State v. Ervin B. ( 2020 )

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STATE OF CONNECTICUT v. ERVIN B.*
(AC 41482)
Alvord, Prescott and DiPentima, Js.
Syllabus
Convicted of the crime of threatening in the second degree, the defendant
appealed to this court. The defendant allegedly was involved in a domes-
tic disturbance during which he stabbed his wife in the leg. Over the
defendant’s objection, the trial court admitted portions of his wife’s
hearsay statement to a police officer that the defendant ‘‘was gonna
continue to hurt her more.’’ Neither the defendant nor his wife testified
at trial. The defendant claimed that the evidence was insufficient to
support a finding that he made a physical threat to his wife, a necessary
element of threatening in the second degree in violation of statute (§ 53a-
62 (a) (1)). Held that the evidence was not sufficient to support the
defendant’s conviction of threatening in the second degree in violation
of § 53a-62 (a) (1), there having been insufficient evidence to support
the conclusion beyond a reasonable doubt that the defendant made a
physical threat to his wife: the state presented no direct evidence to
the jury that the defendant had threatened his wife, either through words
or some nonverbal expression, with imminent future harm; moreover,
the state’s argument that the jury reasonably could have inferred a threat
from other evidence was unavailing, as the fact that evidence existed
from which the jury could have concluded that the defendant had
recently assaulted his wife, without more, was insufficient to support
an inference that he necessarily made a threat of future violence, his
wife’s statement that he ‘‘was gonna continue to hurt her more’’ did
not connect her subjective fear of future harm to any particular act,
expression or communication by the defendant, nor was there evidence
that she complained of a threat, that other people heard threatening
words or observed threatening behavior, or that the police inquired
about a potential threat; furthermore, the jury was not permitted to
speculate that a threat had been made solely on the basis of her assertion
of fear, and, assuming the jury was permitted to consider the defendant’s
silence during his wife’s statement as an evidentiary admission that he
had stabbed her, this could not be viewed as an admission of a threat
or have more effect than acknowledging her subjective fear.
Argued September 16—officially released December 22, 2020
Procedural History
Information charging the defendant with the crimes
of assault in the first degree and threatening in the
second degree, brought to the Superior Court in the
judicial district of Fairfield, geographical area number
two, and tried to the jury before Kavanewsky, J.; there-
after, the court denied the defendant’s motion for a
judgment of acquittal; verdict and judgment of guilty
of threatening in the second degree, from which the
defendant appealed to this court. Reversed; judgment
directed.
Emily H. Wagner, assistant public defender, for the
appellant (defendant).
Brett R. Aiello, deputy assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, and Joseph J. Harry, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Ervin B., appeals from
the judgment of conviction, rendered following a jury
trial, of threatening in the second degree in violation
of General Statutes § 53a-62 (a) (1). The defendant
claims on appeal that the evidence was insufficient to
prove beyond a reasonable doubt that he was guilty of
threatening in the second degree. We agree with the
defendant’s insufficiency of the evidence claim and
therefore remand the case to the trial court with direc-
tion to render a judgment of acquittal.1
The following procedural history and evidence pre-
sented at trial is relevant to the defendant’s insuffi-
ciency claim. The defendant is married to the complain-
ing witness, Wanda. On February 13, 2016, at
approximately 3:40 a.m., Officer Christopher Smith was
dispatched to the defendant’s and Wanda’s apartment
building in Bridgeport to respond to a report of a domes-
tic disturbance. Smith met the defendant at the front
door of the building, and he then accompanied Smith
to apartment number eight. Smith found Wanda stand-
ing on the second floor landing outside of the apartment
and bleeding from a stab wound to her right thigh.
Wanda was upset and crying, and she appeared to be
in pain. Smith quickly called for medical assistance and
for the assistance of a Spanish speaking officer because
Wanda speaks only Spanish.
Officer Ariel Martinez arrived at the apartment
shortly thereafter and began to speak to Wanda in Span-
ish. Martinez asked Wanda what had happened. Wanda
stated that she had come home from a night out and
the defendant stabbed her.2 She also stated that the
defendant ‘‘was gonna continue to hurt her more.’’ The
defendant, who was standing nearby, did not respond
to Wanda’s accusation that he had stabbed her. At the
end of this conversation, the defendant was arrested
and transported to the Bridgeport police station. He
subsequently was charged with assault in the first
degree in violation of General Statutes § 53a-59 (a) (1)
and threatening in the second degree in violation of
§ 53a-62 (a) (1).
Wanda was transported to a hospital for medical care.
She received treatment for a serious laceration to her
leg from a sharp object, and six staples were required
to close the wound.3
Wanda did not testify at trial, and a portion of her
hearsay statement to Martinez was admitted over the
defendant’s objection as an excited utterance. Follow-
ing the conclusion of the state’s case, the defendant
made a motion for a judgment of acquittal on the ground
that the evidence presented by the state was insufficient
to prove beyond a reasonable doubt that the defendant
had committed assault in the first degree or threatening
in the second degree. The court denied the motion in
its entirety.4
The jury subsequently found the defendant not guilty
of assault in the first degree and guilty of threatening
in the second degree. The court sentenced the defen-
dant on the conviction of threatening in the second
degree to one year of incarceration, suspended after
four months, and two years of probation. This appeal
followed.
The defendant claims on appeal that his conviction
of threatening in the second degree must be reversed
because the state failed to present sufficient evidence
to prove beyond a reasonable doubt each element of
the crime. Specifically, the defendant argues that the
hearsay statement of Wanda relied on by the state to
establish the existence of a threat only conveyed Wan-
da’s subjective belief that the defendant would harm
her in the future, and not that any actual threat of harm
was made by the defendant or that he intended to place
Wanda in fear of imminent physical injury.5 The state
argues that the jury reasonably could have inferred
that a threat was made, and advances three evidentiary
bases in the record supporting such an inference: (1)
the defendant stabbed Wanda; (2) Wanda stated that
the defendant was going to ‘‘continue to hurt her more’’;
and (3) the defendant, who was present when Wanda
made that statement and identified him as her assailant,
offered no denial or explanation. We agree with the
defendant that there was insufficient evidence of a
threat.
‘‘The standard of review we apply to a claim of insuffi-
cient evidence is well established. In reviewing the suffi-
ciency of the evidence to support a criminal conviction
we apply a [two part] test. First, we construe the evi-
dence in the light most favorable to sustaining the ver-
dict. Second, we determine whether upon the facts so
construed and the inferences reasonably drawn there-
from the [finder of fact] reasonably could have con-
cluded that the cumulative force of the evidence estab-
lished guilt beyond a reasonable doubt. . . .
‘‘We note that the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, [but] each of the
basic and inferred facts underlying those conclusions
need not be proved beyond a reasonable doubt. . . .
If it is reasonable and logical for the jury to conclude
that a basic fact or an inferred fact is true, the jury is
permitted to consider the fact proven and may consider
it in combination with other proven facts in determining
whether the cumulative effect of all the evidence proves
the defendant guilty of all the elements of the crime
charged beyond a reasonable doubt. . . .
‘‘Because [t]he only kind of an inference recognized
by the law is a reasonable one [however] . . . any such
inference cannot be based on possibilities, surmise or
conjecture. . . . It is axiomatic, therefore, that [a]ny
[inference] drawn must be rational and founded upon
the evidence. . . . [T]he line between permissible
inference and impermissible speculation is not always
easy to discern. When we infer, we derive a conclusion
from proven facts because such considerations as expe-
rience, or history, or science have demonstrated that
there is a likely correlation between those facts and the
conclusion. If that correlation is sufficiently compelling,
the inference is reasonable. But if the correlation
between the facts and the conclusion is slight, or if a
different conclusion is more closely correlated with the
facts than the chosen conclusion, the inference is less
reasonable. At some point, the link between the facts
and the conclusion becomes so tenuous that we call it
speculation. When that point is reached is, frankly, a
matter of judgment. . . .
‘‘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 multi-
tude of facts which establishes guilt in a case involving
substantial circumstantial evidence. . . . In evaluating
evidence, the [finder] of fact is not required to accept
as dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [finder of fact]
may draw whatever inferences from the evidence or
facts established by the evidence it deems to be reason-
able and logical. . . .
‘‘[A]s we have often noted, proof beyond a reasonable
doubt does not mean proof beyond all possible doubt
. . . nor does proof beyond a reasonable doubt require
acceptance of every hypothesis of innocence posed by
the defendant that, had it been found credible by the
[finder of fact], would have resulted in an acquittal.
. . . On appeal, we do not ask whether there is a reason-
able view of the evidence that would support a reason-
able hypothesis of innocence. We ask, instead, whether
there is a reasonable view of the evidence that supports
the [finder of fact’s] verdict of guilty. . . .
‘‘Finally, [w]e . . . emphasize the weighty burden
imposed on the state by the standard of proof beyond
a reasonable doubt. Under bedrock principles of our
criminal justice system, it is obviously not sufficient
for the state to prove simply that it is more likely than
not that the defendant [committed the offense], or even
that the evidence is clear and convincing that he [com-
mitted the offense]. . . . Our Supreme Court has
described the beyond a reasonable doubt standard as
a subjective state of near certitude . . . .’’ (Citations
omitted; internal quotation marks omitted.) State v.
Gray-Brown, 188 Conn. App. 446, 464–66, 204 A.3d
1161, cert. denied, 331 Conn. 922, 205 A.3d 568 (2019).
Section 53a-62 provides in relevant part: ‘‘(a) A person
is guilty of threatening in the second degree when: (1)
By physical threat, such person intentionally places or
attempts to place another person in fear of imminent
serious physical injury . . . .’’ The state in its amended
information dated October 11, 2017, charged the defen-
dant with threatening in the second degree in violation
of § 53a-62 (a) (1) in that, ‘‘by physical threat, [he] inten-
tionally placed or attempted to place one [Wanda] in
fear of imminent physical injury . . . .’’ Thus, the state
was obligated to prove beyond a reasonable doubt the
following elements of this offense: (1) the defendant
made a physical threat to Wanda, and (2) he specifically
intended by his conduct to put Wanda in fear of immi-
nent serious physical injury. See State v. Ramirez, 107
Conn. App. 51, 65, 943 A.2d 1138 (2008), aff’d, 292 Conn.
586, 973 A.2d 1251 (2009); see also State v. Kantorowski,
144 Conn. App. 477, 488, 72 A.3d 1228, cert. denied, 310
Conn. 924, 77 A.3d 141 (2013) (threatening in second
degree is specific intent crime). The defendant chal-
lenges, inter alia, the sufficiency of the evidence as it
relates to the first element, that is, whether the defen-
dant through his conduct or words made a physical
threat to Wanda.
Our Supreme Court has stated that ‘‘a threat, by defi-
nition, is an expression of an intent to cause some
future harm.’’ (Emphasis added.) State v. Cook, 287
Conn. 237, 257, 947 A.2d 307, cert. denied, 555 U.S. 970,
129 S. Ct. 464, 172 L. Ed. 2d 328 (2008). This is consistent
with the dictionary definition of a threat as ‘‘[a] commu-
nicated intent to inflict harm or loss on another . . . .’’
(Emphasis added.) Black’s Law Dictionary (11th Ed.
2019) p. 1783; see also Merriam-Webster’s Collegiate
Dictionary (11th Ed. 2003) p. 1302 (defining threat as
‘‘expression of intention to inflict evil, injury, or dam-
age’’ (emphasis added)). In naming the offense at issue
‘‘threatening,’’ the legislature used an active verb that
describes the actions of the perpetrator. It follows,
therefore, that a conviction for threatening requires
proof of some action by the defendant, whether by word
or gesture, that expresses or implies the future infliction
of harm.
Our review of the record shows that the state pre-
sented no direct evidence to the jury that the defendant
had threatened Wanda, either through words or some
nonverbal expression, with imminent future harm.
Wanda was not called to testify at trial, and, thus, the
jury never heard from her directly whether the defen-
dant had conveyed an overt or implied threat to her.
No other witness testified that they heard or observed
the defendant, through word or deed, express an intent
to hurt Wanda in the future. The state directs us to
no such evidence in the record. Instead, as previously
indicated, the state argues that the jury reasonably
could have inferred from other evidence presented that
the defendant made a threat, and it identifies three
potential evidentiary sources as supporting such an
inference.
First, the state argues that evidence was presented
that the defendant had stabbed Wanda. The mere fact
that evidence existed from which the jury could have
concluded that the defendant recently had assaulted
Wanda, however, is not probative of any intent to cause
future harm and cannot, without more, be held suffi-
cient to support an inference that he necessarily made
a threat of additional violence in the future. If we were
to agree with such a position, any assault or domestic
altercation in which a victim later expressed to the
police some fear of future harm by the perpetrator
would, in the state’s view, support not only a charge
of threatening but ultimately a conviction, regardless
of whether there was any independent evidence of a
threat actually having been made. Such an obviously
unjustifiable outcome demonstrates why drawing the
inference that the state advances would depart from
the realm of reasonable inferences that a jury permissi-
bly may draw into pure speculation that cannot be a
permissible basis for a criminal conviction.
Second, the state argues that the jury could have
made a reasonable inference that the defendant had
made a threat to Wanda on the basis of Martinez’ trial
testimony, in which he described what Wanda had told
him during the investigation of the stabbing incident.6
Specifically, the state directs us to the following collo-
quy between the prosecutor and Martinez:
‘‘Q. [D]id you ask [Wanda], at the request of Officer
Smith, what happened?
‘‘A: Yes.
‘‘Q. And what did—did she respond?
‘‘A. Yes.
‘‘Q. What did she say?
‘‘A. She said, she came home from a night out into
the apartment and she was stabbed.
‘‘Q. Okay. And when she came home, she was
stabbed. Did she say anything more?
‘‘A: Yes. She said that he was gonna continue to hurt
her more.’’ (Emphasis added.)
According to the state, the jury reasonably could have
inferred on the basis of Wanda’s statement to Martinez
that the defendant ‘‘was gonna continue to hurt her
more,’’ that the defendant had in fact threatened her
with imminent physical injury.
In our view, Wanda’s statement to Martinez could
constitute evidence from which the jury reasonably
could have inferred that the defendant previously had
hurt her7 and that she believed that he likely would hurt
her again in the future. Nothing in her statement to
Martinez, however, connected Wanda’s subjective fear
that the defendant would harm her again to any particu-
lar act, expression, or communication by the defendant
from which the jury could have inferred the factual
predicate for that fear. Nothing in the officers’ testi-
mony suggested that Wanda had complained that the
defendant had made a threat to her, that the officers
or responding medical personnel had heard threatening
words or observed threatening behavior, or even that
the police had inquired about a potential threat. We do
not find any such evidence from our review of the
evidentiary record before us. Rather than resulting from
any specific threat, Wanda’s statement that the defen-
dant ‘‘was gonna continue to hurt her more’’ reflected
at most her fear that, because he previously had hurt
her, he likely would do so again.
As demonstrated by our Supreme Court’s recent deci-
sion in State v. Rhodes, 335 Conn. 226, A.3d
(2020), the ‘‘line between permissible inference and
impermissible speculation is not always easy to dis-
cern.’’ (Internal quotation marks omitted.) Id., 238.
‘‘When we infer, we derive a conclusion from proven
facts because such considerations as experience, or
history, or science have demonstrated that there is a
likely correlation between those facts and the conclu-
sion. . . . [I]f the correlation between the facts and
the conclusion is slight, or if a different conclusion is
more closely correlated with the facts than the chosen
conclusion, the inference is less reasonable. At some
point, the link between the facts and the conclusion
becomes so tenuous that we call it speculation.’’
(Emphasis added; internal quotation marks omitted.)
Id.
In the present case, there were no facts of any kind
from which the jury could have inferred threatening
words or conduct toward Wanda independent of the
alleged assault. In other words, there were no facts from
which the jury could have inferred that the defendant
actively had engaged in threatening. No factual basis
was offered to explain Wanda’s general statement of
fear that the defendant would hurt her again. In deciding
whether the state had met its burden of proving beyond
a reasonable doubt that a threat was made by the defen-
dant, the jury was not permitted to guess at possibilities
or speculate that a threat was made solely on the basis
of Wanda’s assertion of her fear of the defendant.
Finally, the state claims that the jury reasonably could
have drawn an inference of a threat from the fact that,
when Wanda gave her statement to Martinez, the defen-
dant was standing close enough to have overheard her
statement, but he chose to remain silent, neither disput-
ing Wanda’s statement nor offering any explanation.
The state cites to State v. Leecan, 198 Conn. 517, 504
A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922,
91 L. Ed. 2d 550 (1986), for the proposition that ‘‘[w]hen
a statement, accusatory in nature, made in the presence
and hearing of an accused, is not denied or explained
by him, it may be received into evidence as an admission
on his part.’’ (Internal quotation marks omitted.) Id.,
522. The decision in Leecan, however, additionally
states: ‘‘The circumstances, of course, must be such
that a reply would naturally be called for even in the
prearrest setting. . . . Although evidence of silence in
the face of an accusation may be admissible under the
ancient maxim that silence gives consent the inference
of assent may be made only when no other explanation
is consistent with silence.’’ (Citation omitted; internal
quotation marks omitted.) Id., 522–23.
In the present case, Martinez testified that the defen-
dant was present and close enough to have overheard
Wanda’s statements to him. According to Martinez, the
defendant made no denials regarding her statements,
which included both Wanda’s identification of the
defendant as her attacker and her statement that the
defendant ‘‘was gonna continue to hurt her more.’’8
Even assuming the jury was permitted to consider the
defendant’s silence as an evidentiary admission that he
was the person who stabbed Wanda, for the reasons
previously discussed, it would have been unreasonable
for the jury to infer solely from the fact that an assault
had occurred that the defendant also made a physical
threat of future harm to Wanda. Furthermore, Wanda’s
statement that the defendant would hurt her more con-
tained no accusation that the defendant, either implic-
itly or expressly, had conveyed a threat of future harm.
Accordingly, even assuming the defendant’s silence was
an admission, it only could have had the effect of
acknowledging Wanda’s subjective fear. It cannot be
viewed as an admission of a threat. As we already have
discussed, it would be nothing more than impermissible
speculation to infer that Wanda’s fear was the result of
any specific threat by the defendant rather than simply
the circumstances of the parties’ relationship.
We conclude that there was insufficient evidence for
the jury to have concluded beyond a reasonable doubt
that the defendant made a physical threat to Wanda.
Accordingly, his conviction of threatening in the second
degree in violation of § 53a-62 (a) (1) cannot stand.
The judgment is reversed and the case is remanded
with direction to render judgment of acquittal.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interest of the
victims of domestic violence, we decline to identify the defendant, the victim,
or others through whom the victim’s identity may be ascertained. See General
Statutes § 54-86e.
1
The defendant also claims on appeal that the trial court (1) abused its
discretion by admitting, pursuant to the excited utterance exception to
the hearsay rule, a statement by the complaining witness, (2) violated his
constitutional right to confrontation by admitting that statement, (3) improp-
erly excluded a prior inconsistent statement of the complaining witness,
and (4) violated his sixth amendment right to counsel by prohibiting defense
counsel during closing argument from commenting on the fact that the
state’s complaining witness did not testify at trial. Because we agree with
the defendant’s insufficiency of the evidence claim and order a judgment
of acquittal, it is unnecessary to reach the defendant’s other claims on appeal.
2
Although neither Smith nor Martinez testified directly regarding the man-
ner in which Wanda identified the defendant as her assailant, they nonethe-
less testified that she had provided them with that information at the time
they responded to the incident. Moreover, the jury heard Wanda’s hearsay
statement to Martinez that the defendant was ‘‘gonna continue to hurt her
more.’’ From that statement and the fact that the defendant was taken into
custody following her identification, the jury could have inferred that Wanda
accused the defendant by name.
3
At trial, the court excluded statements attributed to Wanda in her medical
records that identified the defendant as the person who stabbed her.
4
The defendant did not testify at trial and presented no evidence during
his case-in-chief.
5
The defendant’s brief is not a model of clarity in identifying which
of the elements of threatening in the second degree he challenges in his
insufficiency claim. Read as a whole, however, there is no doubt that the
defendant’s analysis argues that the state offered insufficient evidence of
an actual threat, and the state responded to that argument in its brief and
at oral argument before this court.
6
As indicated in footnote 1 of this opinion, the defendant challenges the
propriety of the court’s admission of the Wanda’s statement under the
excited utterance exception to the hearsay rule. In assessing the sufficiency
of the evidence, however, we consider all evidence admitted at trial. See State
v. Chemlen, 165 Conn. App. 791, 818, 140 A.3d 347 (‘‘[c]laims of evidentiary
insufficiency in criminal cases are always addressed independently of claims
of evidentiary error’’ (internal quotation marks omitted)), cert. denied, 322
Conn. 908, 140 A.3d 977 (2016).
7
Logically, the statement that Wanda believed he would ‘‘continue to hurt
her more,’’ if credited, reasonably implies that he had hurt her in the past.
8
Although for purposes of this analysis we must assume the jury accepted
the state’s offer of the defendant’s silence as an admission, it may have
been reasonable for the defendant to have stayed silent in this situation
because he was not being addressed by the police, he was not part of the
conversation, and, had he interrupted to defend his innocence, it might have
been perceived as aggressive or escalating an already de-escalated situation.