State v. Dojnia

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STATE OF CONNECTICUT v. JODI M. DOJNIA
(AC 40650)
Sheldon, Keller and Flynn, Js.*
Syllabus
Convicted of the crime of assault of a disabled person in the second degree
in violation of statute (§ 53a-60b [a] [1]), the defendant appealed to this
court, claiming, inter alia, that § 53a-60b (a) (1) was unconstitutionally
vague as applied to her conduct to the extent that it relied on the
statutory (§ 1-1f [b]) definition of physically disabled. The defendant
alleged that § 1-1f (b) was impermissibly broad and did not provide
sufficient guidance with respect to whether the victim was physically
disabled. The defendant and the victim, her sister, had engaged in a
physical altercation in which the defendant struck the victim with a
wooden billy club. The victim, at the time of the encounter, suffered
from fibromyalgia, a nerve condition for which she had been receiving
ongoing medical treatment and was taking prescription medications.
She also experienced chronic pain issues and physical limitations that
made sitting, standing and walking difficult. Held:
1. The defendant could not prevail on her unpreserved claim that § 53a-60b
(a) (1) was unconstitutionally vague as applied to her violent conduct
toward the victim: the defendant failed to demonstrate that a constitu-
tional violation occurred that deprived her of a fair trial, as a reasonable
person of ordinary intelligence would have anticipated that a plain read-
ing of § 53a-60b (a) (1) would apply to her conduct, which clearly came
within the statute’s unmistakable core of prohibited conduct, and the
record reflected that the victim was physically disabled for purposes
of § 53a-60b (a) (1) because she suffered from a chronic bodily condition
that significantly hampered her ability to carry out many of the everyday
activities of life, and for years prior to the events at issue had received
medical treatment and prescriptions to alleviate her pain and to help
her sleep; moreover, the term physical disability as used in § 1-1f (b)
had a readily ascertainable meaning that referred to any recurring bodily
condition that detrimentally affected one’s ability to carry out life’s
activities, and the phrase in § 1-1f (b), ‘‘not limited to,’’ reflected that
the legislature did not intend to list in § 1-1f (b) every bodily condition
that could result in a physical disability and did not necessitate a conclu-
sion that § 1-1f (b) lacked sufficient guidance with respect to its meaning,
as the language at issue was general enough to encompass a wide variety
of physical conditions, yet specific enough to provide sufficient notice
as to the types of bodily conditions that are encompassed by the term
physical disability.
2. The evidence was sufficient to support a finding that the victim suffered
from a physical disability for purposes of § 53a-60b (a) (1): evidence of
the victim’s lengthy medical history, and the testimony of the victim
and L, a physician assistant who had treated her for several years, amply
supported a finding beyond a reasonable doubt that the victim had a
diagnosis of fibromyalgia at the time of the assault, there was no support
for the defendant’s claim that the state bore the burden of proving
beyond a reasonable doubt that the victim’s physical disability was
caused by any particular illness or injury, that the diagnosis was medi-
cally accurate or that her alleged physical disability for purposes of § 1-
1f (b) was the result of fibromyalgia, and the defendant’s claim that a
diagnosis of fibromyalgia did not satisfy the physical disability require-
ment of § 53a-60b (a) (1) was unavailing, as the evidence of the victim’s
physical disability was not limited to a diagnosis of fibromyalgia, and
the victim and L testified that she had a complex medical history, and
that L had prescribed medications and provided a variety of treatments
for chronic pain issues and fibromyalgia syndrome; moreover, the defen-
dant’s assertions that § 1-1f (b) was ambiguous as to whether fibromyal-
gia constituted a physical disability, which was based on her claim that
§ 1-1f (b) required that a disability be established through conclusive
medical tests and be more uniform in its symptoms, severity and presen-
tation than fibromyalgia, would graft onto § 1-1f (b) limitations that are
not evident in it as it is written, and the exclusion from the definition
of physical disability of a chronic and painful physical condition that
significantly hinders a person’s ability to carry out several everyday life
activities would thwart the broad protective purpose reflected in the
plain language of § 1-1f (b).
3. The defendant could not prevail on her claim that she was deprived of
her right to a fair trial as a result of certain comments of the prosecutor
during closing argument to the jury about a 911 call that the defendant
had made after the altercation with the victim: the prosecutor’s reference
to what the defendant said or almost said in the 911 call was fair
commentary and reasonably could be interpreted to suggest that the
defendant almost said that she let the victim have it, and the inference
that the prosecutor drew was not the result of speculation, as the defen-
dant’s statement to the 911 dispatcher about the manner in which the
altercation began reasonably could be interpreted to reflect that the
defendant changed her explanation mid-sentence to provide a less
incriminatory explanation; moreover, the prosecutor’s remark was
based on the content of the 911 recording, which was a full exhibit at
trial and was played in the jury’s presence, the argument was consistent
with the defendant’s testimony and theory of defense, the context of
the prosecutor’s argument suggested that the jury was being asked to
draw inferences from the 911 recording, and it was not likely that the
jury would have interpreted the prosecutor’s isolated remark about what
the defendant said to be anything other than the prosecutor’s suggested
interpretation of the 911 recording.
Argued January 7—officially released June 4, 2019
Procedural History
Substitute information charging the defendant with
the crimes of assault of a disabled person in the second
degree, assault in the third degree and reckless endan-
germent in the second degree, brought to the Superior
Court in the judicial district of Waterbury, geographical
area number four, and tried to the jury before Cremins,
J.; verdict of guilty of assault of a disabled person in
the second degree and reckless endangerment in the
second degree; thereafter, the court vacated the verdict
as to the charge of reckless endangerment in the second
degree; judgment of guilty of assault of a disabled per-
son in the second degree, from which the defendant
appealed to this court. Affirmed.
Megan L. Wade, assigned counsel, with whom were
James P. Sexton, assigned counsel, and, on the brief,
Emily Graner Sexton, assigned counsel, for the appel-
lant (defendant).
Brett R. Aiello, special deputy assistant state’s attor-
ney, with whom, on the brief, were Maureen Platt,
state’s attorney, and Karen Diebolt, former assistant
state’s attorney, for the appellee (state).
Opinion
KELLER, J. The defendant, Jodi M. Dojnia, appeals
from the judgment of conviction, rendered following a
jury trial, of assault of a disabled person in the second
degree in violation of General Statutes § 53a-60b (a)
(1).1 The defendant claims that (1) § 53a-60b (a) (1) is
unconstitutionally vague as applied to her conduct, (2)
the evidence did not support a finding that the victim2
was physically disabled, and (3) prosecutorial impropri-
ety during closing argument deprived her of a fair trial.
We affirm the judgment of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
In October, 2015, the defendant and the victim, who
are sisters, resided in separate units of a duplex style
home in Naugatuck that was owned by their mother.
For years prior to the events at issue, the victim suffered
from chronic pain and was physically limited in per-
forming everyday tasks, such as standing, walking, and
climbing stairs.
For several years prior to the events at issue, the
defendant and the victim did not have a good relation-
ship. The relationship between the defendant and the
victim worsened in January, 2015, when the defend-
ant’s son, who resided with the defendant, was involved
in an altercation with the victim at her residence.
According to the victim, during this prior incident, the
defendant’s son broke down her back door and attacked
her, which led to his arrest. Tensions escalated further
because the defendant was unhappy with the fact that
the victim’s dog entered her portion of their shared
backyard, and that the victim failed to clean up after
her dog. Shortly before the incident underlying this
appeal, the defendant erected a small plastic fence to
separate her backyard from that of the victim in an
attempt to keep the victim’s dog away. The fence ran
across the backyard and between the two rear doors
of the residence. The victim was unhappy about the
fence. The victim’s mother had asked the victim to look
for another place to live and, by October, 2015, the
victim was actively planning to move out of her res-
idence.
Late in the evening on October 10, 2015, the victim
walked out of the front door of her residence. From
one of the windows of the defendant’s residence, the
defendant made a negative comment to the victim, who
was talking on her cell phone, but the victim declined to
engage the defendant in conversation. At approximately
1:30 a.m., on October 11, 2015, the victim left her resi-
dence to walk her dog by means of her back door,
which was adjacent to the back door leading into the
defendant’s residence. By this point in time, the victim
had consumed multiple alcoholic beverages. The victim
walked her dog in the vicinity of her nearby driveway.
While the victim was reentering her residence with
her dog, she noticed that a light had been turned on
inside of the defendant’s residence. The victim then
stepped back outside, at which time the defendant, who
was lurking near the victim’s back door, grabbed the
victim by the upper part of her body and pulled her
over the small plastic fence that was separating their
backyards, causing the victim to topple to the ground. A
physical struggle between the defendant and the victim
ensued, during which the defendant struck the victim
repeatedly with a wooden billy club. The victim, while
lying on the ground, tried to prevent the defendant
from continuing to strike her. The victim grabbed the
defendant’s hand and pulled her by her hair, causing
her to fall on top of her. The victim repeatedly told
the defendant to ‘‘[l]et go’’ of the billy club, and the
defendant told the victim that she was tired of her, that
she hated her, and that she wanted her ‘‘out of here.’’
Ultimately, the victim restrained the defendant, and
the victim asked her what their father, who had died,
would say to them if he saw them fighting. The defen-
dant promised not to strike the victim again, at which
time the victim released her grasp on the defendant’s
hair and the defendant stepped away from the victim.
The defendant picked up the victim’s cell phone,
which had fallen out of the victim’s hands during the
altercation, and gave it back to her. The victim tossed
aside one of the defendant’s garbage pails before mak-
ing her way back inside. The victim was bleeding from
her nose and choking on blood. The victim sustained
multiple bruises and lacerations on her face, back, left
arm, left shoulder, left leg, and torso. The victim’s right
eye swelled and she experienced a great deal of pain,
particularly pain that emanated from her jaw. The vic-
tim’s clothing was stained with blood and dirt, and she
was unable immediately to locate either her eyeglasses
or a pendant that she had been wearing prior to the alter-
cation.
After the victim went back inside of her residence,
she called the police. Soon thereafter, Naugatuck police
Officer Robert Byrne arrived on the scene. He encoun-
tered the defendant and the victim arguing in front of
the residence. After he separated the sisters, he met
privately with the defendant. The defendant admitted
that she had struck the victim with the wooden billy
club, which was on her kitchen table, but stated that
she had acted in self-defense. The defendant also stated
that she had begun arguing with the victim after she
caught the victim ‘‘snooping around in the backyard
. . . .’’ She stated that the small plastic fence that she
had erected to prevent the victim’s dog from entering
her portion of the backyard was a cause of consterna-
tion between her and the victim. The defendant sus-
tained injuries during the incident and claimed to have
been ‘‘strangled’’ by the victim, but her injuries were
not serious enough to warrant medical treatment. Byrne
arrested the defendant on the assault charge, took her
into custody, and transported her to police headquar-
ters to complete the booking process.
Naugatuck police Officer Shane Andrew Pucci
arrived on the scene to provide Byrne with backup
assistance. He spoke with the victim privately in her
residence and accompanied her to a hospital after emer-
gency medical services had arrived on the scene. At
the hospital, medical personnel took X-ray images of
the victim and treated her injuries. While at the hospital,
the victim provided Byrne with an oral statement con-
cerning the incident and her injuries. By 6 a.m. on Octo-
ber 11, 2015, the victim was discharged from the
hospital and transported home. Pucci gave the victim
a misdemeanor summons for disorderly conduct. Addi-
tional facts will be set forth as necessary in the context
of the claims raised on appeal.
I
First, we address the defendant’s claim that § 53a-
60b (a) (1) is unconstitutionally vague as applied to her
conduct.3 We disagree.
In a substitute information dated February 17, 2017,
the state charged the defendant with violating § 53a-
60b (a) (1) ‘‘in the town of Naugatuck . . . on or about
the 11th day of October, 2015, [in that the defendant]
recklessly caused serious physical injury to a disabled
person: to wit: [the victim] by means of a deadly
weapon, by hitting her with a billy club.’’
Section 53a-60b (a) provides in relevant part: ‘‘A per-
son is guilty of assault of an elderly, blind, disabled or
pregnant person or a person with intellectual disability
in the second degree when such person commits assault
in the second degree under section 53a-60 or larceny
in the second degree under section 53a-123 (a) (3) and
(1) the victim of such assault or larceny has attained
at least sixty years of age, is blind or physically disabled,
as defined in section 1-1f, or is pregnant . . . .’’ As is
reflected in the state’s substitute information, the state’s
theory of the case was that the defendant engaged in
conduct constituting assault in the second degree as
defined by General Statutes § 53a-60 (a) (3) against the
victim, who is physically disabled as defined by General
Statutes § 1-1f (b). Section 53a-60 (a) provides: ‘‘A per-
son is guilty of assault in the second degree when . . .
(3) the actor recklessly causes serious physical injury
to another person by means of a deadly weapon or a
dangerous instrument . . . .’’ Section 1-1f (b) provides:
‘‘An individual is physically disabled if he has any
chronic physical handicap, infirmity or impairment,
whether congenital or resulting from bodily injury,
organic processes or changes or from illness, including,
but not limited to, epilepsy, deafness or hearing impair-
ment or reliance on a wheelchair or other remedial
appliance or device.’’
Relying on the protections afforded to her by the fifth
and fourteenth amendments to the federal constitution,
the defendant argues that § 53a-60b (a) (1) is impermis-
sibly vague because it expressly relies on the definition
of ‘‘physically disabled’’ that is codified in § 1-1f (b).
The defendant argues that § 1-1f sets forth a definition
of ‘‘physically disabled’’ that is impermissibly broad and
that is unclear to the average person. According to the
defendant, because § 53a-60b (a) (1) fails to define the
offense with sufficient definiteness, the statute was sus-
ceptible of being applied in an arbitrary and discrimina-
tory manner against her in the present case. The
defendant argues: ‘‘Specifically, it allowed [for] a con-
viction of assault in the second degree of a disabled
person where the state introduced minimal evidence
that the victim suffered from fibromyalgia, a poorly
understood and oftentimes misdiagnosed syndrome.
. . . Put another way, the statute was arbitrarily
enforced because it is so unclear that ordinary people
cannot understand what specifically constitutes ‘physi-
cally disabled,’ thereby allowing the state to rely on
[the statute] inconsistently and on an ad hoc basis.’’
The defendant clarifies that she does not claim that
§ 53a-60b (a) (1) is vague on its face, such that she
lacked notice of the conduct prohibited by the statute.
Rather, the defendant argues, § 53a-60b (a) (1) and § 1-
1f are ‘‘unconstitutionally vague in application because
the legislature, by incorporating § 1-1f into the criminal
offense . . . impermissibly delegated basic policy mat-
ters to the courts for resolution of whether a diagnosis
of fibromyalgia falls within the definition of ‘physically
disabled’ for resolution on an ad hoc basis. In so doing,
the enforcement of these statutes in the defendant’s
case [was] arbitrary.’’ (Footnote omitted.) In arguing
that the statute was applied arbitrarily to her, the defen-
dant relies on the fact that she ‘‘did not assault a victim
in a wheelchair, a victim with an amputation, nor a
victim with a type of visible, clearly diagnosable illness,
disease, or impairment.’’ Instead, the defendant argues,
‘‘she got into a fight with her sister, who has been
diagnosed with fibromyalgia . . . a poorly defined
medical condition about which the medical community
remains divided as to its existence.’’
The defendant seeks review of this unpreserved claim
under the bypass doctrine set forth in Golding, under
which ‘‘a defendant can prevail on a claim of constitu-
tional error not preserved at trial only if all of the
following conditions are met: (1) the record is adequate
to review the alleged claim of error; (2) the claim is
of constitutional magnitude alleging the violation of a
fundamental right; (3) the alleged constitutional viola-
tion . . . 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. In the absence of any one of these conditions,
the defendant’s claim will fail. The appellate tribunal
is free, therefore, to respond to the defendant’s claim
by focusing on whichever condition is most relevant in
the particular circumstances.’’ (Emphasis in original;
footnote omitted.) State v. Golding, 213 Conn. 233, 239–
40, 567 A.2d 823 (1989), as modified by In re Yasiel R.,
317 Conn. 773, 781, 120 A.3d 1188 (2015).
The record is adequate to review the claim because
the record reflects the conduct that formed the basis
of the defendant’s conviction under § 53a-60b (a) (1).
See, e.g., State v. Indrisano, 228 Conn. 795, 800, 640 A.2d
986 (1994) (discussing requirements for reviewability).
Additionally, we conclude that because a claim that a
statute is vague as applied to a defendant implicates
the constitutional guarantee of due process that is
enshrined in the fourteenth amendment to the United
States constitution; see, e.g., State v. Pettigrew, 124
Conn. App. 9, 24–25, 3 A.3d 148, cert. denied, 299 Conn.
916, 10 A.3d 1052 (2010); the claim is of constitutional
magnitude. Having determined that the claim is review-
able under Golding, we turn to its merits.
‘‘The determination of whether a statutory provision
is unconstitutionally vague is a question of law over
which we exercise de novo review. . . . In undertaking
such review, we are mindful that [a] statute is not void
for vagueness unless it clearly and unequivocally is
unconstitutional, making every presumption in favor
of its validity. . . . To demonstrate that [a statute] is
unconstitutionally vague as applied to him, the [defen-
dant] therefore must . . . demonstrate beyond a rea-
sonable doubt that [he] had inadequate notice of what
was prohibited or that [he was] the victim of arbitrary
and discriminatory enforcement. . . . [T]he void for
vagueness doctrine embodies two central precepts: the
right to fair warning of the effect of a governing statute
. . . and the guarantee against standardless law
enforcement. . . . If the meaning of a statute can be
fairly ascertained a statute will not be void for
vagueness since [m]any statutes will have some inher-
ent vagueness, for [i]n most English words and phrases
there lurk uncertainties. . . . References to judicial
opinions involving the statute, the common law, legal
dictionaries, or treatises may be necessary to ascertain
a statute’s meaning to determine if it gives fair warn-
ing. . . .
‘‘The United States Supreme Court has set forth stan-
dards for evaluating vagueness. First, because we
assume that man is free to steer between lawful and
unlawful conduct, we insist that laws give the person
of ordinary intelligence a reasonable opportunity to
know what is prohibited, so that he may act accordingly.
Vague laws may trap the innocent by not providing fair
warning. . . . [A] law forbidding or requiring conduct
in terms so vague that men of common intelligence
must necessarily guess at its meaning and differ as to
its application violates due process of law. . . .
‘‘Second, if arbitrary and discriminatory enforcement
is to be prevented, laws must provide explicit standards
for those who apply them. A vague law impermissibly
delegates basic policy matters to policemen, judges,
and juries for resolution on an ad hoc and subjective
basis, with the attendant dangers of arbitrary and dis-
criminatory applications. . . . Therefore, a legislature
[must] establish minimal guidelines to govern law
enforcement. . . .
‘‘Tempering the foregoing considerations is the
acknowledgment that many statutes proscribing crimi-
nal offenses necessarily cannot be drafted with the
utmost precision and still effectively reach the targeted
behaviors. Consistent with that acknowledgment, the
United States Supreme Court has explained: The root
of the vagueness doctrine is a rough idea of fairness.
It is not a principle designed to convert into a constitu-
tional dilemma the practical difficulties in drawing crim-
inal statutes both general enough to take into account
a variety of human conduct and sufficiently specific to
provide fair warning that certain kinds of conduct are
prohibited. Colten v. Kentucky, 407 U.S. 104, 110, 92 S.
Ct. 1953, 32 L. Ed. 2d 584 (1972) . . . . Simply put,
[w]hile some ambiguous statutes are the result of poor
draftsmanship, it is apparent that in many instances the
uncertainty is merely attributable to a desire not to
nullify the purpose of the legislation by the use of spe-
cific terms which would afford loopholes through which
many could escape.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Winot, 294 Conn. 753,
758–61, 988 A.2d 188 (2010).
‘‘A statute . . . [that] forbids or requires conduct in
terms so vague that persons of common intelligence
must necessarily guess at its meaning and differ as to
its application violates the first essential of due process.
. . . Laws must give a person of ordinary intelligence
a reasonable opportunity to know what is prohibited
so that he may act accordingly. . . . Unless a
vagueness claim implicates the first amendment right
to free speech, [a] defendant whose conduct clearly
comes within a statute’s unmistakable core of prohib-
ited conduct may not challenge the statute because it
is vague as applied to some hypothetical situation
. . . . In contrast, [i]n a facial vagueness challenge,
we . . . examine the challenged statute to see if it is
impermissibly vague in all of its applications. A statute
that is impermissibly vague in all its applications is
vague, not in the sense that it requires a person to
conform his conduct to an imprecise but comprehensi-
ble normative standard, but rather in the sense that no
standard of conduct is specified at all. . . . Such a
provision simply has no core.’’ (Citations omitted;
emphasis omitted; internal quotation marks omitted.)
State v. Josephs, 328 Conn. 21, 31–32, 176 A.3d 542(2018). ‘‘The proper test for determining [whether] a
statute is vague as applied is whether a reasonable
person would have anticipated that the statute would
apply to his or her particular conduct. . . . The test is
objectively applied to the actor’s conduct and judged
by a reasonable person’s reading of the statute . . . .
‘‘If the language of a statute fails to provide definite
notice of prohibited conduct, fair warning can be pro-
vided by prior judicial opinions involving the statute
. . . or by an examination of whether a person of ordi-
nary intelligence would reasonably know what acts are
permitted or prohibited by the use of his common sense
and ordinary understanding.’’ (Internal quotation marks
omitted.) State v. Lavigne, 121 Conn. App. 190, 205–206,
995 A.2d 94 (2010), aff’d, 307 Conn. 592, 57 A.3d 332(2012).
As is reflected in the general recitation of facts, there
was evidence to support a finding that, on October 11,
2015, the defendant grabbed the victim by the upper
body, pulled her over the small plastic fence that sepa-
rated her backyard from the victim’s backyard, and
struck her repeatedly with a wooden billy club until the
victim restrained the defendant and stopped the attack.
At trial, the victim testified about her extensive medi-
cal history. She testified that she had experienced back
problems since 2000 and had undergone two surgical
procedures on her back. She testified that she had
undergone multiple ‘‘foot surgeries’’ in 1990, ‘‘five or
six ear surgeries’’ in 2000, and ‘‘one breast surgery.’’
Also, the victim testified that she had suffered from
a nerve condition called fibromyalgia, for which she
receives ongoing medical treatment. She testified that,
at the time that the assault occurred, she was using a
variety of medications that had been prescribed for her.
Specifically, she was using a medication called Savella
to treat her fibromyalgia, three times per day. She was
using a medication called Vicodin to treat her pain,
usually once per day. She explained: ‘‘Depending on
the day, if . . . I know I’m not going to be doing much
that day, I’ll probably just take one [Vicodin] in the
morning or when I wake up.’’ She also testified that
she used Ambien, which helped her to sleep, as needed.
The victim testified that she had experienced physical
limitations for many years: ‘‘I can’t sit too long. I can’t
stand too long. Walking a far distance is difficult for
me. Stairs are very difficult for me to do if I’m carrying
something. Just grocery shopping, doing laundry, it’s a
task for me to do those things.’’
The victim testified that she had received treatment
from her primary care physician as well as from Mat-
thew Letko, whom she described as being an employee
of ‘‘[the] arthritis center.’’ The victim testified that she
had received social security disability payments since
2004, and that in the ten years prior to her testimony
in 2017, she had not had been engaged in any employ-
ment to supplement her disability income.
The state presented testimony from Letko, who
explained that he was a physician’s assistant employed
by the Arthritis Center of Connecticut, in Waterbury.4
Letko testified that the victim had been a patient of
the center since February, 2008, and that he had been
treating her since 2009 for ‘‘chronic pain issues, chronic
low back pain and fibromyalgia syndrome.’’ He testified
that fibromyalgia is ‘‘a widespread pain syndrome pri-
marily affecting muscles, upper back, mid-back, low
back, hips, shoulders. It presents with a lot of tender-
ness, sensitivity to touch. There can also be other symp-
toms associated like fatigue, poor sleep.’’ Letko testified
that the treatment that he provided to the victim
included prescribing ‘‘Savella, which is a medication
specifically approved for fibromyalgia syndrome, mus-
cle relaxants, anti-inflammatory medications; other
treatments also include injections, physical therapy,
[and] aquatic therapy.’’ He testified that, in October,
2015, the victim was prescribed Savella, Ambien and
Vicodin. Letko testified that he evaluated the victim on
a monthly basis. He stated that the physical limitations
related to her chronic back pain and fibromyalgia
included difficulty in prolonged sitting, hearing, bend-
ing, lifting, and using stairs. Letko testified that although
her pain symptoms may fluctuate from day to day, her
condition was not going to improve. He testified that
the goal of his treatment plan for the victim ‘‘would be
to manage the pain effectively enough where she can
have a quality of life where she can function around
the home, in the community . . . take care of herself,
get out of bed every morning, perform basic tasks
around the house.’’
The defendant argues that to the extent that § 53a-
60b (a) (1) relies on § 1-1f (b) to define ‘‘physically
disabled,’’ it lacks sufficient definiteness in that it fails
to apprise ordinary persons of the meaning of ‘‘physi-
cally disabled’’ and, thus, it does not provide sufficient
guidance with respect to whether the victim was physi-
cally disabled. Although we do not have the benefit of
a prior judicial interpretation of ‘‘physically disabled,’’
its meaning is ascertainable by affording the language
of § 1-1f (b) its plain meaning. ‘‘The process of statutory
interpretation involves the determination of the mean-
ing of the statutory language as applied to the facts of
the case . . . . When construing a statute, [o]ur funda-
mental objective is to ascertain and give effect to the
apparent intent of the legislature. . . . In other words,
we seek to determine, in a reasoned manner, the mean-
ing of the statutory language as applied to the facts of
[the] case . . . . In seeking to determine that meaning
. . . [General Statutes] § 1-2z directs us first to consider
the text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered. . . . Issues of statutory
construction raise questions of law, over which we exer-
cise plenary review.’’ (Citation omitted; internal quota-
tion marks omitted.) State v. Griffin, 184 Conn. App.
595, 617–18, 195 A.3d 723, cert. denied, 330 Conn. 941,
195 A.3d 692, 693 (2018).
As we have set forth previously, § 1-1f provides: ‘‘An
individual is physically disabled if he has any chronic
physical handicap, infirmity or impairment, whether
congenital or resulting from bodily injury, organic pro-
cesses or changes or from illness, including, but not
limited to, epilepsy, deafness or hearing impairment or
reliance on a wheelchair or other remedial appliance
or device.’’ It is well settled that courts may rely on
dictionaries when ascertaining the commonly approved
usage of words and phrases found in statutes. See, e.g.,
Princess Q. H. v. Robert H., 150 Conn. App. 105, 115,
89 A.3d 896 (2014). ‘‘Chronic’’ is defined in relevant part
as ‘‘marked by long duration or frequent recurrence:
not acute . . . .’’ Merriam-Webster’s Collegiate Dic-
tionary (11th Ed. 2012) p. 221. ‘‘Physical’’ is defined in
relevant part as ‘‘of or relating to the body . . . .’’ Id.,
p. 935. ‘‘Handicap’’ is defined in relevant part as ‘‘a
disadvantage that makes achievement unusually diffi-
cult . . . .’’ Id., p. 565. ‘‘Infirm’’ is defined in relevant
part as ‘‘of poor or deteriorated vitality . . . feeble
from age . . . not solid or stable . . . .’’ Id., p. 640.
‘‘Impair’’ is defined as ‘‘to damage or make worse by
or as if by diminishing in some material respect . . . .’’
Id., p. 622.
Contrary to the ambiguity suggested by the defen-
dant, the term ‘‘physical disability,’’ as used in § 1-1f
(b), has a readily ascertainable meaning. It refers to
any recurring bodily condition that detrimentally
affects one’s ability to carry out life’s activities, regard-
less of whether it is congenital, the result of bodily
injury, organic processes, or the result of illness. The
language used in the statute, particularly the phrase,
‘‘not limited to,’’ reflects that the legislature did not
intend to set forth an exhaustive list of each and every
bodily condition that could result in a physical disabil-
ity, and the fact that the legislature did not do so does
not necessitate a conclusion that the statute lacks suffi-
cient guidance with respect to its meaning. See, e.g.,
State v. Winot, supra, 294 Conn. 760–61 (lack of specific-
ity not necessarily result of imprecise drafting but desire
not to create loopholes in statute). Here, the language
at issue is general enough to encompass a wide variety
of physical conditions, yet specific enough to provide
sufficient notice as to its meaning and, specifically, as
to the types of bodily conditions encompassed by the
term ‘‘physical disability.’’
We conclude that the defendant’s violent conduct in
the present case clearly came within the unmistakable
core of conduct prohibited by § 53a-60b (a) (1). The
record reflects that the victim was physically disabled
for purposes of § 53a-60b (a) (1) because she suffered
from a chronic bodily condition that significantly ham-
pered her ability to carry out many of the everyday
activities of life. The record reflects that the victim’s
physical condition, which caused her pain, disadvan-
taged her, and that, for years prior to the events at
issue, the victim had received medical treatment to treat
that condition, which included prescriptions to alleviate
her pain and to help her sleep.5 A plain reading of § 53a-
60b (a) (1) and the facts in evidence strongly persuade
us to conclude that a reasonable person of ordinary
intelligence would have anticipated that the statute
would apply to the defendant’s violent conduct toward
the specific victim in the present case.6
In light of the foregoing, we disagree with the defen-
dant that the statute lacked minimal guidelines or suffi-
cient standards to guide law enforcement with respect
to its proper application. Accordingly, we conclude that
the defendant’s claim fails under Golding’s third prong
because she has failed to demonstrate that a constitu-
tional violation occurred that deprived her of a fair trial.
II
Next, the defendant claims that the evidence did not
support a finding that the victim was physically disabled
for purposes of § 53a-60b (a) (1).7 This claim consists
of two closely related subclaims that we will analyze
separately. First, the defendant claims that the evidence
was insufficient to demonstrate that the victim ‘‘had
a diagnosis of fibromyalgia.’’ Second, the defendant
claims that, if the evidence supported a finding that
the victim had been diagnosed with fibromyalgia, ‘‘[a]
diagnosis of fibromyalgia does not satisfy the physical
disability requirement of § 53a-60b (a) (1).’’ We dis-
agree.
We begin by setting forth the familiar standard of
review for claims of evidentiary insufficiency in a crimi-
nal appeal. ‘‘The standard of review we apply to a claim
of insufficient evidence is well established. In reviewing
the sufficiency of the evidence to support a criminal
conviction we 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 [finder of fact] reasonably could have
concluded that the cumulative force of the evidence
established guilt beyond a reasonable doubt. . . .
‘‘We note that the [finder of fact] must find every
element proven beyond a reasonable doubt in order to
find the defendant guilty of the charged offense, [but]
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 [finder
of fact] to conclude that a basic fact or an inferred fact
is true, the [finder of fact] is permitted to consider the
fact proven and may consider it in combination with
other proven facts in determining whether the cumula-
tive effect of all the evidence proves the defendant
guilty of all the elements of the crime charged beyond
a reasonable doubt. . . .
‘‘In evaluating evidence, the [finder] of fact is not
required to accept as dispositive those inferences that
are consistent with the defendant’s innocence. . . .
The [finder of fact] may draw whatever inferences from
the evidence or facts established by the evidence it
deems to be reasonable and logical. . . .
‘‘On appeal, we do not ask whether there is a reason-
able view of the evidence that would support a reason-
able hypothesis of innocence. We ask, instead, whether
there is a reasonable view of the evidence that supports
the [finder of fact’s] verdict of guilty.’’ (Internal quota-
tion marks omitted.) State v. Calabrese, 279 Conn. 393,
402–403, 902 A.2d 1044 (2006).
We also clarify the essential elements of the offense
that are the subject of the defendant’s claim. To obtain
a conviction under § 53a-60b (a) (1), the state bore the
burden of proving beyond a reasonable doubt that (1)
the defendant committed assault in the second degree
pursuant to § 53a-60 and (2) the victim of the assault
was physically disabled pursuant to § 1-1f (b). The
defendant does not challenge the sufficiency of the
evidence with respect to the first element. The defen-
dant challenges only the second essential element of
the offense, which requires proof beyond a reasonable
doubt that the victim of the assault ‘‘has any chronic
physical handicap, infirmity or impairment, whether
congenital or resulting from bodily injury, organic pro-
cesses or changes or from illness, including, but not
limited to, epilepsy, deafness or hearing impairment or
reliance on a wheelchair or other remedial appliance
or device.’’ General Statutes § 1-1f (b). To the extent
that the defendant’s claim requires us to interpret § 1-
1f (b), we rely on the interpretation of the statute set
forth in part I of this opinion.
A
The defendant claims that the evidence was insuffi-
cient to sustain the conviction because the state failed
to prove beyond a reasonable doubt that the victim
‘‘had a diagnosis of fibromyalgia.’’ The defendant argues
in relevant part: ‘‘Because fibromyalgia is a poorly
defined illness with no clear understanding of its pathol-
ogy within the medical community, the state cannot,
as a matter of law, prove beyond a reasonable doubt
that someone has fibromyalgia.’’ The defendant also
argues: ‘‘The dearth of evidence produced by the state
as to how exactly Letko and his supervising physician
came to a diagnosis and the severity of [the victim’s]
specific case of fibromyalgia supports a conclusion that
the evidence was insufficient for the jury reasonably
to conclude beyond a reasonable doubt that [the victim]
suffered from a disabling case of fibromyalgia. . . .
‘‘Letko’s testimony focused on fibromyalgia, in gen-
eral, and how he treated [the victim] based on a diagno-
sis of fibromyalgia. The state did not introduce any
evidence as to Letko’s methodology for arriving at [the
victim’s] diagnosis, or testing specific to [the victim]
that he conducted to rule out other potential causes of
her symptoms. . . . Nor did the state introduce any of
[the victim’s] medical records to support a diagnosis.
Because no exclusive test exists to demonstrate that a
patient suffers from fibromyalgia . . . it is important
for the evidence to support a conclusion that the diagno-
sis is correct.’’ (Citations omitted.)
In part I of this opinion, we discussed the evidence
presented by the state with respect to the victim’s physi-
cal disability. We reiterate that this evidence was in
the form of testimony from the victim and Letko, the
physician’s assistant who treated her for many years.
Letko testified in relevant part that he had treated the
victim for ‘‘[v]arious chronic pain issues, chronic low
back pain, and fibromyalgia syndrome.’’ He discussed
the various forms of therapy that he used on the victim,
including ‘‘a medication specifically approved for fibro-
myalgia syndrome, muscle relaxants, anti-inflammatory
medications . . . injections, physical therapy, [and]
aquatic therapy.’’ Letko testified that the victim was
prescribed medication to treat fibromyalgia, medica-
tion to help her sleep, and medicine to alleviate pain.
Although the victim and Letko testified that the victim
suffered from fibromyalgia, neither the victim nor Letko
attributed her chronic physical condition solely to fibro-
myalgia. To the contrary, Letko testified that the vic-
tim’s ‘‘chronic back pain and fibromyalgia syndrome’’
caused the victim to experience pain and to have limita-
tions with respect to activities including sitting, hearing,
bending, lifting and going up and down stairs. Letko
testified that his goal in treating the victim is to manage
her pain so that she can ‘‘get out of bed every morning
[and] perform basic tasks around the house.’’8
The defendant couches her claim in terms of whether
the victim ‘‘had a diagnosis of fibromyalgia’’ at the time
of the assault. Viewing the evidence in the light most
favorable to sustaining the verdict, we conclude that
the testimony of both the victim and Letko demon-
strated that the victim had such a diagnosis. The sub-
stance of the defendant’s arguments, however, reflects
the defendant’s apparent belief that the state bore the
burden of proving beyond a reasonable doubt that the
diagnosis was medically accurate and that the victim’s
alleged physical disability for purposes of § 1-1f (b) was
the result of fibromyalgia.
As our discussion of the elements of the offense
reflects, the state did not bear the burden of demonstra-
ting beyond a reasonable doubt that the victim had been
diagnosed with fibromyalgia, that she suffered from
fibromyalgia, or that her physical disability was the
result of fibromyalgia. Moreover, as we have noted in
this opinion, in proving that the victim suffered from a
chronic physical disability, one that caused the victim
pain and difficulty performing life’s everyday tasks, the
state did not rely solely on evidence that the victim
suffered from fibromyalgia. There was evidence of the
victim’s lengthy medical history and testimony from
Letko that the victim’s physical disability was attribut-
able to ‘‘various chronic pain issues, chronic low back
pain, and fibromyalgia syndrome.’’ In any event, there
is no support for the proposition that the state bore
the burden of proving beyond a reasonable doubt the
victim’s physical disability was caused by any particular
illness or injury. ‘‘We are not in the business of writing
statutes; that is the province of the legislature. Our role
is to interpret statutes as they are written. . . . [We]
cannot, by [judicial] construction, read into statutes
provisions [that] are not clearly stated.’’ (Internal quota-
tion marks omitted.) Thomas v. Dept. of Developmental
Services, 297 Conn. 391, 412, 999 A.2d 682 (2010). Sec-
tion 1-1f (b) provides in relevant part that a person is
physically disabled if he or she has a chronic physical
handicap, infirmity or impairment ‘‘whether congenital
or resulting from bodily injury, organic processes or
changes or from illness, including, but not limited to,
epilepsy, deafness or hearing impairment or reliance
on a wheelchair or other remedial appliance or device.’’
On the basis of the foregoing, we conclude that the
defendant’s claim is not persuasive. The state did not
have to prove beyond a reasonable doubt that the victim
had received an accurate diagnosis for any particu-
lar illness or disease, but that she suffered from a
chronic physical disability that resulted from causes
including ‘‘bodily injury, organic processes or changes
or from illness . . . .’’ General Statutes § 1-1f (b). Here,
the testimony of the victim and Letko amply supported
a finding beyond a reasonable doubt that the victim
was physically disabled at the time the defendant
assaulted her.
B
The defendant claims that, even if the evidence sup-
ported a finding that the victim had been diagnosed
with fibromyalgia, ‘‘[a] diagnosis of fibromyalgia does
not satisfy the physical disability requirement of § 53a-
60b (a) (1).’’ The defendant argues that § 1-1f is ambigu-
ous with respect to whether fibromyalgia constitutes a
physical disability. On the one hand, the defendant
argues that fibromyalgia, as defined by Letko, appears
to be a chronic physical infirmity that is encompassed
by the statute. On the other hand, the defendant argues
that fibromyalgia does not appear to constitute a physi-
cal disability because a diagnosis of fibromyalgia cannot
‘‘be established through conclusive tests.’’ Relying on
materials that were not presented in evidence, the
defendant asserts: ‘‘Fibromyalgia manifests itself in
numerous ways. In addition, the level of severity of
symptoms varies widely from patient to patient, and
even from day to day for the same patient. Put simply,
fibromyalgia is not as uniform in its symptoms, severity,
and presentation as some other disabilities that can be
more easily quantified. By way of illustration, there are
tests to determine the severity of hearing loss and levels
of permanent impairment for orthopedic injuries. There
is no indication, however, that many patients diagnosed
with fibromyalgia have any presentation of a disability
that can be qualified in the same way, let alone affect
their level of vulnerability and require additional protec-
tions in the same way other physical disabilities do.’’
The defendant’s claim is not persuasive for several
reasons. The defendant’s arguments are limited to fibro-
myalgia and whether a diagnosis of fibromyalgia, in and
of itself, constitutes a physical disability for purposes
of § 1-1f. As we observed previously in this opinion,
the evidence that the state presented concerning the
victim’s physical disability was not limited to a diagno-
sis of fibromyalgia. Both the victim and Letko testified
that the victim had a complex medical history and, as
Letko observed, over the course of several years, he
had prescribed medications and provided a variety of
treatments to the victim to treat ‘‘[v]arious chronic pain
issues, chronic low back pain, and fibromyalgia syn-
drome.’’
Additionally, we observe that the defendant urges us
to interpret § 1-1f (b) in such a manner that it requires
proof of a disability that ‘‘[can] be established through
conclusive [medical] tests.’’ Stated otherwise, the defen-
dant argues that a physical disability must be more
‘‘uniform in its symptoms, severity, and presentation’’
or at least ‘‘more easily quantified’’ than fibromyalgia.
These arguments are readily undermined by the lan-
guage used in § 1-1f. Simply put, adopting the defen-
dant’s interpretation of the statute would graft upon
the statute limitations that are not evident in the statute
as it is written. The statute, as written, focuses not on
the cause of a physical disability, but on whether a
person is disabled, and it does not require that a physical
disability be obvious or readily verifiable in the manner
suggested by the defendant. We reject the defendant’s
invitation to exclude from the definition of ‘‘physical
disability’’ a chronic and painful physical condition that
significantly hinders a person’s ability to carry out sev-
eral of the everyday activities of life. To do so would
thwart the broad protective purpose reflected in the
plain language of § 1-1f (b).
For the foregoing reasons, the defendant has failed
to demonstrate that the evidence was insufficient to
prove that the victim suffered from a physical disability
for purposes of § 53a-60b (a) (1).
III
Last, the defendant claims that prosecutorial impro-
priety during closing argument deprived her of a fair
trial. We disagree.
The relevant facts are as follows. There was evidence
that, for many years, the defendant and the victim had
a rocky relationship and that, in the days leading up to
October 11, 2015, the issue of the victim’s dog and
the fence erected by the defendant was a cause of
disagreement between them. The victim testified that,
in the early morning of October 11, 2015, the defendant
caught her by surprise and physically assaulted her
after she had stepped out of the back door of her resi-
dence. The victim testified that the defendant grabbed
her by the upper body, pulled her over the small plastic
fence that separated their backyards, and struck her
with a wooden billy club while she lay helplessly on
the ground. The defendant repeatedly told the victim
that she hated her and wanted her to leave. The victim
testified that, ultimately, she restrained the defendant
and let her go after she had promised to stop striking
her.
At trial, the defendant testified in relevant part that
she was home alone on October 11, 2015. She became
startled when her doorbell rang at approximately 1:30
a.m. She armed herself with a wooden billy club for
protection and, in an attempt to see who rang her door-
bell, she went outside behind her residence. She did
not see anything noteworthy and turned to go back
inside. At that moment, the victim’s back door ‘‘goes
flying open,’’ and the victim, who smelled of alcohol,
angrily motioned to the defendant and stated, ‘‘[c[ome
on bitch . . . .’’ The defendant testified that, acting ‘‘in
a rage,’’ the victim grabbed her by the hair, pulled her
to the ground, and wrapped her body so tightly around
the defendant’s body that she had difficulty breathing.
The victim told the defendant, ‘‘[d]ie, bitch.’’ The defen-
dant testified that she and the victim ‘‘wrestl[ed]
around’’ before the defendant gained control of her billy
club and began to swing it ‘‘all over the place.’’ The
defendant testified that she certainly was not the aggres-
sor, and she could not recall striking the victim. She
testified that, after the altercation ended, she went
inside and called the police.
During its case-in-chief, and in the absence of an
objection by defense counsel, the state introduced into
evidence an audio recording of the 911 call that the
defendant had made at 1:58 a.m. on October 11, 2015.
During the call, the defendant briefly explained what
had occurred with her sister, the victim, in relevant
part, as follows: ‘‘I went outside to see who was out
there because somebody was ringing the fucking door-
bell and it was her standing there. She came at me, and
I fucking let—and a fight broke out.’’
During the prosecutor’s rebuttal closing argument,
she stated in relevant part: ‘‘What . . . the judge is
going to instruct you also [is] that you can draw reason-
able inferences from the evidence. And I’ll give you an
example of that. So, you can go further with what you
have to come to a conclusion of things that we don’t
know. And it’s the state’s position that the reasonable
inferences that you can draw from the evidence in this
case is that . . . the defendant was upset with [the
victim] . . . [the defendant] heard [the victim] walk
her dog out the back; [the defendant] turned out the
outside light and went outside with a billy club in her
hand; they had words; and, she, as she said or almost
said in the 911 call, she let [the victim] have it; she
struck [the victim] with the billy club across the nose
and eye; [the victim] fell to the ground.’’ (Emphasis
added.) The defendant did not object to the prosecu-
tor’s argument.
For the first time on appeal,9 the defendant, relying
on the emphasized portion of the prosecutor’s rebuttal
closing argument set forth in the preceding paragraph,
claims that ‘‘the prosecutor made improper argument by
describing facts not in evidence when she erroneously
speculated to the jury how the defendant would have
ended a statement that she did not finish during the
[911] call.’’ The defendant argues that the prosecutor’s
argument constituted an improper reference to ‘‘facts
not in evidence’’ and that it amounted to ‘‘pure specula-
tion’’ as to how the defendant may have completed the
statement that she made during the 911 call.
‘‘[I]n analyzing claims of prosecutorial [impropriety],
we engage in a two step analytical process. The two
steps are separate and distinct: (1) whether [impropri-
ety] occurred in the first instance; and (2) whether that
[impropriety] deprived a defendant of his due process
right to a fair trial. Put differently, [impropriety] is
[impropriety], regardless of its ultimate effect on the
fairness of the trial; whether that [impropriety] caused
or contributed to a due process violation is a separate
and distinct question that may only be resolved in the
context of the entire trial . . . .’’ (Internal quotation
marks omitted.) State v. Luster, 279 Conn. 414, 428, 902
A.2d 636 (2006). In evaluating whether prosecutorial
impropriety, if proven, amounted to a denial of due
process, we consider the factors enumerated by our
Supreme Court in State v. Williams, 204 Conn. 523, 540,
529 A.2d 653 (1987).
‘‘[P]rosecutorial [impropriety] of a constitutional
magnitude can occur in the course of closing argu-
ments. . . . In determining whether such [impropriety]
has occurred, the reviewing court must give due defer-
ence to the fact that [c]ounsel must be allowed a gener-
ous latitude in argument, as the limits of legitimate
argument and fair comment cannot be determined pre-
cisely by rule and line, and something must be allowed
for the zeal of counsel in the heat of argument. . . .
Thus, as the state’s advocate, a prosecutor may argue
the state’s case forcefully, [provided the argument is]
fair and based upon the facts in evidence and the reason-
able inferences to be drawn therefrom. . . . Moreover,
[i]t does not follow . . . that every use of rhetorical
language or device [by the prosecutor] is improper.
. . . The occasional use of rhetorical devices is simply
fair argument. . . . Nevertheless, the prosecutor has a
heightened duty to avoid argument that strays from the
evidence or diverts the jury’s attention from the facts
of the case. . . . This heightened duty derives from
our long recognition of the special role played by the
state’s attorney in a criminal trial. He is not only an
officer of the court, like every attorney, but is also a
high public officer, representing the people of the
[s]tate, who seek impartial justice for the guilty as much
as for the innocent. In discharging his most important
duties, he deserves and receives in peculiar degree the
support of the court and the respect of the citizens of
the county. By reason of his office, he usually exercises
great influence upon jurors. His conduct and language
in the trial of cases in which human life or liberty [is]
at stake should be forceful, but fair, because he repre-
sents the public interest, which demands no victim and
asks no conviction through the aid of passion, prejudice,
or resentment. If the accused be guilty, he should [none-
theless] be convicted only after a fair trial, conducted
strictly according to the sound and well-established
rules which the laws prescribe. While the privilege of
counsel in addressing the jury should not be too closely
narrowed or unduly hampered, it must never be used
as a license to state, or to comment upon, or to suggest
an inference from, facts not in evidence, or to present
matters which the jury ha[s] no right to consider. . . .
‘‘Or to put it another way while he may strike hard
blows, he is not at liberty to strike foul ones. It is
as much his duty to refrain from improper methods
calculated to produce a wrongful conviction as it is to
use every legitimate means to bring about a just one.
. . . A prosecutor must draw a careful line. On the one
hand, he should be fair; he should not seek to arouse
passion or engender prejudice. On the other hand, ear-
nestness or even a stirring eloquence cannot convict
him of hitting foul blows.’’ (Citations omitted; internal
quotation marks omitted.) State v. Rizzo, 266 Conn.
171, 246–47, 833 A.2d 363 (2003). It is beyond question
that ‘‘a prosecutor may not comment on evidence that
is not a part of the record and may not comment unfairly
on the evidence in the record.’’ State v. Fauci, 282 Conn.
23, 49, 917 A.2d 978 (2007).
Turning to the argument at issue in the present claim,
in which the prosecutor referred to what the defendant
‘‘said or almost said in the 911 call,’’ we observe initially
that the prosecutor’s challenged argument cannot rea-
sonably be interpreted as a suggestion by her that she
had additional facts concerning the 911 call beyond
those that were properly before the jury. The prosecu-
tor’s isolated remark was obviously based on the con-
tent of the 911 recording, and the entire 911 recording
was a full exhibit at trial which was played in the jury’s
presence. Thus, we are not persuaded that the remark
was not based on the evidence and conclude that it
was unlikely that the jury would have interpreted the
prosecutor’s remark as being based on evidence that
was known to her, but was not before the jury. See,
e.g., State v. Fernandez, 169 Conn. App. 855, 869, 153
A.23d 53 (2016) (‘‘when a prosecutor suggests a fact
not in evidence, there is a risk that the jury may con-
clude that he or she has independent knowledge of
facts that could not be presented to the jury’’ [internal
quotation marks omitted]).
Second, we observe that the context of the prosecu-
tor’s challenged argument unmistakably suggested that
she was asking the jury to draw inferences from the
evidence presented at trial, specifically, the 911
recording. The argument directly followed the prosecu-
tor’s statement that the jury was permitted to draw
reasonable inferences from the evidence, and the argu-
ment was made during what was, in the prosecutor’s
words, a summation of ‘‘the reasonable inferences that
you can draw from the evidence in this case . . . .’’
(Emphasis added.) ‘‘A prosecutor may invite the jury
to draw reasonable inferences from the evidence; how-
ever, he or she may not invite sheer speculation uncon-
nected to evidence.’’ (Internal quotation marks
omitted.) State v. Fernandez, supra, 169 Conn. App. 869.
If the prosecutor had incorrectly referred to what the
defendant ‘‘said’’ during the 911 call, such an argument
would constitute an improper comment on the evi-
dence. Here, however, the prosecutor referred to what
the defendant ‘‘said or almost said’’ during the 911 call.
The phrasing of the argument suggests that, during the
heat of closing argument, the prosecutor recognized
that she was not going to merely describe the 911 call,
but draw an inference from it. Thus, the phrase suggests
that she immediately corrected her reference to what
the defendant had ‘‘said.’’ ‘‘When reviewing the propri-
ety of a prosecutor’s statements, we do not scrutinize
each individual comment in a vacuum but, rather,
review the comments complained of in the context of
the entire trial. . . . [And], when a prosecutor’s poten-
tially improper remarks are ambiguous, a court should
not lightly infer that a prosecutor intends an ambiguous
remark to have its most damaging meaning or that a
jury, sitting through a lengthy exhortation, will draw
that meaning from the plethora of less damaging inter-
pretations.’’ (Citation omitted; internal quotation marks
omitted.) State v. Felix R., 319 Conn. 1, 9, 124 A.3d 871(2015). In light of the fact that the challenged argument
was made in the context of the prosecutor’s broader
argument concerning the reasonable inferences that
could be drawn from the evidence, we are not per-
suaded that the jury would have interpreted the isolated
remark about what the defendant ‘‘said’’ to be anything
other than the prosecutor’s suggested interpretation of
the 911 recording.
Moreover, the prosecutor’s argument that the 911
recording reasonably could be interpreted to suggest
that the defendant ‘‘almost said’’ during the 911 call
that she ‘‘let [the victim] have it’’ is a fair commentary
on the 911 recording. It was not in dispute that the 911
call was made in the minutes following the altercation
between the defendant and the victim. Although they
differed with respect to the manner in which the alterca-
tion began, both the defendant and the victim testified
that it was a startling and violent physical struggle. In
the 911 call, the defendant did, in fact, state that, after
she went outside, she found the victim standing there,
and that ‘‘[the victim] came at me, and I fucking let—
and a fight broke out.’’
The inference drawn by the prosecutor concerning
the way that the defendant ‘‘almost’’ described the alter-
cation during the 911 call was not the product of sheer
speculation. The defendant’s statement to the 911 dis-
patcher concerning the manner in which the altercation
began reasonably could be interpreted to reflect that
the defendant began to explain what she had done to
the victim, but that she changed her explanation mid-
sentence to provide a less incriminatory explanation
by stating ‘‘a fight broke out.’’ Moreover, the prosecu-
tor’s argument with respect to what the defendant
‘‘almost said’’ during the 911 call was consistent with
the defendant’s theory of defense and the defendant’s
trial testimony. The defendant relied on the theory of
self-defense, and the defendant’s testimony was that
she had frantically brandished the billy club during the
altercation to defend herself from the victim, who had
been the initial aggressor and had held on to her so
tightly that she experienced difficulty breathing. The
victim testified that the defendant had repeatedly struck
her with the billy club, and the evidence of her multiple
physical injuries supported a finding that the defendant,
in fact, had inflicted physical injuries. In describing
the course of events, the inference that the prosecutor
asked the jury to draw accurately reflected the defen-
dant’s own testimony, in line with her theory of the
case, that after the victim came at her, she started
‘‘swinging [the billy club] anywhere’’ to defend herself.
And, we observe, even if the requested inference was
drawn by the jury, it would not necessarily have proven
that the defendant had initiated the fight. Thus, the
prosecutor’s characterization of the 911 recording was
a fair commentary on the evidence.
In light of our conclusion that the defendant has not
demonstrated that prosecutorial impropriety occurred,
she is unable to demonstrate that the challenged argu-
ment deprived her of a fair trial.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
In addition to charging the defendant with assault of a disabled person
in the second degree in violation of § 53a-60b (a) (1), the state charged the
defendant with assault in the third degree in violation of General Statutes
§ 53a-61 (a) (1) and reckless endangerment in the second degree in violation
of General Statutes § 53a-64. The jury found the defendant guilty of both
assault of a disabled person in the second degree and reckless endangerment
in the second degree. The jury found the defendant not guilty of assault in
the third degree. At the time of sentencing, and at the state’s request, the
court vacated the jury’s verdict of guilty of reckless endangerment in the
second degree in accordance with the rationale set forth in State v. Polanco,
308 Conn. 242, 260, 61 A.3d 1084 (2013) (‘‘when a defendant is convicted
of greater and lesser included offenses, the trial court shall vacate the
conviction for the lesser offense rather than merging it with the conviction
for the greater offense’’). The court sentenced the defendant to serve a term
of incarceration of five years, execution suspended after she completed a
two year mandatory minimum sentence, followed by a term of probation
of three years.
2
In accordance with our policy of protecting the privacy interests of the
victims of family violence, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
3
Unlike the defendant, we address her vagueness claim before addressing
her sufficiency of the evidence claim because ‘‘the gist of a vagueness claim
. . . is that due process is violated whenever sufficient evidence of guilt is
too readily found by a jury that is left to its own discretion without the
guidance of definite enforcement standards.’’ State v. Schriver, 207 Conn.
456, 458–59 n.3, 542 A.2d 686 (1988).
4
The court recognized Letko, who testified that he had received training
and licensure as a physician’s assistant and had practiced under the supervi-
sion of a medical doctor, to be ‘‘an expert in the area of a physician’s
assistant.’’
5
The defendant attempts to discount the weight of the evidence of disabil-
ity presented by the state at trial by stating in her principal appellate brief
that fibromyalgia is ‘‘an illness that even the medical community does not
agree exists and believes is both misdiagnosed and overdiagnosed in stag-
gering numbers.’’ Moreover, in an attempt to demonstrate that the statute
was unconstitutionally vague as applied to her conduct, the defendant argues
that, if the statute is interpreted to encompass a condition such as fibromyal-
gia, it arguably could apply to an assault committed against the broad class
of persons who wear prescription eyeglasses.
The defendant’s arguments are not persuasive. First, the evidence does
not suggest that the victim’s physical disability is solely a consequence of
fibromyalgia. The evidence suggests that the victim’s physical disability may
have resulted from one or more of the physical conditions that she and
Letko discussed in their testimony and, in particular, her disability is her
chronic pain and her resulting difficulty in carrying out everyday activities.
Second, to the extent that the defendant invites us to evaluate whether the
statute is vague as applied to persons other than the victim and conditions
distinct from those experienced by the victim, which may result in physical
disability, we observe that in an evaluation of whether a statute is unconstitu-
tionally vague as applied to a defendant’s conduct, we do not focus on
whether it is vague as applied to a hypothetical situation, but whether it
is vague as objectively applied to the defendant’s conduct. See State v.
Josephs, supra, 328 Conn. 31–32; State v. Lavigne, supra, 121 Conn. App.
205–206.
6
Although the statute does not require that a defendant be aware of a
victim’s physical disability, the defendant testified in relevant part that she
was aware that the victim was physically disabled and had discussed the
victim’s medical conditions with her. The defendant also testified, however,
that the victim lied about and exaggerated her medical conditions.
7
The record reflects that the defendant did not preserve this sufficiency
claim for appellate review. The claim is nonetheless reviewable on appeal.
See State v. Lewis, 303 Conn. 760, 767 n.4, 36 A.3d 670 (2012).
8
Defense counsel cross-examined Letko with respect to the method by
which a diagnosis of fibromyalgia is made generally. He testified ‘‘there’s not
one specific test that you can do that clarifies the diagnosis of [fibromyalgia].
There’s not a simple blood test or X-ray or [magnetic resonance imaging
scan]. It’s certain criteria you need to meet. So, earlier, I had mentioned
widespread pain; so, there’s multiple tender points when you’re examining
the patient over the body, you know. And, also, you do other tests, so you
may want to rule out . . . other medical conditions through X-rays and,
basically, like, ruling out those other things and meeting the criteria of those
tender points . . . with the associated symptoms of poor sleep, depression,
headaches, fatigue that generally meets the criteria . . . to make the diagno-
sis for fibromyalgia syndrome.’’
Letko agreed with defense counsel that ‘‘all those tests’’ ruled out other
causes for the victim’s pain. In relevant part, Letko also testified that a
diagnosis of fibromyalgia is largely based on patient complaints and agreed
with defense counsel that patients ‘‘hypothetically’’ could fake their com-
plaints. Letko also testified that it was not uncommon for patients to com-
plain of back pain.
9
Pursuant to State v. Stevenson, 269 Conn. 563, 572–76, 849 A.2d 626(2004), the defendant’s unpreserved prosecutorial impropriety claim is
reviewable on appeal and it is unnecessary for this court to engage in an
analysis of the claim under State v. Golding, supra, 213 Conn. 239–40.