State v. King, 321 Conn. 135

Defendant Robert King stabbed victim Kristen Severino four times during a single episode arising from a fight over $10 involving King and Kyle Neri.
King was charged in a substitute information with two counts of assault in the first degree: (1) intentional (intent to cause serious physical injury by means of a dangerous instrument) and (2) reckless (extreme indifference to human life causing serious physical injury).
The jury convicted King of both intentional and reckless assault; the trial court sentenced him concurrently on both counts.
The Appellate Court reversed those convictions, concluding the verdicts were legally inconsistent and that the state had tried the case on alternative theories of culpability, depriving King of adequate notice under Dunn/theory-of-the-case principles.
Justice Robinson (joined by two colleagues) dissented from the majority’s reversal of the Appellate Court: he agreed the convictions were conceptually compatible under Nash but argued the prosecutor’s trial presentation expressly treated the two mental-state theories as alternatives, so sustaining both convictions on appeal would violate due process; he would affirm the Appellate Court.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether convictions for intentional and reckless assault are legally inconsistent	State: Nash permits convictions for both because differing mental states can relate to different results from the same acts	King: Verdicts are inconsistent given the single, continuous act and jury could not simultaneously find both culpable mental states for the same result	Robinson (dissent): Conceptually not inconsistent under Nash, but practical inconsistency arises from how the state presented its case at trial (see next issue)
Whether the state violated due process/theory-of-the-case (Dunn) by presenting alternative theories at trial and later defending both convictions on appeal	State: The substitute information, jury instructions, and evidence provided notice; closing was clarifying or ambiguous and cannot defeat convictions on appeal	King: Prosecutor’s summation explicitly treated intentional and reckless theories as alternatives (a hedged bet); defendant lacked notice that state sought convictions on both theories	Robinson (dissent): Held for King — prosecutor tried charges in the alternative, failed to ask for convictions on both, and appellate salvaging of alternate theory would violate due process; would affirm Appellate Court reversal

Dunn v. United States, 442 U.S. 100 (defendant entitled to notice of specific charges; appellate court may not affirm on a theory not presented at trial)
Chiarella v. United States, 445 U.S. 222 (isolated references at trial insufficient to sustain a new appellate theory)
Cola v. Reardon, 787 F.2d 681 (1st Cir.) (appellate theory must have been presented in a coherent, focused sense at trial)
State v. Robert H., 273 Conn. 56 (Conn.) (adopting Dunn/Cola standard and reviewing charging instrument, instructions, examinations, and summations to determine theory of the case)
State v. Nash, 316 Conn. 651 (Conn.) (convictions for intentional and reckless assault not necessarily mutually exclusive when mental states relate to different results under the state’s theory)
State v. Fourtin, 307 Conn. 186 (Conn.) (prosecutor’s closing establishes theory; state barred from adopting an inconsistent appellate theory)
State v. Carter, 317 Conn. 845 (Conn.) (closing argument can conclusively demonstrate the state’s theory for notice/theory-of-the-case purposes)