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STATE OF CONNECTICUT v. MORLO M.*
(AC 41474)
Bright, C. J., and Alvord and Norcott, Js.
Syllabus
Convicted of the crimes of assault in the first degree, risk of injury to a
child and unlawful restraint in the first degree in connection with the
beating of the victim, who was the mother of his four minor children,
the defendant appealed to this court, claiming that the evidence was
insufficient to support his conviction. The defendant had dragged the
victim by her hair down stairs into the basement of their home, where
he kicked, punched and choked her on three consecutive nights while
the children, who ranged in age from fifteen months to thirteen years,
were alone on the upper floors of the home. After the defendant left
the house on the third day, the victim was brought to a medical center,
where staff members observed bruising on her scalp, face, chest, back,
legs, arms and left side. The victim also was determined to have had a
subconjunctival hemorrhage in her left eye, a broken rib and fluid in
her pelvic region. Held:
1. The defendant could not prevail on his claim that the state failed to prove
that he caused the victim serious physical injury and, thus, that the
evidence was insufficient to support his conviction of assault in the first
degree: the jury reasonably could have found that the defendant caused
the victim to suffer either serious disfigurement or a serious loss or
impairment of the function of any bodily organ and, thus, a serious
physical injury, as the victim and C, a medical center staff member,
testified consistently with one another as to the extensive bruising that
covered much of the victim’s body, the noticeable injuries to her head
and face, and that the victim had lost consciousness during one of the
defendant’s beatings of her, which the jury was free to credit or to
disregard; moreover, C testified that the bruising was literally every-
where on the body of the victim, who had a subconjunctival hemorrhage
in her left eye, and a police officer who took the victim’s statement at
the medical center saw that she was missing hair and had a swollen
face and a bloodshot eye.
2. The defendant’s claim that the evidence was insufficient to support his
conviction of risk of injury to a child was unavailing; the jury reasonably
could have inferred that the defendant put the children at risk of impair-
ment of their health or morals, as the children had no access to parental
care during the three nights when he beat the victim in the basement
and did not permit her to leave the basement until the morning, the
jury was free to credit a psychologist’s testimony that the children may
have been traumatized as a result of having observed the extensive
physical injuries to the victim, and the state did not have to prove actual
harm to the children, as the defendant was charged under the portion
of the risk of injury statute (§ 53-21 (a) (1)) that required that he have
the general intent to perform an act that created a situation that put
the children’s health and morals at risk of impairment.
3. The evidence was sufficient to support the defendant’s conviction of
unlawful restraint in the first degree, as the defendant’s intent to unlaw-
fully restrain the victim was independent from his intent to assault her:
the jury reasonably could have found that the defendant evinced an
intent to restrict the victim’s liberty to move freely within the house
when he seized her by her hair and dragged her into the basement and
separately could have reasonably found that he evinced an extreme
indifference to human life on the basis of his independent acts of kicking,
punching and choking the victim in the basement for three consecutive
nights; moreover, the jury reasonably could have found that the defen-
dant’s act of dragging the victim down a full flight of stairs by her hair
subjected her to a substantial risk of injury, as it presented a real or
considerable opportunity for her to have suffered an impairment to her
physical condition or to have suffered pain.
4. The trial court did not abuse its discretion in admitting prior misconduct
evidence pertaining to two other incidents in which the defendant was
alleged to have assaulted the victim, as that evidence was relevant to
the charges of unlawful restraint and tampering with a witness, and its
probative value was not outweighed by its prejudicial impact: the prior
misconduct evidence was relevant to and probative of the defendant’s
intent to restrain the victim and to tamper with a statement she had
given to the police, as both unlawful restraint in the first degree and
tampering with a witness are specific intent crimes, and the prior miscon-
duct evidence was not likely to arouse the jurors’ emotions and sympathy
toward the victim, and was not distracting in terms of its severity and the
amount of time and focus that it involved; moreover, the two incidents of
prior misconduct did not involve gruesome details, facts or photographs,
whereas the crimes of which the defendant was convicted involved
conduct and injuries that were substantially more gruesome in nature,
and the court provided a limiting instruction to the jury on the first day
of evidence, coincident with the admission of the prior misconduct
evidence, which restricted the parameters of the state’s use of the evi-
dence to limit its prejudicial effect.
Considered April 1—officially released August 10, 2021
Procedural History
Two substitute informations charging the defendant,
in the first case, with five counts of the crime of risk
of injury to a child and with one count of the crime of
tampering with a witness, and, in the second case, with
the crimes of assault in the first degree, unlawful
restraint in the first degree and strangulation in the first
degree, brought to the Superior Court in the judicial
district of Fairfield, where the court, Kavanewsky, J.,
granted the state’s motion for joinder; thereafter, the
matter was tried to the jury before Pavia, J.; subse-
quently, the court denied the defendant’s motion to
preclude certain evidence; verdicts and judgments of
guilty of five counts of risk of injury to a child, tampering
with a witness, assault in the first degree and unlawful
restraint in the first degree, from which the defendant
appealed to this court. Affirmed.
Judie Marshall, assigned counsel, with whom, on the
brief, was David J. Reich, assigned counsel, for the
appellant (defendant).
Linda F. Currie-Zeffiro, assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Colleen Zingaro, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Morlo M., appeals from
the judgments of conviction, rendered following a jury
trial, of one count of assault in the first degree in viola-
tion of General Statutes § 53a-59 (a) (3), five counts of
risk of injury to a child in violation of General Statutes
§ 53-21 (a) (1), one count of unlawful restraint in the
first degree in violation of General Statutes § 53a-95
(a), and one count of tampering with a witness in viola-
tion of General Statutes § 53a-151.1 On appeal, the
defendant claims that the evidence was insufficient to
support his conviction of (1) assault in the first degree,
(2) risk of injury to a child (3) and unlawful restraint
in the first degree, and that (4) the trial court abused
its discretion in admitting evidence of his prior miscon-
duct.2 We affirm the judgments of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to this
appeal. In the early morning hours of November 28,
2016, the victim, who is the mother of the defendant’s
four minor children, called the defendant from a gas
station to ask that he pick her up and drive her back
to the house where they both resided. The victim had
been out drinking with someone other than the defen-
dant. Soon after the victim and the defendant arrived
at the house, the defendant seized the victim by her
hair, dragged her down to the basement of the house,
and proceeded to beat her. The defendant kicked,
punched, and choked the victim. During this time, the
victim’s seven children were asleep on upper floors of
the house3 and, thus, did not witness the victim being
dragged down into the basement by the defendant. The
victim could not leave the basement until the defendant
ceased beating her. Subsequently, in the morning of
November 28, the victim and the defendant emerged
from the basement and sat on their living room couch.
The victim remained on the couch throughout the day-
time hours of November 28 because of the injuries she
sustained from the defendant’s beating of her. While
the victim remained on the couch, her older children
were at school, and her sixteen year old nephew
assisted her by caring for her young children. Following
the older children’s return from school, all of the chil-
dren were fed and went upstairs.
At nighttime on November 28, 2016, the defendant
commanded the victim to return down into the base-
ment. The victim obeyed the defendant’s command
because she was already hurt and did not want to defy
him. The children were upstairs and in their beds when
the victim and the defendant went down into the base-
ment. Once they were in the basement, the victim again
was beaten by the defendant. The defendant hit and
choked the victim, and ripped out parts of her hair.
In the early morning of November 29, 2016, the victim
emerged from the basement after a second night of
being beaten. The victim’s children were still asleep
when the victim came up from the basement. The victim
spent that day as she spent the day before, resting on
the couch. Although she did not know the extent of
her injuries, the victim was in pain and thought that
she might have broken ribs. Following the return of the
older children from school, all of the children were fed
and then went upstairs. The victim again was beaten
on November 29 for a third night in a row. On one of
the three nights during which she was beaten, the victim
lost consciousness. Following the beatings, the victim’s
side and head in particular were hurting her.
When the defendant left the house on the third day,
the victim contacted a friend, F, who picked up the
victim, her seven children, and her nephew, and took
them all to a hotel. The victim left the house in a rush,
fearing that if she remained there any longer, she would
die. The victim’s injuries were visible and seen by her
children. While at the hotel, the victim, a veteran of the
armed forces, called her peer counselor at the United
States Veterans Administration Hospital. The victim
informed her counselor that she was in pain, had a
limited amount of money, and needed to travel to her
foster mother in Georgia. The victim’s counselor first
encouraged the victim to seek treatment at the Veterans
Affairs Medical Center in West Haven (medical center).
On December 2, 2016, after encouragement from her
counselor and because she remained in pain, wanted
to know the extent of her injuries, and desired treat-
ment, the victim went to the medical center with her
children and nephew. At the medical center, the victim
had her injuries photographed, vitals measured, and
body imaged. A blood test also was performed. Staff
at the medical center observed that the defendant had
bruising on her scalp, face, chest, back, legs, arms, and
left side. Some of the bruises were more recent than
others. The victim also had a subconjunctival hemor-
rhage in her left eye, parts of her hair torn out, and
tenderness in sections of her body, particularly her left
chest and left abdomen.
The victim told medical center staff that over the last
few days she had been kicked, punched, dragged by
her hair, choked, and that she lost consciousness. Ini-
tially, the victim did not disclose who caused her injur-
ies to medical center staff. Eventually, however, the
victim did tell the staff that the defendant caused her
injuries. The police and the Department of Children and
Families (department) were summoned to the medical
center and, upon their arrival, took sworn, written state-
ments from the victim. Officer Jonathan Simmons, of
the Bridgeport Police Department, who took the vic-
tim’s statement at the medical center, observed the
victim as having parts of her hair missing, a swollen
face, and a bloodshot eye.
The victim was evaluated by Julia Chen, a resident
at the medical center who specialized in vascular and
general surgery. Imaging revealed that one of the vic-
tim’s ribs on her left side was fractured and that there
was indeterminate fluid in her pelvic region. On the
basis of the location of the victim’s bruising and the
fluid in her pelvic region, Chen and other staff at the
medical center were concerned that the victim might
have had an injury to her spleen. There also was concern
that the victim might be bleeding internally. It was rec-
ommended to the victim that she be evaluated at Yale-
New Haven Hospital (hospital) because the hospital
had a trauma center and the medical center did not.
Although Chen was not concerned that the victim faced
an immediate risk of death, she recommended further
evaluation because she was concerned that the victim
had very serious internal injuries. Moreover, although
Chen could not conclusively determine that the victim’s
spleen was injured, her concern prompted a recommen-
dation that the victim pursue further evaluation because
‘‘a splenic hemorrhage could be very bad.’’
Contrary to the medical advice given to her, the victim
did not seek further evaluation at the hospital and dis-
charged herself from the medical center. The victim
did not seek further evaluation at the hospital because
she could not take her children with her. Following her
discharge from the medical center, the victim received
assistance from a battered women’s shelter that enabled
her, her children, and her nephew to stay at a hotel.
On December 5, 2016, they all checked out of the hotel
and rode a bus to the home of the victim’s foster mother
in Georgia.
While in Georgia, F contacted the victim and urged
her to speak with the defendant. F told the victim that
the defendant wanted to speak with their twin children
because it was their birthday. The victim spoke with
the defendant several times while she was in Georgia.
During one of their conversations, the victim told the
defendant that she had made a statement to the police
that identified him as the cause of her injuries. The
defendant told the victim that she had to return to
Connecticut to ‘‘fix’’ her statement so that he would
not get into any trouble.
Following this conversation, the defendant drove to
Georgia. After arriving at the home of the victim’s foster
mother in Georgia, the defendant picked up the victim
and five children and proceeded to drive back to Con-
necticut.4 They arrived in Connecticut on December 20,
2016, and stayed at the apartment of the defendant’s
sister. On December 21, the defendant drove the victim
to the police station, where she changed her statement
to the police at the defendant’s behest. The victim
changed her statement to allege that another male was
the cause of her injuries. The victim and the defendant
then returned to the apartment.
Thereafter, on December 21, 2016, police officers
travelled to the apartment. The police officers were
met by an adult male and female, who provided no
information regarding the whereabouts of the defen-
dant, the victim, or the victim’s children. As the police
officers were leaving, they observed a child in the living
room area of the apartment through a window. At
approximately 4:30 p.m. on December 22, the police
officers returned to the apartment with a warrant for
the defendant’s arrest. The victim, who was outside as
the police arrived, ran into the apartment, gathered her
children, and brought them down into the basement.
The police officers located the defendant outside the
apartment, in the process of moving a television, and
executed the arrest warrant. The police officers then
entered the house and found the victim and her children
in the basement.
Subsequently, the defendant was charged in two con-
solidated informations with assault in the first degree,
unlawful restraint in the first degree, strangulation in
the first degree, five counts of risk of injury to a child,
and tampering with a witness. The jury found the defen-
dant guilty of all counts with the exception of strangula-
tion in the first degree, of which he was found not
guilty. The defendant received a total effective sentence
of fifteen years of incarceration, execution suspended
after ten years, followed by five years of probation.5
This appeal followed. Additional facts will be set forth
as necessary.
I
The defendant first claims that there was insufficient
evidence to convict him of assault in the first degree
because the state failed to prove that he caused serious
physical injury to the victim. We disagree.
At the outset, we set forth the following established
review principles relevant to each of the defendant’s
insufficiency of the evidence claims raised in this
appeal. ‘‘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 [jury] reasonably
could have concluded that the cumulative force of the
evidence established guilt beyond a reasonable
doubt. . . .
‘‘We also note that the jury must find every element
proven beyond a reasonable doubt in order to find the
defendant guilty of the charged offense, [but] each of
the basic and inferred facts underlying those conclu-
sions need not be proved beyond a reasonable doubt.
. . . If it is reasonable and logical for the jury to con-
clude that a basic fact or an inferred fact is true, the
jury is permitted to consider the fact proven and may
consider it in combination with other proven facts in
determining whether the cumulative effect of all the
evidence proves the defendant guilty of all the elements
of the crime charged beyond a reasonable doubt. . . .
‘‘Additionally, [a]s we have often noted, proof beyond
a reasonable doubt does not mean proof beyond all
possible doubt . . . nor does proof beyond a reason-
able doubt require acceptance of every hypothesis of
innocence posed by the defendant that, had it been
found credible by the [jury], would have resulted in an
acquittal. . . . On appeal, we do not ask whether there
is a reasonable view of the evidence that would support
a reasonable hypothesis of innocence. We ask, instead,
whether there is reasonable view of the evidence that
supports the [jury’s] verdict of guilty.’’ (Internal quota-
tion marks omitted.) State v. Taupier, 330 Conn. 149,
186–87, 193 A.3d 1 (2018), cert. denied, U.S. ,
139 S. Ct. 1188, 203 L. Ed. 2d 202 (2019).
Section 53a-59 (a) provides in relevant part that ‘‘[a]
person is guilty of assault in the first degree when . . .
(3) under circumstances evincing an extreme indiffer-
ence 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 per-
son . . . .’’6 General Statutes § 53a-3 (4) defines ‘‘seri-
ous physical injury’’ as ‘‘physical injury which creates
a substantial risk of death, or which causes serious
disfigurement, serious impairment of health or serious
loss or impairment of the function of any bodily organ
. . . .’’ ‘‘Whether an injury constitutes a ‘serious physi-
cal injury’ . . . is a fact intensive inquiry and, there-
fore, is a question for the jury to determine.’’ State v.
Irizarry, 190 Conn. App. 40, 45, 209 A.3d 679, cert.
denied, 333 Conn. 913, 215 A.3d 1210 (2019). ‘‘[Despite]
the difficulty of drawing a precise line as to where
physical injury leaves off and serious physical injury
begins . . . we remain mindful that [w]e do not sit as
a [seventh] juror who may cast a vote against the verdict
based upon our feeling that some doubt of guilt is shown
by the cold printed record . . . and that we must con-
strue the evidence in the light most favorable to sus-
taining the verdict.’’ (Internal quotation marks omitted.)
Id., 45 n.6.
We conclude that there was sufficient evidence to
support the jury’s finding that the defendant caused
serious physical injury to the victim. The jury reason-
ably could have concluded that the defendant caused
the victim either serious disfigurement or serious loss
or impairment of the function of any bodily organ.
‘‘ ‘Serious disfigurement’ is an impairment of or injury
to the beauty, symmetry or appearance of a person of a
magnitude that substantially detracts from the person’s
appearance from the perspective of an objective
observer. In assessing whether an impairment or injury
constitutes serious disfigurement, factors that may be
considered include the duration of the disfigurement,
as well as its location, size, and overall appearance.
Serious disfigurement does not necessarily have to be
permanent or in a location that is readily visible to
others.’’ State v. Petion, 332 Conn. 472, 491, 211 A.3d
991 (2019).
In State v. Barretta, 82 Conn. App. 684, 846 A.2d 946,
cert. denied, 270 Conn. 905, 853 A.2d 522 (2004), the
following evidence was presented concerning the vic-
tim’s injuries: ‘‘[T]he victim sustained numerous severe
bruises, abrasions and contusions across the trunk of
his body. He also had an imprint and welts on his back
that caused his skin to be a varied color of purple and
blue, with additional visible injuries to his upper left
shoulder and neckline. Further abrasions were visible
on his collarbone, and there were bruises on his breast-
bone. Additionally, the medical testimony, given by an
attending physician’s assistant, described extensive and
severe bruising that covered more of the victim’s body
than the photographs reflected and caused the victim
to be tender to pressure across his back and left side.’’
Id., 690. This court noted that ‘‘the term ‘serious physical
injury’ does not require that the injury be permanent,’’
‘‘a victim’s complete recovery is of no consequence,’’
and ‘‘the fact that the skin was not penetrated [is not]
dispositive.’’ Id., 689–90. On the basis of the evidence
in the Barretta record, this court could not conclude
that the jury unreasonably found that the victim suf-
fered serious physical injury, namely, serious disfigure-
ment. Id., 690.
In this case, the victim and Chen testified consistently
with one another as to the extensive bruising that cov-
ered the victim’s body. The victim’s scalp, face, chest,
back, legs, arms, and left side were all bruised. Chen
testified that the victim’s bruising was ‘‘literally every-
where . . . .’’ Moreover, the victim had a subconjuncti-
val hemorrhage in her left eye, had portions of her hair
torn out, and experienced tenderness in various parts
of her body. Simmons corroborated the visibility of the
victim’s injuries, noting that when he met with her at
the medical center, he observed her as having missing
hair, a swollen face, and a bloodshot eye. In addition,
photographs of the victim’s injuries were admitted into
evidence for the jury to view during its deliberations.
Although there was no evidence that the victim’s injur-
ies left permanent scarring, there was ample evidence
as to the visibility of the bruising that covered much
of the victim’s body and of the noticeable injuries to
her head and face. Under the factors set forth in Petion,
and in light of the guidance of Barretta, we cannot
conclude that there was insufficient evidence from
which the jury could find that the victim suffered seri-
ous disfigurement and, thus, serious physical injury.7
We now turn to whether the jury reasonably could
have concluded that the defendant caused the victim
serious loss or impairment of the function of any bodily
organ.8 In State v. Rumore, 28 Conn. App. 402, 613 A.2d
1328, cert. denied, 224 Conn. 906, 615 A.2d 1049 (1992),
this court held that the jury reasonably could have con-
cluded that the victim suffered serious impairment of
the function of any bodily organ on the basis of evidence
that the victim became unconscious after the defendant
grabbed her by her ankles, causing her to fall to the
ground. Id., 405, 415. More specifically, the court stated
that § 53a-3 (4) ‘‘does not require that the impairment
of the organ be permanent. The jury could properly
interpret the evidence to prove that the victim’s brain
was not functioning at a cognitive level when she was
unconscious and thus was impaired.’’ Id., 415. In this
case, the victim testified that, during one of the three
nights when she was beaten by the defendant in the
basement, she lost consciousness. The victim’s testi-
mony was corroborated by Chen, who testified that
the victim informed medical center staff that she lost
consciousness at some point during the defendant’s
repeated beating of her. The jury was free to credit or
disregard this testimony.9 See id. (‘‘[i]t is axiomatic that
it is the function of the jury to consider the evidence,
draw reasonable inferences from the facts proven and
to assess the credibility of witnesses’’). On the basis of
this testimony, we conclude that there was sufficient
evidence from which the jury reasonably could have
found that the victim suffered a serious loss or impair-
ment of the function of any bodily organ and, thus, a
serious physical injury.10 See id.
II
The defendant next claims that there was insufficient
evidence to convict him of five counts of risk of injury
to a child. The defendant argues that his conviction of
those counts was predicated on the children having
been found by the police in the basement of the apart-
ment and that he ‘‘did nothing to encourage or orches-
trate the children being placed in the basement.’’
(Emphasis omitted.) The state responds that ‘‘the cumu-
lative force of the evidence established that the defen-
dant’s conduct—beating the children’s mother—led to
a series of situations inimical to the children’s psycho-
logical or mental health.’’ We agree with the state and,
accordingly, reject the defendant’s claim.
Section 53-21 (a) provides in relevant part that ‘‘[a]ny
person who (1) wilfully or unlawfully causes or permits
any child under the age of sixteen years to be placed
in such a situation that the life or limb of such child is
endangered, the health of such child is likely to be
injured or the morals of such child are likely to be
impaired, or does any act likely to impair the health or
morals of any such child . . . shall be guilty of (A) a
class C felony for a violation of subdivision (1) . . . .’’
‘‘The general purpose of § 53-21 is to protect the physi-
cal and psychological well-being of children from the
potentially harmful conduct of adults. . . . Our case
law has interpreted § 53-21 [a] (1) as comprising two
distinct parts and criminalizing two general types of
behavior likely to injure physically or to impair the
morals of a minor under sixteen years of age: (1) deliber-
ate indifference to, acquiescence in, or the creation
of situations inimical to the minor’s moral or physical
welfare . . . and (2) acts directly perpetrated on the
person of the minor and injurious to his moral or physi-
cal well-being. . . . Thus, the first part of § 53-21 [a]
(1) prohibits the creation of situations detrimental to
a child’s welfare, while the second part proscribes inju-
rious acts directly perpetrated on the child. . . .
‘‘Under the situation portion of § 53-21 [a] (1), the
state need not prove actual injury to the child. Instead,
it must prove that the defendant wilfully created a situa-
tion that posed a risk to the child’s health or morals.
. . . The situation portion of § 53-21 [a] (1) encom-
passes the protection of the body as well as the safety
and security of the environment in which the child
exists, and for which the adult is responsible.’’ (Cita-
tions omitted; emphasis in original; internal quotation
marks omitted.) State v. Padua, 273 Conn. 138, 147–48,
869 A.2d 192 (2005). ‘‘Because risk of injury to a child
is a general intent crime, proof of [s]pecific intent is
not a necessary requirement . . . . Rather, the intent
to do some act coupled with a reckless disregard of
the consequences . . . of that act is sufficient to
[establish] a violation of the statute. . . . As a general
intent crime, it is unnecessary for the [defendant to]
be aware that his conduct is likely to impact a child
[under age sixteen].’’ (Citations omitted; internal quota-
tion marks omitted.) State v. James E., 327 Conn. 212,
223, 173 A.3d 380 (2017).
In a substitute information, the state charged the
defendant with five counts of risk of injury to a child
in connection with conduct ‘‘beginning on or about
November 27, 2016 through December 22, 2016,’’ that
‘‘wilfully and unlawfully cause[d] a child under sixteen
(16) years of age . . . to be placed in a situation that
his health and morals were likely to be impaired.’’11
The information thus reflects that the state charged the
defendant under the ‘‘situation’’ portion of § 53-21 (a)
(1). Accordingly, the state did not have to prove actual
harm to the children but, rather, that the defendant had
the general intent to perform an act that created a
situation putting the children’s health and morals at risk
of impairment. We conclude that there was sufficient
evidence from which the jury reasonably could have
found the defendant guilty of five counts of risk of
injury to a child.
On three consecutive nights, the defendant, by forc-
ing the victim down into the basement, beating her, and
not permitting her to leave the basement until morning
when they went up together, rendered the victim inca-
pable of caring for her children, who ranged in age from
fifteen months to thirteen years and were located alone
on the upper floors of their home. In so doing, the
defendant risked the health of the minor children, as
they had no access to parental care during these three
nights. See State v. Branham, 56 Conn. App. 395, 398–
99, 743 A.2d 635 (evidence that defendant left three
young children unattended in apartment for approxi-
mately one hour deemed sufficient for jury to find that
physical well-being of children was put at risk), cert.
denied, 252 Conn. 937, 747 A.2d 3 (2000); State v. George,
37 Conn. App. 388, 389–90, 656 A.2d 232 (1995)
(affirming defendant’s conviction of risk of injury to
child for leaving seventeen month old infant unattended
in car between 8 and 9 p.m.).12
Moreover, the defendant’s beating of the victim left
her with numerous, visible physical injuries that were
observed by the children. At trial, Wendy Levy, a clinical
psychologist, testified that children witnessing a care-
giver with physical injuries caused by abuse can be
traumatized because they could develop a fear that they,
too, will be subjected to abuse. The jury was free to
credit Levy’s testimony and to infer that, because the
children in this case observed the extensive physical
injuries to the victim, their mother and caregiver, they
may have been traumatized. See, e.g., State v. Thomas
W., 115 Conn. App. 467, 475, 974 A.2d 19 (2009), aff’d,
301 Conn. 724, 22 A.3d 1242 (2011); see id., 475–76 (‘‘[I]t
is within the province of the jury to draw reasonable
and logical inferences from the facts proven. . . . The
jury may draw reasonable inferences based on other
inferences drawn from the evidence presented.’’ (Inter-
nal quotation marks omitted.)). Because the defendant’s
beating of the victim established this potential
sequence, the jury reasonably could have inferred that
he put the children at risk of impairment of their health
and morals.
III
The defendant’s next claim is that there was insuffi-
cient evidence to convict him of unlawful restraint in the
first degree because there was no evidence presented
to the jury of (1) a substantial risk of injury to the
victim or (2) an intent to unlawfully restrain that was
independent from his intent to commit assault under
§ 53a-59 (a) (3). We disagree.
Under § 53a-95 (a), ‘‘[a] person is guilty of unlawful
restraint in the first degree when he restrains another
person under circumstances which expose such other
person to a substantial risk of physical injury.’’
‘‘‘Restrain’ means to restrict a person’s movements
intentionally and unlawfully in such a manner as to
interfere substantially with his liberty by moving him
from one place to another, or by confining him either
in the place where the restriction commences or in a
place to which he has been moved, without consent.’’
General Statutes § 53a-91 (1). ‘‘Physical injury’’ is
defined as ‘‘impairment of physical condition or pain
. . . .’’ General Statutes § 53a-3 (3). ‘‘Merriam-Web-
ster’s Collegiate Dictionary (10th Ed. 1999) defines ‘sub-
stantial’ as ‘real’ and ‘considerable,’ and courts often
have defined the word ‘substantial’ in that way.’’ State
v. Dubose, 75 Conn. App. 163, 174–75, 815 A.2d 213,
cert. denied, 263 Conn. 909, 819 A.2d 841 (2003).
‘‘Unlawful restraint in the first degree is a specific
intent crime. . . . A jury cannot find a defendant guilty
of unlawful restraint unless it first [finds] that he . . .
restricted the victim’s movements with the intent to
interfere substantially with her liberty. . . . [A]
restraint is unlawful if, and only if, a defendant’s con-
scious objective in . . . confining the victim is to
achieve that prohibited result, namely, to restrict the
victim’s movements in such a manner as to interfere
substantially with his or her liberty.’’ (Citations omitted;
emphasis omitted; internal quotation marks omitted.)
State v. Jackson, 184 Conn. App. 419, 433–34, 194 A.3d
1251, cert. denied, 330 Conn. 937, 195 A.3d 386 (2018).
‘‘To convict a defendant of unlawful restraint in the
first degree, no actual physical harm must be demon-
strated; the state need only prove that the defendant
exposed the victim to a substantial risk of physical
injury.’’ (Internal quotation marks omitted.) State v. Cot-
ton, 77 Conn. App. 749, 776, 825 A.2d 189, cert. denied,
265 Conn. 911, 831 A.2d 251 (2003).
We reject the defendant’s argument that, under the
circumstances of this case, the intent to commit unlaw-
ful restraint under § 53a-95 (a) was one and the same
with the intent to commit the assault in the first degree
under § 53a-59 (a) (3). Our appellate guidance reflects
that the requisite mental states for each crime are dis-
tinct from one another. Compare State v. Colon, 71
Conn. App. 217, 226, 800 A.2d 1268 (concluding that
§ 53a-59 (a) (3) requires that the defendant ‘‘must be
shown to have had the general intent to engage in
conduct evincing an extreme indifference to human
life’’ (emphasis added)), cert. denied, 261 Conn. 934,
806 A.2d 1067 (2002), with State v. Jackson, supra, 184
Conn. App. 433 (‘‘[a] jury cannot find a defendant guilty
of unlawful restraint unless it first [finds] that he . . .
restricted the victim’s movements with the intent to
interfere substantially with her liberty’’ (emphasis
added; internal quotation marks omitted)). The victim
testified that, in the early morning hours of November
28, 2016, the defendant seized her by her hair and
dragged her down into the basement, where he pro-
ceeded to beat her. On the basis of this evidence, the
jury reasonably could have found that the defendant
evinced an intent to restrict the victim’s liberty, namely,
her liberty to move freely within the house. Separately,
the jury reasonably could have found that the defendant
evinced an extreme indifference to human life on the
basis of his independent acts of kicking, punching, and
choking the victim in the basement for three consecu-
tive nights after dragging her down the stairs.13
We further reject the defendant’s argument that there
was insufficient evidence of a substantial risk of injury
to the victim. On the basis of the evidence presented
at trial, the jury reasonably could have found that the
defendant’s act of dragging the victim down a full flight
of stairs by her hair subjected her to a substantial risk
of injury because it presented a ‘‘real’’ or ‘‘considerable’’
opportunity for her to have suffered an impairment to
her physical condition or to have suffered pain. See
General Statutes § 53a-3 (3); State v. Dubose, supra, 75
Conn. App. 174–75.
IV
The defendant’s final claim is that the trial court
abused its discretion in admitting evidence of his prior
misconduct on the ground that it was relevant and that
its probative value outweighed its prejudicial tenden-
cies. In response, the state maintains that the trial court
acted well within its discretion in admitting the prior
misconduct evidence after finding it relevant and not
unduly prejudicial. We agree with the state.
The following additional facts and procedural history
are relevant to the defendant’s claim. On September
20, 2017, pursuant to § 4-5 of the Connecticut Code of
Evidence, the state filed a notice of misconduct evi-
dence regarding its intent to offer evidence of other
crimes, wrongs or acts involving the defendant and the
victim.14 In its September 20, 2017 notice of misconduct
evidence, the state set forth specific incidents of prior
misconduct involving the defendant and the victim, as
well as its intent to offer additional evidence with
respect to the ‘‘violent and abusive nature of [their]
relationship . . . .’’ The specific incidents of prior mis-
conduct included (1) ‘‘[a]n assault by the defendant,
which caused injuries to [the victim] as well as her
sister . . . [that] included a broken neck in December
of 2011’’ (first assault),15 and (2) ‘‘[a]n assault by the
defendant on [the victim] wherein he hit [her] in the
head with a dog chain, causing [an] injury to [her] head’’
(second assault).16 The state argued that the prior mis-
conduct evidence was admissible because it was ‘‘rele-
vant to each of the offenses charged’’—assault in the
first degree, unlawful restraint in the first degree,17
strangulation in the first degree, five counts of risk of
injury to a child, and tampering with a witness.18
Thereafter, on September 20, 2017, the court heard
arguments on the defendant’s motion in limine. See
footnote 14 of this opinion. In support of his argument
that the prior misconduct evidence is inadmissible,
defense counsel contended that, when the prior miscon-
duct is extrinsic, namely, separate and distinct from
the crime charged, the use of uncharged misconduct
to prove intent is practically indistinguishable from pro-
hibited propensity evidence. Defense counsel further
maintained that the state offered the prior misconduct
evidence as being relevant to its proof of the defendant’s
intent with respect to ‘‘all but one of the charges,’’ and
that the other grounds of relevance posited by the state
do not apply. Given the alleged ‘‘problems with the
probative value’’ and ‘‘the inflammatory nature of this
type of evidence,’’ defense counsel argued, each inci-
dent of prior misconduct should be excluded from evi-
dence because ‘‘the probative value . . . is far out-
weighed by [its] prejudicial tendency . . . .’’
In response to the defendant’s arguments, the prose-
cutor maintained that the prior misconduct evidence
demonstrates the defendant’s ‘‘ongoing abusive rela-
tionship’’ with the victim, which is ‘‘threaded through
all of these particular charges’’ at issue in this case and
tends to demonstrate ‘‘the reasons for [the victim’s]
actions.’’ Specifically, the prosecutor argued that the
prior misconduct evidence is relevant to ‘‘the coercive
nature’’ of the defendant’s relationship with the victim,
‘‘[the victim’s] fear of whether or not she was consenting
to going down in the basement and being restrained by
the defendant,’’ ‘‘whether or not [the victim is going]
to try and recant her statement,’’ as well as other ‘‘signif-
icant and essential elements that the state needs to
prove,’’ such as the ‘‘fear of [the defendant] and [his]
coercive nature that this victim was suffering from’’
and the defendant’s ‘‘malice, motive [and] intent.’’
Citing § 4-5 of the Connecticut Code of Evidence, the
court stated that, ‘‘for evidence of prior misconduct to
fall within the exception of the general rule prohibiting
the admission—so again, I do acknowledge that the
general rule is to prohibit such admission—the evidence
must first be relevant and material to at least one of
the circumstances encompassed by the exceptions.19
And second, the probative value of such evidence must
outweigh its prejudicial effect. And so we have a two
part test that needs to be addressed.’’ (Footnote added.)
Moreover, the court ‘‘agree[d] with the defen[dant] that
certainly evidence of wrongful acts or uncharged mis-
conduct [is] not relevant to try to suggest that because
a defendant has done something in the past that . . .
therefore, he has done [it] in this case as well. And,
therefore, it is necessary to find this nexus in terms of
the intent, identity, malice, motive aspect with regard
to the admission of [the] misconduct.’’
The court first concluded that the prior misconduct
evidence was not relevant to the charges of risk of
injury to a child or assault in the first degree. Next, the
court concluded that the prior misconduct evidence
was relevant to the charges of unlawful restraint in the
first degree, tampering with a witness and strangulation
in the first degree. Specifically, the court stated that,
‘‘the tampering, the unlawful restraint and the strangula-
tion all involve different levels of intent. They . . . are
specific intent crimes. And the intents go to different
things. And those intents, in this court’s opinion, do
make the misconduct [evidence] relevant and proba-
tive.’’ The court further indicated that, with respect to
each of these counts, the state could offer the prior
misconduct evidence for ‘‘multiple purposes from going
to intent, identity, malice, motive, absence of mistake
or accident and certainly knowledge and a system of
criminal activity.’’ Moreover, the court noted that the
prior misconduct evidence ‘‘also corroborates evidence
that’s going to be coming in throughout the course of
the trial.’’
Finally, the court concluded that ‘‘the probative value
[of the prior misconduct evidence] does outweigh any
prejudicial impact.’’ In making this determination, the
court stated: ‘‘I will give an instruction to the jury talking
about the [para]meters that they may use as misconduct
and talking about the fact that it does not apply to
certain counts. And I will ask the defense to let [the
court] know if [he] want[s] that done at the time that the
testimony is given specifically. And again, it’s probably
going to be multiple times. Or to save it for the end of
the day or to save it for the jury charge in total.’’20
Moreover, in support of this determination, the court
stated that ‘‘there’s nothing that is coming in right now
that I’m necessarily finding to be so prejudicial in and
of itself that it outweighs the probative value [of the
prior misconduct evidence]. Again, I’m not hearing that
it involves a knife, that it’s gruesome, that it involves
facts or pictures that are going to be so prejudicial to
this jury that they will not be able to properly evaluate
it and properly adhere to the instructions that I give to
them, which is to limit it to the [para]meters of the
specific charges and the specific purpose of its admis-
sion.’’ Accordingly, the court concluded that ‘‘the mis-
conduct [evidence] is relevant and probative, and that
the probative value outweighs the prejudicial impact
as to the counts relating to the unlawful restraint in
the first degree, strangulation in the first degree and
tampering’’ with a witness.
At trial, the state offered, and the court admitted,
prior misconduct evidence pertaining to the first assault
and the second assault.21 During the prosecutor’s direct
examination of the victim, the victim testified specifi-
cally with respect to the first assault that her ‘‘neck
was broken’’ by the defendant, and, with respect to the
second assault, that the defendant ‘‘beat [her] with a dog
chain . . . .’’ In her closing arguments, the prosecutor
referenced specifically the prior misconduct evidence,
and referenced generally the history of domestic vio-
lence between the victim and the defendant. Of the
counts for which the prior misconduct evidence was
admitted, the jury found the defendant guilty of unlaw-
ful restraint in the first degree in violation of § 53a-95
(a) and tampering with a witness in violation of § 53a-
151,22 and not guilty of strangulation in the first degree.23
We begin by setting forth the applicable standard of
review and principles of law that guide our analysis.
‘‘We review the trial court’s decision to admit evidence,
if premised on a correct view of the law . . . for an
abuse of discretion. . . .
‘‘As a general rule, evidence of prior misconduct is
inadmissible to prove that a defendant is guilty of the
crime of which he is accused. . . . Nor can such evi-
dence be used to suggest that the defendant has a bad
character or a propensity for criminal behavior. . . .
In order to determine whether such evidence is admissi-
ble, we use a two part test. First, the evidence must be
relevant and material to at least one of the circum-
stances encompassed by the exceptions. Second, the
probative value of [the prior misconduct] evidence must
outweigh [its] prejudicial effect . . . . The primary
responsibility for making these determinations rests
with the trial court. We will make every reasonable
presumption in favor of upholding the trial court’s rul-
ing, and only upset it for a manifest abuse of discre-
tion. . . .
‘‘Under the first prong of the test, the evidence must
be relevant for a purpose other than showing the defen-
dant’s bad character or criminal tendencies. . . . Rec-
ognized exceptions to this rule have permitted the intro-
duction of prior misconduct evidence to prove intent,
identity, malice, motive, common plan or scheme,
absence of mistake or accident, knowledge, a system
of criminal activity, or an element of the crime, or to
corroborate crucial prosecution testimony. Conn. Code
Evid. § 4-5 [c]. . . .
‘‘The official commentary to § 4-5 (c) states in rele-
vant part: Admissibility of other crimes, wrongs or acts
evidence is contingent on satisfying the relevancy stan-
dards and balancing test set forth in Sections 4-1 and
4-3, respectively. For other crimes, wrongs or acts evi-
dence to be admissible, the court must determine that
the evidence is probative of one or more of the enumer-
ated purposes for which it is offered, and that its proba-
tive value outweighs its prejudicial effect. . . . The
purposes enumerated in subsection (c) for which other
crimes, wrongs or acts evidence may be admitted are
intended to be illustrative rather than exhaustive. Nei-
ther subsection (a) nor subsection (c) precludes a court
from recognizing other appropriate purposes for which
other crimes, wrongs or acts evidence may be admitted,
provided the evidence is not introduced to prove a
person’s bad character or criminal tendencies, and the
probative value of its admission is not outweighed by
any of the Section 4-3 balancing factors. . . . Conn.
Code Evid. § 4-5 (c), commentary.’’ (Citations omitted;
emphasis omitted; footnote omitted; internal quotation
marks omitted.) State v. Gerald A., 183 Conn. App. 82,
106–107, 191 A.3d 1003, cert. denied, 330 Conn. 914,
193 A.3d 1210 (2018).
On appeal, the defendant claims that the trial court
abused its discretion in admitting evidence of his prior
misconduct for the state’s proof of unlawful restraint
in the first degree and tampering with a witness because
‘‘[t]he probative value of the prior misconduct evidence
on the unlawful restraint and tampering with a witness
charges is at best tenuous, if not nonexistent, and is
not sufficient to survive the balancing test with its preju-
dicial tendencies.’’ Specifically, with respect to the pro-
bative value of the prior misconduct evidence, the
defendant contends that the evidence was not probative
of intent, identity, absence of mistake or motive because
the prior misconduct and the charges of unlawful
restraint in the first degree and tampering with a witness
were not factually similar enough in nature. We are not
persuaded.
We first consider the probative value of the prior
misconduct evidence with respect to the count of
unlawful restraint in the first degree. The court found
that the prior misconduct evidence was relevant to,
inter alia, the defendant’s intent to restrain the victim.
In admitting the prior misconduct evidence for this
purpose, the court relied on State v. Franko, 142 Conn.
App. 451, 64 A.3d 807, cert. denied, 310 Conn. 901, 75
A.3d 30 (2013).
In Franko, the defendant appealed from his convic-
tion of one count of kidnapping in the second degree
in violation of General Statutes § 53a-94 (a), claiming
that ‘‘the trial court abused its discretion in denying his
motion in limine to exclude certain evidence of prior
uncharged misconduct.’’ Id., 453. On appeal, this court
determined that prior misconduct evidence of the
defendant’s ‘‘verbal and physical abuse [of the victim]
starting three months into their relationship’’; id.,
455–56; was relevant to the defendant’s ‘‘intent to
abduct the victim, and thereby restrain the victim’s
movement on the date of the kidnapping.’’ Id., 461.
Specifically, this court determined that, ‘‘[a]lthough
there is no element in the kidnapping statutes that
explicitly requires proof of the victim’s state of mind,
[our Supreme Court] has stated that evidence that is
probative of the victim’s state of mind may be admissi-
ble . . . when that state of mind is independently rele-
vant to other material issues in the case. . . . Thus,
when a defendant . . . is charged with [second] degree
kidnapping and the jury is instructed on the meaning
of abduct, which requires a finding that the defendant
restrained the victim with intent to prevent his libera-
tion by . . . using or threatening to use physical force
or intimidation . . . the trial court may allow the jury
to consider evidence that the victim reasonably believed
that force would be used if he or she tried to escape
as proof that the defendant intended to prevent the
victim’s liberation by threats or intimidation. . . .
Because intent is almost always proved, if at all, by
circumstantial evidence, prior misconduct evidence,
where available, is often relied upon.’’ (Citations omit-
ted; internal quotation marks omitted.) Id., 461.
In the present case, the court correctly noted that
unlawful restraint in the first degree is a specific intent
crime. In accordance with the state’s burden to prove
the essential element of unlawful restraint in the first
degree that the defendant restrained the victim, the
state was required to prove that the defendant
‘‘restrict[ed] [the victim’s] movements intentionally
and unlawfully in such a manner as to interfere sub-
stantially with [the victim’s] liberty . . . without con-
sent.’’ (Emphasis added.) General Statutes § 53a-91 (1).
As in Franko, the court in the present case found that
the prior misconduct evidence, which tended to demon-
strate that the victim reasonably believed that the defen-
dant would use force if she tried to escape, was proba-
tive of whether the defendant intended to restrict the
victim’s movements in such a manner as to interfere
substantially with the victim’s liberty. In relying on
Franko, the court properly determined that the prior
misconduct evidence was probative of the defendant’s
intent to restrain the victim and, thus, was relevant to
the count of unlawful restraint in the first degree.
Next, we consider the probative value of the prior
misconduct evidence with respect to the count of tam-
pering with a witness. The court found that the prior
misconduct evidence was relevant to, inter alia, the
defendant’s intent to tamper with the victim’s statement
to the police. In admitting the prior misconduct evi-
dence for this purpose, the court relied on State v.
Kantorowski, 144 Conn. App. 477, 72 A.3d 1228, cert.
denied, 310 Conn. 924, 77 A.3d 141 (2013).
In Kantorowski, this court determined that prior mis-
conduct evidence of the defendant’s two prior assaults
of the victim was relevant to the defendant’s intent in
making subsequent harassing and threatening phone
calls. Id., 483, 487. Specifically, this court determined
that, ‘‘[t]o obtain a conviction for [harassment in the
second degree in violation of General Statutes § 53a-
183 (a) (3)], the state had the burden to prove, beyond
a reasonable doubt, the defendant’s intent to harass,
annoy or alarm the victim; as to the latter offense [of
threatening in the second degree in violation of General
Statutes § 53a-62 (a) (2)], the state had to prove the
defendant’s intent to terrorize the victim . . . [which]
means to scare or to cause intense fear or apprehension.
. . . Because intent is almost always proved, if at all,
by circumstantial evidence, prior misconduct evidence,
where available, is often relied upon. . . . When
instances of a criminal defendant’s prior misconduct
involve the same victim as the crimes for which the
defendant presently is being tried, those acts are espe-
cially illuminative of the defendant’s motivation and
attitude toward that victim, and, thus, of his intent as
to the incident in question. . . . [T]he defendant’s . . .
telephone calls need to be understood in [the] context
of [the defendant’s and the victim’s] entire relationship.
The uncharged misconduct evidence that the defendant
previously had choked the victim and had broken her
nose by slamming her face into the floor provided con-
text as to whether he actually intended to cause her to
be harassed, annoyed, alarmed or terrorized by his ver-
bal threat.’’ (Citations omitted; internal quotation marks
omitted.) Id., 488–89.
In the present case, the court correctly noted that
tampering with a witness is a specific intent crime. As
our Supreme Court has stated, ‘‘[§] 53a-151 (a) applies
to any conduct that is intended to prompt a witness to
testify falsely or refrain from testifying in an official
proceeding that the perpetrator believes to be pending
or imminent. . . . It is important to note that [i]ntent
may be, and usually is, inferred from the defendant’s
verbal or physical conduct. . . . Intent may also be
inferred from the surrounding circumstances. . . . The
use of inferences based on circumstantial evidence is
necessary because direct evidence of the accused’s
state of mind is rarely available. . . . Furthermore, it
is a permissible, albeit not a necessary or mandatory,
inference that a defendant intended the natural conse-
quences of his voluntary conduct.’’ (Citations omitted;
emphasis altered; internal quotation marks omitted.)
State v. Lamantia, 336 Conn. 747, 756–57, 250 A.3d 648
(2020). As in Kantorowski, the court in the present
case found that the prior misconduct evidence, which
contextualized the defendant’s instruction that the vic-
tim ‘‘fix’’ her statement to the police and tended to
demonstrate that the victim reasonably believed that
the defendant would use force if she did not comply,
was probative of the defendant’s intent with respect
to his actions. In relying on Kantorowski, the court
properly determined that the prior misconduct evidence
was probative of the defendant’s intent to tamper with
the victim’s testimony. Thus, the court properly deter-
mined that the prior misconduct evidence was relevant
to the count of tampering with a witness.
Finally, we consider the trial court’s determination
that the probative value of this evidence outweighed
its prejudicial effect. ‘‘Section 4-3 of the Connecticut
Code of Evidence . . . provides that [r]elevant evi-
dence may be excluded if its probative value is out-
weighed by the danger of unfair prejudice or surprise,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time or need-
less presentation of cumulative evidence. [T]he deter-
mination of whether the prejudicial impact of evidence
outweighs its probative value is left to the sound discre-
tion of the trial court judge and is subject to reversal
only where an abuse of discretion is manifest or injus-
tice appears to have been done. . . . [Our Supreme
Court] has previously enumerated situations in which
the potential prejudicial effect of relevant evidence
would counsel its exclusion. Evidence should be
excluded as unduly prejudicial: (1) where it may unnec-
essarily arouse the [jurors’] emotions, hostility or sym-
pathy; (2) where it may create distracting side issues;
(3) where the evidence and counterproof will consume
an inordinate amount of time; and (4) where one party is
unfairly surprised and unprepared to meet it.’’ (Internal
quotation marks omitted.) State v. Gerald A., supra, 183
Conn. App. 108–109.
The defendant contends that ‘‘[t]he probative value
of the prior misconduct evidence was not so strong as
to outweigh the significant prejudicial tendencies and
their effects on the jury.’’ In support of this argument,
the defendant maintains that the misconduct evidence
was ‘‘unduly prejudicial because the history [of domes-
tic violence] noted by the state on numerous occasions
was likely to arouse the jurors’ emotions and sympathy
towards [the victim].’’ Furthermore, the defendant
argues that the misconduct evidence ‘‘was distracting
in the severity and the amount of time and focus it took
in the case,’’ and that ‘‘it did not apply to over half the
counts . . . .’’ The defendant’s arguments are unavail-
ing.
In the present case, the court admitted evidence of
two incidents of prior misconduct. With respect to the
evidence of the defendant’s first assault of the victim,
the victim testified specifically that her ‘‘neck was bro-
ken’’ by the defendant. With respect to the evidence of
the defendant’s second assault of the victim, the victim
testified specifically that the defendant ‘‘beat [her] with
a dog chain . . . .’’ Our review of the record indicates
that no additional evidence was adduced that further
elaborated on the details of the first assault and the
second assault. As the court correctly noted, the two
incidents of prior misconduct did not involve gruesome
details, facts or photographs.
In contrast, the crimes of which the defendant was
convicted in the present case, although similar to the
incidents of prior misconduct, involved conduct and
injuries that were substantially more gruesome in
nature. Specifically, in light of the evidence presented
at trial, the prosecutor described in her closing argu-
ment the nature of the defendant’s conduct and the
victim’s injuries as follows: ‘‘[B]eginning in November
of 2016, [the victim] described to you a series of days
where she indicated that [the defendant] beat her. He
brought her down the basement where he repeatedly
beat her. . . . She described how she was restrained
by her hair, dragged down there for a period of three
consecutive evenings. . . . In the course of the beat-
ing, [the defendant] ripped out large portions of her
hair . . . kicked her in the head, choked her to the
point of loss of consciousness, beat her by her legs,
her back. And as you saw in the photographs that the
[s]tate showed and that were taken at the [veterans
administration] [h]ospital of her injuries, she had quite
a few as described by the doctor. . . . Dark bruises
the doctor indicated from head to toe.’’ The prosecutor
further argued that ‘‘you’ll see these photos again of the
external injuries that are going on, there’s also internal
injuries that she’s describing; a broken rib, this hemor-
rhage that you can see in the photograph to her eye.
She also described some blurriness and loss of vision
and problems with her eye.’’
Given the limited scope of the prior misconduct evi-
dence and the particularly violent nature of the crimes
at issue in the present case, we cannot conclude that
the prior misconduct evidence was likely to arouse the
jurors’ emotions and sympathy toward the victim or
that it was distracting in the severity, amount of time
and focus that it involved.
Furthermore, the court provided a limiting instruc-
tion to the jury on the first day of evidence, coincident
with the admission of prior misconduct evidence. The
instruction restricted the parameters of the state’s use
of the prior misconduct evidence to limit its prejudicial
effect. See footnote 20 of this opinion. In his principal
appellate brief, the defendant acknowledges the court’s
limiting instruction to the jury and that ‘‘the jurors are
presumed to have followed such instruction.’’
For the aforementioned reasons, the court properly
determined that the probative value of the prior miscon-
duct evidence is not outweighed by its prejudicial
impact. Accordingly, the court did not abuse its discre-
tion in admitting the prior misconduct evidence per-
taining to the first assault and the second assault for
the state’s proof of unlawful restraint in the first degree
and tampering with a witness.
The judgments are affirmed.
In this opinion the other judges concurred.
* This opinion supersedes the opinion of this court in State v. Morlo M.,
198 Conn. App. 748, 234 A.3d 1137 (2020), which was officially released on
July 7, 2020. See footnote 2 of this opinion.
In accordance with our policy of protecting the privacy interests of the
victims of the crime of risk of injury to a child, we decline to use the
defendant’s full name or to identify the victims or others through whom
the victims’ identities may be ascertained. See General Statutes § 54-86e.
1
The defendant was found not guilty of one count of strangulation in the
first degree in violation of General Statutes § 53a-64aa (a) (1) (B).
2
On October 13, 2020, following briefing, oral argument, and decision in
this appeal; see State v. Morlo M., 198 Conn. App. 748, 234 A.3d 1137 (2020);
the defendant filed a motion to open the judgments, and companion motions
to file an additional transcript and for supplemental briefing. He claimed
that ‘‘[t]he transcripts that were received, reviewed, filed, and upon which
briefing and argument were based, were incomplete.’’ Specifically, the basis
for the defendant’s motions was his discovery of ‘‘a portion of [his] trial
transcript, recording a hearing held on the afternoon of September 20, 2017,
[which] had never been transcribed or delivered’’ to this court (September
transcript). The defendant characterized the September transcript as ‘‘the
record of a motion in limine hearing that had not previously been provided
to counsel, relating to admission of prior misconduct evidence.’’ In his
motions, the defendant argued that he ‘‘is entitled to have the transcript
reviewed by this court and have an additional issue raised and briefed on
appeal: whether the probative value of prior misconduct evidence out-
weighed its prejudicial tendencies,’’ because the newly discovered transcript
‘‘memorializes trial counsel’s arguments and objections to the introduction
of prior misconduct evidence and the basis for the court’s ruling on the
motion.’’ On October 20, 2020, this court granted the defendant’s motions
to open the judgments, to file an additional transcript and for supplemental
briefing. Thereafter, the parties submitted supplemental briefs addressing
the admission of prior misconduct evidence.
3
On November 28, 2016, the age of the victim’s seven children ranged
from approximately fifteen months to thirteen years. The defendant is the
father of the victim’s four youngest children. Each of the five counts of risk
of injury to a child with which the defendant was charged alleged risk of
injury as to a different minor child.
4
The victim’s oldest child and her four youngest children accompanied
her and the defendant back to Connecticut. The victim’s two other children
and her nephew were left in Georgia.
5
The defendant received the following concurrent sentences: fifteen years
of incarceration, execution suspended after ten years, followed by five
years of probation for assault in first degree; five years of incarceration for
unlawful restraint in the first degree; five years of incarceration for each
of the five counts of risk of injury to a child; and five years of incarceration
for tampering with a witness.
6
Although the defendant argues that the victim’s injuries did not expose
her to a risk of death, his argument in this regard appears to be directed
to whether the victim suffered a serious physical injury and not to the other
elements of § 53a-59 (a) (3). In fact, he specifically states in his principal
brief: ‘‘It is the appellant’s contention that the state failed to prove that the
defendant caused serious physical injury to [the victim].’’ To the extent that
the defendant’s reference to the victim not having faced a risk of death is
a challenge to the statutory requirement that the defendant must have cre-
ated a risk of death, we are not persuaded. It is the defendant’s actions,
not the results of those actions, which must create a risk of death. See State
v. James E., 154 Conn. App. 795, 807, 112 A.3d 791 (2015) (‘‘[t]he risk of
death element of the [assault in first degree] statute focuses on the conduct
of the defendant, not the resulting injury to the victim’’ (internal quotation
marks omitted)), aff’d, 327 Conn. 212, 173 A.3d 380 (2017). The jury reason-
ably could have concluded that the defendant’s actions of dragging the
victim down the basement stairs and beating her on three consecutive nights
was reckless conduct that evinced an extreme indifference to human life
and created a risk of death. That his actions may not have resulted in a risk
of death is irrelevant.
7
We note that Barretta was decided prior to Petion, and that in Petion,
our Supreme Court remarked that, in Barretta, this court did not consider
how the dictionary definition of ‘‘disfigurement’’ was modified by the term
‘‘serious.’’ State v. Petion, supra, 332 Conn. 480 n.7. The court in Petion
declined to express a view as to whether Barretta was correctly decided. Id.
Thereafter, the court in Petion concluded that the scar from a knife wound
on the victim’s left arm was insufficient to constitute serious disfigurement.
Id., 477, 494–95. Nevertheless, the court stated that it ‘‘agree[d] that, in
assessing the seriousness of the disfigurement, the jury was not limited to
considering the injury in its final, fully healed state. See, e.g., State v. Bar-
retta, supra, 82 Conn. App. [690] (contusions and severe bruising all over
body from beating with baseball bat established serious disfigurement).’’
State v. Petion, supra, 322 Conn. 497. The court was not convinced, however,
that the appearance of the victim’s injury prior to its healing was sufficient
to constitute serious disfigurement. Id.
Although Barretta’s viability in the wake of Petion has not been examined,
we conclude that there was sufficient evidence in this case from which the
jury reasonably could find that the victim’s injuries persisted throughout her
head and body and, thus, were sufficient to constitute serious disfigurement
under the Petion factors.
8
Although it is not necessary, we discuss an additional type of serious
physical injury to the victim that reasonably could have been found by
the jury.
9
The defendant argues that because the victim self-reported her loss of
consciousness, without any details as to its timing, and did not receive any
treatment, there is insufficient evidence of an impairment of the function
of a bodily organ. We disagree because the defendant’s arguments corre-
spond to the weight of the evidence that was presented to the jury regarding
the victim’s loss of consciousness, not its sufficiency.
10
The defendant argues that the victim’s decision not to go to the hospital
for further evaluation and, instead, to travel to Georgia with her children,
who she was actively caring for, supports a conclusion that the victim did
not have a serious physical injury. We reject this argument because the
testimony relied on by the defendant does not displace the evidence from
which the jury reasonably could have concluded that the victim suffered a
serious physical injury.
11
Contrary to the defendant’s argument that his conviction of five counts
of risk of injury to a child were based on the children having been found
by the police in the basement of the apartment, the state’s charging docu-
ment, the evidence presented at trial, and the state’s closing arguments
reveal that the basis of the state’s charges was the defendant’s continuing
course of conduct from November 27, 2016, through December 22, 2016.
12
During oral argument before this court, the defendant’s appellate coun-
sel argued that the thirteen year old child could care for the six younger
children. Counsel provided no support for this argument and we find it
imprudent and unavailing.
13
The defendant did not contest the sufficiency of the evidence as to the
intent element of the charge of assault in the first degree under § 53a-59
(a) (3). See part I of this opinion. We discuss the evidence presented to the
jury that supports the defendant’s intent to commit an assault to illustrate
the severability of that evidence from the evidence supporting the defen-
dant’s intent to unlawfully restrain the victim.
14
The state filed an initial notice of misconduct evidence on September
11, 2017. On September 19, 2017, the defendant filed a ‘‘motion in limine
for an evidentiary hearing to determine whether the misconduct evidence
described in the state’s notice filed on September 11, 2017 is admissible in
the trial of this case.’’
15
In its September 20, 2017 notice of misconduct evidence, the state
disclosed that ‘‘[t]hese [injuries] [pertaining to the first assault] were the
subject matter of the defendant’s conviction for assault in the second and
third degree in 2013.’’
16
In its notice, the state also stated its intent to offer evidence of ‘‘[a]n
assault in the street in Bridgeport sometime in the course of the defendant’s
relationship with [the victim]’’ (third assault), and ‘‘[a]n assault wherein the
defendant hit [the victim] in the mouth, causing bleeding’’ (fourth assault).
17
With respect to the charge of unlawful restraint in the first degree, the
state argued that ‘‘[t]he evidence is relevant to the defendant’s intent, iden-
tity, malice, motive, absence of mistake, element of the crime and completing
the prosecution story.’’ Specifically pertaining to the elements of the crime
of unlawful restraint in the first degree, the state argued that the evidence
demonstrates the victim’s ‘‘fear of the defendant,’’ which is relevant to its
proof ‘‘that [the victim] did not consent to the restraint.’’
18
With respect to the charge of tampering with a witness, the state argued
that ‘‘[t]he evidence is relevant to the defendant’s intent, identity, malice,
motive, absence of mistake, element of the crime and completing the prose-
cution story. Specifically with respect to the elements of the crime of tamper-
ing with a witness, the state argued that the evidence is relevant to its proof
‘‘that the defendant induced or attempted to induce the witness to testify
falsely/withhold testimony/elude legal process.’’
19
Previously in its decision, the court noted the exceptions to the general
rule prohibiting misconduct evidence as follows: ‘‘[The prior misconduct
evidence] has to go to prove intent. Again, any malice, motive, common
plan or scheme, absence of mistake or accident, knowledge, a system of
criminal activity or an element to the crime or, finally, to corroborate prose-
cution testimony.’’
20
After the court admitted evidence of the defendant’s prior misconduct,
it instructed the jury as follows: ‘‘I know you heard in my initial instructions
this morning that there might be times when evidence is admitted for what
is known as a limited purpose. And so my instruction specifically relates
to that because there’s evidence that was admitted through the course of
[the victim’s] testimony which was admitted for a limited purpose and so
I’m going to instruct you on that right now.
‘‘The state has offered evidence of what is known as other acts of miscon-
duct of the defendant. And I’m going to specifically reference you . . . to
the testimony and the questioning that related to prior acts of assaultive
behavior and conduct by the defendant upon [the victim], specifically the
chain that was referenced and the broken neck, all right. This is not being
admitted to prove the bad character, the propensity or the criminal tenden-
cies of the defendant.
‘‘Such evidence is being admitted solely to establish an element of the
crime such as the intent, the identity, motive or commission of the crime,
absence of mistake or accident and or to complete the story that is being
presented by the prosecution. So it specifically goes to those items; intent,
identity, motive, absence of mistake or knowledge. You may not consider
such evidence as establishing a predisposition on the part of the defendant
to commit any of the crimes charged or to demonstrate a criminal propensity.
‘‘You may consider such evidence if you believe it and further find that
it logically, rationally and conclusively supports the issues for which it is
being offered by the state, but only as it may bear upon those issues; so to
establish an element of the crime, to go towards intent, identity, motive,
absence of mistake or accident or to complete the story that the prosecution
is providing.
‘‘You may consider such evidence if you believe it and further again if
you find that it is logically and rationally conclusive of those aspects. On
the other hand, if you do not believe that such evidence or even if you do
believe it but you find that it does not logically, rationally and conclusively
support those issues for which it is being offered by the state you may not
consider that testimony for any other purpose.
‘‘You again may not consider evidence of other misconduct of the defen-
dant for any purpose other than the ones that I have just told you, because
it may predispose your mind critically to believe that the defendant may be
guilty of the offense here charged merely because of the alleged other
misconduct. For this reason you may consider this evidence only on the
issues again that I told you—motive, intent, malice, to complete the story,
to prove an element of the crime to show an absence of mistake and only
for those purposes and for no other.
‘‘Now I’m going to add to that by telling you this. This evidence of miscon-
duct does not apply to some of the counts, but does apply to others. It does
not apply to count one, assault in the first degree, and it does not apply to
any of the risk of injury counts, okay. But it does apply to the unlawful
restraint in the first degree, strangulation in the first degree and the count
of tampering with a witness, okay.
‘‘So that is again a limiting instruction with regard to how you can use
certain pieces of evidence.’’
21
In its supplemental brief, the state notes that, ‘‘[a]lthough [its] notice
of misconduct evidence . . . indicated its intent to offer evidence of other
prior misconduct, the record demonstrates that [it] only elicited testimony
concerning [the first assault] and [the second assault].’’ See footnote 16 of
this opinion.
22
General Statutes § 53a-151 (a) provides: ‘‘A person is guilty of tampering
with a witness if, believing that an official proceeding is pending or about
to be instituted, he induces or attempts to induce a witness to testify falsely,
withhold testimony, elude legal process summoning him to testify or absent
himself from any official proceeding.’’
23
In light of the defendant’s acquittal of the charge of strangulation in
the first degree, the propriety of the court’s admission of evidence of the
defendant’s prior misconduct with respect to that charge is not at issue in
this appeal.