969
Sess., pp. 6–7, remarks of David M. Borden, executive director of the Com-
mission to Revise the Criminal Statutes (‘‘[T]he assault crimes are divided
into three degrees and they take into account not only the means used in
the assault but the effect on the victim. Under present law there is a gap
between breach of peace by assault and aggravated assault, whereas if a
dangerous weapon is not used, there could be a very serious effect on the
victim but the prosecution is limited there to a breach of peace by assault
charge which is a misdemeanor even though it may be a very vicious assault
even though no dangerous weapon is used. This gap is filled.’’); Commission
to Revise the Criminal Statutes, Penal Code Comments (1971) p. 23, reprinted
in Conn. Gen. Stat. Ann., tit. 53a, ch. 952, p. 323 (West 2012), commission
comment (‘‘The prior law of assault was contained essentially in [General
Statutes §§] 53-12 (assault with intent to murder), 53-16 (aggravated assault)
and 53-174 (breach of peace by assault). These statutes draw distinctions
based only on the intent of the actor or the weapon used, without regard
to the degree of injury inflicted. Thus there was a wide gap between breach
of peace by assault and aggravated assault, resulting in the fact that if the
actor intentionally inflicted serious injury on his victim, but did not use a
deadly weapon or dangerous instrument, the most he could be charged with
was breach of peace by assault, a misdemeanor. [General Statutes §§ 53a-
59 through 53a-64], which are based primarily on the New York Revised
Penal Law, grade the seriousness of the offense by reference to the intent
of the actor, the means used, the injury inflicted and the seriousness of the
other risks created. Assault is divided into three degrees.’’).
12
It is not surprising that we are unable to discern a clear expression of
the unit of prosecution from the text of the statute or the legislative history.
As Chief Justice Earl Warren explained: ‘‘The problem of multiple punish-
ment is a vexing and recurring one. . . . [M]urdering two people simultane-
ously might well warrant two punishments but stealing two [one dollar]
bills might not. . . . In every instance the problem is to ascertain what the
legislature intended. Often the inquiry produces few if any enlightening
results. Normally these are not problems that receive explicit legislative
consideration.’’ Gore v. United States, 357 U.S. 386, 393–94, 78 S. Ct. 1280,
2 L. Ed. 2d 1405 (1958) (Warren, C. J., dissenting).
13
See, e.g., Cronce v. State, 216 P.3d 568, 570 (Alaska App. 2009) (‘‘[w]e
have previously approved separate convictions for assaults [when] there
were clear breaks in time and circumstances between the offenses’’); Spencer
v. State, 868 A.2d 821, 824 (Del. 2005) (temporal separation between acts
was sufficient to support finding that defendant committed separate acts);
Simmons v. State, 568 So. 2d 1192, 1201 (Miss. 1990) (‘‘[t]here was a sufficient
gap in time between the assaults to constitute separate offenses’’); Weatherly
v. State, 733 P.2d 1331, 1338 (Okla. Crim. App. 1987) (‘‘[a] significant gap
exists between the first and second attack so that the criminal transaction
may not be called uninterrupted or unintermittent’’).
14
See, e.g., Spencer v. State, 868 A.2d 821, 824 (Del. 2005) (spatial separa-
tion between acts was sufficient to support finding that defendant committed
separate acts); Simmons v. State, 568 So. 2d 1192, 1201 (Miss. 1990) (‘‘The
stabbing and biting took place while [the defendant and the victim] were
parked on the interstate. The shearing took place after they returned to [the
city] to get the scissors.’’); State v. Fischer, 165 N.H. 706, 715, 82 A.3d 891(2013) (‘‘[h]ere, the defendant was charged with two separate incidents of
assault—the first took place in the living room and, sometime thereafter,
the second occurred in the kitchen’’).
15
See, e.g., State v. Haney, 842 A.2d 1083, 1085 (R.I. 2004) (‘‘Although
[the] defendant committed both crimes on the same evening, approximately
fifteen minutes elapsed between [the assaults]. This [fifteen minute] interval
provided [the] defendant with sufficient opportunity to reflect on his
assaultive conduct and to forbear from committing another crime.’’).
16
See, e.g., United States v. Hamell, 3 F.3d 1187, 1191 (8th Cir. 1993)
(two assaults were ‘‘separate and distinct criminal episodes’’ when they
‘‘happened at different times and places and had different motivations’’),
cert. denied, 510 U.S. 1138, 114 S. Ct. 1121, 127 L. Ed. 2d 430 (1994), and
cert. denied sub nom. Amerson v. United States, 510 U.S. 1139, 114 S. Ct.
1123, 127 L. Ed. 2d 432 (1994); State v. Rambert, 341 N.C. 173, 176–77,
459 S.E.2d 510 (1995) (‘‘[The] defendant’s actions were three distinct and,
therefore, separate events. Each shot, fired from a pistol, as opposed to a
machine gun or other automatic weapon, required that [the] defendant
employ his thought processes each time he fired the weapon. Each act was
distinct in time, and each bullet hit the vehicle in a different place.’’).
17
Our resolution of the issue might be different if the defendant had
stabbed Tucker and then engaged in some other conduct—holding Tucker
down, for example—to aid his brother’s assault on Tucker. There is no
evidence of any such separate conduct in this case.
18
The defendant also argues that his multiple assault convictions for each
victim are unconstitutional because the state has changed its theory of the
case on appeal. He contends that, at trial, the state pursued the principal
and accessory counts as alternative theories of culpability as to each victim,
but, on appeal, the state argues that the principal and accessory counts
were independent of each other and stemmed from separate criminal acts.
Although this ‘‘theory of the case’’ argument is included as part of the
defendant’s double jeopardy claim, it is grounded in the due process doctrine,
as the case law relied on by the defendant demonstrates. See, e.g., State v.
Carter, 317 Conn. 845, 854, 120 A.3d 1229 (2015) (‘‘[t]he theory of the case
doctrine is rooted in principles of due process of law’’ (internal quotation
marks omitted)); State v. Fourtin, 307 Conn. 186, 208, 52 A.3d 674 (2012)
(‘‘[I]t is well established that [o]ur rules of procedure do not allow a [party]
to pursue one course of action at trial and later, on appeal, argue that a
path [the party] rejected should now be open to him. . . . To rule otherwise
would permit trial by ambuscade.’’ (Internal quotation marks omitted.)) To
the extent that the defendant raises a due process claim for the first time
before this court, we decline to review it. See, e.g., State v. Fauci, 282 Conn.
23, 26 n.1, 917 A.2d 978 (2007) (‘‘[w]e ordinarily decline to consider claims
that are not raised properly before the Appellate Court or in the petition
for certification to appeal to this court’’). To the extent that the defendant
seeks to argue the point in support of his double jeopardy claim, the state’s
theory of the case has no impact on the ‘‘unit of prosecution’’ analysis as
applied to resolve the present case.