State v. Ovechka

quotation (Internal of guilt.” overwhelming Conn. 206. T.R.D., supra, omitted.) proba- is entitled to a new the defendant Consequently, hearing. tion violation the trial court case is remanded to

The criminal it would have denied to whether direction determine trial, at represent himself request defendant’s incapac- or mental mental illness due to the defendant’s have was deemed to ity, even the defendant though waive the right and to competent been stand trial have denied the defendant’s If the court would counsel. shall trial, at the trial court request to himself represent case; if in the criminal defendant a new trial grant the is affirmed.34The not, in the criminal case judgment is reversed probation violation case judgment probation viola- is remanded for new and the case hearing. tion concurred. opinion justices

In this the other STATE OF v. PAUL OVECHKA CONNECTICUT 17895)

(SC * Katz, Palmer, Zarella, McLachlan, Norcott, Vertefeuille, Js. Schaller and jurisdiction any purposes appeal This court retains from the denying granting court a new decision of trial either the defendant trial in the criminal case. * originally argued panel consisting This case before this court Norcott, Palmer, Vertefeuille, Thereafter, of Justices Zarella and Schaller. court, pursuant (b), sponte, to Practice Book 70-7 sua ordered that Accordingly, en case be considered banc. Justices Katz McLachlan record, they transcript panel, were added to read briefs have argument. of oral listing justices seniority reflects their status as of the date of argument. oral

Argued officially July 14, October released Margaret Gaffney Radionovas, senior assistant state’s attorney, whom, with on the brief, were Jona- than Benedict, attorney, C. state’s J. Bove, Nicholas appellant for the attorney, state’s Jr., assistant senior (state). defender, public Weissman, special

Ruth Daniella appellee (defendant). for the

Opinion certified issue this NORCOTT, dispositive J. The there was sufficient appeal whether person that a assaulted jury to find ”as injuries],’ defined had suffered" ‘[s]eiious permit would (4),1 Statutes General “ instru- ‘[d]angerous the inference that The by (7).2 Statutes 53a-3 § defined General ment,’ as petition for certifica- upon our its appeals, grant of state Appellate the Court judgment the of tion,3 from the convicting judgment the trial court’s reversing in assault the second Ovechka, Paul of defendant, (2).4 53a-60 (a) § in of Statutes violation General degree 680-81, A.2d 915 Ovechka, v. 99 Conn. State Appellate Court’s We the 926 conclude (2007). “ part: (4) provides ‘Serious § in relevant Statutes 53a-3 General death, injury’ physical injury of or a substantial risk means which creates impairment disfigurement, of health or serious serious causes serious which any bodily impairment organ . . . of the function of loss or part: ‘Dangerous (7) provides instru § relevant 53a-3 in General Statutes which, any instrument, the circum or under ment’ means article substance used, capable attempted is to be in which it is used or or threatened stances (Emphasis added.) causing physical injury . . or . death of following petition granted the for limited to We the state’s certification Appellate properly that the state’s evidence Court conclude issue: “Did the face, clothing repeated eyes, spraying of victim in the of the defendant’s the eye body pepper spray, of victim’s and weed killer the with and/or ‘dangerous injuries, prove use of a instrument’ was insufficient to the skin degree) meaning (a) (2) (assault § in the second the of ... 53a-60 within Ovechka, (7)?” 922 A.2d ... 53a-3 part: person provides (a) “A in relevant Statutes 53a-60 General degree guilty intent cause assault in second when ... with the injury person physical injury person, such or to another he causes such deadly weapon person or a instrument to a third means (Emphasis added.) discharge . . .” means of the of a firearm . other than determination that the evidence was insufficient to sus- tain a conviction of assault in the second improperly violation (a) (2) invaded fact- province jury. we Accordingly, reverse judgment Appellate Court and remand this case court consideration of the defendant’s claims on remaining appeal. opinion

The Court’s sets forth following procedural history. facts and “The defendant Rynich, police Michael Bridgeport officer, were next separate door neighbors.5 Three incidents occurred neighbors between resulting charges being brought against defendant. These incidents July occurred on December 2002, and June 10 and 2,2003. July 2,2003 incident, in the defendant Rynich sprayed in the either weed killer after had entered the defendant’s yard, is incident we are concerned with in this appeal.” Id., 681. respect July 2,

With to the 2003 incident, defen- “[t]he dant conceded that he was on lawn spraying his weed killer within weeds, the fence line of property, his when he saw Rynich leave his house and his get into testimony vehicle. The also Rynich. heard from Rynich testified that when he stopped his vehicle at the stop sign near the defendant’s property, he saw the Rynich defendant’s wife. Because wanted to talk with the defendant’s wife about the issues that had occurred himself, Rynich between the defendant and drove his car to the side of the road in front the defendant’s got Rynich house and out of his vehicle. walked onto property. the defendant’s Rynich The defendant and exchanged Rynich yelled insults. to the wife defendant’s Lynn Place, Lynn “The defendant at lived located on the comer Barkley Street, Rynich Barkley Bridge Place and lived at 126 in Street port. trial, they neighbors At the time of the had been next door for about years.” Ovechka, App. supra, four State v. 99 Conn. 681 n.3. sprayed crazy. The defendant being defendant about the retreated face. The defendant eyes in the Rynich Rynich into his house. eventually porch his onto up to the defendant’s the defendant continued follow in face and sprayed door, being front even after last time Rynich for the eyes. sprayed The defendant his house. The defen- was inside when the defendant he had in spray, which sprayed pepper dant claims he may have state claims the defendant pocket. his The his The killer, which he had in hands. sprayed weed Rynich he that intended defendant testified Rynich testified spray Rynich. in and that he did fact face and chest, neck, in the pain burning to severe temporary Id., 683-84. blindness.”6 along in an July charged “On the defendant in the third in violation degree information7 with assault of the (1) Statutes 53a-61 and breach (a) § of General of General Stat- in the second in violation peace degree in with an inci- (1), utes 53a-181 both connection (a) indecency 2002; public in dent on December of General 53a-186 in connec- (a) violation Statutes 10, 2003; and assault in tion with incident on June (a) the second violation majority opinion, dissent, The Court echoed then recites “Rynich subsequently as a statement of testified he drove himself fact: that Ovechka, supra, view, specific home.” 684. In our this completely herein, fact is statement of not accurate reflection record Rynich brief, testify and the defendant does not recite it in his either. did not he on direct or cross-examination that drove himself home after the attack but, rather, only get property he “tried to off of as [the defendant’s] quick home, could” and went where he called for assistance. medical [he] Rynich testify specifically only not as to he did how traveled home. testimony Rynich had driven himself home after the attack came from wife, Ovechka, Maria the defendant’s who testified she saw being sprayed, jump truck, retreat in his it the comer after back around driveway. of the block toward his own 7 separate charges originally brought which, “The in had been three files court, J., joined September upon motion, Fischer, the state’s J. for trial on Ovechka, App. supra, 2003.” v. 99 Conn. n.4. State July 2, Septem- connection with an incident on 2003. On 10, 2003, jury trial, ber a following the defendant was found not of assault in third guilty breach degree, peace of the in public the second degree indecency, guilty of assault in the degree. February second On 18, 2004, the court denied the defendant’s written acquittal motion for both judgment of trial a new years and sentenced the defendant to term of five imprisonment, suspended execution after twenty-eight months, years probation. with five On December 10, 2004, the appealed defendant from the judgment conviction.”8 681-82. Id.,

The defendant raised numerous claims appeal on to Appellate Court,9 including that evidence was insufficient to his support conviction of in the assault second degree in violation of 53a-60 “because (a) (2) the state did not prove that he used a instru- prove ment” since it had “failed to substance,10 longer The record reveals that the defendant no Neverthe incarcerated. less, appeal practical this is not moot because relief remains available as a consequences conviction; see, of the result collateral to a attendant criminal e.g., McElveen, n.14, (2002); State v. 802 A.2d 74 as weE subject period probation. fact as the that he remains to a appeal “(1) The defendant also claimed on that: the court’s instructions (2) in (a) on assault the second of ... violation were inadequate, deprived right present he was of his constitutional to given property, defense because no instructions were on defense of defense premises dwelling, (3) or defense the court’s instructions self- required disprove defense failed to ensure that the state was the defense beyond doubt, (4) a reasonable the evidence was insufficient to show disproved justification beyond had state aE avaüable defenses a reasonable doubt, (5) improperly the court excluded certain evidence from by prosecutorial deprived room and he of a was fair trial misconduct.” Ovechka, supra, (Rogers, J., dissenting). Conn. 689 n.2 AppeEate testimony 10 The conflicting noted Court “[t]here regarding Rynich’s eyes. sprayed the substance that the defendant into sprayed pepper spray, defendant testified that he which had in his been pocket, Rynich. at The state introduced estabHsh that the kiEer, spraying property. used was weed defendant had been on his decline We to determine whether sufficient evidence existed estabUsh sprayed Rynich’s eyes. Regard whether weed kiEer was involved, prove less substance the state not did that whichever sub- capable was used, it was the circumstances under . .” Id., . . 682. injury death or serious causing ain with the defendant Court Appellate agreed that rejected argument the and state’s opinion, divided permitted severity injuries Rynich suffered “the injuries were attributable Rynich’s that to infer a dangerous that weed killer was to weed killer and Id., omitted.) quotation (Internal instrument.” majority concluded Court further Appellate 684. The face, chest, Rynich’s on his neck that bums eye irritation, did not consti- temporary blindness and ” “ injuries]’ (4), under 53a-3 ‘[sjerious physical tute awas the substance used justify inference that “ ” defined 53a-3 instrument’ as ‘[djangerous Appellate Court rendered Accordingly, the Id., 684-85. conviction of the defendant’s reversing judgment (a) in the violation 53a-60 assault second did reach the remainder of defendant’s not court on because it had directed trial appeal claims Id., of not on that count. judgment guilty render appeal n.2. followed. See footnote 681 and This certified opinion. 3 of this Appellate Court appeal,

On the state claims that the the evidence was insuffi- improperly concluded that prove pepper spray; that the see footnote 10 cient opinion; sprayed Rynich’s had this that defendant face, body was a eyes, clothing ‘[djangerous within meaning (a) §§ instrument’ opin- on the (7). Specifically, state, relying and 53a-3 dissenting Appellate judge, argues ion of the Court injuries Rynich phys- had incurred were serious injuries, which meant the substance used ical potential dangerous instrument stance was involved had the character of a supra, physical injury.” Ovechka, capable inflicting 682 n.5. appeal solely defen- Because our decision in this certified is based on the pepper spray, necessary admitted it is not to determine whether dant's use of sprayed killer well. the defendant with weed

clearly “capable of causing injury,”11 and that the Court’s decision to the contrary from its resulted failure to view the evidence in the light most favorable to sustaining jury’s ver- particular, dict. In Rynich state notes that had been blinded the pepper spray, which also caused bums to his and face, painful neck chest that remained days several caused eye severe irritation and blurry day. vision for the of the response, rest In the defendant Rynich’s injuries claims that did not rise to the level of serious physical injury, and also not a dangerous instrument as a matter of common or medical We knowledge. conclude that the reason- ably Rynich’s injuries could have inferred that were iryuiies from resulting the use of a instrument, dangerous permitting thus it to convict the defendant of assault the second degree violation of 53a-60 (a) (2).

“In reviewing sufficiency of the evidence to sup- port a criminal conviction we apply two-part test. First, we construe evidence in the light most favor- able to sustaining Second, verdict. we determine upon whether the facts so construed the inferences reasonably drawn therefrom reason- [finder fact] ably could have concluded that the cumulative force beyond guilt evidence established a reasonable doubt. . . . viewing yield could [I]n contrary inferences, the jury is not barred from drawing those consistent guilt inferences with and is not required only to draw those inferences consistent with jury reasonably The state that the also notes could have found that the sprayed Spectracide killer, to, defendant had weed in addition spray. of, pepper jury reasonably or instead The state then that the contends found, knowledge sense, could have on the basis of its own and common subject regulation, that weed killer is a toxic substance to wide and that it dangerous light solely is a instrument. In of our conclusion herein based pepper spray; on the defendant’s admitted use of see footnote 10 of this opinion; we need address these not claims. function is to jury’s is that the innocence. The rule evidence or facts inferences from the draw whatever to be it deems reasonable by the evidence established quotation omitted; internal logical.” (Citation 742, 754-55, omitted.) Jones, A.2d 322 (2008). of assault in the sec- prove guilty

“To the defendant state (a) (2)], ond [under beyond a doubt that required prove reasonable injury to to cause another defendant intended injury person to such he did in fact cause person, (2) he means of a instrument.” did so Bosse, State v. quotation (Internal omitted.) cert. App. 675, 678, denied, Conn. 915 A.2d “Section (7) Conn. 920 A.2d 310 which the requires that the circumstances in instrument potential be its an is used considered determine as physical injury, instrument of death or serious but the not cause death or actually instrument need injury . . is physical injury. physical . Serious not itself ... element of the crime It is charged. essential component an essential element.” but definitional omitted; emphasis quota- internal (Citation original; If, however, has, tion marks Id. an instrument omitted.) it is fact, physical injury, caused a serious considered defines dangerous ipso facto. Section 53a-3 ‘[s]eri- “physical injury which creates physical injury’ ous death, which causes serious a substantial risk impairment of health or serious disfigurement, serious impairment any bodily organ loss or of the function of . . .” “dangerous” . Whether an instrument is injuiy questions are whether “serious” province jury. See, fact to the e.g., committed Almeda, State v. A.2d 441, 450, 211 Conn. Jones, State injury); Conn.

(serious 95, 376 A.2d 1077 (1977) (dangerous instrument). Appellate Court’s dissenting judge aptly set forth

the following additional relevant facts. When the defen- Rynich dant assaulted spray, first “[t]he spray blinded [him], causing him to fall to the ground. Rynich Once feet, returned to his sprayed defendant him in eyes his him again, blinding for a second time. Rynich testified that he had face, bums on his neck and chest, and no matter how washed, much he ‘it away.’ wasn’t going Melody Sergeant Pribesh of the police department Rynich Bridgeport hospital saw in a room and emergency ‘fiery observed that he was red, burnt . . . from up the waist in his face, eyes and his very were irritated, red and swollen and After tearing.’ treating Rynich in the emergency room, Jeffrey Pellen- physician, berg, diagnosed with chemical con- junctivitis and chemical dermatitis. testified Pellenberg ‘clearly, [Rynich] sprayed type with some clearly substance that was irritative to his skin.’ The binning Rynich’s sensation on neck lasted days, two or three and he had blurred vision for the day remainder of the sprayed.”12 on which he was v. Ovechka, supra, (Rogers, J., 688-89 dissenting). Under the highly deferential standard of applied review verdicts, we agree with the con- clusion of the Court dissent that, on the basis injuries, these reasonably could have “[t]he injuries found that the by suffered Rynich, particularly respect those with to eyes, his constituted a serious physical injury. jury reasonably could have found that a eyes, loss of vision in both his albeit temporarily, constituted a loss or impairment serious of the function any bodily organ. require does not [Section] impairment that the permanent.”13 of an be organ Id., 689 (Rogers, J., dissenting).

12Rynich also testified that he has suffered from altered vision since the day pepper sprayed him, although, according Rynich, that the defendant to physician definitively changes his has not determined whether those vision age. were because of the or the effects of photographic The dissent asserts that it has reviewed the exhibits in by decisions supported is conclusion, moreover, Our injur- that have concluded jurisdictions from other severity Rynich have the suffered ies similar to those spray a support pepper a necessary to weapon. Indeed, dangerous instrument or dangerous pepper or have tear “[mjost gas, courts found [M]ace capable of deadly weapons spray dangerous be or People bodily added.) inflicting injury.” (Emphasis great Rptr. 543, 11 Cal. 3d Blake, 117 Cal. 4th denied, (June Cal. LEXIS 5537 678, review Court of Blake, example, In for California 2004). could have jury reasonably Appeal concluded that a weapon” that spray “dangerous found was a pepper the victims of bodily injury”14because “great had caused pepper used perpetrator had robberies in transitory, respira- substantial, though spray “suffered blindness. This tory burning distress, sensations capable demonstrates the chemical present bodily injury in the of, did, inflict serious in the discussed examples In of the decisions light case. little more imagination picture it takes [herein], to escape, these were fortunate injuries victims or burns, pneumonia, damage such as chemical cornea Id., 559. (Emphasis added.) serious asthma attacks.” only slight present case, “showjingj redness and describes them as Rynich’s eyes skin, akin to redness on his a mild around moderate respectfully disagree with the dissent’s assessment of the sunburn.” We depiction strong photograph, an otherwise and see it instead as the officer, barely open eyes, recovering from law enforcement able his spray. having incapacitating These effects of been blinded ordinarily precisely why, competing perspectives appeal, are we defer See, Morgan, e.g., findings trier of State v. to the fact. 800-801, 877 A.2d statute, provided (b), Code for a The relevant California Penal year' “[a]ny person personally enhancement who uses one sentence deadly weapon felony attempted or or in the commission of felony “dangerous weapon” “an . . Case law defined instrument . .” bodily injury capable inflicting great death,” “great and noted that insignificant, bodily injury” “injury substantial, significant or not is People Blake, (Internal quotation omitted.) v. or trivial moderate.” supra, App. 4th 117 Cal. 555-56. We especially persuasive also find the decision of the Appeals Court of Handy State, Maryland in v. Md. 685, 689, 745 A.2d 1107 (2000), which concluded temporary that the victim’s blindness and burning in his eyes for several hours constituted sufficient evidence of “serious harm” to render pepper spray used a “dangerous weapon.” la Handy, the court arobbery in first noted that, an instrument qualify as a “[f]or or deadly weapon under applicable stat [the ute], the instrument must be (1) designed as anything used or to be designed used destroying, defeating, or injuring enemy, or as an instrument of offensive or defensive ... combat under the circumstances case, immediately of the useable to inflict serious or deadly harm (e.g., pistol unloaded or starter’s gun use able as a actually or bludgeon); way likely used in a to inflict that sort harm microphone (e.g., cord used as a garrote).” (Citation omitted; internal quotation marks omitted.) Id., 693, State, Brooks v. quoting 585, 600, Md. 552 A.2d The court then dis cussed the “actual component use” tripartite of that test in Maryland’s the context of statutory definition of injury,”15 very which is similar to “[s]erious that contained in 53a-3 (4), concluded that “the use pepper spray judice the case sub did in fact cause the victim protracted to suffer loss or impairment of his vision. testified that he [The victim] was blinded for several hours and experienced a burning sensation in his . . . .” Handy v. State, supra, 700. The court, therefore, consid “testimony ered this . . . legally sufficient evidence applicable “[sjerious physical injury” statute defined in relevant part ‘physical injury which . . . “ ‘(3) protracted any bodily Causes . . . serious loss of the function of organ; member or “ ‘(4) protracted impairment any Causes . . . of the function of bodily organ.’ Handy State, supra, 700, quoting member or 357 Md. Md. 27, (c) (Cum. Sup. 1998), repealed by Ann. 26, Code art. Acts c. effective October 2002.

545 by used pepper spray allegedly that [the defendant] weapon Id., . . . .”16 701. a was used as injuries were not as Rynich’s acknowledge We that pre- courts injuries that our as some of the grievous 16 Handy Maryland’s Appeals is decision of We note that the Court appeal that from numerous other courts with the decisions consistent dangerous weapon pepper spray upheld findings is a under that have factual Neill, jurisdictions’ 166 F.3d United States v. relevant statutes. See their finding 943, Cir.) (deferring (9th to District Court’s 949-50 ” “ bodily injury,’ capable causing spray “dangerous weapon” ‘serious was “ pain protracted impair physical ‘involving or the extreme defined as one member, faculty; requiring bodily organ, or mental or of a ment of a function hospitalization, surgery, rehabilita medical intervention such as ” nose, robbery burning and and victim suffered tion’ because bank denied, 1153, preexisting asthma), S. aggravation cert. 526 U.S. 119 her Elliott, App. 766, People 2037, (1999); 299 Ill. 3d v. Ct. 143 L. Ed. 2d 1046 pepper spray 773, (1998) (rejecting defendant’s claim that N.E.2d 643 temporary, weapon” “dangerous because of but as matter of law was not respiratory eye blinding, “incapacitat[ing]” burning, distress nausea and Harris, 773, by robbery victims); experienced So. 2d 778-79 State v. by pepper temporary App. 2007) (headaches (La. and blindness caused ” “ pain’ statutory element of definition of satisfied ‘extreme “ People bodily injury’ denied, (La. 2008); ”), v. writ 978 So. 2d 304 ‘serious 418-19, (1999) (relying Norris, App. 411, N.W.2d 658 236 Mich. required [robbery eye pain burning sensations that victims] “extreme jury reasonably could have to seek medical treatment” to conclude “ weapon’ ”). ‘dangerous found that similarly respect gas to tear Mace. See United Other courts have held Dukovich, 140,142 (11th Cir.) (deferring District v. 11 F.3d Court’s States ” “ weapon’ gas ‘dangerous requiring finding sentence Mace was tear eye robbery pain when it caused victims to suffer enhancement for bank denied, 1111, pain), burning, 511 U.S. headaches and throat cert. Lord, 2112, (1994); Mass. 128L. Ed. 2d 671 Commonwealth v. S. Ct. “dangerous weapon” per 265, 270, (Mace is a se because it 770 N.E.2d 520 “tearing eyes, burning designed incapacitate causing sensations skin, breathing Although debilitation on the difficulties. depends sensitivity pain, and tolerance for Mace is none- on an individual’s very disabling denied, designed painful effects.”), review theless to exert Harris, 1108, (2002); v. 437 Mass. 774 N.E.2d 1098 but see United States (3d Cir.) (rejecting District Court’s factual 44 F.3d 1216-19 “ ” robbery ‘bodily injury’ during had caused because that Mace used bank symptoms experienced and duration of the record did not reflect “character they tellers, character of the ‘medical attention’ as well denied, received”), L. 2d 731 cert. 514 U.S. 115 S. Ct. 131 Ed.

viously physical injur- to be have considered ‘[s]erious included, which have (4), under ies]’ fractures, severe example, gunshot wounds, bleeding Miller, State See, of consciousness. e.g., and loss 488-89, 202 522 A.2d 249 463, (1987) (abrasions, Conn. palate temporary lacerated soft and loss of contusions, “ by consciousness caused were strangling ‘[s]erious ” physical injur[ies]’ conviction of assault in supporting Rumore, State App. v. 28 degree); 402, first Conn. 413- loss of 15, (temporary 613 A.2d 1328 consciousness requiring surgical stapling laceration satisfied “serious physical injury” element of assault in first elderly denied, 906, cert. 224 Conn. A.2d victim), 615 Estrada, State v. Conn. (1992); App. 641, 655-56, 1049 26 603 A.2d 1179 that (upholding gunshot physical wound to was “serious leg injury”), cert. denied, 923, 221 Conn. 608 A.2d 688 The cases support the defendant cites in of his that argument Rynich’s injuries requisite severity, lacked the including Rumore, are, however, Miller far from a model of which, view, in our consistency, demonstrates the fact physical injury inquiry. intensive nature of the serious Rossier, State v. Compare, 204, 206-208, 175 Conn. e.g., multiple 397 A.2d 110 that (1978) (concluding contu- sprain sions and ankle were not sufficient right “ ” physical injury,’ particularly ‘serious when evi- presented primarily dence at trial “consisted of testi- to emotional trauma mony relating precipitated by Barretta, with State v. [emphasis 82 added]), [assault]” 690, Conn. 846 A.2d 946 that (concluding extensive bruises and abrasions were sufficient evi- denied, dence of “serious cert. 270 injury”), difficulty Conn. 853 A.2d 522 Given (2004).17 “the of drawing precise ‘physical injury’ line as to where Aponte, agree, however, argument that State v. We with the defendant’s App. 114, 121, part (1998), grounds, 50 Conn. 718 A.2d 36 rev’d in on other (1999), distinguishable 249 Conn. 738 A.2d 117 because the victim’s physical injuries” included, “serious in that child abuse case addition to eye injury causing temporary impairment, pancreatic injury vision surgeon testified had “created a risk of death.” v. injury’ State begins”; and ‘serious leaves off we remain mindful that 451; Almeda, supra, Conn. may cast a juror who do not sit a thirteenth “[w]e upon feeling our the verdict based against vote printed the cold guilt doubt of is shown some v. State omitted) marks record”; quotation (internal A.2d 790, 800, (2005); Morgan, most light evidence in the we must “construe the quotation (Internal the verdict.” sustaining favorable supra, Conn. 754. Jones, omitted.) case previously discussed Thus, on the basis of the which we well standard and the established law temporary that the jury verdicts, review we conclude bums conjunctivitis chemical blindness, chemical by Rynich sufficient evidence suffered constituted such that physical injury’ § under 53a-3 ‘[sjerious reasonably could have jury, properly instructed,18 the if by the used the defendant determined that (7).19 under 53a-3 ‘[djangerous was a instrument’ jury’s finding the verdict the defendant Accordingly, by challenges arguing that The dissent the rationale of our conclusion undisputed finding jury that the a had suffered it is never made that physical injuries the trial court never instructed it about because improperly disagree of that because the definition term. We the dissent sufficiency claim, is before conflates the defendant’s of the evidence which appeal, in this certified the defendant’s instructional claim and its us opinion; analysis; error 9 of which is attendant harmless see footnote this Thus, light not before us. view the evidence in the most favorable because we jury’s supra, sustaining verdict; see, e.g., Jones, State v. 289 Conn. the 754; we leave consideration the defendant’s instructional claims in the Appellate first instance to the Court on remand. personal physicians profes Citing various medical interviews with and sionals, variety pertaining wide to the as well as a of medical literature anatomy argues knowledge skin, and defendant medical injuries opinion Rynich’s were in nature. indicate not serious supplement Although we understand desire to the factual the defendant’s evidence, opinion which record with this medical fact and introduction of persuaded jury differently, might we have to decide this factual issue well principles appellate governing are constrained to note that well established preclude utilizing of factual decisions us from this material to find review appeal. See, e.g., Dillard, App. 238, n.11, 66 Conn. facts on and, appeal, (“that court, trial A.2d 387 information was not before the of assault in

guilty degree the second in violation of (a) supported evidence, sufficient thereby Appellate Court to consider the requiring appeal; remainder the defendant’s claims on see foot- opinion; note 9 of this rather than reversing the convic- tion directing judgment accordingly.20 necessary when and to the extent that he or she Pardons and Paroles is use of provided Department using ably force as is reasonable and authorized a third Statutes 53a-18 ... or authorized official of the as well as citizens who or for employ suffered correction officers who utilize cerns about the that the dissent claims kind, case is different from always as a matter of law a suffered of our conclusion and its effect. decision of fact committed to a citizens and law enforcement civil and criminal we do not take new . . . case, of assault in the second (2001); (3d Second, original); facility may, (b) (“a litigants seeking authority The dissent Ed. believes to be potentially exposing as we have not reasonable admit new evidence or physical force, person C. Tait & E. will have to 2000) § by Rynich might by Rynich in subsections peace to: objective toward decisions that arise from similar sets of facts. ^[1] from what he justification § 8.8 well have the unintended effect of in order to maintain order and Correction”); expresses considers our conclusion to be officer, special policeman appointed Effect an arrest or physical potential expansion (2) (“[a]n liability. Prescott, are serious as a matter of necessary to resolve a (a), are serious standard of decided evidence”), uphold and he justified any use that, properly pp. [b] further concerns all users of force it other case decided We defenses authorized official of a correctional institution 305-306 in the wake of this may reasonably as Connecticut that a a verdict personnel weigh General for such disagree in instrument. This a upon in violation of 53a-60 physical injuries, First, Department reasonableness, [c] legal use such cert. self-defense instrument. instructed trier. using of this prevent found (“an appellate another we do not denied, [pepper spray] issue of criminal by Statutes physical purpose”); must be instructed that the believes to be the use or imminent who use with the dissent’s characterization evidence”). reasonably the rules and regarding section, logically of Correction or the Board of in the course of their our General discipline, person law, decision, “in force § inquiry pepper spray escape adopt per answer the dissent’s con- of force which he reason- 53a-19 this court in that courts subjecting Moreover, we fail to see how this liability effect ... General Statutes Practice and Procedure or that a court does not injuries orient their searches under section 29-18b person device[s] upon to defend himself or believes such to be (a) (2)”; (emphasis remains a possibility from regulations use such (a) (“[e]xcept See, e.g., reviewing pepper spray Statutes, another akin to those se both to the extent is custody 786 A.2d 431 ato justified police rule of per expanded question physical ordinary General that our injuries person retry se rule duties, charge of court 53a- any the as in a a reversed and Court is judgment with direction to that court is remanded to the case appeal. claims on remaining consider the defendant’s McLACH- ZARELLA and PALMER, opinion In this LAN, Js., concurred. VERTE KATZ and J., with whom

SCHALLER, not join, dissenting. Because FEUILLE, Js., injuries suffered whether instructed to determine physical Michael constituted ‘[s]erious (4), in injury’ defined General Statutes § not my view, satisfy, do injuries suffered, because the statutory law, criteria as matter of by clarify- physical injury, respectfully begin I dissent. I why in this the foundation ing our role case faulty premise. Next, on a majority’s conclusion is based proper I will under consideration of how, demonstrate Rynich’s statutory forth in 53a-3 (4), criteria set injuries injuries as do not constitute serious prudential law. I will raise Finally, matter of some why majority’s may to conclusion considerations as person” guez, preventing immunity ripple effect of our conclusion herein to be unwarranted. person unless he or she knows the fourth or available amendment excessive force claims officers’ use of force by police brought pursuant Callahan, defend “clearly a similar 268-69 364 F.3d whom he or she himself established constitutional or would be to them or correction officers available from force while (2d Cir. objective eighth U.S. attempting or herself or a to 42 U.S.C. 1983 aware). Thus, amendments to the United States constitution , 2009) (subjective-objective 129S. Ct. standard as defense of (2d effecting reasonably effectuating damages Cir. prevent the arrest or 808, 815-16, 172 third 2004) (objective constituted excessive force in violation of or we find the dissent’s concerns about the qualified well; against prison officials); believes to have committed if attempting person statutory rights which a alleging that arrest); government see, escape”). Moreover, immunity. See, e.g., custody e.g., Wright from the use or imminent use L.Ed. 2d 565 and such officers to standard standard effect an arrest while the use of official did unauthorized; v. applied applied (2009) (qualified Goord, Davis Rodri- civil claims not reasonable an Pearson v. are also or offense, judged violate police eighth or have F.3d ^[2] well have consequences adverse beyond that extend the confines of this case. outset,

At the I recognize that when a reviewing court addresses a claim challenging sufficiency of the evidence, an inherent tension exists duty between the of the provide court to review meaningful jury’s verdict and the admonition that the court must not attempt to juror.” “sit as a thirteenth (Internal quotation State Morgan, 274 Conn. 790, 800, omitted.) 877 A.2d (2005). Accordingly, our role is to proceed cautiously, in mind that keeping we must construe the evidence in light most favorable to sustaining the verdict. State v. Jones, 289 Conn. 742, 754, 961 A.2d 322 (2008). As a court of last resort, however, we are bound to define and distinguish concepts and, effect, draw lines to ensure the orderly administration of our present laws. The upon case calls us to draw a line “ ” between ‘[p]hysical injury’ ‘jsjerious injury’ as the legislature has defined those terms in our statutes. General Statutes 53a-3 (3) and (4). may it Although often be difficult to distinguish between the two concepts particular factual situations, distinction must be drawn. v. Rossier, 204, 207, 397 A.2d 110 I wish (1978). emphasize inquiry this is not some abstract controversy in seman tics. no evidence whatso presented Because the state ever on the dangerousness spray, only way in which jury's verdict defendant, Paul Ovechka, guilty assault in the second degree can be sustained is through series of reverse infer upon ences that an hinge initial finding of a serious injury.1 That is to if say, had found 1Ordinarily, proven the state could have that the or weed killer, used, expert testimony if offering was a instrument “capable causing physical injury such instrument was death or serious present . . case, . .” General Statutes In the the state offered capability no evidence about the or characteristics of either substance. On appeal, argues juror’s the state knowledge that it is within a common capable causing physical injury. these disagree. substances are I physical injur had serious Rynich, fact, in suffered sub reasonably have inferred that the it could ies, then “ ‘[d]angerous was a the defendant used stance ” an instru by 53a-3 (7) i.e., § as defined instrument’ — iryuries— physical serious capable causing of ment to a necessary predicate sustain conviction which is a General in under Statutes degree of assault the second a of contrast, physical In mere (a) 53a-60 (2). § not to itself, support in and would suffice injury, of instru dangerous the substance inference that the of conviction, majority as ment, case, in which determined, stand. Court cannot ” “ injury’ simply ‘[p]hysical defines (3) Section 53a-3 or physical of condition broadly “impairment as hand, . 53a-3 defines pain . . .’’On other which injury’ “physical injury as physical ‘[s]erious which causes death, of or creates a substantial risk of or impairment health disfigurement, serious serious bodily any of the function of impairment loss or serious Dictionary knowledge” as fact that is so defines “common “[a] Black’s Law may proof.” accept widely as Black’s it true without known that a court knowledge Dictionary (8th 2004). is limited to Ed. Because common Law statistically significant facts, given that even a the unlikelihood obvious killer, exposed minority population to has been or weed of our juror know these it to that a would whether is too far stretch assume physical injury causing in capable the manner are of serious substances major- capability Moreover, defendant, exists. if indeed such used upholding ity rely argument a basis facet of the state’s as does not on this present was sufficient. its the evidence in the case conclusion that affirmatively, prove guilty of in the the defendant assault Stated “[t]o required prove pursuant (2), (a) the state was to to 53a-60 second defendant, beyond intent to cause a doubt that the a reasonable Rynich by Rynich, injury injury means of such caused [d]angerous defines instrument General Statutes 53a-3 instrument. which, part any . the circumstances as instrument . . under relevant physical injury capable causing . death or serious which it is used . . is injury physical injury (4) defines .... [s]erious [Section] death, disfigure risk or which causes serious creates a substantial impairment ment, impairment or serious health loss added; quotation any bodily organ (Emphasis . . . .” internal function of Ovechka, App. 679, 683, 915 omitted.) A.2d926 . . . organ beyond .” It is dispute that these terms encompass different categories injuries. Moreover, by explicitly defining concepts, it is clear that the legislature intended, at the least, minimize poten- tial inequities that could result if cases such as this were decided jurors, who were employing different widely varying constructs of what constitutes a physical injury opposed to a physical injury. serious We, therefore, give must meaning to, rather than erode, the distinction between these two statutorily defined concepts so that two different juries, presented with the same facts, would not likely, absent the drawing some line, arrive at different verdicts.

In present the case, majority the purports to uphold jury’s the verdict based on the notion that jury the reasonably had Rynich found that had suffered a “seri- ous . . . impairment of the function of any bodily organ”; General Statutes 53a-3 (4); namely, to the skin, bodily which are both organs.3 The flaw in majority’s the that, rationale is undisputedly, jury the never made such a finding because the trial court never instructed jury the on the definition of physical injury. Rather, the trial court instructed jury only the the physical definition of injury, Rynich which clearly suffered, given that term’s low threshold and recogni- pain tion of as a criterion. The majori- cornerstone of the ty’s rationale, therefore, unsupportable the because jury never found —nor even had opportunity the to con- Rynich’s injuries sider —whether constituted a “serious . impairment . . any bodily function of organ . . . .”4 General Statutes 3Indeed, Appellate Court, majority the endorses, dissent in the which the jury reasonably asserts that could have found “[t]he that a loss of vision in eyes, temporarily, impairment both his albeit constituted a loss of serious any bodily organ.” Ovechka, App. 679, the function of State v. (2007) (Rogers, J., dissenting). 915 A.2d 926 majority suggests sufficiency claim, The I that have conflated the us, claim,

is before with the instructional which is not. See footnote 18 of majority opinion. why the I raise the instructional issue to underscore the I must of a jury finding, in the absence Accordingly, Rynich suffered consti- injuries the determine whether In as matter of law. injuries physical tuted serious sufficient present failed to concluding that state fact, defendant, in jury for the to find that the evidence majority physical injury, had suffered serious there that, “[although stated Court eye irrita- testimony Rynich suffered establish skin], his sensation on burning tion as well [as able sprayed, was Rynich, being after facts show himself home as well as drive to follow defendant proffered of the incident. at the end only suffered established state eye irritation, skin and not serious injury, i.e., reasonably could not have injury. Therefore, Rynich’s injuries was severity concluded that sprayed Rynich with the defendant having consistent quotation instrument.” (Internal with a Ovechka, State v. omitted.) A.2d I (2007). agree. princi- the state support position appeal, In of its Rynich and his emer- pally testimony relies on the Rynich Jeffrey Pellenberg. room gency physician, that he was blinded and being sprayed testified after eyes blurry his for the rest of the burned that were Rynich day. testified he Pellenberg diagnosed that conjunctivitis dermatitis, which, chemical and chemical eyes Pellenberg, means irritation according and skin. in a favorable to sus-

When construed most light only verdict, supported findings the evidence taining to his and skin Rynich suffered irritation fact; majority’s findings see 13 of deference to the of the trier of footnote misplaced. give majority opinion; we can deference I do not see how Rynich’s injuries impairment finding to a . . . constituted “serious bodily any organ” though undisputedly function of even such was made because the was not instructed about that definition. never temporary in a resulting impairment of his sight some burning sensation on his skin. was, this Although undoubtedly, unpleasant experience, hardly it rises to the level of seriousness embodied in 53a-3 respect With to the skin irritation, such a condition, as presented, appropriate is not an matter to be considered in a physical injury inquiry. only presented on this score was that felt a burning sensation. A burning sensation is not an injury, but pain rather a sensation of which, as our clearly law dictates, is not a concept embodied in 53a-3 (4). v. Milum, Conn. 619, 500 A.2d 555 (pain is not concept embodied in statutory definition of seri ***5 ous injury).* Rather, it is the tissue resulting damage from a bum that injury constitutes the leads impairment to the of the function skin, i.e., bodily no organ. present In the evidence case, presented regarding extent of damage, any, if Rynich’s skin tissue.6 A sensation of pain itself, in the expert absence of testimony to contrary, is not a sufficient basis on which to conclude that the skin’s seriously function impaired. has been Accordingly, the only relevant injury presented by this case is with respect to possible injury Rynich’s eyes. It is signifi cant that, initially after being sprayed, Rynich continued proper bodily injury Pain can analysis be a consideration in a serious See, e.g., Sentencing certain Federal circumstances. Guidelines Manual 1B1.1, commentary (L) (2008) (defining ‘[sjerious bodily injury’ n.l “injury involving physical pain protracted impairment extreme or the of a bodily member, organ, faculty; function of a requiring or mental or medical surgery, hospitalization, intervention such as rehabilitation” [emphasis added]); Harris, also United States v. 1206, 1216 see (3d 44 F.3d Cir.), denied, 1088, 1806, cert. 514 U.S. 115 S. Ct. 131 L. Ed. 2d 731 6 brief, In its the state asserts that irritation of the skin “[s]evere such as by Rynich painful injury that suffered constitutes both a to the skin and endangerment ability efficiently effectively of the skin’s to and serve its bodily noted, pain us, functions.” As is irrelevant to the issue before and presented bodily regarding no evidence was at trial functions the skin performs or, specifically, whether, extent, Rynich’s more and to what skin regard. was affected in this

555 prop- own the defendant’s defendant on pursue to Rynich pursued the defen- erty. spraying, a second After step. Only front door way all defendant’s dant ultimate the defendant’s spraying after the third pursuit. home, Rynich cease his his did retreat into his car his capable driving Thereafter, Rynich Ovechka, supra, App. 684. State v. 99 Conn. own house. has suffered supposedly who person how a I fail see capable be of his could impairment a serious in the Finally, support finds my position such actions. Rynich’s depicting admitted into photographs around only slight show redness condition, skin, his akin and moderate redness on Rynich’s eyes ato mild sunburn. have deter- appellate

In in which our courts cases support a find- evidence existed to mined that sufficient injuries were, physical injury, suffered ing serious State v. See, nature. appropriately, e.g., Miller, 463, 488, 522 (strangu- A.2d 249 (1987) 202 Conn. consciousness, to loss severe facial leading lation multiple contusions, swollen lacerations, abrasions State Rob- v. eyes, hospital blood weeklong stay); filled inson, 604, (lacera- 392 A.2d 475 606, 174 Conn. tions, ribs, multiple bruises, finger, broken fractured v. Jeustini- State disfigured transfusions); blood legs, ano, 275, 281-82, (gun- 172 374 A.2d 209 (1977) Conn. Barretta, State v. groin forearm); shot wounds to App. 684, 690, bruises, 82 Conn. 846 A.2d (severe 946 body, abrasions and contusions across trunk of shoul- denied, 905, der and cert. 853 A.2d neckline), Conn. v. Aponte, State App. 114, 50 Conn. (2004); pancreatic A.2d 36 (potentially life-threatening injury, part of left rev’d in on other eye), closure State A.2d grounds, 249 Conn. (1999); Graham, 688, 717, 575 (gunshot 21 Conn. A.2d 1057 loss of in left shoulder, wound to face sight eye), 577 A.2d denied, (1990); cert. Vuley 15 Conn. App. 586, 589, 545 A.2d 1157 (momentary sight, loss of hematoma, laceration scalp requiring Despite seven stitches). body this cohesive law, majority inconsistency finds and confusion in the fact that in State v. Rossier, supra, 175 Conn. 206- 208, we concluded that multiple evidence of contusions and a ankle right sprain did not constitute sufficient support evidence to serious injury, whereas in State v. Barretta, supra, 684, Appellate Court concluded that extensive bruises and abrasions were sufficient to constitute physical injuries. I cannot with agree majority’s apparent interpretation all bruises constitute the injury. same More importantly, majority omits from its discus- sion of Barretta the fact that the victim was beaten repeatedly with a baseball bat and point kicked to the where his entire torso was covered with blue and purple bruises and abrasions and that the victim could not walk without Id., 686, assistance. 690. Under the “disfig- urement” prong 53a-3 (4), which is not at issue present case, Appellate Court determined that these were serious injuries. injuries Such are cry a far injuries from the by suffered the victim in Rossier, only required who an ace for his bandage ankle. v. Rossier, supra, 206.7 In light precedent of our and the injuries nature of the suffered Rynich, I conclude that Appellate majority Court properly that, although they may It persuasive, should also be noted be we are Therefore, not bound disagree decisions of the Court. I majority’s attempt to demonstrate inconsistencies in our case law on the basis of decisions from two different courts. addition, majority’s jurisdictions In unper- I find the reference to outside Many substances, suasive. i.e., gas those cases address different tear Mace; see, e.g., Dukovich, 140, (11th United States v. Cir.) 11 F.3d (addressing gas Mace), denied, tear cert. 511 U.S. 114 S. Ct. (1994); L. statutory Ed. 2d 671 See, and/or are based on different criteria. e.g., Lord, App. 265, 268-69, Commonwealth v. 55 Mass. 770 N.E.2d 520 (statutes “dangerous weapon”), denied, do not define review 437 Mass. 774 N.E.2d 1098 sup- insufficient evidence to that there determined in second assault the conviction of port defendant’s the (2). (a) in violation of 53a-60 degree § majority’s deci- consequences of the to the Turning con- underlies its faulty premise the that despite sion, what, majority proceeds to set forth clusion, thereby poten- per rule, a se must be considered effect, of charge to a users of this device tially exposing all (a) of 53a-60 in violation degree § assault in the second every minimum, virtually because, at a This is so tempo- spray likely to suffer such “victim” is eye and skin irritation. rary along blurriness with visual ordinary is that the function knowledge It common self-protection is pepper spray as a nonlethai form by which ordinary citizens and as nonlethai means To be police uncooperative suspect. subdue an officers be lightly. the use of must not taken sure, I however, by poten- am troubled mind, With that consequences majority’s ruling tial unintended Moreover, ordinary on actions undertaken citizens.8 potentially chilling I equally am concerned about the of pepper have on the use ruling effect this could Will these officers and correction officers. police pepper spray knowing be more hesitant to use officers rely case suspect prisoner that could on this damages to a civil action for serious support seeking example walking night, street followed Take for woman down a dark at intentionally sprays by an man. If the woman the man because unknown she, mistakenly faith, imminent, good an attack her albeit and in believes exposure, majority’s opinion, is on a as a result of the based as it criminal faulty premise, has from in the third in violation increased assault (a) (1), A with Statutes which is a class misdemeanor General sentence, degree in no in the violation of 53a- minimum to assault second felony (2), (a) is a D class that carries minimum sentence year years imprisonment imprisonment. one and a maximum sentence of five (8). Although agree majority our Statutes 53a-35a I with General justification defenses, availability provide defenses statutes of these point made, people may is, does certain be faced not bear on exposure majority opinion. heightened criminal as a result of the physical injuries and the concomitant increase in civil liability for the officer and his governmental agency?

Moreover, because majority’s ruling necessarily flows from the nature of injury and not the instru- ment, opinion its could well be interpreted go beyond pepper spray cases apply broadly any more case involving produces action that visual blurriness and eye skin and irritation. At this point, it is important note that 53a-60 (a) (2) requires an analysis of the circumstances in which the instrument is used. That is, if someone person causes another to suffer from blurriness person while that driving automobile, I agree, would as the defendant concedes, that under such circumstances, the instrument would be capable causing physical injuries, i.e., injuries flowing from an automobile accident. said, That the majority’s decision this clearly case —which did not arise out of such circumstances —could lead to unintended adverse the, consequences under (a) (2) ground that visual eye blurriness and and skin irritation are serious physical injuries. For the foregoing reasons, including the insufficient evidence in this case and the adverse consequences of the ruling, I respectfully dissent. I

Accordingly, would affirm the judgment of the

Appellate Court.

STATE OF CONNECTICUT v. REYNALDO ARROYO

(SC 18031) Rogers, J., Katz, Palmer, Zarella, C. Vertefeuille and Js.

Case Details

Case Name: State v. Ovechka

Court Name: Supreme Court of Connecticut

Date Published: Jul 14, 2009

Citation: 975 A.2d 1

Docket Number: SC 17895

Court Abbreviation: Conn.