State v. Carter

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STATE OF CONNECTICUT v. KENNETH R. CARTER
(SC 19145)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued March 18—officially released August 18, 2015

Richard E. Condon, Jr., senior assistant public
defender, for the appellant (defendant).
Rita M. Shair, senior assistant state’s attorney, with
whom, on the brief, were Michael L. Regan, state’s
attorney, and Michael E. Kennedy, senior assistant
state’s attorney, for the appellee (state).
 Opinion

McDONALD, J. The defendant, Kenneth R. Carter,
appeals from the judgment of the Appellate Court
affirming the judgment of conviction of attempt to com-
mit assault in the first degree in violation of General
Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1) and various
other offenses.1 On appeal, the defendant contends that
(1) there was insufficient evidence to establish beyond
a reasonable doubt his intent to inflict serious physical
injury on another, as required for a conviction of
attempt to commit assault in the first degree, and (2)
the Appellate Court improperly determined that there
was sufficient evidence for a conviction of that offense
on the basis of a theory that the state did not pursue
at trial, in violation of the theory of the case principle.
We conclude that there was sufficient evidence from
which the jury could have found that the defendant
intended to inflict serious physical injury under a view
of the evidence fully consistent with the state’s theory
at trial. Accordingly, we affirm the Appellate Court’s
judgment.
The Appellate Court’s opinion sets forth the following
facts that the jury reasonably could have found. ‘‘[O]n
October 29, 2008, as Officer Brigitte Nordstrom of the
Groton town police department was participating in
the execution of a search warrant, she received a text
message from one of her confidential informants, Jef-
frey Mumford. Mumford advised her that the defendant,
whom she had known for many years, was going to
‘pop this white dude’ at the Time Out Sports Cafe´ in
Groton (cafe´). When Nordstrom replied to Mumford
that if she responded to his tip he might be exposed
as a confidential informant, he texted back, ‘I don’t
care, keep me safe.’ Nordstrom then called Mumford
on his cellular telephone to learn what the defendant
was wearing and where he could be found inside the
cafe´. . . .
‘‘It was decided . . . that [Nordstrom and Lieutenant
James Bee would rendezvous with other officers and]
proceed to the cafe´, that Nordstrom and Bee would
enter first to spot and make contact with the defendant,
and that the other officers, Sergeant Keith Ashbey and
Officers William Wolfe and Richard Savino, would enter
immediately thereafter . . . . Nordstrom and Bee
were both dressed in plainclothes, but were wearing
blue shirts with the words ‘police’ and ‘narcotics task
force’ emblazoned in bright yellow letters on the front
and back, respectively. The other officers were all wear-
ing their regular police uniforms.
‘‘After arriving at the cafe´, the team entered as
planned . . . . As they entered, Nordstrom, who was
carrying her unholstered service pistol to her side . . .
quickly spotted the defendant standing at the bar to
their immediate left, in the company of two women.
When the officers first saw him, the defendant was
leaning against the bar with the left side of his body.
As Nordstrom and Bee turned to move in his direction,
however, he immediately turned to face them while
pulling a small handgun from his right front pants
pocket. He raised the gun and pointed it at Nordstrom’s
midsection. Upon seeing the defendant pull his gun,
Nordstrom loudly shouted, ‘gun,’ then, ‘he’s got a gun,’
to warn her fellow officers, while raising her own gun
to point it at him. Bee, who saw the defendant holding
something that could have been a gun, also shouted,
‘gun,’ to alert his fellow officers as Nordstrom ordered
the defendant to drop his gun, which he did not do.
Instead, the defendant and Nordstrom had a brief stand-
off, with their guns pointed at each other but neither
attempting to shoot, until the defendant turned away
toward the bar, with his gun and both of his hands in
front of him and his back to Nordstrom and Bee.
‘‘Wolfe and Savino . . . [immediately rushed toward
the defendant and began] struggling with [him] near
the bar in an effort to secure his arms from behind.
When the defendant continued to struggle with Wolfe
and Savino, even after the three of them fell to the floor,
Ashbey . . . [pointed his .22 caliber patrol rifle at the
defendant and] ordered [him] to show his hands or be
shot. Upon making eye contact with Ashbey and seeing
the patrol rifle aimed at his back, the defendant finally
stopped struggling and submitted to being hand-
cuffed. . . .
‘‘[A]fter the defendant was subdued, a search of his
clothing revealed a small silver handgun in his right
front pants pocket and a cigarette box containing sus-
pected drugs in his left front pants pocket. The handgun
was a .22 caliber Jennings semiautomatic pistol with
five rounds in the magazine but none in the chamber.
. . .
‘‘Upon leaving the cafe´, the defendant, who had once
played youth basketball on a team that Nordstrom
coached, told her [‘I would never point a gun at you.’]2
. . . Thereafter, Savino transported the defendant to
the police station for processing. . . .
‘‘The state also presented testimony from James Ste-
phenson, a state firearms tool mark examiner. Stephen-
son testified that [the gun was operable and that] . . .
to prepare [it] for firing, a would-be shooter would have
to pull back the slide and release it, causing a cartridge
to be transferred from the magazine in the handle of
the gun to the chamber. Although this action, known
as ‘racking the gun,’ could be performed in a matter of
seconds, it required deliberate action. If the gun was
not racked, and thus had no bullet in the chamber, it
could not be fired.’’ (Footnotes altered.) State v. Carter,
141 Conn. App. 377, 379–83, 61 A.3d 1103 (2013).
The record reveals the following additional facts and
procedural history. The defendant was subsequently
charged with several offenses, including attempt to
commit assault in the first degree. See footnote 1 of
this opinion. At trial, the defendant took the stand in
his own defense. He admitted that he was in possession
of a gun, but claimed that it had been given to him
by Mumford earlier that evening and that he had not
displayed it. He contended that the officers had mis-
taken a silver cell phone that had been in his hand for
a gun.
During presentation of the state’s case, it elicited
evidence confirming that no cell phone had been recov-
ered from the defendant at the scene. In addition, the
state underscored the obviousness of the officers’ status
by both eliciting testimony as to the manner in which
Nordstrom and Bee had been dressed and entering as
full exhibits photographs of their shirts, which showed
the word ‘‘POLICE’’ emblazoned on the front in large,
bright yellow letters on a dark blue background. In
closing argument, the state asserted: ‘‘What does the
defendant do when he knows that he is now going to
be confronted by the police? He pulls a handgun, a
handgun that is loaded with five bullets . . . in the
magazine. He points the weapon at . . . Nordstrom.’’
The jury found the defendant guilty on all counts.
See footnote 1 of this opinion. The trial court thereafter
rendered judgment in accordance with the verdict, and
imposed a total effective sentence of twenty years
imprisonment, execution suspended after fourteen
years, and five years of probation.
The defendant appealed to the Appellate Court,
claiming, among other things, that there was insufficient
evidence for the jury to find beyond a reasonable doubt
that he intended to inflict serious physical injury. State
v. Carter, supra, 141 Conn. App. 384. The Appellate
Court rejected the defendant’s claims, and affirmed the
judgment of conviction. Id., 402. Specifically, the Appel-
late Court concluded that, under the totality of the cir-
cumstances, there was sufficient evidence from which
the jury could have found intent. Id., 387–92. In reaching
this conclusion, the Appellate Court hypothesized that,
because of the defendant’s illegal possession of a gun
and drugs, the jury reasonably could have concluded
that he would not have displayed a gun to the police.
Id., 388. The court further opined that the jury reason-
ably could have concluded that the defendant mistook
one of the officers for the ‘‘white dude’’ for whom the
defendant was ‘‘lying in wait,’’ or mistook the officers
for friends of the white dude who had come to aid their
friend. Id., 389.
Thereafter, we granted the defendant’s petition for
certification to appeal, limited to the following issue:
‘‘Did the Appellate Court properly conclude that there
was sufficient evidence to prove that the defendant
intended to cause serious physical injury as required
to sustain a conviction for [attempt to commit] assault
in the first degree . . . ?’’ State v. Carter, 308 Conn.
943, 66 A.3d 886 (2013). The defendant claims that the
evidence was not sufficient because the mere act of
pointing a gun at another person is ‘‘too equivocal to
permit a rational fact finder to find beyond a reasonable
doubt that the defendant intended to cause [a person]
. . . serious physical injury.’’ The defendant further
claims that, to remedy this deficiency, the Appellate
Court improperly relied on a mistaken identity/trans-
ferred intent theory that directly conflicts with the the-
ory that the state advanced at trial, in violation of the
theory of the case principle.
In response, the state contends that there was ample
evidence other than the mere pointing of the gun to
prove that the defendant had the requisite intent. The
state further argues that the theory of the case principle
does not apply to appellate review of the sufficiency
of the evidence, but that, even if it does, there is nothing
inconsistent between its theory of the case and the
Appellate Court’s ruling. We conclude that there is suffi-
cient evidence under the theory that the state pursued
at trial to sustain the defendant’s conviction for attempt
to commit assault.
We begin with the general principles that guide our
review. ‘‘In reviewing the sufficiency of the evidence
to support a criminal conviction we apply a two-part
test. First, we construe the evidence in the light most
favorable to sustaining the verdict. Second, we deter-
mine whether upon the facts so construed and the infer-
ences reasonably drawn therefrom the [finder of fact]
reasonably could have concluded that the cumulative
force of the evidence established guilt beyond a reason-
able doubt.’’ (Internal quotation marks omitted.) State
v. Ledbetter, 275 Conn. 534, 542, 881 A.2d 290 (2005),
cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed.
2d 537 (2006).
We ‘‘assume that the fact finder is free to consider
all of the evidence adduced at trial in evaluating the
defendant’s culpability, and presumably does so,
regardless of whether the evidence is relied on by the
attorneys.’’ State v. Robert H., 273 Conn. 56, 81–82, 866
A.2d 1255 (2005). When the state advances a specific
theory of the case at trial, however, sufficiency of the
evidence principles ‘‘cannot be applied in a vacuum.
Rather, they must be considered in conjunction with
an equally important doctrine, namely, that the state
cannot change the theory of the case on appeal. See,
e.g., Dunn v. United States, 442 U.S. 100, 105–107, 99
S. Ct. 2190, 60 L. Ed. 2d 743 (1979); State v. Torres, 47
Conn. App. 205, 218, 703 A.2d 1164 (1997).
‘‘The ‘theory of the case’ doctrine is rooted in princi-
ples of due process of law. . . . In Dunn, the United
States Supreme Court explained: ‘To uphold a convic-
tion on a charge that was neither alleged in an indict-
ment nor presented to a jury at trial offends the most
basic notions of due process. Few constitutional princi-
ples are more firmly established than a defendant’s right
to be heard on the specific charges of which he is
accused.’ . . . ‘[A]ppellate courts are not free to revise
the basis on which a defendant is convicted simply
because the same result would likely obtain on retrial.’ ’’
(Citations omitted.) State v. Robert H., supra, 273
Conn. 82–83.
‘‘[I]n order for any appellate theory to withstand scru-
tiny 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 cogni-
zable sense.’’ (Internal quotation marks omitted.) Id.,
83. Thus, in conducting our analysis in the present case,
we must analyze ‘‘the evidence adduced at trial to deter-
mine whether, when considered in light of the state’s
theory of guilt at trial, the state presented sufficient
evidence . . . .’’ State v. Fourtin, 307 Conn. 186, 211,
52 A.3d 674 (2012).
We note at the outset that, contrary to the state’s
contention in its brief, the theory of the case principle
binds not only the state, but appellate courts as well.3
See Dunn v. United States, supra, 442 U.S. 107. It
appears that the Appellate Court’s speculative state-
ments regarding the potential target of the defendant’s
intent ran afoul of this rule.
Although neither the substitute information nor the
court’s instructions to the jury identified the target of
the attempt to commit assault charge, the state’s theory
at trial clearly identified Nordstrom as the person at
whom the defendant’s intent was directed. Cf. State v.
Fourtin, supra, 307 Conn. 208–10 (discerning state’s
theory based on its actions at trial, not information or
court’s instructions). Both testimonial and documen-
tary evidence underscored the fact that Nordstrom’s
shirt plainly and obviously identified her as a police
officer. The state’s closing argument conclusively dem-
onstrates that its theory of the case was that the defen-
dant intended to draw his gun on and shoot Nordstrom,
even if he may not have recognized her initially.4 The
state never elicited evidence or argued in support of a
theory of mistaken identity or transferred intent.
Although the defendant’s statement about shooting the
‘‘white dude’’ was admitted without any limiting instruc-
tion, the state told the trial court that it was being used
merely to establish the basis for the officers’ actions.
Nonetheless, although we question why the Appellate
Court found it necessary to create a narrative in direct
conflict with the one advanced in the state’s closing
argument, we need not determine whether its rationale
violated the theory of the case principle. For the reasons
that follow, we conclude that the evidence is sufficient
to demonstrate the defendant’s intent under the theory
that the state argued to the jury.
In order to sustain a conviction for attempt to commit
assault in the first degree, the state must have presented
evidence from which the jury reasonably could have
found beyond a reasonable doubt that the defendant did
something ‘‘constituting a substantial step in a course of
conduct planned to culminate in his commission of
the crime’’; General Statutes § 53a-49 (a) (2); namely,
assault with the ‘‘intent to cause serious physical injury
to another person . . . .’’ General Statutes § 53a-59 (a)
(1). Regarding the substantial step requirement, we
have held that ‘‘[a] substantial step must be something
more than mere preparation, yet may be less than the
last act necessary before the actual commission of the
substantive crime . . . . In order for behavior to be
punishable as an attempt, it need not be incompatible
with innocence, yet it must be necessary to the consum-
mation of the crime and be of such a nature that a
reasonable observer, viewing it in context could con-
clude beyond a reasonable doubt that it was undertaken
in accordance with a design to violate the statute.’’
(Internal quotation marks omitted.) State v. Sorabella,
277 Conn. 155, 180–81, 891 A.2d 897, cert. denied, 549
U.S. 821, 127 S. Ct. 131, 166 L. Ed. 2d 36 (2006).
Regarding the intent requirement, an individual acts
intentionally ‘‘with respect to a result or to conduct . . .
when his conscious objective is to cause such result or
to engage in such conduct . . . .’’ General Statutes
§ 53a-3 (11). ‘‘Intent may be, and usually is, inferred
from [a] defendant’s verbal or physical conduct [as well
as] the surrounding circumstances.’’ (Internal quotation
marks omitted.) State v. Ortiz, 312 Conn. 551, 565, 93
A.3d 1128 (2014). Nonetheless, ‘‘[t]here is no distinction
between circumstantial and direct evidence so far as
probative force is concerned.’’ State v. Osman, 218
Conn. 432, 436, 589 A.2d 1227 (1991). Moreover, ‘‘[i]t is
not one fact, but the cumulative impact of a multitude
of facts which establishes guilt in a case involving sub-
stantial circumstantial evidence.’’ (Internal quotation
marks omitted.) State v. Ledbetter, supra, 275 Conn.
543. Finally, we underscore that ‘‘intent [can] be formed
instantaneously and [does] not require any specific
period of time for thought or ‘premeditation’ for its
formation.’’ State v. Cooper, 227 Conn. 417, 444, 630
A.2d 1043 (1993). ‘‘Intent is a question of fact, the deter-
mination of which should stand unless the conclusion
drawn by the trier is an unreasonable one.’’ (Internal
quotation marks omitted.) State v. Bennett, 307 Conn.
758, 766, 59 A.3d 221 (2013).
At the outset, we note that although Connecticut
appellate courts have not directly addressed the ques-
tion of whether the mere act of pointing a gun at some-
one is sufficient to establish intent to inflict serious
physical injury beyond a reasonable doubt, there is sup-
port from other jurisdictions that this single act is insuf-
ficient. See, e.g., State v. Brooks, 44 Ohio St. 3d 185,
192, 542 N.E.2d 636 (1989) (‘‘[t]he act of pointing a
deadly weapon at another, without additional evidence
regarding the actor’s intention, is insufficient evidence
to convict a defendant [of a crime that requires the
actor to intend to inflict serious physical harm]’’); Com-
monwealth v. Savage, 275 Pa. Super. 96, 103, 418 A.2d
629 (1980) (‘‘‘[p]ointing a gun . . . in . . . a threat to
cause serious bodily injury’ . . . could not . . . con-
stitute an aggravated assault’’ [citations omitted]). Con-
trary to the defendant’s contention, however, the
present case does not require us to address that ques-
tion because here there was evidence beyond the mere
act of pointing a gun by which the intent element could
have been reasonably established.
The following evidence demonstrated the defendant’s
intent to inflict serious physical injury on Nordstrom.
After Nordstrom walked toward the defendant, he
turned toward her, raised a gun, and aimed it directly
at her midsection. By aiming at Nordstrom’s midsection,
the defendant targeted an area of her body that would
be likely to inflict ‘‘physical injury which creates a sub-
stantial risk of death, or which causes serious disfigure-
ment, serious impairment of health or serious loss or
impairment of the function of any bodily organ . . . .’’
General Statutes § 53a-3 (4). After aiming the gun, the
defendant positioned himself in a shooting stance and
put his finger on the trigger guard. Putting one’s finger
on the trigger is one of the last steps that an individual
must take before firing a gun. The defendant then main-
tained that position for approximately five seconds
despite repeated orders to drop the gun. During this
standoff, Nordstrom was so sure that the defendant
was going to shoot her, a conclusion that she could
have formed not only based on training and experience
but also her personal knowledge of the defendant, that
she ‘‘had taken off all the slack on the safety mecha-
nism’’ from her own gun. When the standoff finally
ended and officers closed in on the defendant, he
attempted to maintain possession of his gun rather than
acquiesce. In light of the defendant’s earlier actions, it
would not have been unreasonable for the jury to infer
that he was attempting to maintain possession of the
gun to use it. Even if, however, the defendant aban-
doned his intention to shoot Nordstrom when he turned
away from her, that change would not negate his earlier
intention, and the brevity of that intent is irrelevant.
See State v. Cooper, supra, 227 Conn. 444.
Additionally, the events that preceded the actual con-
frontation contributed to the sufficiency of the evidence
in the present case. See, e.g., State v. Gary, 273 Conn.
393, 407, 869 A.2d 1236 (2005) (intent may be inferred
from ‘‘the events leading to and immediately following
the death’’ [internal quotation marks omitted]); State v.
Commerford, 30 Conn. App. 26, 34, 618 A.2d 574 (intent
to commit assault can be inferred from ‘‘events leading
up to and immediately following the incident’’ [internal
quotation marks omitted]), cert. denied, 225 Conn. 903,
621 A.2d 285 (1993). Approximately one hour before
the defendant’s standoff with Nordstrom, the defendant
had expressed an intention and willingness to use the
gun by threatening to shoot a particular ‘‘white dude.’’
We have previously held that ‘‘[a]n accused’s own words
. . . constitute particularly compelling, direct evidence
of his intent.’’ State v. Winot, 294 Conn. 753, 768, 988
A.2d 188 (2010). Although the defendant’s statement
was directed at someone who presumably was not a
police officer, his words are probative of his state of
mind. When combined, the evidence of these statements
and the defendant’s actions provided sufficient evi-
dence from which the jury could have found intent to
inflict serious physical injury beyond a reasonable
doubt.
Despite the foregoing facts and authority, the defen-
dant contends that certain evidence and case law com-
pel the conclusion that the evidence was insufficient.
Most of the defendant’s arguments are premised on his
contention that this case merely involves the isolated
act of pointing a gun at someone. As we have already
made clear, we do not agree with that proposition. Nor
do we find his related contentions persuasive.
The mere fact that the defendant did not ultimately
discharge the gun does not preclude a finding of such
intent; indeed, it appears that it was only the show of
overwhelming force that persuaded the defendant to
relinquish that intent. See State v. Osbourne, 138 Conn.
App. 518, 530–31, 53 A.3d 284 (‘‘[t]he defendant’s act
of reaching quickly into his pocket and grabbing a
cocked and loaded gun while struggling with uniformed
police officers who were attempting physically and by
verbal command to subdue him reasonably could have
been found not only to have been the start of a line of
conduct leading naturally to securing the gun and using
it to shoot and cause serious physical injury to each
of the three officers, but also to have been strongly
corroborative of his alleged purpose to engage in such
conduct and cause such results, and thus to commit
assault in the first degree against each officer’’), cert.
denied, 307 Conn. 937, 56 A.3d 716 (2012); Godsey v.
State, 719 S.W.2d 578, 580, 583 (Tex. Crim. App. 1986)
(intent to kill established when defendant deliberately
pulled gun out after seeing police officers, ignored offi-
cers’ orders to drop gun, and then pointed gun directly
at officers). Although the actual firing of a gun provides
strong evidence of intent, the absence of such evidence
does not automatically render the evidence insufficient.
See, e.g., State v. Osbourne, supra, 531 (finding suffi-
cient evidence of intent to inflict serious physical injury
when defendant, who was resisting arrest, partially
removed gun from his pocket). As we have previously
noted, ‘‘[i]t is not one fact, but the cumulative impact
of a multitude of facts which establishes guilt . . . .’’
State v. Ledbetter, supra, 275 Conn. 543.
The defendant also argues that there was insufficient
evidence of intent because he never attempted to rack
the gun, and thus the gun would not have fired even if
he had pulled the trigger. In the first place, the facts of
this case do not affirmatively establish that the defen-
dant never tried to rack the gun. The evidence shows
that the defendant turned his back to the officers, such
that the officers’ view of his hands and the gun was
obstructed. The defendant could have realized that the
gun was not racked, turned away to do so without the
officers seeing that the gun had not yet been racked,
and, thus, it is possible that the prompt action of the
officers in seizing the defendant prevented him from
doing so. Moreover, the defendant testified that the gun
found in his possession did not belong to him. If the
jury credited that statement, it would have been entirely
reasonable for it to infer that the defendant did not
know that it was necessary to rack the gun.5 Finally,
whether the gun was racked or not seems to be beyond
the point. The defendant’s claim that he did not rack
the gun, even if true, would only support the proposition
that he did not take the next step to complete the crime
which, of course, is irrelevant to the inquiry whether
he took a prior substantial step to commit the offense.
Because the defendant was charged with attempt to
commit assault, it was only necessary for him to take
a substantial step ‘‘under the circumstances as he
believe[d] them to be . . . .’’ General Statutes § 53a-49
(a) (2).
To the extent that the defendant relies on his self-
serving statement that he ‘‘would never point a gun’’
at Nordstrom, that statement could have been easily
discounted by the jury or merely credited as evidence
that the defendant did not initially realize that Nord-
strom was the officer he confronted. See State v. Ledbet-
ter, supra, 275 Conn. 543 (‘‘[T]he [finder] of fact is not
required to accept as dispositive those inferences that
are consistent with the defendant’s innocence. . . .
[P]roof beyond a reasonable doubt [does not] require
acceptance of every hypothesis of innocence posed by
the defendant . . . .’’ [Internal quotation marks
omitted.]).
Insofar as the defendant relies on certain appellate
decisions in support of his argument, that case law is
inapposite. In State v. Dunn, 26 Conn. App. 114, 124,
598 A.2d 658 (1991), the issue was whether there was
evidence of intent to inflict serious injury, and it is in
that context that the Appellate Court observed:
‘‘Although it would have been permissible to infer that
the defendant did not intend to cause serious injury to
[the victim] from the fact that he did not shoot [the
victim] despite the opportunity and means to do so,
the evidence did not preclude the equally permissible
inference that the defendant intended to cause serious
injury to [the victim] by hitting him in the head with
the gun as many as six times, causing him to fall to the
ground.’’ (Emphasis added.) In State v. Bennett, supra,
307 Conn. 773, we observed that although the ‘‘defen-
dant threatened [the victim’s girlfriend] by placing a
gun to her head, which conveyed an implied threat to
kill her if she did not cooperate, there [was] no evidence
from which we [could] infer that [the defendant]
intended to follow through on that threat.’’ Significantly,
the defendant in Bennett fled the scene after making
that threat without taking any further step to harm the
victim’s girlfriend; id., 762; whereas the defendant in
the present case was thwarted from taking a further
step due to the overwhelming show of force by the
armed officers. Moreover, Bennett and this case involve
fundamentally different questions. In Bennett, we con-
sidered whether the defendant’s act of pointing a gun
at the victim’s girlfriend constituted evidence that the
defendant had the intent to kill the victim, who pre-
viously had been shot by the defendant’s associate.6
Id., 773–74.
In sum, we conclude that there was sufficient evi-
dence from which the jury could have found beyond a
reasonable doubt that the defendant intended to inflict
serious physical injury on another.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
The defendant also was convicted of reckless endangerment in the first
degree in violation of General Statutes § 53a-63 (a), criminal possession of
a pistol in violation of General Statutes (Rev. to 2007) § 53a-217c (a) (1),
carrying a pistol without a permit in violation of General Statutes § 29-35
(a), possession of crack cocaine in violation of General Statutes § 21a-279
(a), possession of marijuana in violation of § 21a-279 (c), criminal violation
of a protective order in violation of General Statutes (Rev. to 2007) § 53a-
223, and threatening in the second degree in violation of General Statutes
§ 53a-62 (a) (2). Those offenses are not at issue in this certified appeal.
2
The Appellate Court opinion appears to have relied on the defendant’s
testimony, in which he claimed that he had said: ‘‘I would never pull a gun
out on you.’’ See State v. Carter, 141 Conn. App. 377, 382, 61 A.3d 1103
(2013). However, Nordstrom and Ashbey testified that the defendant had
said that he would not have pointed a gun at Nordstrom. We adopt the
officers’ versions of the statement because we presume that the jury would
have found them more credible.
3
The theory of the case principle can also be violated if the state estab-
lishes and seeks to convict a defendant on facts that differ from those in
the information. See Dunn v. United States, supra, 442 U.S. 105. Such a
variance can only be achieved by the state’s actions, and obviously does
not apply to appellate courts.
4
The fact that, shortly after his arrest, the defendant threatened to inflict
physical injury on one of the arresting officers if he later saw that officer—
an incident that led to the defendant’s conviction of threatening in the
second degree—also casts doubt on the Appellate Court’s hypothesis that
the defendant would not have intentionally pulled his gun on a police officer.
5
We note that the defendant merely needed to have possession, not owner-
ship, of the gun in order to be convicted of the other firearms related
offenses. See footnote 1 of this opinion.
6
Just as this case law is inapposite, so too is the defendant’s contention
that a finding of intent in the present case is inconsistent with Connecticut’s
statutory scheme. Specifically, the defendant points to the fact that Connecti-
cut criminalizes the act of pointing a gun at someone under less serious
crimes; see, e.g., State v. Wayne, 60 Conn. App. 761, 766–67, 760 A.2d 1265
(2000) (evidence not insufficient to support conviction for threatening, reck-
less endangerment in first degree, and breach of peace after defendant
pointed loaded gun at victim’s head); and that our assault statute implicitly
recognizes that a person may not intend to inflict serious physical injury
on someone even when they shoot them. See General Statutes § 53a-59 (a)
(5) (stating that person is guilty of assault in first degree if ‘‘he causes
[physical] injury to such person or to a third person by means of the
discharge of a firearm’’ [emphasis added]). Our reasoning as to the evidence
in this case renders unnecessary any further response to these contentions.