*********************************************** 

The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was 

released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions 

and petitions for certification is the “officially released” 

date appearing in the opinion. 

All opinions are subject to modification and technical 

correction prior to official publication in the Connecticut 

Reports and Connecticut Appellate Reports. In the event of 

discrepancies between the advance release version of an 

opinion and the latest version appearing in the Connecticut 

Law Journal and subsequently in the Connecticut Reports 

or Connecticut Appellate Reports, the latest version is to 

be considered authoritative. 

The syllabus and procedural history accompanying the 

opinion as it appears in the Connecticut Law Journal and 

bound volumes of official reports are copyrighted by the 

Secretary of the State, State of Connecticut, and may not 

be reproduced and distributed without the express written 

permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. 

*********************************************** 
STATE OF CONNECTICUT v. VICTOR M. ALICEA

(AC 40311)

Prescott, Bright and Eveleigh, Js.

Syllabus

Convicted of two counts of the crime of assault in the first degree and of

being a persistent dangerous felony offender in connection with his

conduct in slashing the victim with a razor blade, the defendant appealed

to this court. The defendant had been charged with one count each of

intentional assault in violation of statute (§ 53a-59 [a] [1]) and reckless

assault in violation of § 53a-59 (a) (3). The victim had argued with

the defendant at their place of employment, a restaurant. Some of the

altercation was caught on the restaurant’s video. The defendant called

911 after the victim ran from the restaurant and, about forty-five minutes

later, gave a statement to the police about the incident. After the close

of the state’s evidence, the defendant moved for a judgment of acquittal,

in which he alleged, inter alia, that he could not be guilty of both assault

charges because he had engaged in one act against one victim, and each

charge required a mutually exclusive state of mind. During argument

on the motion, the prosecutor indicated that he did not think the defendant could be convicted of both charges. The trial court stated that the

evidence reasonably would permit a finding of guilt on both counts and

denied the motion for a judgment of acquittal. The defendant thereafter

elected not to testify in his defense. On appeal to this court, the defendant

claimed, inter alia, that the jury’s guilty verdicts of both intentional

and reckless assault were legally inconsistent, and that the trial court

improperly excluded from evidence his statement to the police. Held:

1. The defendant could not prevail on his claim that the verdicts of guilty

of both intentional and reckless assault were legally inconsistent; to

find the defendant guilty under § 53a-59 (a) (3), the jury was required

to find that he engaged in conduct that was reckless and that created

a grave risk of death to the victim that resulted in serious physical

injury, which was not inconsistent with the jury’s finding under § 53a59 (a) (1) that the defendant also intended to seriously injure the victim,

and because a conviction of one offense did not require a finding that

negated an essential element of the other offense, the offenses were

not mutually exclusive and, therefore, not legally inconsistent.

2. This court found unavailing the defendant’s claim that his right to due

process was violated because he was unaware that he could be convicted

of both assault charges; on the basis of the relevant charging document,

the theory on which the case was tried and submitted to the jury, and

the trial court’s jury instructions regarding the assault charges, the

defendant had notice, prior to when he had to decide whether to testify,

that both assault charges were going to be presented to the jury separately and not in the alternative, and he was aware of the charges brought

against him and how the court was going to instruct the jury regarding

those charges, as neither the information nor the state’s argument

informed the jury that it should find the defendant guilty on only one

of the charges, after the court informed counsel that a guilty verdict on

both counts was permitted under the law, the state told the court and

defense counsel that it would be arguing consistent with that message,

at closing argument the prosecutor told the jury that the evidence demonstrated that the defendant acted intentionally or, at the very least, recklessly, and did not tell the jury that it could or should find guilt only as

to one of the those charges, and the court’s instructions to the jury were

not based on alternative charges.

3. The trial court did not abuse its discretion by excluding from evidence

the defendant’s statement to the police, which the defendant claimed

was admissible under the spontaneous utterance exception to the rule

against hearsay; the defendant did not meet his burden of proving that

he did not have an opportunity to think about and fabricate or embellish

his story, as he did not begin his statement to the police until approximately forty minutes after the end of his 911 call, which lasted less than

two minutes, and although the amount of time that passes between
an incident and the utterance of a statement is not dispositive of its

spontaneity, nothing in the record demonstrated error in the trial court’s

determination that the defendant had time to fabricate and embellish

his statement.

4. The evidence was sufficient to disprove beyond a reasonable doubt the

defendant’s claim of self-defense; the defendant’s assertions that it was

possible that his left hand circled the victim’s head first as he cut the

victim’s throat and that the victim had thrown a left hook at the defendant

before the slashing were unavailing, as the jury reasonable chose to

credit the victim’s testimony, which was consistent with the restaurant’s

video, that he did not strike the defendant, that he and the defendant

were arguing, and that the defendant grabbed him and cut his throat.

Argued April 8—officially released July 30, 2019

Procedural History

Two 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).
Opinion

BRIGHT, J. The 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 § 53a59 (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.

The 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.

Upon 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.

Holmes 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.

The defendant was arrested and later charged with

both intentional and reckless assault. The jury found

the defendant guilty of both charges,1 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

assault 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.

I

A

The 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.

Section 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 . . . .’’

Pursuant 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 . . . .’’

Pursuant 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 . . . .’’

‘‘A 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 Conn. 659.

‘‘[C]ourts 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).

The defendant argues that King and Chyung are similar to the present case and that Nash is inapposite. We

recently discussed the distinctions between those three

cases in State v. Daniels, 191 Conn. App. 33, 43–48,

A.3d (2019).

In 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. . . . We concluded, therefore,

that the jury verdicts [with respect to attempt to commit

murder and reckless assault in the first degree] each

of which requires a mutually exclusive and inconsistent

state of mind as an essential element for conviction

cannot stand.’ . . . State v. Nash, supra, 316 Conn.

660–61.’’ (Emphasis in original.) State v. Daniels, supra,

191 Conn. App. 43–44.

We then discussed State v. Chyung, supra, 325 Conn.

236: ‘‘In Chyung, the jury found the defendant guilty

of murder, in violation of § 53a-54a, and of reckless

manslaughter in the first degree with a firearm, in violation of General Statutes §§ 53a-55a (a) and 53a-55 (a)

(3), for the shooting death of his wife. . . . The court

in Chyung found that the jury’s guilty verdicts as to

both charges were legally inconsistent because the

defendant could not act both intentionally and recklessly with respect to the same victim, the same act,

and the same result simultaneously. . . . Our Supreme

Court explained that to find the defendant guilty of the

crime of intentional murder, the jury was required to

find that the defendant had the specific intent to kill

the victim, his wife, but, to find the defendant guilty

of reckless manslaughter, the jury was required to find

that he acted recklessly, meaning, that he acted without

a conscious objective to cause the death of the victim,

but consciously disregarded the risk of his actions,

thereby putting the life of the victim in grave danger.

. . . The court concluded that a defendant cannot act

with a conscious disregard that his actions will create

a grave risk of death to another, while, at the same

time, specifically intending to kill that person. . . .

The defendant cannot simultaneously act intentionally
and recklessly with respect to the same act and the

same result . . . .’’ (Citations omitted; emphasis in

original; internal quotation marks omitted.) State v.

Daniels, supra, 191 Conn. App. 44–45.

Finally, we discussed our Supreme Court’s decision

in State v. Nash, supra, 316 Conn. 651, which we found

controlling. See State v. Daniels, supra, 191 Conn. App.

45–48. As background, the defendant in Nash had

become angry with the brother of the victim. State v.

Nash, supra, 654–55. The defendant wanted to teach a

lesson to the victim’s brother, so he and a friend went

to the home of the victim’s brother, where he resided

with his family, including the victim. Id. The defendant

walked to the backyard of the victim’s home and fired

several gunshots into the second story of the home. Id.,

655. At the time of the shooting, the victim and her

sister were in a second floor bedroom. One of the bullets

penetrated through the bedroom wall and struck the

victim, who then was transported by ambulance to a

hospital, where she was treated for a gunshot wound. Id.

We explained in Daniels: ‘‘In Nash, the jury found

the defendant guilty of, among other things, both intentional and reckless assault in the first degree pursuant

to . . . § 53a-59 (a) (1) and (a) (3), respectively, and

the court rendered judgment in accordance with the

jury’s verdicts. . . . On appeal, the defendant claimed

in part that the jury’s verdicts of guilty on both intentional and reckless assault were legally inconsistent

because each crime required a mutually exclusive state

of mind. . . . Our Supreme Court disagreed,

explaining that the two mental states required for intentional and reckless assault in the first degree related

to different results. . . . More specifically, the court

explained, ‘in order to find the defendant guilty of [both

intentional and reckless assault in the first degree], the

jury was required to find that the defendant intended

to injure another person and that, in doing so, he

recklessly created a risk of that person’s death. In light

of the state’s theory of the case, there was nothing to

preclude a finding that the defendant possessed both

of these mental states with respect to the same victim

at the same time by virtue of the same act or acts. In

other words, the jury could have found that the defendant intended only to injure another person when he

shot into [the victim’s] bedroom but that, in doing so,

he recklessly created a risk of that [victim’s] death in

light of the circumstances surrounding his firing of the

gun into the dwelling. Accordingly, because the jury

reasonably could have found that the defendant simultaneously possessed both mental states required to convict him of both intentional and reckless assault, he

cannot prevail on his claim that the convictions were

legally inconsistent’. . . . [State v. Nash, supra, 316

Conn.] 666–68.

‘‘The court in Nash went on to examine and compare
§ 53a-59 (a) (1) and (a) (3): ‘Intentional assault in the

first degree in violation of § 53a-59 (a) (1) requires proof

that the defendant (i) had the intent to cause serious

physical injury to a person, (ii) caused serious physical

injury to such person or to a third person, and (iii)

caused such injury with a deadly weapon or dangerous

instrument. Reckless assault in the first degree in violation of § 53a-59 (a) (3) requires proof that the defendant

(i) acted under circumstances evincing an extreme

indifference to human life, (ii) recklessly engaged in

conduct that created a risk of death to another person,

and (iii) caused serious physical injury to another person. As we previously explained, the mental state elements in the two provisions—‘‘intent to cause serious

physical injury’’ and ‘‘recklessly engag[ing] in conduct

which creates a risk of death’’—do not relate to the

same result.2 Moreover, under both provisions, the

resulting serious physical injury is an element of the

offenses that is separate and distinct from the mens

rea requirements.’ Id., 668–69. The court then held:

‘Because the defendant’s convictions for intentional and

reckless assault in the first degree required the jury to

find that the defendant acted intentionally and recklessly with respect to different results, the defendant

cannot prevail on his claim that those convictions are

mutually exclusive and, therefore, legally inconsistent.’3

Id., 669.

‘‘The court in Nash provided an example of where a

single act, directed to a single victim, could result in a

conviction of both intentional and reckless assault in

the first degree. ‘For example, if A shoots B in the arm

intending only to injure B, A nevertheless may recklessly expose B to a risk of death if A’s conduct also

gave rise to an unreasonable risk that the bullet would

strike B in the chest and thereby kill him. In such circumstances, a jury could find both that A intended to

injure B and, in doing so, recklessly created an undue

risk of B’s death.’ Id., 666 n.15.’’ (Citations omitted;

emphasis in original; footnotes altered.) State v. Daniels, supra, 191 Conn. App. 45–48.

In Daniels, we also explained: ‘‘We recognize that

the differences between King, Chyung, and Nash

are subtle. For example, in King, the jury necessarily

would have to have found that the defendant acted with

the specific intent to cause the death of the victim

(attempted murder), and, at the same time, acted without the conscious objective to create a risk of death

for the victim (reckless assault). See State v. King,

supra, 216 Conn. 585. It is impossible to possess both

mental states simultaneously.

‘‘In Chyung, the jury necessarily would have to have

found that the defendant had the specific intent to kill

the victim (murder), and simultaneously, that the defendant acted without the conscious objective to create a

grave risk of death for the victim (reckless manslaugh-
ter). See State v. Chyung, supra, 325 Conn. 236. Again,

it is impossible to have both intents simultaneously.

‘‘In Nash, however, the jury would have to have found

that the defendant intended to cause serious physical

injury to the victim (intentional assault), and, at the

same time, that the defendant acted without the conscious objective of creating a grave risk of death for

the victim, resulting in the victim’s serious physical

injury (reckless assault). See State v. Nash, supra, 316

Conn. 666–67. Intentional assault requires a specific

intent to cause serious physical injury; reckless

assault requires recklessly creating a grave risk of

death, which results in serious physical injury. One can

intend to cause serious physical injury to a victim, while,

at the same time, consciously disregarding the fact that

he or she is putting that victim’s life in grave danger,

ultimately resulting in serious physical injury to the

victim.’’ (Emphasis in original.) State v. Daniels, supra,

191 Conn. App. 48 n.10.

Accordingly, to be guilty under § 53a-59 (a) (3), it

was not enough for the defendant to have engaged in

conduct that was reckless, resulting in serious physical

injury to Holmes; rather, the jury was required to find

that the defendant engaged in conduct that was reckless

and that created a grave risk of death to Holmes, ultimately resulting in Holmes’ serious physical injury.

Such a conclusion is not inconsistent with the jury

finding that the defendant also intended to seriously

injure Holmes under § 53a-59 (a) (1). Put another way,

because a conviction of one offense does not require

a finding that negates an essential element of the other

offense, they are not mutually exclusive, and therefore

not legally inconsistent.

Although the defendant has presented a well argued,

well briefed claim on this issue, we conclude that our

Supreme Court’s decision in Nash is controlling. Guided

by that decision, as well as by our recent decision in

Daniels, we conclude that the jury’s verdicts of guilty

of both intentional and reckless assault are not legally

inconsistent.

B

As part of his inconsistent verdict claim, the defendant also argues that ‘‘[r]eversal is mandated in this

case for a second reason.’’ He contends that the state

is bound by the theory it allegedly presented at trial,

namely, that these charges were brought in the alternative. He states that the majority in State v. Chyung,

supra, 325 Conn. 236, and the dissent in State v. King,

321 Conn. 135, 159–71, 136 A.3d 1210 (2016) (King

2016), mandate ‘‘that the state may not rely upon a

theory establishing legal consistency of verdicts when

it does not argue that theory to the jury.’’ In his reply

brief, he contends that his right to due process is implicated and that he made the decision not to testify in
this case only after the state set forth its position that

these charges were in the alternative. But see id., 148

(due process analysis should not be blended with legal

consistency of verdict analysis, and each should be

evaluated independently of each other, as two separate

claims). We conclude that the defendant’s right to due

process was not violated because he was aware of the

charges brought against him and how the court was

going to instruct the jury regarding those charges.

‘‘A determination of whether a defendant has

received constitutionally sufficient notice of the charges

to be brought against him at trial is guided by the following framework. A fundamental tenet of our due process

jurisprudence is that [i]t is as much a violation of due

process to send an accused to prison following conviction of a charge on which he was never tried as it would

be to convict him upon a charge that was never made.

. . . [T]o uphold a conviction on a charge that was

neither alleged in an indictment nor presented to a jury

at trial offends the most basic notions of due process.

Few constitutional principles are more firmly established than a defendant’s right to be heard on the specific charges of which he is accused. . . . Reviewing

courts, therefore, cannot affirm a criminal conviction

based on a theory of guilt that was never presented to

the jury in the underlying trial. . . .

‘‘Principles of due process do not allow the state, on

appeal, to rely on a theory of the case that was never

presented at trial. . . . Although we recognize that the

finder of fact may consider all of the evidence properly

before it, in order for us to uphold the state’s theory

of the case on appeal, that theory must have been not

merely before the jury due to an incidental reference,

but as part of a coherent theory of guilt that, upon

[review of] the principal stages of trial, can be characterized as having been presented in a focused or otherwise

cognizable sense. . . . Essentially, the state may not

pursue one course of action at trial and later, on appeal,

argue that a path [it] rejected should now be open

to [it] . . . . To rule otherwise would permit trial by

ambuscade. . . . Accordingly, on appeal, the state may

not construe evidence adduced at trial to support an

entirely different theory of guilt than the one that the

state argued at trial.’’ (Citations omitted; internal quotation marks omitted.) Id., 148–49.

Our Supreme Court in King 2016 instructed:

‘‘Whether a defendant has received constitutionally sufficient notice of the charges of which he was convicted

may be determined by a review of the relevant charging

document, the theory on which the case was tried and

submitted to the jury, and the trial court’s jury instructions regarding the charges.’’ (Internal quotation marks

omitted.) Id., 149–50.

In the present case, the information set forth two

independent charges, intentional and reckless assault,
with no indication whatsoever that the charges were

being brought in the alternative. After reviewing the

information and the transcripts of the trial, we are not

persuaded that the state tried the case or presented its

evidence in a manner that indicated that it was proceeding on the theory that the charges against the defendant

were in the alternative. We acknowledge that the prosecutor, during argument on the defendant’s oral motion

for a judgment of acquittal, which, in part, was brought

on the ground that the charges were mutually exclusive,

held outside of the presence of the jury and after the

close of the state’s evidence, indicated to the defendant

and the court that he did not think that the defendant

could be convicted of both charges. The trial court,

however, citing Nash, immediately sought to clarify the

prosecutor’s statement. The court stated that it could

consider charging these counts in the alternative by

telling the jury that if it finds the defendant guilty on

count one, then it should find him not guilty on count

two, but that it thought, ‘‘under Nash, both do go to

the jury; if the jury comes back guilty on both, then, at

sentencing it becomes a question of either . . . merger

or vacating.’’ The prosecutor responded that he understood and that he had put his stance ‘‘in [a] more stark

position than [he] actually [would] when [he] stand[s]

in front of the jury, but that’s going to be sort of the

message that [he would be] conveying.’’ The court then

denied the defendant’s motion for a judgment of acquittal, stating in relevant part that, ‘‘taking [the] evidence

in the light most favorable to the state, the evidence

reasonably would permit a finding of guilty for both

count one and count two.’’ Thus, contrary to his position

on appeal, the defendant had notice, prior to the point

in time when he had to make the decision to testify,

that both charges of the information were going to be

presented to the jury separately and not in the alternative.

The next day, the defendant informed the court that

he would not testify in his defense. At that time, the

court also raised the defendant’s motion for a judgment

of acquittal again, and it restated, specifically for the

record, the discussion of the previous day and the holding in the Nash case. The court then stated that the

parties had engaged in several charging conferences

and that the court previously had handed out preliminary jury instructions, and it indicated that the defense

had submitted a request to charge on self-defense. The

court also stated for the record that it had e-mailed

counsel the revised jury charge the previous evening

and that counsel had met that morning to put in the

final touches, after conducting a page by page review.

Defense counsel stated that he was ‘‘satisfied that the

language that the court intend[ed] to instruct the jury

with [was] appropriate.’’

The prosecutor, during closing argument, went over

the elements of each count separately, and, during his
argument as to the elements of the second count, told

the jury that he believed that the evidence demonstrated

that the defendant’s conduct was intentional, and that,

if the jury ‘‘[d]id not agree with that,’’ then, ‘‘at the very

least,’’ the jury could conclude that the defendant ‘‘acted

recklessly.’’ The prosecutor continued his argument on

the elements of the second count and, thereafter, stated,

‘‘once again, if you do not agree, then I believe that, at

the least, you can conclude that [the defendant] simply

didn’t care if [Holmes] lived or died based on his action,

the slitting of the throat . . . .’’ Defense counsel’s closing argument centered on the defendant’s claim of selfdefense. During rebuttal, the prosecutor argued that

the state’s evidence demonstrated that the defendant

did not act in self-defense. The court charged the jury

on both counts and on the defendant’s claim of selfdefense. Consistent with Nash, the court did not tell

the jury that the charges were in the alternative. Rather,

the court told the jury to consider each count separately, along with its separate consideration of whether

the state disproved the defendant’s self-defense claim

on each count. On appeal, the defendant does not claim

error in the charge.

The defendant relies on Chyung and the dissent in

King 2016 to support his claim that his right to due

process was violated because he was unaware that he

could be found guilty of both counts. In Chyung, the

verdicts were inconsistent because the state had proceeded at trial on a one act, one result, one victim

theory for the charges of intentional murder and reckless manslaughter. State v. Chyung, supra, 325 Conn.

239–40; see also part I A of this opinion. Our Supreme

Court explained that these two charges, when tried on

such a theory, involve mutually exclusive states of mind,

which a defendant cannot possess simultaneously. Id.,

247–48. The state, on appeal, argued, in part, that the

conviction could be upheld on the alternative ground

that the jury could have found that the defendant did

not act both intentionally and recklessly with regard to

the same act and the same result, but that he engaged

in two separate acts, one reckless and one intentional,

with two separate results. Id., 254–55. Our Supreme

Court rejected the state’s argument on due process

grounds because the state had not presented that theory

to the jury, but, instead, had proceeded only on a one

act, one result, one victim theory throughout the trial.

Id., 255–56.

In King 2016, the defendant was convicted of intentional assault in the first degree and reckless assault

in the first degree. King 2016, supra, 321 Conn. 137.

On appeal to the Appellate Court, the defendant had

argued that the verdicts were legally inconsistent and

that the state had tried the case on a one act, one result,

one victim theory; the Appellate Court agreed. See State

v. King, 149 Conn. App. 361, 362–63, 87 A.3d 1193 (2014),

rev’d, 321 Conn. 135, 136 A.3d 1210 (2016). Following
the granting of certification to appeal, our Supreme

Court concluded that the verdicts were not legally

inconsistent because the evidence permitted the jury

to conclude that there were two acts, not one, each

with a different mental state; King 2016, supra, 144;

and because the conviction, pursuant to Nash, was not

legally inconsistent as a matter of law in that the two

mental states related to different results. Id., 142,

144–45.

Our Supreme Court explained in King 2016 that the

issue of whether the verdicts were legally inconsistent

and whether the defendant’s right to due process was

violated by the state’s attempt to change its theory of

the case are separate issues. Id., 148. On the issue of

whether the defendant’s right to due process had been

violated because the state had prosecuted him on a

theory that each crime had been charged in the alternative and he was unaware that he could be convicted of

both, our Supreme Court held that the defendant had

sufficient notice of the charges against him. Id., 150.

The court explained that the state did not present the

evidence in a manner that related specifically to one

charge or the other charge; id., 146; the trial court told

the defendant that he could be convicted of both

charges; id.; the defendant was charged in the information with both intentional and reckless assault; id., 139;

and the trial court, in its instructions, told the jury to

reach a verdict on both charges. Id., 154. The court also

pointed out that the state’s closing argument to the jury

was ambiguous on whether it was seeking a conviction

on only one of the charges, rather than on both. Id.,

155–56.

The dissent in King 2016, on which the defendant

relies, expressed disagreement with the majority on

the issue of whether the state in closing argument

expressed to the jury that its theory of the case was

that the defendant was guilty of either intentional or

reckless assault. Id., 171 (Robinson, J., dissenting). The

dissent in King 2016, however, offers the defendant

no assistance in this case; it is the dissenting opinion.

The majority in King 2016 disagreed with the dissent’s

approach to its analysis because the dissent ‘‘relie[d]

solely on the prosecutor’s statement during closing

argument to the exclusion of the contents of the substitute information and the jury instructions’’; id., 157 n.13;

and the majority, although concluding that the state’s

closing argument was ambiguous, held that ‘‘when

viewed in the context of the substitute information, the

state’s evidence at trial, and the jury instructions, the

defendant had sufficient notice that he could be convicted of both reckless and intentional assault. Accordingly, the manner in which the defendant was convicted

satisfies the requirements of due process.’’ Id., 157–58.

In the present case, reviewing ‘‘the relevant charging

document, the theory on which the case was tried and
submitted to the jury, and the trial court’s jury instructions regarding the charges’’; (internal quotation marks

omitted) id., 149–50; we conclude that the defendant’s

right to due process was not violated; he had sufficient

notice of the charges against him. On the basis of our

review of the transcripts, we are not persuaded that

the state proceeded on a theory that the charges were

in the alternative, and, furthermore, neither the information nor the state’s argument informed the jury that

it should find the defendant guilty on only one of the

charges. Additionally, although the state indicated to

the court during argument on the defendant’s oral

motion for a judgment of acquittal, outside of the presence of the jury, that it would argue those charges to

the jury in the alternative, the court immediately told

both attorneys that Nash permitted a guilty verdict on

both counts because they were not inconsistent, and

the state then corrected itself and told the court and

defense counsel that it would be arguing consistent

with that message. Thus, when he made his decision

not to testify, the defendant knew that the court was

going to submit both charges to the jury and that he

could be found guilty of both charges. At closing argument, the prosecutor told the jury that the evidence

demonstrated that the defendant acted intentionally,

but, at the very least, he acted recklessly, without concern for the life of Holmes. The prosecutor did not tell

the jury that it could or should find guilt only as to one

of the charges. Finally, the court’s instructions to the

jury were not based on alternative charges, and the

defendant was well aware of the court’s intent not to

charge the jury in the alternative before he chose not

to testify. The court clearly told the jury to consider

each charge and defense separately. After reviewing

the record in this case, and after considering the relevant case law, we conclude that the facts of this case

are not substantively different from those in King 2016.

Applying the holding in that case, as we must, we conclude that the defendant’s right to due process was

not violated.

II

The defendant also claims that the court erred in

excluding his statement to the police, given approximately forty-five minutes after the incident at issue.

He contends that the statement was admissible as a

spontaneous utterance,4 and that it was critical to his

self-defense claim because it demonstrated that he

thought Holmes was hostile and threatening. We are

not persuaded.5

The following additional facts inform our review.

Approximately forty-five minutes after the incident, the

defendant gave a statement to the police. In that statement, he told the police, in relevant part: ‘‘Some time

after 12:30 a.m., [Holmes] came inside into the kitchen

through the rear door. I said, ‘hey, how you doing?’ He
told me to come outside but didn’t tell me why. I followed him outside. I put a broom by the door to keep

it from locking behind me. Once outside, [Holmes] told

me that he heard I was talking shit about him. I asked

him who told him that. He told me not to worry about

it. I told him to bring the person here so I could smack

him for lying. He told me he couldn’t do that because

it was [one] of his people. I told him I didn’t care and

that I don’t talk about him or anybody else. [Holmes]

had brought another male friend with him who was

also outside at the time.

‘‘He started to get hostile and told me that he wasn’t

from here and he represents Bloods. I had my spray

bottle of [degreaser] with me so I went inside [to] put

it away. [Holmes] followed me inside and he kept yelling

and accusing me. I raised [my] hands up in front of me

telling him to leave me alone. I was holding my hands

open and not in a fighting stance. I did have a razor

blade in my hands still which I use for scraping the

fryers in the [restaurant]. I told him, ‘listen, I’m trying

to save your life.’ I told him that because I suffer from

bi-polar disease and I know I can get violent when I

feel threatened. He then got into a fighting stance with

his hands clenched in a fist. [Holmes] is a big guy and

I knew that if he hit me I’d be out for the count. I then

lashed out at him with my right hand. I had the razor

blade in my hand. I cut him on the left side of his neck.

[Holmes] ran out yelling ‘the mother fucker cut me!’

[Holmes] then got in the driver side of the car and the

other male got in the passenger side. [Holmes] said he

was going to call the cops. I told him I would call them

for him because he came to [the restaurant] when he

wasn’t supposed to be there. I then called 911 to report

[the] incident. In the process of the altercation, I also

cut my right hand on the middle finger.’’

During trial, the defendant offered this statement into

evidence on the grounds that two hearsay exceptions

applied, namely, as a spontaneous utterance and as a

statement of mental/emotional condition. The court

held that the spontaneous utterance exception did not

apply because the defendant had time to embellish and

fabricate in his statement. The court also held that the

mental state exception did not apply. On appeal, the

defendant claims that the court erred in failing to admit

the statement as a spontaneous utterance. See also footnote 4 of this opinion.

‘‘The [spontaneous] utterance exception is well established. Hearsay statements, otherwise inadmissible,

may be admitted into evidence to prove the truth of the

matter asserted therein when (1) the declaration follows a startling occurrence, (2) the declaration refers

to that occurrence, (3) the declarant observed the

occurrence, and (4) the declaration is made under circumstances that negate the opportunity for deliberation

and fabrication by the declarant.’’ State v. Kelly, 256
Conn. 23, 41–42, 770 A.2d 908 (2001).

‘‘The ultimate question is whether the utterance was

spontaneous and unreflective and made under such

circumstances as to indicate absence of opportunity

for contrivance and misrepresentation. . . . While the

amount of time that passes between a startling occurrence and a statement in question is not dispositive,

the court is entitled to take all the factual circumstances

into account when deciding the preliminary question

of whether a statement was spontaneous. . . . The

appropriate question is whether the statements were

made before reasoned reflection had taken place.’’

(Citations omitted; internal quotation marks omitted.)

Id., 60–61.

The defendant contends that he established the

admissibility of his statement by meeting the four part

test for admissibility. See id., 41–42. He argues in relevant part: ‘‘The trial court’s conclusion that the defendant had time to fabricate information contained in the

voluntary statement was erroneous. The defendant did

not have time to fabricate or embellish after the altercation. . . . [T]he defendant’s statement was made only

forty-five minutes after the altercation. This was not

enough time to fabricate critical facts that would lead

to his acquittal, particularly as he was occupied with

the 911 call during a substantial [portion] of that time.’’

He also argues that the statement ‘‘is corroborated by the

surveillance footage,’’ thereby demonstrating its reliability. The state contends that the court’s exclusion of

the statement was not an abuse of discretion. We agree

with the state.

The record reveals that the defendant called 911

within minutes of the altercation, at 12:48 a.m. Contrary

to the defendant’s argument that the 911 call took up

‘‘a substantial [portion]’’ of the time between the incident and his statement to the police, the defendant’s

phone call to 911 lasted less than two minutes. The

defendant did not begin his statement to the police until

1:30 a.m., approximately forty minutes after his 911 call

ended. Although we are mindful that the amount of

time that passes between an incident and the utterance

of a statement is not dispositive of its spontaneity, the

trial court in the present case determined that the defendant had time to fabricate and embellish his statement.

There is nothing in the record that demonstrates error

in that finding. Accordingly, the defendant has not met

his burden of proving that he did not have an opportunity to think about and fabricate or embellish his story.

The court did not abuse its discretion in excluding the

statement. See State v. Kelly, supra, 256 Conn. 61

(defendant failed in burden of proving court abused

discretion in concluding that one and one-half hour

time frame between incident and utterance was enough

time to fabricate story).

III
The defendant also claims that the state failed to

disprove his claim of self-defense. He argues: ‘‘In this

case, the defendant was confronted, while alone and

at night, by a dangerous former drug dealer and potential gang member, in an enclosed space from which he

was unable to easily escape. At trial, the defendant

asserted that he cut [Holmes] in self-defense, as Holmes

was the initial aggressor and was acting in a menacing

manner.’’ He contends that ‘‘the state’s evidence did not

disprove beyond a reasonable doubt that the defendant

acted in self-defense.’’ The state argues that it presented

sufficient evidence to disprove the defendant’s selfdefense claim and to establish that the defendant was

not justified in using deadly physical force against

Holmes. We agree with the state.

‘‘On appeal, the standard for reviewing sufficiency

claims in conjunction with a justification offered by the

defense is the same standard used when examining

claims of insufficiency of the evidence. . . . 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. . . . Moreover, 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.’’ (Citations omitted; internal quotation

marks omitted.) State v. Revels, 313 Conn. 762, 778, 99

A.3d 1130 (2014), cert. denied, U.S. , 135 S. Ct.

1451, 191 L. Ed. 2d 404 (2015).

‘‘The rules governing the respective burdens borne

by the defendant and the state on the justification of

self-defense are grounded in the fact that [u]nder our

Penal Code, self-defense, as defined in [General Statutes] § 53a-19 (a) . . . is a defense, rather than an affirmative defense. See General Statutes § 53a-16. Whereas

an affirmative defense requires the defendant to establish his claim by a preponderance of the evidence, a

properly raised defense places the burden on the state

to disprove the defendant’s claim beyond a reasonable

doubt. See General Statutes § 53a-12. Consequently, a

defendant has no burden of persuasion for a claim of

self-defense; he has only a burden of production. That

is, he merely is required to introduce sufficient evidence

to warrant presenting his claim of self-defense to the

jury. . . . Once the defendant has done so, it becomes

the state’s burden to disprove the defense beyond a

reasonable doubt.’’ (Emphasis in original; internal quo-
tation marks omitted.) State v. Revels, supra, 313

Conn. 778–79.

Under § 53a-19 (a), ‘‘a person is justified in using

reasonable physical force upon another person to

defend himself . . . 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 . . . .’’

Under § 53a-19 (b), ‘‘a person is not justified in using

deadly physical force upon another person if he or she

knows that he or she can avoid the necessity of using

such force with complete safety (1) by retreating,

except that the actor shall not be required to retreat if

he or she is in his or her dwelling, as defined in section

53a-100, or place of work and was not the initial aggressor . . . .’’

Under § 53a-19 (c), ‘‘a person is not justified in using

physical force when (1) with intent to cause physical

injury or death to another person, he provokes the use

of physical force by such other person, or (2) he is the

initial aggressor, except that his use of physical force

upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to

do so, but such other person notwithstanding continues

or threatens the use of physical force, or (3) the physical

force involved was the product of a combat by agreement not specifically authorized by law.’’

In order to determine whether the state produced

sufficient evidence to disprove beyond a reasonable

doubt the defendant’s claim of self-defense, we first

must set forth the defendant’s theory of self-defense.

The defendant’s theory of self-defense was that he took

reasonable steps to defend himself, given the threatening behavior of Holmes. The defendant relied on the

following evidence. Holmes showed up at the restaurant, after hours, in violation of the employee handbook,

with another person. Holmes had been drinking earlier

that night.6 Holmes asked the defendant to go outside,

where he confronted him about allegations he had

heard. The defendant denied the allegations and went

back into the restaurant, calling his wife on the phone

to tell her that he was having a problem and needed

assistance. The defendant sounded very concerned.

Holmes followed the defendant into the restaurant and

was confronting him in a threatening manner. The

defendant again tried to walk away. Holmes followed

him and the two ended up face to face, with Holmes

holding his keys in his hand, behaving aggressively.

Feeling threatened, the defendant, using a razor blade

that he used to clean the fryers at work, struck Holmes

to protect himself from what he believed to be an imminent physical attack.7

We next consider the evidence produced by the state,
viewed in a light consistent with the jury’s verdict, to

disprove the defendant’s claim of self-defense. Holmes

and the defendant had words outside the restaurant,

where they resolved Holmes’ issue with the defendant.

The defendant returned to the inside of the restaurant

and called his wife to tell her he was having a problem.

When Holmes returned to the restaurant, the defendant

did not go into the bathroom and lock the door. He did

not call the police or 911. Instead, he moved around

the restaurant, often with his back to Holmes, and then

moved near the fryer. The defendant then repeatedly

told Holmes that he was trying to save Holmes’ life.

Holmes was yelling at the defendant, tossing his keys

from hand to hand, but he did not strike the defendant.

The defendant, holding a razor blade that was used to

clean the fryer, then reached out, grabbed Holmes by

the neck or back of the head, pulled Holmes’ head

closer to him, and cut Holmes’ throat with the razor

blade. Holmes then fled the restaurant, bleeding from

his neck. The defendant ran after him into the parking

lot, chased Holmes around the car twice, and said, ‘‘see

what happens when you mess with me.’’

Although the defendant, on appeal, concedes that the

restaurant’s video does not show Holmes striking the

defendant, he argues that although ‘‘[i]t is possible the

defendant’s left hand circles Holmes’ head first [as he

cut Holmes’ throat]; it is also possible, from the movements of the parties, that Holmes threw a left hook

at the defendant’s ribs before this happened.’’ On

appeal, we do not entertain possibilities inconsistent

with the jury’s verdict. Although the defendant argues

that he was afraid of the larger, more muscular Holmes,

who ‘‘possibly’’ hit him in the ribs, and that his fear

justified his use of deadly force, the jury reasonable

chose to credit the testimony of Holmes. Holmes testified that he did not strike the defendant, that he and

the defendant were arguing, and that the defendant,

then, reached out, grabbed him, and cut his throat. This

testimony also was consistent with the video. Viewing

the evidence in the light most favorable to sustaining

the verdict, as we must, we conclude that the state

produced evidence that was sufficient to disprove

beyond a reasonable doubt the defendant’s defense.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The defendant filed a motion for a judgment of acquittal and a motion

for a new trial, arguing that the jury’s verdict was legally inconsistent because

each charge requires a mutually exclusive state of mind. The court denied

the motions.

2 The defendant argues that the Supreme Court clarified in Chyung that

the result of the crime is synonymous with ‘‘injury to the victim.’’ See State

v. Chyung, supra, 325 Conn. 246. According to the defendant, this means

that because Holmes suffered only one injury from one act, both charges

against the defendant related to the same result, and he, therefore, could

not be convicted of both charges. The defendant essentially is arguing that

Chyung overruled Nash regarding the meaning of ‘‘the same result.’’

Although we acknowledge that our Supreme Court stated in Chyung that

‘‘a defendant cannot simultaneously [act] intentionally and recklessly with
regard to the same act and the same result, i.e., the injury to the victim’’;

(internal quotation marks omitted) id.; the defendant has taken this one

sentence out of context. The statement is a quote from the court’s earlier

decision in State v. King, supra, 216 Conn. 593. In Nash, the court thoroughly

discussed and distinguished King. See State v. Nash, supra, 316 Conn.

658–66. The court, in Nash, then concluded that even though the charges

under § 53a-59 (a) (1) and (a) (3) related to the same injury to the same

victim, they did not relate to the same result and were not legally inconsistent

because the charges involved different mens rea that were not inconsistent

with each other. Id., 668–69. Given this history, we are unpersuaded that

in 2017 the Supreme Court in Chyung intended effectively to overrule, sub

silentio, Nash, a decision issued just two years earlier, merely by quoting

a 1999 decision that it went to great lengths to distinguish in Nash.

3

In Nash, our Supreme Court also carefully explained: ‘‘We emphasize that

our conclusion that the defendant’s convictions of intentional and reckless

assault in the first degree were not mutually exclusive does not mean that

a defendant lawfully may be punished for both offenses. . . . [T]he trial

court in the present case merged the two assault convictions for purposes

of sentencing and sentenced the defendant only on his intentional assault

conviction. The defendant has not claimed that this approach violates his

right against double jeopardy.’’ (Citation omitted.) State v. Nash, supra, 316

Conn. 669–70 n.19.

4 The defendant also offered the statement as a statement against penal

interest and as a statement of his then-existing mental or emotional condition. He concedes that neither claim is viable under existing Supreme Court

precedent; he stated in his appellate brief that he raised these grounds on

appeal only for the sake of ‘‘future review.’’ Accordingly, they need not

be addressed.

5 The defendant contends that the court’s exclusion of his statement to

the police denied him the constitutional right to present a defense. We

disagree. See State v. Kelly, 256 Conn. 23, 59 n.19, 770 A.2d 908 (2001)

(disagreeing with claim that exclusion of defendant’s statement to father

raises constitutional question, and concluding, instead, that claim was evidentiary in nature, subject to review under abuse of discretion standard).

‘‘Evidentiary matters are generally not constitutional in nature and will be

overturned only upon a showing of abuse of discretion.’’ Id.

6 Holmes testified that he drank three Heinekens at approximately 9 or

10 p.m. that evening. His medical records from Hartford Hospital showed

the presence of alcohol in his blood, but Dr. Bogner could not testify with

confidence regarding a level of intoxication because he was not aware of

whether Hartford Hospital used the same conversion tables as Day Kimball

Hospital. Dr. Bogner did state, however, that if both hospitals used the same

conversion tables, that Holmes’ blood alcohol level would have been 0.064

percent, which is less than the legal limit of 0.08 percent. The records also

showed the presence of opiates in Holmes’ bloodstream, but Dr. Bogner

testified that this may have been due to the administration of morphine

while he was at Day Kimball Hospital.

7

In his 911 call after the incident, which was admitted into evidence, the

defendant reported that Holmes had threatened his life, and that he cut

Holmes with a razor while defending himself.