State v. Daniels , 191 Conn. App. 33 ( 2019 )

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STATE OF CONNECTICUT v. PATRICIA DANIELS
(AC 40321)
Lavine, Bright and Bear, Js.
Syllabus
Convicted, after a jury trial, of the crimes of, inter alia, reckless manslaughter
in the first degree and misconduct with a motor vehicle, which involves
the criminally negligent operation of a motor vehicle, the defendant
appealed to this court. The defendant’s conviction stemmed from an
incident in which her vehicle hit the victim’s vehicle, causing it to hit
a tree, which resulted in the victim’s death. The jury also had found the
defendant guilty of intentional manslaughter in the first degree, but the
court vacated her conviction of that charge at sentencing. On appeal,
the defendant claimed that the jury’s verdicts were legally inconsistent
in that each of the alleged crimes required a mutually exclusive mental
state and that the trial court erred when it failed to exclude certain
testimonial hearsay. Held:
1. The defendant could not prevail on her claim that the jury’s guilty verdicts
on the charges of intentional and reckless manslaughter were legally
inconsistent because they required findings that the defendant simulta-
neously acted intentionally and recklessly with respect to one act and
one alleged victim; in finding the defendant guilty of both intentional
and reckless manslaughter, the jury reasonably could have found that
the defendant specifically intended to cause serious physical injury to
the victim, which satisfied the mental state required for intentional
manslaughter, and that, in doing so, she consciously disregarded a sub-
stantial and unjustifiable risk that her actions created a grave risk of
death to the victim, which satisfied the mental state required for reckless
manslaughter, and, therefore, because the guilty verdicts on the charges
of intentional and reckless manslaughter required findings that the defen-
dant simultaneously acted intentionally and recklessly with respect to
different results, the verdicts were not legally inconsistent.
2. The defendant could not prevail on her claim that the mental states
required for the crimes of intentional manslaughter and criminally negli-
gent operation of a motor vehicle were mutually exclusive and that the
guilty verdicts on those charges were legally inconsistent, as the mental
states required for each crime were not mutually exclusive; the defen-
dant could have intended to cause serious physical injury to the victim,
as required for intentional manslaughter, while, at the same time, failing
to perceive a substantial and unjustifiable risk that the manner in which
she operated her vehicle would cause the victim’s death, as required
for criminally negligent operation of a motor vehicle, and, thus, the
mental state elements for each crime did not relate to the same result.
3. The jury’s guilty verdicts as to the crimes of reckless manslaughter and
criminally negligent operation of a motor vehicle were legally inconsis-
tent: although the state claimed on appeal that the jury could have viewed
the defendant’s two strikes of the victim’s vehicle each as separate acts,
it never made that argument to the jury and, instead, argued that the
strikes constituted one continuous act, and, thus, it was bound by the
theory it had presented to the jury, and the mental state element for
each crime was mutually exclusive when examined under the facts and
theory of the state argued at trial, as the defendant could not have
consciously disregarded a substantial and unjustifiable risk that her
actions would cause the victim’s death, as required for reckless man-
slaughter, while simultaneously failing to perceive a substantial and
unjustifiable risk that her actions would cause the victim’s death, as
required for criminally negligent operation of a motor vehicle; accord-
ingly, because the mental state elements for each crime related to the
same result, the verdicts were legally inconsistent, and a new trial on
those charges was necessary; furthermore, this court declined the state’s
request to reinstate the intentional manslaughter conviction but, rather,
consistent with the defendant’s request for a retrial on the three charges
of intentional and reckless manslaughter, and criminally negligent opera-
tion of a motor vehicle, the case was remanded for a new trial on
those charges.
4. The defendant’s unpreserved claim that the trial court erred when it failed
to exclude certain testimonial hearsay was not reviewable, as it failed
under the second prong of State v. Golding (213 Conn. 233) in that the
admission of an out-of-court statement for purposes other than its truth
raised no confrontation clause issue and was not of a constitutional
magnitude; the statement at issue—that a vehicle in photographs
obtained by the police was a certain newer model—was not hearsay
because it was not offered for the truth of the matter asserted, that the
vehicle was a certain newer model but, rather, was offered to show its
effect on the listener, a police officer, and to demonstrate the route that
the police took in deciding to obtain a list of certain vehicles and in
conducting their investigation, which included investigating fifteen
model years of two vehicle models and not just a certain newer model.
Argued March 4—officially released July 2, 2019
Procedural History
Substitute information charging the defendant with
two counts of the crime of manslaughter in the first
degree, and with the crimes of misconduct with a motor
vehicle, risk of injury to a child, and evasion of responsi-
bility in the operation of a motor vehicle, brought to
the Superior Court in the judicial district of Fairfield,
geographical area number two, and tried to the jury
before Kavanewsky, J.; verdict and judgment of guilty;
thereafter, the court vacated the conviction as to one
count of manslaughter in the first degree, and the defen-
dant appealed to this court. Reversed in part; further
proceedings.
Laila M. G. Haswell, senior assistant public defender,
for the appellant (defendant).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Marc R. Durso, senior assistant state’s
attorney, for the appellee (state).
Opinion
BRIGHT, J. The defendant, Patricia Daniels, appeals
from the judgment of conviction, rendered by the trial
court following a jury trial, of manslaughter in the first
degree in violation of General Statutes § 53a-55 (a) (3)
(reckless manslaughter) and misconduct with a motor
vehicle in violation of General Statutes § 53a-57 (a)
(criminally negligent operation).1 The defendant also
had been convicted of manslaughter in the first degree
in violation of § 53a-55 (a) (1) (intentional manslaugh-
ter), but at sentencing the trial court vacated her convic-
tion of that charge. On appeal, the defendant claims
that (1) the jury’s verdict was legally inconsistent
because each of these crimes requires a mutually exclu-
sive mental state, and (2) the court erred in failing to
exclude testimonial hearsay. We agree that the verdict
is legally inconsistent, and, therefore, we reverse in part
the judgment of the trial court.
The following facts, as reasonably could have been
found by the jury, are relevant to this appeal. The victim,
Evelyn Agyei, left her Bridgeport home at approxi-
mately 6 a.m. on December 4, 2014. Her eleven year
old son accompanied her. Agyei and her son got into
her Subaru Outback (Subaru), Agyei driving and her son
in the back seat on the passenger’s side. After traversing
some back roads, they took Bond Street and arrived at
the intersection of Bond Street and Boston Avenue.
Agyei stopped at the red light and then proceeded to
make a right turn onto Boston Avenue, staying in the
right lane. As she was making the right turn, her son
looked to the left and saw a white BMW sport utility
vehicle (BMW) approximately two streets down, travel-
ing at a high rate of speed in the left lane.
After Agyei got onto Boston Avenue, the driver of
the BMW pulled alongside Agyei’s vehicle. Agyei’s son
saw the BMW logo on the hood; however, he could not
see the driver or the license plate. The driver of the
BMW then moved into the right lane, hitting Agyei’s
Subaru once on the driver’s side and causing her to
begin to lose control of the vehicle. The driver of the
BMW then moved behind the Subaru and ran into it
from behind, causing the vehicle to cross the median,
proceed under a fence, and hit a tree. Tragically, Agyei
died from her injuries, and her son, who also was
injured, continues to have vision problems as a result
of the injuries he sustained.
After an investigation, which included obtaining a
video of the incident from a nearby high school that
had surveillance cameras in the area, the police, having
concluded that the defendant was the driver of the
BMW that hit the Subaru, causing Agyei’s death and
the injuries to Agyei’s son, arrested the defendant.2 Ulti-
mately, she was charged, in a long form information,
with, inter alia, intentional manslaughter, reckless man-
slaughter, and criminally negligent operation of a motor
vehicle; the jury found her guilty of these charges,
among others. See footnote 1 of this opinion. The court
accepted the jury’s verdicts and rendered judgment
accordingly. On the date of sentencing, upon the request
of the state,3 the court vacated the defendant’s convic-
tion of intentional manslaughter, and it, thereafter, sen-
tenced the defendant to twenty years incarceration,
execution suspended after sixteen years, with five years
of probation.4 The defendant raises two claims on
appeal—(1) the jury’s verdicts of guilty on the crimes
of intentional and reckless manslaughter and criminally
negligent operation were legally inconsistent because
each of these crimes requires a mutually exclusive men-
tal state, and (2) the court erred in failing to exclude
testimonial hearsay—and requests that we reverse the
judgment of the trial court and order a new trial on all
charges and, alternatively, on the charges of intentional
manslaughter, reckless manslaughter, and criminally
negligent operation. Additional facts will be set forth
as necessary.
I
INCONSISTENT VERDICTS
The defendant first claims that the jury’s verdicts on
the counts of intentional manslaughter, reckless man-
slaughter, and criminally negligent operation were
legally inconsistent because they each require a mutu-
ally exclusive mental state.5 She argues that it was logi-
cally impossible for the defendant to have possessed
three forms of intent, simultaneously, for a single act,
involving a single victim. The defendant explains that,
at trial, the state’s theory of the case was that her action
in twice hitting Agyei’s vehicle was one single act, which
caused Agyei’s death. She argues that the state tried
the case under the theory that each of the three relevant
counts of the information were charged in the alterna-
tive, one being intentional, one reckless, and one negli-
gent. She contends that the fact that the jury found her
guilty of all three charges, each requiring a different
mental state, and that the state, thereafter, requested
that the court vacate the intentional manslaughter con-
viction, demonstrates that the verdicts were legally
inconsistent. After setting forth our standard of review
and the general legal principles involved, we will con-
sider the relevant mental element of each of these
crimes in order to ascertain whether convictions of all
three crimes would be legally inconsistent.
‘‘It is well established that factually inconsistent ver-
dicts are permissible. [When] the verdict could have
been the result of compromise or mistake, we will not
probe into the logic or reasoning of the jury’s delibera-
tions or open the door to interminable speculation. . . .
Thus, claims of legal inconsistency between a convic-
tion and an acquittal are not reviewable [on appeal].
. . . We employ a less limited approach, however,
when we are confronted with an argument that [two
or more convictions] are inconsistent as a matter of
law or when the [convictions] are based on a legal
impossibility. . . . A claim of legally inconsistent con-
victions, also referred to as mutually exclusive convic-
tions, arises when a conviction of one offense requires
a finding that negates an essential element of another
offense of which the defendant also has been convicted.
. . . In response to such a claim, we look carefully
to determine whether the existence of the essential
elements for one offense negates the existence of [one
or more] essential elements for another offense of
which the defendant also stands convicted. If that is
the case, the [convictions] are legally inconsistent and
cannot withstand challenge. . . . Whether two convic-
tions are mutually exclusive presents a question of law,
over which our review is plenary.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
State v. Nash, 316 Conn. 651, 659, 114 A.3d 128 (2015).
‘‘[C]ourts reviewing a claim of legal inconsistency
must closely examine the record to determine whether
there is any plausible theory under which the jury rea-
sonably could have found the defendant guilty of [more
than one offense].’’ Id., 663. Nevertheless, the state is
bound by the theory it presented to the jury. See State
v. Chyung, 325 Conn. 236, 255–56, 157 A.3d 628 (2017)
(where state argued defendant engaged in only one act,
rather than two, principles of due process prohibited
state from relying on different theory on appeal).
A
Intentional Manslaughter and Reckless Manslaughter
We first consider whether the charges of intentional
manslaughter and reckless manslaughter were legally
inconsistent under the facts of this case and in view of
the state’s theory.6 We conclude that they were not
legally inconsistent because the mental state element
for each of these crimes related to different results.
The following additional facts and procedural history
inform our review. As set forth previously in this opin-
ion, the state charged the defendant with, inter alia,
intentional manslaughter and reckless manslaughter.
As to intentional manslaughter, the state charged in
relevant part that, ‘‘on or about the 4th day of December,
2014, at approximately 6:30 a.m., at or near Boston
Avenue within [Bridgeport] . . . PATRICIA DANIELS,
with the intent to cause serious physical injury to
another person, caused the death of EVELYN AGYEI,
in violation of [§] 53a-55 (a) (1) . . . .’’
As to reckless manslaughter, the state charged in
relevant part that, ‘‘on or about the 4th day of December,
2014, at approximately 6:30 a.m., at or near Boston
Avenue within [Bridgeport] . . . PATRICIA DANIELS,
under circumstances evincing an extreme indifference
to human life, recklessly engaged in conduct which
created a grave risk of death to one EVELYN AGYEI,
and thereby caused the death of . . . EVELYN AGYEI,
in violation of [§] 53a-55 (a) (3) . . . .’’
During closing and rebuttal argument, the state spe-
cifically argued to the jury: ‘‘[The defendant] knowingly
and recklessly got behind the wheel of her BMW; she
intentionally rammed that car off the road. And, by
the way, if you don’t believe it was intentional, she
recklessly ran that vehicle off the road.’’ It also argued:
‘‘We’ve proven beyond a reasonable doubt, based on
the video of that white BMW ramming, the intentional
ramming into Evelyn Agyei’s car. That’s intentional con-
duct. But intent is a question of fact for you to decide.
The state recognizes that because, if you disagree that
it was intentional, we also submit and argue in the
alternative . . . that that conduct was, at the very least,
reckless. She had a reckless disregard for Evelyn Agy-
ei’s life . . . .’’7
Although the state clearly contended that these
crimes were charged in the alternative, neither it nor
the defendant requested that the court specifically
instruct the jury to consider each charge in the alterna-
tive. To be clear, the defendant has not claimed on
appeal that the state’s argument that the jury should
consider the charges in the alternative, itself, precluded
the jury from finding her guilty of both charges; rather,
her argument is that because each of the charges
required a mutually exclusive mental state, the jury was
precluded from finding guilt on both charges because
one intent negates the other. The defendant argues that
the guilty verdicts on the counts of intentional man-
slaughter and reckless manslaughter were legally incon-
sistent because she could not have engaged in both
intentional and reckless conduct simultaneously,
involving only one act and one alleged victim. She con-
tends that it was legally impossible for the jury to have
found every element of both crimes because, under the
state’s theory of the case, each of the charges required
a mutually exclusive finding with respect to her mental
state. We disagree.
Section 53a-55 (a) provides in relevant part: ‘‘A person
is guilty of manslaughter in the first degree when: (1)
With intent to cause serious physical injury to another
person, he causes the death of such person or of a third
person; or . . . (3) under circumstances evincing an
extreme indifference to human life, he recklessly
engages in conduct which creates a grave risk of death
to another person, and thereby causes the death of
another person.’’
Pursuant to General Statutes § 53a-3 (11): ‘‘A person
acts ‘intentionally’ with respect to a result or to conduct
described by a statute defining an offense when his
conscious objective is to cause such result or to engage
in such conduct . . . .’’ Additionally, pursuant to Gen-
eral Statutes § 53a-3 (13): ‘‘A person acts ‘recklessly’
with respect to a result or to a circumstance described
by a statute defining an offense when he is aware of
and consciously disregards a substantial and unjustifi-
able risk that such result will occur or that such circum-
stance exists. The risk must be of such nature and
degree that disregarding it constitutes a gross deviation
from the standard of conduct that a reasonable person
would observe in the situation . . . .’’
In support of her claim that intentional manslaughter
and reckless manslaughter require mutually exclusive
mental states, the defendant relies, in part, on State v.
King, 216 Conn. 585, 583 A.2d 896 (1990). In Nash, our
Supreme Court discussed King at length and explained:
In King, the defendant had ‘‘claimed that his convic-
tions of attempt to commit murder and reckless assault
of the same victim based on the same conduct were
legally inconsistent because they required mutually
exclusive findings with respect to his mental state. . . .
We agreed with this claim, explaining that King’s convic-
tion for attempt to commit murder required the jury to
find that he acted with the intent to cause the death of
the victim, whereas his conviction for reckless assault
required the jury to find that he acted recklessly and
thereby created a risk that the victim would die. . . .
We further explained that the statutory definitions of
intentionally and recklessly are mutually exclusive and
inconsistent. . . . Reckless conduct is not intentional
conduct because [a person] who acts recklessly does
not have a conscious objective to cause a particular
result. . . . Thus, we observed that [t]he intent to
cause death required for a conviction of attempted
murder [under General Statutes §§ 53a-49 and 53a-54a
(a)] . . . necessitated a finding that the defendant
acted with the conscious objective to cause death . . .
[whereas] [t]he reckless conduct necessary to be found
for a conviction of assault under [General Statutes
§ 53a-59 (a) (3)] . . . required a finding that the defen-
dant acted without such a conscious objective. . . .
We concluded, therefore, that the jury verdicts [with
respect to attempt to commit murder and reckless
assault in the first degree] each of which requires a
mutually exclusive and inconsistent state of mind as
an essential element for conviction cannot stand.’’ (Cita-
tions omitted; emphasis added; footnote omitted; inter-
nal quotation marks omitted.) State v. Nash, supra, 316
Conn. 660–61.
The defendant also relies on State v. Chyung, 325
Conn. 236, 157 A.3d 628 (2017). In Chyung, the jury
found the defendant guilty of murder, in violation of
§ 53a-54a, and of reckless manslaughter in the first
degree with a firearm, in violation of General Statutes
§§ 53a-55a (a) and 53a-55 (a) (3), for the shooting death
of his wife. Id., 239, 239 n.1.
Section 53a-54a provides in relevant part: ‘‘(a) A per-
son is guilty of murder when, with intent to cause the
death of another person, he causes the death of such
person . . . .’’ (Emphasis added.) Section 53a-55a (a)
provides in relevant part: ‘‘A person is guilty of man-
slaughter in the first degree with a firearm when he
commits manslaughter in the first degree as provided
in section 53a-55, and in the commission of such offense
he uses, or is armed with and threatens the use of or
displays or represents by his words or conduct that he
possesses a . . . firearm. . . .’’ As noted previously,
§ 53a-55 (a) provides in relevant part: ‘‘A person is guilty
of manslaughter in the first degree when . . . (3) under
circumstances evincing an extreme indifference to
human life, he recklessly engages in conduct which
creates a grave risk of death to another person, and
thereby causes the death of another person.’’ (Empha-
sis added.)
The court in Chyung found that the jury’s guilty ver-
dicts as to both charges were legally inconsistent
because the defendant could not act both intentionally
and recklessly with respect to the same victim, the
same act, and the same result simultaneously. State v.
Chyung, supra, 325 Conn. 247–48. Our Supreme Court
explained that to find the defendant guilty of the crime
of intentional murder, the jury was required to find that
the defendant had the specific intent to kill the victim,
his wife, but, to find the defendant guilty of reckless
manslaughter, the jury was required to find that he acted
recklessly, meaning, that he acted without a conscious
objective to cause the death of the victim, but con-
sciously disregarded the risk of his actions, thereby
putting the life of the victim in grave danger. Id., 246–48.
The court concluded that a defendant cannot act with
a conscious disregard that his actions will create a
grave risk of death to another, while, at the same time,
specifically intending to kill that person. Id. The ‘‘defen-
dant cannot simultaneously act intentionally and reck-
lessly with respect to the same act and the same result
. . . .’’ Id., 247–48.
Although the defendant argues that both King and
Chyung are controlling in this case, the state contends
that the defendant’s claim is governed by State v. Nash,
supra, 316 Conn. 659–70. In Nash, the jury found the
defendant guilty of, among other things, both inten-
tional and reckless assault in the first degree pursuant
to General Statutes § 53a-59 (a) (1) and (a) (3), respec-
tively,8 and the court rendered judgment in accordance
with the jury’s verdicts. Id., 656–57. On appeal, the
defendant claimed in part that the jury’s verdicts of
guilty on both intentional and reckless assault were
legally inconsistent because each crime required a
mutually exclusive state of mind. Id., 657. Our Supreme
Court disagreed, explaining that the two mental states
required for intentional and reckless assault in the first
degree related to different results. Id., 666. More specifi-
cally, the court explained, ‘‘in order to find the defen-
dant guilty of [both intentional and reckless assault in
the first degree], the jury was required to find that the
defendant intended to injure another person and that,
in doing so, he recklessly created a risk of that person’s
death. In light of the state’s theory of the case, there
was nothing to preclude a finding that the defendant
possessed both of these mental states with respect to
the same victim at the same time by virtue of the same
act or acts. In other words, the jury could have found
that the defendant intended only to injure another per-
son when he shot into [the victim’s] bedroom but that,
in doing so, he recklessly created a risk of that [victim’s]
death in light of the circumstances surrounding his fir-
ing of the gun into the dwelling. Accordingly, because
the jury reasonably could have found that the defendant
simultaneously possessed both mental states required
to convict him of both intentional and reckless assault,
he cannot prevail on his claim that the convictions
were legally inconsistent.’’ (Emphasis added; footnotes
omitted.) Id., 666–68.
The court in Nash went on to examine and compare
§ 53a-59 (a) (1) and (3): ‘‘Intentional assault in the first
degree in violation of § 53a-59 (a) (1) requires proof
that the defendant (i) had the intent to cause serious
physical injury to a person, (ii) caused serious physical
injury to such person or to a third person, and (iii)
caused such injury with a deadly weapon or dangerous
instrument. Reckless assault in the first degree in viola-
tion of § 53a-59 (a) (3) requires proof that the defendant
(i) acted under circumstances evincing an extreme
indifference to human life, (ii) recklessly engaged in
conduct that created a risk of death to another person,
and (iii) caused serious physical injury to another per-
son. As we previously explained, the mental state ele-
ments in the two provisions—‘intent to cause serious
physical injury’ and ‘recklessly engag[ing] in conduct
which creates a risk of death’—do not relate to the same
result. Moreover, under both provisions, the resulting
serious physical injury is an element of the offenses
that is separate and distinct from the mens rea require-
ments.’’ Id., 668–69. The court then held: ‘‘Because the
defendant’s convictions for intentional and reckless
assault in the first degree required the jury to find that
the defendant acted intentionally and recklessly with
respect to different results, the defendant cannot pre-
vail on his claim that those convictions are mutually
exclusive and, therefore, legally inconsistent.9’’ Id., 669.
The court in Nash provided an example of where a
single act, directed to a single victim, could result in a
conviction of both intentional and reckless assault in
the first degree: ‘‘For example, if A shoots B in the
arm intending only to injure B, A nevertheless may
recklessly expose B to a risk of death if A’s conduct
also gave rise to an unreasonable risk that the bullet
would strike B in the chest and thereby kill him. In such
circumstances, a jury could find both that A intended
to injure B and, in doing so, recklessly created an undue
risk of B’s death.’’ Id., 666 n.15. We conclude that the
same analysis applies in the present case.10
Intentional manslaughter in violation of § 53a-55 (a)
(1) requires proof that the defendant (i) had the intent
to cause serious physical injury to a person, and (ii)
caused the death of such person or of a third person.
Reckless manslaughter in violation of § 53a-55 (a) (3)
requires proof that the defendant (i) acted under circum-
stances evincing an extreme indifference to human life,
(ii) recklessly engaged in conduct that created a grave
risk of death to another person, and (iii) caused the
death of another person. Guided by our Supreme Court’s
analysis in Nash, we conclude that the mens rea ele-
ments in the two provisions, namely, the ‘‘intent to cause
serious physical injury’’ and ‘‘recklessly engag[ing] in
conduct which creates a grave risk of death’’; General
Statutes § 53a-55 (a); do not relate to the same result.
In finding the defendant guilty of both intentional and
reckless manslaughter, the jury in the present case rea-
sonably could have found that the defendant specifi-
cally intended to cause serious physical injury to
Agyei and that, in doing so, she consciously disre-
garded a substantial and unjustifiable risk that her
actions created a grave risk of death to Agyei. See State
v. Nash, supra, 316 Conn. 666–67.
Because the jury’s guilty verdicts on the charges of
intentional and reckless manslaughter required findings
that the defendant simultaneously acted intentionally
and recklessly with respect to different results, we con-
clude that the defendant cannot prevail on her claim
that the verdicts on those charges were legally incon-
sistent.
B
Intentional Manslaughter and Criminally Negligent
Operation
The defendant also claims that the verdicts on the
counts of intentional manslaughter and criminally negli-
gent operation were legally inconsistent. We disagree.
As stated previously in this opinion: intentional man-
slaughter in violation of § 53a-55 (a) (1) requires proof
that the defendant (i) had the intent to cause serious
physical injury to a person, and (ii) caused the death
of such person or of a third person.
Criminally negligent operation in violation of § 53a-
57 (a) provides: ‘‘A person is guilty of misconduct with
a motor vehicle when, with criminal negligence in the
operation of a motor vehicle, he causes the death of
another person.’’ General Statutes § 53a-3 (14) provides
that ‘‘[a] person acts with criminal negligence with
respect to a result or to a circumstance described by
a statute defining an offense when he fails to perceive
a substantial and unjustifiable risk that such result will
occur or that such circumstance exists. The risk must
be of such nature and degree that the failure to perceive
it constitutes a gross deviation from the standard of
care that a reasonable person would observe in the
situation . . . .’’ (Internal quotation marks omitted.)
See State v. Gonsalves, 137 Conn. App. 237, 244, 47 A.3d
923, cert. denied, 307 Conn. 912, 53 A.3d 998 (2012).
‘‘Under § 53a-57, the state was required to prove that
the defendant was operating a motor vehicle, that [s]he
caused the death of another person, and that [s]he failed
to perceive a substantial and unjustifiable risk that
the manner in which [s]he operated [her] vehicle would
cause that death. The failure to perceive that risk must
constitute a gross deviation from the standard of care
that a reasonable person would observe in the situation.
. . . Further, [t]o prove causation, the state is required
to demonstrate that the defendant’s conduct was a prox-
imate cause of the victim’s death—i.e., that the defen-
dant’s conduct contributed substantially and materially,
in a direct manner, to the victim’s injuries and that the
defendant’s conduct was not superseded by an efficient
intervening cause that produced the injuries.’’ (Citation
omitted; emphasis added; internal quotation marks
omitted.) State v. Jones, 92 Conn. App. 1, 7–8, 882 A.2d
1277 (2005).
Considering the plain language of each statute, we
are persuaded that, as in Nash; see part I A of this
opinion; the mental state requirements for each statute
are not mutually exclusive. One can intend to cause
serious physical injury to another, while, at the same
time, failing to perceive a substantial and unjustifi-
able risk that the manner in which she operated her
vehicle would cause the victim’s death. The mental state
elements in the two provisions—failing to perceive a
substantial and unjustifiable risk that your manner
of operation would cause death and an intent to cause
serious physical injury—do not relate to the same
result. Because the defendant’s convictions of inten-
tional manslaughter and criminally negligent operation
required the jury to find that the defendant acted inten-
tionally and criminally negligent with respect to differ-
ent results (failing to perceive a substantial and
unjustifiable risk of death and intending to cause seri-
ous physical injury), the defendant cannot prevail on
her claim that the mental states required for those
crimes are mutually exclusive and, therefore, that the
verdicts are legally inconsistent. See State v. Nash,
supra, 316 Conn. 668–69.
C
Reckless Manslaughter and Criminally Negligent
Operation
The defendant also claims that the jury’s verdicts
with respect to the crimes of reckless manslaughter and
criminally negligent operation are legally inconsistent.
The state argues on appeal that the jury could have
viewed each strike of Agyei’s vehicle as a separate act,
with a separate mental state. It conceded during oral
argument before this court, however, that if we view
both strikes of the collision as one act, the mental ele-
ments of these two counts are mutually exclusive. We
are not persuaded by the state’s argument that the jury
could have viewed each strike as a separate act because
the state never made such an argument to the jury;
rather, it consistently argued that this was one continu-
ous act. As our Supreme Court repeatedly has stated,
the state is bound by the theory it presented to the jury;
on appeal, it may not rely on a theory of the case that
differs from the theory that was presented to the jury.
See State v. Chyung, supra, 325 Conn. 256 (‘‘[c]onstitu-
tional [p]rinciples of due process do not allow the state,
on appeal, to rely on a theory of the case that was never
presented at trial’’ [internal quotation marks omitted]);
State v. King, 321 Conn. 135, 149, 136 A.3d 1210 (2016)
(same). We agree with the defendant that the state
of mind element in each of these charges is mutually
exclusive and, therefore, that the verdicts of guilty as
to both of these charges were legally inconsistent.
For the defendant to be found guilty of reckless man-
slaughter, the state needed to prove that she was aware
of and consciously disregarded a substantial and
unjustifiable risk that her actions would create a grave
risk of death to another person, namely Agyei. See
General Statutes § 53a-55 (a) (3). For her to be found
guilty of criminally negligent operation, the state
needed to prove that she failed to perceive a substantial
and unjustifiable risk that the manner in which she
operated her vehicle would cause Agyei’s death. See
General Statutes § 53a-57; State v. Jones, supra, 92
Conn. App. 7–8. We conclude that the mental states
required under these two provisions are mutually
exclusive.
‘‘The [penal] code . . . distinguishes reckless from
criminally negligent conduct. A person acts recklessly
if he is aware of and consciously disregards a substan-
tial and unjustifiable risk, and acts with criminal negli-
gence . . . when he fails to perceive a substantial and
unjustifiable risk.’’ (Emphasis altered; internal quota-
tion marks omitted.) State v. Bunkley, 202 Conn 629,
639, 522 A.2d 795 (1987). In the Commission to Revise
the Criminal Statutes, Penal Code Comments, Conn.
Gen. Stat. Ann. § 53a-3 (West 2007), commission com-
ments, the commission briefly explains the difference
between reckless conduct and criminal negligence
under our penal code. As to reckless conduct, the com-
mission stated: ‘‘This concept, much like the concept of
recklessness under the present reckless driving statute,
requires conscious disregard of a substantial and unjus-
tifiable risk. But this disregard must be a gross deviation
from the standard of a reasonable man.’’ (Emphasis
added.) Commission to Revise the Criminal Statutes,
Penal Code Comments, supra, § 53a-3, commission
comment. As to criminal negligence, the commission
comments provide: ‘‘This concept involves a failure to
perceive a substantial and unjustifiable risk. And, as in
the concept of recklessness, the failure to perceive must
be a gross deviation from the standard of a reasonable
man; thus it requires a greater degree of culpability than
the civil standard of negligence.’’ (Emphasis added.) Id.
Considering the plain language of both §§ 53a-55 (a)
(3) and 53a-57 (a), we are persuaded that the mental
state element for each statute is mutually exclusive
when examined under the facts and theory of the state
in the present case. The defendant could not have con-
sciously disregarded a substantial and unjustifiable risk
that her actions would cause Agyei’s death, while, simul-
taneously, failing to perceive a substantial and unjustifi-
able risk that her actions would cause Agyei’s death.
The mental state elements in the two provisions relate
to the same result. Accordingly, the verdicts of guilty
as to the crimes of reckless manslaughter and criminally
negligent operation were legally inconsistent.
II
TESTIMONIAL HEARSAY
The defendant next claims that the court erred in
failing to exclude testimonial hearsay. She argues that
the testimony of now former Bridgeport Detective Paul
Ortiz, relying on statements made by someone at the
BMW dealership, amounted to testimonial hearsay.
Because this claim was not preserved at trial, the defen-
dant seeks review under State v. Golding, 213 Conn.
233, 239–40, 567 A.2d 823 (1989), as modified by In re
Yasiel R., 317 Conn. 773, 120 A.3d 1188 (2015).11 We
conclude that the record is adequate for review, but
that the claim is unreviewable under Golding’s second
prong because it is not of constitutional magnitude. See
State v. Carpenter, 275 Conn. 785, 820–21, 882 A.2d 604
(2005) (defendant’s claim not reviewable under Gold-
ing’s second prong because admission of out-of-court
statements for purposes other than their truth raises
no confrontation clause issues), cert. denied, 547 U.S.
1025, 126 S. Ct. 1578, 164 L. Ed. 2d 309 (2006).
The following additional facts inform our analysis.
As part of their investigation of the collision involving
Agyei’s vehicle, the police obtained a video of the inci-
dent from Harding High School, which had surveillance
cameras in the area. The footage from the video showed
a white sport utility vehicle (SUV) hitting a darker col-
ored vehicle. Detective Arthur Calvao of the Bridgeport
Police Department printed out several still photographs
from certain relevant frames of the video, which depict
a white SUV striking a dark colored vehicle from the
side and then from the rear. Although the investigators
were unable to identify the make and model of the
white SUV from the video or the photographs, Ortiz,
the lead detective on this matter, interviewed Agyei’s
son, who insisted that the vehicle that hit his mother’s
vehicle was a white BMW.
One of the Bridgeport police detectives then went to
a BMW dealership and showed the still photographs to
personnel there, who identified the white SUV as a
newer model BMW X3. The police, thereafter, obtained
a list of the owners of all 2000-2014 BMW X3s and X5s
registered in Connecticut from the Department of Motor
Vehicles, and they began visiting the homes of the peo-
ple on the list, asking to inspect their BMWs. If the
vehicle had no damage, the police crossed it off their
list. If the vehicle had front end damage, the police
spoke further with the owner, and towed the vehicle
to the police department for further inspection.
One of the vehicles examined by the police belonged
to the defendant. Ortiz observed that the defendant’s
vehicle had damage to its front end that was consistent
with the collision being investigated. The defendant
admitted to Ortiz that she had driven west on Boston
Avenue between 6 a.m. and 6:30 a.m. on December 4,
2014.12 Ortiz then called for a tow truck, which took
the defendant’s BMW to the police department. The
front bumper of the vehicle was sent to the state foren-
sic laboratory for testing.
Alison Gingell, a forensic examiner at the state labo-
ratory, performed testing on the bumper, and she com-
pared a paint sample from Agyei’s Subaru with a paint
particle she found stuck on the bumper of the defen-
dant’s BMW. After analysis, Gingell concluded that the
samples were similar in color, texture, structure, chemi-
cal type, and elemental composition.
The defendant argues that ‘‘Ortiz testified that a
Bridgeport police detective visited a [BMW] dealership
. . . and showed members of the staff there [photo-
graphs] of the BMW. Those individuals ‘determined that
it was an X3 BMW, a new model.’ . . . This statement
by an employee of [the dealership] is testimonial hear-
say.’’ (Citation omitted; emphasis added.) She also
argues: ‘‘The admission of this testimony violated the
defendant’s right of confrontation because she never
had the chance to cross-examine the person from the
dealership to test the basis of this information.’’ The
state responds that the statement of the dealership
employee was not hearsay because it was not offered
for the truth of the matter asserted. It argues: ‘‘Because
the purpose of the statement was not to show that the
vehicle in the [photograph] was, in fact, a BMW X3 but,
instead, [was] merely to show how the police investiga-
tion proceeded, it was not hearsay and raised no legiti-
mate confrontation clause issue.’’ We agree with the
state.
‘‘It is fundamental that the defendant’s rights to con-
front the witnesses against him and to present a defense
are guaranteed by the sixth amendment to the United
States constitution. . . . A defendant’s right to present
a defense is rooted in the compulsory process and con-
frontation clauses of the sixth amendment . . . . Fur-
thermore, the sixth amendment rights to confrontation
and to compulsory process are made applicable to state
prosecutions through the due process clause of the
fourteenth amendment.’’ (Internal quotation marks
omitted.) State v. Holley, 327 Conn. 576, 593, 175 A.3d
514 (2018).
‘‘Under Crawford v. Washington, [541 U.S. 36, 59,
124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)], hearsay state-
ments of an unavailable witness that are testimonial in
nature may be admitted in accordance with the confron-
tation clause only if the defendant previously has had
the opportunity to cross-examine the unavailable wit-
ness. Nontestimonial statements, however, are not sub-
ject to the confrontation clause and may be admitted
under state rules of evidence. Davis v. Washington, 547
U.S. 813, 821, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).
Thus, the threshold inquiries that determine the nature
of the claim are whether the statement was hearsay,
and if so, whether the statement was testimonial in
nature, questions of law over which our review is ple-
nary.’’ State v. Smith, 289 Conn. 598, 618–19, 960 A.2d
993 (2008).
‘‘As a general matter, a testimonial statement is typi-
cally [a] solemn declaration or affirmation made for
the purpose of establishing or proving some fact. . . .
Although the United States Supreme Court did not pro-
vide a comprehensive definition of what constitutes a
testimonial statement in Crawford, the court did
describe three core classes of testimonial statements:
[1] ex parte in-court testimony or its functional equiva-
lent—that is, material such as affidavits, custodial
examinations, prior testimony that the defendant was
unable to cross-examine, or similar pretrial statements
that declarants would reasonably expect to be used
prosecutorially . . . [2] extrajudicial statements . . .
contained in formalized testimonial materials, such as
affidavits, depositions, prior testimony, or confessions
[and] . . . [3] statements that were made under cir-
cumstances which would lead an objective witness rea-
sonably to believe that the statement would be available
for use at a later trial . . . .
‘‘Subsequently, in Davis v. Washington, supra, 547
U.S. 822, the United States Supreme Court elaborated
on the third category and applied a primary purpose
test to distinguish testimonial from nontestimonial
statements given to police officials, holding: Statements
are nontestimonial when made in the course of police
interrogation under circumstances objectively indicat-
ing that the primary purpose of the interrogation is to
enable police assistance to meet an ongoing emergency.
They are testimonial when the circumstances objec-
tively indicate that there is no such ongoing emergency,
and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to
later criminal prosecution. . . .
‘‘In State v. Slater, [285 Conn. 162, 172 n.8, 939 A.2d
1105, cert. denied, 553 U.S. 1085, 128 S. Ct. 2885, 171 L.
Ed. 2d 822 (2008)], we reconciled Crawford and Davis,
noting: We view the primary purpose gloss articulated
in Davis as entirely consistent with Crawford’s focus
on the reasonable expectation of the declarant. . . .
[I]n focusing on the primary purpose of the communica-
tion, Davis provides a practical way to resolve what
Crawford had identified as the crucial issue in determin-
ing whether out-of-court statements are testimonial,
namely, whether the circumstances would lead an
objective witness reasonably to believe that the state-
ments would later be used in a prosecution. . . . We
further emphasized that this expectation must be rea-
sonable under the circumstances and not some subjec-
tive or far-fetched, hypothetical expectation that takes
the reasoning in Crawford and Davis to its logical
extreme.’’ (Citations omitted; internal quotation marks
omitted.) State v. Smith, supra, 289 Conn. 622–24.
In the present case, the defendant asserts that the
statement of the dealership employee or employees, as
offered by Ortiz, was testimonial hearsay under the
third category recognized in Crawford. See id. Before
we consider whether the statement was testimonial,
however, we first must determine whether it amounted
to hearsay. See id., 618–19 (threshold inquiry that deter-
mines nature of claim is whether statement was hear-
say); see also State v. Carpenter, supra, 275 Conn.
820–21 (if statement is not hearsay, defendant not enti-
tled to review of unpreserved claim under Golding).
The Connecticut Code of Evidence defines hearsay
as ‘‘a statement, other than one made by the declarant
while testifying at the proceeding, offered in evidence
to establish the truth of the matter asserted.’’ Conn.
Code Evid. § 8-1 (3). ‘‘An out-of-court statement is hear-
say when it is offered to establish the truth of the mat-
ters contained therein. . . . A statement offered solely
to show its effect upon the hearer, [however], is not
hearsay.’’ (Internal quotation marks omitted.) State v.
Colon, 272 Conn. 106, 195, 864 A.2d 666 (2004), cert.
denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116
(2005). We conclude that the statement was not hearsay
because it was not offered for the truth of the matter
asserted, but, rather, it was offered to show its effect
on the listener.
During Ortiz’ testimony at the defendant’s trial, the
following colloquy occurred on direct examination:
‘‘[Prosecutor]: Did you know . . . whether . . .
you were looking for any particular model type [of
vehicle]?
‘‘[Ortiz]: Well, a little while after, we did, yes.
‘‘[Prosecutor]: And . . . what led you to that con-
clusion?
‘‘[Ortiz]: We had one of our detectives go to the BMW
dealership and show the photos to personnel at the
. . . Helmut’s BMW, and they were able to—they deter-
mined it was an X3 BMW, a newer model.
‘‘[Prosecutor]: Now, in relation to that investigation,
what, if anything, did your detective bureau take in
terms of steps of locating this particular vehicle?
‘‘[Ortiz]: We were able to obtain a list of all the BMWs
in the state of Connecticut; all the X3s, the X5s from
years 2000 to 2014.’’13 (Emphasis added.)
The defendant argues that the statement of the dealer-
ship employee was offered for the truth, and it served
to bolster the state’s claim ‘‘that the BMW in the picture
was the defendant’s BMW.’’ She contends that ‘‘[t]he
defense was unable to find out how certain the
employee . . . was that the car in the still photograph
was a BMW X3. The defense was not able to find out
whether the BMW resembled an earlier model, though
they thought it was a later model.14 Had the defense
been able to ascertain this information, it may have
helped convince the jury that the BMW in the video
was not the defendant’s vehicle.’’ (Footnote added.) We
conclude that the statement was not hearsay.
In the present case, Ortiz was testifying as to the
procedure that the police used to conduct their investi-
gation. As part of their investigation, after producing
still photographs of the collision and interviewing Agy-
ei’s son, learning from him that the vehicle that hit his
mother’s vehicle was a white BMW, the police took
those still photographs to a BMW dealership to see if
someone could ascertain the year, make, and model
of the vehicle from the photos. They then used that
information to obtain a list of similar vehicles from
the Department of Motor Vehicles. The statement that
personnel at the dealership ‘‘were able to—they deter-
mined it was an X3 BMW, a newer model’’; (emphasis
added); was offered to demonstrate, not that the vehi-
cle, in fact, was a newer model X3 or that it was the
defendant’s vehicle. Rather, it was used to demonstrate
the route that the police took in deciding to obtain a
list of 2000-2014 X3 and X5 BMWs and in conducting
their investigation, which included investigating fifteen
model years of X3s and X5s, and not just newer
model X3s.
We conclude, therefore, that the defendant’s eviden-
tiary claim fails under Golding’s second prong because
the admission of an out-of-court statement for purposes
other than its truth raises no confrontation clause issue.
See State v. Carpenter, supra, 275 Conn. 821, citing
Crawford v. Washington, supra, 59–60 n.9 (citing Ten-
nessee v. Street, 471 U.S. 409, 414, 105 S. Ct. 2078, 85
L. Ed. 2d 425 [1985]).
III
CONCLUSION
We have determined, under the facts of this case as
pursued by the state that (1) the jury’s verdicts of guilty
on the charges of intentional manslaughter and reckless
manslaughter are not legally inconsistent, (2) the jury’s
verdicts of guilty on the charges of intentional man-
slaughter and criminally negligent operation are not
legally inconsistent, (3) the jury’s verdicts of guilty on
the charges of reckless manslaughter and criminally
negligent operation are legally inconsistent, and (4) the
defendant’s testimonial hearsay claim fails under Gold-
ing’s second prong.
We next consider the remedy and whether this case
must be remanded to the trial court, and, if so, the
appropriate remand order. Because of the inconsis-
tency in the verdicts, we have no way of knowing
whether the jury, if it properly had considered the men-
tal elements of each crime, would have found the defen-
dant guilty of reckless manslaughter or criminally
negligent operation. Setting aside one of the convic-
tions, therefore, will not cure the problem. Moreover,
it is not for this court, on appeal, to make a factual
determination as to the defendant’s mental state or
states at the time the collision occurred. The inconsis-
tent verdicts, therefore, require that we vacate the
defendant’s convictions on the charges of reckless man-
slaughter and criminally negligent operation, and order
a new trial thereon.15 See State v. King, supra, 216 Conn.
594–95. On retrial, if properly supported by the evidence
and pursued by the state pursuant to the same theory,
the trial court may submit both counts to the jury,
but it should instruct the jury that criminally negligent
operation and reckless manslaughter can be found only
in the alternative. The court also should make clear to
the jury that it may find the defendant guilty of either
criminally negligent operation or reckless manslaugh-
ter, but it may not convict her of both. See id.
The state, citing to State v. Polanco, 308 Conn. 242,
262–63, 61 A.3d 1084 (2013), argues, in a footnote in its
brief, that if we conclude that the reckless manslaughter
and misconduct with a motor vehicle convictions are
inconsistent, we should remand with direction to rein-
state the intentional manslaughter conviction. To the
extent that the state is asking for the conviction of
intentional manslaughter to be reinstated, and not sim-
ply that the state be permitted to retry the defendant
on that charge, we decline to do so. The state moved
at sentencing to vacate the conviction on that charge
partly because doing so went ‘‘along with the spirit of
the state’s intent during the beginning of this case.’’ See
footnote 3 of this opinion. Under these circumstances,
the most the state can ask for is what the defendant
has requested—a retrial on all three of the charges
related to Agyei’s death. In the concluding paragraph
of her appellate brief, the defendant requests ‘‘that she
be granted a new trial on all the charges. Alternatively,
she requests a new trial on the charges of intentional
manslaughter [first], reckless manslaughter [first], and
misconduct with a motor vehicle.’’ Accordingly, we
order a retrial on all three charges.
The judgment is reversed in part, the convictions of
reckless manslaughter and criminally negligent opera-
tion are vacated, and a new trial is ordered as to those
counts and the count of intentional manslaughter con-
sistent with this opinion; the judgment is affirmed in
all other respects.
In this opinion the other judges concurred.
1
The defendant also was convicted of risk of injury to a child in violation
of General Statutes § 53-21 (a) (1) and evasion of responsibility in the opera-
tion of a motor vehicle in violation of General Statutes § 14-224 (a). The
judgment as to those convictions is not challenged.
2
There is no indication in the record as to why the defendant engaged
in the conduct that led to her arrest and conviction.
3
At the sentencing hearing, the state argued in relevant part: ‘‘Based on
the Supreme Court’s recent decisions in State v. Polanco, [308 Conn. 242,
61 A.3d 1084 (2013)], [State v.] Miranda, [317 Conn. 741, 120 A.3d 490
(2015)], and [State v.] Wright, [320 Conn. 781, 135 A.3d 1 (2016)], the state
is asking that Your Honor enter an order to vacate the conviction on the
intentional manslaughter under the legal theory of vacatur and that Your
Honor sentence the defendant on the remaining counts, the reckless man-
slaughter . . . and misconduct with a motor vehicle. I think that goes along
with the spirit of the state’s intent during the beginning of this case. The
state did have the belief when we initially filed our long form information
that we [would proceed] on both a legal theory of intentional and reckless
manslaughter based on the fact that the defendant’s vehicle came into
contact with the Agyei vehicle twice. But, in light of the convictions, we’d
ask that she be sentenced solely on the reckless manslaughter and that
Your Honor vacate the intentional manslaughter for sentencing purposes.’’
The cases relied on by the state in support of its motion to vacate each
involve cumulative convictions that violated double jeopardy protections.
In Polanco, our Supreme Court held that vacatur was the appropriate remedy
for double jeopardy violations involving cumulative convictions for both
greater and lesser included offenses. State v. Polanco, supra, 308 Conn. 245.
In Miranda, the court held that vacatur was the appropriate remedy for
double jeopardy violations involving cumulative convictions of capital felony
and felony murder, where both convictions involved the murder of a single
victim. State v. Miranda, supra, 317 Conn. 753. In Wright, the court held
that vacatur was the appropriate remedy for the double jeopardy violation
caused by the conviction of three counts of conspiracy arising from a single
agreement with multiple criminal objectives. State v. Wright, supra, 320
Conn. 830.
Following the state’s motion to vacate the intentional manslaughter con-
viction in the present case, the defendant objected, stating, in part, that she
wanted to preserve the record for appeal; she also requested a mistrial on
the ground that the state had overcharged in this case; the court denied the
defendant’s request, and it vacated the defendant’s conviction of inten-
tional manslaughter.
4
Specifically, the court sentenced the defendant to twenty years incarcera-
tion, execution suspended after sixteen years, followed by five years proba-
tion on the manslaughter in the first degree count, five years incarceration
on the misconduct with a motor vehicle count, ten years incarceration on
the risk of injury to a child count, and ten years incarceration on the evasion
of responsibility count. The court ordered all sentences to run concurrently.
5
Because the defendant did not raise this claim in the trial court, she
seeks to prevail under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989) as modified by In re Yasiel R., 317 Conn. 773, 120 A.3d 1188 (2015),
which governs our consideration of unpreserved constitutional claims. The
state concedes that the defendant is entitled to such review, but argues that
a constitutional violation does not exist.
6
The state suggests in its brief that we need not consider whether the
two manslaughter verdicts are legally inconsistent because the court vacated
the intentional manslaughter conviction. We disagree. Accepting the state’s
argument would mean that a review of potentially legally inconsistent ver-
dicts could be thwarted by the state requesting that the trial court vacate
one of the convictions. That is not consistent with our jurisprudence. See
State v. Chyung, supra, 325 Conn. 240 (despite trial court’s vacatur of
manslaughter in first degree conviction, Supreme Court also vacated incon-
sistent murder conviction and remanded case for new trial on both counts,
holding ‘‘legally inconsistent verdicts involve jury error . . . because there
is no way for the trial court or this court to know which charge the jury
found to be supported by the evidence, neither verdict can stand’’).
7
The state made no argument to the jury concerning criminally negligent
operation. The court, however, instructed the jury on that crime.
8
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 dangerous instrument
. . . or (3) under circumstances evincing an extreme indifference to human
life he recklessly engages in conduct which creates a risk of death to another
person, and thereby causes serious physical injury to another person . . . .’’
9
‘‘We emphasize that our conclusion that the defendant’s convictions of
intentional and reckless assault in the first degree were not mutually exclu-
sive does not mean that a defendant lawfully may be punished for both
offenses. . . . [T]he trial court in the present case merged the two assault
convictions for purposes of sentencing and sentenced the defendant only
on his intentional assault conviction. The defendant has not claimed that
this approach violates his right against double jeopardy.’’ (Citation omitted.)
State v. Nash, supra, 316 Conn. 669–70 n.19.
10
We recognize that the differences between King, Chyung, and Nash
are subtle. For example, in King, the jury necessarily would have to have
found that the defendant acted with the specific intent to cause the death
of the victim (attempted murder), and, at the same time, acted without the
conscious objective to create a risk of death for the victim (reckless assault).
See State v. King, supra, 216 Conn. 585. It is impossible to possess both
mental states simultaneously.
In Chyung, the jury necessarily would have to have found that the defen-
dant had the specific intent to kill the victim (murder), and simultaneously,
that the defendant acted without the conscious objective to create a grave
risk of death for the victim (reckless manslaughter). See State v. Chyung,
supra, 325 Conn. 236. Again, it is impossible to have both intents simulta-
neously.
In Nash, however, the jury would have to have found that the defendant
intended to cause serious physical injury to the victim (intentional assault),
and, at the same time, that the defendant acted without the conscious
objective of creating a grave risk of death for the victim, resulting in the
victim’s serious physical injury (reckless assault). See State v. Nash, supra,
316 Conn. 666–67. Intentional assault requires a specific intent to cause
serious physical injury; reckless assault requires recklessly creating a grave
risk of death, which results in serious physical injury. One can intend to
cause serious physical injury to a victim, while, at the same time, consciously
disregarding the fact that he or she is putting that victim’s life in grave
danger, ultimately resulting in serious physical injury to the victim.
11
Pursuant to Golding, a defendant may prevail on a claim of constitutional
error not preserved at trial only if all four of the following conditions are
satisfied: ‘‘(1) the record is adequate to review the alleged claim of error;
(2) the claim is of constitutional magnitude alleging the violation of a funda-
mental right; (3) the alleged constitutional violation . . . exists and . . .
deprived the defendant of a fair trial; and (4) if subject to harmless error
analysis, the state has failed to demonstrate harmlessness of the alleged
constitutional violation beyond a reasonable doubt.’’ (Footnote omitted.)
State v. Golding, supra, 213 Conn. 239–40; see also In re Yasiel R., supra,
317 Conn. 781 (modifying third prong of Golding by eliminating word
‘‘clearly’’ before words ‘‘exists’’ and ‘‘deprived’’ [internal quotation marks
omitted]).
We note that, although raising a claim for the first time on appeal can
amount to an ambush on the state and the trial court, ‘‘our Supreme Court
has reviewed a confrontation claim under the bypass rule of State v. Golding,
[supra, 213 Conn. 233], even when there was a claim of waiver. State v.
Smith, 289 Conn. 598, 619, 960 A.2d 993 (2008); see also State v. Holley,
327 Conn. 576, 590, 175 A.3d 514 (2018).’’ State v. Walker, 180 Conn. App.
291, 301, 183 A.3d 1, cert. granted, 328 Conn. 934, 183 A.3d 634 (2018).
12
The defendant’s location at or near the scene of the collision also was
confirmed by Special Agent James Wines, from the Federal Bureau of Investi-
gation, who, after investigating the defendant’s cell phone records, con-
cluded that the defendant was in a cellular phone tower area that included
the scene of the collision at the time of the collision on December 4, 2014.
13
On cross-examination by defense counsel, the following colloquy
occurred:
‘‘[Defense Counsel]: Now . . . in response to questions from the state,
you talked about efforts made to locate the vehicle involved in this colli-
sion, correct?
‘‘[Ortiz]: That’s correct, sir.
‘‘[Defense Counsel]: And your efforts were informed at least on December
4th, primarily by two sources of information; your . . . interview with the
young man at the hospital—with [Agyei’s son], the eleven year old?
‘‘[Ortiz]: Yes, the victim.
‘‘[Defense Counsel]: Who told you that he thought . . . a white BMW had
collided with the car, correct?
‘‘[Ortiz]: He was certain it was a BMW, yes.
‘‘[Defense Counsel]: And you saw, also, a videotape with a white vehicle
as well, correct?
‘‘[Ortiz]: That’s correct, sir.
‘‘[Defense Counsel]: And you testified here today that you went to a BMW
dealer to identify the vehicle, correct?
‘‘[Ortiz]: I didn’t go, but one of the detectives went there and interviewed
someone that works there, yes.’’
14
The defendant does not explain why she ‘‘was not able to find out
whether the BMW resembled an earlier model, though [the personnel at
this dealership] thought it was a later model.’’ We can ascertain no reason
why she could not have showed the still photographs to an expert to ascertain
an opinion on the year, make, and model of the white vehicle in the photos.
15
The defendant’s convictions of risk of injury to a child and evasion of
responsibility in the operation of a motor vehicle remain intact.