State v. Abraham

***********************************************
    The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.

   All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.

   The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
***********************************************
            STATE OF CONNECTICUT v. JUNY
                   OSCAR ABRAHAM
                      (SC 20314)
         McDonald, D’Auria, Mullins, Kahn, Ecker and Keller, Js.

                                  Syllabus

Convicted of home invasion, attempt to commit assault in the first degree,
    reckless endangerment in the first degree, and risk of injury to a child,
    the defendant appealed to this court. The victim, V, and his neighbor,
    M, were sitting on the front porch of the two family home in which they
    resided, when they saw a man dressed in black jeans and a black hoodie
    approach them while pulling his hood over his head and a mask over
    his face. The masked man pulled out a pistol, and V and M fled. V ran
    into the house and up the stairs to his second floor apartment. V closed
    and locked his front door, but the masked man kicked it open and
    entered the apartment while waving his pistol and yelling, ‘‘where is
    the little motherfucker?’’ V snuck down the stairs and yelled back at
    the masked man to lure him away from his wife and two sons, who
    also were inside the apartment. The masked man followed V down the
    stairs, where V, who was standing on the sidewalk, pulled out his own
    lawfully concealed pistol and instructed the masked man to drop his
    weapon. Instead, the masked man raised his pistol and shot one time.
    V then returned fire, striking the masked man at least once. The masked
    man then went around the side of the house and collapsed near a
    bulkhead door. V followed him but was almost struck by a gray Nissan
    truck that was fleeing the area. Although nobody could identify the
    masked man to the police, the police stopped a gray Nissan truck matching the description provided by V and M shortly thereafter. The defendant
    was a passenger in that truck, was wearing khaki pants and a white T-
    shirt, and was suffering from a recently inflicted gunshot wound. The
    police never recovered the masked man’s pistol, black clothing, or mask,
    but DNA testing revealed that blood found on the sidewalk and the
    bulkhead door near where the masked man collapsed belonged to the
    defendant. At the defendant’s trial, defense counsel moved for a judgment of acquittal on the ground that all of the eyewitnesses had identified
    the masked man’s clothing as black, which was not what the defendant
    was wearing when he was apprehended shortly after the shooting. The
    trial court denied the motion, concluding that the evidence was sufficient
    for the jury to find the defendant guilty beyond a reasonable doubt. The
    jury returned a guilty verdict, and defense counsel renewed the motion
    for a judgment of acquittal. The court denied the motion and rendered
    judgment in accordance with the verdict, from which the defendant
    appealed to this court. Held:
1. The state adduced sufficient evidence for the jury to find beyond a reasonable doubt that the defendant was the perpetrator of the crimes of
    conviction: the defendant’s blood was found by the bulkhead door in
    the exact location where the masked man collapsed after being shot,
    the defendant was apprehended only five minutes from the scene of
    the shooting while suffering from a recently inflicted gunshot wound,
    and the truck in which he was apprehended was registered to the defendant, was seen by V and M driving past their house multiple times earlier
    that day, and matched the description V and M provided of the vehicle
    fleeing the scene immediately after the shooting; moreover, the jurors
    were permitted to rely on their common knowledge and experience that
    criminals often discard inculpatory evidence when they flee the scene
    of a crime to infer that the defendant had discarded the black clothing,
    mask, and pistol used in the commission of the crimes as he fled;
    furthermore, the fact that were was no evidence of the defendant’s
    motive was inconsequential, as it is well established that motive is not
    an element of the crimes charged and that proof of motive is not necessary to support a conclusion of guilt that is otherwise sufficiently established.
2. The jury’s verdict of guilty of the crimes of attempt to commit assault in
    the first degree and reckless endangerment in the first degree was not
    legally inconsistent, as the jury reasonably could have found that the
    defendant’s conduct constituted two different criminal acts, each of
    which was committed with a distinct and mutually exclusive mental
    state: the jury reasonably could have found that the defendant first acted
    with the conscious objective to inflict serious physical injury on V when
    he chased V up the stairs, broke down his door, and entered his apartment while yelling and waving a pistol; moreover, based on the change
    in location, the amount of time separating the acts, and V’s intervening
    conduct, the jury reasonably could have found that the defendant committed a second, discrete criminal act when, after exiting the apartment,
    he fired a single shot at V after V confronted him, as the jury could
    have found that V’s act of pulling out his own pistol and V’s refusal to
    comply with the defendant’s demands prompted the defendant to modify
    his own intention and to fire a warning shot at V in reckless disregard
    of the risk of inflicting serious physical injury on V.
3. The defendant could not prevail on his unpreserved claim that his convictions of home invasion and attempt to commit assault in the first degree
    violated the constitutional prohibition against double jeopardy, as those
    offenses do not constitute the same offense for double jeopardy purposes: although the defendant’s convictions of home invasion and
    attempt to commit assault in the first degree were both necessarily
    predicated on the defendant’s conduct in chasing V up the stairs, breaking down his door, and entering his apartment while brandishing a pistol,
    and, therefore, arose from the same act or transaction, home invasion,
    which requires proof that the defendant entered or remained unlawfully
    in a dwelling while a person other than a participant in the crime was
    present, and attempt to commit assault in the first degree, which requires
    proof that the defendant took a substantial step in a course of conduct
    planned to cause serious physical injury to another person by means
    of a deadly weapon or a dangerous instrument, each contain an element
    that the other does not; accordingly, it was possible to commit one of
    those offenses without committing the other.
       Argued December 13, 2021—officially released May 31, 2022

                            Procedural History

   Amended information charging the defendant with
two counts of the crime of risk of injury to a child and
with one count each of the crimes of home invasion,
attempt to commit assault in the first degree, and reckless endangerment in the first degree, brought to the
Superior Court in the judicial district of Fairfield and
tried to the jury before E. Richards, J.; verdict and
judgment of guilty, from which the defendant appealed
to this court. Affirmed.
  Megan L. Wade, assigned counsel, with whom was
Emily Graner Sexton, assigned counsel, for the appellant (defendant).
   Brett R. Aiello, deputy assistant state’s attorney, with
whom, on the brief, were Ann P. Lawlor, senior assistant state’s attorney, and Joseph T. Corradino, state’s
attorney, for the appellee (state).
                          Opinion

   ECKER, J. Following a jury trial, the defendant, Juny
Oscar Abraham, was convicted of home invasion in
violation of General Statutes § 53a-100aa (a) (2), attempt
to commit assault in the first degree in violation of
General Statutes §§ 53a-49 and 53a-59 (a) (1), reckless
endangerment in the first degree in violation of General
Statutes § 53a-63 (a), and two counts of risk of injury
to a child in violation of General Statutes § 53-21 (a)
(1). On appeal, the defendant raises three claims: (1)
the evidence was insufficient to establish his identity
as the perpetrator of the crimes of conviction; (2) the
jury’s verdict of guilty of attempt to commit assault in
the first degree and reckless endangerment was legally
inconsistent; and (3) his conviction of home invasion
and attempt to commit assault in the first degree violates the double jeopardy clause of the United States
constitution. We affirm the judgment of conviction.
   The jury reasonably could have found the following
facts. The victim, Israel Alvarez, lived with his wife and
four children in the second floor apartment of a two
family home located at 903 Kossuth Street in Bridgeport. At approximately 5 p.m. on September 21, 2017,
the victim and his first floor neighbor, Israel Martin,
were sitting on the front porch of the home when they
noticed a light-skinned man dressed in black jeans and
a black hoodie approaching them. As he approached,
the man pulled his hood up over his head and a black
mask over his mouth and nose, leaving only his eyes
visible. He also pulled out a silver nine millimeter Sig
Sauer pistol, which he cocked as he approached.
   Martin jumped off the porch and ran around to the
back of the building, while the victim ran into the house
through the front door and up the stairs to his second
floor apartment. As he ran upstairs, the victim encountered his eight year old son walking downstairs. The
victim told his son to run, and, seeing the masked man
chasing his father, he complied. The victim’s eight year
old son ran upstairs to his room and hid under the bed.
   The victim entered his apartment and locked the door
behind him, but, moments later, the masked gunman
kicked it open. The victim hid behind the open door,
while the masked gunman entered the living room of
the apartment waving his pistol and yelling, ‘‘where is
the little motherfucker . . . .’’ Curious about the commotion, the victim’s wife and fourteen year old son
entered the living room and saw the masked gunman.
During the ensuing tumult, the victim snuck halfway
down the stairs and yelled, ‘‘I’m right here, motherfucker,’’
in an effort to lure the gunman away from his family. The
gunman exited the second floor apartment and followed
the victim down the stairs.
 The victim ran out of the building onto the sidewalk,
where he withdrew his lawfully concealed .40 caliber
pistol from its holster and repeatedly instructed his
pursuer to drop his weapon.1 The masked gunman, who
was standing in the doorway of the building at this
point, raised his own pistol and said, ‘‘get over here now,
motherfucker.’’ The masked gunman then shot his pistol
once, and the victim returned fire, shooting toward the
masked gunman three or four times. At least one of the
victim’s bullets struck the masked gunman, who stumbled off the porch, went around to the side of the building, and collapsed by the bulkhead door.
  After hearing gunshots, the victim’s wife and fourteen
year old son ran outside to check on the victim. The
victim embraced his wife and then walked toward Shelton Street to look for the masked gunman. On Shelton
Street, a charcoal gray Nissan Titan truck almost struck
the victim as it fled the area. The victim could not see
who was inside of the truck, but both he and Martin
recognized it as the same truck that had driven by their
building multiple times earlier in the day.
   The police responded to the shooting at 903 Kossuth
Street within minutes. Neither the victim, his family,
nor Martin was able to identify the masked gunman,
but the victim and Martin provided the police with a
description of the gray truck that had fled the scene.
Shortly thereafter, the police stopped a gray Nissan
Titan truck at the intersection of Barnum and Central
Avenues, which is approximately five minutes from 903
Kossuth Street. The defendant, who was wearing khaki
pants and a white T-shirt, was a passenger in the truck
and the registered owner of the vehicle. The defendant
was suffering from a recently inflicted gunshot wound
and was transported by ambulance to Bridgeport Hospital for immediate medical treatment.
   The police never recovered the nine millimeter pistol
wielded by the masked gunman or the black clothing
and mask that he wore. During their investigation at
903 Kossuth Street, however, the police discovered four
.40 caliber shell casings, all of which had been fired by
the victim’s pistol.2 One nine millimeter shell casing
also was found. Additionally, the police found blood
on the sidewalk, back door, and bulkhead door. Subsequent DNA testing revealed that the blood was the
defendant’s.
   The defendant was arrested and charged with home
invasion, attempt to commit assault in the first degree,
reckless endangerment in the first degree, and two counts
of risk of injury to a child. At the defendant’s jury trial,
defense counsel moved for a judgment of acquittal,
arguing that all of the eyewitnesses had identified the
clothing worn by the masked gunman as black but that
the defendant was wearing khaki pants and a white T-
shirt when he was apprehended by the police shortly
after the shooting. The trial court denied the motion,
concluding that the evidence was sufficient for the jury
to find the defendant guilty beyond a reasonable doubt.
  The jury found the defendant guilty of the crimes
charged. Prior to sentencing, defense counsel renewed
the motion for a judgment of acquittal, again arguing
that the evidence of guilt was insufficient because the
defendant’s clothing did not match the clothing of the
perpetrator. The trial court denied the motion, rendered
judgment in accordance with the jury’s verdict, and
sentenced the defendant to a total effective sentence
of thirty years of incarceration.3 This appeal followed.4
                             I
   The defendant first claims that the evidence was
insufficient to support his conviction because none of
the eyewitnesses identified him as the perpetrator, no
evidence was produced as to his motive for the commission of the crimes, and he was not wearing black clothing or armed with a pistol when he was apprehended
by the police shortly after the shooting. We reject this
claim.
   ‘‘[T]he question of identity of a perpetrator of a crime
is a question of fact that is within the sole province of
the jury to resolve.’’ State v. Jackson, 

, 

 (2001). To determine whether the
evidence was sufficient to establish the essential element of identity, ‘‘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 [jury] reasonably could have
concluded that the cumulative force of the evidence
established guilt beyond a reasonable doubt . . . . In
doing so, we are mindful that the trier of fact is not
required to accept as dispositive those inferences that
are consistent with the defendant’s innocence. . . .
The trier [of fact] may draw whatever inferences from
the evidence or facts established by the evidence it
deems to be reasonable and logical.’’ (Citation omitted;
internal quotation marks omitted.) State v. Hughes, 

, 397–98, 

 (2021).
   When reviewing the sufficiency of the evidence, we
must ‘‘focus on the evidence presented, not the evidence that the state failed to present . . . .’’ State v.
Davis, 

, 

 (2017). Additionally, we do not draw a ‘‘distinction between direct and
circumstantial evidence so far as probative force is
concerned . . . . Indeed, [c]ircumstantial evidence
. . . may be more certain, satisfying and persuasive
than direct evidence.’’ (Citation omitted; internal quotation marks omitted.) State v. 

. ‘‘It is not one fact . . . but the cumulative impact
of a multitude of facts [that] establishes guilt in a case
involving substantial circumstantial evidence.’’ (Internal quotation marks omitted.) State v. Seeley, 

, 

 (2017).
  We conclude that the evidence adduced by the state
was more than sufficient to establish the defendant’s
identity as the perpetrator of the crimes of conviction.
The defendant’s blood was found outside of 903 Kossuth
Street in the exact location where the masked gunman
collapsed after he had been shot.5 The defendant was
apprehended only five minutes away from the shooting
suffering from a recently inflicted gunshot wound. Additionally, the defendant was found in a gray Nissan Titan
truck, which matched the description of the vehicle
seen fleeing the scene immediately after the shooting.
The Nissan Titan truck was registered to the defendant
and was observed driving past 903 Kossuth Street multiple times earlier that day.
   Notwithstanding the foregoing evidence, the defendant contends that the jury could not reasonably have
found that he was the masked gunman because it was
speculative for the jury ‘‘to infer that the defendant,
who had no connection to [the victim] and no motive
to commit these crimes, was shot by [the victim], got
into his truck parked nearby, and at some point between
903 Kossuth Street and the intersection of Barnum and
Central Avenues (less than five minutes away), despite
suffering a gunshot wound, was able to remove black
pants, a black hooded sweatshirt, and a black facial
covering, and dispose of the clothing and weapon
. . . .’’ This argument is without merit. ‘‘In deciding
cases . . . [j]urors are not expected to lay aside matters of common knowledge or their own observations
and experiences, but rather, to apply them to the facts
as presented to arrive at an intelligent and correct conclusion. . . . Indeed, [i]t is an abiding principle of jurisprudence that common sense does not take flight when
one enters a courtroom.’’ (Citation omitted; internal
quotation marks omitted.) State v. Otto, 

,
70 n.17, 

 (2012). Common knowledge and
experience inform us that people often discard inculpatory evidence, such as distinctive clothing or weapons,
when they flee the scene of a crime. See, e.g., State v.
Jordan, 

, 384, 

 (2014) (‘‘[the
defendant] discarded his clothing and mask while being
closely pursued by a police officer’’); State v. Hazard,

, 

 (evidence was
sufficient to establish identity in part because police
found abandoned clothing near site of robbery, which
matched clothing worn by perpetrator, and ‘‘[a] forensic
analysis revealed [that the abandoned clothing contained] the defendant’s ‘entire genetic profile’ ’’), cert.
denied, 

, 

 (2020). The jury
was permitted to rely on this common knowledge and
experience to infer that the defendant discarded the
black clothing, mask, and pistol used to commit the
charged crimes as he fled 903 Kossuth Street in his gray
Nissan Titan truck.6 With regard to motive, the existence
or absence of a motive often is used at trial to construct
a narrative of guilt or innocence. In the present case,
there was no evidence of the defendant’s motive, but
it is well established that ‘‘[m]otive is not an element
of the crime[s] charged [and, therefore] . . . [p]roof
of motive is never necessary to support a conclusion
of guilt otherwise sufficiently established, however significant its presence or absence, or its sufficiency, may
be as bearing [on] the issue of guilt or innocence.’’
(Internal quotation marks omitted.) State v. Copas, 

, 

 (2000). Accordingly, we
conclude that the evidence was sufficient for the jury
to find beyond a reasonable doubt that the defendant
was the masked gunman who committed the crimes of
home invasion, attempt to commit assault in the first
degree, reckless endangerment, and risk of injury to
a child.
                            II
   The defendant next claims that the jury returned a
legally inconsistent verdict in connection with the
crimes of attempt to commit assault in the first degree
and reckless endangerment because it necessarily
found that the defendant acted with two different and
mutually exclusive mental states with respect to the
same conduct, victim, and statutory result. Specifically,
the defendant argues that the jury’s factual finding that
he intended to cause serious physical injury to the victim, in violation of the statutes prohibiting attempt to
commit assault in the first degree; see General Statutes
§§ 53a-497 and 53a-59 (a) (1);8 was irreconcilable with
its factual finding that he recklessly engaged in conduct
that created a risk of serious physical injury to the
victim, in violation of the reckless endangerment statute. See General Statutes § 53a-63 (a).9 Because the
defendant could not have acted both intentionally and
recklessly at the same time with respect to the same
victim and the same statutory result, the defendant contends that the jury’s finding of guilt with respect to both
counts was legally inconsistent, thereby violating his
due process right to a fair trial.10
   The state does not dispute that, as charged in the
present case, the crimes of attempt to commit assault
in the first degree and reckless endangerment required
proof of mutually exclusive mental states with respect
to the same victim (Alvarez) and the same statutory
result (serious physical injury). The state claims, however, that the defendant’s conviction of both offenses
was not predicated on the same conduct but, instead,
on two different criminal acts. The first criminal act
was when the defendant, while brandishing a loaded
and cocked pistol, chased the victim up the stairs and
broke into his home, and the second criminal act
occurred when the defendant later fired his pistol at
the victim outside of 903 Kossuth Street following a
standoff.11 We agree with the state.
  The following legal principles govern our review. ‘‘A
claim of legally inconsistent convictions, also referred
to as mutually exclusive convictions, arises when a
conviction of one offense requires a finding that negates
an essential element of another offense of which the
defendant also has been convicted. . . . In response
to such a claim, we look carefully to determine whether
the existence of the essential elements for one offense
negates the existence of [one or more] essential elements for another offense of which the defendant also
stands convicted. If that is the case, the [convictions]
are legally inconsistent and cannot withstand challenge
[under the due process clause]. . . . Whether two convictions are mutually exclusive presents a question of
law, over which our review is plenary. . . . When a
jury has returned legally inconsistent verdicts, there is
no way for the reviewing court to know which charge
the jury found to be supported by the evidence. . . .
Accordingly, the court must vacate both convictions
and remand the case to the trial court for a new trial.’’
(Citation omitted; internal quotation marks omitted.)
State v. Alicea, 

, 390–91, 

(2021).
    In Alicea, we identified the circumstances under which
a conviction of a crime involving an intentional mental
state is legally inconsistent with a conviction of a crime
involving a reckless mental state. We explained ‘‘that
the statutory definitions of intentionally and recklessly
are mutually exclusive and inconsistent’’ because
‘‘[i]ntentional conduct requires the defendant to possess
a conscious objective . . . to cause the result described
in the statute defining the offense,’’ whereas ‘‘reckless
conduct requires that the defendant is aware of and
consciously disregards a substantial and unjustifiable
risk that the result described in the statute will occur.
. . . Thus, a reckless mental state is inconsistent with
an intentional mental state because one who acts recklessly does not have a conscious objective to cause a
particular result.’’ (Citation omitted; emphasis in original; internal quotation marks omitted.) 

 391–92. At
the same time, ‘‘[w]e have held . . . that convictions
involving both intentional and reckless mental states
are legally consistent in certain circumstances. For
example, when each mental state pertains to a different
act, a different victim . . . a different injury,’’ or ‘‘a
different result.’’ (Emphasis altered.) Id., 392.
   In the present case, the state does not dispute that the
defendant’s convictions of attempt to commit assault
in the first degree and reckless endangerment pertain
to the same victim and the same statutory result; instead,
the state argues that they pertain to ‘‘different act[s]
. . . .’’ Id. We agree. The analysis is straightforward. If
the jury reasonably could have found that the defendant’s conduct amounted to two different acts, each
of which was committed with a separate and distinct
mental state, then the jury’s verdict is not legally
inconsistent. See, e.g., State v. King, 

, 144,

 (2016) (defendant’s convictions of reckless and intentional assault were not inconsistent
because ‘‘the jury reasonably could have found that the
defendant’s conduct amounted to two separate acts’’);
State v. Rios, 

, 

(defendant’s convictions of assault in first degree,
assault in second degree, and reckless endangerment
were not inconsistent because ‘‘the jury reasonably could
have concluded that the defendant’s conduct amounted
to two distinct criminal acts in which he possessed
otherwise mutually exclusive mental states’’), cert.
denied, 

, 

 (2017); State v.
Kuranko, 

, 714–15, 

 (2002)
(defendant’s convictions of assault in third degree and
reckless endangerment were not inconsistent because
jury reasonably could have found that defendant’s mental state changed between first attack on victim and
subsequent assault); State v. Jones, 

, 

 (defendant’s convictions of attempt
to commit murder, assault in first degree, conspiracy
to commit murder, and reckless endangerment were
not inconsistent because ‘‘the jury reasonably could
have found that [the defendant] committed one act or
group of acts with one mental state and a second act
or group of acts with a different mental state’’), cert.
denied, 

, 

 (2002); State v.
Mooney, 

, 

 (The
defendant’s convictions of assault in the first degree
and robbery in the first degree were not inconsistent
because ‘‘the jury . . . was not required to find that
the different acts committed by the defendant were in
effect one act, with one mental state. The jury was free
to conclude that the defendant’s actions constituted
different crimes that occurred on an escalating continuum. Indeed, there is a compelling case for finding that
the defendant committed multiple criminal acts against
the same victim.’’), cert. denied, 

, 

 (2001).
   In the context of our assault statutes, whether a
defendant’s illegal conduct constitutes a single continuous course of criminal conduct or discrete, severable
criminal acts is a fact intensive inquiry. See State v.
Ruiz-Pacheco, 

, 238–39, 

(2020); see also State v. Nash, 

, 663, 

 (2015) (‘‘courts reviewing a claim of legal
inconsistency must closely examine the record to determine whether there is any plausible theory under which
the jury reasonably could have found the defendant
guilty of both offenses’’). In conducting this inquiry, we
consider the following factors: ‘‘(1) the amount of time
separating the acts; (2) whether the acts occurred at
different locations; (3) [evidence pertinent to] the defendant’s intent or motivation behind the acts; and (4)
whether any intervening events occurred between the
acts, such that the defendant had the opportunity to
reconsider his actions.’’12 State v. 

; see State v. King, supra, 

 (concluding
that there were two different criminal acts because
intervening event precipitated change in defendant’s
intent); State v. 

 71 Conn. App. 714–15
(concluding that there were two different criminal acts
due to change in location that precipitated change in
defendant’s intent); State v. 

 68 Conn. App.
569–70 (concluding that there were two different criminal acts because ‘‘there was a pause in the shooting’’
that precipitated change in defendant’s intent).
   Applying these factors to the facts of the present case,
we conclude that the jury reasonably could have found
that the defendant committed two different criminal
acts with two distinct mental states. First, the defendant
chased the victim upstairs, broke down the door to the
victim’s apartment, and entered the apartment yelling,
‘‘where is the little motherfucker,’’ while waving a
loaded and cocked pistol. On the basis of this conduct,
the jury reasonably could have found that the defendant
committed the crime of attempt to commit assault in the
first degree because the defendant had the conscious
objective to inflict serious physical injury on the victim,
in violation of §§ 53a-49 and 53a-59 (a) (1).13 The jury
also could have found that a second, discrete crime
occurred after the defendant exited the victim’s apartment. At that point, the victim confronted the defendant
outside of 903 Kossuth Street, pointed his own loaded
gun at the defendant, and taunted him by yelling, ‘‘I’m
right here, motherfucker.’’ The jury reasonably could
have found that the victim’s refusal to comply with the
defendant’s command to ‘‘get over here now, motherfucker,’’ combined with his change of strategy from
flight to armed challenge, prompted the defendant to
modify his own intention by firing a warning shot at
the victim in reckless disregard of the risk of serious
physical injury to the victim. The change in location,
temporal division between the defendant’s initial interaction with the victim and the ultimate standoff, and
the intervening conduct of the victim all functioned
to separate the defendant’s criminal conduct into two
discrete and severable criminal acts. See, e.g., State v.
Cody M., 

, 109, 

 (2020) (‘‘the
defendant’s statements constitute two distinct acts
because the victim’s resistance, effectuated by her silence,
was an intervening event causing the defendant to escalate his behavior’’); State v. 

 (during seventy second fight, ‘‘the distinct
break in the fighting, the clear opportunity provided by
that intervening period of time and physical separation
for the defendant to reconsider his actions, and the
evidence establishing a separate and distinct criminal
intent behind the final stabbing [made those] acts sufficiently distinct to constitute two separate courses of
assaultive conduct’’). Because there is a ‘‘plausible theory under which the jury reasonably could have found
the defendant guilty of both offenses’’; State v. Nash,
supra, 

; we conclude that the jury’s verdict
was not legally inconsistent.
                             III
    Lastly, the defendant claims that his convictions of
home invasion and attempt to commit assault in the
first degree violate the constitutional prohibition against
double jeopardy because they arose from the same act
or transaction and constitute the same offense under
Blockburger v. United States, 

, 

, 

 (1932). The state responds that the
defendant’s double jeopardy claim lacks merit because
‘‘[t]he charges of home invasion and attempt to commit
first degree assault arose out of separate transactions
and, alternatively, [because] each crime requires proof
of an element that the other does not’’ under Blockburger.
  The defendant did not preserve his double jeopardy
claim in the trial court, so he seeks to prevail under
State v. Golding, 

, 239–40, 

(1989), as modified by In re Yasiel R., 

,
781, 

 (2015). We conclude that the defendant’s claim is reviewable under the first two prongs
of Golding because the record is adequate for review
and the claim is of constitutional magnitude. See, e.g.,
State v. Schovanec, 

, 

(2017) (reviewing unpreserved double jeopardy claim
under Golding); State v. Wright, 

, 688–89,

 (2015) (same). The defendant’s claim fails
under the third prong of Golding, however, because his
convictions of home invasion and attempt to commit
assault in the first degree do not constitute the same
offense for double jeopardy purposes.
   It is well established that ‘‘[d]ouble jeopardy prohibits
not only multiple trials for the same offense, but also
multiple punishments for the same offense.’’ (Internal
quotation marks omitted.) State v. 

. ‘‘Double jeopardy analysis in the context
of a single trial is a [two step] process, and, to succeed,
the defendant must satisfy both steps. . . . First, the
charges must arise out of the same act or transaction
[step one]. Second, it must be determined whether the
charged crimes are the same offense [step two]. Multiple punishments are forbidden only if both conditions
are met. . . . At step two, we [t]raditionally . . . have
applied the Blockburger test to determine whether two
statutes criminalize the same offense, thus placing a
defendant prosecuted under both statutes in double
jeopardy: [When] the same act or transaction constitutes a violation of two distinct statutory provisions,
the test to be applied to determine whether there are
two offenses or only one, is whether each provision
requires proof of a fact [that] the other does not.’’ (Internal quotation marks omitted.) State v. Tinsley, 

, 

 (2021).
  As we explained in part II of this opinion, the defendant’s criminal conduct can be separated into two different acts, each involving a distinct mental state: (1)
the act of chasing the victim up the stairs and invading
the victim’s apartment with the specific intent to inflict
serious physical injury; and (2) the act of shooting
toward the victim outside of 903 Kossuth Street with
reckless disregard to the risk of serious physical injury
to the victim. See, e.g., State v. 

336 Conn. 238–39 (‘‘[t]o determine when one course of
conduct ends (or is ‘completed’) and another begins
for double jeopardy purposes, our case law looks to
whether the defendant’s acts took place at different
times or locations, whether the defendant was motivated by different criminal intents, and whether the
acts were interrupted by intervening events or circumstances’’). Given the manner in which the case was
charged, tried, and decided by the jury, the defendant’s
convictions of home invasion and attempt to commit
assault in the first degree both necessarily were predicated on his conduct during the first sequence of events,
involving the entry into the victim’s home while brandishing a loaded and cocked pistol. See footnote 13 of
this opinion and accompanying text; see also State v.
Porter, 

, 661–62, 

 (2018) (to
determine whether criminal conduct arises from same
act or transaction at step one of double jeopardy analysis, courts may consider evidence adduced at trial, state’s
theory of case, and charging instrument). We therefore
conclude that these two convictions arose from the same
act or transaction.
  We next examine the statutory elements of home
invasion and attempt to commit assault in the first
degree to determine whether each crime requires proof
of an essential element that the other does not under
Blockburger. See State v. 

.
In conducting a Blockburger analysis, we consider only
the statutory elements of the two offenses, as opposed
to the evidence adduced at trial or the facts alleged in
the state’s charging document. See 

 (‘‘[b]ecause
the United States Supreme Court has declined to consider facts alleged in the information when conducting
a Blockburger analysis, we decline to import that consideration into the double jeopardy analysis’’); State v.

 (‘‘[t]his court has consistently held that the Blockburger test conducted at step
two is a technical one and examines only the statutes,
charging instruments, and bill of particulars as opposed
to the evidence presented at trial’’ (internal quotation
marks omitted)).
  To prove the defendant guilty of home invasion in
violation of § 53a-100aa (a) (2), the state was required
to establish the following essential elements beyond a
reasonable doubt: (1) the defendant entered or remained
unlawfully in a dwelling; (2) a person other than a participant in the crime was actually present in the dwelling
at the time; (3) the defendant intended to commit a
crime therein; and (4) the defendant was armed with
explosives, a deadly weapon, or a dangerous instrument.
See General Statutes § 53a-100aa (a) (2).14 To prove the
defendant guilty of attempt to commit assault in the
first degree in violation of §§ 53a-59 (a) (1) and 53a-49,
the state was required to establish the following essential elements beyond a reasonable doubt: (1) the defendant intended to cause serious physical injury to another
person; and (2) he took a substantial step in a course of
conduct planned to cause serious physical injury to
another person by means of a deadly weapon or a dangerous instrument. See General Statutes §§ 53a-59 (a)
(1) and 53a-49 (a) (2); footnotes 7 and 8 of this opinion.
Both home invasion and attempt to commit assault in
the first degree require proof of an essential element
that the other does not. The crime of home invasion
requires proof that the defendant entered or remained
unlawfully in a dwelling while a person other than a
participant in the crime actually is present, whereas
the crime of attempt to commit assault in the first
degree does not. In contrast, the crime of attempt to
commit assault in the first degree requires proof that
the defendant took a substantial step in a course of
conduct planned to cause serious physical injury to
another person by means of a deadly weapon or a dangerous instrument, whereas the crime of home invasion
does not. Accordingly, we conclude that home invasion
and attempt to commit assault in the first degree are
not the same offense for double jeopardy purposes.
   The defendant argues that the two crimes are the same
offense under Blockburger because attempt to commit
assault in the first degree was charged as the predicate
offense for the defendant’s home invasion conviction.15
To support his claim, the defendant relies on State v.
Greco, 

, 

 (1990), in which we
concluded that felony murder and the predicate felony
on which a felony murder conviction is based ‘‘constitute the ‘same offense’ as the felony murder charge
under the Blockburger test.’’ 

. In arriving at this
conclusion, we reasoned that the predicate felony was
a lesser included offense of felony murder because it
‘‘was not possible to commit felony murder in the manner indicated in the indictment without having also
committed [the underlying predicate offense].’’ 

 Given
that ‘‘there are no elements [of the predicate offense
that] are not also elements of felony murder’’; id.; a
defendant’s conviction of both offenses would violate
the prohibition against double jeopardy in the absence
of ‘‘a clear indication of contrary legislative intent.’’16
(Internal quotation marks omitted.) 

; see also
State v. Burgos, 

, 

(parties did not dispute ‘‘that sexual assault in the first
degree and risk of injury to a child are legally the ‘same
offense’ as aggravated sexual assault of a minor under
the Blockburger test when . . . they are charged as
predicate offenses for aggravated sexual assault of a
minor’’), cert. denied, 

, 

(2017).
   The defendant’s reliance on Greco is misplaced because
attempt to commit assault in the first degree is not a
lesser included offense of home invasion. To be a lesser
included offense, it must be impossible ‘‘to commit the
greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser . . . .’’ State v. Whistnant, 

, 

 (1980); see State v. 

 (under Blockburger test, charging documents may be ‘‘relevant to the court’s analysis insofar
as [they] identif[y] [a] predicate [offense]’’). Although
the state alleged in its charging document that the defendant had the specific intent to commit the crime of
assault in the first degree when he entered or remained
unlawfully in the victim’s dwelling, it did not allege, nor
was it required to prove, that the defendant actually
committed or attempted to commit the crime of assault
in the first degree. See footnote 15 of this opinion.
Stated another way, the commission or attempted commission of a separate predicate offense is not an essential element of home invasion under subdivision (2) of
§ 53a-100aa (a); the crime is complete when a defendant
enters or remains unlawfully in an occupied dwelling
with intent to commit a crime therein while armed with
an explosive, a deadly weapon, or a dangerous instrument. Cf. State v. 

 216 Conn. 291–92 (to
commit felony murder, defendant must commit predicate offense identified in state’s charging document);
State v. 

 (‘‘§§ 53-21
(a) (2) and 53a-70 (a) (2) are essential elements of § 53a-
70c when they are charged as predicate offenses’’).
Because it is possible to commit the crime of home
invasion without committing the crime of attempt to
commit assault in the first degree, we conclude that
home invasion in violation of § 53a-100aa (a) (2) and
attempt to commit assault in the first degree in violation
of §§ 53a-59 (a) (1) and 53a-49 are not the same offense
under the Blockburger test.17 Accordingly, we reject the
defendant’s double jeopardy claim.18
      The judgment is affirmed.
      In this opinion the other justices concurred.
  1
     The victim had a valid pistol permit at the time of the event.
  2
     One .40 caliber bullet also was found. Although the bullet had rifling
characteristics similar to the defendant’s pistol, it lacked the microscopic
marks needed for identification.
   3
     The trial court sentenced the defendant to thirty years of incarceration for
the crime of home invasion and imposed the following concurrent sentences:
twenty-five years for attempt to commit assault in the first degree, one year
for reckless endangerment in the first degree, and fifteen years for each
count of risk of injury to a child.
   4
     The defendant appealed directly to this court pursuant to General Statutes § 51-199 (b) (3).
   5
     At trial, Angela Przech, a forensic science examiner, testified that the
blood ‘‘originated from a single individual male’’ and that the DNA profile
found was ‘‘at least 100 billion times more likely to occur if it originated
from [the defendant] than if it originated from an unknown individual.’’
   6
     There was no evidence before the jury as to the location, nature, or
severity of the defendant’s injuries, and, therefore, it was not unreasonable
for the jury to infer that the defendant was physically capable of changing
his clothing and abandoning his pistol despite suffering from a recently
inflicted gunshot wound or wounds. See, e.g., State v. Copas, 

, 

 (2000) (‘‘in determining whether the evidence supports
a particular inference, we ask whether that inference is so unreasonable as
to be unjustifiable’’ (internal quotation marks omitted)).
   7
     General Statutes § 53a-49 (a) provides in relevant part that ‘‘[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.’’
   8
     General Statutes § 53a-59 (a) provides in relevant part that ‘‘[a] person
is guilty of assault in the first degree when: (1) With intent to cause serious
physical injury to another person, he causes such injury to such person or
to a third person by means of a deadly weapon or a dangerous instrument . . . .’’
   9
     General Statutes § 53a-63 (a) provides that ‘‘[a] person is guilty of reckless
endangerment in the first degree when, with extreme indifference to human
life, he recklessly engages in conduct which creates a risk of serious physical
injury to another person.’’
   10
      The defendant did not preserve his legal inconsistency claim in the trial
court and, therefore, seeks review under State v. Golding, 

,
239–40, 

 (1989), as modified by In re Yasiel R., 

, 781, 

 (2015). We conclude that the defendant’s claim is
reviewable under the first two prongs of Golding because the record is
adequate for review and the claim is of constitutional magnitude. See State
v. Chyung, 

, 254 n.15, 

 (2017) (‘‘[i]n addition to
implicating the constitutional due process right to notice of the nature of
the charges against a defendant . . . legally inconsistent guilty verdicts
implicate the constitutional due process right to proof beyond a reasonable
doubt of every element of the charged offense’’ (citation omitted)); State
v. Nash, 

, 658 n.8, 

 (2015) (reviewing unpreserved
legal inconsistency claim under Golding). Nonetheless, for the reasons
explained in this opinion, the defendant’s claim fails under the third prong
of Golding because his convictions are not legally inconsistent.
   11
      The defendant claims that the state is precluded from raising this argument on appeal because the theory was not presented to the jury at trial.
See, e.g., State v. Alicea, 

, 400, 

 (2021) (‘‘the
theory of the case doctrine may be defensively incorporated into a legal
inconsistency claim; that is, a defendant may preclude the state from relying
on a novel factual theory of the case on appeal because a new theory cannot
transform inconsistent verdicts into consistent ones if it was not presented
to the jury at trial’’); State v. Chyung, 

, 255–56, 

(2017) (rejecting state’s claim ‘‘that the jury reasonably could have found
that the defendant engaged in two separate acts with two separate results’’
because ‘‘it never presented this theory to the jury during trial’’); State v.
King, 

, 149, 

 (2016) (‘‘[p]rinciples of due process
do not allow the state, on appeal, to rely on a theory of the case that was
never presented at trial’’). We disagree. Our review of the record reveals
that the crimes of attempt to commit assault in the first degree and reckless
endangerment were charged, argued, and instructed in the conjunctive,
meaning that the jury was not required to choose ‘‘one offense or the other.’’
(Emphasis in original.) State v. King, supra, 150. During closing argument,
the prosecutor proceeded on the theory that the defendant’s criminal conduct could be separated into two different acts, either of which, standing
alone, would be sufficient to support a conviction of attempt to commit
assault in the first degree or reckless endangerment: (1) the act of chasing
the victim up the stairs and invading his apartment with a loaded and cocked
pistol; and (2) the act of shooting toward the victim outside of 903 Kossuth
Street. For example, with respect to reckless endangerment, the prosecutor
argued that ‘‘the evidence shows that the defendant, when he entered that
home unlawfully with a firearm, placed everyone in that home—created a
risk of serious physical injury. When he shot that gun out in front of the
house, [he] created a risk of physical injury.’’ The state also argued that the
jury could find the defendant guilty of attempt to commit assault in the first
degree because the defendant ‘‘chased [the victim] up the stairs, kicked
open the door, entered [the victim’s] apartment and then chased him back
down the stairs,’’ and also because ‘‘a nine millimeter shell casing was found
at the scene.’’ We therefore reject the defendant’s claim that the state’s theory
on appeal ‘‘is inapposite to the way the [prosecutor] tried and summarized
the case to the jury.’’
   12
      Ruiz-Pacheco was a double jeopardy case, in which the defendant
alleged that his multiple assault convictions under the same statute with
respect to the same victim violated his constitutional right to be free from
multiple punishments. See State v. 

. To
resolve the issue on appeal, we analyzed whether the defendant’s assault
convictions were based on two different criminal acts, i.e., whether there
was a ‘‘single, uninterrupted fight’’; 

; or ‘‘two separate courses of
assaultive conduct.’’ 

. Although Ruiz-Pacheco was a double jeopardy
case, we agree with the defendant that the factors enumerated therein apply
to the ‘‘different acts’’ inquiry pertinent to a legal inconsistency claim.
   13
      Alternatively, as the state argues in its brief, the jury reasonably could
have found that the defendant acted in reckless disregard of the risk of
serious physical injury to the victim, in violation of the reckless endangerment statute, § 53a-63 (a). Although the evidence supports the commission
of either crime, we know that the jury determined that, during the initial
sequence of events, the defendant acted with an intentional state of mind
(rather than a reckless state of mind) because the jury found the defendant
guilty of home invasion, which, as charged in the present case, required the
state to prove beyond a reasonable doubt that the defendant ‘‘enter[ed] and
remain[ed] unlawfully in a dwelling, with intent to commit a crime therein,
to wit, assault in the first degree . . . .’’ See part III of this opinion. Because
an essential element of assault in the first degree is the specific intent to
inflict serious physical injury; see, e.g., State v. Holmes, 

,
736–37, 

, cert. denied, 

, 

 (2003); the
jury necessarily found that the defendant had the conscious objective to
inflict serious physical injury when he invaded the victim’s apartment. The
defendant does not dispute that the evidence was sufficient to support the
essential element of intent to inflict serious physical injury.
   14
      General Statutes § 53a-100aa (a) provides in relevant part that ‘‘[a] person is guilty of home invasion when such person enters or remains unlawfully
in a dwelling, while a person other than a participant in the crime is actually
present in such dwelling, with intent to commit a crime therein, and, in the
course of committing the offense . . . (2) such person is armed with explosives or a deadly weapon or dangerous instrument.’’
   15
      We disagree with the defendant’s characterization of the state’s amended
information. The state did not charge the defendant with attempt to commit
assault in the first degree as a predicate offense of home invasion; instead,
it charged that the defendant had the specific intent to commit the crime
of assault in the first degree when he entered or remained unlawfully in
the victim’s dwelling. Specifically, in count one of the amended information
accusing the defendant of home invasion, the state ‘‘charge[d] that . . . on
or about the 21st day of September, 2017, at approximately 5:09 p.m., at or
near 903 Kossuth Street . . . the [defendant] did enter and remain unlawfully in a dwelling, with intent to commit a crime therein, to wit, assault
in the first degree, while [the victim] and others, who were not participants
in the crime, were actually present in such dwelling, and the [defendant]
was armed with a deadly weapon, to wit, a handgun, in violation of [§] 53a-
100aa (a) (2) . . . .’’ (Emphasis added.).
   In count two of the amended information, the state charged the defendant
‘‘with the crime of criminal attempt to commit assault in the first degree,
and charge[d] that . . . on or about the 21st day of September, 2017, at
approximately 5:09 p.m., at or near 903 Kossuth Street . . . the [defendant],
with intent to cause serious physical injury to [the victim], did under circumstances as he believed them to be, acted in such a way as to constitute a
substantial step in a course of conduct to cause serious physical injury to
the [victim] with a deadly weapon, to wit, a handgun, in violation of [§] 53a-
59 (a) (1) and [§] 53a-49 . . . .’’
   16
      As we explained in Greco, the Blockburger test is not dispositive of the
double jeopardy inquiry. See State v. 

 216 Conn. 292–93. ‘‘This
is because [t]he role of the constitutional guarantee [against double jeopardy]
is limited to [ensuring] that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense. . . . The issue,
though essentially constitutional, becomes one of statutory construction.’’
(Internal quotation marks omitted.) State v. Bernacki, 

, 10, 

 (2012), cert. denied, 

, 

, 

 (2013). ‘‘[When] . . . a legislature specifically authorizes cumulative
punishment under two statutes, regardless of whether those two statutes
proscribe the same conduct under Blockburger, a court’s task of statutory
construction is at an end and the prosecutor may seek and the trial court
or jury may impose cumulative punishment under such statutes in a single
trial.’’ (Internal quotation marks omitted.) State v. 

. In Greco,
we concluded that ‘‘the legislature clearly intended multiple punishments
for felony murder and the predicate [offense on which a felony murder
charge is based],’’ and, therefore, conviction of both offenses did not violate
the double jeopardy clause. 

   17
      We recognize that the amended information alleges the same facts to
support the defendant’s commission of the crimes of home invasion and
attempt to commit assault in the first degree. As we recently explained in
State v. 

, however, we must confine our analysis
to the statutory elements of the offenses under Blockburger and cannot
consider the facts alleged in the state’s information to determine whether
the two offenses are greater and lesser included offenses for double jeopardy
purposes. See 

 (risk of injury to child, in violation of General Statutes
(Rev. to 1995) § 53-21, is not lesser included offense of manslaughter in first
degree, in violation of General Statutes § 53a-55 (a) (1), as amended by
Public Acts 1995, No. 95-142, § 1, even though state alleged same factual
predicate for each crime).
   18
      ‘‘[T]he Blockburger test creates only a rebuttable presumption of legislative intent, [and] the test is not controlling when a contrary intent is manifest.
. . . When the conclusion reached under Blockburger is that the two crimes
do not constitute the same offense, the burden remains on the defendant
to demonstrate a clear legislative intent to the contrary.’’ (Internal quotation
marks omitted.) State v. 

. The defendant
does not claim that the legislature clearly intended the crimes of home
invasion and attempt to commit assault in the first degree to be treated as
the same offense for double jeopardy purposes, even though they constitute
separate offenses under the Blockburger test, and, therefore, we conclude
that he has failed to fulfill his burden of establishing a double jeopardy
violation. See State v. 

 340 Conn. 445–46 (concluding that
no double jeopardy violation existed because defendant had provided no
authority for his claim that legislature intended to treat crimes of conviction
as same offense for double jeopardy purposes, even though they constituted
separate offenses under Blockburger); State v. Miranda, 

,

 (same), cert. denied, 

, 

, 

 (2002).