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State v. Petion

Supreme Court of Connecticut

July 23, 2019


          Argued November 13, 2018

         Procedural History

         Substitute information charging the defendant with two counts of the crime of assault in the first degree, brought to the Superior Court in the judicial district of Stamford-Norwalk and tried to the jury before White, J.; verdict and judgment of guilty, from which the defendant appealed to the Appellate Court, DiPentima, C. J., and Prescott and Beach, Js., which affirmed the trial court's judgment, and the defendant, on the granting of certification, appealed to this court. Reversed in part; judgment directed in part; further proceedings.

          Jennifer B. Smith, assigned counsel, for the appellant (defendant).

          James M. Ralls, assistant state's attorney, with whom were Richard J. Colangelo, Jr., state's attorney, and Maureen Ornousky, senior assistant state's attorney, for the appellee (state).

          Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker, Js.


          MCDONALD, J.

         Whether an assault results in physical injury or serious physical injury can have profound ramifications for the victim. Consequently, substantially greater punishment may be imposed for the latter injury than the former.[1] Although this court has acknowledged ‘‘the difficulty of drawing a precise line as to where physical injury leaves off and serious physical injury begins'' (internal quotation marks omitted); State v. Ovechka, 292 Conn. 533, 546-47, 975 A.2d 1 (2009); see also State v. Almeda, 211 Conn. 441, 451, 560 A.2d 389 (1989); the present case provides an opportunity to illuminate that distinction. In particular, we use this occasion to examine the parameters that should be used by the trier of fact to assess whether a defendant has inflicted serious physical injury in the form of serious disfigurement. See General Statutes § 53a-3 (4).

         The defendant, Divenson Petion, appeals from the Appellate Court's judgment affirming his conviction of two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (1).[2] See State v. Petion, 172 Conn.App. 668, 669-70, 687, 161 A.3d 618 (2017). The defendant claims that the forearm scar sustained by one of the two victims was an insufficient basis for the jury to find the serious physical injury necessary to support that charge. The state disagrees but requests, in the event that we conclude otherwise, that a judgment of acquittal not be rendered on that charge and, instead, that the judgment be modified to reflect a conviction of the lesser included offense of assault in the second degree; see General Statutes § 53a-60 (a) (2); and the case be remanded for resentencing. We conclude that the evidence was insufficient to support the challenged conviction. We further conclude that, under State v. LaFleur, 307 Conn. 115, 51 A.3d 1048 (2012), the state is not entitled to have the defendant's conviction modified. Therefore, we reverse in part the Appellate Court's judgment.


         The Appellate Court's opinion sets forth the facts that the jury reasonably could have found; see State v. Petion, supra, 172 Conn.App. 670-72; which we summarize as follows. In 2008, the defendant began dating Rosa Bran. Bran gave birth to the defendant's daughter in February, 2010. Bran also had a son from a prior relationship. After the birth of his daughter, the defendant's romantic relationship with Bran ended. However, they remained in contact, and the defendant occasionally would visit his daughter, sometimes showing up unannounced. The defendant told Bran that he did not want other men around his daughter.

         Shortly before the May, 2012 incident giving rise to the criminal charges at issue, Bran resumed a friendship with a former boyfriend, Robert Raphael. On the day of the incident, Bran invited Raphael to her apartment, and he arrived in the early afternoon. In addition to Bran and her two children, her cousin's two children were present. Later that afternoon, there was a knock on the door. Bran answered the door, expecting that it was her cousin arriving to pick up her children, but it was the defendant. He asked to see his daughter. Bran explained that it was not a good time because the child was asleep.

         The defendant then saw Raphael. The defendant became angry, pushed Bran aside, and entered the apartment. He began to shout at Raphael to get out of the apartment. Raphael did not want to leave Bran and the children alone with the defendant in his agitated state, and told the defendant that he was staying. In response, the defendant began pushing and punching Raphael. As Raphael retreated further into the apartment, the defendant pursued him. The defendant pulled out a knife from his pocket and slashed Raphael across the face, cutting from Raphael's ear to along his jaw bone, deeply enough to damage a facial nerve and cut a branch of his jugular vein. Bran inserted herself between the two men during the confrontation, hoping to stop the defendant from injuring Raphael. In the process, the defendant cut Bran on her left arm. Raphael, who was bleeding profusely, ran out of the apartment, got in his car, and drove himself to the hospital.[3]

         The defendant repeatedly apologized to Bran and then left the apartment. Bran was not immediately aware that she had been cut. She realized that she had been injured when her son came downstairs, alerted Bran that she was bleeding, and grabbed a towel to cover her wound. Shortly after the incident, Bran's cousin arrived to pick up her children, and she drove Bran to the hospital.

         When she arrived at the hospital, Bran had an abrasion and two lacerations on her left arm, one measuring three-quarters of one centimeter and another measuring four centimeters.[4] The smaller laceration was treated with a single suture. The larger laceration was closed with ten sutures, which left a scar after the laceration healed.

         The record reveals the following additional facts. The state charged the defendant with two counts of assault in the first degree in violation of § 53a-59 (a) (1). The first count alleged that, with the intent to cause serious physical injury to Raphael, the defendant caused such injury to Raphael by means of a dangerous instrument. The second count alleged that, with the intent to cause serious physical injury to Raphael, the defendant caused such injury to Bran by means of a dangerous instrument.

         At trial, the defendant presented an alibi witness, a family friend. At the close of evidence, the defendant moved for a judgment of acquittal on the charge of first degree assault as to Bran. The court denied the motion. Neither the defendant nor the state elected to have the jury charged on any lesser included offense. The jury returned a guilty verdict on both counts. On each count, the trial court imposed a seventeen year term of imprisonment, followed by three years of special parole, to run concurrently.

         The defendant appealed from the judgment of conviction to the Appellate Court. He argued, in relevant part, that there was insufficient evidence to support a conviction of first degree assault as to Bran because the state had failed to demonstrate beyond a reasonable doubt that she suffered a ‘‘ ‘serious physical injury.' ''[5] Id., 669. The Appellate Court agreed with the state ‘‘that the evidence presented to the jury showed that one of the two lacerations that Bran received resulted in a significant and readily visible scar and that, under our law, a jury reasonably could have found that such scarring constituted a serious disfigurement and, therefore, a serious physical injury.'' Id., 673. The Appellate Court affirmed the judgment of conviction. Id., 687.

         We thereafter granted the defendant's petition for certification to appeal, limited to the following issue: ‘‘In rejecting the defendant's claim that there was insufficient evidence to support his conviction of assault in the first degree in violation of . . . § 53a-59 (a) (1) with respect to . . . Bran, did the Appellate Court properly conclude that a jury reasonably could have found that the one and one-half inch scar on her forearm constituted serious disfigurement and, therefore, a serious physical injury?'' State v. Petion, 326 Conn. 906, 163 A.3d 1205 (2017).

         In their responses to this question, the parties devote significant portions of their analyses to a comparison between those injuries that the Appellate Court has deemed sufficient to support a jury's finding of serious disfigurement in other cases and Bran's injury in the present case. Although they disagree as to which side of the line the present case falls, they agree that juries would be aided in making this determination by factors to guide them.[6]

         We do not find the comparative approach taken by the parties to be useful here, particularly because the Appellate Court had not examined the meaning of ‘‘serious disfigurement'' in any of these cases, [7] and this court previously had given no guidance on the matter. Thus, before we can consider the evidence, we must ascertain the meaning of the legal standard against which we assess that evidence. See State v. Drupals, 306 Conn. 149, 159, 49 A.3d 962 (2012). The statutory text is our lodestar in this endeavor, and we consider relevant extratextual sources to illuminate any ambiguity therein to ascertain legislative intent. See General Statutes § 1-2z. Insofar as any ambiguity exists, ‘‘[i]t is a fundamental tenet of our law to resolve doubts in the enforcement of a [P]enal [C]ode against the imposition of a harsher punishment.'' (Internal quotation marks omitted.) State v. Drupals, supra, 160.

         The defendant was convicted of violating § 53a-59 (a) (1), which provides in relevant part: ‘‘A person is guilty of assault in the first degree when . . . [w]ith intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of . . . a dangerous instrument . . . .''[8] The Penal Code in turn defines certain essential terms. ‘‘ ‘Physical injury' means impairment of physical condition or pain . . . .'' General Statutes § 53a-3 (3). ‘‘ ‘Serious physical injury' means 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 . . . .'' General Statutes § 53a-3 (4).

         These definitions plainly reflect a legislative intention to establish a material degree of difference between mere physical injury and serious physical injury. This differentiation is reflected in the severity of punishment attendant to each. Assault resulting in physical injury, unless inflicted by discharge of a firearm, carries a maximum term of imprisonment of five years, whereas assault resulting in serious physical injury carries a maximum term of imprisonment of twenty years. See General Statutes §§ 53a-35a (6) and (7), 53a-59 (b) and 53a-60 (b). Thus, ‘‘[a]lthough it may often be difficult to distinguish between the two, such a distinction must be drawn; a person can be found guilty of assault in the first degree under . . . § 53a-59 [a] [1] only if he ‘causes serious physical injury to another person.' '' (Emphasis in original.) State v. Rossier, 175 Conn. 204, 207, 397 A.2d 110 (1978).

         We need not attempt, in the present case, to draw comprehensive distinctions for general application. Our focus is on one type of serious physical injury-serious disfigurement. See General Statutes § 53a-3 (4).

         We begin by examining the foundational term ‘‘disfigurement.'' Our Penal Code does not define this term. Neither did New York's Penal Code, from which our code's relevant definitions and many of its core provisions, such as our assault provisions, were drawn. See, e.g., State v. Courchesne, 296 Conn. 622, 671-73, 998 A.2d 1 (2010); State v. Havican, 213 Conn. 593, 601, 569 A.2d 1089 (1990); Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1969 Sess., p. 11; Report of the Commission to Revise the Criminal Statutes (1967) pp. 114-15, reprinted in 1 Law and Legislative Reference Unit, Connecticut State Library, Connecticut Legislative Histories Landmark Series: 1969 Public Act No. 828 (2005). Under the common meaning at the time our code was adopted in 1969, ‘‘disfigurement'' was defined simply as ‘‘something that disfigures, as a scar.'' The Random House Dictionary of the English Language (Unabridged Ed. 1966) p. 411. ‘‘Disfigure, '' in turn, was commonly defined as ‘‘to mar the appearance or beauty of; deform''; id.; ‘‘to spoil the appearance of''; Webster's Seventh New Collegiate Dictionary (1969) p. 239; or ‘‘to deform; to impair, as shape or form; to mar; to deface; to injure the appearance or attractiveness of . . . .'' Webster's New Twentieth Century Dictionary (2d Ed. 1964) p. 524. Legal dictionaries of the day reflected a similar definition for ‘‘disfigurement'' that had been adopted under workers' compensation law in some jurisdictions: ‘‘That which impairs or injures the beauty, symmetry, or appearance of a person . . . that which renders unsightly, misshapen, or imperfect, or deforms in some manner.'' Black's Law Dictionary (4th Ed. 1968) p. 554; accord Ballentine's Law Dictionary (3d Ed. 1969) p. 554. Our legislature subsequently adopted a substantially similar definition for our workers' compensation scheme. See Public Acts 1991, No. 91-339, § 1, codified as amended at General Statutes § 31-275 (8) (‘‘ ‘[d]isfigurement' means impairment of or injury to the beauty, symmetry or appearance of a person that renders the person unsightly, misshapen or imperfect, or deforms the person in some manner, or otherwise causes a detrimental change in the external form of the person'').

         Although this court has not previously considered whether this statutory definition would apply to the Penal Code, we note that every other jurisdiction that has considered the term's meaning as applied to penal statutes generally or assault provisions specifically, including New York, has adopted a definition of disfigurement that largely conforms to our workers' compensation definition.[9] Therefore, we conclude that this meaning should apply to our Penal Code. See General Statutes § 1-1 (a) (directing that words that have acquired particular and appropriate meaning in law be construed as such and otherwise be construed in accordance with commonly approved usage).

         We next consider the difference between disfigurement and serious disfigurement. At the time of the Penal Code's adoption, the common meaning of ‘‘serious, '' specifically in relation to injury, was ‘‘having important or dangerous possible consequences . . . .'' Webster's Seventh New Collegiate Dictionary, supra, p. 792. Other jurisdictions have applied similar definitions to ‘‘serious'' as a modifier to ‘‘disfigurement'' in their penal statutes:[10] ‘‘grave, or great''; Williams v. State, 248 Ga.App. 316, 318, 546 S.E.2d 74 (2001); ‘‘giving cause for apprehension; critical''; State v. Silva, 75 Haw. 419, 434, 864 P.2d 583 (1993); ‘‘grave and not trivial in quality or manner.'' State v. Clark, 974 A.2d 558, 573 (R.I. 2009).

         Thus, just as inflicting serious physical injury is deemed to be conduct of significantly greater culpability than inflicting physical injury, it is evident that ‘‘ ‘to disfigure . . . seriously' must be to inflict some harm substantially greater than the minimum required for ‘disfigurement.' '' People v. McKinnon, 15 N.Y.3d 311, 315, 937 N.E.2d 524, 910 N.Y.S.2d 767 (2010). Other jurisdictions that have given a unified definition to serious disfigurement under their penal laws, rather than define each word separately, have defined it as ‘‘ ‘an injury [that] mars the [victim's] physical appearance and causes a degree of unattractiveness sufficient to bring negative attention or embarrassment' ''; Akaran v. State, Docket No. A-8690, 2005 WL 1026992, *4 (Alaska App. May 4, 2005); an injury that would ‘‘make the victim's appearance distressing or objectionable to a reasonable person observing her''; People v. McKinnon, supra, 316; or a ‘‘significant cosmetic deformity caused by the injury.'' Hernandez v. State, 946 S.W.2d 108, 113 (Tex. App. 1997). Cf. People v. McKinnon, supra, 315 (explaining that ‘‘serious'' disfigurement would not rise to level of ‘‘severe'' disfigurement, such that it need not be ‘‘ ‘abhorrently distressing, highly objectionable, shocking or extremely unsightly' to a reasonable person''). In defining a similar term in our workers' compensation scheme, our legislature defined ‘‘significant disfigurement'' as ‘‘any disfigurement that is of such a character that it substantially detracts from the appearance of the person bearing the disfigurement.''[11] Public Acts 1991, No. 91-339, § 1, codified at General Statutes (Rev. to 1993) § 31-275 (8). Because ‘‘serious'' means, at a minimum, ‘‘significant''; see Webster's Seventh New Collegiate Dictionary, supra, pp. 792, 809 (defining ‘‘serious'' as ‘‘having important or dangerous possible consequences, '' and ‘‘significant'' as ‘‘important, weighty''); see also Fisher v. Blankenship, 286 Mich.App. 54, 66, 777 N.W.2d 469 (2009) (disfigurement will be considered serious if it is significant); we also conclude that applying a similar definition to the Penal Code would be appropriate.

         In considering how to apply this definition to the evidence in a given case, the present case requires consideration of whether, and the extent to which, the duration of the disfigurement is relevant. Unlike many other jurisdictions, our Penal Code does not expressly require an injury to persist for any particular duration to qualify as a serious physical injury, including serious disfigurement. See footnote 11 of this opinion. Early drafts of our Penal Code defined ‘‘serious physical injury'' to include ‘‘serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of any of the bodily functions.'' (Emphasis added.) Report of the Commission to Revise the Criminal Statutes, supra, p. 6; Proposed House Bill No. 7182, ยง 4 (4), 1969 Jan. Sess. In the substitute bill that was ...

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