November 13, 2018
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
Jennifer B. Smith, assigned counsel, for the appellant
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
Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins,
Kahn and Ecker, Js.
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. 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).
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). 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.
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.
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.
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
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.
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. 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.
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.
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.
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.'
'' 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.
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).
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
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,  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.
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 . . .
.'' 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).
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]  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).
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).
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
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. 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).
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: ‘‘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).
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.'' 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
‘‘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.
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, § 4 (4), 1969 Jan. Sess.
In the substitute bill that was ...