State v. Ovechka
State v. Ovechka
Opinion of the Court
Opinion
The dispositive issue in this certified appeal is whether there was sufficient evidence for a jury to find that a person assaulted with pepper spray had suffered" ‘[s]eiious physical injuries],’ ”as defined by General Statutes § 53a-3 (4),
The Appellate Court’s opinion sets forth the following facts and procedural history. “The defendant and Michael Rynich, a Bridgeport police officer, were next door neighbors.
With respect to the July 2, 2003 incident, “[t]he defendant conceded that he was on his lawn spraying weed killer on weeds, within the fence line of his property, when he saw Rynich leave his house and get into his vehicle. The jury also heard testimony from Rynich. Rynich testified that when he stopped his vehicle at the stop sign near the defendant’s property, he saw the defendant’s wife. Because Rynich wanted to talk with the defendant’s wife about the issues that had occurred between the defendant and himself, Rynich drove his car to the side of the road in front of the defendant’s house and got out of his vehicle. Rynich walked onto the defendant’s property. The defendant and Rynich exchanged insults. Rynich yelled to the defendant’s wife
“On July 23, 2003, the defendant was charged in an information
The defendant raised numerous claims on appeal to the Appellate Court,
On appeal, the state claims that the Appellate Court improperly concluded that the evidence was insufficient to prove that the pepper spray; see footnote 10 of this opinion; that the defendant had sprayed on Rynich’s eyes, face, clothing and body was a “ ‘[djangerous instrument’ ” within the meaning of §§ 53a-60 (a) (2) and 53a-3 (7). Specifically, the state, relying on the opinion of the dissenting Appellate Court judge, argues that the injuries that Rynich had incurred were serious physical injuries, which meant that the substance used
“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 determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with
“To prove the defendant guilty of assault in the second degree [under § 53a-60 (a) (2)], the state was required to prove beyond a reasonable doubt that (1) the defendant intended to cause physical injury to another person, (2) he did in fact cause injury to such person and (3) he did so by means of a dangerous instrument.” (Internal quotation marks omitted.) State v. Bosse, 99 Conn. App. 675, 678, 915 A.2d 932, cert. denied, 282 Conn. 906, 920 A.2d 310 (2007). “Section 53a-3 (7) requires that the circumstances in which the instrument is used be considered to determine its potential as an instrument of death or serious physical injury, but the instrument need not actually cause death or serious physical injury. . . . Serious physical injury is not itself ... an essential element of the crime charged. It is but a definitional component of an essential element.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Id. If, however, an instrument has, in fact, caused a serious physical injury, it is considered dangerous ipso facto. Section 53a-3 (4) defines “ ‘[s]erious 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 instrument is “dangerous” and whether a physical injuiy is “serious” are questions of fact committed to the province of the jury. See, e.g., State v. Almeda, 211 Conn. 441, 450, 560 A.2d 389 (1989) (serious physical injury); State v. Jones, 173 Conn. 91, 95, 376 A.2d 1077 (1977) (dangerous instrument).
We acknowledge that Rynich’s injuries were not as grievous as some of the injuries that our courts pre
Thus, on the basis of the previously discussed case law and the well established standard by which we review jury verdicts, we conclude that the temporary blindness, chemical conjunctivitis and chemical bums suffered by Rynich constituted sufficient evidence of “ ‘[sjerious physical injury’ ” under § 53a-3 (4) such that the jury, if properly instructed,
In this opinion PALMER, ZARELLA and McLACH-LAN, Js., concurred.
General Statutes § 53a-3 (4) provides in relevant part: “ ‘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 (7) provides in relevant part: “ ‘Dangerous instrument’ means any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury . . . (Emphasis added.)
We granted the state’s petition for certification limited to the following issue: “Did the Appellate Court properly conclude that the state’s evidence of the defendant’s repeated spraying of the victim in the eyes, face, clothing and body with weed killer and/or pepper spray, and of the victim’s eye and skin injuries, was insufficient to prove the use of a ‘dangerous instrument’ within the meaning of ... § 53a-60 (a) (2) (assault in the second degree) and ... § 53a-3 (7)?” State v. Ovechka, 282 Conn. 909, 922 A.2d 1099 (2007).
General Statutes § 53a-60 (a) provides in relevant part: “A person is guilty of assault in the second degree when ... (2) with intent to cause 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 other than by means of the discharge of a firearm . . . .” (Emphasis added.)
“The defendant lived at 190 Lynn Place, located on the comer of Lynn Place and Barkley Street, and Rynich lived at 126 Barkley Street in Bridgeport. At the time of the trial, they had been next door neighbors for about four years.” State v. Ovechka, supra, 99 Conn. App. 681 n.3.
The Appellate Court majority opinion, echoed by the dissent, then recites as a statement of fact: “Rynich testified that he subsequently drove himself home.” State v. Ovechka, supra, 99 Conn. App. 684. In our view, this specific statement of fact is not a completely accurate reflection of the record herein, and the defendant does not recite it in his brief, either. Rynich did not testify on direct or cross-examination that he drove himself home after the attack but, rather, only that he “tried to get off of [the defendant’s] property as quick as [he] could” and went home, where he called for medical assistance. Rynich did not testify specifically as to how he traveled home. The only testimony that Rynich had driven himself home after the attack came from the defendant’s wife, Maria Ovechka, who testified that she saw Rynich retreat after being sprayed, jump in his truck, and back it around the comer of the block toward his own driveway.
“The charges originally had been brought in three separate files which, upon the state’s motion, the court, J. Fischer, J., joined for trial on September 5, 2003.” State v. Ovechka, supra, 99 Conn. App. 681 n.4.
The record reveals that the defendant no longer is incarcerated. Nevertheless, this appeal is not moot because practical relief remains available as a result of the collateral consequences attendant to a criminal conviction; see, e.g., State v. McElveen, 261 Conn. 198, 216 n.14, 802 A.2d 74 (2002); as weE as the fact that he remains subject to a period of probation.
The defendant also claimed on appeal that: “(1) the court’s instructions on assault in the second degree in violation of ... § 53a-60 (a) (2) were inadequate, (2) he was deprived of his constitutional right to present a defense because no instructions were given on defense of property, defense of premises or defense of dwelling, (3) the court’s instructions on self-defense failed to ensure that the state was required to disprove the defense beyond a reasonable doubt, (4) the evidence was insufficient to show that the state had disproved aE avaüable justification defenses beyond a reasonable doubt, (5) the court improperly excluded certain evidence from the jury room and (6) he was deprived of a fair trial by prosecutorial misconduct.” State v. Ovechka, supra, 99 Conn. App. 689 n.2 (Rogers, J., dissenting).
The AppeEate Court noted that “[t]here was conflicting testimony regarding the substance that the defendant sprayed into Rynich’s eyes. The defendant testified that he sprayed pepper spray, which had been in his pocket, at Rynich. The state introduced evidence to estabHsh that the spray used was weed kiEer, which the defendant had been spraying on his property. We decline to determine whether sufficient evidence existed to estabUsh whether pepper spray or weed kiEer was sprayed in Rynich’s eyes. Regardless of the substance involved, the state did not prove that whichever sub
Because our decision in this certified appeal is based solely on the defendant's admitted use of pepper spray, it is not necessary to determine whether the defendant sprayed Rynich with weed killer as well.
The state also notes that the jury reasonably could have found that the defendant had sprayed Rynich with Spectracide weed killer, in addition to, or instead of, pepper spray. The state then contends that the jury reasonably could have found, on the basis of its own knowledge and common sense, that weed killer is a toxic substance subject to wide regulation, and that it is a dangerous instrument. In light of our conclusion herein based solely on the defendant’s admitted use of pepper spray; see footnote 10 of this opinion; we need not address these claims.
Rynich also testified that he has suffered from altered vision since the day that the defendant pepper sprayed him, although, according to Rynich, his physician has not determined definitively whether those vision changes were because of the pepper spray or the effects of age.
The dissent asserts that it has reviewed the photographic exhibits in
The relevant statute, California Penal Code § 12022 (b), provided for a one year' sentence enhancement for “[a]ny person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony . . . .” Case law defined “dangerous weapon” as “an instrument capable of inflicting great bodily injury or death,” and noted that “great bodily injury” is “injury which is significant or substantial, not insignificant, trivial or moderate.” (Internal quotation marks omitted.) People v. Blake, supra, 117 Cal. App. 4th 555-56.
The applicable statute defined “[sjerious physical injury” in relevant part as “ ‘physical injury which . . .
“ ‘(3) Causes serious . . . protracted loss of the function of any bodily member or organ; or
“ ‘(4) Causes serious . . . protracted impairment of the function of any bodily member or organ.’ ” Handy v. State, supra, 357 Md. 700, quoting Md. Ann. Code art. 27, § 12 (c) (Cum. Sup. 1998), repealed by Acts 2002, c. 26, § 1, effective October 1, 2002.
We note that the Court of Appeals of Maryland’s decision in Handy is consistent with the decisions from numerous other courts of appeal that have upheld factual findings that pepper spray is a dangerous weapon under their jurisdictions’ relevant statutes. See United States v. Neill, 166 F.3d 943, 949-50 (9th Cir.) (deferring to District Court’s finding that pepper spray was “dangerous weapon” capable of causing “ ‘serious bodily injury,’ ” defined as one “ ‘involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation’ ” because bank robbery victim suffered burning eyes and nose, and aggravation of her preexisting asthma), cert. denied, 526 U.S. 1153, 119 S. Ct. 2037, 143 L. Ed. 2d 1046 (1999); People v. Elliott, 299 Ill. App. 3d 766, 773, 702 N.E.2d 643 (1998) (rejecting defendant’s claim that pepper spray was not “dangerous weapon” as matter of law because of temporary, but “incapacitat[ing]” eye burning, blinding, nausea and respiratory distress experienced by robbery victims); State v. Harris, 966 So. 2d 773, 778-79 (La. App. 2007) (headaches and temporary blindness caused by pepper spray satisfied “ ‘extreme physical pain’ ” element of statutory definition of “ ‘serious bodily injury’ ”), writ denied, 978 So. 2d 304 (La. 2008); People v. Norris, 236 Mich. App. 411, 418-19, 600 N.W.2d 658 (1999) (relying on “extreme eye pain and burning sensations that required [robbery victims] to seek medical treatment” to conclude that jury reasonably could have found that pepper spray was “ ‘dangerous weapon’ ”).
Other courts have held similarly with respect to tear gas Mace. See United States v. Dukovich, 11 F.3d 140,142 (11th Cir.) (deferring to District Court’s finding that tear gas Mace was “ ‘dangerous weapon’ ” requiring sentence enhancement for bank robbery when it caused victims to suffer eye pain and burning, headaches and throat pain), cert. denied, 511 U.S. 1111, 114 S. Ct. 2112, 128 L. Ed. 2d 671 (1994); Commonwealth v. Lord, 55 Mass. App. 265, 270, 770 N.E.2d 520 (Mace is a “dangerous weapon” per se because it is designed to incapacitate by causing “tearing eyes, burning sensations on the skin, and breathing difficulties. Although the degree of debilitation depends on an individual’s sensitivity and tolerance for pain, Mace is nonetheless designed to exert very painful and disabling effects.”), review denied, 437 Mass. 1108, 774 N.E.2d 1098 (2002); but see United States v. Harris, 44 F.3d 1206, 1216-19 (3d Cir.) (rejecting District Court’s factual finding that Mace used during bank robbery had caused “ ‘bodily injury’ ” because record did not reflect “character and duration of the symptoms experienced by the tellers, as well as the character of the ‘medical attention’ they received”), cert. denied, 514 U.S. 1088, 115 S. Ct. 1806, 131 L. Ed. 2d 731 (1995).
We agree, however, with the defendant’s argument that State v. Aponte, 50 Conn. App. 114, 121, 718 A.2d 36 (1998), rev’d in part on other grounds, 249 Conn. 735, 738 A.2d 117 (1999), is distinguishable because the victim’s “serious physical injuries” in that child abuse case included, in addition to an eye injury causing temporary vision impairment, a pancreatic injury that a surgeon testified had “created a risk of death.”
The dissent challenges the rationale of our conclusion by arguing that it is undisputed that the jury never made a finding that Rynich had suffered serious physical injuries because the trial court never instructed it about the definition of that term. We disagree because the dissent improperly conflates the defendant’s sufficiency of the evidence claim, which is before us in this certified appeal, with the defendant’s instructional claim and its attendant harmless error analysis; see footnote 9 of this opinion; which is not before us. Thus, because we view the evidence in the light most favorable to sustaining the jury’s verdict; see, e.g., State v. Jones, supra, 289 Conn. 754; we leave consideration of the defendant’s instructional claims in the first instance to the Appellate Court on remand.
Citing personal interviews with various physicians and medical professionals, as well as a wide variety of medical literature pertaining to the anatomy of the eyes and skin, the defendant argues that medical knowledge and opinion indicate that Rynich’s injuries were not serious in nature. Although we understand the defendant’s desire to supplement the factual record with this medical fact and opinion evidence, the introduction of which might well have persuaded the jury to decide this factual issue differently, we are constrained to note that well established principles governing appellate review of factual decisions preclude us from utilizing this material to find facts on appeal. See, e.g., State v. Dillard, 66 Conn. App. 238, 248 n.11, 784 A.2d 387 (“that information was not before the trial court, and, on appeal,
The dissent considers our conclusion to be “in effect ... a per se rule . . . potentially exposing all users of [pepper spray] device[s] to a charge of assault in the second degree in violation of § 53a-60 (a) (2)”; (emphasis in original); and expresses further concerns regarding the possibility that our decision might well have the unintended effect of subjecting both ordinary citizens and law enforcement personnel who use pepper spray to expanded civil and criminal liability. We disagree with the dissent’s characterization of our conclusion and its effect. First, we do not adopt a per se rule of any kind, as we have not decided that a jury must be instructed that the injuries suffered by Rynich are serious as a matter of law, or that pepper spray is as a matter of law a dangerous instrument. This inquiry remains a question of fact committed to a properly instructed trier. Moreover, to the extent that the dissent claims that, in the wake of this decision, a reviewing court always will have to uphold a verdict finding that injuries akin to those suffered by Rynich are serious physical injuries, we fail to see how this case is different from any other case decided by this court in that courts or litigants seeking to resolve a legal issue logically orient their searches for authority toward decisions that arise from similar sets of facts.
Second, the justification defenses found in our General Statutes, which employ an objective standard of reasonableness, answer the dissent’s concerns about the potential expansion of criminal liability for police and correction officers who utilize pepper spray in the course of their duties, as well as citizens who use it as a self-defense instrument. See, e.g., General Statutes § 53a-18 (2) (“[a]n authorized official of a correctional institution or facility may, in order to maintain order and discipline, use such physical force as is reasonable and authorized by the rules and regulations of the Department of Correction”); General Statutes § 53a-19 (a) (“[e]xcept as provided in subsections [b] and [c] of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose”); General Statutes § 53a-22 (b) (“a peace officer, special policeman appointed under section 29-18b ... or authorized official of the Department of Correction or the Board of Pardons and Paroles is justified in using physical force upon another person when and to the extent that he or she reasonably believes such to be necessary to: [1] Effect an arrest or prevent the escape from custody of a
Dissenting Opinion
join, dissenting. Because the jury was not instructed to determine whether the injuries suffered by Michael Rynich constituted a “ ‘[s]erious physical injury’ ” as defined in General Statutes § 53a-3 (4), and because the injuries suffered, in my view, do not satisfy, as a matter of law, the statutory criteria for serious physical injury, I respectfully dissent. I begin by clarifying our role in this case and why the foundation of the majority’s conclusion is based on a faulty premise. Next, I will demonstrate how, under proper consideration of the statutory criteria set forth in § 53a-3 (4), Rynich’s injuries do not constitute serious physical injuries as a matter of law. Finally, I will raise some prudential considerations as to why the majority’s conclusion may
At the outset, I recognize that when a reviewing court addresses a claim challenging the sufficiency of the evidence, an inherent tension exists between the duty of the court to provide meaningful review of the jury’s verdict and the admonition that the court must not attempt to “sit as a thirteenth juror.” (Internal quotation marks omitted.) State v. Morgan, 274 Conn. 790, 800, 877 A.2d 739 (2005). Accordingly, our role is to proceed cautiously, keeping in mind that we must construe the evidence in the light most favorable to sustaining the verdict. State v. Jones, 289 Conn. 742, 754, 961 A.2d 322 (2008). As a court of last resort, however, we are bound to define and distinguish concepts and, in effect, to draw lines to ensure the orderly administration of our laws. The present case calls upon us to draw a line between “ ‘[p]hysical injury’ ” and “ ‘jsjerious physical injury’ ” as the legislature has defined those terms in our statutes. General Statutes § 53a-3 (3) and (4). Although it may often be difficult to distinguish between the two concepts in particular factual situations, the distinction must be drawn. State v. Rossier, 175 Conn. 204, 207, 397 A.2d 110 (1978). I wish to emphasize that this inquiry is not some abstract controversy in semantics. Because the state presented no evidence whatsoever on the dangerousness of pepper spray, the only way in which the jury's verdict finding the defendant, Paul Ovechka, guilty of assault in the second degree can be sustained is through a series of reverse inferences that hinge upon an initial finding of a serious physical injury.
Section 53a-3 (3) defines “ ‘[p]hysical injury’ ” simply and broadly as “impairment of physical condition or pain . . . .’’On the other hand, § 53a-3 (4) defines “ ‘[s]erious 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
In the present case, the majority purports to uphold the jury’s verdict based on the notion that the jury reasonably had found that Rynich had suffered a “serious . . . impairment of the function of any bodily organ”; General Statutes § 53a-3 (4); namely, to the eyes and skin, which are both bodily organs.
In support of its position on appeal, the state principally relies on the testimony of Rynich and his emergency room physician, Jeffrey Pellenberg. Rynich testified that after being sprayed he was blinded and burned and that his eyes were blurry for the rest of the day. Pellenberg testified that he diagnosed Rynich with chemical conjunctivitis and chemical dermatitis, which, according to Pellenberg, means irritation of the eyes and skin.
When construed in a light most favorable to sustaining the verdict, the evidence supported only findings that Rynich suffered irritation to his eyes and skin
In cases in which our appellate courts have determined that sufficient evidence existed to support a finding of serious physical injury, the injuries suffered were, appropriately, of a serious nature. See, e.g., State v. Miller, 202 Conn. 463, 488, 522 A.2d 249 (1987) (strangulation leading to loss of consciousness, severe facial lacerations, multiple abrasions and contusions, swollen blood filled eyes, weeklong hospital stay); State v. Robinson, 174 Conn. 604, 606, 392 A.2d 475 (1978) (lacerations, fractured ribs, multiple bruises, broken finger, disfigured legs, blood transfusions); State v. Jeustini-ano, 172 Conn. 275, 281-82, 374 A.2d 209 (1977) (gunshot wounds to groin and forearm); State v. Barretta, 82 Conn. App. 684, 690, 846 A.2d 946 (severe bruises, abrasions and contusions across trunk of body, shoulder and neckline), cert. denied, 270 Conn. 905, 853 A.2d 522 (2004); State v. Aponte, 50 Conn. App. 114, 118, 718 A.2d 36 (1998) (potentially life-threatening pancreatic injury, closure of left eye), rev’d in part on other grounds, 249 Conn. 735, 738 A.2d 117 (1999); State v. Graham, 21 Conn. App. 688, 717, 575 A.2d 1057 (gunshot wound to face and shoulder, loss of sight in left eye), cert. denied, 216 Conn. 805, 577 A.2d 1063 (1990); State
Turning to the consequences of the majority’s decision, despite the faulty premise that underlies its conclusion, the majority proceeds to set forth what, in effect, must be considered a per se rule, thereby potentially exposing all users of this device to a charge of assault in the second degree in violation of § 53a-60 (a) (2). This is so because, at a minimum, virtually every such “victim” of pepper spray is likely to suffer temporary visual blurriness along with eye and skin irritation. It is common knowledge that the ordinary function of pepper spray is as a nonlethai form of self-protection for ordinary citizens and as a nonlethai means by which police officers subdue an uncooperative suspect. To be sure, the use of pepper spray must not be taken lightly. With that in mind, however, I am troubled by the potential unintended consequences of the majority’s ruling on actions undertaken by ordinary citizens.
Moreover, because the majority’s ruling necessarily flows from the nature of the injury and not the instrument, its opinion could well be interpreted to go beyond pepper spray cases to apply more broadly to any case involving an action that produces visual blurriness and skin and eye irritation. At this point, it is important to note that § 53a-60 (a) (2) requires an analysis of the circumstances in which the instrument is used. That is, if someone causes another person to suffer from blurriness while that person is driving an automobile, I would agree, as the defendant concedes, that under such circumstances, the instrument would be capable of causing serious physical injuries, i.e., injuries flowing from an automobile accident. That said, the majority’s decision in this case — which clearly did not arise out of such circumstances — could lead to unintended adverse consequences under § 53a-60 (a) (2) on the, ground that visual blurriness and eye and skin irritation are serious physical injuries. For the foregoing reasons, including the insufficient evidence in this case and the adverse consequences of the ruling, I respectfully dissent.
Accordingly, I would affirm the judgment of the Appellate Court.
Ordinarily, the state could have proven that the pepper spray or weed killer, if used, was a dangerous instrument by offering expert testimony that such an instrument was “capable of causing death or serious physical injury . . . .” General Statutes § 53a-3 (7). In the present case, the state offered no evidence about the capability or characteristics of either substance. On appeal, the state argues that it is within a juror’s common knowledge that these substances are capable of causing serious physical injury. I disagree.
Stated affirmatively, “[t]o prove the defendant guilty of assault in the second degree pursuant to § 53a-60 (a) (2), the state was required to prove beyond a reasonable doubt that the defendant, with intent to cause a physical injury to Rynich, caused such injury to Rynich by means of a dangerous instrument. General Statutes § 53a-3 (7) defines [d]angerous instrument in relevant part as any instrument . . . which, under the circumstances in which it is used . . . is capable of causing death or serious physical injury .... [Section] 53a-3 (4) defines [s]erious 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 . . . .” (Emphasis added; internal quotation marks omitted.) State v. Ovechka, 99 Conn. App. 679, 683, 915 A.2d 926 (2007).
Indeed, the dissent in the Appellate Court, which the majority endorses, asserts that “[t]he jury reasonably could have found that a loss of vision in both his eyes, albeit temporarily, constituted a loss of serious impairment of the function of any bodily organ.” State v. Ovechka, 99 Conn. App. 679, 689, 915 A.2d 926 (2007) (Rogers, J., dissenting).
The majority suggests that I have conflated the sufficiency claim, which is before us, with the instructional claim, which is not. See footnote 18 of the majority opinion. I raise the instructional issue to underscore why the
Pain can be a proper consideration in a serious bodily injury analysis in certain circumstances. See, e.g., Federal Sentencing Guidelines Manual § 1B1.1, commentary n.l (L) (2008) (defining “ ‘[sjerious bodily injury’ ” as “injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation” [emphasis added]); see also United States v. Harris, 44 F.3d 1206, 1216 (3d Cir.), cert. denied, 514 U.S. 1088, 115 S. Ct. 1806, 131 L. Ed. 2d 731 (1995).
In its brief, the state asserts that “[s]evere irritation of the skin such as that suffered by Rynich constitutes both a painful injury to the skin and endangerment of the skin’s ability to efficiently and effectively serve its bodily functions.” As noted, pain is irrelevant to the issue before us, and no evidence was presented at trial regarding the bodily functions the skin performs or, more specifically, whether, and to what extent, Rynich’s skin was affected in this regard.
It should also be noted that, although they may be persuasive, we are not bound by decisions of the Appellate Court. Therefore, I disagree with the majority’s attempt to demonstrate inconsistencies in our case law on the basis of decisions from two different courts.
In addition, I find the majority’s reference to outside jurisdictions unpersuasive. Many of those cases address different substances, i.e., tear gas or Mace; see, e.g., United States v. Dukovich, 11 F.3d 140, 142 (11th Cir.) (addressing tear gas Mace), cert. denied, 511 U.S. 1111, 114 S. Ct. 2112, 128 L. Ed. 2d 671 (1994); and/or are based on different statutory criteria. See, e.g., Commonwealth v. Lord, 55 Mass. App. 265, 268-69, 770 N.E.2d 520 (statutes do not define “dangerous weapon”), review denied, 437 Mass. 1108, 774 N.E.2d 1098 (2002).
Take for example a woman walking down a dark street at night, followed by an unknown man. If the woman intentionally sprays the man because she, albeit mistakenly and in good faith, believes an attack is imminent, her criminal exposure, as a result of the majority’s opinion, based as it is on a faulty premise, has increased from assault in the third degree in violation of General Statutes § 53a-61 (a) (1), which is a class A misdemeanor with no minimum sentence, to assault in the second degree in violation of § 53a-60 (a) (2), which is a class D felony that carries a minimum sentence of one year imprisonment and a maximum sentence of five years imprisonment. General Statutes § 53a-35a (8). Although I agree with the majority that our statutes provide justification defenses, the availability of these defenses does not bear on the point made, that is, that certain people may be faced with heightened criminal exposure as a result of the majority opinion.
Reference
- Full Case Name
- State of Connecticut v. Paul Ovechka
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