State v. Ovechka, 99 Conn. App. 679

State v. Ovechka

99 Conn. App. 679

Conn. App. Ct.

2007

Check Treatment

*1 determination.” will not disturb decide and we [its] law that state as a matter of here, we cannot Similarly, with enough used to strike a man chair, a metal when space, in a confined is him a wall pin against force to was sufficient weapon. The evidence not a dangerous the metal chair jury finding to sustain instrument, as the was instructed. a dangerous held the chair Testimony indicated that the defendant victim and struck him pointed toward the legs the chair pace. at a brisk The force of walking while victim, pound man, a 245 push was sufficient jury reasonably could have found the wall. The against instrument because it that the chair was physical injury or serious when could have caused death we way. Accordingly, used in this conclude deny the defendant’s motions improperly court did not acquittal and for a new trial. judgment for affirmed. is STATE OF CONNECTICUT v. PAUL OVECHKA

(AC 26077) Hennessy, Bishop, Rogers Js. *2 officially released February 27, 15,

Argued 2007 November Weissman, special public defender, Ruth Daniella appellant (defendant). for the Radionovas, Margaret Gaffney senior assistant were Jona- whom, brief, with on the attorney, state’s Bove, Benedict, and Nicholas J. than C. attorney, state’s appellee Jr., senior attorney, assistant state’s for (state).

Opinion defendant, Ovechka, appeals Paul HENNESSY, J. The conviction, rendered after a from the judgment in violation of trial, degree of assault the second appeal, On the defen- (a) (2).1 General Statutes 53a-60 § sup- was insufficient that the evidence dant claims the state did not port the verdict because part: person (a) provides in relevant “A is Statutes General ... intent to cause when of assault injury person physical injury person, causes such to such or to another he deadly weapon person by dangerous instrument means of a or a to a third discharge of a firearm . . . .” other than means of the with the agree instrument. We used a he of con- judgment reverse the and, therefore, defendant render with direction to and remand the matter viction of not guilty.2 history are neces- procedural following facts appeal. the defendant’s sary for the resolution of police offi- Rynich, Bridgeport and Michael inci- separate Three cer, neighbors.3 were next door resulting neighbors occurred between the dents These the defendant. being brought against charges 2002, and June 10 occurred on December incidents in which July 2, incident, July 2, 2003. The *3 eyes with either sprayed Rynich in the the defendant after had entered pepper spray or weed killer is the incident we are concerned yard, the defendant’s appeal. in this in an July 23, 2003, charged the defendant was On in violation degree information4 with assault in the third Statutes 53a-61 and breach of (a) (1) of General § in in violation of General Stat- peace degree the second in connection with an inci- (1), utes 53a-181 both (a) § indecency in 26, 2002; public dent on December in violation of General Statutes 53a-186 connec- (a) (2) § in 10, 2003; tion with an incident on June and assault in violation of in degree (a) (2) the second July 2, Septem- with an incident on 2003. On connection 10, 2003, jury trial, ber a the defendant was following found not of assault in the third breach guilty degree, peace public indecency, and conviction, Although challenging claims the defendant makes other dispositive, remaining this claim is we do not address his claims. because Lynn Place, Lynn The defendant lived at 190 located on the comer of Barkley Street, Barkley Bridge in Place and and lived at 126 Street port. trial, they neighbors At the time of the had been next door for about years. four separate which, charges originally brought had been in three files upon motion, court, Fischer, J., j September the state’s J. oined for trial on 5, 2003. February degree. second On of assault the defendant’s written 2004, the court denied acquittal judgment a new trial a of

motion for both years defendant to a term of five and sentenced the suspended twenty-eight imprisonment, after execution years probation. of On December months, with five appealed from the 10,2004,the defendant will be set forth as nec- Additional facts conviction. essary. that there was insufficient evi- The defendant claims support verdict because the state did not dence to Specifically, prove a instrument. that he used that the failed to the defendant contends state under the circumstances it was substance,5 capable causing death or serious used, was prove, injury, it failed to as it was and, therefore, actually required substance, used, to, that agree. a instrument. We is well settled when the suffi-

Our standard of review ciency challenged after a con- of the state’s evidence is sufficiency reviewing “In of the evidence viction. apply two-part test. we construe the claim, First, we sustaining light most favorable to evidence *4 upon the facts Second, we determine whether verdict. reasonably drawn so construed and the inferences jury reasonably could have concluded therefrom established that the cumulative force of the evidence beyond evaluating guilt doubt. ... In evi- a reasonable may fact . . . draw whatever infer- dence, the trier of established ences from the evidence or facts testimony regarding conflicting the substance that the defen There was eyes. sprayed sprayed Rynich’s that he dant into The defendant testified pocket, Rynich. pepper spray, in his at The state introduced which had been killer, spray which the defen evidence to establish that the used was weed property. spraying his We decline to determine whether dant had been on pepper spray whether or weed killer sufficient evidence existed to establish involved, Rynich’s eyes. Regardless of the substance was potential prove substance was involved had the state did not that whichever capable physical injury. inflicting of character of a instrument . . . logical. be reasonable and evidence it deems to beyond a reasonable noted, proof As we have often beyond possible all doubt proof not mean doubt does require beyond a reasonable doubt proof . . . nor does posed by every hypothesis of innocence acceptance of by the been found credible that, had it the defendant ... On acquittal. in an trier, would have resulted is a reasonable ask whether there appeal, we do not a reasonable support that would view of the evidence instead, We whether there hypothesis ask, of innocence. supports the evidence that is a reasonable view of omitted; quo- internal jury’s guilty.” (Citations verdict Berger, State v. omitted.) tation marks 224-25, (1999). 733 A.2d of assault prove guilty To pursuant (2), to 53a-60 the state was (a) § beyond a reasonable doubt that the required to injury to cause a to defendant, with intent injury Rynich by means of a Rynich, caused such instrument. General Statutes (7) § “ ” part defines instrument’ in relevant as ‘[d]angerous “any which, . . . under the circumstances capable in which it ... is death or causing is used . . . .” Statutes 53a- physical injury serious General ” “ physical injury’ “physical defines ‘[s]erious injury death, which creates a substantial risk of or impair- disfigurement, which causes serious impairment ment of health or serious loss or . .” any bodily function of . . organ We elicited at trial, turn now to the evidence con- strued in the most favorable to the ver- light sustaining dict, from which the concluded that the defendant of assault in the second The defen- degree. dant on lawn spraying conceded that he was weed *5 line of weeds, property, killer on within the fence his Rynich when his house and into his get he saw leave jury testimony Rynich. vehicle. The also heard from Rynich stopped testified that when he his vehicle at the property, he saw the stop near defendant’s sign Rynich with defendant’s wife. Because wanted to talk had occurred the defendant’s wife about the issues that himself, Rynich and drove his between the defendant of the road in front of the defendant’s car to the side Rynich house and out of his vehicle. walked onto got Rynich property. the defendant’s The defendant and Rynich yelled insults. to the defendant’s wife exchanged crazy. sprayed being about the defendant The defendant Rynich eyes in the and face. The defendant retreated eventually Rynich his house. porch onto his and into the defendant’s up continued to follow the defendant sprayed after in the face and door, being front even Rynich eyes. sprayed The defendant for the last time when the defendant was inside his house. The defen- sprayed pepper spray, he which he had in dant claims may pocket. The state claims the defendant have he in his killer, weed which had hands. spray Rynich testified that he intended to defendant Rynich. Rynich spray and that he did in fact testified in the pain burning chest, neck, to severe face Rynich eyes temporary blindness. testified along subsequently that he drove himself home. From this evidence, jury could have found that Rynich intended to harm and that did suffer “physical injury,” “impair- which is defined statute as pain condition or . . . .” General Stat- ment state, however, proffer utes did not (3). evidence sufficient to establish that the substance sprayed by the defendant was instrument. severity injuries The state that “the argues Rynich’s permitted suffered to infer that injuries were attributable to weed killer and weed ” A ‘dangerous killer was a instrument.’ review of the did provide record reveals that the state not sufficient *6 injur- suffered serious Rynich that to establish evidence face, neck had bums on that he Rynich testified ies.6 Melody incident, day Sergeant On the and chest. Rynich saw department police Bridgeport Pribesh of the Hospital St. Vincent’s room at emergency at the burnt “fiery red, was that he and observed Bridgeport were eyes and his up face, in his . . from the waist . Jeffrey tearing.” irritated, red and swollen very at the Rynich treated who physician Pellenberg, complained of Rynich that room, testified emergency Pellenb- burning. redness and eye irritation and of skin testified skin irritation and the redness as described erg Although complained burning. of his skin that Rynich suffered testimony to establish that there was Rynich, that after well, the facts show eye irritation as well able to follow the defendant sprayed, was being of the incident. The himself home at the end as drive only that by the state established proffered evidence eye irrita- injury, i.e., skin and physical suffered injury. Therefore, physical not serious tion, severity not have concluded that the reasonably could injuries consistent with the defendant Rynich’s was instrument.” sprayed Rynich “dangerous with a having that the manner which argues The state also spray danger- made the instrument defendant used experi- recognized, Our cases have ous instmment. an infinite number of shown, ence has that almost implements can, the circum- innocuous seemingly dangerous become use, stances and manner of their Prat, State v. App. 91, 66 Conn. See, e.g., instruments. only physical prove the victim suffered We note that the state need injury prove degree. § 53a-60 See General Statutes assault state, however, dangerous (a) (2). must that a potential with the instrument is an instrument used. Because provided causing physical injury, if state had evidence that for serious used, spray, in which it was did in fact cause in the circumstances injury, necessarily proven state would have defendant used a instrument in the assault. State v.

102-103, (2001) (baseball bat); 784 A.2d 367 Pierce, 208, 214, 779 A.2d 233 App. 64 Conn. Barnett, (crowbar); State App. 581, v. *7 screwdriver, ice pipe, A.2d 991 vacuum cleaner (metal scissors, television pick, by four, cane, antenna), two (1999). 738 A.2d 659 The denied, cert. innocuous however, that an otherwise recognition, by the can become a instrument dangerous assault does not eliminate the circumstances of the beyond a reasonable doubt state’s burden of proving instrument, were such that the that the circumstances hand, in the case at was a instrument. dangerous as used only In evidence fact, the state did not do. the This that the defen proffered by regard the state this was eyes in the and about the neck dant evidence, This without and face with the substance. instrument, was a more,7 dangerous did not that it physical injury. or serious i.e., capable causing of death in the light We determine that on the facts construed verdict, the sustaining along most favorable to reasonably therefrom, jury the the inferences drawn reasonably could not have found the defendant There was not sufficient degree. of assault the defendant used a instru- dangerous evidence that that injury. ment in The defendant admitted causing beyond Rynich, he intended to harm which established physi- to a reasonable doubt that the defendant intended Rynich and cally injure person. Pellenberg, another ingredients argues in that the listed on the container The state its brief trial, killer, alert a reasonable of the weed which was a full exhibit at would instrument, brief, person as used. In its that the weed killer was a ingredients pesticide argued that these was a and another the state one of herbicide, supported argument ingredient it this with citations was an state, however, jurisdiction. not introduce to cases outside this did specific ingredients nature or classification of evidence to the of the brief, pesticides argued that in the weed killer. Also in its the state subject regulationin their are to Connecticut because of herbicides extensive evidence, however, jury. potentially not before the harmful uses. This was physically injured, testified that Pribesh doubt beyond reasonable which established victim. The injury to his intended caused defendant showing that demonstrated facts however, never state, used and the instrumentality that capable of causing was used was manner in which it physical injury. We capable causing death or insufficient to establish that the evidence was conclude assault in the second necessary one elements of used, was a namely, spray, degree, insufficient evidence was Accordingly, instrument. of assault the defendant’s conviction support degree. second only charge as to is reversed *8 the case is remanded

assault in the second to of not on that judgment with direction render respects. is in all affirmed other charge. opinion BISHOP, J., In concurred. this I ROGERS, J., dissenting. respectfully dissent from majority’s the conclusion that there was insufficient support the verdict because the state did evidence Ovechka, Paul defendant, not the used a When construing instrument. the evidence verdict, most favorable to the I light sustaining believe that there was sufficient evidence from which jury reasonably could have concluded that sub- victim, the defendant stance which Rynich, was, Michael under the circumstances in which capable used, it causing physical injuries. jury reasonably serious could have the dangerous instrumentality concluded that requirement there was fulfilled because was sufficient Rynich did, evidence from which it could find that fact, injuries.1 suffer serious majority opinion.

1 Seefootnote 6 in the A “dangerous instrument” is “any defined as instru ment, article or which, substance under the circum stances in capable which it is used ... is of causing death physical injury or serious . . . .” General Stat utes 53a-3 (7). physical injury” “Serious § is defined as “physical injury which creates substantial risk of death, or which causes serious disfigurement, serious impairment of health or impairment serious loss or any bodily organ . . . .” (Emphasis function of added.) General Statutes 53a-3 (4). language § “[T]he of 53a-3 indicates that the actual use of an item in a capable manner of causing physical injury serious renders the item a dangerous State instrument.” v. Ramos, 785, 794, 860 Conn. A.2d 249 (2004). “[E]ach individually case must be examined to determine whether, under the circumstances in which object is used or threatened to be used, potential it has the for causing physical injury.” quotation (Internal McColl, State marks v. omitted.) 74 Conn. App. 545, 554, 813 A.2d 107 and footwear can (feet be dangerous instruments in some cert. circumstances), denied, 262 Conn. 818 A.2d 782 (2003). spray

The first Rynich, blinded him causing to fall to the ground. Once returned to feet, *9 sprayed defendant him in eyes his again, him blinding for a Rynich second time. testified that he had bums face, on his neck chest, and no matter how much he washed, away.” “it wasn’t going Melody Sergeant Pribesh of police department the Bridgeport Rynich saw in hospital a emergency room and observed that he was “fiery red, burnt . . . from the up waist in his face, eyes very and his irritated, were red and swollen and After tearing.” treating in the emergency room, Jeffrey a Pellenberg, physician, diagnosed with conjunctivitis chemical and chemical dermatitis. Pel- testified that lenberg “clearly, he was type some of clearly substance that was irritative to his

689 on neck Rynich’s eyes burning skin.” The sensation for blurred vision days, and he had two or three lasted day sprayed. on he was which the remainder of the injuries the reasonably could have found that jury respect to by those with Rynich, particularly suffered jury injuiy. eyes, physical his constituted a serious a of vision in reasonably have found that loss could or a loss eyes, temporarily, constituted both albeit any bodily organ. the function of impairment of not that the (4) require 53a-3 does General Statutes § Aponte, permanent. be State v. impairment of an organ part rev’d in App. (1998), 50 718 A.2d 36 114, 121, Conn. 117 735, (1999); on 249 Conn. 738 A.2d grounds, other 415, 1328, App. 402, 613 A.2d Rumore, State v. 28 Conn. A.2d 1049 denied, (1992). cert. 224 Conn. precise a line as to difficulty drawing the of Despite injury” leaves off and “serious “physical where the concerning of the evidence injury” begins, light in say injuries by I cannot Rynich, sustained extent reasonably juiy that the could not a matter law physical injuiy.” have found that he suffered “serious A.2d 249 463, 489, v. Miller, See State evi I would conclude that there sufficient (1987). find dence for the to and, consequently, would affirm

element was satisfied therefore, I have, as to that claim. would proceeded to address other issues raised in appeal. See, e.g., defendant this Connecticut appeal, (1) also the court’s instructions on On claims (a) General assault the second violation of Statutes present (2) inadequate, deprived right (2) were he was of his constitutional to given property, no were defense because instructions on defense of defense dwelling, premises court’s on self- or defense of instructions required disprove defense failed to ensure that the state was defense beyond doubt, (4) show that a reasonable the evidence was insufficient to disproved justification beyond defenses state had all available reasonable *10 doubt, (5) improperly the court excluded certain evidence from the by prosecutorial deprived room and he was fair trial misconduct.

National Giacomi, Bank v. 233 Conn. 304, 351, 659 A.2d J., 1166 (1995) (Borden, Martin, State v. dissenting); App. Conn. 458, 474, 909 A.2d 547 (2006) (Schaller, J., dissenting), granted cert. on other grounds, 901, 916 A.2d 47 (2007).

For the I foregoing reasons, dissent, respectfully.

36 DEFOREST AVENUE, LLC v.

LEONARD CREADORE (AC 26573) Bishop, Rogers, McLachlan and Js.