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State v. Pagan

Appellate Court of Connecticut

July 21, 2015

STATE OF CONNECTICUT
v.
WILLIAM PAGAN

Argued January 13, 2015

Page 1260

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Page 1261

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Page 1262

Substitute information charging the defendant with two counts of the crime of assault in the first degree and with the crime of assault in the second degree, brought to the Superior Court in the judicial district of Hartford and tried to the jury before Vitale, J.; verdict and judgment of guilty of one count of assault in the first degree, from which the defendant appealed to this court; thereafter, the court, Vitale, J., dismissed one count of assault in the first degree and the charge of assault in the second degree.

SYLLABUS

Convicted of the crime of assault in the first degree in connection with an incident in which the defendant poured nail polish remover on the victim and set her on fire after she had refused to let him use her debit card, the defendant appealed to this court. He claimed, inter alia, that there was insufficient evidence to support his conviction because the evidence did not establish that he intended to cause the victim serious physical injury.

Held :

1. The defendant could not prevail on his claim that the evidence was insufficient to support his conviction of assault in the first degree because the state had failed to establish that he intended to cause the victim serious physical injury; the record contained substantial evidence in support of the state's claim that the defendant intended to cause serious physical injury to the victim, as the jury reasonably could have inferred that the defendant was aware that the nail polish remover was flammable, the jury was entitled to credit the testimony of a fire investigator that the spill pattern on the victim's shirt resulted from a deliberate pouring of a flammable accelerant on her as well as the testimony of a surgeon that the victim suffered serious physical injuries, and the jury was free to infer that the defendant's objective was to set the victim on fire when he held a burning paper close to her clothing after pouring an accelerant upon her.

2. This court declined to review the defendant's unpreserved claim that the trial court abused its discretion by admitting into evidence the testimony of a domestic abuse expert that the defendant alleged was unrelated to the contested issues in the case, was not relevant, and lacked an adequate evidentiary foundation: because the defendant at trial specifically had objected that the testimony was within the ken of the jury and was more prejudicial than probative, his claim on appeal that he implicitly had objected to the relevance of that testimony was unavailing; moreover, the defendant's colloquy with the trial court following its ruling did not adequately preserve for appeal his claim of a lack of an evidentiary foundation for the testimony, and he could not obtain review on appeal because his unpreserved claim as to the admission of the expert testimony did not raise a constitutional issue.

3. The defendant's claim that he was deprived of a fair trial as a result of certain prosecutorial improprieties during closing argument was unavailing; a review of the prosecutor's arguments revealed that he invited the jury to make reasonable inferences from the evidence at trial but did not improperly refer to facts not in evidence, that his challenge to the theory of defense did not improperly disparage the integrity of defense counsel, and that he did not improperly attempt to influence the jury by bolstering the credibility of the victim.

Janice N. Wolf, assistant public defender, for the appellant (defendant).

Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Chris Pelosi, senior assistant state's attorney, for the appellee (state).

Sheldon, Prescott and Harper, Js. HARPER, J. In this opinion the other judges concurred.

OPINION

HARPER, J.

Page 1263

[158 Conn.App. 622] The defendant, William Pagan, appeals from the judgment of conviction, rendered after a jury trial, of one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (1). On appeal, the defendant claims that: (1) there was insufficient evidence to establish that he intended to cause the victim serious physical injury, which is an essential element of assault in the first degree as charged in this case; (2) the trial court improperly admitted the testimony of a domestic violence expert to explain why certain victims of domestic violence initially fail to name their abusers when reporting injuries resulting from domestic violence; and (3) the prosecutor made improper remarks in closing argument by arguing facts not in evidence, impugning defense counsel's integrity, and bolstering the credibility of the victim, in violation of the defendant's right to a fair trial. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to this appeal. The victim, Tashawna Gamble, lived with her [158 Conn.App. 623] mother, Johnnie Partin, in an apartment in Hartford. Gamble began dating the defendant approximately four months before the incident that gave rise to the present appeal. Partin disliked the defendant, and did not permit him inside her apartment while she was home.

Between 4 and 5 p.m. on September 30, 2010, the defendant called Gamble and asked her for the personal identification number (PIN) for her debit card so that he could use some of her money to repair her car's brakes. Gamble refused to give him the PIN because once before when she had given him the PIN to another bank card, he used it without her permission to withdraw $900 from her bank account. Upon this refusal, the defendant became upset with Gamble and they argued over the telephone.

After Gamble left her place of employment at 6 p.m., she picked up the defendant at a nearby housing project and then drove him to her apartment. Her mother was not at home. After the defendant and Gamble entered her bedroom, the defendant brought up Gamble's refusal to give him her PIN. When Gamble refused to argue with the defendant, he grew angry and left the room. When he returned, the defendant poured a flammable liquid onto Gamble's shoulder, arm and chest.[1]

Page 1264

Gamble stood up from her bed, but the defendant stated that he was not finished talking to her and she sat down. After Gamble sat back down on the bed, the defendant lit a small piece of paper. The defendant then used the burning paper to set Gamble on fire.

The flames spread quickly. Gamble screamed and ran into the bathroom, while the defendant followed her, [158 Conn.App. 624] shouting, " [o]h my gosh, oh my gosh, I didn't know it was going to be like that," as he attempted to remove Gamble's burning shirt. Gamble asked the defendant to turn on the shower, but instead he left the bathroom. Although she was in pain, Gamble managed to get into the shower. When the defendant returned to the bathroom, Gamble asked him to call for emergency assistance. The defendant, however, wondered aloud what he should tell the dispatcher, and delayed calling for help. The defendant, who was on probation, stated that he did not want to return to jail and that he would say that Gamble had been smoking a cigarette. He continued to delay calling for help. Gamble then asked the defendant to call her cousin. As soon as he left to do so, she called emergency assistance herself.

Gamble told the dispatcher that she had been smoking a cigarette, which she had dropped on herself, starting a fire. When the defendant returned to the bathroom and learned that Gamble had called for help, he stated that they " didn't have no whole legitimate reason of what happened . . . ." The defendant instructed Gamble to tell emergency responders that she had been using nail polish remover and lit a cigarette, which she had dropped into her lap, starting the fire.[2] When the emergency responders arrived, the defendant opened the door, identified himself and Gamble, and stated that Gamble had suffered a burn. Gamble told emergency responders, as the defendant had instructed her, that she had burned herself by accidentally dropping a cigarette. She then was transported to Saint Francis Hospital and Medical Center in Hartford for treatment.[3]

[158 Conn.App. 625] During Gamble's hospitalization, she did not reveal to anyone that the defendant was responsible for her injuries. One reason she did not do so was because she was being given high doses of pain medication and could not communicate effectively. Another reason, however, was that she was afraid that the defendant might attempt to harm her mother. The defendant was driving Gamble's motor vehicle, and had keys to her apartment. Although the defendant never visited Gamble in the hospital, Partin claimed that he repeatedly drove by the apartment at night and called her, asking questions about Gamble.

Page 1265

After being released from the hospital, Gamble told her mother the truth about what had occurred and that the defendant was responsible for her injuries. Partin had never believed Gamble's initial story because Gamble does not smoke. She encouraged Gamble to report the incident to the police, which she did on November 15, 2010. Subsequently, the defendant was arrested.

On November 1, 2012, the defendant was charged by long form information with one count each of assault in the first degree in violation of § 53a-59 (a) (1), assault in the first degree in violation of § 53a-59 (a) (3), and assault in the second degree in violation of General Statutes § 53a-60 (a) (3). Following a jury trial, the defendant was found guilty of intentional assault in the first degree in violation of § 53a-59 (a) (1).[4] The court rendered judgment in accordance with the verdict, sentencing the defendant to a term of ...


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