**************************************************************** The ‘‘officially released’’ date that appears near the

beginning of this opinion is the date the opinion was

released as a slip opinion. The operative date for the

beginning of all time periods for filing postopinion

motions and petitions for certification is the ‘‘officially

released’’ date appearing in the opinion.

This opinion is subject to revisions and editorial

changes, not of a substantive nature, and corrections

of a technical nature prior to publication in the

Connecticut Law Journal. ****************************************************************
STATE OF CONNECTICUT v. VICTOR M. ALICEA

(SC 20399)

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

Kahn, Ecker and Keller, Js.

Argued November 23, 2020—officially released June 23, 2021*

Procedural History

Two part substitute information charging the defendant, in the first part, with two counts of the crime of

assault in the first degree, and, in the second part, with

being a persistent dangerous felony offender, brought

to the Superior Court in the judicial district of Windham,

geographical area number eleven, where the first part

of the information was tried to the jury before Seeley,

J.; verdict of guilty; thereafter, the defendant was presented to the court on a plea of nolo contendere to the

second part of the information; judgment of guilty in

accordance with the verdict and plea; subsequently, the

court denied the defendant’s motions for a judgment

of acquittal and for a new trial, and the defendant

appealed to the Appellate Court, Prescott, Bright and

Eveleigh, Js., which affirmed the trial court’s judgment,

and the defendant, on the granting of certification,

appealed to this court. Affirmed.

Jonathan R. Formichella, with whom was James B.

Streeto, senior assistant public defender, for the appellant (defendant).

Mitchell S. Brody, senior assistant state’s attorney,

with whom, on the brief, were Anne F. Mahoney, state’s

attorney, and Mark A. Stabile, former senior assistant

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

McDONALD, J. In State v. Nash, 316 Conn. 651, 666,

114 A.3d 128 (2015), we held that convictions of intentional assault in the first degree and reckless assault

in the first degree1 may be legally consistent when each

mutually exclusive mental state pertains to a different

result. Thereafter, in State v. King, 321 Conn. 135, 145,

136 A.3d 1210 (2016) (King 2016), we applied this rationale to again conclude that convictions of intentional

and reckless assault were legally consistent. This certified appeal requires us to determine whether this precedent governs the outcome of the present case. We conclude that it does.

The defendant, Victor M. Alicea, was convicted of one

count of intentional assault and one count of reckless

assault. On appeal, he contends that his convictions of

intentional and reckless assault are legally inconsistent,

notwithstanding Nash and King 2016, because the requisite mental states are mutually exclusive under the

particular circumstances of his case, which involved

only one act, one victim, and one injury. The defendant

claims that his case is instead governed by State v.

King, 216 Conn. 585, 592–94, 583 A.2d 896 (1990) (King

1990), and State v. Chyung, 325 Conn. 236, 247–48,

157 A.3d 628 (2017). Accordingly, we must survey our

jurisprudence regarding the legal consistency of multiple verdicts to resolve seemingly disparate language

from our cases and to identify a uniform rule. In addition, this appeal requires us to examine the different

circumstances under which a claim of legally inconsistent verdicts implicates our ‘‘theory of the case’’ doctrine. We address these issues in turn.

The Appellate Court’s decision sets forth the facts

and procedural history; State v. Alicea, 191 Conn. App.

421, 424–26, 436–37, 215 A.3d 184 (2019); which we

summarize in relevant part. The defendant and the victim, Tyrone Holmes, were employees at a Burger King

restaurant. In July, 2015, the defendant was working

an overnight shift when Holmes, who was not working

that night, arrived and entered through the back door

of the restaurant. Holmes intended to drop off supplies

and ‘‘to speak with the defendant, who, he had heard,

had been talking about him.’’ Id., 424. At Holmes’

request, the defendant stepped outside for a ‘‘brief discussion’’ with Holmes, during which the defendant

‘‘denied having talked negatively about Holmes.’’ Id.,

424–25. During the conversation, ‘‘[e]verything appeared

fine to Holmes.’’ Id., 425.

After both men went back inside the restaurant,

Holmes overheard the defendant speaking on his cell

phone, saying that ‘‘the defendant had a problem.’’ Id.

‘‘Holmes told the defendant that they did not have a

problem, and the defendant walked away . . . .’’ Id.

Holmes followed, at which point they began arguing.
‘‘The defendant then pulled Holmes’ head toward him

and cut his throat with a razor blade.’’ Id. Holmes initially assumed a fighting stance, thinking the defendant

had punched him. After noticing that he was bleeding,

however, Holmes left the restaurant. Holmes was subsequently taken to a local hospital, where an emergency

medicine physician determined that he had ‘‘sustained

a neck laceration that was approximately seven inches

long . . . .’’ Id. Given the severity of his injury, Holmes

was then transferred to another hospital, where he

underwent surgery to repair his lacerated neck muscle

and left external jugular vein.

The defendant was arrested and charged with both

intentional assault and reckless assault. At trial, after

the close of the state’s case, the defendant moved for

a judgment of acquittal. He argued, in part, that the

charges were legally inconsistent because each charge

required a mutually exclusive mental state. The trial

court denied the motion, explaining that this court had

held, in State v. Nash, supra, 316 Conn. 651, that intentional and reckless assault charges are legally consistent. See id., 666–69. Subsequently, the jury found the

defendant guilty of both charges. The defendant filed

a renewed motion for a judgment of acquittal and a

motion for a new trial, asserting that the verdicts were

legally inconsistent. The trial court denied both motions

and rendered a judgment of conviction on both counts.

The court then merged the convictions and sentenced

the defendant to an enhanced mandatory minimum

term of ten years incarceration, followed by twelve

years of special parole on the count of intentional

assault as a persistent dangerous felony offender.2

The defendant appealed from the judgment of conviction to the Appellate Court, claiming, among other

things, that the trial court incorrectly had concluded

that the verdicts were legally consistent. The Appellate

Court subsequently affirmed the judgment of the trial

court. State v. Alicea, supra, 191 Conn. App. 450. Relevant to this appeal, the Appellate Court concluded that

the verdicts of guilty for both intentional assault and

reckless assault were legally consistent. Id., 434. Relying

on State v. Nash, supra, 316 Conn. 666–69, the court

reasoned that, in order to find the defendant guilty of

reckless assault, ‘‘the jury was required to find that the

defendant engaged in conduct that . . . created a

grave risk of death to Holmes, ultimately resulting in

Holmes’ serious physical injury. Such a conclusion is

not inconsistent with the [jury’s] finding that the defendant also intended to seriously injure Holmes,’’ as it

was required to find in order to find the defendant guilty

of intentional assault. (Emphasis omitted.) State v.

Alicea, supra, 434.

Thereafter, the defendant filed a petition for certification to appeal, which we granted, limited to the following issue: ‘‘Did the Appellate Court correctly conclude
that the jury’s verdicts of guilty of intentional assault

and reckless assault were not legally inconsistent?’’

State v. Alicea, 333 Conn. 937, 219 A.3d 373 (2019).

On appeal, the defendant contends that the verdicts

finding him guilty of intentional assault and reckless

assault are legally inconsistent because their requisite

mental states—intentional and reckless—are mutually

exclusive. Specifically, he argues that the verdicts are

inconsistent in this case because it was impossible for

the jury to find both mutually exclusive mental states

with respect to only one act, one victim, and one injury.

In addition, he asserts that his legal inconsistency claim

must be viewed in light of the state’s theory of the

case as presented to the jury at trial—namely, that the

charges were brought in the alternative. The state contends that the Appellate Court correctly concluded that

the convictions are consistent because each mental

state pertains to a different result—in other words, the

statutory objectives of each mental state are different.

The state also asserts that we should not review the

defendant’s claim about the state’s theory of the case

because it is outside the scope of the certified question.

In the alternative, the state strongly disputes the defendant’s characterization of its theory of the case at trial.

The following legal principles guide our analysis of

this claim. ‘‘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. Chyung, supra, 325 Conn. 245–46.

‘‘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.) Id., 247.

In this case, the defendant was convicted of one count

each of intentional assault in violation of General Statutes § 53a-59 (a) (1) and reckless assault in violation

of § 53a-59 (a) (3). Section 53a-59 (a) (1) provides that

an individual commits intentional assault when, ‘‘[w]ith

intent to cause serious physical injury to another person, he causes such injury to such person . . . by

means of a deadly weapon or a dangerous instrument

. . . .’’ (Emphasis added.) Section 53a-59 (a) (3) pro-
vides that an individual commits reckless assault when,

‘‘under circumstances evincing an extreme indifference

to human life he recklessly engages in conduct which

creates a risk of death to another person, and thereby

causes serious physical injury to another person . . . .’’

(Emphasis added.)

We have previously recognized that ‘‘the statutory

definitions of ‘intentionally’ and ‘recklessly’ are mutually exclusive and inconsistent.’’ 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. (Emphasis added.) 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. (Emphasis added.)

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.’’ (Internal

quotation marks omitted.) State v. King, supra, 594.

We have held, however, that convictions involving

both intentional and reckless mental states are 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. See, e.g., State v. King, supra, 321 Conn.

144 (convictions for intentional and reckless assault

are legally consistent when ‘‘the jury reasonably could

have found that the defendant’s conduct amounted to

two separate acts’’); State v. Hinton, 227 Conn. 301,

315, 630 A.2d 593 (1993) (convictions for intentional and

reckless assault are legally consistent when defendant

intended to injure one person and recklessly disregarded risk to bystanders because ‘‘here we have two

different victims and therefore two different results’’).

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. State v. Nash, supra, 316

Conn. 666 (‘‘there is no reason why a person cannot

simultaneously act intentionally and recklessly with

respect to the same conduct and the same victim if

each of those two mental states pertains to a different

result’’ (emphasis omitted)). ‘‘[M]ental states . . .

exist only with reference to particular results . . . .

Thus, it is necessary to examine the mental state element as it arises in [the] particular statute defining

[the] offense to determine whether actual inconsistency

exists.’’ (Internal quotation marks omitted.) Id., 668.

We find our decisions in Nash and King 2016 to

be particularly instructive in this case. In Nash, the

defendant was convicted of, among other crimes, both

intentional and reckless assault under § 53a-59 (a) (1)
and (3) after he fired several shots into a home, one of

which injured the homeowner’s sister. Id., 654. We held

that the defendant’s convictions were not legally inconsistent. Id., 666–69. We reasoned that ‘‘the two mental

states required to commit the offenses relate to different

results’’ because, ‘‘in order to find the defendant guilty

of those offenses, the jury was required to find that the

defendant intended to injure another person and that,

in doing so, he recklessly created a risk of that person’s

death.’’ Id., 666. We concluded that ‘‘the jury reasonably

could have found that the defendant simultaneously

possessed both mental states . . . .’’ Id., 667–68. We

applied Nash to uphold convictions of intentional and

reckless assault again in King 2016. In that case, the

defendant brandished his knife before stabbing the victim several times. State v. King, supra, 321 Conn. 138–

39. We held that the convictions were not legally inconsistent because, under Nash, ‘‘the jury reasonably could

have found that when the defendant stabbed the victim,

he intended to cause serious injury to her and that he

also recklessly engaged in conduct [that created] a risk

of the victim’s death. . . . That is, the defendant’s act

of stabbing the victim is consistent with two different

mental states, each related to two different results.’’

(Citation omitted; internal quotation marks omitted.)

Id., 145.

In the present case, Nash squarely governs our examination of the mental state elements of intentional and

reckless assault and demonstrates that the convictions

are not legally inconsistent. In order to find the defendant guilty of both charges, the jury was required to

find—with respect only to the mental state element of

each charge—that the defendant (1) consciously intended

to cause Holmes serious physical injury, and (2) consciously disregarded the risk that his conduct would

result in Holmes’ death. The jury reasonably could have

found that the defendant simultaneously possessed

both mental states pertaining to his singular action of

cutting Holmes’ throat. In other words, the jury reasonably could have found that the defendant intended to

cause Holmes serious physical injury and simultaneously disregarded the risk that his conduct would cause

Holmes’ death. Therefore, the convictions are not

legally inconsistent.

The defendant nonetheless contends that his convictions are legally inconsistent for two reasons. First, he

asserts that we stated in King 1990 and Chyung that

the mutually exclusive mental states must pertain to

distinct acts or injuries. He argues that these cases

can be read consistently with Nash and King 2016 by

examining the respective facts of each case. He further

contends that the facts of this case are more analogous

to King 1990 and Chyung because each of these three

cases involved only one act and one injury, whereas

Nash and King 2016 involved multiple acts and multiple

potential injuries. Second, the defendant argues that
the state is bound by the theory of the case it presented

at trial, namely, that the charges were alternatives. Specifically, he contends that the state cannot now argue

that the convictions are legally consistent because it

did not present the charges to the jury as consistent.

We address each argument in turn.

First, the defendant asserts that our case law establishes that ‘‘two different injuries are required in order

for a defendant to be convicted of two different offenses

requiring proof of mutually exclusive mental states.’’

(Emphasis omitted.) For this proposition, he relies on

King 1990 and Chyung. In King 1990, the defendant

was convicted of, among other things, attempted murder and reckless assault for lighting a fellow prisoner’s

cell on fire and rigging the door to trap him inside.

State v. King, supra, 216 Conn. 586–88. In Chyung, the

defendant was convicted of murder and manslaughter

in the first degree with a firearm for placing a gun into

a bag, when it suddenly discharged, killing the victim.

State v. Chyung, supra, 325 Conn. 241. In both cases,

this court concluded that the convictions were legally

inconsistent because, ‘‘[t]o return verdicts of guilty for

both [charges] . . . the jury would have had to find

that the defendant simultaneously acted intentionally

and recklessly with regard to the same act and the same

result,i.e., the injury to the victim.’’ (Emphasis added.)

State v. King, supra, 593; accord State v. Chyung, supra,

246–48. Specifically, in King 1990, we reasoned that

the defendant could not have both consciously intended

to cause the victim’s death, as required by the attempted

murder conviction, while also recklessly disregarding

the risk of the victim’s death, as required by the reckless

assault conviction. State v. King, supra, 593–94; see

also State v. Chyung, supra, 247–48.

In the present case, the defendant contends that our

holdings in King 1990 and Chyung establish that mutually exclusive mental states are legally consistent only

if they pertain to different acts or injuries because these

cases define ‘‘result’’ as ‘‘injury to the victim.’’ (Emphasis omitted; internal quotation marks omitted.) In addition, the defendant argues that comparing the facts of

these cases with the facts of Nash and King 2016 further delineates this rule. Specifically, King 1990 and

Chyung each involved only one act and one injury—

respectively, the single act of trapping the victim in the

locked prison cell and the single discharge from the

gun—and, therefore, the convictions were inconsistent.

By contrast, Nash and King 2016 each involved multiple acts or multiple injuries—respectively, multiple

shots fired and multiple stab wounds inflicted—and,

therefore, the convictions were consistent. The defendant asserts that his legal inconsistency claim hinges

on this factual distinction because, ‘‘[w]hen there are

multiple blows, multiple stabs, multiple shots fired, or

more than one victim, it is at least possible for a jury

to find a defendant guilty of two conflicting [mental
state] crimes, and the verdicts will not be held to be

legally inconsistent.’’ The defendant further asserts that

the present case is more analogous to King 1990 and

Chyung because he engaged in a single act to inflict a

single laceration. Therefore, he contends, the mutually

exclusive mental states pertain to a single ‘‘result’’ and

are legally inconsistent.

We are not persuaded by the defendant’s interpretation of our case law. In Nash, we rejected the same

argument the defendant raises here, reasoning 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.’’ State v.

Nash, supra, 316 Conn. 668. 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. See id., 669 and

n.18. This is ‘‘separate and distinct’’ from the injuryin-fact element required for each conviction. Id., 669.

Moreover, we explained that ‘‘[n]othing that we said in

[King 1990] . . . should be read to mean that . . .

the relevant inquiry is 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 added.) Id., 669

n.18. Therefore, in Nash, we considered and expressly

rejected the same argument the defendant raises here.3

Additionally, the defendant overestimates the degree

to which the rationales of all four cases turned on the

facts of each case rather than the statutory elements

of the respective charges. The defendant relies on language from King 1990 and Chyung that the mental

states must pertain to different injuries; however, the

outcomes of all four cases 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. Nash expressly articulated this rule, but all four cases have employed it.

For example, in King 2016, we noted that ‘‘the jury

reasonably could have found that the defendant’s conduct amounted to two separate acts’’; State v. King,

supra, 321 Conn. 144; but we also applied Nash to conclude that the verdicts would be consistent even under

the theory that the defendant’s conduct amounted to

only one act.4

Id., 144–45.

Finally, the defendant claims that the state has impermissibly changed its theory of the case on appeal. The

following additional procedural history is relevant to

the defendant’s argument. During trial, following the

state’s presentation of its case-in-chief, the defendant

orally moved for a judgment of acquittal on the ground

that the charges were legally inconsistent. State v.

Alicea, supra, 191 Conn. App. 436. At oral argument on
the motion, the prosecutor indicated that he intended

to argue to the jurors that, ‘‘if they find [the defendant]

not guilty [of intentional assault], that they should proceed to determine whether he’s reckless . . . .’’ The

trial court, however, concluded that the charges were

legally consistent under Nash, and it denied the defendant’s motion. Subsequently, during closing argument,

the prosecutor explained to the jury that, ‘‘if you do

not agree [that the state has proven intentional assault],

you don’t believe the evidence supports that, I submit

to you that the evidence and the record show, at the very

least, that [the defendant] acted recklessly.’’ Consistent

with its ruling on the defendant’s motion, the trial court

instructed the jury to consider each charge separately.

The defendant contends that the state argued to the

jury that the charges of intentional and reckless assault

were alternatives, meaning that the jury could not find

the defendant guilty of both counts. The defendant also

contends that the state argued ‘‘for the first time’’ in

its opposition to the defendant’s postverdict, renewed

motion for a judgment of acquittal and to his motion

for a new trial that the verdicts were legally consistent

under Nash. On appeal, the defendant argues that the

state cannot change its theory of the case postverdict to

avoid the verdicts’ legal inconsistency. The state asserts

that this issue is distinct from the legal consistency

issue and, therefore, unreviewable as outside the scope

of the certified question. Alternatively, the state strongly

disputes the defendant’s characterization of its presentation of the case to the jury, arguing that it never

presented the charges to the jury as alternatives.

The ‘‘theory of the case’’ doctrine is rooted in the

due process owed to criminal defendants. See, e.g.,

Dunn v. United States, 442 U.S. 100, 106, 99 S. Ct. 2190,

60 L. Ed. 2d 743 (1979) (‘‘[t]o uphold a conviction on

a charge that was neither alleged in an indictment nor

presented to a jury at trial offends the most basic

notions of due process’’); State v. Robert H., 273 Conn.

56, 82, 866 A.2d 1255 (2005) (‘‘[t]he ‘theory of the case’

doctrine is rooted in principles of due process of law’’);

see also, e.g., State v. Scruggs, 279 Conn. 698, 718, 905

A.2d 24 (2006) (under claim of insufficient evidence,

‘‘in order for any appellate theory to withstand scrutiny

. . . it must be shown to be not merely before the jury

due to an incidental reference, but as part of a coherent

theory of guilt’’ (internal quotation marks omitted)).

We have at least once applied the theory of the case

doctrine to a legal inconsistency analysis. In Chyung,

the state argued on appeal that ‘‘the jury reasonably

could have found that the defendant engaged in two

separate acts,’’ which would have rendered the verdicts

consistent. State v. Chyung, supra, 325 Conn. 255. We

reasoned that, because the state ‘‘never presented this

theory to the jury during trial,’’ it could not rely on

this theory to save the otherwise legally inconsistent
verdicts. Id., 255–56. This analysis was consistent with

the view previously expressed by the dissent in King

2016 that ‘‘the legal consistency of the verdict must be

considered in light of the state’s theory of the case at

trial.’’ State v. King, supra, 321 Conn. 159 n.2 (Robinson,

J., dissenting). Together, these cases establish that the

theory of the case doctrine may be defensively incorporated into a legal inconsistency claim; that is, a defendant may preclude the state from relying on a novel

factual theory of the case on appeal because a new

theory cannot transform inconsistent verdicts into consistent ones if it was not presented to the jury at trial.5

In other words, the theory of the case doctrine is embedded in the legal inconsistency analysis to the extent

necessary to tether the state to the factual theory it

presented to the jury.6

The defendant in this case argues that, as in Chyung,

the state cannot maintain that his convictions are consistent on appeal because its theory of the case at trial

contemplated the charges as alternatives. We review

the defendant’s argument to the extent that it is encompassed within his legal consistency claim and is not an

attempt to raise a distinct due process claim rooted in

notice considerations. See footnote 6 of this opinion.

Nevertheless, the defendant’s argument is unpersuasive

because there is an important distinction between this

case and Chyung. In Chyung, the novel theory on which

the state sought to rely was factual, not legal. The state

argued to the jury that the defendant’s conduct was

one act but then sought to avoid legal inconsistency by

arguing on appeal that the defendant’s conduct could

constitute two acts. State v. Chyung, supra, 325 Conn.

255–56. Here, there is no suggestion that the state has

changed its factual theory of the case on appeal, for

example, to assert that the defendant’s conduct constituted multiple acts or encompassed multiple victims.

Even if we assume that the defendant is correct that

the state presented the charges as alternatives at trial,

this would have been the state’s legal theory of the

case. We need not inquire whether this legal theory

represented a litigation tactic or a misapprehension of

our legal consistency jurisprudence. In this case, the

trial court properly instructed the jury to consider each

charge separately based on its conclusion that the

charges of reckless assault and intentional assault were

not legally inconsistent.7 As we have often explained,

the jury is bound to apply the law as instructed by the

trial court. See, e.g., State v. Reynolds, 264 Conn. 1,

131, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124

S. Ct. 1614, 158 L. Ed. 2d 254 (2004). Moreover, as

explained, the defendant here does not raise a distinct

claim that he lacked adequate notice that he could be

convicted of both charges in light of the state’s legal

theory of the case at trial. See footnote 6 of this opinion.

In sum, the state is bound to the factual theory of

the case that it presented to the jury at trial. Here, there
is no claim that the state changed its factual theory of

the case postconviction. Moreover, as the trial court

correctly explained, we have repeatedly stated that convictions of intentional and reckless assault are not

legally inconsistent, and the court properly instructed

the jury on this point. We presume that the jury followed

the trial court’s instructions.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

* June 23, 2021, the date that this decision was released as a slip opinion,

is the operative date for all substantive and procedural purposes.

1 Hereinafter, all references to intentional assault and reckless assault are,

respectively, to intentional assault in the first degree and reckless assault

in the first degree.

2 The defendant did not raise a claim, before the trial court or on appeal,

that his federal or state constitutional protections against double jeopardy

precluded his convictions. Accordingly, we express no opinion on that subject.

3 Chyung repeated the same language from King 1990 identifying the

relevant ‘‘result’’ as ‘‘the injury to the victim.’’ (Internal quotation marks

omitted.) State v. Chyung, supra, 325 Conn. 246, quoting State v. King,

supra, 216 Conn. 593. However, contrary to the defendant’s assertion, the

inclusion of that quotation by this court in Chyung did not alter the relevant

inquiry because Nash had clarified that language.

4 The defendant also contends that, to the extent that we disagree with

his interpretation of Nash, we should overrule Nash in favor of the language

subsequently articulated in Chyung. Specifically, the defendant argues that

Nash draws a distinction between the result associated with the mental

state and the result of the conduct that is artificial because ‘‘an individual

who intends to cause serious physical injury . . . will necessarily consciously and intentionally create a risk of death and, therefore, cannot create

such a risk unintentionally.’’ In addition, the defendant notes that the ‘‘serious

physical injury’’ objective associated with intentional assault is defined as

‘‘physical injury which creates a substantial risk of death’’; (emphasis added)

General Statutes § 53a-3 (4); which is identical to the ‘‘risk of death’’ objective

associated with reckless assault. We disagree for two reasons. First, § 53a3 (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 added.)

Second, contrary to the defendant’s assertion, the rule from Nash does not

lead to a bizarre result here. The jury reasonably could have found that the

defendant intended to cause Holmes serious physical injury and, in doing

so, disregarded the risk that such conduct would simultaneously create a

risk that Holmes would die.

5 The state contends that the court in Chyung ’’made a mistake’’ in

‘‘departing from’’ the majority in King 2016 when it declined to uphold the

convictions under the state’s novel factual theory of the case. We disagree

with this characterization of our jurisprudence. The majority in King 2016

avoided binding the state to either of the disputed factual theories of the

case by reasoning that, even under the theory of the case that the defendant

claimed the state presented to the jury, the convictions were legally consistent pursuant to Nash. See State v. King, supra, 321 Conn. 144–45. The

dissent in King 2016 maintained that the state should have been bound to

that theory on appeal, but it agreed with the majority that the convictions

were consistent under that theory. Id., 158–59 and n.2 (Robinson, J., dissenting). This court in Chyung instead concluded that the convictions were

legally inconsistent; we were then required to determine whether the state

could rely on a novel factual theory on appeal, which was a point of tension

between the majority and the dissent in King 2016. The court in Chyung

resolved this tension by concluding that permitting the state to rescue

otherwise inconsistent convictions by presenting a novel factual theory on

appeal would deprive the defendant of due process. State v. Chyung, supra,

325 Conn. 255–56. This holding was no mistake; rather, it employed long

held and uncontroversial principles of due process jurisprudence.

6 Our cases establish a second avenue through which the theory of the

case doctrine becomes relevant to a legal consistency claim. A defendant
may raise an independent claim that he lacked adequate notice that he could

be convicted of both charges due to some aspect of the state’s legal or

factual theory of the case as presented to the jury. See State v. King, supra,

321 Conn. 145, 148. This avenue is also rooted in the due process concerns

that inform the theory of the case doctrine. Unlike the ‘‘defensive’’ posture,

however, this posture is ‘‘offensive’’ in the sense that it provides a defendant

with another independent avenue to challenge the convictions. In King

2016, we clarified that this due process analysis and the legal consistency

analysis ‘‘are ultimately separate issues and reviewing courts should evaluate

them as such.’’ Id., 148; see also id., 159 n.2 (Robinson, J., dissenting)

(agreeing with majority that ‘‘the legal inconsistency and theory of the case

issues in this appeal are doctrinally separate inquiries’’). In the present case,

although the defendant raised a separate due process claim before the

Appellate Court; State v. Alicea, supra, 191 Conn. App. 435; he makes no

such claim before this court, nor did he seek certification on such an issue.

7

In addition, we need not consider whether Chyung would bar a novel

legal theory raised by the state postverdict when the trial court improperly

instructed the jury on the law. Here, the trial court properly instructed the

jury to consider the legally consistent charges separately.