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State v. Miller
STATE OF CONNECTICUT v. JESSE LEE MILLER
(AC 46598)
Cradle, Clark and Sheldon, Js.
Syllabus
Convicted of the crimes of attempt to commit assault in the first degree
and assault in the second degree, the defendant appealed. He claimed, inter
alia, that the trial court improperly denied his motion to suppress certain
evidence, namely, the screwdriver used as a weapon in the assault. Held:
The trial court did not abuse its discretion in denying the defendant’s motion
to suppress the testimony of a police officer at the evidentiary hearing on
the motion having been sufficient to establish a reasonable probability that
the screwdriver the state intended to offer into evidence was the one found
at the scene and that it had not been changed or altered, thereby authenticating it.
This court declined to review the defendant’s unpreserved claim that the
trial court improperly allowed the state’s expert witness to opine on an
ultimate issue reserved for the jury.
The trial court did not abuse its discretion in permitting the state’s expert
witness to opine on a hypothetical question that allegedly omitted a material
fact, as the court reasonably could have concluded that the question provided
a fair summary of the relevant evidence and that the answer would assist
the jury.
The evidence was sufficient to support the jury’s verdict as to the defendant’s
intent to cause serious physical injury as required to support his conviction
of attempt to commit assault in the first degree.
The evidence was sufficient to establish that the screwdriver was a dangerous instrument as required to support the defendant’s convictions of attempt
to commit assault in the first degree and assault in the second degree.
Argued October 8—officially released December 10, 2024
Procedural History
Substitute information charging the defendant with
the crimes of attempt to commit assault in the first
degree and assault in the second degree, brought to the
Superior Court in the judicial district of New Haven,
geographical area twenty-three, where the court,
Alander, J., denied the defendant’s motion to suppress
certain evidence; thereafter, the case was tried to the
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State v. Miller
jury before Alander, J.; verdict and judgment of guilty,
from which the defendant appealed to this court.
Affirmed.
Chad L. Edgar, assigned counsel, for the appellant
(defendant).
Alexander A. Kambanis, deputy assistant state’s
attorney, with whom, on the brief, were John P. Doyle,
Jr., state’s attorney, and Kathleen E. Morgan, assistant
state’s attorney, for the appellee (state).
Opinion
CLARK, J. The defendant, Jesse Lee Miller, appeals
from the judgment of conviction, rendered after a jury
trial, of attempt to commit assault in the first degree
in violation of General Statutes §§ 53a-49 (a) (2)1 and
53a-59 (a) (1),2 and assault in the second degree in
violation of General Statutes § 53a-60 (a) (2).3 On
appeal, the defendant claims that (1) the court improperly denied his motion to suppress, (2) the court erroneously admitted certain expert testimony, and (3) there
was insufficient evidence to support his convictions.
We affirm the judgment of the court.
The following procedural history and facts, as the
jury reasonably could have found them, are relevant to
1
General Statutes § 53a-49 provides in relevant part: ‘‘(a) A person is
guilty of an attempt to commit a crime if, acting with the kind of mental
state required for commission of the crime, he . . . (2) intentionally does
or omits to do anything which, under the circumstances as he believes them
to be, is an act or omission constituting a substantial step in a course of
conduct planned to culminate in his commission of the crime. . . .’’
2
General Statutes § 53a-59 provides in relevant part: ‘‘(a) 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 by
means of a deadly weapon or a dangerous instrument . . . .’’
3
General Statutes § 53a-60 provides in relevant part: ‘‘(a) A person is
guilty of assault in the second degree when . . . (2) with intent to cause
physical injury to another person, the actor causes such injury to such
person or to a third person by means of a deadly weapon or a dangerous
instrument other than by means of the discharge of a firearm . . . .’’
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State v. Miller
this appeal. The victim, Rupert Beckford, had known
the defendant since the latter was a child. On the afternoon of August 9, 2021, the victim traveled by car from
the Island Spice restaurant in New Haven to Waterbury,
accompanied by Kenyatta Folkes, Hope Woodson, and
Folkes’ brother. After dropping off Folkes’ brother in
Waterbury, Folkes, Woodson, and the victim returned
to New Haven and parked the car across from Island
Spice. Folkes had been driving, with Woodson in the
front passenger seat, and the victim in the back seat
on the passenger side. Woodson exited the car first and
walked toward Island Spice. As the victim was moving
to exit the car, the defendant approached the car, pulled
open the door, placed his foot inside the car between
the victim’s legs, and began to punch him and thrust a
screwdriver toward his chest. The victim attempted to
push the defendant away from him and to shield himself
from the thrusted screwdriver. The attack was unprovoked. The victim had heart stents and was sixty-five
years old at the time of the offense; at the time of trial,
he was approximately five feet, four inches tall and
weighed 190 pounds. The defendant was slightly more
than six feet tall and weighed more than 200 pounds.
While the attack was occurring, a group of bystanders
converged around the car. Folkes jumped out of the
car, at which point the defendant moved away from
the car and began walking toward the middle of the
street. As he did so, the defendant said: ‘‘I got him, I
got him, who else wants it, I got him.’’ A bystander
approached the defendant swinging a baseball bat, and
Folkes picked up some stones and threw them at the
defendant, knocking the screwdriver out of his hand.
The defendant then walked down the street and away
from the scene. Woodson called 911.
Officer Brandon Cain of the New Haven Police
Department was dispatched to the scene at approximately 5:40 p.m. He located the defendant farther down
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State v. Miller
the street and placed him in handcuffs. Cain had consistently patrolled the area in which the attack occurred
since 2016 and had interacted with the defendant
approximately once per week leading up to the date of
the offense.
The victim sustained a one centimeter superficial
laceration to the right side of his chest—over the area
where his lungs and heart were located—as well as
small superficial lacerations to his right forearm. He
was transported via ambulance to Yale-New Haven Hospital (hospital), where he was admitted to the emergency department at 6:28 p.m. and discharged thirty
minutes later. He received Bacitracin and a Band-Aid
for his injuries, which were not life-threatening.
The defendant was tried before a jury of six over two
days on March 3 and 6, 2023. On March 6, 2023, the
jury returned a verdict of guilty of both charges. On
May 2, 2023, the court, Alander, J., sentenced the defendant to a total effective sentence of eleven years of
incarceration, suspended after six years (of which five
were a mandatory minimum), followed by five years of
probation. This appeal followed. Additional facts and
procedural history will be set forth as necessary.
I
The defendant first claims that the court improperly
denied his motion to suppress the screwdriver used in
the assault of the victim. He argues that the screwdriver
should not have been admitted as evidence because
there was a break in the chain of custody, and the
state thus failed to meet its burden of establishing the
screwdriver’s authenticity. We are not persuaded.
The following additional facts and procedural history
are relevant to this claim. On March 2, 2023, the eve
of trial, the defendant filed a motion to suppress the
screwdriver, in which he averred that the evidence was
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State v. Miller
‘‘tainted’’ because ‘‘the chain of custody . . . was broken when [the screwdriver] was commingled with other
articles, thus causing the [screwdriver] to be tampered
with.’’ The court held an evidentiary hearing on this
motion on March 3, 2023, before the start of evidence
in the defendant’s trial. The state presented the testimony of one witness at the hearing, Sergeant Scott
Shumway of the New Haven Police Department; the
defendant did not call any witnesses.
Shumway testified that he was dispatched to the location of the incident on August 9, 2021. Other officers
were already present at the scene when he arrived,
and one of them identified a screwdriver lying on the
pavement in a parking lot as the weapon that had been
used in the incident. Shumway picked up the screwdriver and placed it loosely in the trunk of his police
cruiser. He did not put the screwdriver in an evidence
bag at the scene. The trunk contained large bags and
other tools. Shumway did not recall that there were
any other screwdrivers in the trunk. After placing the
screwdriver in his trunk, Shumway drove directly from
the scene to police headquarters, where he logged the
screwdriver into evidence with the front desk sergeant.
The screwdriver was placed in a box used to log knives
and other sharp objects into evidence. The state showed
this box, which contained a screwdriver, to Shumway
on the stand, and asked him whether the screwdriver
it contained was the same one he had recovered from
the scene. Shumway testified, ‘‘[w]ith a high degree of
certainty,’’ that the screwdriver in the box was the same
screwdriver that he had picked up from the parking lot
at the scene of the incident and logged into evidence.
Following Shumway’s testimony and brief argument
by the parties, the court orally denied the defendant’s
motion to suppress. The court explained its ruling: ‘‘I
think based—given [Shumway’s] testimony that he’s
highly certain that that’s the screwdriver that he . . .
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State v. Miller
picked up from the parking lot, put it in his trunk, and
then . . . took it—there doesn’t seem to be a chain of
custody issue here. I mean, he testified that he picked
that screwdriver up from the parking lot, put it in his
trunk, took it to the police station, had it logged into
the . . . evidence room. He testified that he’s highly
certain that that is the screwdriver. There’s . . . no
evidence before me that it’s—that either it’s been
altered or changed or exchanged or it’s just the wrong
screwdriver. I think based on that testimony I’m [going
to] allow the state to elicit that evidence.’’4
We begin with the relevant principles of law and
standard of review. In order to be admissible, evidence
must be authenticated; that is, the offering party must
put forth evidence sufficient to support a finding that
the proffered evidence is what its proponent claims
it to be. Conn. Code Evid. § 9-1 (a). ‘‘To establish a
foundation for admission, [a]n item offered as real evidence must be positively identified as the item in question. This can be done by establishing unique or distinguishable configurations, marks, or other characteristics,
or by satisfactory proof of the item’s chain of custody
from the time of the incident to the time of trial.’’ (Internal quotation marks omitted.) State v. Dearborn, 82
Conn. App. 734, 744–45,
846 A.2d 894, cert. denied,
270
Conn. 904,
853 A.2d 523 (2004). The chain of custody
will generally be established by ‘‘testimony that traces
the . . . custody of the item from the moment it was
found to its appearance in the courtroom, with sufficient completeness to render it reasonably probable
that the original item has neither been exchanged nor
altered.’’ (Internal quotation marks omitted.) State v.
4
At trial, the state successfully offered the screwdriver into evidence as
a full exhibit through the testimony of Shumway, who—consistent with his
testimony at the hearing on the motion to suppress—identified it as the
screwdriver he had seized at the scene. The state later showed the screwdriver to the victim, who testified that it was the same screwdriver with
which the defendant had stabbed him.
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State v. Miller
Petitt, 178 Conn. App. 443, 452,
175 A.3d 1274 (2017),
cert. denied, 327 Conn. 1002,
176 A.3d 1195 (2018),
quoting 2 C. McCormick, Evidence (7th Ed. 2013) § 213,
pp. 13–14.
‘‘[W]hen the chain of custody of evidence is at issue
. . . [t]he state’s burden . . . is met by a showing that
there is a reasonable probability that the substance has
not been changed in important respects. . . . The
court must consider the nature of the article, [and] the
circumstances surrounding its preservation and custody . . . . As long as the state makes a sufficient preliminary showing regarding the chain of custody, a challenge to the chain of custody pertains to the weight of
the evidence rather than to its admissibility.’’ (Citation
omitted; internal quotation marks omitted.) Coccomo
v. Commissioner of Correction, 203 Conn. App. 704,
720,
252 A.3d 383, cert. denied,
336 Conn. 943,
249 A.3d
737 (2021). ‘‘There is no hard and fast rule that the state
must exclude or disprove all possibility that the article
has been tampered with’’; State v. Green, 55 Conn. App.
706, 713,
740 A.2d 450 (1999), cert. denied,
252 Conn.
920,
744 A.2d 438, cert. denied,
529 U.S. 1136,
120 S.
Ct. 2019,
146 L. Ed. 2d 966 (2000); and ‘‘[t]he prosecution
is not required or compelled to prove each and every
circumstance in the chain of custody beyond a reasonable doubt.’’ (Internal quotation marks omitted.) State
v. Rosado, 107 Conn. App. 517, 532,
945 A.2d 1028, cert.
denied, 287 Conn. 919,
951 A.2d 571 (2008).
The court has broad discretion in determining the
admissibility of evidence when presented with a chain
of custody challenge, and its ruling may not be overturned on appellate review except for a clear abuse of
its discretion. See State v. Green, supra,55 Conn. App.
713. ‘‘In general, abuse of discretion exists when a court
could have chosen different alternatives but has
decided the matter so arbitrarily as to vitiate logic, or
has decided it based on improper or irrelevant factors.
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State v. Miller
. . . In determining whether there has been an abuse
of discretion, every reasonable presumption should be
given in favor of the correctness of the court’s ruling.
. . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been
done.’’ (Citation omitted; internal quotation marks omitted.) State v. Boutilier, 133 Conn. App. 493, 501–502,
36 A.3d 282, cert. denied,
304 Conn. 914,
40 A.3d 785
(2012).
Shumway’s testimony was sufficient to establish a
reasonable probability that the screwdriver was the one
found at the scene. Shumway testified that he picked
up the screwdriver at the scene, put it in the trunk of
his police cruiser, and transported it directly to police
headquarters, where he logged it into evidence. Although
he testified that there were other items in the trunk,
he did not recall there being any other screwdrivers
with which the screwdriver used in the underlying
assault could have been confused. Significantly, after
being shown the screwdriver that the state intended to
offer into evidence on the stand, he testified that he
had a ‘‘high degree of certainty’’ that that screwdriver
was the one he had recovered from the scene. His testimony was sufficient to establish a reasonable probability that the screwdriver the state intended to offer into
evidence was the one found at the scene and that it
had neither been changed nor altered, and thereby to
authenticate it.5 Accordingly, we conclude that the court
5
The defendant argues that, because Shumway was certain of the screwdriver’s identity but unable to recall certain other details pertaining to his
recovery of the screwdriver—such as the identity of the fellow officer who
told him that the screwdriver at the scene had been used in the assault, the
exact address of the incident, or the precise location in his trunk where
he put the screwdriver—his testimony was ‘‘utterly lacking in credibility.’’
However, ‘‘[i]t is axiomatic that this court does not assess the credibility
of witnesses,’’ and we decline the defendant’s invitation to do so here. State
v. Castro, 60 Conn. App. 78, 80,
758 A.2d 470, cert. denied,
255 Conn. 912,
763 A.2d 1038 (2000).
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State v. Miller
did not abuse its discretion in denying the defendant’s
motion to suppress.6
II
The defendant next claims that the court erred by
permitting the state’s expert witness, Vivek Parwani,
the medical director of the department of emergency
medicine at the hospital where the victim was transported, to testify as to the injuries that could have been
caused by thrusting a screwdriver into a person’s chest.
In particular, he contends that (1) Parwani’s testimony
constituted an impermissible opinion on an ultimate
issue and (2) the hypothetical question to which Parwani responded omitted an essential material fact,
namely, that the hypothetical assailant was intoxicated
at the time of the incident. In response, the state argues
that the defendant failed to preserve his claim regarding
the admission of testimony on an ultimate issue at trial
and that its hypothetical question to Parwani was not
improper. We agree with the state.
The following additional facts and procedural history
are relevant to this claim. At trial, the defendant did
not contest that he had attacked the victim with a screwdriver but argued that he was intoxicated at the time
of the incident and that his intoxication negated the
intent necessary to prove him guilty of either charged
offense. The state vigorously disputed this contention.
Woodson and Folkes both testified that, on the day of
the incident, the defendant had been drinking. Woodson
also testified, however, that, after the attack, she did
not observe the defendant stumbling over himself and
was not sure whether he was slurring his words. Officer
6
Because we conclude that the admission of the screwdriver was not an
abuse of the court’s discretion, we do not reach the question of whether
its admission was harmful. See, e.g., State v. Maner, 147 Conn. App. 761, 772,
83 A.3d 1182 (‘‘[w]hen an improper evidentiary ruling is nonconstitutional
in nature, it is the defendant’s burden to demonstrate that such an error
was harmful’’), cert. denied, 311 Conn. 935,
88 A.3d 550 (2014).
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State v. Miller
Cain testified that he knew the area of the incident to
be the defendant’s regular drinking spot and that he
had observed the defendant drinking there during most
of their prior interactions. He also testified, however,
that, on the day of the incident, he did not observe the
defendant showing any visible signs of intoxication,
such as poor balance or slurred speech, and that the
defendant was able to listen to his commands and provide clear answers to his questions.
On the first day of evidence, the state called Parwani
to testify as an expert witness. Parwani testified that, on
the day of the incident, he was working as an emergency
room physician and examined the victim on his arrival
at the hospital. He further testified that the victim’s
injuries were consistent with having been stabbed and
that the victim’s statements to him and to other hospital
personnel were consistent with his injuries. The following exchange ensued during Parwani’s direct examination:
‘‘[The Prosecutor]: Okay. Given the location of where
[the victim] was stabbed, what other organs or body
parts are in that area that could have been affected?
‘‘[The Witness]: He—he was stabbed over the area
where his lungs are located and his heart is located.
‘‘[The Prosecutor]: So, showing you what’s been
marked as state’s exhibit 57 as a full exhibit, given the
size of that screwdriver, given the location of the injuries to [the victim], and given the body parts that are in
that area that could have been affected, if that screwdriver went in further to [the victim’s] body, what
could—what could have been affected? What injuries
could have occurred?
7
State’s exhibit 5 is a photograph depicting the screwdriver used in the
attack, positioned next to a ruler.
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State v. Miller
‘‘[Defense Counsel]: I’m—I’m [going to] object, foundation. It’s a hypothetical. And there’s—there’s no evidence to—to meet that hypothetical.
‘‘The Court: Yeah. I still—well, let me just check
something here for a minute.
‘‘I’m [going to] allow—I’m [going to] allow the question. Overruled.
‘‘[The Witness]: Can you repeat the question?
‘‘[The Prosecutor]: Yes. So, given—assuming the following facts are in evidence, given a screwdriver of that
size, assume that, showing you what’s been marked as
state’s exhibit 6,8 full exhibit, assume the facts of a
person over six foot, over 200 pounds thrusting the
screwdriver into another person in the area of the right
breast, what injuries could have followed from those
actions?
‘‘[The Witness]: Or if the screwdriver of that size was
thrust, as you note, into the right breast, a patient’s
lungs as well as their heart [are] located there, one could
puncture a lung; one could puncture one’s heart. . . .
‘‘[The Prosecutor]: Could that type of injury cause
death or a serious impairment to the lung or the heart?
‘‘[Defense Counsel]: I think I’m [going to] object, Your
Honor. We’ve taken a real leap into—
‘‘The Court: Well, let me excuse the jury for a moment.
Ladies and gentlemen, I need to excuse you for one
moment. I’ll have you back in here shortly.
‘‘(Whereupon the jury panel exited the courtroom.)
8
State’s exhibit 6 is the evidence box containing the actual screwdriver
used in the attack. The state may have meant to refer to exhibit 5, because
Parwani had asked the state to repeat its prior question in which it had
directed his attention to exhibit 5.
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State v. Miller
‘‘The Court: So, under count one, the state’s charge[d]
criminal attempt to commit assault in the first degree—
‘‘[Defense Counsel]: Assault in the first degree.
‘‘The Court: —one of the things they have to prove—
‘‘[Defense Counsel]: Is serious—
‘‘The Court: —is that—well, is that the defendant
specifically intended to cause serious physical injury
to [the victim]. The reason I let his opinion in as to
what—what could have—what—what the screwdriver,
the injury that it could have caused, where he said it
could have punctured a lung or heart; the other thing
the state has to show is that the . . . that if, under the
circumstances in which the dangerous instrument was
used, it was capable of producing serious physical
injury or death. So that’s why I let that part in.
‘‘Now, this question is—is specifically what? What
are you asking the doctor?
‘‘[The Prosecutor]: Is—could—could an injury to that
area cause death or serious physical injury or serious
impairment to—
‘‘The Court: Why isn’t that relevant to his intent?
‘‘[Defense Counsel]: Why is it relevant?
‘‘The Court: Why isn’t it relevant to his intent?
‘‘[Defense Counsel]: It’s not the relevan[ce]. It’s the
foundation. His expert opinion for a hypothetical has
to be based on the evidence or testimony that’s given
and it’s not—there’s no foundation and, basically, my
objection is on the foundation set for that conclusion.
‘‘The Court: Yeah. I—if that’s the objection, it’s overruled. So, we can have the jury come back, marshal.
‘‘(Whereupon the jury panel entered the courtroom.) . . .
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State v. Miller
‘‘[The Prosecutor]: Dr. Parwani, could that—could an
injury to that area, could that have caused death or
serious impairment to the heart or the lung?
‘‘[The Witness]: So, just so I understand the question
and correct me if this is not what you’re asking, but if
a—could a screwdriver to the chest cause serious
injury, harm including death. If that—is that the question?
‘‘[The Prosecutor]: Yes.
‘‘[Defense Counsel]: Your Honor, I’m [going to]—
that’s—to where that particular spot was it may happen.
‘‘The Court: That’s my understanding is that’s the
question.
‘‘[Defense Counsel]: He—he’s testifying—
‘‘[The Prosecutor]: To his right breast also.
‘‘The Court: Yeah. That’s my question. That’s what
my understanding is that’s what the question is.
‘‘[Defense Counsel]: As long as the doctor understands.
‘‘[The Witness]: Yeah. That’s a—a screwdriver to the
right breast, could it cause serious injury, harm, or
death, and it—it could.’’ (Footnotes added.)
On cross-examination, the defendant did not ask Parwani to consider what, if any, effect an attacker’s intoxication might have on the possible injuries that could
result from being stabbed in the chest with a screwdriver.
A
The defendant first argues that, when the court permitted Parwani to testify that being stabbed with a
screwdriver could place someone at risk of serious
injury or death, it improperly allowed him to opine on
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State v. Miller
an ultimate issue reserved for the jury. We decline to
review the merits of this claim because the defendant
failed to preserve it at trial.
‘‘This court is not bound to consider claims of law
not made at the trial. . . . Our rules of practice make
it clear that when an objection to evidence is made, a
succinct statement of the grounds forming the basis for
the objection must be made in such form as counsel
desires it to be preserved and included in the record.
. . . In objecting to evidence, counsel must properly
articulate the basis of the objection so as to apprise
the trial court of the precise nature of the objection
and its real purpose, in order to form an adequate basis
for a reviewable ruling. . . . Once counsel states the
authority and ground of his objection, any appeal will
be limited to the ground asserted. . . . These requirements are not simply formalities. They serve to alert
the trial court to potential error while there is still time
for the court to act. . . . Assigning error to a court’s
evidentiary rulings on the basis of objections never
raised at trial unfairly subjects the court and the opposing party to trial by ambush.’’ (Citations omitted; internal quotation marks omitted.) State v. Bush, 249 Conn.
423, 427–28,
735 A.2d 778 (1999); see also Practice Book
§ 60-5.
It is clear, from our review of the record, that at no
point did the defendant object to Parwani’s testimony
on the ground that it expressed an opinion as to an
ultimate issue. Rather, he objected that the hypothetical
posed to Parwani lacked a sufficient evidentiary foundation. These objections entail different legal inquiries.
When a party objects on the ground that an expert is
improperly testifying as to an ultimate issue, the court
must assess whether the expert is being asked to invade
the province of the jury by opining on a question inseparable from the essence of the matter to be decided by
the fact finder. See, e.g., State v. Beavers, 290 Conn.
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State v. Miller
386, 414–15, 963 A.2d 956 (2009). By contrast, when a
party objects on the ground that a hypothetical question
posed to an expert lacks a sufficient foundation, the
court must assess the extent to which the facts assumed
in that question have a basis in the record. See, e.g.,
Wallace v. Saint Francis Hospital & Medical Center,
44 Conn. App. 257, 262,
688 A.2d 352 (1997). One objection, in other words, is meant to preserve the integrity
of the jury’s fact-finding function; the other is designed
to ensure the probative value of the expert’s testimony.
Raising the latter is not equivalent to raising the former.
See, e.g., State v. Jose G., 290 Conn. 331, 343–45,
963
A.2d 42 (2009) (declining to review evidentiary objection raised for first time on appeal when claim raised
on appeal required inquiry distinct from that required
by objections raised at trial).9 As such, we decline to
review the defendant’s unpreserved claim.
B
The defendant also argues that the hypothetical question the state posed to Parwani—which asked him to
opine on the extent of injuries that could result from
a person more than six feet tall and weighing more
than 200 pounds thrusting a screwdriver into another
person’s chest—was improper because it omitted the
allegedly ‘‘material fact’’ that the hypothetical assailant
was intoxicated at the time of the attack. He claims
that the court thus erred in permitting Parwani to opine
in response to that question. We disagree.
9
In his reply brief, the defendant acknowledges that his trial counsel
‘‘stumble[d]’’ by ‘‘struggl[ing] and shift[ing] ground as to the nature of his
objection,’’ but argues that, nonetheless, the state was ‘‘clearly aware’’ that
it was asking Parwani for his opinion on an ultimate issue and, thus, should
have itself requested that the court make findings on whether the jury
required an expert’s assistance in deciding that issue. This argument lacks
merit, because it is the responsibility of the appellant—not the appellee—
to provide an adequate record for review. Practice Book § 61-10 (a); see
also State v. Feliciano, 74 Conn. App. 391, 402,
812 A.2d 141 (2002), cert.
denied, 262 Conn. 952,
817 A.2d 110 (2003).
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State v. Miller
As a threshold matter, the defendant did not
expressly raise this objection at trial. Though the state
does not argue that the defendant failed to preserve
this claim, a review of the record discloses that defense
counsel objected to the state’s hypothetical question
only on the ground that it lacked a sufficient foundation
in the evidence before the court. Specifically, defense
counsel stated: ‘‘I’m [going to] object, foundation. It’s
a hypothetical. And there’s—there’s no evidence to—
to meet that hypothetical’’; and ‘‘[Parwani’s] expert
opinion for a hypothetical has to be based on the evidence or testimony that’s given and it’s not—there’s no
foundation . . . .’’ By contrast, a claim that a hypothetical question improperly omitted a material fact does
not question the adequacy of the evidentiary basis on
which the hypothetical rests but, rather, asks the court
to consider whether the hypothetical has properly and
fairly marshaled and presented that evidence. See State
v. David N.J., 301 Conn. 122, 133,
19 A.3d 646 (2011); see
also Conn. Code Evid. § 7-4 (c). As such, the defendant’s
claim has not been properly preserved for review.
Even if the defendant had properly preserved his
claim, however, we do not consider it to be meritorious.
See, e.g., Bodak v. Masotti, 14 Conn. App. 347, 350,
540
A.2d 719 (1988) (determining that plaintiff’s claim was
not preserved but also rejecting it on its merits). ’’An
expert may give an opinion in response to a hypothetical
question provided that the hypothetical question (1)
presents the facts in such a manner that they bear a true
and fair relationship to each other and to the evidence
in the case, (2) is not worded so as to mislead or confuse
the jury, and (3) is not so lacking in the essential facts
as to be without value in the decision of the case. A
hypothetical question need not contain all of the facts
in evidence.’’ (Internal quotation marks omitted.) State
v. David N.J., supra,301 Conn. 133. ‘‘The determination
of the admissibility of a hypothetical question, at least
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except in extreme cases, is not to be made by the application of any rule of thumb. . . . Rather, it calls for
the exercise of a sound discretion . . . .’’ (Citation
omitted.) Floyd v. Fruit Industries, Inc., 144 Conn. 659,
666,
136 A.2d 918 (1957).
The court did not abuse its discretion in permitting
Parwani to testify in response to a hypothetical question
that omitted any mention of intoxication. Parwani’s testimony addressed the question of whether a person of
the same height and weight as the defendant could
have caused another person serious physical injury by
stabbing him in the chest with the screwdriver. This
testimony was relevant to whether the screwdriver used
in the assault constituted a ‘‘dangerous instrument’’ for
purposes of the assault charges. See General Statutes
§ 53a-3 (7) (defining ‘‘dangerous instrument’’ as ‘‘any
instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious
physical injury’’). To be sure, Parwani’s opinion that a
hypothetical attacker, of similar build to the defendant,
would be capable of causing serious physical injury to
another person also was circumstantial evidence from
which the jury could have drawn a conclusion as to the
defendant’s intent at the time of the crime. See, e.g.,
State v. Ortiz, 312 Conn. 551, 565,
93 A.3d 1128 (2014)
(jury may, though is not required, to infer that defendant
intended natural consequences of his voluntary conduct). It is unclear, however, how the fact of intoxication would have altered Parwani’s conclusion because
Parwani was not actually asked to opine, and did not
opine, on the defendant’s mental state—the subject
matter to which the defendant argued that his alleged
intoxication was relevant.10 Moreover, to the extent that
10
Indeed, it would have been improper for Parwani to testify as to whether
the defendant had the requisite intent to commit the crimes with which he
was charged. See State v. Delgado, 178 Conn. 448, 449,
423 A.2d 106 (1979)
(‘‘intent is a question of fact for the determination of the trier of fact based
upon the competent evidence presented, and a witness cannot testify as to
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the defendant’s alleged intoxication was material to
Parwani’s opinion that a person of the defendant’s
height and weight could cause serious physical injury
to another person by stabbing him in the chest with
the screwdriver, the defendant could have raised it on
cross-examination if he so chose, but he did not. See
E. Prescott, Tait’s Handbook of Connecticut Evidence
(6th Ed. 2019) § 7.8.1, p. 467 (‘‘[i]t is the function of
cross-examination to bring out the probable effect of
additional facts on a hypothetical question’’), citing
Pischitto v. Waldron, 147 Conn. 171, 177,
158 A.2d 168
(1960). Especially because a hypothetical question need
not contain all the facts in evidence, the court reasonably could have concluded that the state’s question
provided a fair summary of the relevant evidence and
that Parwani’s answer would assist the jury in determining whether the defendant could have caused the victim
serious physical injury by stabbing him in the chest with
the screwdriver. Therefore, the defendant’s claim fails.11
III
Finally, the defendant claims that there was insufficient evidence to support his convictions. Specifically,
he argues that there was insufficient evidence that (1)
he intended to cause the victim serious physical injury
and (2) the screwdriver qualified as a ‘‘dangerous instrument.’’ We disagree.
‘‘It is well settled that a defendant who asserts an
insufficiency of the evidence claim bears an arduous
burden. . . . In reviewing a sufficiency of the evidence
claim, we apply a two part test. First, we construe the
the uncommunicated intent of another person where the trier of fact is as
well qualified as the witness to form an opinion on the subject’’); see also
General Statutes § 54-86i.
11
As with the defendant’s challenge to the denial of his motion to suppress,
we do not address the question of whether the defendant was harmed by the
admission of Parwani’s testimony in response to the hypothetical because
we conclude that its admission was not erroneous.
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evidence in the light most favorable to sustaining the
verdict. Second, we determine whether upon the facts
so construed and the inferences reasonably drawn
therefrom the [jury] reasonably could have concluded
that the cumulative force of the evidence established
guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if
there is sufficient evidence to support the jury’s verdict. . . .
‘‘[T]he jury 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 jury to conclude that a basic
fact or an inferred fact is true, the jury is permitted to
consider the fact proven and may consider it in combination with other proven facts in determining whether
the cumulative effect of all the evidence proves the
defendant guilty of all the elements of the crime charged
beyond a reasonable doubt. . . .
‘‘In evaluating evidence, the [jury] is not required to
accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [jury]
may draw whatever inferences from the evidence or
facts established by the evidence [that] it deems to be
reasonable and logical. . . .
‘‘Finally, on appeal, we do not ask whether there is
a reasonable view of the evidence that would support
a reasonable hypothesis of innocence. We ask, instead,
whether there is a reasonable view of the evidence that
supports the jury’s verdict of guilty.’’ (Citations omitted;
internal quotation marks omitted.) State v. VanDeusen,
160 Conn. App. 815, 822–23,
126 A.3d 604, cert. denied,
320 Conn. 903,
127 A.3d 187 (2015).
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A
The defendant first claims that there was insufficient
evidence that he intended to cause the victim serious
physical injury, as required to support his conviction
of attempt to commit assault in the first degree. We are
not persuaded.
In order to convict a defendant of attempt to commit
assault in the first degree, in violation of §§ 53a-49 (a)
(2) and 53a-59 (a) (1), the state must prove that the
defendant engaged in intentional conduct constituting a
substantial step toward intentionally causing the victim
serious physical injury by means of a dangerous instrument. See State v. Andrews, 114 Conn. App. 738, 744,
971 A.2d 63, cert. denied,
293 Conn. 901,
975 A.2d 1277
(2009). ‘‘ ‘Serious physical injury’ means physical injury
which creates a substantial risk of death, or which
causes serious disfigurement, serious impairment of
health, or serious loss or impairment of the function
of any bodily organ . . . .’’ General Statutes § 53a-3 (4);
see also State v. Liam M., 176 Conn. App. 807, 814,
172
A.3d 243, cert. denied,
327 Conn. 978,
174 A.3d 196
(2017). [Section] 53a-3 (11) provides in relevant part
that ‘‘[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 . . . .’’
‘‘Intent may be, and usually is, inferred from [a] defendant’s verbal or physical conduct [as well as] the surrounding circumstances. . . . Nonetheless [t]here is
no distinction between circumstantial or direct evidence so far as probative force is concerned. . . .
Moreover, [i]t is not one fact, but the cumulative impact
of a multitude of facts which establishes guilt in a case
involving substantial circumstantial evidence. . . .
Intent is a question of fact, the determination of which
should stand unless the conclusion drawn by the trier
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State v. Miller
is an unreasonable one.’’ (Internal quotation marks
omitted.) State v. Santiago, 206 Conn. App. 390, 402,
260 A.3d 585, cert. denied,
339 Conn. 918,
262 A.3d
138 (2021).
‘‘[T]he [jury is] not bound to accept as true the defendant’s claim of lack of intent or his explanation of why
he lacked intent.’’ (Internal quotation marks omitted.)
State v. Delgado, 247 Conn. 616, 623–24,
725 A.2d 306
(1999). ‘‘Intent may be gleaned from circumstantial evidence such as the type of weapon used, the manner in
which it was used, the type of wound inflicted and the
events leading up to and immediately following the
incident. . . . Furthermore, it is a permissible, albeit
not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary
conduct.’’ (Internal quotation marks omitted.) State v.
Salaman, 97 Conn. App. 670, 677,
905 A.2d 739, cert.
denied, 280 Conn. 942,
912 A.2d 478 (2006).
On the basis of the evidence presented, the jury could
reasonably could have found that the defendant
intended to cause the victim serious physical injury
when he attacked him with a screwdriver. The victim
testified that the defendant trapped him in the car,
‘‘came in at [him]’’ with the screwdriver, and ‘‘steadily
tr[ied] to push the screwdriver in [him]’’ while also
striking him in the face. He explained that, although
his wounds were minor, he only avoided more serious
injuries because he partially shielded himself against
the defendant and because the defendant was unable,
given his size, to fit his whole body into the car. The
victim also heard bystanders ‘‘hollering that he’s killing
[the victim].’’ Folkes and the victim both testified that,
after the defendant ceased his attack, he stated: ‘‘I got
him.’’ Parwani testified that the victim was stabbed over
the area where his lungs and heart were located, which
could have killed him or caused a serious injury such
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State v. Miller
as a punctured organ.12 Viewed cumulatively, this evidence—in particular the weapon used, the area in which
the defendant attempted to stab the victim, his aggressive demeanor during the attack, and his statement
afterward—provides a sufficient basis from which the
jury reasonably could have inferred that the defendant
acted with the conscious objective of causing the victim
serious physical injury.
The defendant’s arguments to the contrary are not
convincing. He highlights the fact that, at certain points
in his testimony, the victim characterized the defendant’s screwdriver thrusts as ‘‘ ‘poking’ and ‘pushing,’
rather than a more violent action like swinging or thrusting,’’ and argues that this word choice suggests that
the defendant only intended to cause the victim minor
injury. The defendant, however, ignores the fact that,
elsewhere in his testimony, the victim also described
the defendant’s actions as ‘‘stabbing.’’ Likewise, the
defendant claims that the evidence establishes that he
‘‘cease[d] his attack . . . of his own volition’’ before
seriously injuring the victim and claims that, given his
own size and the victim’s vulnerable position, he ‘‘could
have easily’’ caused the victim serious injury ‘‘if he was
intent on’’ doing so. Folkes, however, testified that the
defendant only stopped attacking the victim and backed
away from the car once Folkes jumped out of the car
12
The defendant argues that, because, in his view, Parwani’s testimony
on this point was erroneously admitted, ‘‘it should not enter the calculus
when assessing whether the state produced sufficient evidence as to [the
defendant’s] intent.’’ As discussed previously, we reject the defendant’s
claim that the trial court improperly admitted Parwani’s testimony that the
screwdriver was capable of causing serious physical injury. Even if we
agreed with the defendant that Parwani’s testimony was improperly admitted, however, we would still consider it when evaluating the defendant’s
sufficiency of the evidence claim. See, e.g., State v. Morelli, 293 Conn.
147, 153,
976 A.2d 678 (2009) (‘‘even improperly admitted evidence may be
considered in [evidentiary sufficiency] analysis, since [c]laims of evidentiary
sufficiency in criminal cases are always addressed independently of claims
of evidentiary error’’ (internal quotation marks omitted)).
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State v. Miller
and ran around toward the defendant and that the defendant did not walk away until Folkes knocked the screwdriver out of his hand and a bystander swung a baseball
bat at him. The jury could reasonably have inferred
from this testimony that the defendant was, in fact,
intent on causing more serious injury to the victim
than he ultimately inflicted and only ceased his attack
because Folkes and others intervened.13 Although the
defendant asserts that the fact that he ‘‘walked’’ away
after the attack and challenged bystanders to fight him
indicates that he was ‘‘calm,’’ ‘‘unafraid of confrontation,’’ and could not have been ‘‘easily deterred by the
likes of [Folkes],’’ the jury was not required to draw
that inference, especially because there is no indication
that the defendant attempted to resume his attack after
Folkes and the bystander confronted him. Nor was the
jury required to infer, as the defendant insists, that when
he shouted, ‘‘I got him,’’ he meant ‘‘that he was satisfied
with a superficial laceration.’’ ‘‘I got him’’ could just as
reasonably be interpreted to indicate that the defendant
had intended to hurt the victim badly and believed that
he had succeeded in doing so.14
Ultimately, the defendant’s arguments boil down to
a request that we view the evidence in the light most
favorable to him and draw inferences consistent only
with his innocence, which we may not do on sufficiency
review. The evidence was sufficient to support the jury’s
verdict as to the defendant’s intent to cause serious
physical injury.
13
Recognizing that Folkes’ testimony undercuts his argument, the defendant asks us to find that Folkes lacked credibility. We cannot and will not
do so. See footnote 5 of this opinion.
14
The defendant also argues that his choice of a screwdriver as a weapon,
rather than ‘‘a knife or a gun or similarly dangerous weapon,’’ indicates that
he did not intend to cause serious physical injury. But given that there was
sufficient evidence of the screwdriver’s capacity to inflict serious physical
injury; see part III B of this opinion; the jury reasonably could have determined that the defendant’s choice of this weapon indicated an intent to
cause such an injury to the victim.
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State v. Miller
B
The defendant also claims that the evidence was
insufficient to establish that the screwdriver was a ‘‘dangerous instrument,’’ as required to support his convictions of attempted assault in the first degree and assault
in the second degree. We disagree.
‘‘A dangerous instrument means any instrument, article or substance which, under the circumstances in
which it is used or attempted or threatened to be used,
is capable of causing death or serious physical injury.
. . . [A] dangerous instrument may be an ordinary
object not designed to cause death or serious physical
injury. . . . [E]ach case must be individually examined
to determine whether, under the circumstances in
which the object is used or threatened to be used, it
has the potential for causing serious physical injury.’’
(Citation omitted; emphasis omitted; internal quotation
marks omitted.) State v. Barnett, 53 Conn. App. 581,
590,
734 A.2d 991, cert. denied,
250 Conn. 919,
738 A.2d
659 (1999). ‘‘[I]t is not necessary, under . . . the definition of a dangerous instrument, that any physical injury
actually have been inflicted. It [is] only necessary that
the [instrument] have been under the circumstances in
which it was used . . . capable of causing death or
serious physical injury.’’ (Internal quotation marks
omitted.) State v. Jones, 173 Conn. 91, 95,
376 A.2d
1077 (1977).
The defendant argues that, because assessing whether
an object qualifies as a dangerous instrument requires
a case-by-case inquiry into the ‘‘circumstances in which
the object is used or threatened to be used,’’ it follows
that the question of whether a screwdriver is a dangerous instrument ‘‘depends on whether the person using
it in a given circumstance intended to cause serious
physical injury or death to another.’’ As such, he claims,
if there is insufficient evidence of his intent to cause
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State v. Miller
serious physical injury, there must therefore be insufficient evidence that the screwdriver was a dangerous
instrument. We are not persuaded.
As an initial matter, we have already concluded in
part III A of this opinion that there was sufficient evidence of the defendant’s intent to cause serious physical
injury or death. Moreover, even had we not so concluded, this court rejected an identical argument to the
one made here in State v. Schultz, 100 Conn. App. 709,
722–23, 921 A.2d 595, cert. denied,
282 Conn. 926,
926
A.2d 668 (2007). In Schultz, the defendant—who had
been convicted of assault in the first degree in violation
of § 53a-59 (a) (1) for smashing a cocktail glass into
the victim’s face—argued that the trial court had
improperly denied his request for an instruction on a
lesser included offense, because the evidence regarding
whether the glass qualified as a ‘‘dangerous instrument’’
was sufficiently in dispute. Id., 719–22. In particular, the
defendant argued that the glass’ status was sufficiently
disputed because he did not intend to inflict serious
injury when he struck the victim with it. Id., 722. This
court emphasized, however, that ‘‘[a]ny dispute concerning the defendant’s intent to cause serious physical
injury . . . is not relevant to our determination of
whether it was sufficiently in dispute that the glass was
a dangerous instrument . . . .’’ Id., 723. As such, our
inquiry into whether there was sufficient evidence that
the screwdriver constituted a dangerous instrument
does not depend on whether there was sufficient evidence of the defendant’s intent to cause serious physical
injury or death.
On the basis of our review of the record in this case,
we conclude that there was sufficient evidence in the
record for the jury to find that the screwdriver used
by the defendant constituted a dangerous instrument.
Parwani testified that a screwdriver such as the one
used in the assault could, when thrust into someone’s
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chest, puncture a lung or the heart, possibly killing that
person. Such an injury clearly meets the definition of
‘‘serious physical injury’’ under § 53a-3 (4), namely:
‘‘physical injury which creates a substantial risk of
death, or which causes serious disfigurement, serious
impairment of health, or serious loss or impairment
of the function of any bodily organ . . . .’’ (Emphasis
added.) As such, even though the victim suffered only
superficial injuries, the jury reasonably could have
found that, under the circumstances in which the defendant used the screwdriver—thrusting it at the victim’s
chest—the screwdriver was capable of causing death
or serious physical injury. Accordingly, the defendant’s
claim fails.
The judgment is affirmed.
In this opinion the other judges concurred.
