State v. Dubuisson , 183 Conn. App. 62 ( 2018 )

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STATE OF CONNECTICUT v. WALKER
WILNER DUBUISSON
(AC 39685)
DiPentima, C. J., and Sheldon and Prescott, Js.
Syllabus
Convicted of the crime of strangulation in the second degree in connection
with a dispute with the victim, the defendant appealed to this court,
claiming, inter alia, that the evidence was insufficient to support his
conviction. Following a dispute with the victim, the defendant pushed
her against a wall, put his fingers into her trachea and his entire hand
around her neck, and began strangling her. The victim was unable to
breathe for thirty seconds to one minute, her body became limp and
she urinated herself. About one hour after the incident, while the defen-
dant was outside of the home, the victim telephoned her friend, P. The
victim told P that she was hurt and that the defendant had strangled
her. P testified that the victim sounded fearful and very anxious, and
that her voice was raspy. On appeal, the defendant claimed that the
evidence was insufficient to prove that he had the intent to impede the
victim’s ability to breathe or to restrict her blood circulation, or that,
while acting with that intent, he actually impeded her ability to breathe
or restricted her circulation. Held:
1. The evidence was sufficient for the jury to have found beyond a reasonable
doubt that the defendant committed strangulation in the second degree,
as the jury reasonably and logically could have concluded that the
defendant put his hand around the victim’s neck with the intent to render
her unable to breathe and, while acting under that intent, squeezed her
neck with his fingers and rendered her unable to breathe; the victim
testified that, as a result of the defendant’s conduct, she was unable to
breathe for between thirty and sixty seconds, she saw black, her body
became totally lifeless and she urinated herself, P testified that the
victim’s voice sounded raspy during their telephone call, that when P
arrived at the victim’s home, the victim told her that she was having a
difficult time swallowing and that her throat hurt too badly for her to
drink water, and both P and a state police trooper who responded to
the victim’s home saw red marks that appeared to be consistent with
fingerprints on the victim’s neck.
2. The trial court did not abuse its discretion by admitting into evidence,
under the spontaneous utterance exception to the hearsay rule, P’s
testimony regarding the victim’s statements to her during their telephone
conversation; P testified that the victim sounded fearful, anxious and
in pain, and although the victim had called another individual before
she called P and there was a break in time between when the defendant
strangled the victim and when the victim called P, the court reasonably
could have determined that the victim was still under the stress of the
situation and was experiencing such shock from being strangled by the
defendant and such fear due to his continued presence outside her
home, as to deprive her of the opportunity to collect her thoughts
or to reflect on the incident with the defendant before she made the
statements to P.
Argued March 12—officially released June 26, 2018
Procedural History
Substitute information charging the defendant with
the crime of strangulation in the second degree, brought
to the Superior Court in the judicial district of Windham,
geographical area number eleven, and tried to the jury
before Seeley, J.; verdict and judgment of guilty, from
which the defendant appealed to this court. Affirmed.
Peter Tsimbidaros, assigned counsel, for the appel-
lant (defendant).
Linda F. Currie-Zeffiro, assistant state’s attorney,
with whom were Anne F. Mahoney, state’s attorney,
and Mark A. Stabile, supervisory assistant state’s attor-
ney, for the appellee (state).
Opinion
SHELDON, J. The defendant, Walker Wilner Dubuis-
son, appeals from the judgment of conviction rendered
by the trial court, following a jury trial, on the charge
of strangulation in the second degree in violation of
General Statutes § 53a-64bb. The defendant claims that
(1) the evidence was insufficient to support his convic-
tion and (2) the trial court erred in admitting certain
out-of-court statements by the victim1 under the sponta-
neous utterance exception to the hearsay rule. We
affirm the judgment of the trial court.
The jury was presented with the following evidence
on which to base its verdict. The victim testified that
she met the defendant while he was an employee at a
Walmart store in Massachusetts and she was participat-
ing in a manager training program at that store. There-
after, they engaged in a six to eight month intimate
relationship, during which he moved into her home in
Connecticut. On the evening of February 22, 2015, the
victim returned home after work to find that it had
snowed in her absence, but the driveway was shoveled
inadequately. She thus brought her things inside the
house, then returned outside to finish shoveling the
driveway. The defendant, who was home when the vic-
tim arrived, opened the door and began ‘‘yelling at’’ her
for shoveling, insisting that he had shoveled already.
When she ignored him and continued to shovel, the
defendant opened the door once again and threw2 the
couple’s dog outside. The victim ran into the street to
retrieve the dog, which she brought inside to its crate
in the bedroom.
Finding the defendant in the bedroom when she
brought the dog inside, the victim began to yell at him
for throwing the dog. According to the victim’s testi-
mony, he responded by approaching her, ‘‘push[ing]
[her] left shoulder against the wall,’’ ‘‘turn[ing her]
around and . . . lock[ing] his fingers into [her] trachea,
then . . . tak[ing] his whole hand around [her] neck
and strangl[ing] [her].’’ The victim further testified that,
while the defendant was holding her in this manner,
she ‘‘couldn’t breathe,’’ she remembered ‘‘everything
going black’’ and her body ‘‘go[ing] totally limp,’’ and
she ‘‘urinated [her]self . . . .’’ After he released her,
she ‘‘told him to get his belongings and that the cops
were coming and [to] leave [her] home.’’ Although the
defendant gathered up his belongings and carried them
outside to his car, he did not drive away, but instead
began to walk back and forth in the driveway. Because
the victim, observing this behavior, felt ‘‘fearful that he
was going to try to break a window or break [her]
door,’’ she called her son’s friend, Dean Mayo, in an
unsuccessful effort to contact her son, then called her
own friend, Michelle Perez. Both Mayo and Perez
responded to these calls by driving immediately to the
victim’s house.
Mayo arrived first. He testified at trial that he had
decided to come over upon realizing that something
was wrong because the victim sounded ‘‘frantic’’ and
told him that she had gotten into a fight with the defen-
dant. When he arrived, he saw the victim inside the
house and the defendant outside in the driveway. The
victim, he recalled, was ‘‘very emotional,’’ crying and
shaking, and her face and neck were ‘‘very red.’’ Mayo
was not asked by the police to give them a statement.
Perez testified that the victim sounded ‘‘fearful, very
anxious’’ on the phone, and that her voice was ‘‘raspy
. . . .’’ During the call, the victim described to Perez
the events of the evening, starting from the time she
had arrived home from work. Among other things, the
victim told Perez that ‘‘she was hurt, [and] that [the
defendant] had strangled her.’’ When the victim told
Perez that the defendant was still outside her home,
Perez, who lived a twenty minute drive away from the
victim, drove directly to the victim’s house at the con-
clusion of the call. When she arrived, she noticed the
defendant, whom she described at trial as ‘‘very tense
and agitated,’’ standing in the driveway outside of his
car, which had a flat tire. When Perez asked the defen-
dant what had happened, he responded first by ‘‘ram-
bling’’ about the dog and the snow shoveling, then by
calling the victim various ‘‘derogatory names.’’ When
she asked him whether he had put his hands on the
victim and hurt her, he responded that he ‘‘put [his]
hands on her. She’s a crazy ‘b’ and she upset [him].’’
Perez told the defendant to leave because she would
be calling the police, then went inside to check on
the victim.
Perez described the victim’s face and neck as red
and stated that the victim had ‘‘clearly visible’’ finger
marks around her neck. The victim told Perez that she
was having a very hard time swallowing. After they
discussed ‘‘the extent or the severity of [the victim’s]
possible injuries,’’ Perez called the police. At 8:43 p.m.,
Connecticut State Police Trooper Trisha Marcaccio was
dispatched to the victim’s house. Trooper Joseph Marsh
also was dispatched, separately. Marcaccio spoke to
the defendant, who admitted that he had been in an
argument with the victim and that he had pushed her,
but denied that he had strangled her. Marcaccio then
left Marsh outside with the defendant3 while she went
inside to speak with the victim and Perez. Marcaccio
observed that the victim had ‘‘fresh red marks’’ on her
neck, ‘‘consistent with fingerprints from a hand.’’ The
victim told Marcaccio that the defendant had strangled
her, rendering her unable to breathe for thirty to sixty
seconds.4 Marcaccio photographed the injuries and
took statements from the victim and Perez. After Mar-
caccio finished taking statements and photographs, she
went outside and instructed Marsh to arrest the defen-
dant5 and to transport him to the state police barracks
for processing. Marcaccio also called an ambulance,
but the victim refused transport. Perez later drove the
victim to the Backus Plainfield Emergency Care Center,
where she was admitted at 10:32 p.m.
In the emergency department, the victim received a
visual physical examination, computerized axial tomog-
raphy (CT) scans, and X-rays. Her X-rays were entirely
normal, and her CT scans revealed normal glands and
lungs, no bruising, no fluid collection or swelling, and
no compromise of her airway. She reported tenderness
and was prescribed an anti-inflammatory. In a follow-
up appointment on February 24, 2015, with her primary
care physician, Dr. Walter McPhee, the victim was diag-
nosed with inflammation of the trachea and anxiety,
and prescribed an anti-inflammatory and a tranquilizer.
She did not have bruising on her neck at the time,
but McPhee did not find that unusual because she had
indicated that she had been strangled two days prior
to the examination.
In a substitute information, the defendant was
charged with strangulation in the second degree. The
jury found the defendant guilty. Following the verdict,
on May 2, 2016, the defendant filed a motion for a
judgment of acquittal, or, in the alternative, for a new
trial in the interest of justice. The court denied that
motion in its entirety. The defendant later was sen-
tenced on his conviction of strangulation in the second
degree to five years incarceration, execution suspended
after fifteen months, followed by three years of proba-
tion with special conditions. The defendant then filed
this appeal. Additional facts will be set forth as nec-
essary.
I
We begin with the defendant’s first claim, which chal-
lenges the sufficiency of the evidence to support his
conviction.
‘‘The standard of review employed in a sufficiency
of the evidence claim is well settled. [W]e apply a two
part test. First, we construe the evidence in the light
most favorable to sustaining the verdict. Second, we
determine whether upon the facts so construed and
the inferences reasonably drawn therefrom the [jury]
reasonably could have concluded that the cumulative
force of the evidence established guilt beyond a reason-
able doubt. . . .
‘‘While the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, each of the basic
and inferred facts underlying those conclusions need
not be proved beyond a reasonable doubt. . . . If it is
reasonable and logical for the jury to conclude that a
basic fact or an inferred fact is true, the jury is permitted
to consider the fact proven and may consider it in com-
bination with other proven facts in determining whether
the cumulative effect of all the evidence proves the
defendant guilty of all the elements of the crime charged
beyond a reasonable doubt.’’ (Internal quotation marks
omitted.) State v. Morel, 172 Conn. App. 202, 214, 158
A.3d 848, cert. denied, 326 Conn. 911, 165 A.3d 1252
(2017).
‘‘As we have often noted, however, proof beyond
a reasonable doubt does not mean proof beyond all
possible doubt . . . nor does proof beyond a reason-
able doubt require acceptance of every hypothesis of
innocence posed by the defendant that, had it been
found credible by the trier, would have resulted in an
acquittal. . . . On appeal, we 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 jury’s verdict of guilty. . . . Furthermore,
[i]t is immaterial to the probative force of the evidence
that it consists, in whole or in part, of circumstantial
rather than direct evidence.’’ (Internal quotation marks
omitted.) State v. Edwards, 325 Conn. 97, 136–37, 156
A.3d 506 (2017).
Section 53a-64bb (a) provides: ‘‘A person is guilty of
strangulation in the second degree when such person
restrains another person by the neck or throat with the
intent to impede the ability of such other person to
breathe or restrict blood circulation of such other per-
son and such person impedes the ability of such other
person to breathe or restricts blood circulation of such
other person.’’ Accordingly, ‘‘[t]o establish strangula-
tion in the second degree, the state must show that the
defendant restrained the victim by the neck or throat
with the intent to impede her ability to breathe, and
such impediment must have occurred.’’ State v. Linder,
172 Conn. App. 231, 239, 159 A.3d 697, cert. denied, 326
Conn. 902, 162 A.3d 724 (2017). The defendant argues
that the evidence was insufficient to prove either that he
had the intent to impede the victim’s ability to breathe
or to restrict her blood circulation, or that, while acting
with that intent, he actually impeded her ability to
breathe or restricted her circulation. We disagree.
The jury heard evidence that the defendant locked
his fingers into the victim’s trachea, and put his entire
hand around her neck and strangled her. The victim
also testified that, as a result of the defendant’s conduct,
she saw black, her body became totally lifeless and
she urinated herself. The victim stated that once the
defendant began to strangle her, she was unable to
breathe for between thirty and sixty seconds. As a
result, when the victim called Perez one hour later, her
voice sounded raspy. Later still, when Perez arrived at
the victim’s house, the victim told her that she was
having a very difficult time swallowing and that her
throat hurt too badly for her even to drink water. Both
Perez and Marcaccio saw red marks that appeared to
be consistent with fingerprints on the victim’s neck.
At the hospital, medical staff did not find crepitus,6
swelling, or difficulty breathing; the victim’s voice was
fine and her chest and neck X-rays were entirely normal;
and CT scans of her neck and chest revealed no bruis-
ing, normal glands and lungs, no fluid collection or
swelling, and no compromise of her airway. Even so, the
victim’s primary care physician testified that negative
findings on the examinations performed at the emer-
gency department are not unusual a couple of hours
after strangulation, depending on its severity.
Notwithstanding this evidence, the defendant claims
that ‘‘[m]edical and physical factors which have been
commonly used to sustain a conviction of strangulation
were not present’’ in this case. The defendant further
argues that he was ‘‘convicted on what amounts to a
modicum of evidence—essentially the [victim’s] testi-
mony and hearsay statements to Perez.’’ He claims that
the victim was not credible because there were discrep-
ancies between her testimony at trial and the statement
that she made to the police on the night of the incident,
and she had both a demonstrable bias against him and
‘‘a motive to fabricate the incident.’’7 The state counters
that argument by suggesting that the defendant ‘‘con-
fuses sufficiency with credibility.’’ We agree with the
state. ‘‘The arguments raised by the defendant on appeal
with regard to [the victim’s] credibility are arguments
that the defendant properly raised at trial. They were for
the [jury’s] consideration in determining what weight
to afford the [victim’s] credibility. . . . The [jury]
found the victim’s testimony credible . . . . Because
questions of whether to believe or to disbelieve a com-
petent witness are beyond our review, we reject the
defendant’s argument.’’ (Internal quotation marks omit-
ted.) State v. Liborio A., 93 Conn. App. 279, 285, 889
A.2d 821 (2006).
On the basis of the evidence presented, construed in
the light most favorable to sustaining the verdict, the
jury reasonably and logically could have concluded that
the defendant put his hand around the victim’s neck,
with the intent to render her unable to breathe, and,
while acting under that intent, squeezed her neck with
his fingers, thereby rendering her unable to breathe. On
that basis, we conclude that sufficient evidence existed
from which the jury could have found that the defendant
committed strangulation in the second degree beyond
a reasonable doubt.
II
We next turn to the defendant’s second claim chal-
lenging the trial court’s admission of the victim’s out-
of-court statements under the spontaneous utterance
exception to the rule against hearsay. Specifically, the
defendant challenges the testimony of Perez, who testi-
fied over objection that the victim stated, during the
victim’s telephone call to her on the evening of February
22, 2015, that ‘‘she was hurt, that [the defendant] had
strangled her.’’ The defendant argues that those state-
ments, allegedly made approximately one hour after
the incident, were not made under circumstances that
negated the opportunity for deliberation and fabrication
by the declarant.8 We disagree.
The following additional facts and procedural history
are relevant to the resolution of the defendant’s claim.
On the evening of February 22, 2015, as noted pre-
viously, the victim placed a call to Perez, her friend of
twenty-six years. At trial, the state called Perez to testify
regarding the statements the victim had made to her
during that call. In the presence of the jury, the following
colloquy occurred:
‘‘[The Prosecutor]: Drawing your attention to Febru-
ary 22 of 2015, did you or did you not get a telephone
call from [the victim] on that day?
‘‘[Perez]: Yes, I did.
‘‘[The Prosecutor]: Without getting into the content
of the phone call, how would you describe her during
the conversation?
‘‘[Perez]: Her voice sounded and the content of what
she was describing to me, she sounded fearful, very
anxious, her voice was raspy and as if—you can tell
when a person’s been through something or crying for
a bit, and she sounded like she was in pain, but she
sounded scared most of all.
‘‘[The Prosecutor]: Upset?
‘‘[Perez]: Very upset.
‘‘[The Prosecutor]: Distraught?
‘‘[Perez]: Very distraught.
‘‘[The Prosecutor]: Did she describe to you something
that had just recently happened?
‘‘[Perez]: Yes, she did.
‘‘[The Prosecutor]: Did she indicate when it had
happened?
‘‘[Perez]: Yes, she did.
‘‘[The Prosecutor]: And when had it happened?
‘‘[Perez]: It happened earlier—February 22, that same
day that I received the phone call, earlier that afternoon
when she arrived home from work, after she arrived
from work.
‘‘[The Prosecutor]: What did she say had happened
to her?
‘‘[Perez]: She—
‘‘[Defense Counsel]: Your Honor, we would object to
that pending—
‘‘The Court: All right.
‘‘[Defense Counsel]: —the—the answer.
‘‘The Court: On grounds?
‘‘[Defense Counsel]: Hearsay.
‘‘[The Prosecutor]: It’s a spontaneous utterance, Your
Honor. I think from both this witness and the first wit-
ness, we’ve established the basis for that.
‘‘The Court: All right. Overruled. . . .
‘‘[Perez]: She stated to me—she started retelling of
the incident earlier that—late afternoon after she had
arrived home from work at approximately, I would put
it at about 6, 6:30ish, that she had arrived home and
she had to shovel the driveway because no one had
done it, so she couldn’t pull in. And then she was also
retelling the story of the dog being thrown outside and
running out into the street almost getting hit by a car.
She stated that—even before all of that, she stated to
me that she was hurt, that [the defendant] had strangled
her. And she went on to explaining the details of what
was occurring, what had occurred.’’
‘‘Before we address the defendant’s claim, we set
forth the applicable legal principles. An out-of-court
statement offered to prove the truth of the matter
asserted is hearsay and is generally inadmissible unless
an exception to the general rule applies. . . . Among
the recognized exceptions to the hearsay rule is the
spontaneous utterance exception, which applies to an
utterance or declaration that: (1) follows some startling
occurrence; (2) refers to the occurrence; (3) is made
by one having the opportunity to observe the occur-
rence; and (4) is made in such close connection to the
occurrence and under such circumstances as to negate
the opportunity for deliberation and fabrication by the
declarant. . . . [T]he ultimate question is whether the
utterance was spontaneous and unreflective and made
under such circumstances as to indicate the absence
of opportunity for contrivance and misrepresentation.
. . . Whether an utterance is spontaneous and made
under circumstances that would preclude contrivance
and misrepresentation is a preliminary question of fact
to be decided by the trial judge. . . . The trial judge
exercises broad discretion in deciding this preliminary
question, and that decision will not be reversed on
appeal absent an unreasonable exercise of discretion.
. . .
‘‘To be admissible as a spontaneous utterance, [t]he
event or condition must be sufficiently startling so as
to produce nervous excitement in the declarant and
render [the declarant’s] utterances spontaneous and
unreflective. . . . In reviewing the defendant’s claim,
we bear in mind that whether a statement is truly spon-
taneous as to fall within the spontaneous utterance
exception [is] . . . reviewed with the utmost defer-
ence to the trial court’s determination.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Pugh,
176 Conn. App. 518, 523–24, 170 A.3d 710, cert. denied,
327 Conn. 985, 175 A.3d 43 (2017).
The defendant argues that the victim’s challenged
statements to Perez were not made under circum-
stances that negated the opportunity for deliberation
and fabrication because the victim ‘‘purportedly made
the statement[s] . . . as much as an hour after the inci-
dent,’’ during which time she could have reflected on
the event. In making his argument, the defendant refers
us to a number of cases in which statements admitted
as spontaneous utterances were made within one-half
hour of the occurrences to which they referred9 and
urges us to draw the conclusion that one hour in this
case was too long a period for the utterances to be
spontaneous. The defendant’s reliance on those cases
for that purpose is misplaced.
‘‘In determining whether a declaration is admissible
as a spontaneous utterance, the court should look at
various factors, including [t]he element of time, the
circumstances and manner of the [occurrence], the
mental and physical condition of the declarant, the
shock produced, the nature of the utterance, whether
against the interest of the declarant or not, or made in
response to question, or involuntary, and any other
material facts in the surrounding circumstances . . . .’’
(Internal quotation marks omitted.) State v. Daley, 161
Conn. App. 861, 884, 129 A.3d 190 (2015), cert. denied,
320 Conn. 919, 132 A.3d 1093 (2016). ‘‘The relation of
the utterance in point of time to the . . . occurrence,
while an important element to be considered in
determining whether there has been opportunity for
reflection, is not decisive. . . . Instead, [t]he overarch-
ing consideration is whether the declarant made the
statement before he or she had the opportunity to
undertake a reasoned reflection of the event described
therein.’’ (Citation omitted; internal quotation marks
omitted.) Id. ‘‘[W]e follow the rule embraced by the
majority of jurisdictions that have addressed the issue
of the effect of the time interval between the startling
occurrence and the making of the spontaneous utter-
ance, and conclude that there is no identifiable discrete
time interval within which an utterance becomes spon-
taneous; [e]ach case must be decided on its particular
circumstances.’’ (Internal quotation marks omitted.)
State v. Kirby, 280 Conn. 361, 375, 908 A.2d 506 (2006).
Here, although there was a break in time between
when the defendant strangled the victim and when the
victim placed a call to Perez, she made the call after
she had ordered the defendant to leave but he was still
standing in her driveway, ‘‘going back and forth . . . .’’
Perez testified that during the call the victim sounded
fearful, anxious and in pain. The trial court did not
abuse its discretion in concluding that the victim was
still under the stress of the situation to which her state-
ments related when she placed the call and made the
statements, and thus that the statements were admissi-
ble as spontaneous utterances.
The defendant also argues that the statements should
not have been admitted as spontaneous utterances
because the victim spoke to Mayo on the phone before
calling Perez. He cites to State v. Gregory C., 94 Conn.
App. 759, 771–72, 893 A.2d 912 (2006), for the proposi-
tion that a statement is not admissible as a spontaneous
utterance when the declarant spoke at length with a
third party before making the statement. In Gregory
C., the defendant claimed that the trial court erred in
admitting, as spontaneous utterances, certain state-
ments the victim made to a police officer the day after
she claimed to have been sexually assaulted. Id., 769.
The defendant argued that both the length of the delay
between the alleged assault and the making of the chal-
lenged statements, and the fact that the victim had
discussed the alleged assault with a close friend in the
interim, made the statements inadmissible under the
spontaneous utterance exception to the hearsay rule.
Id., 771. This court agreed with the defendant, holding
that the trial court erred in admitting the statements
as spontaneous utterances because ‘‘more than fifteen
hours had passed between the time of the alleged sexual
assault and the victim’s statement to [the police] . . .
[and] the victim discussed her alleged assault at length
with [her friend] prior to giving her statement.’’ Id.,
771–72. The exception did not apply to the victim’s
statements because the victim had ‘‘had considerable
time and opportunity to collect her thoughts and reflect
on what had occurred the night before.’’ Id., 772. Greg-
ory C. is readily distinguishable from this case. Here,
although the victim called Mayo before she called Perez,
she did so within one hour of her alleged strangulation
while the defendant was still outside her home. Under
those circumstances, the court reasonably could have
determined that, during her conversation with Perez,
the victim was still experiencing such shock from being
strangled by the defendant and such fear due to his
continuing presence outside her home, as to deprive
her of the opportunity to collect her thoughts or reflect
on the incident before making the challenged
statements.
Accordingly, we conclude that the trial court’s admis-
sion, under the spontaneous utterance exception to the
hearsay rule, of Perez’ testimony regarding the victim’s
out-of-court statements to her about her strangulation
by the defendant was not ‘‘an unreasonable exercise of
discretion.’’ (Internal quotation marks omitted.) State
v. Pugh, supra, 176 Conn. App. 524.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of a
person protected under a standing criminal protective order, we decline to
identify the protected person or others through whom the protected person’s
identity may be ascertained.
2
At trial, the victim testified that the defendant had thrown the dog. In
the report she gave to the police that night, the victim said the defendant
let the dog out, but did not indicate that he had thrown the dog.
3
Trooper Kenneth Poplawski also responded and stood in the driveway
with Marsh and the defendant.
4
The victim did not tell Marcaccio that she had blacked out or urinated
herself during the incident.
5
The defendant originally was charged with disorderly conduct in violation
of General Statutes § 53a-182 (a), assault in the third degree in violation of
General Statutes § 53a-61 and strangulation in the second degree in violation
of § 53a-64bb.
6
Dr. McPhee testified that crepitus is a ‘‘rupture or . . . an air leak under
the tissues’’ and that it is tested for by putting pressure on the area to move
air bubbles around, which makes a distinctive noise.
7
Specifically, the defendant argues that the victim’s motive was demon-
strated by text messages introduced at trial that the victim sent to the
defendant. The victim testified that the defendant went to Massachusetts
on February 18, 2015, and did not return to her house at the time he had
indicated to her that he would. The defendant argues on appeal that the
series of text messages shown to the victim on cross-examination, including:
‘‘You took all you needed in your sleepover bag, didn’t tell me either, so
that is [four] lies!!!’’ ‘‘You got [your] sleepover bag, your taxes, your bitch,
have a great life,’’ and, ‘‘You have done me wrong for the very last time. I
promise you that. . . . [Y]ou are not able to come by or have any contact
with me or anything that pertains to me, surrounds me. I have the state
police restraining order on you,’’ were all sent on February 18, 2015, and
indicate that ‘‘the [victim] forged a plan to have the defendant arrested four
days prior to the incident . . . .’’
8
The defendant also argues that the admittance of the statements was
harmful error of a constitutional magnitude. Because we find no error, we
decline to address the defendant’s claim.
9
See State v. Kirby, 280 Conn. 361, 377, 908 A.2d 506 (2006) (‘‘[m]oreover,
all of the statements at issue were made within one-half hour of the complain-
ant having arrived home from her multihour altercation with the defendant,
which our cases indicate is not an excessive time lapse for purposes of
avoiding contrivance or fabrication by an alleged victim’’); State v. Stange,
212 Conn. 612, 620, 563 A.2d 681 (1989) (‘‘In the present case, the record
indicates that the victim’s statements were made approximately fifteen to
thirty minutes after a shooting that inflicted serious wounds. . . . There is
nothing in the record to suggest that the victim, at the time he made the
statements, was no longer under the influence of the stress and excitement
of being shot.’’); and State v. Arluk, 75 Conn. App. 181, 190, 815 A.2d 694
(2003) (‘‘it was not an abuse of discretion for the court to admit the . . .
statement, which was made twenty to thirty minutes after the events that
had occurred’’).