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*********************************************** 
STATE OF CONNECTICUT v.

ZAIRE RAULIN LUCIANO

(AC 42263)

Bright, C. J., and Alvord and Prescott, Js.

Syllabus

Convicted of the crimes of assault in the second degree and conspiracy to

commit assault in the first degree in connection with a fight at a bar,

the defendant appealed to this court. One victim of the fight, C, suffered

a head wound as a result of being punched, and the other victim, T,

was struck by a bat and suffered, inter alia, a fractured ankle. Although

there was evidence that the defendant exchanged punches with C, no

evidence was presented that the defendant wielded the bat or as to the

identity of the person who did. The defendant claimed, inter alia, that

the evidence was insufficient to support his conviction. Held:

1. The evidence adduced at trial was insufficient to support the defendant’s

conviction of conspiracy to commit assault in the first degree: there

was no evidence presented or any reasonable inference that could have

been drawn that a relationship existed between the defendant and the

unidentified person who wielded the bat or that they engaged in any

coordinated action, and an inference by the jury that the defendant

had entered into an agreement with that person would be based on

impermissible conjecture; moreover, the brief nature of the incident

supported the conclusion that, even if the defendant saw the individual

with the bat while he continued to exchange punches with C for a short

period of time, there could not have been an inference that his continued

participation in the fight supported an inference of an agreement with

the bat wielding individual, and, accordingly, a judgment of acquittal of

that crime was directed.

2. There was insufficient evidence presented at trial to establish that C’s

injuries were caused by means of a dangerous instrument, as C did

not testify and the evidence established only that the defendant had

exchanged punches with C and C was later transported to a hospital,

and, accordingly, a judgment of acquittal of assault in the second degree

was directed.

Argued February 4—officially released May 4, 2021

Procedural History

Amended information charging the defendant with

the crimes of assault in the first degree, assault in the

second degree, and conspiracy to commit assault in the

first degree, brought to the Superior Court in the judicial

district of New Haven and tried to the jury before B.

Fischer, J.; thereafter, the court denied the defendant’s

motion for a judgment of acquittal; verdict and judgment of guilty of the crimes of assault in the second

degree and conspiracy to commit assault in the first

degree; subsequently, the court denied the defendant’s

motions for a new trial and to vacate the conviction,

and the defendant appealed to this court. Reversed;

judgment directed.

Erica A. Barber, for the appellant (defendant).

Rocco A. Chiarenza, assistant state’s attorney, with

whom, on the brief, were Patrick J. Griffin, state’s

attorney, and Seth R. Garbarsky, senior assistant state’s

attorney, for the appellee (state).
Opinion

ALVORD, J. The defendant, Zaire Raulin Luciano,

appeals from the judgment of conviction, rendered after

a jury trial, of one count of assault in the second degree

in violation of General Statutes § 53a-60 (a) (2), and

one count of conspiracy to commit assault in the first

degree in violation of General Statutes §§ 53a-48 (a)

and 53a-59 (a) (1).1 On appeal, the defendant claims

that the evidence was insufficient to support (1) his

conviction of conspiracy to commit assault in the first

degree and (2) his conviction of assault in the second

degree.2 We agree with the defendant and, accordingly,

reverse the judgment of the trial court.

The jury was presented with evidence of the following

facts. On the evening of April 22, 2016, Jason Torello

was having a few beers at home in North Branford. He

had recently lost someone close to him and was ‘‘sort of

a homebody.’’ Torello’s good friend, Edward Corradino,

called to ask if he wanted to go out. Although Torello

declined, Corradino stopped by his house and convinced him to go to Bar 80 (bar), which was approximately a mile from Torello’s house. They arrived at the

bar around 9 p.m. and went inside. The bar was fairly

empty. They sat at a table, and Torello had four to

eight beers. Torello also had taken Xanax, which was

prescribed to him for anxiety, and had snorted one line

of cocaine, and he described himself as intoxicated.

Corradino also was drinking and using drugs.

Outside the front entrance to the bar, a large group

of ‘‘Hispanic, Latino looking’’ men were standing around

and smoking cigarettes. Corradino and Torello went

outside in front of the bar to smoke cigarettes two or

three times throughout the night. At around 10 p.m.,

Torello and Corradino were outside smoking cigarettes

when Rob Burgos,3 who knew Torello but had not seen

him in a long time, reintroduced himself. The two made

small talk for less than a minute before Torello went

back inside the bar and Burgos walked back toward

the group of men.

Sometime after midnight, Torello and Corradino went

outside to smoke another cigarette. Someone from the

same group of men present earlier told Torello that he

could not smoke in front of the bar and that he had to

go around the back of the building by the dumpster.

Torello responded by saying ‘‘that sounds pretty weird’’

that there is a group of people smoking but he cannot

smoke his cigarette. Then he said, ‘‘Anybody planning

to do anything?’’ According to Torello, ‘‘things kind of

hit the fan’’ at that point. Torello used his cell phone

to call his father to come help him.4 While Torello was

still holding his cell phone, a stocky Hispanic man with

‘‘lighter skin’’ and ‘‘short hair’’ walked up to him. ‘‘Fists

started flying,’’ and Torello and the man exchanged

blows. Torello could not make much of a fist because
he still had his cell phone in his hand.

The two had not been fighting for very long when

another individual came from Torello’s left and hit him

in the head with a ‘‘bat, something metal.’’ Torello did

not get a good look at the bat, and testified that ‘‘it

could have been a pipe, one of the extendo baton

things.’’ Torello tried to grab it but it slid out of his

grasp, and the next swing hit Torello in the head. Torello

lost consciousness for about thirty seconds and fell to

the ground. More than one person continued to beat

Torello with ‘‘bat hits, kicks, [and] punches.’’

Meanwhile, the defendant had squared up with Corradino, and the two exchanged punches. Out of Torello’s

peripheral vision, he could see the defendant ‘‘in [Corradino’s] face.’’ At some point, Corradino fell on top of

Torello. Torello never saw the defendant with a bat. At

some point, the group of men took off. Torello saw a

few of them leaving in a black BMW, and he believed

that he saw the defendant and Burgos leave together in

a red Corvette.5 Torello, however, was unsure whether

Burgos was involved in the fight or whether he was

present with the group of Hispanic men outside the bar

just before the fight started.

Edwin Serrano, a friend of the defendant’s father,

who had known the defendant for seven years, testified

at trial to other events leading up to the fight. According

to Serrano, he arrived at the bar at the same time as

the defendant. Later in the evening, Serrano was outside

smoking a cigarette with the defendant when he saw

three white men around twenty-five or twenty-seven

years old walk into the bar. One of the men appeared

intoxicated and said ‘‘something racist against [Hispanic] people.’’ The comment was not directed at anyone in particular. About twenty minutes later, Serrano

was outside with the defendant smoking another cigarette when he saw the man who he thought had made

the racist comment come outside. Serrano then saw

three other men, one of whom had a bat, approach from

Serrano’s left. Serrano was not able to describe the men

because it ‘‘happened so fast.’’ According to Serrano,

the defendant put his hands up and said, ‘‘Whoa, whoa,

whoa, whoa.’’ Serrano went back into the bar and did

not see the fight. The defendant stayed outside.

Kelsey Henninger was inside the bar when the fight

broke out. Henninger had dated Burgos but the two

were on ‘‘a break,’’ and she did not know that he was

going to be at the bar that night. Henninger knew the

defendant through Burgos, and she knew Torello from

middle school. At some point during the evening, Henninger saw Burgos and the defendant with a group of

people that she had never seen before.

Through the bar window, Henninger saw people running outside and ‘‘a lot of chaos.’’ She went outside and

saw Torello on the ground and vehicles leaving the
parking lot. Henninger testified that she then went back

inside and met Burgos as he was coming in from the

back door of the bar. According to Henninger, Burgos

told her that there was ‘‘a fight.’’ Henninger never saw

the defendant after the fight. Henninger testified that

she and Burgos left the bar together.6

Officer Henry Browne of the North Branford Police

Department was at a gas station 100 to 200 yards away

from the scene when he was dispatched to the bar for

an ‘‘active fight.’’7 He responded within seconds and

saw two vehicles leaving the property as he arrived.8

A woman yelled to Officer Browne for help, and he

found Corradino and Torello, both of whom were

injured and appeared to be in shock but were able to

answer questions. Corradino was bleeding from a

wound on his head and was ‘‘pacing around.’’ He told

Officer Browne that he was hit in the head. Torello was

lying on the ground and had sustained an injury to his

leg. Torello and Corradino told Officer Browne that

they could not identify who had assaulted them. By this

time, Torello’s father had arrived and was trying to

render aid to him. Paramedics also arrived and began

attending to Torello and Corradino. Officer Browne

spoke with people at the bar.9

Torello was taken to Yale New Haven Hospital (hospital), where he underwent surgery for a fractured ankle.10

He told the treating physician that he did not know

whether he had been struck in the ankle or had fallen

on it.

Sean Anderson, an acting lieutenant and sergeant

in the detective bureau, and his colleague, Detective

Robert Deko, both of the North Branford Police Department, began investigating the fight a few days after it

happened. They located the red Corvette that had been

seen leaving the bar,11 obtained a search and seizure

warrant, and had it towed to the police station. Detective Nieves of the New Haven Police Department processed the Corvette. Nieves seized from inside the Corvette a white polo shirt with a diagonal stripe, a pair

of jeans, a Walgreen’s receipt,12 and a bank statement

in the defendant’s name. Both the shirt and jeans had

brown stains on them, and presumptive tests revealed

the presence of blood. A presumptive test on the driver’s

side headrest also revealed the presence of blood.

Nieves took swabs from various areas of the vehicle,

and the clothing and swabs were sent to a laboratory

run by the division of scientific services of the Department of Emergency Services and Public Protection (laboratory) to be analyzed for DNA. Buccal swabs from

the defendant, Torello, and Corradino also were sent

to the laboratory.

Michael Bourke, a DNA analyst with the laboratory,

performed an analysis of and made comparisons

between the DNA profiles generated from the buccal

swabs and the DNA profiles derived from the clothing
and car swabs and prepared a report of his findings.

With respect to the clothing, the defendant was included

as a contributor to the DNA profile generated from the

interior of the shirt collar and the stain on the jeans,

and Torello and Corradino were eliminated as contributors to both profiles. With respect to the stain on the

shirt, Corradino was included as a contributor, Torello

was eliminated as a contributor, and the comparison

with the defendant was inconclusive.

Both Corradino and the defendant were included as

contributors to the genetic profiles generated from

swabs taken from the gear shift and driver’s side headrests of the Corvette, and Torello was eliminated as

a contributor to both. Corradino was included as a

contributor to the genetic profile generated from a swab

taken from the passenger side armrest, while both Torello and the defendant were eliminated.

About two weeks after the fight, Corradino showed

Torello a photograph of the defendant, and Torello identified the defendant13 as one of the men who had been

involved in the fight.14 In discussions with the police,

Torello shared this information. The defendant was

arrested and charged by way of an amended long form

information dated July 27, 2018. The first count alleged

assault in the first degree of Torello in violation of

General Statutes §§ 53a-8 and 53a-59 (a) (1). The second

count alleged assault in the second degree of Corradino

in violation of §§ 53a-8 and 53a-60 (a) (2), and the third

count alleged conspiracy to commit assault in the first

degree in violation of §§ 53a-48 (a) and 53a-59 (a) (1).

A trial was held in July and August, 2018. The state

presented the testimony of Torello, Officer Browne,

Lieutenant Anderson, Henninger, Detective Nieves,

Adrienne Socci,15 and Bourke. The defendant presented

the testimony of Serrano. Neither Corradino nor Burgos

testified at trial. The state issued a subpoena to Burgos,

and, although he appeared on the date requested, he

failed to return the next day as instructed. The court

issued a capias for Burgos’ arrest. When he had not

been located the following day, the state rested its casein-chief. That same day, the court put on the record the

state’s intention to proceed under a theory of Pinkerton16 liability, rather than pursuing a theory of accessorial liability, as to counts one and two. After the parties

informed the court that they had no further evidence,

the trial court denied the defendant’s motion for a judgment of acquittal.

The jury found the defendant not guilty of the assault

of Torello, count one, but found the defendant guilty

of counts two and three. Thereafter, the court sentenced

the defendant to eight years of incarceration, execution

suspended after five years, followed by three years of

probation, on each count, to run concurrently. This

appeal followed.
Before turning to the defendant’s claims on appeal,

we set forth the well established principles that guide

our review. ‘‘[A] defendant who asserts an insufficiency

of the evidence claim bears an arduous burden. . . .

[F]or the purposes of sufficiency review . . . we

review the sufficiency of the evidence as the case was

tried . . . . [A] claim of insufficiency of the evidence

must be tested by reviewing no less than, and no more

than, the evidence introduced at trial. . . . In

reviewing a sufficiency of the evidence claim, 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 [jury]

reasonably could have concluded that the cumulative

force of the evidence established guilt beyond a reasonable doubt . . . . This court cannot substitute its own

judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . .

‘‘[T]he jury must find every element proven beyond

a reasonable doubt in order to find the defendant guilty

of the charged offense, [but] each of the basic and

inferred facts underlying those conclusions need not

be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic

fact or an inferred fact is true, the jury is permitted to

consider the fact proven and may consider it in combination with other proven facts in determining whether

the cumulative effect of all the evidence proves the

defendant guilty of all the elements of the crime charged

beyond a reasonable doubt. . . .

‘‘Moreover, it does not diminish the probative force

of the evidence that it consists, in whole or in part, of

evidence that is circumstantial rather than direct. . . .

It is not one fact . . . but the cumulative impact of

a multitude of facts which establishes guilt in a case

involving substantial circumstantial evidence. . . . In

evaluating evidence, the [jury] is not required to accept

as dispositive those inferences that are consistent with

the defendant’s innocence. . . . The [jury] may draw

whatever inferences from the evidence or facts established by the evidence [that] it deems to be reasonable

and logical.’’ (Citations omitted; internal quotation

marks omitted.) State v. VanDeusen, 160 Conn. App.

815, 822–23, 126 A.3d 604, cert. denied, 320 Conn. 903,

127 A.3d 187 (2015).

‘‘When we infer, we derive a conclusion from proven

facts because such considerations as experience, or

history, or science have demonstrated that there is a

likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the

inference is reasonable. But if the correlation between

the facts and the conclusion is slight, or if a different

conclusion is more closely correlated with the facts

than the chosen conclusion, the inference is less reason-
able. At some point, the link between the facts and the

conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter

of judgment.’’ (Internal quotation marks omitted.) State

v. Rhodes, 335 Conn. 226, 238, A.3d (2020).

‘‘Finally, on appeal, we do not ask whether there is

a reasonable view of the evidence that would support

a reasonable hypothesis of innocence. We ask, instead,

whether there is a reasonable view of the evidence that

supports the jury’s verdict of guilty.’’ (Internal quotation

marks omitted.) State v. VanDeusen, supra, 160 Conn.

App. 823.

I

The defendant’s first claim on appeal is that there

was insufficient evidence to support his conviction of

conspiracy to commit assault in the first degree. We

agree with the defendant.

Pursuant to § 53a-48 (a), ‘‘[a] person is guilty of conspiracy when, with intent that conduct constituting a

crime be performed, he agrees with one or more persons to engage in or cause the performance of such

conduct, and any one of them commits an overt act in

pursuance of such conspiracy.’’ ‘‘Conspiracy is a specific intent crime, with the intent divided into two elements: (a) the intent to agree or conspire and (b) the

intent to commit the offense which is the object of the

conspiracy. . . . Thus, [p]roof of a conspiracy to commit a specific offense requires proof that the conspirators intended to bring about the elements of the conspired offense.’’ (Internal quotation marks omitted.)

State v. Allan, 311 Conn. 1, 12, 83 A.3d 326 (2014).

Pursuant to § 53a-59 (a) (1): ‘‘A person is guilty of

assault in the first degree when . . . 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 . . . .’’

‘‘To obtain a conviction for conspiracy to commit

assault in the first degree in violation of §§ 53a-48 (a)

and 53a-59 (a) (1), as charged, the state bore the burden

of proving beyond a reasonable doubt that the defendant (1) intended that conduct constituting the crime

of assault in the first degree be performed, (2) agreed

with one or more persons to engage in or cause the

performance of such conduct and (3) that any one of

those persons committed an overt act in pursuance of

such conspiracy.’’ State v. Wells, 100 Conn. App. 337,

347, 917 A.2d 1008, cert. denied, 282 Conn. 919, 925

A.2d 1102 (2007). ‘‘[W]hile the state must prove an agreement [to commit assault with a dangerous weapon],

the existence of a formal agreement between the conspirators need not be proved because [i]t is only in rare

instances that conspiracy may be established by proof

of an express agreement to unite to accomplish an
unlawful purpose. . . . [T]he requisite agreement or

confederation may be inferred from proof of the separate acts of the individuals accused as coconspirators

and from the circumstances surrounding the commission of these acts. . . . Further, [c]onspiracy can seldom be proved by direct evidence. It may be inferred

from the activities of the accused persons. . . . A conspiracy can be formed [however] in a very short time

period . . . .’’ (Citation omitted; internal quotation

marks omitted.) State v. Millan, 290 Conn. 816, 826,

966 A.2d 699 (2009).

On appeal, the defendant argues that ‘‘there is no

evidence, nor any reasonable inference that can be

drawn, that the defendant knew the unidentified person

wielding a bat, much less that he entered into an agreement with that person to cause serious physical injury

to another person.’’ He further maintains that ‘‘the evidence, viewed in the light most favorable to the state,

suggests that the defendant may have exchanged

punches with Corradino, and Corradino’s blood was on

the defendant’s clothing and in his vehicle. A spontaneous response to violence coupled with mere presence

does not support a conspiracy conviction.’’

The state responds by highlighting the ‘‘evidence leading up to the actual altercation.’’ As argued by the state,

the jury could have credited Serrano’s testimony that

the defendant heard Torello say ‘‘something racist

against [Hispanic] people.’’ The state continues: ‘‘As a

Hispanic man himself, it could be inferred that this

made the defendant angry. In addition, a rational trier

of fact could have credited those portions of Torello’s

testimony that placed Burgos and the defendant

together, along with a group of other, older, Hispanic

looking men.’’17 The state recounts the evidence that,

just prior to the fight, an individual from the group of

Hispanic men told Torello that he could not smoke in

front of the bar, and that Torello responded by asking

if anyone was ‘‘planning to do anything?’’ As argued by

the state, the defendant and his ‘‘compatriots’’ then

attacked Torello and Corradino. The state further

responds that, ‘‘given the fact that this group of men

was at a bar, it is reasonable to infer that they did not

carry the bat into the bar with them and, therefore,

the defendant’s cohort had retrieved the weapon in

anticipation of starting a fight with Torello, in retaliation

for Torello’s previous racist comment.’’ The state contends that ‘‘based on the concerted, simultaneous attack

of Corradino and Torello by the defendant and his

cohorts, it was reasonable to infer that the defendant

and his companions had planned out the attack in

advance.’’

The state’s version of events, however, relies on a

chain of inferences too tenuous to be reasonably drawn.

There was no evidence presented or any reasonable

inference that could be drawn that there existed a rela-
tionship between the defendant and the unidentified

individual with the bat. Thus, the jury would have been

required to resort to speculation to infer (1) that the

unidentified individual with the bat was the defendant’s

‘‘compatriot’’ or ‘‘cohort,’’ and (2) that the attack was

‘‘concerted.’’ The only evidence in the record with

respect to the bat is found in the testimony of Torello

and Serrano. Torello testified that while he was

exchanging blows with the unidentified man who had

walked up to him, another individual coming ‘‘somewhere from [his] left’’ hit him in the head with the bat.

We cannot find support for the state’s representation

in its appellate brief, without record citation, that ‘‘the

defendant’s own witness, Serrano, testified that the

defendant saw the bat prior to the actual assault.’’

(Emphasis added.) Because Serrano’s testimony is the

only evidence from which the jury could have inferred

that the defendant saw the bat, we review it in some

detail. In addition to Serrano’s testimony regarding the

racist comment and the individual who he thought had

made such comment come outside the bar, Serrano

testified to the following regarding the bat: ‘‘[A]ll I

remember is three guys coming from this side, basically

one guy with the bat—with a bat started and [the defendant] came and said, Whoa, Whoa, Whoa, Whoa’’; that

the defendant was standing ‘‘right next to’’ Serrano; and

that the defendant ‘‘tried to like break it up and say,

whoa, whoa.’’ On cross-examination, Serrano further

testified: ‘‘Me and [the defendant] was talking, and then

we just seen one gentleman come out, come outside,

went this way—went this way. That’s when three gentleman came with a bat. They came with a bat and started

hitting that—the gentleman that went that way . . . .

And [the defendant] said, whoa, whoa, whoa, whoa.’’

Serrano testified that the three men with the bat were

‘‘[b]asically like walking real fast,’’ and that ‘‘it happened

so fast’’ that he did not know what the men looked like.

He further testified that the defendant did not walk to

the three guys with the bat, but stood where he was

and said, ‘‘Whoa, whoa, whoa, whoa.’’

On redirect, the following colloquy occurred between

defense counsel and Serrano:

‘‘Q. [H]ow long did this entire event take place when

you were outside with [the defendant] and you saw this

altercation with the bats? It was pretty fast; right?

‘‘A. Yes.

‘‘Q. Okay. And how far was [the defendant] from the

person who was being assaulted, when you testified he

had his hands up saying, no, no, no?

‘‘A. Basically like where you at.

‘‘Q. The distance from me to you?

‘‘A. Um-hm.

‘‘Q. Okay. And that was [the defendant’s] distance
from the person with the bat; correct?

‘‘A. Actually, he was like—he had his hands up and

the guy with the bat was like over here.

‘‘Q. Behind him?

‘‘A. Yeah.18

‘‘Q. And so—

‘‘A. And that’s when I went—that’s when I went inside

the bar.

‘‘Q. Okay. And when you had testified—When [the

prosecutor] was asking you about witnessing the event

that evening with [the defendant] between the person

being struck, how far away was he from the person

being struck? [The defendant]?

‘‘A. Like he would—Like—

‘‘Q. It happened pretty quick; right?

‘‘A. It was—It was like that.

‘‘Q. Okay. Very quick; correct?

‘‘A. Um-hm.

‘‘Q. Okay. Thank you.’’ (Footnote added.)

We note that Serrano’s account of the evening was

both internally inconsistent and conflicted with other

evidence in the case. He first testified that he did not

speak to the defendant on the evening of the fight but

later testified that he both spoke with and played pool

with the defendant. He testified that, after the defendant

said, ‘‘Whoa, whoa, whoa, whoa,’’ the defendant went

‘‘right back in the bar’’ but later testified that the defendant remained outside when he went back into the bar.

Lastly, and most importantly, although Serrano testified that ‘‘the three gentlemen came with a bat and

started hitting that—the gentleman that went that way,’’

he later acknowledged that he did not see anyone get

hit with a bat.

The following exchange occurred between the prosecutor and Serrano:

‘‘Q. And so these three guys, one of them had a

bat; right?

‘‘A. Um-hm.

‘‘Q. And were they saying something, are they excited

about something?

‘‘A. They just came, they was like—and the accident

like happened so fast, that I looked, and I was like, Oh,

and then I went inside.

‘‘Q. Yeah. Right. You didn’t want to be around for

that; right?

‘‘A. No.

‘‘Q. No. And so these three guys with the bat, they
started hitting this other guy; right?

‘‘A. I guess.

‘‘Q. So you don’t even know?

‘‘A. (Laughs.)

‘‘Q. You didn’t see the guy?

‘‘A. Yeah.

‘‘Q. All right. You have to just say no if you don’t mind.

‘‘A. Yeah.

‘‘Q. All right. Thank you. And so you see three guys

with a bat and you go I don’t want any part of this, you

go back inside; right?

‘‘A. Yes.’’

We recognize that a jury may ‘‘credit part of a witness’

testimony and . . . reject other parts.’’ (Internal quotation marks omitted.) State v. Rhodes, supra, 335 Conn.

249–50. Serrano’s testimony places the defendant in

close proximity to the individual with the bat and suggests that the defendant tried to break up the fight by

saying, ‘‘Whoa, whoa, whoa, whoa,’’ but Serrano never

specifically testified that the defendant saw the bat.

Even if the jury reasonably could infer that the defendant saw the bat, on the basis of Serrano’s testimony,

any further inference that the defendant had entered

into an agreement with that unidentified individual

impermissibly would be based on ‘‘possibilities, surmise

or conjecture.’’ (Internal quotation marks omitted.)

State v. Green, 261 Conn. 653, 668, 804 A.2d 810 (2002).

The defendant relies on two cases from our appellate

courts in support of his contention that the cumulative

force of the evidence is insufficient to establish his guilt.

In Green, our Supreme Court affirmed the judgment

of the Appellate Court setting aside the defendant’s

conviction of conspiracy to commit murder on the

ground of insufficient evidence. Id., 655–57. In Green,

several members of a gang, carrying handguns, went

to a housing complex to settle a dispute with the defendant. Id., 658. The gang members approached the housing complex and found the defendant standing and talking with three people, one of whom, Duane Clark, saw

the gang members approaching and exclaimed, ‘‘Shoot

the motherfucker.’’ Id. A gunfight ensued, during which

one of the gang members, Tyrese Jenkins, was fatally

wounded. Id. A witness to the gunfight testified that he

saw the defendant shoot Jenkins. Id. The defendant and

Clark were tried together, and the jury found Clark

guilty of criminal possession of a pistol or revolver but

not guilty of murder and conspiracy to commit murder.

Id., 659. The jury found the defendant guilty of murder

as an accessory, conspiracy to commit murder, and

criminal possession of a pistol or revolver. Id., 655. On

appeal, the defendant claimed, inter alia, that there was

insufficient evidence to support his conviction of con-
spiracy to commit murder. This court agreed; see State

v. Green, 62 Conn. App. 217, 224, 774 A.2d 157 (2001);

as did our Supreme Court. See State v. Green, supra,

261 Conn. 673.

Our Supreme Court first recognized that the jury

‘‘could not have found that the defendant conspired

with Clark to commit murder because Clark was acquitted of conspiracy to commit murder by the same jury

that convicted the defendant of that offense.’’19 Id., 670.

The court then reviewed the evidence to determine

whether the jury reasonably could have found that the

defendant conspired with the other two people with

whom he was standing and talking, Bobby Cook and

Ryan Baldwin. Id., 671. The court found the record

devoid of any evidence of a ‘‘prearranged plan to kill

Jenkins,’’ noting that there was no evidence to establish

that Cook or Baldwin knew about any dispute between

Jenkins’ gang and the defendant. Id. The court further

determined that the evidence was insufficient to establish that the defendant and Cook or Baldwin had agreed

to kill Jenkins upon Jenkins’ arrival to the housing complex. Id. The court explained that the evidence at trial

had established only ‘‘that the defendant, Cook and

Baldwin simultaneously reached for their guns, apparently in response to Clark’s statement, ‘shoot the motherfucker,’ when Jenkins and his cohorts approached

while wielding their guns.’’ Id. Recognizing that ‘‘[a]

conspiracy can be formed in a very short time period,’’

the court stated that the evidence arguably could support a finding that the defendant had agreed with Clark

to shoot Jenkins, but, because the jury found Clark not

guilty of the charge of conspiracy to commit murder,

that finding compelled the conclusion that the jury had

rejected the state’s claim that the defendant had conspired with Clark to kill Jenkins. Id.

In Green, the state argued that the defendant and his

companions were members of a gang and, thus, the

jury reasonably could have inferred that Cook and Baldwin, as members of the same gang as the defendant,

knew of the dispute between the defendant’s alleged

gang and Jenkins’ gang, and that Cook, Baldwin, and

the defendant had agreed to kill Jenkins and his fellow

gang members. Id., 672. The court rejected that argument, stating that the only evidence as to the relationship among Cook, Baldwin, and the defendant suggested that they ‘‘were friends who associated with each

other’’ in the housing complex. Id. The court summarized the evidence in support of an inference that the

defendant conspired with Cook or Baldwin as follows:

‘‘(1) the defendant, Cook and Baldwin were friends; (2)

the defendant may have had a dispute with certain

members of [Jenkins’] gang, including Jenkins; and (3)

the defendant, Cook and Baldwin simultaneously drew

their guns and started shooting as Jenkins and his fellow

gang members approached, apparently in response to

Clark’s instruction to ‘shoot the motherfucker.’ ’’ Id.,
672–73. The court found this evidence to constitute ‘‘too

weak a foundation upon which to base an inference of

an agreement, however swiftly formed, to kill Jenkins.’’

Id., 673.

The defendant also relies on State v. Smith, 36 Conn.

App. 483, 651 A.2d 744 (1994), cert. denied, 233 Conn.

910, 659 A.2d 184 (1995), in which this court reversed

the defendant’s conviction of conspiracy to commit

assault in the first degree. Id., 484. In Smith, the victim,

Walter Traynham, and his two friends confronted Harold Smith regarding a motor vehicle accident and shooting that occurred two weeks earlier. Id. Harold Smith

also had two friends with him at the time of the confrontation, and the confrontation escalated and one of

Traynham’s friends punched Harold Smith in the face.

Id. Harold Smith went into a nearby store and returned

with the defendant. Id., 484–85. After Traynham’s group

left and walked up the street, the Smith group, which

included the defendant, followed them into a convenience store. Id., 485. There was neither a discussion

among the members of the Smith group nor any visible

weapons while they were walking. Id. When the defendant entered the store, he and Traynham began fighting.

Id. A member of the Smith group shouted, ‘‘Shoot him,

shoot him,’’ pulled a gun, and began shooting at two

members of Traynham’s group. (Internal quotation

marks omitted.) Id. At this point, the defendant drew

a revolver and shot Traynham. Id. Noting that the defendant was not present at the initial altercation and the

lack of any evidence suggesting that the defendant knew

that any other person in the Smith group had a gun and

intended to use it to cause serious physical injury to

Traynham, this court found the evidence insufficient to

support an inference that the defendant entered into

an agreement with anyone to commit the crime of

assault in the first degree. Id., 487.

As in Smith and Green, the facts in the present case

are wholly insufficient to support an inference that the

defendant entered into an agreement with the unidentified individual with the bat to commit the crime of

assault in the first degree. We note that the facts in

Smith, in which the defendant not only knew his alleged

coconspirators but also walked with them down the

road to follow the victim into a store, and those in

Green, in which the defendant’s alleged coconspirators

were friends of his, are even stronger than the facts of

the present case, in which no relationship between the

defendant and the unidentified bat wielding person was

evinced.

The state argues that the evidence supported a conclusion that the defendant ‘‘knew of the bat’s existence

during the course of the assault and continued to participate.’’ Citing State v. VanDeusen, supra, 160 Conn. App.

826–27, the state argues that the jury reasonably could

have inferred that, having seen the bat ‘‘in his cohort’s
possession,’’ the defendant must have realized that he

intended to use it against the victims. As argued by the

state, the defendant’s ‘‘subsequent participation in the

group assault fully supported an inference that he had

the requisite intent to agree with at least one other

person to bring about all the elements of assault in the

first degree.’’ We disagree.

In VanDeusen, the defendant led her acquaintance,

Charles Knowles, who was armed with a handgun, to the

victim’s house to fight the victim. State v. VanDeusen,

supra, 160 Conn. App. 819–20. The defendant saw that

Knowles was armed. Id., 820. Upon arriving at the victim’s house, the defendant called the victim and asked

her to come outside. Id. When the victim refused to

come outside, Knowles fired his handgun at the house.

Id. One of the bullets pierced the front door window

and lodged in an interior wall. Id. The defendant was

convicted of conspiracy to commit assault in the first

degree, attempt to commit assault in the first degree

as an accessory, and risk of injury to a child. Id., 817.

The defendant appealed to this court claiming, inter

alia, that there was insufficient evidence to support her

conviction. Id., 823–24. With respect to her claim that

there was insufficient evidence to prove that she had the

requisite intent that she or another participant caused

serious physical injury to another person, this court

referenced testimony that the defendant admitted that

she had seen the gun behind Knowles’ belt buckle and,

further, that she had seen him transfer it to his lap on

the way to the victim’s house. Id., 826. Despite knowledge that he was armed with the gun, the defendant

led Knowles to the house and then called the victim

‘‘in an attempt to lure her’’ outside. (Internal quotation

marks omitted.) Id., 827. The defendant later fled the

scene with Knowles, helped him dispose of the gun,

and lied to the police about her involvement. Id., 827–28.

On the basis of this evidence, this court determined

that the jury could have reasonably inferred that the

defendant possessed the requisite intent. Id., 828.

In contrast with VanDeusen, in which the defendant

knew that her acquaintance was armed with a handgun

and continued to lead him to the victim’s house, there

was no evidence in the present case of any relationship

between the defendant and the unidentified individual

with the bat. In the present case, accepting the state’s

position that the jury reasonably could infer that the

defendant saw the unidentified individual with the bat,

and nonetheless continued to exchange punches with

Corradino, would not support a further inference that

the defendant had the requisite intent to agree with at

least one other person to bring about all of the elements

of assault in the first degree. That is, the lack of any

evidence of a relationship between the defendant and

the unidentified individual is fatal to the state’s argument.
Moreover, the brief nature of the incident further

supports our conclusion that, even were the jury to

infer that the defendant saw the unidentified individual

with the bat, the defendant’s continued exchange of

punches with Corradino for a short period of time does

not support the inference of an agreement. First, we

note that, according to Torello’s testimony, he already

was exchanging punches with an unidentified man

when the individual approached and hit him with the

bat. Moreover, Serrano was not even able to describe

the men with the bat because ‘‘it happened so fast.’’

Lastly, through the bar window, Henninger saw people

running outside and ‘‘a lot of chaos.’’ Although a conspiracy can be formed in a very short time period; see

State v. Millan, supra, 290 Conn. 826; the brief nature

of the incident in the present case when considered

together with the lack of any evidence of a prior relationship between the defendant and the unidentified

individual with the bat, renders the link between the

continued participation in the fight following perception of the bat and the inference of agreement too tenuous.

We are mindful that ‘‘the requisite agreement or confederation may be inferred from proof of the separate

acts of the individuals accused as coconspirators and

from the circumstances surrounding the commission

of these acts.’’ State v. Crosswell, 223 Conn. 243, 256,

612 A.2d 1174 (1992). Our appellate courts have upheld

convictions for conspiracy when the state presented

evidence that the coconspirators acted in concert. See

id. (defendant stood by silently when gun was displayed

in order to gain entry and then used to intimidate occupants of premises is evidence from which jury might

reasonably have inferred defendant’s acquiescence in

this enlarged criminal enterprise); State v. Faust, 161

Conn. App. 149, 168 and n.4, 127 A.3d 1028 (2015) (evidence sufficient to infer agreement to commit robbery

when two men acted in concert and engaged in coordinated robbery, whereby first man had gun and stayed

with victims, while second man moved throughout

other rooms in store and demanded to know where

cashbox was located), cert. denied, 320 Conn. 914, 131

A.3d 252 (2016); State v. VanDeusen, supra, 160 Conn.

App. 826–27 (with knowledge that coconspirator had

weapon ‘‘at the ready,’’ defendant continued guiding

coconspirator to victim’s house and called victim in

attempt to lure her outside); State v. Elsey, 81 Conn.

App. 738, 747, 841 A.2d 714 (jury could have based at

least part of its decision regarding conspiracy charges

on defendant’s decision to come to scene of crime with

coconspirators, stay at scene while crimes were committed and leave scene with coconspirators), cert.

denied, 269 Conn. 901, 852 A.2d 733 (2004).20

In the present case, we conclude that the jury could

not reasonably infer the requisite agreement from the
proof of the separate acts of the defendant and the

unidentified individual with the bat or from the circumstances surrounding the commission of these acts.

Here, there was no evidence presented that the defendant and the unidentified individual with the bat

engaged in any coordinated action or had any relationship whatsoever. Even in the light most favorable to

the state, the cumulative weight of the evidence suggested only that, while the defendant exchanged

punches with Corradino, an unidentified individual beat

Torello with a bat, not that the two did so pursuant to

a mutual plan. Accordingly, the jury would have been

required to resort to speculation to infer the existence

of an agreement.

On the basis of the foregoing, we conclude that the

evidence adduced at trial was insufficient to support

the defendant’s conviction of conspiracy to commit

assault in the first degree.

II

The defendant’s second claim on appeal is that there

is insufficient evidence to sustain his conviction for

assault in the second degree. He argues, inter alia, that

even ‘‘assuming arguendo that an agreement with a still

as yet unidentified third party can be shown, the state

presented no evidence that said individual caused physical injury to Corradino with a dangerous instrument.’’21

The state agrees with the defendant and acknowledges

that the defendant’s conviction of assault in the second

degree should be reversed. We agree with the parties.

The defendant was charged in count two with assault

in the second degree as to Corradino, which required

proof beyond a reasonable doubt that Corradino’s injuries were caused by a dangerous instrument. See General

Statutes § 53a-60 (a) (2) (‘‘[a] person is guilty of assault

in the second degree when . . . with intent to cause

physical injury to another person, the actor 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’’). As the state

acknowledges, no such evidence was presented. Corradino did not testify at trial. Torello testified that the

defendant squared up with Corradino, and the two

exchanged punches. He further testified that Corradino

had fallen on top of him at some point. Officer Browne

testified that upon his arrival at the scene, he encountered Corradino, who was bleeding from his head. Officer Browne testified that Corradino told him that he

was ‘‘hit in the head,’’ and a photograph was entered

into evidence depicting Corradino’s head injury. Officer

Browne additionally testified that both Torello and

Corradino were transported to the hospital. On this

record, we agree with the parties that insufficient evidence was presented to establish that Corradino’s injuries were caused ‘‘by means of a dangerous instrument’’

and, therefore, the defendant’s conviction of assault in
the second degree under § 53a-60 (a) (2) should be

reversed.22

The judgment is reversed and the case is remanded

with direction to render judgment of acquittal.

In this opinion the other judges concurred.

1 The defendant also was charged with one count of assault in the first

degree in violation of § 53a-59 (a) (1). The jury found him not guilty of

that charge.

2 The defendant also raises on appeal a claim of instructional error. Specifically, he claims that the court, in charging the jury, ‘‘improperly omitted

the scienter requirement that the defendant intended that a dangerous instrument be used to carry out the assault’’ and maintains that the omission

‘‘diluted the state’s burden of proof [and] deprived the defendant of due

process and his right to trial by jury.’’ We do not reach the defendant’s claim

of instructional error because we conclude that the evidence was insufficient

to support the defendant’s conviction and we reverse the judgment of conviction on that basis.

3 Burgos’ last name is spelled both ‘‘Bergos’’ and ‘‘Burgos’’ throughout the

transcripts. Throughout this opinion, we refer to him as Burgos.

4 Torello had a pistol in the car but he never retrieved it.

5 Surveillance video from a nearby business showed a Corvette leaving

the plaza where the bar is located. The video was transferred to a thumb

drive, but it was lost.

6 Henninger’s testimony conflicts with Torello’s testimony that he believed

he saw Burgos leave with the defendant.

7 The recording of the 911 call reporting the fight no longer existed at the

time of trial.

8 Officer Browne was not close enough to identify the two vehicles leaving

the property.

9 Officer Browne did not take any photographs of the scene.

10 Tests conducted at the hospital revealed the presence of cocaine, benzodiazepine, and alcohol in Torello’s system. Xanax is a common prescription

form of a benzodiazepine.

11 Officer Browne had received information that the license plate of the

Corvette had two ‘‘B’s’’ in the plate number. Officers were then able to

determine the full plate number. The vehicle was registered to the defendant’s mother.

12 The Walgreens receipt was timestamped about six hours before the

fight. The police seized surveillance footage from Walgreens, which footage

showed the Corvette and a man wearing a white polo shirt with a diagonal stripe.

13 The police did not take any written statements from Torello or Corradino

during their investigation.

14 Torello subsequently filed a civil action against the defendant, seeking

money damages.

15 Socci is an orthopedic surgeon, who performed surgeries on Torello’s

ankle following the fight.

16 ‘‘In Pinkerton v. United States, [328 U.S. 640, 647–48, 66 S. Ct. 1180, 90

L. Ed. 1489 (1946)], the United States Supreme Court concluded that under

the federal common law, a conspirator may be held liable for criminal

offenses committed by a coconspirator if those offenses are within the scope

of the conspiracy, are in furtherance of it, and are reasonably foreseeable

as a necessary or natural consequence of the conspiracy. . . . We note that

our Supreme Court first recognized the Pinkerton theory of liability as a

matter of state law in State v. Walton, 227 Conn. 32, 40–54, 630 A.2d 990

(1993).’’ (Citation omitted; internal quotation marks omitted.) State v. VanDeusen, 160 Conn. App. 815, 843 n.16, 126 A.3d 604, cert. denied, 320 Conn.

903, 127 A.3d 187 (2015).

17 Serrano testified that both he and the defendant are Hispanic.

18 In its appellate brief, the state represents the distance between the

defendant and the three men with the bat to be approximately ten feet. In

support of this distance, the state represents that ‘‘Serrano referred to the

distance between the defendant and the man with the bat by referencing

the distance between the witness box and defense counsel.’’ It further notes

that the prosecutor in closing argument ‘‘referred to this testimony, without

objection, as placing the defendant ‘about ten or twelve feet away’ when

he tried to break up the fight.’’

19 We disagree with the state’s contention that the unique circumstances
of Green renders it wholly inapplicable. Although our Supreme Court concluded that the jury necessarily must have rejected the state’s claim that

the defendant had conspired with Clark to kill the victim, our Supreme

Court thereafter analyzed, in the light most favorable to sustaining the

verdict, whether sufficient evidence existed to establish that the defendant

had conspired with the other two people with whom he was standing and

talking. State v. Green, supra, 261 Conn. 671.

20 The state also points to the defendant’s ‘‘flight from the scene with

one of his compatriots, both of whom tracked Corradino’s blood into the

defendant’s Corvette,’’ as supportive of the conclusion that they had conspired to commit assault in the first degree. Although the jury was permitted

to consider whether the defendant’s flight from the bar reflected consciousness of guilt, the evidence regarding the defendant’s leaving the bar, even

when considered together with the other evidence presented during trial,

was too weak a foundation to permit an inference of an agreement. There

was no evidence presented that the passenger in the defendant’s car was

the unidentified individual with the bat. Cf. State v. Young, 157 Conn. App.

544, 553, 117 A.3d 944 (sufficient evidence to establish conspiracy when

defendant and coconspirator arrived at scene of shooting together, fired

weapons simultaneously in same direction, fled scene together, disposed

of weapons beneath porch of nearby building, and attempted to hide in

school), cert. denied, 317 Conn. 922, 118 A.3d 549 (2015). Moreover, Torello

testified that he thought he saw Burgos leave with the defendant. However,

Torello was ‘‘unsure’’ whether Burgos had been involved in the fight or even

whether he was with the group of Hispanic men outside the bar just before

the fight started.

21 The defendant also argues that because there was insufficient evidence

to support his conviction of conspiracy to commit assault in the first degree,

the defendant’s conviction of assault in the second degree cannot be sustained as a matter of law. Noting that the state charged him with assault

in the second degree pursuant to a theory of conspiratorial liability under

the Pinkerton doctrine, the defendant maintains that the jury first would

have had to convict him of the underlying charged conspiracy. See footnote

16 of this opinion. We need not address this argument because we agree

with the parties that insufficient evidence was presented to establish that

Corradino’s injuries were caused ‘‘by means of a dangerous instrument,’’

and we reverse his conviction of assault in the second degree on that basis.

22 The state argues that the proper remedy should be a remand with

direction to modify the defendant’s conviction to reflect the lesser included

offense of assault in the third degree in violation of General Statutes § 53a61 (a) (1). The state acknowledges, however, that this court’s remand order

is controlled by our Supreme Court’s decisions in State v. Petion, 332 Conn.

472, 499–507, 211 A.3d 991 (2019), and State v. LaFleur, 307 Conn. 115,

140–42, 51 A.3d 1048 (2012), pursuant to which the state is not entitled to

a modification of the judgment to reflect a conviction of the highest lesser

included offense supported by the evidence when, as here, the jury was not

instructed on such lesser included offense. The state raises the argument that

‘‘LaFleur, and by extension Petion, were wrongly decided for preservation

purposes.’’ To the extent that the state urges this court, in some form, to

question the correctness of those rulings, we observe, as the state recognizes,

that as an intermediate court of appeals, we are unable to overrule, reevaluate or reexamine controlling precedent of our Supreme Court. See State v.

Johnson, 143 Conn. App. 617, 628, 70 A.3d 168, cert. denied, 310 Conn. 950,

82 A.3d 625 (2013).