State v. Perugini ( 2014 )

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STATE OF CONNECTICUT v. ROBERT PERUGINI
(AC 35086)
Keller, Mullins and Bear, Js.
Argued September 26—officially released November 25, 2014
(Appeal from the Superior Court, judicial district of
Litchfield, Danaher, J.)
Norman A. Pattis, with whom, on the brief, was A.
Paul Spinella, for the appellant (defendant).
Ryan M. Budd, certified legal intern, with whom were
Bruce R. Lockwood, senior assistant state’s attorney,
and, on the brief, David S. Shepack, state’s attorney,
and David R. Shannon, senior assistant state’s attorney,
for the appellee (state).
Opinion
KELLER, J. The defendant, Robert Perugini, appeals
from the judgment of conviction, rendered after a jury
trial, of assault in the second degree in violation of
General Statutes § 53a-60 (a) (1). On appeal, the defen-
dant claims that there is insufficient evidence to sustain
the jury’s verdict. We affirm the judgment of the trial
court.
The following facts, which a jury reasonably could
have found, and procedural history are relevant to this
appeal. On the night of December 8, 2009, the defendant
was at the Farmington home of his former fiance´e,
Dawn Barry, while Robert Ciochetti, the victim, was
working at the Red Rooster Saloon, a bar located in
Winsted. The defendant and the victim had co-owned
and operated the bar since the summer of 2007. At some
point in the evening, the defendant told Barry to call
the victim at the bar and ask him to leave his key to
the bar under the doormat for a bartender to use the
following morning. Barry called the victim and asked
him to leave the key, but the victim refused to do so,
shouted profanities at Barry, and hung up the phone.
The defendant overheard the victim’s exchange with
Barry. She attempted to call him back, but the victim
did not answer. Angered by the victim’s response to
Barry’s phone call, the defendant left Barry’s home and
drove his truck to the bar.
Between twenty and thirty minutes later, the defen-
dant arrived at the bar. There were four individuals
inside the bar at the time that the defendant entered.
Two patrons, Jeffrey Calkins and Brett Flaherty, sat at
the serving bar located to the right of the entrance. A
third patron, Alison Welcome, stood near a jukebox
located at the back of the bar across from the entrance.
The victim was mopping the floor near the restrooms
located at the back of the bar in the area of the jukebox.
The defendant, using a profanity, yelled that the bar was
closed and ordered the patrons to leave. The defendant
then threw one beer bottle at a wall near the victim,
shattering it, and broke another beer bottle near the
serving bar.
Afterward, without provocation, the defendant, who
was five feet, ten and one-half inches tall and weighed
approximately 250 pounds, approached the victim, who
was approximately five feet, seven inches tall and
weighed approximately 160 pounds, and choked him
against a wall nearby where the victim had been stand-
ing.1 During the ensuing attack, the defendant picked
up the victim and slammed him into a heavy wooden
table that was attached to a nearby wall, snapping the
table away from the braces attaching it to the wall due
to the force of the slam. The defendant then left the
bar and drove away in his truck. The attack on the
victim lasted approximately sixty seconds.
As the defendant was leaving the bar, Calkins, who
was standing outside by that time, called 911. After
completing the call and observing the defendant drive
away, Calkins reentered the bar by himself to check on
the victim’s condition. The victim appeared to be in a
semiconscious state and could not respond intelligibly
to any questions Calkins asked.
After receiving a dispatch regarding the attack, Offi-
cer Scott Twombly of the Winchester Police Depart-
ment2 arrived at the bar simultaneously with two other
officers and found the victim lying on the floor with
Calkins standing nearby. The victim was unable to
answer the simple questions that the officers asked,
and had a large, growing hematoma on the back of
his head.3 The officers called an ambulance, which
transported the victim to Charlotte Hungerford Hospital
in Torrington.
The victim was treated at the hospital by Jarrett Lefb-
erg, an emergency physician. Following medical exami-
nations, Lefberg concluded that the victim had suffered,
among other things, a basilar skull fracture. Lefberg
then transferred the victim to Hartford Hospital, where
he spent four days in the critical care unit.
The defendant was arrested and charged in the substi-
tute long form information with assault in the first
degree in violation of General Statutes § 53a-59 (a) (1).
On June 6, 2012, a jury found the defendant not guilty
of assault in the first degree, but found the defendant
guilty of assault in the second degree as a lesser
included offense.4 The defendant was sentenced to five
years incarceration, execution suspended after three
years, followed by three years of probation with various
conditions. This appeal followed. Additional facts will
be set forth as necessary.
The defendant claims that the evidence is insufficient
to sustain the jury’s verdict. Specifically, the defendant
claims that the evidence fails to prove beyond a reason-
able doubt that he intended to cause serious physical
injury to the victim, as required under § 53a-60 (a) (1).5
We disagree.
We begin by setting forth the relevant standard of
review. ‘‘The standard of review employed in a suffi-
ciency 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. . . . This court cannot substitute its own
judgment for that of the jury if there is sufficient evi-
dence to support the jury’s verdict.’’ (Internal quotation
marks omitted.) State v. Elsey, 81 Conn. App. 738, 743–
44, 841 A.2d 714, cert. denied, 269 Conn. 901, 852 A.2d
733 (2004).
‘‘[Although] 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. . . .
Moreover, it does not diminish the probative force of
the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
It is not one fact, but the cumulative impact of a multi-
tude of facts which establishes guilt in a case involving
substantial circumstantial evidence. . . . In evaluating
evidence, the [jury] is not required to accept as disposi-
tive those inferences that are consistent with the defen-
dant’s innocence. . . . The [jury] may draw whatever
inferences from the evidence or facts established by
the evidence it deems to be reasonable and logical.’’
(Internal quotation marks omitted.) State v. Davis, 283
Conn. 280, 329–30, 929 A.2d 278 (2007). ‘‘[A]lthough it
is within the province of the jury to draw reasonable,
logical inferences from the facts proven, they may not
resort to speculation and conjecture.’’ (Internal quota-
tion marks omitted.) State v. Smith, 185 Conn. 63, 71,
441 A.2d 84 (1981).
‘‘Finally . . . proof beyond a reasonable doubt does
not mean proof beyond all possible doubt . . . nor
does proof beyond a reasonable doubt require accep-
tance of every hypothesis of innocence posed by the
defendant that, had it been found credible by the [jury],
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 reason-
able view of the evidence that supports the [jury’s]
verdict of guilty.’’ (Internal quotation marks omitted.)
State v. Davis, supra, 283 Conn. 330.
To find the defendant guilty of assault in the second
degree, the jury had to find, beyond a reasonable doubt,
that (1) the defendant intended to cause serious physi-
cal injury to the victim, and (2) the defendant actually
caused serious physical injury to the victim. General
Statutes § 53a-60 (a) (1).6
For the purposes of § 53a-60 (a) (1), ‘‘serious physical
injury’’ is defined 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 (4). The defendant does
not contest the jury’s implicit finding that the basilar
skull fracture suffered by the victim was a serious physi-
cal injury, or that the incident between the defendant
and the victim caused the victim’s injury. The defen-
dant’s sole claim is that the evidence was insufficient
to prove that he intended to cause serious physical
injury to the victim. He maintains that the victim’s injury
was accidental.
A person acts with the requisite intent under § 53a-
60 (a) (1) when that person’s ‘‘conscious objective’’ is
to cause serious physical injury.7 General Statutes § 53a-
3 (11). ‘‘The state of mind of one accused of a crime is
often the most significant and, at the same time, the
most elusive element of the crime charged. . . . [Con-
sequently,] absent an outright declaration of intent, a
person’s state of mind is usually proven by circumstan-
tial evidence.’’ (Internal quotation marks omitted.) State
v. Gombert, 80 Conn. App. 477, 497, 836 A.2d 437 (2003),
cert. denied, 267 Conn. 915, 841 A.2d 220 (2004). Intent
may be inferred from the accused’s conduct before,
during, and after an alleged crime. State v. Wells, 100
Conn. App. 337, 344, 917 A.2d 1008, cert. denied, 282
Conn. 919, 925 A.2d 1102 (2007). In addition, the jury
can infer ‘‘that the [accused] intended the natural conse-
quences of his [or her] actions.’’ State v. McRae, 118
Conn. App. 315, 320, 983 A.2d 286 (2009).
The defendant claims that the evidence was insuffi-
cient for the jury to find that he intended to cause
serious physical injury to the victim. He primarily relies
on his own testimony at trial to create an alternate
narrative for the incident at the bar and to argue that
the jury’s verdict was the result of improper conjecture
and speculation. The defendant’s version of the incident
is as follows. The defendant ‘‘wasn’t happy’’ with the
victim following the victim’s conversation with Barry,
and he drove to the bar in order to remove the bar’s
liquor license from the wall, shut the bar down, and
inquire as to why the victim refused to leave the bar’s
key for the bartender. After yelling an expletive and
throwing at least one beer bottle upon his arrival, he
approached the victim merely to take his key so that
he could shut the bar down. The victim pushed him
and grabbed him by his shirt as he approached, leading
to a struggle during which they both slipped on the
floor that the victim had been mopping. The victim then
fell into the table. After noticing that the table had
broken off the wall and was lying on top of the victim,
the defendant flipped the table off of the victim and
checked on his condition. According to the defendant,
the victim continued to argue cogently with him for
about a minute or two, after which the defendant left
the bar to put the liquor license in his truck. The defen-
dant went back inside the bar and remained there for
another minute or two, continuing to argue with the
victim. He then left the bar and returned to Barry’s
home under the impression that the victim did not have
any significant injuries.
Although the defendant’s testimony offers a different
account of the incident and its surrounding circum-
stances, it is not the role of this court to weigh the
evidence or examine the credibility of witnesses. State
v. Bunkley, 202 Conn. 629, 644, 522 A.2d 795 (1987).
‘‘[Q]uestions of whether to believe or to disbelieve a
competent witness are beyond our review. As a
reviewing court, we may not retry the case or pass on
the credibility of witnesses. . . . We must defer to the
[jury’s] assessment of the credibility of the witnesses
that is made on the basis of [the jury’s] firsthand obser-
vation of their conduct, demeanor and attitude.’’ (Inter-
nal quotation marks omitted.) State v. Saez, 115 Conn.
App. 295, 305, 972 A.2d 277, cert. denied, 293 Conn. 909,
978 A.2d 1113 (2009). Our task is to determine whether
the jury reasonably could have construed the evidence,
in its totality, to find that the defendant intended to
inflict serious physical injury on the victim. See, e.g.,
id., 304–305 (evidence sufficient for larceny conviction
despite fact that defendant’s testimony conflicted with
other testimony supporting verdict).
Here, viewing the evidence in the light most favorable
to sustaining the jury’s verdict, we conclude that the
jury reasonably could have found that the defendant
intended to cause serious physical injury to the victim.
The defendant and Barry testified that the victim had
shouted and cursed at Barry when she called regarding
the key to the bar. Barry testified that the defendant
‘‘[w]asn’t happy’’ about the victim’s exchange with her,
and the defendant testified that he was both ‘‘angry’’
and ‘‘wasn’t happy’’ about the victim’s comments. In
addition, the defendant testified that he drove between
twenty and thirty minutes before arriving at the bar.
Barry testified that it usually took around forty-five
minutes to drive from her home in Farmington to the
bar in Winsted. The jury reasonably could have used
the foregoing evidence to conclude that the defendant
was upset about the victim’s exchange with Barry and
was angrily speeding to the bar to confront the victim.
The evidence further indicated that, upon entering
the bar, the defendant yelled an expletive, ordered the
patrons at the bar to leave, and threw beer bottles,
including one that shattered near the victim. The victim
testified that one bottle hit him in the chest. According
to the testimony of Calkins, who observed part of the
incident, the defendant walked up to the victim, choked
him against a wall, picked him up, and slammed him
into a heavy wooden table, causing the table to break
away from the braces holding it to a wall. The victim
testified that he could not remember being slammed
into a table, but asserted that the defendant had
punched him in the eye, causing his head to hit the wall
behind him, and had hit him with a mop handle. Calkins,
as well as Welcome, also testified that the defendant
left the bar following the incident and immediately
drove away in his truck, leaving the victim unattended
inside. There was no evidence that the defendant took
any steps to summon medical assistance or otherwise
provide aid to the victim. The jury reasonably could
have inferred from the cumulative impact of the evi-
dence, including the defendant’s reaction to the victim’s
phone conversation with Barry, the manner in which
he drove to the bar, his violent conduct once he entered
the bar, and the circumstances of his departure from
the bar, that the defendant intended to cause serious
physical injury to the victim.
The defendant presents a few additional arguments
worth addressing. The defendant argues that it was not
physically possible for him to lift the victim and throw
him into the table. Therefore, according to the defen-
dant, he could not have intended to perform such a
maneuver or caused the victim’s serious physical injury
in that manner. The defendant testified that his back
was partially disabled, making it impossible for him to
throw the victim onto the table. The defendant, how-
ever, did not offer any medical evidence of his alleged
disability. The jury also reasonably could have credited
testimony of the defendant and Barry that the defendant
regularly exercised and lifted weights, undermining his
testimony about his alleged disability. Furthermore,
Calkins testified that the defendant lifted and slammed
the victim into the table, which the jury reasonably
could have credited.
In addition, the defendant testified that a mounted
deer head was positioned directly over the table on
which the victim landed, making it impossible for the
defendant to have picked him up and slammed him into
the table. The jury, however, viewed a picture of the
mounted deer head hanging over the spot where the
table previously was located and heard testimony from
Calkins stating that the defendant slammed the victim,
at some uncertain angle, into the table. The jury reason-
ably could have discredited the defendant’s testimony
in favor of Calkins’ testimony, after examining the
image of the mounted deer head, and found that the
defendant lifted and slammed the victim into the table.
Next, the defendant argues that the evidence did not
indicate precisely whether the victim’s serious physical
injury was caused by the wall, the table, or the floor
of the bar. The defendant asserts that the jury must
have speculated as to the cause of the injury and there-
fore could not have reasonably inferred that the defen-
dant intended to cause serious physical injury to the
victim. The state did not, however, have to prove that a
precise instrument or object directly caused the victim’s
serious physical injury to meet its burden of proof on
the assault in the second degree charge.8 The state’s
burden was only to prove that the defendant intended
to inflict serious physical injury on the victim, and that
he did so; these findings were supported by the evi-
dence. The jury may infer that an accused individual
intended the natural consequences of his or her actions.
State v. McRae, supra, 118 Conn. App. 320.
The jury had before it ample evidence to support an
inference that the victim sustained a serious physical
injury by striking the table, the floor, or the wall. By
crediting Calkins’ testimony, the jury reasonably could
have inferred that the victim suffered a serious physical
injury when he landed on the table, or that he suffered
it thereafter when he struck the floor following the
defendant’s initial attack. By crediting the victim’s testi-
mony, the jury reasonably could have inferred that he
suffered a serious physical injury when the defendant
punched him in the eye, causing his head to hit the wall
behind him. According to the defendant’s own medical
expert, J. Allen Britvan, an emergency physician, an
individual will sustain a basilar skull fracture by being
struck in the head with an adequate amount of force
‘‘in the right spot.’’ Therefore, the jury reasonably could
have concluded that the defendant intended to cause
the victim’s serious physical injury because it was a
natural consequence of the defendant’s actions, namely,
an attack on the victim during which he struck the wall,
the table, or the floor.
For the foregoing reasons, we conclude that the
cumulative force of the evidence amply supports the
verdict.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Some patrons of the bar referred to the defendant as ‘‘Big Bob’’ and the
victim as ‘‘Little Bob.’’
2
Twombly explained that ‘‘the city of Winstead is located within the town
of Winchester.’’
3
The victim was asked if he knew the day of the week, the time of day,
and where he was located.
4
According to our Supreme Court in State v. Whistnant, 179 Conn. 576,
588, 427 A.2d 414 (1980), ‘‘[a] defendant is entitled to an instruction on a
lesser offense if . . . the following conditions are met: (1) an appropriate
instruction is requested by either the state or the defendant; (2) it is not
possible to commit the greater offense, in the manner described in the
information or the bill of particulars, without having first committed the
lesser; (3) there is some evidence, introduced by either the state or the
defendant, or by a combination of their proofs, which justifies conviction
of the lesser offense; and (4) the proof on the element or elements which
differentiate the lesser offense from the offense charged is sufficiently in
dispute to permit the jury consistently to find the defendant [not guilty] of
the greater offense but guilty of the lesser.’’
5
General Statutes § 53a-60 provides in relevant part: ‘‘(a) A person is
guilty of assault in the second 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 . . . .’’
6
In its charge to the jury, the court explained that the jury could consider
whether to find the defendant guilty of assault in the second degree as a
lesser included offense if it found the defendant not guilty of assault in the
first degree. The court further explained that the jury could find the defen-
dant guilty of assault in the second degree either by finding that the defendant
caused serious physical injury to the victim with the intent to cause serious
physical injury under § 53a-60 (a) (1), or, alternatively, by finding that the
defendant recklessly caused serious physical injury to the victim by means
of a dangerous instrument under § 53a-60 (a) (2).
After the jury returned its verdict of not guilty as to the assault in the
first degree charge, the court clerk proceeded to ask the jury the following:
‘‘Of the lesser included offense of assault in the second degree with intent
to cause serious physical injury and the defendant causes serious physical
injury, do you find the defendant guilty or not guilty?’’ In response to that
specific charge, the jury foreperson answered, ‘‘Guilty.’’ When the court
clerk polled the jury to confirm that it found the defendant guilty of that
specific charge, the jurors, in unison, replied, ‘‘Yes.’’ The court clerk did
not reference the alternative method of finding that the defendant committed
assault in the second degree through the reckless use of a dangerous instru-
ment. Neither the prosecution nor the defense counsel offered any objection
to the manner in which the court clerk presented the charge to the jury.
Because the jury specifically found the defendant guilty under § 53a-60
(a) (1), we do not apply the general verdict rule and consider whether the
evidence is sufficient to support a conviction based on any of the statutory
grounds in § 53a-60. See State v. Sanko, 62 Conn. App. 34, 40, 771 A.2d 149,
cert. denied, 256 Conn. 905, 772 A.2d 559 (2001). Instead, we treat the verdict
as a finding of guilt by the jury of an intentional assault in the second degree
under § 53a-60 (a) (1).
7
Assault in the second degree under § 53a-60 (a) (1) is a specific intent,
rather than a general intent, crime. See State v. McColl, 74 Conn. App. 545,
577, 813 A.2d 107, cert. denied, 262 Conn. 953, 818 A.2d 782 (2003).
8
The long form information charging the defendant with assault in the
first degree identified ‘‘a heavy wooden table’’ as the dangerous instrument
intentionally used by the defendant to cause the victim’s serious physical
injury. The state was not constrained to prove that the defendant intention-
ally used a heavy wooden table to cause serious physical injury to the victim
on the lesser included offense of assault in the second degree, as the use
of a dangerous instrument is not an element of § 53a-60 (a) (1). Setting aside
double jeopardy concerns, even if the state also had charged the defendant
with assault in the second degree in the long form information, and specifi-
cally referenced a heavy wooden table in describing the manner in which
the defendant committed the offense, the state would not have been bound
to prove that the defendant intentionally caused serious physical injury to
the victim by means of the table. ‘‘Our case law makes clear that the require-
ment that the state be limited to proving an offense in substantially the
manner described in the information is meant to assure that the defendant
is provided with sufficient notice of the crimes against which he must defend.
As long as this notice requirement is satisfied, however, the inclusion of
additional details in the charge does not place on the state the obligation
to prove more than the essential elements of the crime.’’ (Emphasis in
original; internal quotation marks omitted.) State v. Vere C., 152 Conn. App.
486, 527, 98 A.3d 884 (2014).