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*********************************************** 
STATE OF CONNECTICUT v. DARRELL TINSLEY

(AC 41975)

DiPentima, C. J., and Bright and Devlin, Js.

Syllabus

The defendant, who previously had been convicted of the crimes of manslaughter in the first degree and risk of injury to a child, appealed to

this court from the judgment of the trial court denying his motion to

correct an illegal sentence. The defendant claimed that the trial court

improperly concluded that his conviction did not violate the constitutional guarantee against double jeopardy because the defendant failed

to demonstrate that both offenses occurred during the same transaction

and the crime of risk of injury to a child was not a lesser included

offense of manslaughter in the first degree as charged. Held that the

trial court improperly denied the defendant’s motion to correct an illegal

sentence because his right to be free from double jeopardy was violated,

the offenses of manslaughter in the first degree and risk of injury to a

child arose from the same act or transaction, the long form information

having alleged that both crimes occurred on the same day, at the same

location, and were perpetrated on the same victim, all of the victim’s

wounds were recent, were inflicted in the same short period of time,

and occurred not long before the victim’s death, including the fatal

laceration to the victim’s liver, and the state’s theory of the case, presented during trial and its closing argument, was that the defendant

inflicted multiple blows to the head, chest and abdomen of the victim

over a short period of time, in a single, continuous attack; moreover,

the offenses of manslaughter in the first degree and risk of injury to a

child constituted the same offense, as risk of injury to a child was a

lesser included offense of manslaughter in the first degree as charged

because it was not possible for the defendant to have committed manslaughter in the first degree as charged by causing the death of the

victim by blunt trauma to the abdomen without also impairing the health

of the victim by inflicting trauma to his abdomen, as charged in the risk

of injury to a child offense; furthermore, there was no authority that

would support a conclusion that the legislature intended to specifically

authorize multiple punishments under the statutes in question.

Argued December 3, 2019—officially released May 12, 2020

Procedural History

Information charging the defendant with the crimes

of capital felony and risk of injury to a child, brought

to the Superior Court in the judicial district of Hartford

and tried to the jury before Barry, J.; verdict and judgment of guilty of manslaughter in the first degree and

risk of injury to a child, from which the defendant

appealed to this court, Lavery, C.J., and Shaller and

Zarella, Js., which affirmed the judgment of the trial

court; thereafter, the trial court, Schuman, J., denied

the defendant’s motion to correct an illegal sentence,

and the defendant appealed to this court. Reversed;

further proceedings.

Naomi T. Fetterman, for the appellant (defendant).

Melissa L. Streeto, senior assistant state’s attorney,

with whom, on the brief, were Gail P. Hardy, state’s

attorney, and John F. Fahey, supervisory assistant

state’s attorney, for the appellee (state).
Opinion

DiPENTIMA, C. J. The defendant, Darrell Tinsley,

appeals from the judgment of the trial court denying

his motion to correct an illegal sentence. On appeal,

the defendant claims that the court erred in denying

his motion to correct because his conviction for manslaughter in the first degree in violation of General

Statutes § 53a-55 (a) (1)1 and risk of injury to a child

in violation of General Statutes (Rev. to 1995) § 53-21,2

as amended by No. 95-142 of the 1995 Public Acts,

violated the constitutional prohibition against double

jeopardy. We agree with the defendant and, therefore,

reverse the judgment of the trial court.

In affirming the defendant’s conviction on direct

appeal, we concluded that the jury reasonably could

have found the following facts. ‘‘[T]he victim’s mother,

and the defendant met at an office building in downtown

Hartford, where they worked as security personnel.

Although the defendant and [the victim’s mother] had an

unstable relationship, they cohabited in a one bedroom

apartment along with the [fifteen month old] victim

. . . . During the course of the adults’ relationship,

individuals who knew the victim noticed a marked

change in his behavior when he was in the presence of

the defendant. At such times, the victim was timid,

withdrawn and afraid of the defendant. The defendant’s

attitude toward the victim ranged from indifference to

dislike. When [the victim’s mother] was no longer able

to avail herself of professional child care, the defendant

sometimes took care of the victim while [the victim’s

mother] worked.

‘‘Prior to his death, the victim was in good health.

On December 8, 1996, between 8 a.m. and 8:30 a.m.,

the defendant drove [the victim’s mother] to her place

of employment. According to [the victim’s mother],

there was nothing wrong with the victim when she went

to work. During the morning, [the victim’s mother] and

the defendant spoke by telephone several times concerning the victim. At approximately 11:15 a.m., the

defendant telephoned [the victim’s mother], stating that

there was something wrong with the victim and that

he did not know what was the matter. The defendant

then drove the victim to [the victim’s mother’s] place

of employment, and from there all three proceeded

to the Connecticut Children’s Medical Center (medical

center) in Hartford. They were involved in a motor

vehicle accident en route.

‘‘When he arrived at the medical center, the victim

was in critical condition because he was not breathing

and had little heart activity. The victim died when resuscitation efforts failed. An autopsy revealed bruises on

the victim’s right cheek, left leg and chest, which an

associate medical examiner from the [O]ffice of the

[C]hief [M]edical [E]xaminer determined occurred
shortly before the victim’s death. The injuries were

inconsistent with an automobile accident, a twelve inch

fall into a bathtub, cardiopulmonary resuscitation or

bumping into a fire door, which were explanations

offered by the defendant. The victim also suffered significant internal injuries, namely, multiple fresh cranial

hemorrhages, a broken rib and a lacerated liver that

caused three quarters of his blood to enter his abdominal cavity. According to the associate medical examiner,

the victim’s liver was lacerated by blunt trauma that

occurred within [one] hour of death and was the cause

of death.

‘‘After the victim died, the defendant was taken to

the police station, where he gave a statement and

repeatedly denied injuring the victim. The police

inspected the apartment where the defendant and victim were alone prior to the victim’s death. They found

vomit and feces on the victim’s clothes, a bedspread

and the floor. The victim’s blood was found on the

bathroom door. When he was informed of the autopsy

results, the defendant insisted that the doctors were

wrong, a position he maintained throughout trial.’’ State

v. Tinsley, 59 Conn. App. 4, 6–7, 755 A.2d 368, cert.

denied, 254 Conn. 938, 761 A.2d 765 (2000).

The state charged the defendant with capital felony

in violation of General Statutes (Rev. 1995) § 53a-54b

(9), as amended by No. 95-16 of the 1995 Public Acts,3

and risk of injury to a child in violation of § 53-21. The

jury found the defendant guilty of the lesser included

offense of manslaughter in the first degree in violation

of § 53a-55 (a) (1)4 and risk of injury to a child. On

February 6, 1998, the court sentenced the defendant to

twenty years of incarceration on the manslaughter

count and ten years of incarceration on the risk of injury

count with the sentences to run consecutively.

On August 14, 2017, the self-represented defendant

filed a motion to correct an illegal sentence pursuant

to Practice Book § 43-22.5 The defendant alleged that

his sentence violated his federal and state constitutional

rights to be free from double jeopardy. On March 8,

2018, the defendant, now represented by counsel, filed

a second motion to correct an illegal sentence and an

accompanying memorandum of law, reasserting his

double jeopardy claim. The state filed its memorandum

in opposition on March 26, 2018, and the court, Schuman, J., held a hearing on April 12, 2018. Pursuant to

the court’s order, the parties submitted supplemental

memoranda.

On May 15, 2018, the court issued its memorandum

of decision denying the defendant’s motion to correct

an illegal sentence. At the outset of its analysis, the

court observed that the double jeopardy clause protects

against multiple punishments for the same offense. It

then stated: ‘‘In determining whether a defendant has

been placed in double jeopardy under the multiple pun-
ishments prong, the court applies a two step process.

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. Multiple punishments are forbidden only if both conditions are met.’’

(Internal quotation marks omitted.)

With respect to the first step of the analysis, the

court noted that the homicide and risk of injury charges

involved the same time, place and victim. The homicide

count charged that the victim’s death had resulted from

blunt force trauma to the abdomen, whereas the risk

of injury count alleged that the defendant had inflicted

multiple traumas to the face, head, chest and abdomen,

which caused the laceration of the liver, internal bleeding in the abdomen, a fracture of the tenth rib, and

multiple contusions of the face, head, chest and abdomen. The court also observed that the laceration of

the liver occurred within one hour of death while the

bruises on the victim’s cheek, leg and chest occurred

shortly before death. ‘‘While it is possible that all of

these injuries occurred at the same time, it is not certain.

Based on the Appellate Court’s recital of the facts, it

is also possible that the bruising to the cheek, leg, and

chest took place at a different time in the morning from

the lethal trauma to the liver. It is simply speculative

to conclude, based on the existing record, that . . .

the victim here incurred injuries in one continuous,

uninterrupted assault occurring in a matter of a few

minutes.’’ (Citation omitted; internal quotation marks

omitted.)

As an alternative and additional analysis, the court

also considered whether the crimes of manslaughter in

the first degree and risk of injury constituted the same

offense. The court specifically identified the issue as

‘‘whether risk of injury as charged was a lesser included

offense of manslaughter in the first degree as charged.

Stated differently, the issue is whether it was possible to

commit manslaughter in the first degree in the manner

charged without necessarily committing risk of injury

as charged.’’ The court concluded that such a possibility

existed. It explained that the jury could have found that

the defendant violated the risk of injury statute as a

result of striking the victim in the face, leg or chest.

For these reasons, the court denied the defendant’s

motion to correct an illegal sentence.

On June 4, 2018, the defendant filed a motion to

reargue and for reconsideration. The defendant

claimed, inter alia, that the parties should be afforded

the opportunity to address (1) our Supreme Court’s

decision in State v. Porter, 328 Conn. 648, 182 A.3d 625

(2018),6 which had been released after the hearing on

the defendant’s motion to correct an illegal sentence

and (2) the evidence underlying the recital of facts by

this court in the defendant’s direct appeal. See State v.

Tinsley, supra, 59 Conn. App. 6–7. On June 19, 2018,
the court granted the defendant’s motion to reargue.

The court held a hearing on July 5, 2018. After hearing

from the parties, the court denied the relief requested

by the defendant. It maintained its conclusion that the

defendant had failed to meet his burden of demonstrating that both offenses occurred during the same transaction. Specifically, the court stated: ‘‘It still seems to

me entirely possible that the fatal blows to the ribs,

liver, and abdomen could have occurred from a separate

blow that was interrupted perhaps by a minute or so

before or after trauma was inflicted to the child’s face

and head, which is also alleged in the information. And

in that situation it would not clearly be one continuous

uninterrupted assault. I acknowledge the defense argument that there’s no way to actually parse through all

this at this time twenty years later, but ultimately it’s

the defendant’s burden and if we can’t do that then

the defendant has not met his burden.’’ This appeal

followed. Additional facts will be set forth as necessary.

On appeal, the defendant claims that the court

improperly denied his motion to correct an illegal sentence. Specifically, he argues that his conviction and

punishment for manslaughter in the first degree and

risk of injury arose from the same transaction and that

risk of injury is a lesser included offense of manslaughter in the first degree, as charged in this matter, in

violation of his right to be free from double jeopardy.

The state disagrees with both of these arguments. We

conclude that under the facts and circumstances of

the present case, the defendant’s right to be free from

double jeopardy was violated. Accordingly, the trial

court improperly denied the defendant’s motion to correct an illegal sentence.

We begin by reviewing the relevant legal principles

pertaining to a motion to correct an illegal sentence, the

applicable standard of review and our double jeopardy

jurisprudence. A motion to correct an illegal sentence

filed pursuant to Practice Book § 43-22 ‘‘constitutes a

narrow exception to the general rule that, once a defendant’s sentence has begun, the authority of the sentencing court to modify that sentence terminates.’’ (Internal

quotation marks omitted.) State v. Brown, 192 Conn.

App. 147, 151, 217 A.3d 690 (2019); see also State v.

Evans, 329 Conn. 770, 778–79, 189 A.3d 1184 (2018),

cert. denied, U.S. , 139 S. Ct. 1304, 203 L. Ed.

2d 425 (2019); see generally State v. Cator, 256 Conn.

785, 803–804, 781 A.2d 285 (2001) (both trial and appellate courts have power to correct illegal sentence at

any time). A sentence that violates a defendant’s right

against double jeopardy falls within the recognized definition of an illegal sentence. See State v. Parker, 295

Conn. 825, 839, 992 A.2d 1103 (2010); see also State v.

Cator, supra, 804 (sentence that punished defendant

twice for same action violated prohibition against double jeopardy and, thus, was illegal and trial court had
jurisdiction to correct sentence pursuant to § 43-22);

State v. Adams, 186 Conn. App. 84, 87, 198 A.3d 691

(2018) (alleged double jeopardy violation constituted

proper basis for motion to correct illegal sentence).

Next, we set forth our standard of review. ‘‘Ordinarily,

a claim that the trial court improperly denied a defendant’s motion to correct an illegal sentence is reviewed

pursuant to the abuse of discretion standard. . . . A

double jeopardy claim, however, presents a question

of law, over which our review is plenary.’’ (Internal

quotation marks omitted.) State v. Bennett, 187 Conn.

App. 847, 851, 204 A.3d 49, cert. denied, 331 Conn. 924,

206 A.3d 765 (2019); see also State v. Wade, 178 Conn.

App. 459, 466, 175 A.3d 1284 (2017), cert. denied, 327

Conn. 1002, 176 A.3d 1194 (2018).

We turn to the relevant principles regarding the protection against double jeopardy. The double jeopardy

clause of the fifth amendment7 prohibits both multiple

trials for the same offense and multiple punishments

for the same offense in a single trial. See State v. Bennett, supra, 187 Conn. App. 852; see also State v. Chicano, 216 Conn. 699, 706, 584 A.2d 425 (1990) (overruled

in part on other grounds by State v. Polanco, 308 Conn.

242, 261, 61 A.3d 1054 (2013)), cert. denied, 501 U.S.

1254, 111 S. Ct. 2898, 115 L. Ed. 2d 162 (1991). The

present case concerns the latter prohibition. Simply

stated, ‘‘[w]ith respect to cumulative sentences imposed

in a single trial, the [d]ouble [j]eopardy [c]lause does

no more than prevent the sentencing court from prescribing greater punishment than the legislature

intended. Missouri v. Hunter, 459 U.S. 359, 366, 103 S.

Ct. 673, 74 L. Ed. 2d 535 (1983) . . . .’’ (Citations omitted; internal quotation marks omitted.) State v. Ferguson, 260 Conn. 339, 361, 796 A.2d 1118 (2002).

‘‘Double jeopardy analysis in the context of a single

trial is a [two step] process. 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. Multiple punishments are forbidden only if

both conditions are met.’’ (Internal quotation marks

omitted.) State v. Bennett, supra, 187 Conn. App. 852.

‘‘At step one, it is not uncommon that we look to the

evidence at trial and to the state’s theory of the case

. . . in addition to the information against the defendant, as amplified by the bill of particulars. . . . If it

is determined that the charges arise out of the same

act or transaction, then the court proceeds to step two,

where it must be determined whether the charged

crimes are the same offense. . . . At this second step,

we [t]raditionally . . . have applied the Blockburger

test [see Blockburger v. United States, 284 U.S. 299, 52

S. Ct. 180, 76 L. Ed. 306 (1932)] to determine whether

two statutes criminalize the same offense, thus placing

a defendant prosecuted under both statutes in double

jeopardy: [W]here the same act or transaction consti-
tutes a violation of two distinct statutory provisions,

the test to be applied to determine whether there are

two offenses or only one, is whether each provision

requires proof of a fact which the other does not. . . .

In applying the Blockburger test, we look only to the

information and bill of particulars—as opposed to the

evidence presented at trial . . . . Because double jeopardy attaches only if both steps are satisfied . . . a

determination that the offenses did not stem from the

same act or transaction renders analysis under the second step unnecessary.’’ (Footnote omitted; internal quotation marks omitted.) State v. Jarmon, 195 Conn. App.

262, 282–83, 224 A.3d 163, cert. denied, 334 Conn. 925,

223 A.3d 379 (2020); see also State v. Porter, supra, 328

Conn. 662.

For purposes of double jeopardy analysis, a greater

included offense and a lesser included offense constitute the same offense. See, e.g., State v. Miranda, 260

Conn. 93, 125, 794 A.2d 506, cert. denied, 537 U.S. 902,

123 S. Ct. 224, 154 L. Ed. 2d 175 (2002); see also State

v. Goldson, 178 Conn. 422, 425, 423 A.2d 114 (1979)

(‘‘[i]t is clear, as Brown v. Ohio, [432 U.S. 161, 168, 97

S. Ct. 2221, 53 L. Ed. 2d 187 (1977)] holds, that if the

two counts stand in the relationship of greater and

lesser included offenses, then [t]he greater offense is

. . . by definition the same for purposes of double jeopardy as any lesser offense included in it’’ (internal quotation marks omitted)). Simply stated, ‘‘[t]he double jeopardy prohibition . . . is violated if one crime is a lesser

included offense of the other.’’ State v. Carlos P., 171

Conn. App. 530, 537–38, 157 A.3d 723, cert. denied, 325

Conn. 912, 158 A.3d 321 (2017).

Where the defendant claims that his or her conviction

includes a lesser included offense, we employ a different analysis than the traditional Blockburger comparison of the elements of each offense. Id., 537–39; see,

e.g., State v. Greco, 216 Conn. 282, 292, 579 A.2d 84

(1990); State v. Raymond, 30 Conn. App. 606, 610–11,

621 A.2d 755 (1993). ‘‘The test for determining whether

one violation is a lesser included offense in another

violation is whether it is possible to commit the greater

offense, in the manner described in the information or

bill of particulars, without having first committed the

lesser. If it is possible, then the lesser violation is not

an included crime. . . . In conducting this inquiry, we

look only to the relevant statutes, the information, and

the bill of particulars, not to the evidence presented

at trial.’’ (Citation omitted; internal quotation marks

omitted.) State v. Miranda, supra, 260 Conn. 125; see

also State v. Greco, supra, 216 Conn. 291; State v. Goldson, supra, 178 Conn. 426; State v. Bumgarner-Ramos,

187 Conn. App. 725, 749, 203 A.3d 619, cert. denied, 331

Conn. 910, 203 A.3d 570 (2019); State v. Flynn, 14 Conn.

App. 10, 17–18, 539 A.2d 1005, cert. denied, 488 U.S.

891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988). Guided by

these principles, we turn to the specifics of the pres-
ent case.

The following additional facts will facilitate our analysis of the defendant’s appeal. In count one of the long

form information dated November 24, 1997, the state

charged the defendant with ‘‘capital felony, in violation

of . . . § 53a-54b (9)’’ and alleged that ‘‘on or about

the morning of December 8, 1996 . . . the defendant,

with the intent to cause the death of [the victim] caused

the death of [the victim] who was then fifteen (15)

months of age, by blunt trauma to the abdomen.’’ In

count two of the information, the state charged the

defendant with ‘‘violation of . . . § 53-21,’’ risk of

injury to a child, and alleged that ‘‘on or about the

morning of December 8, 1996 . . . the defendant did

an act likely to impair the health of [the victim] who was

then fifteen (15) months of age, by inflicting multiple

trauma to his face, head, chest, and abdomen and

thereby causing: laceration of the liver, internal bleeding in the abdomen, fracture of the tenth right rib, and

multiple contusions of the face, head, chest, and

abdomen.’’

On December 11, 1997, the court,Barry, J., instructed

the jury following the presentation of evidence and

closing arguments in the defendant’s criminal trial. The

court charged the jury regarding the crime of capital

felony. It then instructed the jury on the crime of manslaughter in the first degree in violation of § 53a-55 (a)

(1),8 as well as other lesser included offenses of capital

felony.9 The jury found the defendant guilty of manslaughter in the first degree, as a lesser included offense

of capital felony, and risk of injury to a child. The court

sentenced the defendant to twenty years of incarceration on the manslaughter count and a ten year consecutive sentence on the risk of injury count.

Step one of our double jeopardy analysis involves

the determination of whether the two offenses arose

from a single act or transaction. ‘‘Under step one, [t]he

same transaction . . . may constitute separate and distinct crimes where it is susceptible of separation into

parts, each of which constitutes a completed offense.

. . . [T]he test is not whether the criminal intent is one

and the same and inspiring the whole transaction, but

whether separate acts have been committed with the

requisite criminal intent and are such as are made punishable by the [statute]. . . . When determining

whether two charges arose from the same act or transaction, our Supreme Court has asked whether a jury

reasonably could have found a separate factual basis

for each offense charged.’’ (Emphasis omitted; internal

quotation marks omitted.) State v. Jarmon, supra, 195

Conn. App. 284; see also State v. Jerrell R., 187 Conn.

App. 537, 545, 202 A.3d 1044, cert. denied, 331 Conn.

918, 204 A.3d 1160 (2019).

Our Supreme Court recently addressed step one of

the double jeopardy analysis in State v. Porter, supra,
328 Conn. 648. Specifically, it considered ‘‘whether a

court may look to the evidence presented at trial when

determining if a defendant’s conviction violated the constitutional prohibition against double jeopardy.’’ Id.,

650. In Porter, the defendant had argued that this court

improperly considered the evidence presented at trial

in determining whether a double jeopardy violation had

occurred; the state countered that consideration of the

evidence during step one was proper. Id., 650–51.

Briefly addressing step two of the double jeopardy

analysis, our Supreme Court emphasized that ‘‘the

Blockburger test . . . is a technical one and examines

only the statutes, charging instruments, and bill of particulars as opposed to the evidence presented at trial.’’

(Internal quotation marks omitted.) Id., 656. Our

Supreme Court, after reviewing the relevant case law,

noted that this prohibition against the review of the

evidence applied only to step two of the double jeopardy

analysis. Id., 658. With respect to step one, it emphasized

that that it routinely had ‘‘looked beyond the charging

documents [and considered the evidence] to determine

whether the offenses arose from a single act or transaction.’’ Id., 659. Further, it explicitly stated that, ‘‘[a]t step

one, it is not uncommon that we look to the evidence

at trial and to the state’s theory of the case . . . .’’

(Internal quotation marks omitted.) Id., 662. Thus, in

the present case, we must consider the charging documents, the evidence set forth during the trial, the state’s

theory of the case and the court’s jury instructions, to

determine whether the offenses of manslaughter in the

first degree and risk of injury arose from the same act

or transaction.

As we have noted previously, the state charged the

defendant in a long form information, dated November

24, 1997, with capital felony and risk of injury. The state

alleged that both of these crimes occurred ‘‘on or about

the morning of December 8, 1996 . . . .’’ Additionally,

the state asserted that these crimes occurred at the

same location and were perpetrated on the same victim.

During the trial, the state presented the testimony of

Arkady Katsnelson, an associate medical examiner who

had performed the autopsy on the victim. During his

external examination, Katsnelson noted multiples contusions, or bruises, on the victim’s face and chest, and

contusions and abrasions on the abdomen, arms, legs

and back of the body.10 There was no evidence that

these injuries had begun to heal. Katsnelson opined, to

a reasonable degree of medical certainty, that these

wounds were recent and had occurred not long before

the death of the victim.

Katsnelson also discovered multiple areas of hemorrhage under the skin of the scalp and noted that these

separate injuries were located on the right side and the

back of the victim’s head. He described these wounds

as ‘‘fresh’’ and that they had occurred not long before
death. As he continued the internal examination, Katsnelson discovered a substantial amount of the victim’s

blood in his abdominal cavity where there should be

none, as well as a fractured rib and a ‘‘big laceration

of the liver.’’ The blood in the victim’s abdominal cavity

remained in a liquid state. Katsnelson noted the absence

of any clotting, which indicated that the victim had not

survived long after receiving the liver injury. Katsnelson

further determined that the laceration to the liver was

the cause of death11 and that the victim’s other injuries

were not fatal. Katsnelson concluded that the victim

could have survived only ‘‘a short period of time, which

could be several minutes after he received the laceration of the liver.’’

The prosecutor asked Katsnelson if there was any

indication that any of the injuries sustained by the victim had occurred at a different time, and he replied:

‘‘No, all these injuries I found during my examination,

I believe they [were] inflicted in the same short period

of time. They are not—I did not find any evidence of

healing of these injuries, and I believe they were all

inflicted within one short period of time.’’ (Emphasis

added.) He then defined ‘‘a short period time’’ as ‘‘within

probably minutes.’’

The prosecutor also called as a witness Betty Spivack,

a physician trained in pediatric critical care. She indicated that bruising does not occur when an individual

is in severe shock or cardiac arrest due to the fact

that, in such circumstances, blood is not being pumped

through the body and does not flow out of the blood

vessels. Spivack agreed that the injury to the victim’s

liver was the sole cause of cardiac arrest12 in this case.

She classified the victim’s injuries into two groups:

those that had occurred before, or no more than one

to two minutes after, the liver laceration, and those that

had happened after the liver laceration and resulting

diminished blood flow to the skin, shock and cardiac

arrest. Spivack testified that all of the bruises had

occurred in the first group. She further stated that the

only injures that had occurred in the second group were

the three curved abrasions to the victim’s left groin,

and fractures to the front teeth, a very common resuscitation injury.

After the conclusion of the evidence, the prosecutor

presented her closing argument to the jury. In reference

to Katsnelson’s testimony, the prosecutor referred to

the victim’s injuries to the head, face, chest, abdomen,

back, groin, leg and arm. The prosecutor specifically

argued: ‘‘All of those were inflicted [Katsnelson] said

in the same short period of time, a matter of minutes.

All the injuries were recent fresh injuries.’’ (Emphasis

added.) After discussing Spivak’s testimony, the prosecutor indicated to the jury that ‘‘[a]ll the bruises and

particularly the larger ones on the face, the back, the

upper abdomen preceded the liver laceration or were
within two minutes of it according to the medical testimony.’’ In addressing the intent element for the charge

of capital felony, the prosecutor stated: ‘‘We’ve got—

besides that blow [that caused the liver laceration]

we’ve got the multiplicity and the nature of the injuries.

There were repeated blows. There’s only one fatal one.

This child was battered over and over and over again.

We have the forceful upward kick or punch which lacerated the liver, caused internal bleeding and shock

within three minutes and death not long after that, but

there were many blows. The remainder of the injuries

were inflicted in the same short period of time. That’s

what the medical evidence is, multiple blows to the top

of the head, the back of the head, the side of the head,

the face, the chest, the abdomen, multiple puncture

wounds to the groin, bruises to the leg and arm. . . .

Finally, I would submit you may find evidence of the

defendant’s intent to kill in the fact that he didn’t stop

hitting [the victim] until he killed him.’’ (Emphasis

added.) The prosecutor ended her initial closing argument with the following statement: ‘‘There’s only one

logical conclusion, that it was the defendant who killed

[the victim] by striking him many times and continuing to strike him until he killed him with some object or

a punch or a kick with extensive force in the abdomen.’’

(Emphasis added.)

After considering the long form information, the evidence presented at the criminal trial and the state’s

theory of the case, as evidenced by its closing argument,

we conclude that the court erred in determining that

the manslaughter in the first degree and the risk of

injury offenses did not arise from the same act or transaction.

We note that our Supreme Court has held that where

an information, as amplified by a bill of particulars,13

charged a defendant with two narcotics offenses that

had occurred at the same time and same place and

involved the same narcotic, then those offenses arose

from the same act or transaction. See State v. Goldson,

supra, 178 Conn. 424–25; see also State v. Nelson, 118

Conn. App. 831, 853, 986 A.2d 311 (two kidnapping

charges arose from same act or transaction where operative information alleged that crimes were committed

on same date, in same location and against same victim), cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010);

State v. Crudup, 81 Conn. App. 248, 252–53, 838 A.2d

1053 (first prong of double jeopardy analysis met where

information charged that both crimes occurred during

afternoon hours of same date), cert. denied, 268 Conn.

913, 845 A.2d 415 (2004); State v. Davis, 13 Conn. App.

667, 671, 539 A.2d 150 (1988) (three offenses arose from

same act or transaction where information alleged that

all occurred at same time, date and location); cf. State

v. Miranda, supra, 260 Conn. 120–24 (where defendant

was charged with two counts of assault in first degree

during same four month time period with one count
charging skull fracture and other rectal tears as serious

physical injury, two offenses did not arise from same

transaction where medical examination revealed that

rectal tearing was ‘‘fresh’’ wound and skull fracture was

seven to ten days old).

Additionally, the evidence produced at trial supports

the conclusion that the injuries to the victim occurred

during the same act or transaction. See State v. Nixon,

92 Conn. App. 586, 591, 886 A.2d 475 (2005). The medical

evidence introduced by the state indicated that the victim’s abrasions and contusions occurred in the period

of time just prior to death and there was no indication

of any healing. Specifically, Katsnelson identified the

bruises under the scalp and the lack of clotted blood

in the abdominal cavity as indicators that the victim

had not survived long after receiving these injuries. He

also testified that death occurred not long after the liver

laceration. Indeed, he specifically stated that ‘‘all [of]

these injuries which I found during my examination, I

believe they [were] inflicted in the same short period

of time. They are not—I did not find any evidence of

healing of these injuries, and I believe they were all

inflicted within one short period of time . . . [and]

I mean within probably minutes.’’ (Emphasis added.)

Finally, we consider the state’s closing argument to

the jury and its theory of the case. The prosecutor

contended that Katsnelson had testified that the bruises

and abrasions found on the victim’s body were ‘‘fresh’’

injuries and had been inflicted ‘‘in the same short period

of time, a matter of minutes.’’ She further argued that

the defendant had inflicted multiple blows to the head,

chest and abdomen of the victim. The prosecutor subsequently emphasized the multiple blows that had

occurred in a short period of time. The state relied on

this evidence as proof of the defendant’s intent to kill

the victim. The fact that the jury did not find such intent

does not change the fact that the state relied on all of

the blows to the victim as showing how the defendant

acted in a single, continuous attack. Defense counsel,

during his closing argument, commented on the state’s

insistence that all of the victim’s injuries had occurred

‘‘within a short period of time, all happened at once

. . . .’’ After considering the state’s closing argument;

see State v. Porter, supra, 328 Conn. 663; as well as the

information and the evidence presented,14 we conclude

that the homicide and risk of injury offenses in this

case arose from the same transaction.15 Accordingly,

we proceed to step two of the double jeopardy analysis.

Step two of the double jeopardy analysis involves

the determination of whether the homicide and risk of

injury offenses constituted the same offense. We begin

our analysis with our recent decision in State v. Bumgarner-Ramos, supra, 187 Conn. App. 725, in which we

addressed the defendant’s claim that his conviction of

manslaughter in the first degree and assault in the first
degree violated the constitutional guarantee against

double jeopardy. In resolving this issue, we set forth

the applicable test. ‘‘At step two, we [t]raditionally . . .

have applied the Blockburger test to determine whether

two statutes criminalize the same offense, thus placing

a defendant prosecuted under both statutes in double

jeopardy: [W]here the same act or transaction constitutes a violation of two distinct statutory provisions,

the test to be applied to determine whether there are

two offenses or only one, is whether each provision

requires proof of a fact which the other does not. . . .

The test used to determine whether one crime is a lesser

offense included within another crime is whether it

is not possible to commit the greater offense, in the

manner described in the information . . . without

having first committed the lesser . . . . This . . .

test is satisfied if the lesser offense does not require

any element which is not needed to commit the greater

offense. . . . Therefore, a lesser included offense of a

greater offense exists if a finding of guilt of the greater

offense necessarily involves a finding of guilt of the

lesser offense.’’ (Citation omitted; emphasis added;

internal quotation marks omitted.) Id., 748; see generally State v. Brown, 163 Conn. 52, 61–62, 301 A.2d 547

(1972).16 During this step of the double jeopardy analysis, we consider only the statutes, charging documents

and any bill of particulars, rather than the evidence

presented at trial.17 State v. Bumgarner-Ramos,

supra, 749.

In the present case, the defendant was convicted of

manslaughter in the first degree and risk of injury to a

child. Each of those criminal statutes contains an element the other does not: Manslaughter in the first

degree provides that the offender cause the death of

the victim and risk of injury to a child provides that

the victim be under the age of sixteen years old. The

defendant contends, however, that one cannot cause

the death of another in the manner described in the

information, without first inflicting trauma to the victim’s body, which is an act likely to impair the health

of the minor victim. Accordingly, he maintains that,

under the circumstances of this case, risk of injury to

a child is a lesser included offense and, thus, the same

offense for purposes of double jeopardy, as manslaughter in the first degree. We agree with the defendant.

As we have recited previously, the state charged the

defendant with causing the death of the fifteen month

old victim by blunt trauma to the abdomen. With respect

to the risk of injury count, the state alleged that the

defendant impaired the health of the fifteen month old

victim by inflicting multiple blows to the victim’s face,

head, chest and abdomen, and that he caused the laceration of the victim’s liver, internal bleeding in the victim’s

abdomen, a fracture to the victim’s rib and multiple

contusions of the face, head, chest and abdomen.

Focusing our analysis on the theoretical possibilities,
rather than the evidence, we cannot discern a scenario

in which the defendant could have caused the death of

the fifteen month old victim by blunt trauma to the

abdomen without also impairing the health of the victim

by inflicting trauma to his abdomen. Stated differently,

it was not possible for the defendant to commit the

homicide offense, in the manner described in the information, without first having committed risk of injury

to a child. See State v. Crudup, supra, 81 Conn. App.

253; see, e.g., State v. Amaral, 179 Conn. 239, 243, 425

A.2d 1293 (1979) (defendant could not commit greater

offense of possession of heroin with intent to sell by

person who is not drug-dependent without, at same

time, committing lesser offenses of possession of heroin

with intent to sell and simple possession of heroin);

State v. Goldson, supra, 178 Conn. 427 (violation of

double jeopardy where defendant convicted of transportation of heroin and possession of heroin); State

v. Bumgarner-Ramos, supra, 187 Conn. App. 749–51

(concluding that defendant’s conviction of both assault

in first degree and manslaughter in first degree violated

constitutional guarantee against double jeopardy

because defendant could not have caused victim’s death

in manner charged without first having caused victim

serious physical injury); State v. Arokium, 143 Conn.

App. 419, 434–35, 71 A.3d 569 (violation of double jeopardy where defendant convicted of greater offense of

possession of narcotics with intent to sell and lesser

included offense of possession of narcotics), cert.

denied, 310 Conn. 904, 75 A.3d 31 (2013); State v. Cooke,

42 Conn. App. 790, 802–803, 682 A.2d 513 (1996)

(because elements of forgery in third degree must be

proven before defendant can be convicted of forgery

in second degree, it is lesser included offense, and conviction of both violated double jeopardy clause); State

v. Flynn, supra, 14 Conn. App. 19 (theoretically impossible to have situation where defendant, with intent to

prevent performance of duties of peace officer, either

causes physical injury to officer or throws or hurls

bottle or other object at officer capable of causing harm

without at same time obstructing, hindering, resisting or

endangering that officer in performance of his duties).

In light of the cases cited herein, the defendant has

demonstrated that the homicide and risk of injury

offenses arose from the same act or transaction and

that the risk of injury offense is a lesser included offense

within the homicide offense, as charged in the information in this case.

Finally, we must consider whether the defendant’s

right to be free from double jeopardy was not violated

because our legislature authorized multiple punishments. ‘‘Where . . . a legislature specifically authorizes cumulative punishment under two statutes,

regardless of whether those two statutes proscribe the

same conduct under Blockburger, a court’s task of statutory construction is at an end and the prosecutor may
seek and the trial court or jury may impose cumulative

punishment under such statutes in a single trial.’’ (Internal quotation marks omitted.) State v. Gonzalez, 302

Conn. 287, 317, 25 A.3d 648 (2011). However, ‘‘[w]here

there is no clear indication of a contrary legislative

intent . . . the Blockburger presumption controls.’’

(Internal quotation marks omitted.) State v. Bumgarner-Ramos, supra, 187 Conn. App. 751 n.19. In his

memorandum of law in support of his motion to correct

an illegal sentence, the defendant argued that there was

no such intent evidenced by our legislature that would

permit multiple punishments in this case. In his appellate brief, the defendant iterated this argument. This

state has not provided this court with any authority

that our legislature authorized separate penalties for

the defendant’s criminal offenses. In the absence of any

such authority that would support such a conclusion,

we defer to the Blockburger presumption and conclude

that, in this case, the defendant’s punishment cannot

withstand constitutional scrutiny. Id.; see also State v.

Flynn, supra, 14 Conn. App. 19 (‘‘[u]nless a clear intention to fix separate penalties for each [offense] involved

is expressed, the issue should be resolved in favor of

lenity and against turning a single transaction into multiple offenses’’ (internal quotation marks omitted)).

We conclude that the defendant’s right to be free of

double jeopardy was violated in this case. Accordingly,

the trial court improperly denied his motion to correct

an illegal sentence.

The judgment is reversed and the case is remanded

for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

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

guilty of manslaughter in the first degree when: (1) With intent to cause

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

or of a third person . . . .’’

2 General Statutes (Rev. to 1995) § 53-21, as amended by No. 95-142 of

the 1995 Public Acts, provides in relevant part: ‘‘Any person who (1) wilfully

or unlawfully causes or permits any child under the age of sixteen years to

be placed in such a situation that the life or limb of such child is endangered,

the health of such child is likely to be injured or the morals of such child

are likely to be impaired, or does any act likely to impair the health or morals

of any such child . . . shall be guilty of a class C felony.’’ All references

to § 53-21 in this opinion are to the 1995 revision of the statute as amended

by No. 95-142 of the 1995 Public Acts.

3 General Statutes (Rev. to 1995) § 53a-54b, as amended by No. 95-16 of

the 1995 Public Acts, provides in relevant part: ‘‘A person is guilty of a

capital felony who is convicted of . . . (9) murder of a person under sixteen

years of age.’’ All references to § 53a-54b in this opinion are to the 1995

version of the statute, as amended by No. 95-16 of the 1995 Public Acts.

General Statutes § 53a-54a provides in relevant part that ‘‘[a] person is

guilty of murder when, with intent to cause the death of another person,

he causes the death of such person . . . .’’

4 The court also had instructed the jury on manslaughter in the first degree

in violation of General Statutes § 53a-55 (a) (3), manslaughter in the second

degree in violation of General Statutes § 53a-56 and criminally negligent

homicide in violation of General Statutes § 53a-58.

5 Practice Book § 43-22 provides: ‘‘The judicial authority may at any time

correct an illegal sentence or other illegal disposition, or it may correct a

sentence imposed in an illegal manner or any other disposition made in an

illegal manner.’’
6

In State v. Porter, supra, 328 Conn. 661–62, our Supreme Court expressly

held that a reviewing court may consider the evidence and the state’s theory

of the case, along with the information, as amplified by a bill of particulars,

in determining whether two charges arose from the same act or transaction.

7 The fifth amendment to the United States constitution provides in relevant part: ‘‘[N]or shall any person be subject for the same offense to be

twice put in jeopardy of life or limb . . . .’’ The fifth amendment is applicable

to the states through the fourteenth amendment’s due process clause. See

State v. Brown, 299 Conn. 640, 651, 11 A.3d 663 (2011). ‘‘Although the

Connecticut constitution does not include a specific double jeopardy provision, we have held that the due process and personal liberty guarantees

provided by article first, §§ 8 and 9, of the Connecticut constitution . . .

encompass the protection against double jeopardy. . . . The protection

afforded against double jeopardy under the Connecticut constitution mirrors, rather than exceeds, that which is provided by the constitution of the

United States.’’ (Footnotes omitted; internal quotation marks omitted.) Id.;

see also State v. Ferguson, 260 Conn. 339, 360, 796 A.2d 1118 (2002).

8 Specifically, the court instructed the jury as follows: ‘‘For purposes of

the record, § 53a-55 (a) (1) insofar as it is pertinent in this case provides

as follows: A person is guilty of manslaughter in the first degree when with

intent to cause serious physical injury to another person he causes the death

of such person. For you to find the defendant guilty of this charge the state

must prove the following elements beyond a reasonable doubt: First, that

the defendant caused the death of [the victim] and second that the defendant

intended to cause serious physical injury to [the victim].

‘‘The term serious physical injury means a physical injury that creates

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

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

bodily organs. You will note that the basis of the charge under this statute

is not that the defendant intended to kill but that he intended to inflict

serious physical injury.’’

9 See footnote 4 of this opinion.

10 Katsnelson explained that a contusion or bruise ‘‘is an injury which is

inflicted with a blunt object, and usually, a bruise, it is an accumulation of

blood under the skin. When some kind of a hard object, a blunt object hit

the skin, there are vessels—blood vessels under the skin, and the blood

vessels will rupture due to the trauma, and they will bleed under the skin,

and the skin will appear bruised.’’ He also defined an ‘‘abrasion’’ as scraping

of the upper layer of skin.

11 Katsnelson later explained that the laceration to the liver resulted from

blunt trauma and caused extensive bleeding into the abdominal cavity,

resulting in the victim’s death.

12 Spivack also opined that the injury to the victim’s liver resulted from

either an uppercut type punch to the upper part of the belly, or an upward

kick, as opposed to a stomp. She also indicated that after the laceration to

the liver, the victim initially would have lost 80 to 100 cubic centimeters of

blood per minute into the abdominal cavity and gone into shock within two

to four minutes. While the rate of blood loss would have slowed down,

cardiac arrest would occur a few minutes thereafter. Spivack defined cardiac

arrest as ‘‘the situation when the heart no longer pumps, when there is no

pulse. If you were feeling for a pulse, you wouldn’t find one. If you were

listening, you wouldn’t hear one. . . . The heart has ceased to pump and

is still.’’

13 The defendant did not file a motion for a bill of particulars in this case.

14 We note that the state acknowledged that the evidence and theory of

the case advanced by the trial prosecutor indicated that the two offenses

arose from the same act or transaction. Specifically, the state argued the

following in its June 11, 2018 opposition to the defendant’s motion to reargue

and/or for reconsideration: ‘‘The state does not challenge that the injuries

that formed the basis of both the capital felony charge/manslaughter in

the first degree conviction and the risk of injury count happened in the

same transaction. In fact, it appears that was the trial prosecutor’s theory

of the case. However, as this court noted in its ruling, the types of prohibited

acts here formed the basis for the two distinct charges. That is to say,

there were clearly acts alleged in the risk of injury count, attributed to the

defendant, that could not have possibly formed the basis of the injuries

which led to the child’s death and, therefore, could not have formed the

basis of the homicide charge.’’ (Emphasis added.)

15 We also note that the court’s instructions to the jury did not exclude

the fatal blow to the victim’s abdomen from the jury’s consideration of the
risk of injury charge. See State v. Benjamin, 86 Conn. App. 344, 352, 861

A.2d 524 (2004). The absence of such a limitation permitted the jury to find

the defendant guilty of both the risk of injury and the homicide charges on

the basis of the fatal blow to the abdomen that resulted in the lacerated

liver. See id.

16 In view of this controlling precedent, we decline to adopt the reasoning

of the trial court, as set forth in its May 15, 2018 decision, that the phrase

‘‘in the manner described in the information’’ modifies both the greater and

the lesser included offense.

17 We iterate that the defendant did not file a motion for a bill of particulars

in this case. See footnote 13 of this opinion.