******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. ROBERT KING
(AC 34932)
DiPentima, C. J., and Keller and Bishop, Js.
Argued December 3, 2013—officially released April 8, 2014
(Appeal from Superior Court, judicial district of
Waterbury, Prescott, J.)
Mark Rademacher, assistant public defender, with
whom, on the brief, was Heather M. Wood, assistant
public defender, for the appellant (defendant).
Emily D. Trudeau, deputy assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Jayne F. Kennedy, assistant state’s attor-
ney, for the appellee (state).
Opinion
BISHOP, J. Following a jury trial, the defendant,
Robert King, was convicted of two counts of assault in
the first degree in violation of General Statutes §§ 53a-
59 (a) (1)1 and (3), and thereafter, he was sentenced to
a total effective term of nine years of imprisonment to
be followed by five years of special parole. On appeal,
the defendant contends that his due process rights were
violated by having been convicted after a legally incon-
sistent verdict, on the basis of the manner in which the
charges against him were prosecuted, because the state
did not claim, through its presentation of evidence and
argument at trial, that he had both intentionally and
recklessly assaulted the victim. Accordingly, the defen-
dant argues, the state’s present theory of the case, for-
mulated and argued for the first time after the verdict,
does not form an adequate basis to sustain his convic-
tion. We agree and, accordingly, reverse the judgment
of the trial court.
The matter was tried over the course of three days
in April, 2012, during which the jury reasonably could
have found the following facts. On December 18, 2010,
Angela Papp and Kyle Neri went to a residence where
the victim, Kristen Severino, was staying temporarily.
The three were sitting on a bed when the defendant
entered the apartment, angry over Neri’s purported fail-
ure to repay him ten dollars that the defendant had
loaned him earlier that day. As the argument continued,
the defendant left the bedroom and returned with a
steak knife that he had retrieved from the kitchen. The
defendant continued to yell at both Papp and Neri while
the victim attempted to defuse the situation by telling
the defendant that no one should die over ten dollars.
The defendant called the victim a ‘‘bitch,’’ and when
she protested, he stabbed her four times in quick suc-
cession.2 After the defendant had fled the scene, Papp
and Neri also left the residence to call for assistance
because they did not have telephone access in the home.
Upon seeing a police vehicle on the street, Neri hid
because he had an outstanding warrant for violation of
probation and, thus, wanted to avoid the police. Instead,
Papp approached the officer, got into the police vehicle,
and both Papp and the officer went to the home to
assist the victim and call for emergency medical help.
The victim then was transported to Saint Mary’s Hospi-
tal in Waterbury, where Abdulmasih Zarif, an emer-
gency room physician, performed surgery. At trial, Zarif
testified that the victim had sustained stab wounds to
her chest and abdomen, and that surgery was needed
to mend lacerations to the victim’s liver and lymphatic
channel.3 Zarif stated that had the victim’s wounds been
left untreated, she would have bled out and died. At no
time during his testimony, however, did Zarif distin-
guish among the victim’s four stab wounds or specifi-
cally identify more than one stab wound as life-
threatening.
During its presentation of evidence, the state elicited
testimony from both Papp and Neri concerning the night
of the incident. Although both Papp and Neri stated
that the defendant was irate on the night in question
and indicated that the defendant stabbed the victim
several times, neither witness distinguished among the
victim’s four stab wounds. That is, neither witness testi-
fied to any break in time between the defendant’s
swings of the knife; neither witness testified that any
of the thrusts was any different in manner or degree
from the others. Papp testified that the defendant
‘‘started swinging the knife on [the victim] . . . just
over and over and over, just going into her.’’ Similarly,
Neri testified that when the defendant became angry
with the victim, he placed the kitchen knife on the
victim’s face and began yelling at her. When the victim
pushed the defendant’s hand away from her face, Neri
testified that ‘‘at that point is when he stabs her three
times.’’ When asked on cross-examination whether the
victim had jumped in the middle of his altercation with
the defendant, Neri stated: ‘‘No sir. . . . That’s not true
at all.’’ Similarly, the victim herself did not attempt to
draw a distinction among the multiple stab wounds.
Rather, she stated that the defendant ‘‘threatened me
with the knife to my face and then told me to sit down,
and that’s when he stabbed me.’’
The jury heard as well that the defendant was appre-
hended by the police on an unrelated matter after the
assault. While at the police station, a detective read
the defendant his Miranda4 rights, obtained a signed
waiver, and questioned the defendant about the stab-
bing, which Papp had reported earlier that day. The
defendant claimed that Neri had threatened him with
a gun and that he had reacted in self-defense. The defen-
dant also claimed that the stabbing had been an acci-
dent. The detective then wrote a statement that was
based on the defendant’s narrative and gave it to the
defendant to read, initial, and sign. The defendant read
the entire statement and initialed the first page, but
refused to sign the statement as a whole because he
believed that the manner in which the detective wrote
the statement ‘‘sounded bad.’’ Although the defendant
did not testify at trial, his statement was read to the
jury.5
After the close of evidence, the parties began their
respective closing arguments. At no time did the prose-
cutor argue to the jury that the defendant could be
found guilty of both intentional and reckless assault. To
the contrary, a fair reading of the prosecutor’s argument
suggests that the prosecutor urged the jury to find that
the defendant’s conduct was intentional rather than
reckless. Specifically, the prosecutor stated: ‘‘You may
be wondering why there are two charges. You have a
variety of evidence to draw from, and I don’t know what
you’ll find credible. If you find Mr. King’s statement
credible, he’s saying he’s waving the knife around, he’s
angry with Kyle, and [the victim] jumps in the middle,
if you believe Mr. King’s statement, you would look
more to the assault one, reckless indifference.’’ The
balance of the prosecutor’s argument consisted, how-
ever, of an argument that the jury could disbelieve the
defendant’s statement and find, instead, that he acted
intentionally. After closing arguments, the court
charged the jury, during which the court accurately
informed the jury of the two charges against the defen-
dant and the different elements of each count. The
court, however, did not tell the jury that it could find
the defendant guilty of both counts, nor did the court
instruct that the jury could find the defendant guilty of
only one count.
On April 23, 2012, the defendant filed a motion for a
new trial pursuant to Practice Book § 42-53 and, on
April 24, 2012, the defendant also filed a motion for a
judgment of acquittal pursuant to Practice Book § 42-
51. Notably, the defendant, by means of his motion for
a new trial, argued that conviction under both § 53a-59
(a) (1) and (3) created a legal impossibility because
the conviction required that he possess two different
mental states for the same crime and that therefore, he
was entitled to a new trial. On June 22, 2012, the defen-
dant withdrew his motion for a judgment of acquittal
and, after argument, the court denied the defendant’s
motion for a new trial. In denying the defendant’s
motion, the court posited that the jury reasonably could
have found: ‘‘[I]n light of [the defendant’s] self-defense
claim . . . the first stab wound resulted in swinging
the knife wildly around and striking [the victim]. The
second one was performed with an intent to cause
serious physical injury.’’ This appeal followed.
On appeal, the defendant argues that the court
improperly permitted the jury to return a verdict of
guilty on both counts because the charges as they were
presented by the state at trial required the jury to find
either that he acted recklessly or intentionally, but not
with both frames of mind, because those mental states
are mutually exclusive when applied to the same act.
Specifically, the defendant contends that the verdict of
guilty of two counts of assault in the first degree, requir-
ing different mental states for the same offense, violates
his due process rights because he was not informed,
at trial, of a claim by the state that he acted both inten-
tionally and recklessly. The defendant asserts that the
state’s posttrial argument that the jury reasonably could
have found that the defendant’s mental state changed
during his attack on the victim is inconsistent with the
way in which the state presented its case to the jury
and that, accordingly, the state cannot make such an
argument on appeal. In response, the state contends
that the jury reasonably could have concluded from the
evidence adduced at trial that the defendant first injured
the victim recklessly as he swung the knife at Neri and
then injured the victim intentionally after she retaliated.
Accordingly, the state argues, the jury could have deter-
mined that the defendant’s mental state changed during
the course of the attack and that, therefore, the verdict
of guilty on both counts is not legally inconsistent. We
agree with the defendant.
Our standard of review is well established. Because
the defendant claims a violation of his due process
rights, his appeal raises a question of law for which our
review is plenary. See State v. Mooney, 61 Conn. App.
713, 719, 767 A.2d 770, cert. denied, 256 Conn. 905, 772
A.2d 598 (2001). Here, we review the defendant’s claim
of legal inconsistency not in a vacuum but in light of
the manner in which the case was presented at trial
by the state. That is, our assessment on review is not
whether a jury reasonably could have found the defen-
dant guilty of both intentional and reckless assault on
evidence that he stabbed the victim four times, but
rather, whether the jury reasonably could have reached
that conclusion on the basis of the evidence as it was
presented and argued by the state. See State v. Fourtin,
307 Conn. 186, 208–12, 52 A.3d 674 (2012).
‘‘Initially, we note that the statutory definitions of
intent and recklessness are mutually exclusive and
inconsistent. . . . Reckless conduct is not intentional
conduct because one who acts recklessly does not have
a conscious objective to cause a particular result. . . .
Therefore, the transgression that caused the victim’s
injuries was either intentional or reckless; it could not,
at one and the same time, be both.’’ (Citation omitted;
emphasis in original; internal quotation marks omitted.)
State v. Bjorklund, 79 Conn. App. 535, 565–66, 830 A.2d
1141 (2003), cert. denied, 268 Conn. 920, 846 A.2d 882
(2004). ‘‘The issue of legal inconsistency typically arises
when a defendant is convicted of two offenses that
contain contradictory elements. . . . To determine
whether a jury verdict is legally inconsistent, we look
carefully to determine whether the existence of the
essential elements for one offense negates the existence
of the essential elements for another offense of which
the defendant also stands convicted. If that is the case,
the verdicts are legally inconsistent and cannot with-
stand challenge. . . . Put more simply, we determine
if there is a rational theory by which the jury could
have found the defendant guilty of both crimes. . . .
It is not inconsistent . . . to find that a criminal defen-
dant possesses two different mental states, as long as
[the] different mental states relate to different results.’’
(Citation omitted; internal quotation marks omitted.)
State v. McFarlane, 128 Conn. App. 730, 735, 17 A.3d
1131, cert. denied, 301 Conn. 931, 23 A.3d 725 (2011).
Because the two counts of assault in the first degree
charged in the present matter require both intentional
and reckless mental states, the defendant relies on State
v. King, 216 Conn. 585, 595, 583 A.2d 896 (1990), for
the proposition that he may be convicted of one count
or the other, but not of both, because the state’s theory
at trial and its presentation of evidence was that his
act was continuous and it was, in its entirety, wilful.
In King, the defendant was found guilty by a jury of
assault in the first degree in violation of § 53a-59 (a)
(3), arson in the first degree in violation of General
Statutes § 53a-111 (a) (2), and attempt to commit mur-
der in violation of General Statutes §§ 53a-49 and 53a-
54a (a) for setting fire to an inmate’s cell in the correc-
tional center in which the defendant was imprisoned.
Id., 586. Because the assault charge required a finding
of a reckless mental state and the attempted murder
charge required a finding of an intent to kill, the defen-
dant claimed that the verdict as to those charges was
inconsistent. Id., 592–93. In agreeing with the defendant
and concluding that a new trial was necessary on the
assault and attempted murder charges, our Supreme
Court articulated: ‘‘Reckless conduct is not intentional
conduct because one who acts recklessly does not have
a conscious objective to cause a particular result. . . .
Therefore, the transgression that caused the victim’s
injuries was either intentional or reckless; it could not,
at one and the same time, be both. . . . Where a deter-
mination is made that one mental state exists, to be
legally consistent the other must be found not to exist.
. . . By no rational theory could the jury have found
the defendant guilty of both crimes. . . . Logically
then, the jury verdicts convicting the defendant of two
offenses each of which requires a mutually exclusive
and inconsistent state of mind as an essential element
for conviction cannot stand.’’ (Citations omitted; inter-
nal quotation marks omitted.) Id., 594. Referring to the
murder and assault counts, the court in King held that
‘‘the trial court must instruct the jury that, depending
on its findings of fact, it may convict the defendant of
one count or the other, but not of both.’’ (Emphasis in
original.) Id., 595.
To be sure, there are fact patterns which warrant
charging a defendant with multiple crimes with conflict-
ing mental states. In State v. Fernandez, 27 Conn. App.
73, 604 A.2d 1308, cert. denied, 222 Conn. 904, 606 A.2d
1330 (1992), the defendant threw the victim down a
flight of stairs and, after descending the stairs, also
stabbed the victim in the stomach. Id., 76. After a jury
trial, the defendant was convicted of attempt to commit
murder in violation of §§ 53a-49 and 53a-54a (a), two
counts of assault in the first degree in violation of § 53a-
59 (a) (1) and burglary in the first degree in violation
of General Statutes § 53a-101 (a) (2). Id., 74–75. On
appeal to this court, the defendant argued, inter alia,
that the trial court improperly permitted the jury to
return a guilty verdict on both the attempted murder
and assault charges because those crimes require proof
of mutually exclusive mental states. Id., 92. Specifically,
the defendant asserted that the intent to cause death
is legally and logically inconsistent with the intent to
cause serious physical injury when applied to the same
act against the same victim. Id., 93. In finding that the
verdict was not legally and logically inconsistent, we
opined: ‘‘Unlike the guilty verdicts in State v. King,
supra, [216 Conn. 585], the verdicts of guilty of assault
in the first degree and attempted murder in this case
are not inconsistent because the jury was not required
to find that the defendant possessed the two different
mental states simultaneously with respect to his acts
against [the victim]. Specifically, the jury could reason-
ably have concluded that although the defendant com-
menced his attack on [the victim] with an intent to
cause her serious physical injury, this intent was trans-
formed, in midattack, into an intent to cause [the vic-
tim’s] death. Because the jury was not required to find
that the defendant possessed the relevant mental states
simultaneously, its verdict was not logically inconsis-
tent.’’ Id., 94. In sum, if a criminal act may be bifurcated
such that more than one mental state reasonably could
be present throughout the course of the act at different
times, a verdict of guilty on both counts is not legally
and logically inconsistent. If, however, the act requires
finding that the two distinct mental states occurred
simultaneously against the same victim, finding a defen-
dant guilty of both crimes constitutes a legally and
logically inconsistent verdict.
In determining whether a verdict is legally and logi-
cally inconsistent, however, a reviewing court must also
consider the way in which the state presented the case
to the jury. ‘‘The ‘theory of the case’ doctrine is rooted
in principles of due process of law. . . . In Dunn [v.
United States, 442 U.S. 100, 106, 99 S. Ct. 2190, 60 L.
Ed. 2d 743 (1979)], the United States Supreme Court
explained: ‘To uphold a conviction on a charge that
was neither alleged in an indictment nor presented to
a jury at trial offends the most basic notions of due
process. Few constitutional principles are more firmly
established than a defendant’s right to be heard on the
specific charges of which he is accused.’ . . . The
court further stated that ‘appellate courts are not free
to revise the basis on which a defendant is convicted
simply because the same result would likely obtain on
retrial.’ . . . Subsequently, in Chiarella v. United
States, 445 U.S. 222, 237 n.21, 100 S. Ct. 1108, 63 L.
Ed. 2d 348 (1980), the United States Supreme Court
observed that an isolated reference at trial to the theory
of the case advanced on appeal is constitutionally insuf-
ficient to sustain a conviction on appeal.
‘‘The Court of Appeals for the First Circuit applied
the Dunn principles in Cola v. Reardon, 787 F.2d 681
(1st Cir.), cert. denied, 479 U.S. 930, 107 S. Ct. 398, 93
L. Ed. 2d 351 (1986), a federal habeas action . . . . In
Cola, there was evidence in the record that would have
been sufficient to sustain the petitioner’s conviction,
but the Court of Appeals held that the state appellate
court should not have considered that evidence in sup-
port of the conviction because it was not part of the
state’s theory of the case at trial.6 . . . In reaching that
result, the Court of Appeals interpreted Dunn and its
progeny as follows: ‘[I]n order for any appellate theory
to withstand scrutiny under Dunn, it must be shown
to be not merely before the jury due to an incidental
reference, but as part of a coherent theory of guilt that,
upon [review of] the principal stages of trial, can be
characterized as having been presented in a focused or
otherwise cognizable sense.’ . . . We conclude that
this statement is an accurate synthesis of Dunn and
Chiarella. We therefore adopt it as the standard by
which to gauge whether evidence introduced at trial,
but not relied on by the state in its legal argument, is
properly cognizable by an appellate court when evaluat-
ing the sufficiency of the evidence.’’ (Citations omitted.)
State v. Robert H., 273 Conn. 56, 82–83, 866 A.2d 1255
(2005). Put succinctly, an appellate court cannot affirm
a conviction on the basis of an argument newly fash-
ioned after conviction and not presented at trial. Such
is the situation we presently confront.
Therefore, in making our assessment of whether the
jury’s verdict in the matter violates the defendant’s due
process right because, given the manner in which he
was prosecuted and the evidence in support of his cul-
pability, he was convicted after an inconsistent verdict,
we look first to the evidence and argument presented
to the jury. While the charging document in the present
matter did not articulate that the two counts of assault
in the first degree were made in the disjunctive, our
review of the record and transcripts confirms that the
state presented the case in that manner. As noted, the
state did not claim or suggest that the jury could find
the defendant guilty of both intentional and reckless
conduct at any point throughout the course of trial.
Importantly, during the state’s closing argument, the
prosecutor presented the two charges to the jury as an
alternative to one another. While the court instructed
the jury that the defendant was charged with two crimes
and correctly described the different elements of each
count, the court did not tell the jury that it could find
the defendant guilty of both counts, nor did the court
instruct that the jury could find the defendant guilty of
only one count. A fair reading of the record regarding
the court’s jury charge leads us to conclude that because
the court’s instruction on reckless and intentional
assault did not direct the jury that it could find guilt
on one or the other or both, reference to the court’s
charge is not helpful to either the state’s or the defen-
dant’s claim on appeal in this regard.7
Most importantly for purposes of this appeal, how-
ever, is the fact that the evidence was not presented at
trial in a manner suggestive of more than one assault.
In order to affirm the defendant’s conviction, we would
have to find that the prosecutor presented the stabbing
as two offenses; one committed intentionally and
another committed recklessly. Nothing in the record
supports such a conclusion. Interestingly, although
there was evidence that the victim was stabbed four
separate times, the state presented no evidence that
each stabbing constituted a separate offense. If so, it
would have been logical for the state to charge the
defendant in four counts, one for each stab wound,
which the state did not do. As noted, in addition to the
eyewitness testimony of Neri and Papp, neither the
victim nor any other witness distinguished among the
multiple stab wounds at trial either by manner or timing.
Instead, all witnesses testified that the assault occurred
quickly, within a short span of time and, essentially, as
one continuous act. There was no testimony elicited at
trial that there was any temporal break between knife
thrusts or distinguishing one thrust from another in any
manner. The physician who testified at trial, Zarif, did
not differentiate any of the stab wounds but, rather,
concluded, on questioning from the state, that the vic-
tim’s wounds generally were life-threatening and that
one or more of the wounds had lacerated the victim’s
liver and lymphatic channel. In short, a fair reading of
the record reflects that the state presented evidence of
the defendant’s conduct as one continuous act, unbro-
ken in time and character.
To be sure, if the state had pursued its appellate
theory of the case at trial, with supporting evidence,
appropriate argument, and attendant notice to the
defendant, the jury, perhaps, could have properly found
the defendant guilty of both intentional and reckless
assault. But we decide appeals not in isolation or only
based on theory unmoored to the factual record, but,
rather, in the context of the trial proceedings as they
actually occurred. We consistently have held that ‘‘in
order for any appellate theory to withstand scrutiny
. . . it must be shown to be not merely before the jury
due to an incidental reference, but as part of a coherent
theory of guilt that, upon [review of] the principal stages
of trial, can be characterized as having been presented
in a focused or otherwise cognizable sense. We adopted
this rule as the standard by which to gauge whether
evidence introduced at trial, but not relied on by the
state in its legal argument, is properly cognizable by an
appellate court when evaluating the sufficiency of the
evidence. . . . In addition, it is well established that
[o]ur rules of procedure do not allow a [party] to pursue
one course of action at trial and later, on appeal, argue
that a path [the party] rejected should now be open
to him. . . . To rule otherwise would permit trial by
ambuscade.’’ (Internal quotation marks omitted.) State
v. Fourtin, supra, 307 Conn. 208. Holding now for the
first time in this appeal that the defendant could be
convicted of both counts because his mental state could
have changed during the course of the attack when the
state’s theory of the case was presented in the disjunc-
tive would constitute a violation of the defendant’s due
process rights.
In sum, because this judgment violates the defen-
dant’s due process rights to fair notice of the charges
against him and represents a conviction of two offenses
when the state presented the case as one offense com-
mitted either recklessly or intentionally, the judgment
cannot stand.8
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.
1
General Statutes § 53a-59 (a) provides in relevant part: ‘‘A person is
guilty of assault in the first degree when: (1) With intent to cause serious
physical injury to another person, he causes such injury to such person or
to a third person by means of a deadly weapon or a dangerous instrument
. . . or (3) under circumstances evincing an extreme indifference to human
life he recklessly engages in conduct which creates a risk of death to another
person, and thereby causes serious physical injury to another person . . . .’’
2
Although there is inconsistent testimony in the record as to whether the
victim sustained three or four stab wounds, the photographic evidence
produced at trial showed that there were, in fact, four stab wounds.
3
It is unclear from Zarif’s testimony as to whether one stab wound caused
both the laceration to the liver and the damage to the lymphatic channel,
or whether two or more different stab wounds caused damage to each
system individually. The state made no effort, during Zarif’s testimony, to
elicit facts from which the jury reasonably could make distinctions among
the stabbings or attribute the victim’s injuries to any specific act of stabbing
by the defendant.
4
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
5
Although the defendant did not testify, his statement was read into the
record at trial by Detective George Tirado during the state’s case-in-chief.
6
Similarly, if the state in the present matter had presented direct or
circumstantial evidence and argued that the defendant actually changed his
mental state in the course of stabbing the victim, the verdict would not
suffer the same due process impediment now claimed on appeal.
7
Because there is no claim of instructional error in this appeal, we do
not opine on whether the instruction provided adequate guidance to the
jury on this issue.
8
It is important to note, however, that as we are not deciding this matter
on sufficiency grounds, we do not reverse the judgment to direct the trial
court to render judgment in the defendant’s favor. Cf. State v. Gainey, 116
Conn. App. 710, 977 A.2d 257 (2009). In addition, because reckless assault
is not a lesser included offense of intentional assault, we cannot simply
vacate the conviction of one of the charges. See State v. Polanco, 308 Conn.
242, 248–49, 61 A.3d 1084 (2013) (holding that when defendant convicted
of greater and lesser included offenses, trial court must vacate conviction
of lesser offense rather than merge conviction of both offenses and vacate
conviction of lesser included offense).