April 8, 2019
part substitute information charging the defendant, in the
first part, with two counts of the crime of assault in the
first degree and, in the second part, with being a persistent
dangerous felony offender, brought to the Superior Court in
the judicial district of Windham, geographical area number
eleven, where the first part of the information was tried to
the jury before Seeley, J.; thereafter, the court
denied the defendant's motions to dismiss and for a
judgment of acquittal; verdict of guilty; subsequently, the
defendant was presented to the court on a plea of nolo
contendere to the second part of the information; judgment in
accordance with the verdict and plea, from which the
defendant appealed to this court. Affirmed.
Jonathan R. Formichella, certified legal intern, with whom
was James B. Streeto, senior assistant public defender, for
the appellant (defendant).
Mitchell S. Brody, senior assistant state's attorney,
with whom, on the brief, were Anne F. Mahoney, state's
attorney, and Mark A. Stabile, supervisory assistant
state's attorney, for the appellee (state).
Prescott, Bright and Eveleigh, Js.
defendant, Victor M. Alicea, appeals, following a jury trial,
from the judgment of conviction of assault in the first
degree in violation of General Statutes § 53a-59 (a) (1)
(intentional assault) and assault in the first degree in
violation of General Statutes § 53a-59 (a) (3) (reckless
assault). The defendant, following a plea of nolo contendere
to a part B information, also was convicted of being a
persistent dangerous felony offender pursuant to General
Statutes § 53a-40 (a) (1) (A). On appeal, the defendant
claims that (1) the jury's verdicts of guilty on both
intentional and reckless assault were legally inconsistent,
(2) the court erred in excluding his statement to the police,
given approximately forty-five minutes after the incident at
issue, and (3) the state failed to disprove his claim of
self-defense. We affirm the judgment of the trial court.
following facts, as reasonably could have been found by the
jury on the basis of the evidence, and procedural history
assist in our consideration of the defendant's claims.
The defendant and the victim, Tyrone Holmes, worked at Burger
King in the Dayville section of Killingly (restaurant).
Holmes generally worked third shift as a porter, doing
maintenance and cleaning at the restaurant. On July 9, 2015,
the defendant, who also worked as a porter at the restaurant,
was covering Holmes' third shift. After midnight, Holmes,
accompanied by his friend, Robert Falu, arrived at the closed
restaurant to drop off some supplies and to speak with the
defendant, whom, he had heard, had been talking about him.
Falu waited in or around Holmes' vehicle while Holmes let
himself into the back entrance using his key. Holmes then
asked the defendant to step outside. The defendant and Holmes
went outside, had a brief discussion, and the defendant
denied having talked negatively about Holmes. Everything
appeared fine to Holmes. Holmes returned to his vehicle,
retrieved some supplies, and went back into the restaurant.
returning to the restaurant, Holmes heard the defendant on
his cell phone telling whomever was listening to get to the
restaurant because the defendant had a problem. Holmes told
the defendant that they did not have a problem, and the
defendant walked away while Holmes was trying to talk to him.
Holmes followed the defendant, who went near the fryers, and
the defendant repeatedly told Holmes that he was trying to
save Holmes' life. Holmes, who was holding a set of car
keys in his hands, tossing them from one hand to the other,
became angry and the two began arguing. The defendant then
pulled Holmes' head toward him and cut his throat with a
razor blade. Initially, Holmes thought the defendant had
punched him, and he assumed a fighter's stance. He then
saw that he was bleeding, however, and he ran from the
restaurant. Some of the altercation was caught on the
restaurant's video. Once outside, Holmes threw his car
keys to Falu and told him to start the car. The defendant,
who had followed Holmes outside, chased him around the car
twice, and said, ‘‘see what happens when you mess
with me.'' Holmes got into the driver's seat of
the car and drove away with Falu. After Holmes arrived home,
Holmes' wife called 911, and she tried to stop the
bleeding from Holmes' neck by applying pressure with a
towel. The defendant also called 911 from the restaurant.
was taken by ambulance to Day Kimball Hospital in Putnam,
where he was examined by Joel Bogner, an emergency medicine
physician, who determined that Holmes had sustained a neck
laceration that was approximately seven inches long and that
the care he needed was ‘‘beyond the capabilities
of Day Kimball Hospital . . . .'' Holmes was given
morphine sulfate for pain and then was transferred to
Hartford Hospital, via ambulance, where he underwent surgery
for the laceration to his neck, which included the repair of
a lacerated neck muscle and his left external jugular vein.
defendant was arrested and later charged with both
intentional and reckless assault. The jury found the
defendant guilty of both charges,  and, after accepting the
verdict, the court rendered judgment of conviction on both
counts. The defendant also pleaded nolo contendere to being a
persistent dangerous felony offender. The court merged the
conviction of the two robbery charges and sentenced the
defendant to a mandatory minimum term of ten years of
incarceration, followed by twelve years of special parole on
the count of intentional assault as a persistent dangerous
felony offender. This appeal followed.
defendant first claims that the jury's verdicts of guilty
of both intentional and reckless assault were legally
inconsistent because each charge required a mutually
exclusive state of mind. He contends that he cannot be guilty
of both intentional and reckless assault because he engaged
in but one single act, against one single victim. The
defendant relies on State v. Chyung, 325
Conn. 236, 157 A.3d 628 (2017), and State v.
King, 216 Conn. 585, 583 A.2d 896 (1990), to support
his claim. The state responds that the verdicts were not
legally inconsistent in this case because a person can act
both recklessly and intentionally at the same time, as to
different results, as was concluded by our Supreme Court in
State v. Nash, 316 Conn. 651, 660-61, 114
A.3d 128 (2015). We agree with the state.
53a-59 (a) provides in relevant part: ‘‘A person
is guilty of assault in the first degree when: (1) With
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 deadly weapon or a dangerous instrument; or . . .
(3) under circumstances evincing an extreme indifference 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 person . . . .''
to General Statutes § 53a-3 (11): ‘‘A person
acts ‘intentionally' with respect to a result or to
conduct described by a statute defining an offense when his
conscious objective is to cause such result or to engage in
such conduct . . . .''
to § 53a-3 (13): ‘‘A person acts
‘recklessly' with respect to a result or to a
circumstance described by a statute defining an offense when
he is aware of and consciously disregards a substantial and
unjustifiable risk that such result will occur or that such
circumstance exists. The risk must be of such nature and
degree that disregarding it constitutes a gross deviation
from the standard of conduct that a reasonable person would
observe in the situation . . . .''
claim of legally inconsistent convictions, also referred to
as mutually exclusive convictions, arises when a conviction
of one offense requires a finding that negates an essential
element of another offense of which the defendant also has
been convicted. . . . In response to such a claim, we look
carefully to determine whether the existence of the essential
elements for one offense negates the existence of [one or
more] essential elements for another offense of which the
defendant also stands convicted. If that is the case, the
[convictions] are legally inconsistent and cannot withstand
challenge. . . . Whether two convictions are mutually
exclusive presents a question of law, over which our review
is plenary.'' (Citations omitted; internal quotation
marks omitted.) State v. Nash, supra, 316
reviewing a claim of legal inconsistency must closely examine
the record to determine whether there is any plausible theory
under which the jury reasonably could have found the
defendant guilty of [more than one offense].''
Id., 663. Nevertheless, the state is bound by the
theory it presented to the jury. See State v.
Chyung, supra, 325 Conn. 256 (where state argued
defendant engaged in only one act, rather than two,
principles of due process prohibited state on appeal from
relying on theory that defendant engaged in two acts).
defendant argues that King and Chyungare
similar to the present case and that Nash is in
apposite. We recently discussed the distinctions between
those three cases in State v. Daniels, 191
Conn.App. 33, 43-48, A.3d (2019).
Daniels, we first discussed our Supreme Court's
explanation of State v.King, supra, 216
Conn. 585: ‘‘In Nash, our Supreme Court
discussed King at length and explained: In
King, the defendant had ‘claimed that his
convictions of attempt to commit murder and reckless assault
of the same victim based on the same conduct were legally
inconsistent because they required mutually exclusive
findings with respect to his mental state. . . . We agreed
with this claim, explaining that King's conviction for
attempt to commit murder required the jury to find that he
acted with the intent to cause the death of the
victim, whereas his conviction for reckless assault
required the jury to find that he acted recklessly and
thereby created a risk that the victim would die. . . .
We further explained that the statutory definitions of
intentionally and recklessly are mutually exclusive and
inconsistent. . . . Reckless conduct is not intentional
conduct because [a person] who acts recklessly does not have
a conscious objective to cause a particular result. . . .
Thus, we observed that [t]he intent to cause death
required for a conviction of attempted murder [under
General Statutes §§ 53a-49 and 53a-54a (a)] . . .
necessitated a finding that the defendant acted with the
conscious objective to cause death . . . [whereas] [t]he
reckless conduct necessary to be found for a conviction
of assault under [§ 53a-59 (a) (3)] . . . required
a finding that the defendant acted without such a
conscious objective. ...