State v. VanDeusen ( 2015 )

******************************************************
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.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and 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 repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. SARA E. VANDEUSEN
(AC 35504)
DiPentima, C. J., and Prescott, and Bear, Js.
Argued April 7—officially released November 3, 2015
(Appeal from Superior Court, judicial district of
Litchfield, Ginocchio, J.)
Pamela S. Nagy, assigned counsel, for the appel-
lant (defendant).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were David S. Shepack, state’s
attorney, and Dawn Gallo, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Sara E. VanDeusen,
appeals from the judgment of conviction, rendered after
a jury trial, of one count of conspiracy to commit assault
in the first degree in violation of General Statutes
§§ 53a-59 (a) (1) and 53a-48; one count of being an
accessory to an attempt to commit assault in the first
degree in violation of General Statutes §§ 53a-59 (a)
(1), 53a-49 (a) (2), and 53a-8; and one count of risk of
injury to a child in violation of General Statutes § 53-
21 (a) (1). In addition, the jury also found, pursuant to
an interrogatory on each count, that ‘‘the defendant
or another participant used or was armed with and
threatened the use of or displayed a firearm,’’ and the
court accordingly enhanced her sentence pursuant to
General Statutes § 53-202k.
On appeal, the defendant claims that (1) the evidence
was insufficient to support her conviction of conspiracy
and attempt to commit assault in the first degree, and
of risk of injury to a child, (2) the trial court improperly
instructed the jury on the elements of conspiracy and
attempt to commit assault in the first degree, and (3)
the court improperly enhanced her sentence on the
counts of conspiracy to commit assault in the first
degree and risk of injury to a child pursuant to § 53-
202k. We affirm the judgment of the court with respect
to the first and the second claims. With respect to the
third claim, we agree with the defendant that the court
improperly enhanced her sentence on the counts of
conspiracy to commit assault in the first degree and
risk of injury to a child. We, thus, affirm the trial court’s
judgment in part and reverse it in part.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to this
appeal. The charges against the defendant stem from
a shooting that occurred on the evening of January 10,
2009, in Torrington at the residence of J.L., her then
three year old son, A.S., and her boyfriend, Gregorio
Rodriguez.1
Prior to the shooting, the defendant and J.L. were
good friends and had several mutual acquaintances,
including the defendant’s roommate, Carlos Casiano,
as well as Alyssa Ayala and her boyfriend, Charles
Knowles. At some point, however, the relationship
between J.L. and Ayala became antagonistic because
J.L. had a sexual encounter with Knowles in October
or November, 2008. Once Ayala had learned of the
encounter, she became angry with J.L. and threatened
to ‘‘fuck that bitch up for messing with [her] man
. . . .’’
At the same time, the relationship between Rodriguez
and Knowles also became antagonistic. Both were drug
dealers, but belonged to two rival gangs. On January
9, 2009, Knowles and Rodriguez engaged in a fistfight
at a local pub. As a result of the fight, Knowles suffered
a broken facial bone, for which he sought treatment at
a hospital the following day.
At the hospital, Knowles was accompanied by Ayala
and Casiano. While waiting at the hospital, the trio
discussed going to J.L.’s and Rodriguez’ residence to
‘‘get back at them.’’ Ayala, however, was concerned that
neither Knowles nor she herself could participate in a
physical altercation.2 Ayala then called the defendant
and explained to her the nature and extent of
Knowles’ injury.
The defendant later arrived at the hospital to pick
up Ayala and Knowles. Once she had seen the extent
of the injury, the defendant offered to fight J.L. instead
of having Ayala fight J.L. because, according to the
defendant, J.L.’s sexual relationships with both Rodri-
guez and Knowles had instigated the fight at the pub
the previous night.
Ayala thereafter placed several telephone calls from
a private number to J.L.’s residence, trying to ascertain
whether she and Rodriguez were there by pretending
to be someone else looking for Rodriguez. Having never-
theless recognized Ayala as the caller, J.L. told her that
Rodriguez was home and further remarked that her
minor child was also at home.3
Alarmed by Ayala’s calls, J.L. called the defendant
and told her that Ayala was ‘‘trying to start problems
. . . .’’ During that conversation, J.L. threatened to
‘‘kick [Ayala’s] ass’’ and stated that she had sexual inter-
course with Knowles throughout the entire time that
Ayala had been dating him. In addition, J.L. gave the
defendant her new address, adding that Ayala could
come over if she wanted to have an altercation.4
The defendant then called Ayala and relayed to her
the essence of her conversation with J.L. and, once
again, volunteered to fight in Ayala’s stead. Knowles
overheard J.L.’s challenge and became ‘‘mad’’ because
J.L. had threatened to beat up his pregnant girlfriend.
Knowles then called Casiano and asked Casiano to fight
Rodriguez. Knowles also told Casiano to come get him
at Ayala’s residence and to bring the defendant because
‘‘she was the only one [who] knew where [J.L.] lived
. . . .’’ Knowles then mentioned to Casiano that he had
a gun. After the call to Casiano, Knowles also called
his mother in New York and told her that he would be
coming back there.5
Thereafter, Casiano and the defendant picked up
Knowles in a green van. Before leaving Ayala’s resi-
dence, Knowles retrieved a handgun from a shoe box
in a bedroom closet. The trio then headed to J.L.’s
residence. On the way to J.L.’s residence, the defendant
saw that Knowles was armed. Despite her knowledge
of the handgun, after pulling up in front of J.L.’s resi-
dence, the defendant called J.L. from her cellular phone
and asked her and Rodriguez to come out of the house.
Sensing trouble, J.L. refused to come out, hung up the
telephone, and turned off the lights in the living room,
which was facing the street.
Once the defendant, Casiano, and Knowles realized
that J.L. and Rodriguez were not going to come out,
Knowles opened the van’s door and fired his handgun
at the residence. Inside of the residence, Rodriguez
and J.L.’s friend, Casey Delmonte, who were watching
television in a back bedroom, heard ‘‘a very loud noise
. . . .’’ When Delmonte went to the living room window
to investigate, she saw the taillights of a ‘‘bigger vehicle’’
as it drove away. At that time, none of them realized
that they had heard the sound of gunshots.
Later that evening, however, J.L., Rodriguez, and Del-
monte discovered that a bullet had pierced the front
door window and lodged in a wall separating the
entryway and the bedroom where Rodriguez, Delmonte,
and A.S. had been watching television at the time of
the shooting. The bullet had struck the wall at four feet,
two inches above the floor. In addition, it was later
discovered that a second bullet had struck a supporting
pillar on the front porch of the residence.
Following the shooting, Knowles directed Casiano
and the defendant to dispose of the gun by delivering
it to someone in Waterbury. Thereafter, Knowles and
Casiano went into hiding, ultimately ending up in New
York. Ayala later also joined Knowles in New York.
The defendant did not leave Torrington following the
shooting. When the defendant was later interviewed by
the police in connection with the shooting investigation,
she denied any knowledge of the shooting and stated
that she could not recall her whereabouts on the night
in question. The defendant further stated that she did
not know Knowles and that she had not called J.L. on
the day of the shooting.
As a result of the investigation, the defendant was
arrested on August 5, 2009, and charged with one count
of conspiracy to commit assault in the first degree in
violation of §§ 53a-48 and 53a-59 (a) (1); one count of
being an accessory to an attempt to commit assault in
the first degree in violation of §§ 53a-59 (a) (1), 53a-49
(a) (2) and 53a-8; and one count of risk of injury to a
child in violation of § 53-21 (a) (1). In addition, the
state sought to enhance the defendant’s sentence on
all counts pursuant to § 53-202k.
Following a trial, the jury found the defendant guilty
as charged on all counts. Thereafter, the court sen-
tenced the defendant to ten years incarceration, execu-
tion suspended after five years, followed by five years
enhancement, pursuant to § 53-202k, on each count, to
run concurrently, for a total effective sentence of fifteen
years incarceration, suspended after ten years, followed
by five years probation.6 This appeal followed. Addi-
tional facts and procedural history will be set forth
as needed.
I
SUFFICIENCY OF EVIDENCE
We begin with the defendant’s challenge to the suffi-
ciency of the evidence to support her conviction of
conspiracy to commit assault in the first degree, attempt
to commit assault in the first degree as an accessory,
and risk of injury to a child.
It is well settled that a defendant who ‘‘asserts an
insufficiency of the evidence claim bears an arduous
burden.’’ (Internal quotation marks omitted.) State v.
Rodriguez, 146 Conn. App. 99, 110, 75 A.3d 798, cert.
denied, 310 Conn. 948, 80 A.3d 906 (2013). ‘‘[F]or the
purposes of sufficiency review . . . we review the suf-
ficiency of the evidence as the case was tried . . . .
[A] claim of insufficiency of the evidence must be tested
by reviewing no less than, and no more than, the evi-
dence introduced at trial.’’ (Internal quotation marks
omitted.) State v. Nasheed, 121 Conn. App. 672, 682,
997 A.2d 623, cert. denied, 298 Conn. 902, 3 A.3d 73
(2010). ‘‘In reviewing a sufficiency of the evidence
claim, 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 . . . . This court can-
not substitute its own judgment for that of the jury if
there is sufficient evidence to support the jury’s ver-
dict.’’ (Internal quotation marks omitted.) State v. Allan,
311 Conn. 1, 25, 83 A.3d 326 (2014).
‘‘[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 rea-
sonable 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 combi-
nation 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. . . .
‘‘Moreover, it does not diminish the probative force
of the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
It is not one fact . . . but the cumulative impact of
a multitude of facts which establishes guilt in a case
involving substantial circumstantial evidence. . . . 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 estab-
lished by the evidence [that] it deems to be reasonable
and logical.’’ (Internal quotation marks omitted.) State
v. Papandrea, 302 Conn. 340, 348–49, 26 A.3d 75 (2011).
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.’’ (Internal quotation
marks omitted.) State v. Stephen J. R., 309 Conn. 586,
594, 72 A.3d 379 (2013).
A
The defendant first claims that there was insufficient
evidence to prove beyond a reasonable doubt that she
‘‘had the requisite intent for the underlying crime of
first degree assault . . . .’’ According to the defendant,
she could not have been found guilty of conspiring
to commit assault in the first degree (count one) and
attempt to commit first degree assault as an accessory
(count two) because there ‘‘was utterly no evidence
that she agreed or intended for anyone to be shot.’’ We
are not persuaded.
Because both counts one and two required the state
to prove, among other things, that the defendant
intended that she or another participant commit an
assault in the first degree, we discuss these counts
together.
Section 53a-59 (a) (1) provides that a person is guilty
of assault in the first degree if ‘‘[w]ith 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 . . . .’’
As to count one, which charged conspiracy to commit
first degree assault, we note that ‘‘[t]o establish the
crime of conspiracy under § 53a-48 . . . the state must
show that there was an agreement between two or more
persons to engage in conduct constituting a crime and
that the agreement was followed by an overt act in
furtherance of the conspiracy by any one of the conspir-
ators. . . . [Although] the state must prove an
agreement, the existence of a formal agreement
between the conspirators need not be proved because
[i]t is only in rare instances that conspiracy may be
established by proof of an express agreement to unite to
accomplish an unlawful purpose. . . . [T]he requisite
agreement or confederation may be inferred from proof
of the separate acts of the individuals accused as cocon-
spirators and from the circumstances surrounding the
commission of these acts. . . . Further, [c]onspiracy
can seldom be proved by direct evidence. It may be
inferred from the activities of the accused persons. . . .
The state need not prove that the defendant and a
coconspirator shook hands, whispered in each other’s
ear, signed papers, or used any magic words such as
we have an agreement. . . .
‘‘The state must also show intent on the part of the
accused that conduct constituting a crime be per-
formed. . . . Conspiracy is a specific intent crime, with
the intent divided into two elements: (a) the intent to
agree or conspire and (b) the intent to commit the
offense which is the object of the conspiracy. . . .
Thus, [p]roof of a conspiracy to commit a specific
offense requires proof that the conspirators intended
to bring about the elements of the conspired offense.’’
(Citations omitted; internal quotation marks omitted.)
State v. Douglas, 126 Conn. App. 192, 201–203, 11 A.3d
699, cert. denied, 300 Conn. 926, 15 A.3d 628 (2011).
With respect to count two, which charged the defen-
dant with attempt to commit first degree assault as an
accessory, we note 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.’’ General Statutes § 53a-49
(a). As to accessorial liability, ‘‘[a] person, acting with
the mental state required for commission of an offense,
who . . . importunes or intentionally aids another per-
son to engage in conduct which constitutes an offense
shall be criminally liable for such conduct and may be
prosecuted and punished as if he were the principal
offender.’’ General Statutes § 53a-8 (a).
Finally, it is settled that the question of ‘‘intent is
purely a question of fact. . . . The state of mind of one
accused of a crime is often the most significant and, at
the same time, the most elusive element of the crime
charged. . . . Because it is practically impossible to
know what someone is thinking or intending at any
given moment, absent an outright declaration of intent,
a person’s state of mind is usually proven by circumstan-
tial evidence. . . . Intent may be and usually is inferred
from conduct. . . . [W]hether such an inference
should be drawn is properly a question for the jury to
decide.’’ (Internal quotation marks omitted.) State v.
Douglas, supra, 126 Conn. App. 204. Moreover, intent
‘‘may be inferred from circumstantial evidence such as
the events leading to and immediately following the
incident, and the jury may infer that the defendant
intended the natural consequences of his actions.’’ State
v. McRae, 118 Conn. App. 315, 320, 983 A.2d 286 (2009);
see also State v. Douglas, supra, 204 (‘‘[t]he defendant’s
state of mind may be proven by his conduct before,
during and after the shooting’’ [internal quotation marks
omitted]). With these principles in mind, we now turn
to the substance of the defendant’s claim.
In her brief, the defendant argues that the ‘‘evidence
in the present case shows nothing more than an
agreement between [the] defendant, Knowles and [Casi-
ano] to go to [J.L.’s] house so that the defendant could
fight [J.L.] and [Casiano] could fight Rodriguez, and
that the shooting by Knowles was an unplanned and
unanticipated occurrence sparked by the refusal of
[J.L.] and Rodriguez to exit the home.’’ Because we
conclude that the state presented sufficient evidence
for the jury to find beyond a reasonable doubt that the
defendant had the requisite intent that she or another
participant cause serious physical injury to another per-
son, we reject the defendant’s claim.
Ayala testified that the defendant admitted to her
that, prior to the shooting, she saw the gun behind
Knowles’ belt buckle. She also saw him transfer it to
his lap on the way to J.L.’s residence. On the basis of this
evidence, the jury, using its common sense, reasonably
could have inferred that, having seen the gun at the
ready on Knowles’ lap, the defendant must have realized
that Knowles intended on using it against J.L. and/or
Rodriguez. See State v. Lavigne, 121 Conn. App. 190,
196, 995 A.2d 94 (2010) (‘‘[triers of fact] are not required
to leave common sense at the courtroom door’’ [internal
quotation marks omitted]), aff’d, 307 Conn. 592, 57 A.3d
332 (2012); see also State v. Booth, 250 Conn. 611, 656–
57, 737 A.2d 404 (1999) (unarmed defendant’s knowl-
edge that codefendants were armed established that he
conspired and intended that he or coconspirator would
kill victim), cert. denied sub nom. Brown v. Connecti-
cut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471
(2000). As the state correctly points out in its brief,
despite that knowledge, the defendant ‘‘continued guid-
ing her cohorts to J.L.’s home and then called J.L. in
an attempt to lure her and Rodriguez outside.’’ See State
v. Millan, 290 Conn. 816, 828, 966 A.2d 699 (2009) (‘‘[a]
coconspirator’s conduct at the scene can provide the
requisite evidence of an agreement’’); State v. Crosswell,
223 Conn. 243, 256, 612 A.2d 1174 (1992) (‘‘[T]he requi-
site agreement or confederation may be inferred from
proof of the separate acts of the individuals accused
as coconspirators and from the circumstances sur-
rounding the commission of these acts. . . . The fact
that the defendant stood by silently when a gun was
displayed in order to gain entry and then to intimidate
the occupants of the premises is evidence from which
the jury might reasonably have inferred the defendant’s
acquiescence in this enlarged criminal enterprise.’’
[Citation omitted.]); State v. Elsey, 81 Conn. App. 738,
747, 841 A.2d 714 (‘‘the jury could have based at least
part of its decision regarding the conspiracy charges
on the defendant’s decision to come to the scene of the
crime with the coconspirators, stay at the scene while
the crimes were committed and leave the scene with
the coconspirators’’), cert. denied, 269 Conn. 901, 852
A.2d 733 (2004).
In addition, the jury reasonably could have inferred
that the defendant had the requisite intent that she or
a coconspirator cause serious physical injury to another
person from the evidence that, following the shooting,
she fled the scene with Knowles and Casiano, helped
Knowles to dispose of the gun by handing it over to
someone in Waterbury, and later lied to the police about
her involvement in the crime. See State v. Wright, 77
Conn. App. 80, 93, 822 A.2d 940 (fleeing with codefen-
dant who remained in possession of gun after shooting
is indicative of intent to commit murder), cert. denied,
266 Conn. 913, 833 A.2d 466 (2003); State v. Patterson,
229 Conn. 328, 334, 641 A.2d 123 (1994) (concealment of
weapon after crime establishes consciousness of guilt);
see also State v. Booth, supra, 250 Conn. 657 (‘‘the jury
reasonably could have concluded that [the defendant]
lied to the police to cover up his part in the crime’’).
We thus conclude that there was sufficient evidence
from which the jury could have concluded beyond a
reasonable doubt that the defendant had the requisite
intent that she or another participant cause serious
physical injury to another person, that is, an assault
in the first degree. Accordingly, the defendant’s claim
must fail.
B
The defendant next claims that, with respect to the
charges of conspiracy to commit assault in the first
degree and attempt to commit assault in the first degree
as an accessory, there was insufficient evidence to
prove beyond a reasonable doubt that she agreed or
intended that the person to be injured was Rodriguez.
Specifically, the defendant argues that the state’s theory
of the case was that the intended target of the assault
had been Rodriguez, but, according to the defendant,
the state proved only that she intended to assault J.L.
and failed to prove that she intended that Rodriguez be
assaulted. The defendant further argues that because
the state’s theory at trial was that Rodriguez had been
the intended target, the state cannot on appeal ‘‘proceed
on a new theory’’ that evidence of the defendant’s intent
to assault J.L. was sufficient to sustain the state’s bur-
den of proof on counts one and two. Alternatively, the
defendant argues that the state also failed to establish
beyond a reasonable doubt that Knowles and Casiano
shared an intent to assault J.L., and that she could not
have conspired with them to have J.L. assaulted. We
are not persuaded by any of these insufficiency claims.
The following additional facts are relevant to these
claims. Prior to trial, on May 29, 2012, the defendant
filed a motion ‘‘for long information or bill of particu-
lars,’’ seeking, inter alia, that the state identify ‘‘[t]he
person and or persons a [sic] victim of all crimes
charged . . . .’’ In response, on May 31, 2012, the state
filed a long form information, charging the defendant
in count one with, among other things, conspiracy to
commit assault in the first degree. Although the state
did not specify any of the intended victims of the assault
in that count, the state alleged, as part of the overt acts
committed in furtherance of that conspiracy on January
10, 2009, that the defendant, Knowles, and Ayala, ‘‘dis-
cussed retribution against . . . Rodriguez,’’ Ayala then
called J.L. ‘‘in an attempt to confirm whether [J.L.] and
[Rodriguez] were located at [J.L.’s] home,’’ the defen-
dant ‘‘discovered [J.L.’s] new address’’ and then ‘‘called
[J.L.] requesting that she and [Rodriguez] exit [J.L.’s]
home while one or more coconspirators were in the
area . . . .’’ In count two of the long form information,
which alleged an attempt to commit assault in the first
degree as an accessory, the state did not specify an
intended victim.7 The defendant did not file a new
motion for a bill of particulars or otherwise object to
the long form information.
As noted previously, during trial, the state presented
evidence that the defendant conspired and attempted
to help Knowles to get back at Rodriguez for the injury
he had inflicted on Knowles during the fight. In pursuit
of that goal, the defendant personally guided Casiano
and Knowles to J.L.’s residence and then attempted to
lure her and Rodriguez to come out of the house. The
evidence also established that the defendant, believing
that J.L. had been the actual instigator of the fight
between Knowles and Rodriguez, sought to take
revenge on J.L. and travelled to her residence with
Casiano and Knowles in an attempt to assault her. Fur-
thermore, the state also presented evidence that
Knowles also intended for the defendant to fight J.L.
and instructed Casiano to bring the defendant along
because he had been angered by J.L.’s threats to Ayala,
his then pregnant girlfriend.
After the close of evidence, the prosecutor argued
to the jury that the defendant had conspired to drive
‘‘to [J.L.’s] and Gregorio Rodriguez’ house on January
10, 2009, under cover of darkness to shoot at them
. . . .’’ (Emphasis added.) In addition, when summariz-
ing Ayala’s testimony, the prosecutor argued that the
defendant ‘‘was shocked when she saw Charles
Knowles’ facial injury, and that she offered to beat [J.L.]
up to be a full part of this retaliation against this couple
. . . .’’ (Emphasis added.) Similarly, during rebuttal
argument, the prosecutor argued that the defendant
called J.L. ‘‘to get her and Greg [Rodriguez] to come
outside. . . . She called them to come out so they
could shoot them.’’ (Emphasis added.) Finally, in con-
clusion, the prosecutor argued that the defendant
‘‘didn’t ride along to go to Dairy Queen that night. They
met at the hospital; they talked about retaliation . . . .
Notwithstanding that there was a gun, she saw that
gun, she called the house to lure those people out
. . . .’’ (Emphasis added.)
We first address the defendant’s claim that, in light
of the long form information, the state is barred from
claiming on appeal that the evidence was sufficient to
sustain a conviction on counts one and two because it
adequately demonstrated that the defendant had the
requisite intent that she or a coparticipant assaulted
J.L.8
In her brief, the defendant correctly points out that,
generally speaking, ‘‘the state is limited to proving that
the defendant has committed the offense in substan-
tially the manner described in the information.’’ (Inter-
nal quotation marks omitted.) State v. Martin, 56 Conn.
App. 98, 108, 741 A.2d 337 (1999), cert. denied, 252
Conn. 926, 746 A.2d 790 (2000). It is also true, however,
that ‘‘[w]hen determining the scope of charges con-
tained in an information, we construe the information
liberally in favor of the state.’’ State v. DeJesus, 92 Conn.
App. 92, 103, 883 A.2d 813 (2005), appeal dismissed,
282 Conn. 783, 928 A.2d 533 (2007). Furthermore, we
do not examine individual counts in isolation, but rather
the entire structure of an information because it ‘‘is
relevant to determining the charges and theories of
liability for which a defendant had notice.’’ Id., 104; see
also State v. Davis, 154 Conn. App. 216, 228, 107 A.3d
962 (2014) (‘‘[w]e do not read each count specified
in the substitute information and bill of particulars in
isolation’’ [internal quotation marks omitted]), cert.
denied, 315 Conn. 918, 107 A.3d 961 (2015).
In this case, the long form information did not name,
in counts one or two, a specific victim, and the defen-
dant did not raise an objection with the court that the
long form information was a legally inadequate
response to her motion for a bill of particulars. See
State v. Vincent, 194 Conn. 198, 205, 479 A.2d 237 (1984)
(burden rests on defendant to request bill of particulars
and statement of essential facts). Furthermore, the first
count of the information provided the defendant with
sufficient information about the state’s allegations and
theory of the crime; i.e., that Ayala called J.L. to confirm
that both Rodriguez and J.L. were home, and that the
defendant tried to lure both Rodriguez and J.L. to come
out of the house while she, Knowles and Casiano were
waiting outside. Thus, construing the information liber-
ally and taking into account the state’s arguments dur-
ing trial, we conclude that the state intended to and in
fact did argue that both J.L. and Rodriguez were the
intended victims of the crime.
We next reject the defendant’s assertion that the evi-
dence at trial established that she agreed to assault J.L.
only and did not have the intent that she or another
participant cause serious physical injury to Rodriguez.
Simply put, this argument does not withstand scrutiny
under the weight of the evidence presented at trial.
The jury heard testimony that Knowles planned
revenge on Rodriguez for inflicting an injury on him
during the fight on the night before the shooting and
at J.L. for threatening his then pregnant girlfriend. The
jury also heard testimony that the defendant knew
about the plan and agreed to participate in it by guiding
two men, one of whom had a gun on his lap, to J.L.’s
residence, and then personally called J.L. and asked for
her and Rodriguez to step out of their house. ‘‘[I]t is a
permissible, albeit not a necessary or mandatory, infer-
ence that a defendant intended the natural conse-
quences of his voluntary conduct.’’ (Emphasis omitted;
internal quotation marks omitted.) State v. Pommer,
110 Conn. App. 608, 619, 955 A.2d 637, cert. denied, 289
Conn. 951, 961 A.2d 418 (2008). On the basis of the
evidence at trial, the jury reasonably could have found
that the defendant’s actions established that she
intended for J.L. and Rodriguez to suffer serious physi-
cal injury.
Finally, we reject the defendant’s argument, with
respect to counts one and two, that there was insuffi-
cient evidence to demonstrate beyond a reasonable
doubt that Knowles and Casiano shared her intent to
assault J.L.9 On the basis of the evidence presented at
trial, the jury reasonably could have found that Knowles
intended for both Rodriguez and J.L. to be injured when
he solicited the defendant’s help to assault J.L., and
indiscriminately fired his gun at J.L.’s residence, know-
ing that both Rodriguez and J.L. were inside at that
time. Accordingly, we conclude that there was sufficient
evidence to sustain the defendant’s conviction of con-
spiracy to commit assault in the first degree and of
being an accessory to an attempt to commit assault in
the first degree.
C
The defendant next claims that there was insufficient
evidence to sustain her conviction of risk of injury to
a child in violation of § 53-21 (a) (1). Specifically, the
defendant argues that the state failed to present suffi-
cient evidence to prove beyond a reasonable doubt that
she wilfully had caused A.S. ‘‘to be placed in a situation
where his life or limbs were endangered because: (1)
there was no evidence that [the] defendant knew [A.S.]
was inside the home; and (2) there was no evidence that
she knew Knowles would use the gun.’’ We disagree.
Section 53-21 (a) provides in relevant part: ‘‘Any per-
son who (1) wilfully or unlawfully causes or permits
any child under the age of sixteen years to be placed
in such a situation that the life or limb of such child is
endangered, the health of such child is likely to be
injured or the morals of such child are likely to be
impaired, or does any act likely to impair the health or
morals of any such child . . . shall be guilty of . . . a
class C felony . . . .’’
‘‘Although it is clear that [t]he general purpose of
§ 53-21 is to protect the physical and psychological well-
being of children from the potentially harmful conduct
of [others] . . . we long have recognized that subdivi-
sion (1) of § 53-21 prohibits two different types of
behavior: (1) deliberate indifference to, acquiescence
in, or the creation of situations inimical to the [child’s]
moral or physical welfare . . . and (2) acts directly
perpetrated on the person of the [child] and injurious
to his [or her] moral or physical well-being. . . . Cases
construing § 53-21 have emphasized this clear separa-
tion between the two parts of the statute . . . .’’ (Cita-
tions omitted; emphasis in original; footnote omitted;
internal quotation marks omitted.) State v. Robert H.,
273 Conn. 56, 65, 866 A.2d 1255 (2005).
In this case, the defendant was charged under the
‘‘situation’’ prong of the statute. Pursuant to ‘‘the ‘situa-
tion’ portion of § 53-21 [a] (1), the state need not prove
actual injury to the child. Instead, it must prove that
the defendant wilfully created a situation that posed a
risk to the child’s health or morals.’’10 State v. Padua,
273 Conn. 138, 148, 869 A.2d 192 (2005).
Last, ‘‘[c]onduct is willful when done purposefully
and with knowledge of [its] likely consequences . . . .
Specific intent is not a necessary requirement of [§ 53-
21]. Rather, the intent to do some act coupled with a
reckless disregard of the consequences . . . of that act
is sufficient to [establish] a violation of the statute.’’
(Citation omitted; internal quotation marks omitted.)
State v. Patterson, 131 Conn. App. 65, 76, 27 A.3d 374
(2011), aff’d, 308 Conn. 835, 68 A.3d 83 (2013). Again,
‘‘the charge of risk of injury to a child does not require
proof of an actual injury, but only that the actions of
the defendant exposed the victim to a situation that
potentially could impair his health.’’ State v. Peters, 40
Conn. App. 805, 828–29, 673 A.2d 1158, cert. denied,
237 Conn. 925, 677 A.2d 949 (1996).
As to the defendant’s argument that it was necessary
for the state to prove that she knew A.S. was inside the
home at the time of the shooting, this court rejected a
similar claim by a defendant in State v. Davila, 75 Conn.
App. 432, 816 A.2d 673, cert. denied, 264 Conn. 909, 826
A.2d 180 (2003), cert. denied, 543 U.S. 897, 125 S. Ct.
92, 160 L. Ed. 2d 166 (2004). In Davila, the defendant
was charged with violating § 53-21 as a result of having
fired several gunshots into an apartment occupied by
five children and one adult. Id., 435. On appeal, the
defendant claimed, inter alia, that there was insufficient
evidence to support his conviction of risk of injury to
a child because ‘‘he was unaware of the presence of
[children] in the apartment when the gunshots were
fired.’’ Id., 438. In rejecting the defendant’s claim, this
court held that ‘‘[r]egardless of whether the defendant
knew that the children were in the apartment, the jury
reasonably could have found that he violated [§ 53-21]
on the basis of his reckless disregard of the conse-
quences of his actions.’’ Id.; see also State v. Reid, 85
Conn. App. 802, 808–10, 858 A.2d 892 (rejecting defen-
dant’s claim on appeal that ‘‘there was no credible evi-
dence that he had the intent necessary to be convicted
under § 53-21 because he was unaware that the child
was in [the] victim’s house when he entered it’’), cert.
denied, 272 Conn. 908, 863 A.2d 702 (2004); State v.
Carter, 84 Conn. App. 263, 275, 853 A.2d 565 (to be
properly convicted under § 53-21, ‘‘[i]t is not necessary
that the court instruct the jury that there must be evi-
dence that the defendant intended to harm the victim
or knew that she was in the area and would likely be
injured by a stray bullet’’), cert. denied, 271 Conn. 932,
859 A.2d 931 (2004), cert. denied, 544 U.S. 1066, 125 S.
Ct. 2529, 161 L. Ed. 2d 1120 (2005).
As we determined in parts I A and B of this opinion,
there was sufficient evidence before the jury to find
that the defendant conspired and attempted to commit
an assault in the first degree. This evidence was also
sufficient for the jury reasonably to find that the defen-
dant’s conduct constituted a reckless disregard of the
consequences of her actions. The defendant conspired
with Knowles and Casiano to go to J.L.’s house to obtain
revenge for the beating of Knowles. They needed her
to direct them to J.L.’s residence, and she did that
although she knew that Knowles had a gun in his posses-
sion. Despite her knowledge of Knowles’ possession of
a gun and anger about being beaten by Rodriguez, she
attempted to convince Rodriguez and J.L. to come out
of J.L.’s residence. After her efforts failed, Knowles
exited the vehicle and shot two bullets into J.L.’s resi-
dence. These facts were sufficient for the jury to find
that the defendant wilfully permitted a child under the
age of sixteen years to be placed in such a situation
that the life or limb of such child was endangered.
Furthermore, even if the state were required to estab-
lish that the defendant knew that A.S. was likely to be
at the house at the time of the shooting, it presented
sufficient evidence to satisfy that burden. J.L. testified
that the defendant had been her ‘‘good friend’’ prior to
the shooting, and that the defendant had visited her
apartment on a daily basis when they lived in the same
apartment complex. J.L. further also testified that, as
a result of their friendship, the defendant would have
known that A.S. resided only with J.L. because she had
sole custody of the child and ‘‘there really wasn’t any
other place he would be.’’ On the basis of this testimony,
the jury reasonably could have inferred that the defen-
dant knew that A.S. was likely to be at J.L.’s residence
at the time of the shooting. See State v. Smalls, 78 Conn.
App. 535, 548, 827 A.2d 784 (‘‘defendant’s conduct took
place in public where children were likely to be pre-
sent’’), cert. denied, 266 Conn. 931, 837 A.2d 806 (2003).
Accordingly, viewing the evidence in the light most
favorable to sustaining the verdict, we conclude that
there was sufficient evidence to convict the defendant
of risk of injury to a child.
II
INSTRUCTIONAL ERROR
The defendant next claims that the ‘‘court’s [jury]
instructions on conspiracy and attempted assault were
misleading.’’ Specifically, the defendant claims that
under ‘‘the unique circumstances of this case, where
the state failed to specify a particular victim in the
information but its theory of the case suggested that
Rodriguez was the intended target, the court was obli-
gated to instruct the jurors that they had to agree that
Rodriguez was the person whom [the] defendant and
her cohorts intended to assault and agreed to assault.’’
Alternatively, the defendant claims that the court’s
instructions allowed the jury to find her guilty without
being unanimous as to the intended victim. We are
not persuaded.
The defendant concedes, in her brief, that she failed
to preserve this claim at trial. Therefore, she now seeks
to prevail under State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1988).11 We review the defendant’s claim
because the record is adequate, and the issue is of
constitutional magnitude. See State v. Belton, 190 Conn.
496, 500–505, 461 A.2d 973 (1983).
The following facts are relevant to this claim. After
the parties had rested, the court instructed the jury on
the elements of conspiracy to commit assault in the
first degree and attempt to commit assault in the first
degree as an accessory. The court in its instructions
did not name the intended victim of the crime. Regard-
ing the jury’s obligation to reach a unanimous verdict,
the court instructed the jurors that it was their ‘‘duty
to consider each charge or count separately and when
you return to the courtroom, you will be asked whether
the accused is guilty or not guilty as charged in each
of the counts. You will render your verdicts accordingly;
your verdicts must be unanimous on each count.’’
(Emphasis added.) Thereafter, the court further
charged the jury that its ‘‘verdicts must be unanimous,
that is, one with which you all agree.’’ (Emphasis
added.) In addition, once the jury had reached its ver-
dict, it was polled by the court to verify the unanimity
of the verdict.
A
The defendant concedes that the court’s instructions
on conspiracy and attempt were ‘‘technically correct
. . . .’’ Nevertheless, she argues that the court’s failure
to instruct the jury that it was limited to determining
whether Rodriguez had been the intended victim of the
conspiracy and the attempted assault allowed the jury
to find her guilty ‘‘of crimes with which she was never
charged—conspiracy to assault [J.L.] and attempt to
assault [J.L.] as an accessory.’’ We disagree.
As we concluded in part I B of this opinion, the state’s
theory of the case was that the defendant had conspired
the court’s instructions were consistent with the
charges and did not ‘‘effectively [enlarge] the informa-
tion . . . .’’ Accordingly, the defendant’s argument
fails.
B
The defendant next argues that the court’s ‘‘instruc-
tions permitted the jury to convict [the] defendant of
conspiracy and attempt without unanimously agreeing
on which person was the intended target.’’ We disagree.
‘‘Regarding a court’s instruction to a jury prior to its
deliberations, we have not required a specific unanimity
charge to be given in every case . . . . In State v. Fam-
iglietti, 219 Conn. 605, 619–20, 595 A.2d 306 (1991), we
set forth a multipartite test to determine whether a
trial court’s omission of a specific unanimity charge
warrants a new trial. We first review the instruction
that was given to determine whether the trial court has
sanctioned a nonunanimous verdict. If such an instruc-
tion has not been given, that ends the matter. Even if
the instructions at trial can be read to have sanctioned
such a nonunanimous verdict, however, we will remand
for a new trial only if (1) there is a conceptual distinction
between the alternative acts with which the defendant
has been charged, and (2) the state has presented evi-
dence to support each alternative act with which the
defendant has been charged.’’12 (Citation omitted; inter-
nal quotation marks omitted.) State v. Jessie L. C., 148
Conn. App. 216, 232, 84 A.3d 936, cert. denied, 311 Conn.
937, 88 A.3d 551 (2014).
‘‘With respect to the first prong of Famiglietti,
namely, whether the trial court’s jury instructions have
sanctioned a nonunanimous verdict, it is well estab-
lished that the absence of language expressly sanc-
tioning a nonunanimous verdict means that the
defendant has not met the first part of the Famiglietti
test. . . . Indeed, if the trial court did not sanction a
nonunanimous verdict we need not address the other
parts of the Famiglietti test.’’ (Emphasis in original;
internal quotation marks omitted.) State v. Brodia, 129
Conn. App. 391, 403, 20 A.3d 726, cert. denied, 302 Conn.
913, 27 A.3d 373 (2011). Our review of the jury charge
does not reveal that the court used any language
expressly sanctioning a nonunanimous verdict. On the
contrary, the trial court clearly instructed the jury on
its duty to reach a unanimous verdict as to each count
and later ensured that it in fact had done so by polling
the jury. Therefore, the defendant’s argument must fail.
As a result, we conclude that neither of the defen-
dant’s claims of instructional error satisfy the third
prong of the Golding test, namely, that an alleged consti-
tutional violation exists. Accordingly, she cannot pre-
vail on these claims.13
III
SECTION 53-202k SENTENCE ENHANCEMENT
The defendant’s final claim is that the court improp-
erly enhanced her sentence on the conviction of con-
spiracy to commit assault in the first degree and risk
of injury to a child pursuant to § 53-202k.14 Specifically,
she claims that the sentence enhancement on her con-
viction of conspiracy to commit assault in the first
degree was improper because in State v. Patterson, 276
Conn. 452, 476–84, 886 A.2d 777 (2005), our Supreme
Court held that § 53-202k does not apply to unarmed
coconspirators. The defendant also claims that the sen-
tence enhancement on her conviction of risk of injury
to a child was improper because she was charged with
this crime only as a principal and the state presented
no evidence that she was armed with a gun. We agree
with the defendant that the court improperly enhanced
the sentences on these two counts. We further note
that the defendant has not challenged on appeal her
sentence enhancement on her conviction of attempt to
commit assault in the first degree.
The following facts are relevant to this claim. On
August 7, 2012, the state, pursuant to § 53-202k, filed a
notice that it would seek an enhanced sentence if the
defendant was convicted of a class A, B or C felony in
which the defendant or a participant used a firearm.
Thereafter, the jury, having found the defendant guilty
of conspiracy to commit assault in the first degree,
attempt to commit assault in the first degree as an
accessory, and risk of injury to a child, considered three
separate interrogatories, which posed the identical
question: ‘‘Has the state proven to all of you unani-
mously beyond a reasonable doubt, that the defendant
or another participant used, or was armed with and
threatened the use of, or displayed a firearm?’’ The jury
answered that the state had done so. The court then
applied a five year enhancement to the sentences on
each of the three charges of which the defendant had
been found guilty.
A
The defendant first claims that the court improperly
enhanced her sentence for her conviction of conspiracy
to commit assault in the first degree because § 53-202k
does not apply to unarmed coconspirators. We agree.
The defendant concedes that her claim was not pre-
served at trial and she now seeks to prevail under Gold-
ing. Once again, we review the defendant’s claim
because the record is adequate, and the issue is of
constitutional magnitude.15
The question of whether § 53-202k applies to
unarmed coconspirators has been previously addressed
by our Supreme Court in State v. Patterson, supra, 276
Conn. 473–84. ‘‘In Patterson, the defendant had claimed
that the trial court improperly concluded that he was
subject to a mandatory five year sentence enhancement
pursuant to General Statutes § 53-202k because the jury
had failed to make the requisite finding under that stat-
ute that he had ‘used’ a firearm during the commission
of the crime of conspiracy to commit murder. . . . The
state had conceded that the jury made no such finding
but had argued that the facts that the jury actually
found, namely, that one of the defendant’s coconspira-
tors had used a firearm during the commission of the
offense, were sufficient to warrant the imposition of a
sentence enhancement under § 53-202k. . . . Because
[the] court previously had determined that an unarmed
accomplice to a class A, B or C felony may be found
to have violated § 53-202k on the basis of his or her
accomplice’s use of a firearm, the state had argued that
this principle should be extended to coconspirators
under the Pinkerton doctrine16 . . . . In rejecting that
argument, [the] court principally relied on the fact that,
at the time § 53-202k was enacted in 1993; see Public
Acts 1993, No. 93-306, § 9; the Pinkerton doctrine of
vicarious liability was not well established in our state
criminal law. Indeed, this court did not expressly adopt
the Pinkerton doctrine for purposes of our state crimi-
nal law until 1993 . . . the very year that § 53-202k was
enacted. Thus, unlike accessorial liability, which, as a
common-law and statutory rule, was firmly rooted in
this state’s criminal jurisprudence prior to the enact-
ment of § 53-202k, Pinkerton liability was not an
acknowledged part of that body of law when § 53-202k
was enacted. Consequently, [the court held that] there
[was] no reason to presume that the legislature contem-
plated that the Pinkerton principle of vicarious liability
would apply to § 53-202k.’’ (Citations omitted; footnote
added; internal quotation marks omitted.) State v. Apo-
daca, 303 Conn. 378, 395–96, 33 A.3d 224 (2012).
Nevertheless, on appeal, the state argues that ‘‘Pat-
terson’s narrow decision does not control the question
presented here.’’ Specifically, the state argues that our
Supreme Court in Patterson, as a matter of statutory
interpretation, rejected only the specific claim made by
the state in that case that a § 53-202k sentence enhance-
ment applies to an unarmed coconspirator if the state
has charged the defendant with conspiracy pursuant to
the Pinkerton doctrine. The state contends, however,
that a § 53-202k sentence enhancement remains avail-
able in circumstances where an unarmed coconspirator
is charged under ‘‘Connecticut’s long-standing com-
mon-law theory of vicarious coconspirator liability,
which existed for decades prior to our court’s adoption
of Pinkerton.’’ We are not persuaded by the state’s
argument for at least two reasons.
First, the Supreme Court’s holding in Patterson that
§ 53-202k does not apply to an unarmed coconspirator
did not rest solely on the ground that Pinkerton vicari-
ous liability had not been judicially recognized in Con-
necticut before the enactment of § 53-202k. In addition
to that ground, the Supreme Court also relied on the
more fundamental difference between accessorial lia-
bility and conspirator liability: ‘‘[A]ccessorial liability
is not a distinct crime, but only an alternative means
by which a substantive crime may be committed . . . .
Consequently, to establish a person’s culpability as an
accessory to a particular offense, the state must prove
that the accessory, like the principal, had committed
each and every element of the offense. . . . By con-
trast, under the Pinkerton doctrine, a conspirator may
be found guilty of a crime that he or she did not commit
if the state can establish that a coconspirator did com-
mit the crime and that the crime was within the scope
of the conspiracy, in furtherance of the conspiracy, and
a reasonably foreseeable consequence of the conspir-
acy. . . . In view of the important difference between
accessory liability and Pinkerton liability, we reject the
state’s contention that we should treat them similarly
for the purpose of determining whether the legislature
intended to incorporate the latter into § 53-202k.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Patterson, supra, 276 Conn. 483. We can divine no
reason why this reasoning should not apply to any form
of vicarious coconspirator liability, even if that form of
conspiracy liability, as the state contends, is somehow
different from Pinkerton liability.
Second, we reject the state’s premise that the Pinker-
ton form of vicarious coconspirator liability recognized
in State v. Walton, 227 Conn. 32, 40–54, 630 A.2d 990
(1993), is somehow different from the common-law
form of vicarious, coconspirator liability the state con-
tends was firmly rooted in Connecticut for generations
before Walton. We base our conclusion on our review
of the pre-Walton case law cited by the state in support
of its argument on appeal. As the state correctly notes
in its brief, the universally accepted rule at that time
was: ‘‘All who join in a common design to commit an
unlawful act, the natural and probable consequence of
the execution of which involves the contingency of
taking human life, are responsible for a homicide com-
mitted by one of them while acting in pursuance of,
or in furtherance of, the common design.’’17 (Internal
quotation marks omitted.) State v. Cots, 126 Conn. 48,
59, 9 A.2d 138 (1939); see also State v. Spalding, 19
Day (Conn.) 233, 237 (1848) (‘‘the law presumes, that
what was known by one, or done by one, in matters
connected with the joint purpose, was known and done
by both’’). As noted previously, the Pinkerton doctrine
stands for the proposition that a conspirator may be
held ‘‘vicariously liable for the criminal offenses com-
mitted by a coconspirator if those offenses are within
the scope of the conspiracy, are in furtherance of it,
and are reasonably foreseeable as a necessary or natural
consequence of the conspiracy.’’ (Internal quotation
marks omitted.) State v. Santiago, 275 Conn. 192, 198,
881 A.2d 222 (2005).
A simple comparison of the principles expressed in
the pre-Walton form of conspiracy to the Pinkerton
doctrine makes it abundantly clear, however, that the
common-law theory of vicarious coconspirator liability
identified by the state is nothing more than an early
species of Pinkerton without that label. Thus, if we
were to accept the state’s argument, the state would
be able to avoid Patterson’s holding by claiming that
it was not seeking to hold a defendant liable under the
Pinkerton doctrine, but rather, under the common-law
theory of vicarious coconspirator liability that is essen-
tially coterminous with Pinkerton. Such an outcome
would effectively render our Supreme Court’s decision
in Patterson a virtual nullity—something this court
should obviously strive to avoid. Therefore, we reject
the state’s argument that Patterson does not apply to
this case.
Because we conclude that a § 53-202k enhancement
does not apply to an unarmed coconspirator, and there
was no evidence that the defendant was armed at the
time of the shooting, the defendant has demonstrated
that a constitutional violation exists and that this viola-
tion deprived her of a fair trial. Accordingly, the defen-
dant is entitled to have the sentence enhancement under
§ 53-202k on count one vacated.
B
The defendant next claims that the court improperly
enhanced her sentence on the conviction of risk of
injury to a child.18 Specifically, she claims that a § 53-
202k sentence enhancement could not lawfully be
applied to her conviction of the crime of risk of injury
to a child because she was convicted, not as an acces-
sory, but as a principal, and there was no evidence that
she personally had used a firearm in the commission
of the offense. We agree with the defendant.
As noted previously, the defendant was charged
under the ‘‘situation’’ prong of § 53-21 (1), which
requires the state to prove that the defendant wilfully
created a situation that posed a risk to the child’s health
or morals.19 In its brief on appeal, the state essentially
concedes that the defendant’s conviction on this count
was only as a principal: ‘‘[I]n the creation of the situa-
tion, the defendant was a principal, insofar as she led
her cohorts in the drive-by shooting to J.L.’s address
and then attempted to lure J.L. and Rodriguez outside
so that Knowles could fire on them.’’ Moreover, the
court did not instruct the jury that the defendant could
be found guilty on the risk of injury charge on the basis
of accessorial liability, nor did the state request such
an instruction.20 Finally, the state instead argued to the
jury that the defendant, by her own actions, had created
a situation ‘‘in which harm was likely to befall the life
or limb of the child.’’ The state did not argue to the
jury that she could be found guilty of risk of injury to
a child as an accessory.
In its brief, however, the state argues that it is irrele-
vant that it did not charge the defendant with risk of
injury to a child as an accessory because ‘‘[i]t is well
established in this state that there is no such crime as
being an accessory. . . . Rather, the accessory statute,
General Statutes § 53a-8, merely provides an alternative
theory under which liability for the underlying substan-
tive crime may be proved. . . . [A] defendant may be
convicted as an accessory even though he was charged
only as a principal as long as the evidence presented
at trial is sufficient to establish accessorial conduct.
. . . Therefore, the fact that the defendant was not
formally charged as an accessory does not preclude his
being convicted as such . . . and a defendant who is
charged with an offense should be on notice that he
may be convicted as an accessory.’’ (Citations omitted;
internal quotation marks omitted.) State v. Hopkins, 25
Conn. App. 565, 568–69, 595 A.2d 911, cert. denied, 220
Conn. 921, 597 A.2d 342 (1991).
Although we agree with the state’s recitation of these
principles, in order to be convicted as an accessory it
is at least necessary for the court to have instructed
the jury on principles of accessorial liability. See State
v. Channer, 28 Conn. App. 161, 166, 612 A.2d 95 (noting
in review of sufficiency of evidence that reviewing court
is limited to considering whether evidence supported
finding that defendant acted as principal because trial
court did not instruct jury as to accessorial liability),
cert. denied, 223 Conn. 921, 614 A.2d 826 (1992). Accord-
ingly, we reject the state’s claim that the defendant was
convicted as an accessory in this case.
The state also argues that, even if the defendant was
convicted of risk of injury to a child only as a principal
and that there was no evidence that she personally used
a firearm, the enhancement was still proper because
the state ‘‘charged the enhancement under a theory of
accessorial liability’’ in its notice of its intent to pursue
§ 53-202k enhancement when it ‘‘alleged that the defen-
dant or a participant’’ used a firearm during the com-
mission of the offense. (Emphasis added.)
We conclude for the following reasons that, under
the unusual circumstances of this case, where it is clear
that the defendant was convicted of risk of injury to
a child only as a principal, a sentence enhancement
pursuant to § 53-202k is not appropriate without suffi-
cient evidence that the defendant herself had used a
firearm during the commission of the underlying
offense.
It is beyond dispute that § 53-202k is not a substantive
offense but rather a sentence enhancement provision.
State v. Dash, 242 Conn. 143, 148, 698 A.2d 297 (1997).
Section 53a-8, which imposes accessorial liability for
the acts of another, applies by its terms only to ‘‘conduct
which constitutes an offense . . . .’’21 There is no lan-
guage in § 53a-8 from which we could conclude that
the legislature intended that the provision apply to a
sentence enhancement statute. Finally, the state cites
to no authority in which a court has relied upon accesso-
rial liability to enhance the sentence of an unarmed
defendant who was convicted only as a principal. For
these reasons, the defendant could not have her sen-
tence enhanced pursuant to § 53-202k as an accessory
because § 53-202k is not an offense.
Accordingly, we conclude that, under the circum-
stances of this case, the sentence enhancement provi-
sion did not apply to the defendant’s conviction under
count three, risk of injury to a child. Additionally, the
evidence at trial was not sufficient to establish beyond a
reasonable doubt that the defendant had used a firearm
during the commission of a class A, B or C felony as
required by § 53-202k. As a result, the defendant is enti-
tled to have her sentence enhancement under § 53-
202k vacated.
The judgment is reversed only as to the sentence
enhancement under § 53-202k of the sentences on the
conviction of conspiracy to commit assault in the first
degree and risk of injury to a child, and the case is
remanded with direction to vacate those enhance-
ments.22 The judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of the crime of risk of injury to a child, we decline to identify the
victim or others through whom the victim’s identity may be ascertained.
See General Statutes § 54-86e.
2
Ayala was unable to fight because, at that time, she was pregnant with
Knowles’ child.
3
J.L.’s friend, Casey Delmonte was also present.
4
At trial, J.L. testified that, shortly before the shooting, she had moved
to a new residence, and that the only person to whom she had disclosed
her new address was the defendant.
5
We note that at that time, Knowles had an outstanding warrant for his
arrest in New York.
6
The defendant does not challenge on appeal the manner in which the
court calculated or structured her sentence.
7
We note that although the state amended the long form information
during trial, the factual allegations in counts one and two remained
unchanged.
8
Although the defendant concedes that there was evidence before the
jury that she intended to assault J.L., she does not concede that the evidence
was sufficient to prove beyond a reasonable doubt that she intended to
cause serious physical injury to J.L. See part I A of this opinion.
9
In her brief, the defendant appears to argue that, without a shared intent
that J.L. be assaulted, the defendant could not have conspired with Knowles
and Casiano, a necessary predicate for a conviction on count one, and could
not have importuned or intentionally aided Knowles or Casiano to assault
J.L., a necessary predicate for a conviction on count two.
10
The ‘‘act’’ prong requires proof that the defendant directly perpetrated
an act injurious to the child’s moral or physical well-being on the actual
person of the child. See, e.g., State v. Padua, 273 Conn. 138, 148, 869 A.2d
192 (2005).
11
In State v. Golding, supra, 213 Conn. 239–40, our Supreme Court held
that ‘‘a defendant can prevail on a claim of constitutional error not preserved
at trial only if all of the following conditions are met: (1) the record is
adequate to review the alleged claim of error; (2) the claim is of constitutional
magnitude alleging the violation of a fundamental right; (3) the alleged
constitutional violation . . . exists and . . . deprived the defendant of a
fair trial; and (4) if subject to harmless error analysis, the state has failed
to demonstrate harmlessness of the alleged constitutional violation beyond
a reasonable doubt.’’ (Emphasis in original; footnote omitted.); see In re
Yasiel R., 317 Conn. 773, 781, A.3d (2015) (modifying Golding’s
third prong).
12
In her brief, the defendant argues that the Famiglietti test is not applica-
ble in this case because it ‘‘only applies when a defendant is charged with
committing a crime by violating several alternative subsections of a statute,
or in other words, by committing a crime in several different ways.’’ In
response, the state argues that the Famiglietti test has been used by both
this court and our Supreme Court in cases claiming that ‘‘a trial court’s
instructions permitted a jury to reach a nonunanimous verdict as to the
facts supporting a charge.’’
We agree with the state’s argument and conclude that, although the appli-
cation of the Famiglietti test generally arises in cases involving a claim
that criminal liability has been premised on the violation of one of several
alternative subsections of a statute, it is not the exclusive circumstance
under which the test has been utilized by our appellate courts. See State v.
Sorabella, 277 Conn. 155, 206–208, 891 A.2d 897 (applying Famiglietti test
where trial court’s instructions did not expressly require jury to unanimously
find that particular image or group of images was obscene), cert. denied,
549 U.S. 821, 127 S. Ct. 131, 166 L. Ed. 2d 36 (2006); State v. Graham S.,
149 Conn. App. 334, 348–50, 87 A.3d 1182 (applying Famiglietti test where
trial court’s instructions did not expressly require unanimity as to factual
basis that constituted first degree burglary, second degree strangulation,
and risk of injury to child), cert. denied, 312 Conn. 912, 93 A.3d 595 (2014);
State v. Jessie L. C., 148 Conn. App. 216, 232–33, 84 A.3d 936 (applying
Famiglietti test where trial court did not instruct jury that verdict must be
unanimous as to facts underlying each count), cert. denied, 311 Conn. 937,
88 A.3d 551 (2014); State v. Brodia, 129 Conn. App. 391, 401–404, 20 A.3d 726
(applying Famiglietti test where trial court’s instructions did not expressly
require unanimity as to whether defendant had actual or constructive posses-
sion of drugs), cert. denied, 302 Conn. 913, 27 A.3d 373 (2011); State v.
Senquiz, 68 Conn. App. 571, 587–90, 793 A.2d 1095 (applying Famiglietti
test where trial court’s instructions did not expressly require unanimity as
to which specific acts, out of several, established defendant’s guilt), cert.
denied, 260 Conn. 923, 797 A.2d 519 (2002).
13
The defendant also seeks reversal of her conviction pursuant to the
plain error doctrine. See Practice Book § 60-5. Because we conclude, how-
ever, that there was no instructional error, this case does not present ‘‘one
of the truly extraordinary situations [in which] the existence of the error
is so obvious that it affects the fairness and integrity of and public confidence
in the judicial proceedings’’ to warrant a reversal pursuant to the plain error
doctrine. (Internal quotation marks omitted.) State v. Fagan, 280 Conn. 69,
87, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167
L. Ed. 2d 236 (2007).
14
General Statutes § 53-202k provides in relevant part: ‘‘Any person who
commits any class A, B or C felony and in the commission of such felony
uses, or is armed with and threatens the use of, or displays, or represents
by his words or conduct that he possesses any firearm . . . shall be impris-
oned for a term of five years . . . in addition and consecutive to any term
of imprisonment imposed for conviction of such felony.’’
15
We conclude that this claim is of constitutional magnitude because
if the defendant is correct that § 53-202k does not apply to an unarmed
coconspirator, then the jury would have been obligated to find that the
defendant possessed a firearm in the commission of a class A, B or C
felony—a finding it could not make on this record. See State v. Patterson,
supra, 276 Conn. 484; see also State v. Hill, 201 Conn. 505, 512, 523 A.2d
1252 (1986) (‘‘[a]n accused has a fundamental right, protected by the due
process clauses of the federal and Connecticut constitutions, to be acquitted
unless proven guilty of each element of the charged offense beyond a reason-
able doubt’’).
16
‘‘In Pinkerton v. United States, [328 U.S. 640, 647–48, 66 S. Ct. 1180, 90
L. Ed. 1489 (1946)], the United States Supreme Court concluded that under
the federal common law, a conspirator may be held liable for criminal
offenses committed by a coconspirator if those offenses are within the scope
of the conspiracy, are in furtherance of it, and are reasonably foreseeable
as a necessary or natural consequence of the conspiracy.’’ State v. Diaz,
237 Conn. 518, 526, 679 A.2d 902 (1996).
We note that our Supreme Court first recognized the Pinkerton theory
of liability as a matter of state law in State v. Walton, 227 Conn. 32, 40–54,
630 A.2d 990 (1993).
17
The state also correctly points out that ‘‘[a]lthough courts most fre-
quently applied this principle of vicarious coconspirator liability to murders
committed in furtherance of conspiracies to commit other crimes, its use
was not [explicitly] limited to murder prosecutions.’’ See also State v. Walton,
supra, 227 Conn. 50–51.
18
We note that the defendant at trial preserved this issue for appellate
review.
19
Count three of the amended long form information alleged ‘‘that the
said [defendant] did unlawfully cause a child under the age of sixteen years;
to wit: to be placed in such situation that the life or limb of such child was
endangered, in the town or city of Torrington, on or about January 10, 2009,
in violation of Connecticut General Statutes § 53-21 (a) (1).’’
20
The court instructed the jury on accessorial liability only with respect
to the charge of attempt to commit assault in the first degree. Moreover,
the court, before instructing the jury on the specific charges in the informa-
tion, did not give a general instruction on accessorial liability that arguably
could apply to all of the counts. Thus, this case is unlike State v. Holley,
160 Conn. App. 578, A.3d (2015). Additionally, the risk of injury
statute, unlike, for example, robbery in the first degree, General Statutes
§ 53a-134, does not include explicit language imposing accessorial liability.
See State v. Davis, 255 Conn. 782, 791 n.8, 772 A.2d 559 (2001).
21
General Statutes § 53a-8 (a) provides: ‘‘A person, acting with the mental
state required for commission of an offense, who solicits, requests, com-
mands, importunes or intentionally aids another person to engage in conduct
which constitutes an offense shall be criminally liable for such conduct and
may be prosecuted and punished as if he were the principal offender.’’
22
During oral argument, we raised the issue of resentencing with the
parties. The state argued that, if any of the defendant’s sentence enhance-
ments are vacated, the case should be remanded to the trial court for
resentencing pursuant to the aggregate package theory articulated by this
court in State v. Raucci, 21 Conn. App. 557, 563–64, 575 A.2d 234, cert.
denied, 215 Conn, 817, 576 A.2d 546 (1990). The defendant opposed the
state’s position, arguing that, if any of the enhancements are vacated, the
enhancement on that count should simply be vacated.
As our Supreme Court stated recently, ‘‘[the] principles of judicial econ-
omy dictate that, in a case in which the judgment of the reviewing court
does not change the total effective sentence, the reviewing court should not
order the trial court to resentence a defendant on the remaining convictions
unless there is some evidence or some other basis in the record supporting
the conclusion that the judgment of the reviewing court altered the original
sentencing intent.’’ State v. Johnson, 316 Conn. 34, 42–43, 111 A.3d 447 (2015).
Because our decision does not alter the total effective sentence, and
because there is no evidence that our decision would alter the trial court’s
original intent at sentencing, we disagree with the state’s argument and
conclude that the defendant need not be resentenced. See State v. Patterson,
supra, 276 Conn. 491.