State v. King, 149 Conn. App. 361

Defendant Robert King stabbed the victim multiple times during a short, heated incident; victim required surgery and would have died without treatment.
State charged two counts of assault in the first degree under Conn. Gen. Stat. § 53a-59(a)(1) (intent to cause serious physical injury) and (a)(3) (reckless conduct evincing extreme indifference).
At trial witnesses (including the victim and two eyewitnesses) described the stabbings as a single, rapid, continuous attack; no testimony distinguished separate stab acts or timing between thrusts.
Prosecutor presented intent and recklessness to the jury as alternative theories in closing, urging recklessness only if the jury believed King’s version; the prosecutor did not argue the jury could find both mental states for different stabbings.
Jury convicted King on both counts. King moved for a new trial arguing the convictions were legally inconsistent because the counts required mutually exclusive mental states; trial court denied the motion and King appealed.

Issue	Plaintiff's Argument (State)	Defendant's Argument (King)	Held
Whether convictions requiring mutually exclusive mental states (intentional vs. reckless) can stand when the state presented a single continuous act at trial	The jury reasonably could have found King’s mental state changed during the attack, permitting convictions on both counts	The state presented only an either/or theory (intentional or reckless) at trial; convicting on both violates due process and creates legal inconsistency	Reversed: convictions cannot stand because the state’s trial theory was disjunctive and did not fairly notify defendant of a theory that mental state changed midattack; new trial ordered
Whether appellate reliance on a newly framed theory (change in mental state midattack) is permissible when not argued at trial	Evidence could support the new theory on appeal	Appellate theory was not presented at trial and so cannot be used to sustain convictions under due process principles	Court held appellate theory cannot rescue convictions; review must be based on the theory actually presented at trial

State v. King, 216 Conn. 585 (Conn. 1990) (convictions requiring mutually exclusive mental states cannot stand absent jury instructed it may convict of one or the other but not both)
State v. Fourtin, 307 Conn. 186 (Conn. 2012) (theory-of-the-case doctrine limits appellate reliance on theories not presented at trial)
State v. Robert H., 273 Conn. 56 (Conn. 2005) (adopting standard that appellate theories must be presented at trial in a coherent, focused way to be cognizable on appeal)
Dunn v. United States, 442 U.S. 100 (U.S. 1979) (due process forbids upholding convictions on charges not presented to jury at trial)
Chiarella v. United States, 445 U.S. 222 (U.S. 1980) (isolated trial references to a theory are insufficient to sustain a conviction on appeal)
State v. Fernandez, 27 Conn. App. 73 (Conn. App. 1992) (different mental states may be found if the jury reasonably concludes the defendant’s mental state changed during a divisible course of conduct)
State v. Bjorklund, 79 Conn. App. 535 (Conn. App. 2003) (recklessness and intent are mutually exclusive mental states)