State v. Dunstan, 145 Conn. App. 384

Background

Defendant was convicted after a jury trial of two counts of assaulting a public safety officer, two counts of interfering with an officer, and one count of breach of the peace 2nd degree; the trial court merged count 4 (interfering) into count 2 (assault) for sentencing.
Police officer Ware directed traffic; defendant, a passenger in the car behind, repeatedly horned and insulted him, resisted arrest, and assaulted Ware when Ware attempted to arrest her.
During the arrest, Ware sprayed pepper spray; defendant swung, punched, and kicked Ware; Ware and another officer later used force to subdue her.
Sergeant Yergeau responded, struck the defendant with his baton, and later helped subdue her with kicks and restraints; a third officer, Bishop, arrived to assist.
The jury found the defendant guilty on all counts; on sentencing the court merged count 4 into count 2 and imposed a five-year sentence with execution suspended after one year and four years of probation.
The defendant challenged (1) jury instructions on self-defense, (2) failure to give a lesser included offense instruction for interfering, (3) alleged improper enlargement of the offense via causation instructions, (4) improper merger of convictions under Polanco, and (5) denial of accelerated rehabilitation.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Self-defense instruction sufficiency	State argues proper instructions framed the issue of duties and reasonable use of force.	Defendant contends the court failed to give a detailed self-defense instruction under § 53a-22.	No reversible error; instructions adequately framed whether officer acted in performance of duties and use of force was reasonable.
Lesser included offense for interfering	State maintained separate charges for assault and interfering; no need for Whistnant-style lesser included instruction.	Defendant sought instruction that interfering was a lesser included offense of assault as to Yergeau.	Court did not err; proper jury guidance given; no reversible error.
Causation instruction enlarging offense	Causation instruction limited to alleged conduct; no enlargement beyond information and bill of particulars.	Instruction could expand scope beyond charged acts.	Not an improper enlargement; instruction properly tethered to charged conduct.
Merging vs vacating lesser offense	Polanco requires vacatur of lesser included offense when greater and lesser offenses are involved.	Merging was appropriate under prior case law.	Vacate the lesser offense (count 4) and not merge, per Polanco.
Accelerated rehabilitation denial	State opposes rehabilitation due to violent incident and noncompliance with program.	Defendant argues rehabilitation appropriate given conduct and improvements.	No abuse of discretion; court properly weighed statutory criteria.

Key Cases Cited

State v. Baptiste, 133 Conn. App. 614 (2012) (police use of force and performance of duties element instruction)
State v. Davis, 261 Conn. 553 (2002) (duty to inform self-defense in arrest context)
State v. Salters, 78 Conn. App. 1 (2003) (analysis of performance of duties and reasonable force)
State v. Whistnant, 179 Conn. 576 (1980) (lesser included offense framework (uncharged))
State v. Vilchel, 112 Conn. App. 411 (2009) (proper instruction sufficiency standard)
State v. Smith, 262 Conn. 453 (2003) (Whistnant framework for lesser included offenses)
State v. Booker, 28 Conn. App. 34 (1992) (claim of enlargement reviewed on entire charge)
State v. Polanco, 308 Conn. 242 (2013) (vacatur of lesser offense under merger framework)
State v. Rios, 110 Conn. App. 442 (2008) (appellate review of sentencing discretion)
State v. Davis, 261 Conn. 553 (2002) (self-defense elements in arrest context)
State v. David N.J., 301 Conn. 122 (2011) (Golding-like analysis of trial court charge practices)
State v. Golding, 213 Conn. 233 (1989) (test for subsequent constitutional challenges)