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*********************************************** 
STATE OF CONNECTICUT v. PATRICIA DANIELS

(SC 20376)

Robinson, C. J., and McDonald, D’Auria, Mullins,

Ecker and Keller, Js.

Syllabus

A jury found the defendant guilty of intentional manslaughter in the first

degree, reckless manslaughter in the first degree, and misconduct with

a motor vehicle, among other crimes. The defendant had been driving

her vehicle at a high rate of speed when she struck the driver’s side of

the victim’s vehicle. The defendant then ran her vehicle into the victim’s

vehicle from behind, causing the victim’s vehicle to strike a tree, which

resulted in the victim’s death. At the defendant’s sentencing hearing,

the state moved to vacate the defendant’s intentional manslaughter

conviction, citing to State v. Polanco (308 Conn. 242) and its progeny,

in which this court held that the proper remedy for a double jeopardy

violation arising out of cumulative convictions is to vacate one of the

convictions rather than merging them. The trial court granted the state’s

motion and vacated the intentional manslaughter conviction for sentencing purposes. The defendant appealed from the judgment of conviction

to the Appellate Court, claiming, inter alia, that the jury’s verdict of

guilty of intentional manslaughter, reckless manslaughter, and misconduct with a motor vehicle, the latter of which involves the criminally

negligent operation of a motor vehicle that causes the death of another

person, was legally inconsistent because each of those crimes requires

proof of a mutually exclusive mental state. The Appellate Court determined that neither reckless manslaughter nor misconduct with a motor

vehicle was inconsistent with intentional manslaughter but agreed that

the defendant’s conviction of reckless manslaughter and misconduct

with a motor vehicle was legally inconsistent insofar as the defendant

could not have consciously disregarded the risk of the victim’s death

while simultaneously failing to perceive that same risk of death. The

Appellate Court rejected the state’s argument that the proper remedy

for the legal inconsistency was to remand the case with direction to

reinstate the defendant’s intentional manslaughter conviction and,

instead, reversed the judgment of the trial court in part, vacated the

defendant’s conviction of reckless manslaughter and misconduct with

a motor vehicle, and ordered a new trial as to those counts and the

intentional manslaughter count. The state, on the granting of certification, appealed to this court. Held:

1. The Appellate Court improperly ordered a new trial on the intentional

manslaughter, reckless manslaughter, and misconduct with a motor

vehicle counts instead of reinstating the defendant’s intentional manslaughter conviction and resentencing the defendant: although the state

did not dispute that the defendant’s conviction of reckless manslaughter

and misconduct with a motor vehicle was inherently inconsistent and,

therefore, was properly vacated by the Appellate Court, this court had

clarified in Polanco and its progeny that the adoption of vacatur as the

appropriate remedy for cumulative convictions did not preclude the

reinstatement of a defendant’s vacated conviction if it was vacated to

avoid a double jeopardy violation and was not affected by the legal

inconsistency that necessitated the reversal of the controlling offense

or offenses of which the defendant had been convicted; in the present

case, the defendant’s intentional manslaughter conviction was vacated

for the purpose of avoiding a double jeopardy violation, as a review of

the record demonstrated that, at the defendant’s sentencing hearing,

the prosecutor specifically cited to case law concerning vacatur that

was developed and applied in the context of double jeopardy violations

and indicated that the vacatur request was consistent with the state’s

theory at trial that the two strikes to the victim’s vehicle arose from a

single act that was either intentional or reckless, and the prosecutor

was apparently under the belief that vacating one of the manslaughter

counts was necessary to avoid the imposition of cumulative punishments; moreover, the vacated intentional manslaughter conviction was
not affected by the legal inconsistency that necessitated the vacating

on appeal of the defendant’s conviction of reckless manslaughter and

misconduct with a motor vehicle, namely, the impossibility of consciously disregarding the risk of the victim’s death while simultaneously

failing to perceive that same risk of death, because the crime of intentional manslaughter requires the jury to find only that the defendant

intended to cause serious physical injury to another person and that

she caused the death of such person or of a third person, not that she

had a specific mental state with respect to creating a risk of death;

accordingly, because the defendant’s intentional manslaughter conviction was not tainted by the inconsistency in the jury’s verdict and was

vacated to avoid a potential double jeopardy violation, this court

reversed the judgment of the Appellate Court as to the remedy for the

jury’s inconsistent verdict only, upholding the Appellate Court’s vacating

of the defendant’s conviction of reckless manslaughter and misconduct

with a motor vehicle but remanding the case with direction to reinstate

the defendant’s intentional manslaughter conviction, to sentence the

defendant on that count, and to resentence her on her conviction of

two other counts unrelated to the counts of manslaughter and misconduct with a motor vehicle.

2. The defendant could not prevail on her claim that the judgment of the

Appellate Court should be affirmed on the alternative ground that that

court incorrectly had concluded that her intentional manslaughter conviction was not inconsistent with her conviction of reckless manslaughter and misconduct with a motor vehicle:

a. The defendant’s conviction of intentional manslaughter and reckless

manslaughter was not legally inconsistent: the crime of intentional manslaughter requires only that the defendant had the intent to cause serious

physical injury to a person and caused the death of such person or of

a third person, whereas the elements of reckless manslaughter include

the requirement that the defendant recklessly engaged in conduct that

created a grave risk of death to another person, and, therefore, the

mental state requirements for the two offenses did not relate to the

same result; accordingly, the jury reasonably could have found that the

defendant simultaneously acted intentionally and recklessly with respect

to different results, in that she specifically intended to cause serious

physical injury to the victim and, in so doing, consciously disregarded

a substantial and unjustifiable risk that her actions created a grave risk

of death to the victim.

b. The defendant’s conviction of intentional manslaughter and misconduct with a motor vehicle was not legally inconsistent: the mental state

required for misconduct with a motor vehicle, namely, that the defendant

failed to perceive a substantial and unjustifiable risk that the manner in

which she operated her vehicle would cause the death of another person,

was not mutually exclusive with the mental state required for the crime

of intentional manslaughter, namely, that the defendant had the intent

to cause serious physical injury; because the defendant could have

intended to cause serious physical injury to the victim, as required for

intentional manslaughter, while, at the same time, have failed to perceive

a substantial and unjustifiable risk that the manner in which she operated

her vehicle would cause the victim’s death, as required for misconduct

with a motor vehicle, the mental state elements of each crime did not

relate to the same result.

Argued October 20, 2021—officially released March 29, 2022

Procedural History

Substitute information charging the defendant with

two counts of the crime of manslaughter in the first

degree, and with one count each of the crimes of misconduct with a motor vehicle, risk of injury to a child,

and evasion of responsibility in the operation of a motor

vehicle, brought to the Superior Court in the judicial

district of Fairfield and tried to the jury before Kavanewsky, J.; verdict and judgment of guilty; thereafter,

the court vacated the conviction as to one count of

manslaughter in the first degree, and the defendant

appealed to the Appellate Court, Lavine, Bright and
Bear, Js., which reversed in part the trial court’s judgment, and the state, on the granting of certification,

appealed to this court. Reversed in part; further proceedings.

Denise B. Smoker, senior assistant state’s attorney,

with whom, on the brief, were Joseph T. Corradino,

state’s attorney, John C. Smriga, former state’s attorney, and Marc R. Durso, senior assistant state’s attorney, for the appellant (state).

Laila M. G. Haswell, senior assistant public defender,

for the appellee (defendant).
Opinion

ECKER, J. Following a jury trial, the defendant, Patricia Daniels, was found guilty of manslaughter in the

first degree in violation of General Statutes § 53a-55

(a) (1) (intentional manslaughter),1 manslaughter in the

first degree in violation of § 53a-55 (a) (3) (reckless

manslaughter),2 and misconduct with a motor vehicle

in violation of General Statutes § 53a-57 (a) (criminally

negligent operation), among other crimes.3 At the sentencing hearing, the trial court vacated the defendant’s

intentional manslaughter conviction pursuant to State

v. Polanco, 308 Conn. 242, 245, 61 A.3d 1084 (2013), at

the request of the state and rendered judgment on the

remaining counts of conviction. The defendant appealed

on the ground that the jury’s verdict was legally inconsistent because each of these three charged crimes

required mutually exclusive mental states. See State v.

Daniels, 191 Conn. App. 33, 38, 213 A.3d 517 (2019).

The Appellate Court agreed that the defendant’s conviction of reckless manslaughter and criminally negligent

operation was legally inconsistent; id., 53; but also

determined that neither reckless manslaughter nor

criminally negligent operation was inconsistent with

intentional manslaughter. Id., 49, 51. Despite these latter

holdings, the Appellate Court did not remand the case

with direction to reinstate the intentional manslaughter

conviction but, instead, reversed the defendant’s conviction of all three crimes and remanded the case for

a new trial on those three charges. Id., 62–63. On appeal

to this court, the state argues that the Appellate Court

improperly ordered a new trial on all three charges

rather than reinstating the defendant’s intentional manslaughter conviction. We agree with the state and,

accordingly, reverse in part the judgment of the Appellate Court.

The relevant underlying facts are set forth in the

Appellate Court’s opinion. ‘‘The victim, Evelyn Agyei,

left her Bridgeport home at approximately 6 a.m. on

December 4, 2014. Her eleven year old son accompanied

her. Agyei and her son got into Agyei’s Subaru Outback

(Subaru), Agyei driving and her son in the back seat

on the passenger’s side. After traversing some back

roads, they took Bond Street and arrived at the intersection of Bond Street and Boston Avenue. Agyei stopped

at the red light and then proceeded to make a right turn

onto Boston Avenue, staying in the right lane. As she

was making the right turn, her son looked to the left

and saw a white BMW sport utility vehicle (BMW)

approximately two streets down, traveling at a high rate

of speed in the left lane.

‘‘After Agyei [turned] onto Boston Avenue, the driver

of the BMW pulled alongside Agyei’s vehicle. Agyei’s

son saw the BMW logo on the hood; however, he could

not see the driver or the license plate. The driver of

the BMW then moved into the right lane, hitting Agyei’s
Subaru once on the driver’s side and causing her to

begin to lose control of the vehicle. The driver of the

BMW then moved behind the Subaru and ran into it

from behind, causing the vehicle to cross the median,

proceed under a fence, and hit a tree. Tragically, Agyei

died from her injuries, and her son, who also was

injured, continues to have vision problems as a result

of the injuries he sustained. After an investigation . . .

the police, having concluded that the defendant was

the driver of the BMW that hit the Subaru . . . [and]

cause[d] Agyei’s death and the injuries to Agyei’s son,

arrested the defendant.’’ Id., 36–37.

Following a jury trial, the defendant was found guilty

of intentional manslaughter, reckless manslaughter,

and criminally negligent operation. See footnote 3 of

this opinion. At the sentencing hearing, the state moved

to vacate the defendant’s intentional manslaughter conviction, explaining: ‘‘I think that [disposition] goes along

with the spirit of the state’s intent during the beginning

of this case. The state did have the belief, when we

initially filed our long form information, that we [would

proceed] on both a legal theory of intentional and reckless manslaughter based on the fact that the defendant’s

vehicle came into contact with [Agyei’s] vehicle twice.

But, in light of the convictions, we’d ask that she be

sentenced solely on the reckless manslaughter [conviction] and that [the court] vacate the intentional manslaughter [conviction] for sentencing purposes.’’ In

support of its request, the state cited to our double

jeopardy case law, namely, State v. Polanco, supra, 308

Conn. 242, State v. Miranda, 317 Conn. 741, 120 A.3d

490 (2015), and State v. Wright, 320 Conn. 781, 135 A.3d

1 (2016).4 The trial court granted the state’s request,

vacated the defendant’s conviction of intentional manslaughter, and sentenced the defendant to a total effective sentence of twenty years of incarceration, execution

suspended after sixteen years, and five years of probation.5

The defendant appealed from the trial court’s judgment to the Appellate Court, claiming that the jury’s

verdict was legally inconsistent because the crimes of

intentional manslaughter, reckless manslaughter, and

criminally negligent operation each require proof of a

mutually exclusive mental state.6 See State v. Daniels,

supra, 191 Conn. App. 38. The Appellate Court agreed

with the defendant that the jury’s verdict was partially

inconsistent and reversed in part the judgment of the

trial court. Id., 53, 62–63. The Appellate Court determined

that there was no legal inconsistency in either the defendant’s conviction of intentional and reckless manslaughter or her conviction of intentional manslaughter and

criminally negligent operation; id., 49, 51; but it found

that the defendant’s conviction of reckless manslaughter and criminally negligent operation was legally inconsistent. Id., 53. The Appellate Court reasoned that the

crimes of reckless manslaughter and criminally negli-
gent operation were ‘‘mutually exclusive when examined under the facts and theory of the state in the present

case’’ because they each require proof of a different

mental state as to the same result—the death of Agyei.

Id. Specifically, the defendant could not have been reckless as to the risk of Agyei’s death by ‘‘consciously

disregard[ing] a substantial and unjustifiable risk that

her actions would cause . . . death, while, simultaneously, [having been negligent as to the risk of Agyei’s

death by] failing to perceive a substantial and unjustifiable risk that her actions would cause . . . death.’’7

(Emphasis in original.) Id. Simply put, a person cannot

consciously disregard a risk that she fails to perceive.

To remedy the legal inconsistency in the jury’s verdict, the Appellate Court vacated the defendant’s conviction of reckless manslaughter and criminally negligent

operation and remanded the case to the trial court for

a new trial on all three charges related to Agyei’s death:

intentional manslaughter, reckless manslaughter, and

criminally negligent operation. Id., 63. In doing so, the

Appellate Court rejected the state’s claim that the legal

inconsistency could be remedied by reinstating the

defendant’s intentional manslaughter conviction, pointing out that the state had ‘‘moved at sentencing to vacate

the conviction on that charge partly because doing so

went ‘along with the spirit of the state’s intent during

the beginning of this case’ ’’ and, therefore, that ‘‘the

most the state can ask for is what the defendant has

requested—a retrial on all three of the charges related to

Agyei’s death.’’ Id. We subsequently granted the state’s

petition for certification to appeal, limited to the following issue: ‘‘Did the Appellate Court improperly order a

new trial rather than reinstate the defendant’s conviction of intentional manslaughter in the first degree,

which was vacated for sentencing purposes under State

v. Polanco, [supra, 308 Conn. 242]?’’ State v. Daniels,

333 Conn. 918, 216 A.3d 651 (2019).

On appeal, the state argues that the proper remedy

for the legal inconsistency in the jury’s verdict is to

reinstate the defendant’s intentional manslaughter conviction pursuant to Polanco and its progeny. According

to the state, there is no substantive obstacle to resurrecting the defendant’s intentional manslaughter conviction because ‘‘the reason for the state’s request to

vacate the intentional manslaughter conviction was to

avoid a potential double jeopardy problem.’’ The state

also contends that the defendant’s intentional manslaughter conviction was ‘‘not undermined by the Appellate Court’s rationale for [vacating] her other two

convictions’’ and that the record reflects that the jury

necessarily found, beyond a reasonable doubt, all of

the essential elements necessary to convict the defendant of intentional manslaughter.

The defendant responds that the state waived its claim

for reinstatement of the defendant’s intentional man-
slaughter conviction because the state’s posttrial

motion to vacate was ‘‘not related to double jeopardy’’

but, rather, was prompted by ‘‘the state’s theory that

the crime was intentional or reckless, but not both.’’

Furthermore, the defendant contends that her intentional manslaughter conviction is tainted by the legal

inconsistency in the jury’s verdict ‘‘because the convictions required the jury to find inconsistent narratives

when it [found] the defendant [guilty] of all three charges.’’

Alternatively, the defendant claims that the Appellate

Court incorrectly determined that the jury’s guilty verdict as to the intentional manslaughter count was not

legally inconsistent with its guilty verdict as to the reckless manslaughter and criminally negligent operation

counts.

I

REMEDY FOR THE JURY’S

INCONSISTENT VERDICT

The state claims that the Appellate Court improperly

ordered a new trial on the defendant’s conviction of

intentional manslaughter, reckless manslaughter, and

criminally negligent operation, rather than reinstating

the defendant’s intentional manslaughter conviction.

We agree.

The resolution of a claim of an inconsistent verdict

presents a question of law, over which our review is

plenary. See, e.g., State v. Hazel, 106 Conn. App. 213,

223, 941 A.2d 378, cert. denied, 287 Conn. 903, 947 A.2d

343 (2008). ‘‘When a jury has [returned] legally inconsistent verdicts, there is no way for the reviewing court

to know which charge the jury found to be supported

by the evidence. . . . Accordingly, the court must

vacate both convictions and remand the case to the

trial court for a new trial.’’ (Citation omitted; footnote

omitted.) State v. Chyung, 325 Conn. 236, 247, 157 A.3d

628 (2017); see also State v. Alicea, 339 Conn. 385, 391,

260 A.3d 1176 (2021); People v. Gallagher, 69 N.Y.2d

525, 530, 508 N.E.2d 909, 516 N.Y.S.2d 174 (1987). In

other words, when a jury’s verdict is tainted by a legal

defect such as inconsistency, the tainted counts of conviction cannot stand.

The state, at this stage of the proceedings, does not

dispute that the defendant’s conviction of reckless manslaughter and criminally negligent operation is inherently inconsistent and, therefore, properly was reversed

by the Appellate Court. The state argues, however, that

a new trial is unnecessary because the inconsistency

can be remedied by the reinstatement of the defendant’s

intentional manslaughter conviction, which was not

inconsistent with the jury’s verdict on the reckless manslaughter and criminally negligent operation counts

and, therefore, remains untainted by the defect.

In State v. Polanco, supra, 308 Conn. 242, we held

that, ‘‘when a defendant is convicted of greater and
lesser included offenses [in violation of the constitutional right to be free from double jeopardy], the trial

court shall vacate the conviction for the lesser offense

rather than merging it with the conviction for the greater

offense.’’ Id., 260. We clarified that our adoption of

vacatur as the appropriate remedy for double jeopardy

violations did not preclude the reinstatement of the

defendant’s vacated conviction if the defendant’s ‘‘greater

offense is subsequently reversed for reasons unrelated

to the viability of the vacated conviction.’’ Id., 262. We

observed that this procedure already is employed by

‘‘many other courts’’ and that it is ‘‘a well established

practice in our appellate courts to direct the trial court

to render a judgment of conviction on a lesser included

offense on which the jury did not even return a verdict,

when the conviction for the greater offense is reversed

for reasons that do not touch the elements of the lesser

offense.’’ (Emphasis added.) Id., 262–63.

We extended this remedy beyond greater and lesser

included offenses in State v. Miranda, supra, 317 Conn.

741. In that case, the defendant claimed that his cumulative convictions and sentences for capital felony, murder,

and felony murder violated double jeopardy because

they arose from the killing of a single victim. Id., 744–45,

751. We explained that applying the remedy of vacatur

‘‘beyond scenarios involving greater and lesser included

offenses will . . . promote inter-jurisdictional and

intra-jurisdictional harmony, and better safeguard against

unconstitutional multiple punishments.’’ Id., 753; see

State v. Wright, supra, 320 Conn. 830 (vacatur is appropriate remedy for defendant’s cumulative convictions

in violation of double jeopardy). We rejected the state’s

concern that a defendant might ‘‘ ‘escape punishment

entirely if he were to later succeed in reversing his

controlling [capital felony] conviction,’ ’’ reasoning that

there was ‘‘no substantive obstacle to resurrecting a

cumulative conviction that was once vacated on double

jeopardy grounds—provided that the reasons for overturning the controlling conviction would not also undermine the vacated conviction. . . . This holds true

regardless of whether the previously vacated conviction

was for a lesser included offense of the controlling conviction, or was cumulative in some other manner. In

either instance, a jury necessarily found that all the

elements of the cumulative offense were proven beyond

a reasonable doubt. Put differently, although the cumulative conviction goes away with vacatur, the jury’s

verdict does not.’’ (Citation omitted.) State v. Miranda,

supra, 753–54.

Pursuant to the foregoing authorities, the defendant’s

intentional manslaughter conviction may be reinstated

if two criteria are met: (1) the conviction was vacated

to avoid a double jeopardy violation; and (2) the conviction is unaffected by the legal inconsistency that necessitated the reversal of the defendant’s conviction of

reckless manslaughter and criminally negligent opera-
tion. We address each of these criteria in turn.

A

The Defendant’s Conviction Was Vacated To Avoid a

Potential Double Jeopardy Violation

We must first determine whether the defendant’s

intentional manslaughter conviction was vacated to

avoid a double jeopardy violation. The state moved to

vacate the defendant’s intentional manslaughter conviction at sentencing ‘‘under the legal theory of vacatur’’

articulated in ‘‘Polanco, Miranda, and Wright . . . .’’

The state explained that vacatur of the defendant’s

intentional manslaughter conviction ‘‘goes along with

the spirit of the state’s intent during the beginning of

this case. The state did have the belief, when we initially

filed our long form information, that we [would proceed] on both a legal theory of intentional and reckless

manslaughter based on the fact that the defendant’s

vehicle came into contact with [Agyei’s] vehicle twice.

But, in light of the convictions, we’d ask that she be

sentenced solely on the reckless manslaughter [conviction] and that [the court] vacate the intentional manslaughter [conviction] for sentencing purposes.’’

We conclude that the defendant’s intentional manslaughter conviction was vacated for the purpose of

avoiding a potential double jeopardy violation.8 First,

in requesting vacatur, the state cited case law on vacatur

developed and applied by this court in the specific context of double jeopardy violations. It appears that the

state believed that it was necessary to vacate one of the

two manslaughter convictions to avoid the imposition

of cumulative punishments. Second, the state explained

that its request was consistent with its theory at trial

that both strikes to Agyei’s vehicle arose from a single

act that was either intentional or reckless, thereby

invoking the first prong of the applicable double jeopardy analysis, which requires ‘‘the charges [to] arise

out of the same act or transaction.’’ (Internal quotation

marks omitted.) State v. Ruiz-Pacheco, 336 Conn. 219,

227, 244 A.3d 908 (2020); see id., 226–27 (‘‘When the

defendant is charged with the violation of two distinct

statutes in a single criminal proceeding arising from a

single underlying set of events, we have employed a

two part analysis. First, the charges must arise out of the

same act or transaction. Second, it must be determined

whether the charged crimes are the same offense.’’

(Internal quotation marks omitted.)). Although the state

did not use the talismanic words ‘‘double jeopardy’’ to

explain its reasoning, the articulated basis for its vacatur request was unequivocally rooted in double jeopardy

principles. See, e.g., State v. Edwards, 100 Conn. App.

565, 578 n.6, 918 A.2d 1008 (‘‘Connecticut courts have

refused to attach talismanic significance to the presence

or absence of particular words or phrases’’ (internal

quotation marks omitted)), cert. denied, 282 Conn. 928,

926 A.2d 666 (2007), and cert. denied, 282 Conn. 929,
926 A.2d 667 (2007).

The defendant contends that the state’s vacatur

request was not predicated on double jeopardy grounds

because the state sought to vacate ‘‘the greater charge

rather than the lesser charge’’ in violation of the well

established rule that, ‘‘when a defendant is convicted

of greater and lesser included offenses, the trial court

shall vacate the conviction for the lesser offense . . . .’’

(Emphasis added.) State v. Polanco, supra, 308 Conn.

260. This argument fails at the starting gate, however,

because reckless manslaughter is not a lesser included

offense of intentional manslaughter. ‘‘By definition, [a]

lesser included offense is one that does not require

proof of elements beyond those required by the greater

offense.’’ (Internal quotation marks omitted.) State v.

Johnson, 316 Conn. 34, 44, 111 A.3d 447 (2015). Reckless

manslaughter requires proof of essential elements that

intentional manslaughter does not, specifically, the

existence of ‘‘circumstances evincing an extreme indifference to human life’’ and the requirement that the

defendant ‘‘recklessly engages in conduct which creates

a grave risk of death to another person . . . .’’ General

Statutes § 53a-55 (a) (3). Thus, it is possible to commit

the crime of intentional manslaughter without committing the crime of reckless manslaughter. See, e.g., State

v. Tinsley, 340 Conn. 425, 435–36, 264 A.3d 560 (2021)

(one offense is not lesser included offense of another

if it is possible to commit alleged greater crime without

committing alleged lesser crime). Intentional manslaughter and reckless manslaughter do not stand in

the position of greater and lesser included offenses.

Instead, they are alternative ways of committing the

same offense: manslaughter in the first degree.

B

The Inconsistency in the Jury’s Verdict Did Not Affect

the Defendant’s Vacated Conviction

We next address whether the defendant’s intentional

manslaughter conviction was affected by the legal inconsistency that necessitated the reversal of the defendant’s conviction of reckless manslaughter and criminally negligent operation. It is undisputed that the

defendant’s conviction of reckless manslaughter and

criminally negligent operation convictions is legally

inconsistent because each offense requires proof of a

mutually exclusive mental state with respect to the

death of Agyei. More precisely, as the Appellate Court

observed, the defendant could not have consciously

disregarded the risk of Agyei’s death while simultaneously failing to perceive that same risk of death. See

State v. Daniels, supra, 191 Conn. App. 53. But this

holding does not automatically compel the conclusion

that the defendant’s intentional manslaughter conviction is tainted by the inconsistency in the jury’s verdict.

We conclude, to the contrary, that the defendant’s mutually exclusive mental states with respect to the risk of
Agyei’s death do not affect the defendant’s intentional

manslaughter conviction under § 53a-55 (a) (1) because

that statutory provision does not require the jury to

find a specific mental state as to the risk of death.

To find the defendant guilty of intentional manslaughter in violation of § 53a-55 (a) (1), the jury was required

to find, beyond a reasonable doubt, that the defendant

intended ‘‘to cause serious physical injury to another

person’’ and ‘‘cause[d] the death of such person or of

a third person . . . .’’ General Statutes § 53a-55 (a) (1).

Unlike reckless manslaughter under § 53a-55 (a) (3) and

criminally negligent operation under § 53a-57 (a), the

crime of intentional manslaughter does not require

proof of the defendant’s mental state with respect to

the risk of death;9 a jury may find a defendant guilty

under § 53a-55 (a) (1) whether the defendant actually

intended to create a risk of death, or was reckless or

negligent with respect to such risk. All that the jury

was required to find was that the defendant intended

to cause Agyei serious physical injury and that she

caused Agyei’s death. Thus, the inconsistency in the

jury’s verdict as to whether the defendant ‘‘consciously

disregarded a substantial and unjustifiable risk that

her actions would cause Agyei’s death’’ or ‘‘fail[ed] to

perceive a substantial and unjustifiable risk that her

actions would cause Agyei’s death’’; (emphasis in original) State v. Daniels, supra, 191 Conn. App. 53; does

not taint the jury’s guilty verdict as to the intentional

manslaughter count.

Because the defendant’s intentional manslaughter

conviction is not affected by the inconsistency in the

jury’s verdict and was vacated to avoid a potential double jeopardy violation; see part I A of this opinion; we

conclude that reinstatement of that conviction is the

proper remedy in the present case. See State v. Polanco,

supra, 308 Conn. 262–63 (reinstatement of vacated conviction is proper remedy when cumulative conviction

is vacated for double jeopardy purposes and reason for

reversal does not affect vacated conviction); see also

State v. Miranda, supra, 317 Conn. 755 (same). The

‘‘revival of the [vacated] manslaughter conviction would

serve the interest of justice’’; (internal quotation marks

omitted) State v. Miranda, supra, 755; because the jury

returned a guilty verdict on that count, reflecting that

it had ‘‘found that all the elements of the [vacated]

offense were proven beyond a reasonable doubt.’’ Id.,

754. Accordingly, we reverse the judgment of the Appellate Court as to the remedy for the jury’s inconsistent verdict.10

II

INCONSISTENT VERDICT

We next address the defendant’s alternative grounds

for affirmance. The defendant argues that the Appellate

Court erred in determining that the jury’s guilty verdict
of intentional manslaughter is not inconsistent with the

defendant’s conviction of reckless manslaughter and

criminally negligent operation. According to the defendant, because each conviction required a mutually

exclusive mental state and it is impossible to ascertain

which of the three inconsistent states of mind the jury

attributed to the defendant, the verdict is legally inconsistent with respect to all three counts.

The following legal principles guide our analysis. ‘‘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.’’ (Internal quotation marks omitted.) State v.

Alicea, supra, 339 Conn. 390–91.

A

Intentional Manslaughter and Reckless Manslaughter

The defendant contends that the crimes of intentional

manslaughter in the first degree in violation of § 53a55 (a) (1) and reckless manslaughter in the first degree

in violation of § 53a-55 (a) (3) are legally inconsistent

pursuant to State v. King, 216 Conn. 585, 592–94, 583

A.2d 896 (1990) (King 1990), and State v. Chyung,

supra, 325 Conn. 247–48. The defendant argues that,

similar to King 1990 and Chyung, the defendant’s conduct in the present case constituted a single act with

one result, namely, death, and, therefore, that ‘‘multiple

states of mind cannot be attributed to the defendant.’’

We disagree.

Our recent decision in State v. Alicea, supra, 339 Conn.

385, provides an instructive survey and analysis of our

case law regarding the legal consistency of multiple

verdicts. As we explained in Alicea, ‘‘the statutory definitions of intentionally and recklessly are mutually

exclusive and inconsistent.’’ (Internal quotation marks

omitted.) Id., 391–92, quoting State v. King, supra, 216

Conn. 593–94. ‘‘Intentional conduct requires the defendant to possess a ‘conscious objective . . . to cause’

the result described in the statute defining the offense.

. . . General Statutes § 53a-3 (11). By contrast, reckless

conduct requires that the defendant ‘is aware of and

consciously disregards a substantial and unjustifiable

risk’ that the result described in the statute will occur.

. . . General Statutes § 53a-3 (13). Thus, a reckless

mental state is inconsistent with an intentional mental
state because ‘one who acts recklessly does not have

a conscious objective to cause a particular result.’ ’’

(Emphasis in original.) State v. Alicea, supra, 392.

Nonetheless, convictions involving both intentional

and reckless mental states may be legally consistent ‘‘in

certain circumstances. For example, when each mental

state pertains to a different act, a different victim, or

a different injury, then the convictions are consistent.

. . . Significantly, we have also explained that convictions involving both intentional and reckless mental

states may be legally consistent when each mental state

pertains to a different result.’’ (Citations omitted;

emphasis in original.) Id. Because ‘‘[m]ental states . . .

exist only with reference to particular results . . . it

is necessary to examine the mental state element as it

arises in each particular statute defining an offense to

determine whether actual inconsistency exists.’’ (Internal quotation marks omitted.) State v. Nash, 316 Conn.

651, 668, 114 A.3d 128 (2015).

Similar to the defendant in the present case, the

defendant in Alicea claimed that the verdict finding him

guilty of both intentional assault and reckless assault

was legally inconsistent ‘‘because [the] requisite mental

states—intentional and reckless—are mutually exclusive,’’ and ‘‘it was impossible for the jury to find both

mutually exclusive mental states with respect to only

one act, one victim, and one injury.’’ State v. Alicea,

supra, 339 Conn. 390. We rejected the defendant’s claim,

explaining that ‘‘ ‘[t]he relevant inquiry . . . is whether

the opposing mental states relate to the same result,

not whether both convictions relate to the same injury.’

. . . The word ‘result’ in this context referred to the

result of the requisite mental state, or, in other words,

the statutory objective associated with the respective

mental state.’’ (Citation omitted; emphasis in original.)

Id., 396. Thus, the relevant inquiry is not ‘‘whether the

statutes at issue require findings that the defendant

caused the same injury to the victim. Rather . . . [the

convictions] are legally inconsistent only if they require

that the defendant possess the opposing mental states

with respect to the same objective . . . .’’ (Emphasis in

original; internal quotation marks omitted.) Id., 396–97.

We held in Alicea that the defendant’s conviction of

intentional assault and reckless assault was not legally

inconsistent because the objective associated with the

different mental state elements of the two statutory

provisions were not mutually exclusive. We explained

that ‘‘[t]he jury reasonably could have found that the

defendant simultaneously possessed both [intentional

and reckless] mental states pertaining to his singular

action of cutting [the victim’s] throat. In other words,

the jury reasonably could have found that the defendant

intended to cause [the victim] serious physical injury

and simultaneously disregarded the risk that his conduct would cause [the victim’s] death.’’ Id., 394; see
State v. Nash, supra, 316 Conn. 666 (defendant’s conviction of intentional and reckless assault in first degree

was not legally inconsistent because jury reasonably

could have found that defendant intended to injure

another person and recklessly created risk of that person’s death).

To resolve the defendant’s claim in the present case,

we must analyze whether the crimes of intentional manslaughter and reckless manslaughter require the defendant to possess opposing mental states with respect

to the same statutory objective. Section 53a-55 (a) (1)

provides in relevant part that a person is guilty of intentional manslaughter in the first degree when, ‘‘[w]ith

intent to cause serious physical injury to another person, he causes the death of such person or of a third

person . . . .’’ (Emphasis added.) Thus, to find the

defendant guilty of intentional manslaughter, the jury

was required to find that the defendant (1) had the

intent to cause serious physical injury to a person, and

(2) caused the death of such person or a third person.

Section 53a-55 (a) (3) provides in relevant part that

a person is guilty of reckless manslaughter in the first

degree when, ‘‘under circumstances evincing an extreme

indifference to human life, he recklessly engages in

conduct which creates a grave risk of death to another

person, and thereby causes the death of another person.’’ (Emphasis added.) Thus, to find the defendant

guilty of reckless manslaughter, the jury was required

to find that the defendant (1) acted under circumstances

evincing an extreme indifference to human life, (2) recklessly engaged in conduct that created a grave risk of

death to another person, and (3) caused the death of

another person.

We agree with the Appellate Court that ‘‘the mens

rea elements in the two provisions, namely, the ‘intent

to cause serious physical injury’ and ‘recklessly engag-

[ing] in conduct which creates a grave risk of death’;

General Statutes § 53a-55 (a) [(1) and (3)]; do not relate

to the same result.’’ State v. Daniels, supra, 191 Conn.

App. 48–49. As we explained in part I B of this opinion,

subdivision (1) of § 53a-55 (a) does not require the jury

to find a specific mental state as to the risk of death—

it requires only that the jury find a particular mental

state as to the element of serious physical injury. See

footnote 9 of this opinion and accompanying text. Subdivision (3), by contrast, specifies a particular mental

state as to the risk of death—it requires the jury to find

that the defendant was reckless with respect to the

grave risk of death resulting from her conduct. Accordingly, as the Appellate Court correctly concluded, the

jury consistently could have found that the defendant

‘‘specifically intended to cause serious physical injury

to Agyei and that, in doing so, she consciously disregarded a substantial and unjustifiable risk that her

actions created a grave risk of death to Agyei.’’ (Empha-
sis in original.) State v. Daniels, supra, 49. Because the

jury reasonably could have found that the defendant

possessed both mental states simultaneously, we agree

with the Appellate Court that the defendant’s conviction

of intentional manslaughter and reckless manslaughter

was not legally inconsistent.11

B

Intentional Manslaughter and Criminally

Negligent Operation

The defendant also claims that her conviction of

intentional manslaughter and criminally negligent operation is inconsistent because the ‘‘[d]efendant could not

have intended to cause serious physical injury while

simultaneously failing to perceive a risk of death.’’ We

again disagree.

We have already explained that § 53a-55 (a) (1) provides that a person is guilty of intentional manslaughter

in the first degree when, ‘‘[w]ith intent to cause serious

physical injury to another person, he causes the death

of such person or of a third person . . . .’’ (Emphasis

added.) In order to find the defendant guilty of intentional manslaughter, we repeat, the jury was required

to find that the defendant (1) had the intent to cause

serious physical injury to a person, and (2) caused the

death of such person or of a third person. Section 53a57 (a), which established the offense of criminally negligent operation, provides that ‘‘[a] person is guilty of

misconduct with a motor vehicle when, with criminal

negligence in the operation of a motor vehicle, he causes

the death of another person.’’ (Emphasis added.) ‘‘Criminal negligence’’ is defined in relevant part as ‘‘fail[ing]

to perceive 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 the failure to

perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe

in the situation . . . .’’ General Statutes § 53a-3 (14). To

find the defendant guilty of criminally negligent operation, the jury was required to find that (1) she failed to

perceive a substantial and unjustifiable risk that the

manner in which she operated her vehicle would (2) cause

the death of another person.

We agree with the Appellate Court that the mental state

requirements for these two statutes are not mutually

exclusive. As the Appellate Court cogently explained,

‘‘[o]ne can intend to cause serious physical injury to

another, while, at the same time, [fail] to perceive a

substantial and unjustifiable risk that the manner in

which she operated her vehicle would cause the victim’s

death. The mental state elements in the two provisions—failing to perceive a substantial and unjustifiable risk that your manner of operation would cause

death and an intent to cause serious physical injury—

do not relate to the same result. Because the defendant’s
[conviction] of intentional manslaughter and criminally

negligent operation required the jury to find that the

defendant acted intentionally and criminally negligent

with respect to different results (failing to perceive a

substantial and unjustifiable risk of death and

intending to cause serious physical injury), the defendant cannot prevail on her claim that the mental states

required for those crimes are mutually exclusive and,

therefore, that the [verdict was] legally inconsistent.’’

(Emphasis altered.) State v. Daniels, supra, 191 Conn.

App. 50–51.

The defendant claims that the Appellate Court’s analysis relied on ‘‘an overly technical application of the test

of legal inconsistency’’ and that, realistically speaking,

it is impossible to intend to cause serious physical injury

while simultaneously failing to perceive a risk of death.

Not so. As we explained in Alicea, ‘‘§ 53a-3 (4) does

not limit its definition of ‘serious physical injury’ to an

injury that creates a substantial risk of death; rather,

it continues, ‘or which causes serious disfigurement,

serious impairment of health or serious loss or impairment of the function of any bodily organ . . . .’ ’’

(Emphasis in original.) State v. Alicea, supra, 339 Conn.

397–98 n.4, quoting General Statutes § 53a-3 (4). The

statute therefore encompasses injuries that do not necessarily create a risk of death. See, e.g., State v. Ovechka,

292 Conn. 533, 547, 975 A.2d 1 (2009) (person sprayed

with pepper spray suffered ‘‘serious physical injury,’’

as defined by § 53a-3 (4)); State v. Irizarry, 190 Conn.

App. 40, 48, 209 A.3d 679 (fractured jaw, ‘‘contusions,

abrasions, and bleeding from [the victim’s] ear’’ constitute ‘‘ ‘serious physical injury’ ’’), cert. denied, 333 Conn.

913, 215 A.3d 1210 (2019). It is possible to intend to

cause ‘‘serious physical injury,’’ as defined by § 53a-3

(4), while, at the same time, fail to perceive a risk of

death. For this reason, we conclude that the jury’s verdict of guilty as to the crimes of reckless manslaughter

and criminally negligent operation was not legally

inconsistent.

The judgment of the Appellate Court is reversed as

to the remedy for the jury’s inconsistent verdict only

and the case is remanded to that court with direction

to remand the case to the trial court with direction

to reinstate the defendant’s intentional manslaughter

conviction, to sentence the defendant on that count, and

to resentence the defendant on the remaining counts

of conviction; the judgment of the Appellate Court,

including the vacating of the defendant’s conviction of

reckless manslaughter and criminally negligent operation, is otherwise affirmed.12

In this opinion the other justices concurred.

1 General Statutes § 53a-55 (a) provides in relevant part: ‘‘A person is

guilty of manslaughter in the first degree when (1) [w]ith intent to cause

serious physical injury to another person, he causes the death of such person

or of a third person . . . .’’

2 General Statutes § 53a-55 (a) provides in relevant part: ‘‘A person is

guilty of manslaughter in the first degree when . . . (3) under circumstances
evincing an extreme indifference to human life, he recklessly engages in

conduct which creates a grave risk of death to another person, and thereby

causes the death of another person.’’

3 The defendant also was convicted of risk of injury to a child in violation

of General Statutes § 53-21 (a) (1) and evasion of responsibility in the operation of a motor vehicle in violation of General Statutes § 14-224 (a). The

defendant’s conviction of these crimes is not at issue in the present appeal.

4 Defense counsel objected to the state’s motion to vacate the intentional

manslaughter conviction, arguing that the defendant wanted to preserve her

due process claim on appeal that the state had overcharged the case by

adding the intentional manslaughter count ‘‘on the eve of trial . . . .’’

5 On the reckless manslaughter count, the trial court imposed a sentence

of twenty years of incarceration, execution suspended after sixteen years,

and five years of probation. The defendant also was sentenced to five years

of incarceration for criminally negligent operation, ten years of incarceration

for risk of injury to a child, and ten years of incarceration for evasion of

responsibility. All of the defendant’s sentences run concurrently.

6 The defendant also claimed that the trial court improperly failed to

exclude testimonial hearsay in violation of her constitutional right to confrontation. See State v. Daniels, supra, 191 Conn. App. 53–54. The Appellate

Court declined to review the defendant’s unpreserved evidentiary claim on

the ground that it was not of constitutional magnitude. Id., 54; see State v.

Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989); see also In re Yasiel

R., 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying third prong of

Golding). That issue is not before us on appeal.

7 During oral argument before the Appellate Court, the state conceded

that, if both strikes to Agyei’s vehicle are viewed as one continuous act,

the mental state elements of reckless manslaughter and criminally negligent

operation are mutually exclusive. See State v. Daniels, supra, 191 Conn.

App. 51. The state argued, however, that the jury could have found each

strike of Agyei’s vehicle to be a separate and distinct act and, therefore,

that the jury’s verdict as to both crimes was not legally inconsistent. Id.

The Appellate Court rejected the state’s argument on the ground that the

state consistently had argued at trial that both strikes of Agyei’s vehicle

were one continuous act and could not change its theory of the case on

appeal. Id. The state does not challenge the Appellate Court’s conclusion

on this point in the present appeal.

8 We need not decide whether the defendant’s conviction of intentional

manslaughter and reckless manslaughter would actually violate the double

jeopardy clause because that issue is not presented on appeal. Suffice it to

say that the state’s concern in this regard was not unreasonable in light of

our case law holding that it violates the prohibition against double jeopardy

to convict the defendant of multiple homicide crimes for the death of one

victim. See, e.g., State v. Miranda, supra, 317 Conn. 747 (‘‘the imposition

of cumulative punishments for the homicide offenses of capital felony and

felony murder violates constitutional protections against double jeopardy

if those offenses arise from the killing of a single victim’’); State v. Chicano,

216 Conn. 699, 710, 584 A.2d 425 (1990) (‘‘intentional murder, felony murder,

and manslaughter in the first degree are all homicide offenses,’’ and, therefore, defendant’s conviction of felony murder and first degree manslaughter

for death of single victim violates double jeopardy prohibition) (overruled

on other grounds by State v. Polanco, 308 Conn. 242, 61 A.3d 1084 (2013)),

cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991); State

v. John, 210 Conn. 652, 696, 557 A.2d 93 (‘‘the legislature contemplated that

only one punishment would be imposed for a single homicide, even if that

homicide involved the violation of two separate statutory provisions’’), cert.

denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989), and cert. denied

sub nom. Seebeck v. Connecticut, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d

50 (1989). Thus, we credit the state’s explanation regarding the reason for

requesting the vacatur of the defendant’s intentional manslaughter conviction.

9 The intent to cause ‘‘serious physical injury’’ is a required element under

§ 53a-55 (a) (1), and proof that the defendant intended to cause a ‘‘physical

injury [that] creates a substantial risk of death’’ is one of four ways to

establish that element. General Statutes § 53a-3 (4); see General Statutes

§ 53a-3 (4) (‘‘ ‘[s]erious physical injury’ means physical injury which creates

a substantial risk of death, or which causes serious disfigurement, serious

impairment of health or serious loss or impairment of the function of any

bodily organ’’). Because of these statutory alternatives, the jury in the present

case was free to find the defendant guilty of intentional manslaughter without
finding that she had any particular state of mind with respect to the risk

of death created by her actions.

10 The defendant also claims that the state is pursuing a different legal

theory on appeal than the one it pursued at trial, in violation of her right

to notice of the charges against her. See, e.g., State v. King, 321 Conn. 135,

149, 136 A.3d 1210 (2016) (‘‘[p]rinciples of due process do not allow the

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

at trial’’). Specifically, the defendant claims that the state’s legal ‘‘theory of

the case at trial was that the defendant could be found guilty of . . . only

one of the three’’ crimes predicated on Agyei’s death, whereas, on appeal,

the state now argues that the defendant can be convicted ‘‘of all three

charges . . . .’’ The defendant misunderstands the state’s legal theory on

appeal. The state does not challenge the Appellate Court’s conclusion that

the defendant’s conviction of reckless manslaughter and criminally negligent

operation is inherently inconsistent and, therefore, must be reversed. The

state challenges only the remedy ordered by the Appellate Court to cure

the inconsistency, arguing that reinstatement of the defendant’s intentional

manslaughter conviction is appropriate because the defendant’s intentional

manslaughter conviction is unaffected by the inconsistency in the jury’s

verdict, and the jury expressly found that the state had proven the essential

elements of intentional manslaughter beyond a reasonable doubt. Because

it is undisputed that the defendant was on notice that she could be convicted

of intentional manslaughter, we conclude that the defendant’s due process

claim lacks merit.

11 The defendant also contends that this case is distinguishable from Nash,

supra, 316 Conn. 651, and State v. King, 321 Conn. 135, 136 A.3d 1210 (2016)

(King 2016), insofar as those cases involved two different results to the

victim, whereas the present case involves only one result. Our holding in

Alicea is dispositive of this claim. As we reasoned in Alicea, the outcomes

of Nash and King 2016 ‘‘actually hinged on the objective associated with

each statutory, mental state element, not the acts performed by the defendants or the injuries suffered by the victims.’’ (Emphasis in original.) State

v. Alicea, supra, 339 Conn. 397. Similar to both Nash and King 2016, the

defendant’s actions in the present case related to two different results—

serious physical injury and the risk of death—and the jury reasonably could

have found that the defendant possessed a distinct mental state with respect

to each of these results.

12 In accordance with the aggregate package theory, we vacate the defendant’s sentence in its entirety and remand not only for sentencing on the

intentional manslaughter conviction, but also for resentencing on the convictions that were not vacated by the Appellate Court, namely, risk of injury

to a child and evasion of responsibility in the operation of a motor vehicle.

See, e.g., State v. LaFleur, 307 Conn. 115, 164, 51 A.3d 1048 (2012) (‘‘Pursuant

to [the aggregate package] theory, we must vacate a sentence in its entirety

when we invalidate any part of the total sentence. On remand, the resentencing court may reconstruct the sentencing package or, alternatively, leave the

sentence for the remaining valid conviction or convictions intact.’’ (Internal

quotation marks omitted.)).