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STATE v. BERTHIAUME—CONCURRENCE AND DISSENT

KELLER, J., concurring in part and dissenting in part.

I concur with part II of the majority opinion. I respectfully dissent with respect to the conclusion reached in

part I, that there was sufficient evidence for the jury

to reasonably infer that the defendant, Toby Arthur

Berthiaume, knowingly or recklessly inflicted physical

injury on the victim and is therefore guilty of burglary

in the first degree in violation of General Statutes § 53a101 (a) (2).

I begin by noting that although Jessica Navarro-Gilmore’s testimony about seeing two people acting suspiciously and holding a small flat television screen or

monitor suggested that two people were involved in

committing the burglary, the jury was not instructed

under the theory of accessory liability.1In its first

request to charge, the state requested that the court

deliver an accessorial liability instruction. Before

Navarro-Gilmore testified about her observation of the

two suspicious men, the prosecutor indicated to the

court that he expected Navarro-Gilmore to testify to

having observed the defendant and another man walking together down the street, and that the defendant

was carrying a television monitor. The prosecutor

argued that this evidence, along with the fact that he

believed Navarro-Gilmore would testify that once the

two men knew they were spotted, they attempted to

conceal themselves, warranted instructions on both

conspiracy to commit burglary in the third degree and

accessorial liability.

The courtresponded that because it had not yet heard

the evidence from Navarro-Gilmore, it would ‘‘just skip

this part [of the proposed charge] for now, take it home

and study it up and ask you to move on.’’ Prior to the

final charging conference, however, after both sides

had rested, the state, without any explanation orfurther

argument to the court, filed an amended information

eliminating the second count of conspiracy to commit

burglary in the third degree and deleting the reference

to General Statutes § 53a-8, the accessorial liability statute, in the first count that charged the defendant with

burglary in the first degree. The state also did not pursue

further its earlier request for an accessorial liability

instruction.

The state’s case, therefore, went to the jury on the

theory that the defendant was the principal perpetrator

of burglary in the first degree.2 Accordingly, the state

is precluded from arguing, and does not argue, that the

first degree burglary conviction may be affirmed based

on an alternative accessorial liability theory. See, e.g.,

State v. Allen, 289 Conn. 550, 559, 958 A.2d 1214 (2008)

(because defendant was charged as accessory to both

crimes of capital felony and murder, it was not neces-
sary for state to prove that defendant, rather than other

shooter, fired fatal shot); State v. Channer, 28 Conn.

App. 161, 166, 612 A.2d 95 (noting in review of sufficiency of evidence that reviewing court is limited to

considering whether evidence supported finding that

defendant acted as principal because trial court did not

instruct jury as to accessorial liability), cert. denied,

223 Conn. 921, 614 A.2d 826 (1992).

In State v. Parham, 174 Conn. 500, 506–509, 391 A.2d

148 (1978), the defendant raised a claim similar to the

present claim. In Parham, the defendant challenged the

court’s charge to the jury underthe first degree burglary

statute. Id., 506. He argued that the statute required

that to be found guilty of the aggravated burglary

offense, he—as opposed to his accomplice or coparticipant—had to have inflicted or attempted to inflict bodily

injury. Id., 507. Our Supreme Court found no error

because the trial court properly instructed the jury on

accessorial as well as principal liability, and there was

evidence from which ‘‘the jury could reasonably and

logically conclude that the defendant was guilty of burglary in the first degree either as a principal perpetrator

or as an aider or abettor.’’ Id., 508. In that case, the

defendant’s fingerprint was found on a stereo speaker

in the victim’s living room, and the victim identified the

defendant as one of two men she had encountered

in her garage. Id., 503. The victim testified that the

defendant threw a shirt over her head. Id., 508–509. She

further testified about her struggle with the two men,

how they handled her, and the resultant injuries

inflicted upon her by the perpetrators of the crime.

Id., 509.

In the present case, the state was limited to proving

beyond a reasonable doubt that the defendant was the

principal perpetrator of a burglary in the first degree.

The identification witness, Navarro-Gilmore, observed

two men, one of whom she later identified as the defendant, ‘‘walking quickly and looking over their shoulder[s] suspiciously’’ on Hartford Avenue in Enfield, a

street not far from the victim’s home, both carrying

what appeared to be a flat screen TV or monitor, resembling one of the items stolen and which the defendant

later pawned. Although the majority notes that ‘‘there

was no evidence presented at trial concerning the identity of the second man or his alleged role, if any, in the

burglary,’’3

it acknowledges the testimony of NavarroGilmore that both of the white men she observed were

acting suspiciously, as if they had stolen something.4

It

then refers to a litany of evidence: the defendant lived

only a few houses away from the victim, so he was in

a position to know that she was alone and vulnerable

because he could see that no cars were in her driveway;5

Navarro-Gilmore reported her observations of the two

men to the police about an hour afterthe victim’s daughter had left the victim uninjured in her home, which

appeared to be in order; shortly thereafter, after receiv-
ing a call from the victim that her knee was bleeding,

her daughter arrived to find the victim’s residence in a

state of disarray: items had been hastily dumped out,

various drawers and cabinets were open, and the dining

room chandelier was broken;6

the television and ring

were missing; there was blood on the dining room floor;

the victim had sustained a bloody knee, chipped tooth

and bruised face, all signs of a struggle; and the phone

line in the living room had been cut. The majority concludes that ‘‘[a]ll of this evidence, in combination with

the defendant’s sale ofthe victim’s stolen ring and television shortly thereafter, supports the inference that the

defendant remained unlawfully in the victim’s home

with the intent to commit a crime therein, namely,

larceny.’’

Next, relying on State v. Cote, 136 Conn. App. 427,

445–46, 46 A.3d 256 (2012), aff’d, 314 Conn. 570, 107

A.3d 367 (2014), the majority concludes that ‘‘evidence

that the defendant was at or near the residence at about

the time of the burglary and that the defendant was in

possession of items stolen from the residence thereafter’’ supports the sustaining of a finding that a burglary

occurred on the basis that ‘‘although there were no

signs of a forced entry, the jury nevertheless could have

concluded that the defendant remain[ed] unlawfully in

the victim’s residence.’’ (Internal quotation marks omitted.) In my view, the majority then takes an unfounded

leap by positing that there was sufficient evidence to

support the jury’s finding that the defendant, in the

course of committing the burglary, inflicted bodily

injury on the victim. The majority observes that ‘‘the

state adduced evidence that the victim was uninjured

as of 12:50 p.m., and that by at least 3 p.m. had sustained

a bloody injury to her knee, a mark on her nose, a

bruise on her face and a chipped tooth. During that

same time period, around 1:53 p.m., the defendant was

observed ‘walking suspiciously’ with a second man

away from the victim’s residence with what appeared

to be a television, and was photographed selling the

victim’s stolen items approximately two hours later in

Springfield, Massachusetts. The chandelier in the victim’s dining room was broken, there was blood on the

floor, and the telephone cord in the adjacent room was

cut. [The victim’s daughter, Marita] Cunningham testified that despite the victim’s advanced age, she was a

‘feisty individual’ who would ‘try to stand up for herself

and . . . fight back’ if someone tried to ‘push their way’

into her home.7 From this evidence, the jury reasonably

could have concluded that the victim resisted the defendant’s attempts to burglarize her home, prompting the

defendant to physically assault the victim and to cut

the telephone wire to prevent herfrom contacting help.’’

(Emphasis added; footnote added.)

While I agree that Cote permits the circumstantial

evidence in this case to be interpreted in such an attenuated manner as to uphold a conviction of third degree
burglary,8

the other man walking quickly with the defendant at or near the residence at about the time of the

burglary and in possession of an item stolen from the

residence should not magically disappear from this

inferential equation, resulting in the divination that the

defendant was the sole perpetrator of the burglary and,

therefore, the person who physically assaulted the victim9 and cut her telephone cord to prevent her from

contacting help. The evidence that distinguished these

two men did not shed any light on the issue of which one

of them, or both, inflicted bodily injury upon the victim.

In State v. Cote, supra, 136 Conn. App. 429–30, there

was circumstantial evidence that a suspicious vehicle,

a Saab, with out-of-state license plates was parked in

front of a burglarized home in Stonington. A neighbor

saw two men get into the vehicle. Id., 430. Later, by

chance, a police chief in nearby Richmond, Rhode

Island, saw the same Saab parked in the yard of his

friend’s home and observed that two men were peering

through a window of a garage. Id., 431. Bloodstained

white athletic socks were found in the jacket pocket

of one of the men, and there were burglary tools as

well as a stolen item from the Stonington home in the

Saab.10 Id., 431–32. The defendant in Cote and the other

man, the codefendant, were charged with burglary in

the third degree and larceny in the second degree. Id.,

433. We concluded in Cote that ‘‘the jury . . . reasonably could have inferred that the defendant and [the

codefendant] worked together to commit the Stonington burglary.’’ (Emphasis added.) Id., 447.

Cote is instructive because, like the present case, it

involved evidence that implicated two codefendants but

did not suggest that one of them was the principal

perpetrator of the crime. Cote’s reasoning suggests that

the evidentiary inferences the majority uses to implicate

only the defendant in the present case should apply

equally to the unidentified man who was seen accompanying the defendant in the vicinity of the victim’s home

shortly after the burglary took place. It is significant

that Navarro-Gilmore did not identify the defendant as

the only person holding the small flat screen television

alone, but she twice testified that both men were both

holding it. I disagree with the majority that it is permissible to allow the jury to extend the allowable inference

that the defendant and the other male were involved

in a burglary as a result of being near the crime scene

and being in possession of the stolen flat screen television into conjecture that the defendant must have been

the sole perpetrator of the burglary who unlawfully

remained in the home, stole the victim’s property, and

inflicted physical injury on the victim because he lived

nearby and ultimately pawned the victim’s stolen television and ring.

This is especially true in light of the fact that there

was no testimony from the victim either describing any
kind of struggle or assault or identifying her attacker

or attackers; no testimony from the other man with

whom the defendant was observed; or any physical

evidence such as blood, fingerprints, or DNA evidence

that implicated the defendant as an assailant. Against

this evidentiary backdrop, I conclude that any inference

the jury drew that the defendant knowingly or recklessly inflicted physical injury on the victim appears to

have been the product of unreasonable speculation.

There is no evidence, direct or circumstantial, that supports a finding that one specific man out of the two,

or both, inflicted physical injury on the victim. ‘‘[A] jury

may draw reasonable and logical inferences from the

facts proven, but it may not resort to speculation and

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

v. Terry, 161 Conn. App. 797, 807, 128 A.3d 958 (2015),

cert. denied, 320 Conn. 916, 131 A.3d 751 (2016).

Connecting the defendant to the infliction of the victim’s injuries because he was seen shortly after the time

the burglary probably occurred with one of the stolen

items on a street near to the burgled premises and

the evidence that, later that day, he pawned the stolen

property, is not the result of drawing reasonable inferences. The majority agrees with the state that the defendant criminally assaulted the victim and that, by cutting

a telephone cord in her residence, he tried to prevent

her from obtaining help, but the undisputed presence

of an equally suspicious cohort and the lack of any

additional evidence, direct or circumstantial, as to the

exactrole the defendant played in the process of burglarizing the premises makes it speculative to conclude

that the defendant inflicted physical injury on the victim. As to the infliction of physical injury element of

burglary in the first degree, the jury was not viewing

evidence that could yield contrary inferences as to guilt

or innocence of the defendant alone. Rather, it was

viewing evidence that yielded contrary, irreconcilable

inferences as to which of the equally positioned suspicious white men seen by Navarro-Gilmore was the victim’s attacker, and no additional circumstantial

evidence justified the choice the jury made in rejecting

the possibility that the other suspicious man, as

opposed to the defendant, or that both men caused

injury to the victim. The only evidence that differentiates the defendant from the man who was suspiciously

walking with him is that the defendant lived near the

victim,11 and he was later seen at a business in Springfield, Massachusetts, pawning the stolen items. Yet

none of this additional evidence concerning the defendant reasonably or logically justifies the factual inference that the defendant, alone or in concert with the

other suspicious man, inflicted physical injury on the

victim.

‘‘[T]he line between permissible inference and impermissible speculation is not always easy to discern. When

we infer, we derive a conclusion from proven facts
because such considerations as experience, or history,

or science have demonstrated that there is a likely correlation between those facts and the conclusion. . . .

But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely

correlated with the facts than the chosen conclusion,

the inference is less reasonable. At some point, the

link between the facts and the conclusion becomes so

tenuous that we call it speculation. When that point is

reached is, frankly, a matter of judgment.’’ (Internal

quotation marks omitted.) State v. Rivera, 169 Conn.

App. 343, 359, 150 A.3d 244 (2016), cert. denied, 324

Conn. 905, A.3d (2017). In my assessment of

the evidence, there is no correlation between the facts

established in the present case and the conclusion that

the defendant inflicted physical injury on the victim.

The four decisions the state cites to support its argument that there was sufficient evidence that the defendant inflicted injury on the victim do not persuasively

compare with or establish the sufficiency of the circumstantial evidence the jury had in this case. In the two

Connecticut decisions cited, State v. Gemmell, 151

Conn. App. 590, 94 A.3d 1253, cert. denied, 314 Conn.

915, 100 A.3d 405 (2014), and State v. Clark, 48 Conn.

App. 812, 713 A.2d 834, cert. denied, 245 Conn. 921,

717 A.2d 238 (1998), the perpetrator of the attack was

absolutely identified by the victim. The defendant in

Gemmell had been in a previous relationship with the

victim, and she testified as to his attack of her. State

v. Gemmell, supra, 593–94. The defendant in Clark was

a neighbor of the victim, and she knew who he was.

She, too, described his physical attack of her. State v.

Clark, supra, 814–18. In the two out-of-state cases cited

by the state, Laster v. State, 311 Ga. App. 360, 360–62,

715 S.E.2d 768 (2011), and State v. Greene, Docket No.

E-2013-00475-CCA-R3-CD, 2014 WL 3384661, *4 (Tenn.

Crim. App. July 10, 2014), cert. denied, Tennessee

Supreme Court, Docket No. E2013-00475-SC-R11-CD

(December 17, 2014), the victims identified their attackers and described the details of their assaults.12

‘‘The due process clause of the fourteenth amendment protects the accused against conviction except

upon proof beyond a reasonable doubt of every fact

necessary to constitute the crime with which he is

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

Johnson, 165 Conn. App. 255, 288, 138 A.3d 1108, cert.

denied, 322 Conn. 904, 138 A.3d 933 (2016). Here, the

court instructed the jury that the defendant could be

found guilty only upon proof that he ‘‘knowingly or

recklessly inflicted bodily injury on someone.’’ I would

conclude that the circumstantial evidence in this case

was insufficient to convict the defendant of burglary

in the first degree beyond a reasonable doubt. Although

the state presented sufficient evidence to demonstrate

that the defendant, with the intent to commit a larceny,

entered and remained unlawfully in the victim’s resi-
dence, I do not believe that the state presented sufficient evidence to demonstrate beyond a reasonable

doubt that, in the course of committing the offense, he

knowingly or recklessly inflicted bodily injury on the

victim. Thus, I would conclude that the state satisfied

its burden of proof with respect to burglary in the third

degree in that it presented evidence that the defendant

remained unlawfully in a building for the purpose of

committing a larceny therein, but, in my view, it failed

to prove beyond a reasonable doubt the additional

required element that serves to elevate the crime to the

perpetration of a burglary in the first degree.

This court may order modification of an erroneous

judgment if the evidence is sufficient to support a conviction of a lesser included offense on which the jury

properly had been charged, as the jury’s verdict necessarily includes a finding that the defendant was guilty

of that lesser offense. See, e.g., State v. Saracino, 178

Conn. 416, 421, 423 A.2d 102 (1979); State v. Grant, 177

Conn. 140, 147–49, 411 A.2d 917 (1979). In the present

case, the court charged the jury on the lesser included

offense of burglary in the third degree under General

Statutes § 53a-103, and the defendant does not claim

error as to any portion of the charge.

Accordingly I would reverse the judgment of the trial

court and remand the case to the trial court with direction to modify the judgment and for the resentencing

of the defendant on the lesser included offense of burglary in the third degree.

1

In our evaluation of the sufficiency of the evidence, we, of course,

consider the theory of liability on which the jury was instructed and, thus,

legally and logically could have based its verdict. See Cole v. Arkansas, 333

U.S. 196, 202, 68 S. Ct. 514, 92 L. Ed. 644 (1948) (‘‘[t]o conform to due

process of law, [defendants are] entitled to have the validity of their convictions appraised on consideration of the case as it was tried and as the issues

were determined in the trial court’’); State v. Crespo, 317 Conn. 1, 15 n.14,

115 A.3d 447 (2015) (‘‘our review of the defendant’s claim of evidentiary

insufficiency is limited to the theory on which the case was submitted to

the jury’’).

2 On the count of burglary in the first degree, the trial court did not instruct

the jury to consider whether the defendant intentionally inflicted physical

injury on the victim or whether the defendant merely attempted to inflict

physical injury on her. Earlier, during one of several charging conferences,

in discussing the proposed instruction on burglary in the first degree, the

court stated: ‘‘Then . . . the next, element three, we took out intentionally,

so we’ll take it out here, it’s knowingly or recklessly inflicted.’’ There is no

indication in the record as to the evidentiary gap that may have formed the

basis for this deletion. ‘‘Penal statutes are to be construed strictly . . . and

not extended by implication to create liability that the legislature did not

purport to create.’’ (Citation omitted.) State v. Hufford, 205 Conn. 386, 392,

533 A.2d 866 (1987). ‘‘Inflict’’ means ‘‘[to] afflict . . . to give by or as if by

striking’’ or ‘‘to cause . . . something unpleasant . . . to be endured

. . . .’’ Merriam-Webster’s Collegiate Dictionary (11th Ed. 2012) p. 641. This

case, of course, concerns the infliction of physical injury.

The state argues, and the majority agrees, that the jury had sufficient

evidence to infer that the defendant engaged in an altercation with the

victim and that he struck her in the face. Because, as the charge was

submitted to the jury in this case, proof of the aggravating element of

burglary in the first degree requires a showing that the defendant ‘‘inflict[ed]’’

physical injury on the victim; General Statutes § 53a-101 (a)(2); the exclusion

of the word ‘‘intentionally’’ nevertheless did not permit the jury to conclude

that the defendant could be convicted on that count absent proof he had
knowingly or recklessly caused physical injury to the victim by personally

engaging in a physical struggle with her that caused her injury. In charging

the jury on the lesser included offense of burglary in the third degree, the

court instructed the jury that it had to determine that it was the defendant

who was the perpetrator of that offense, but it did provide similar guidance

to the jury in relation to its burglary in the first degree instruction.

Additionally, I observe that, although it was not raised by the defendant

as a claim of prosecutorial impropriety on appeal, the prosecutor improperly

argued to the jury during rebuttal argument and wrongfully informed it that

‘‘[i]f you decide that [the defendant] is the person [who] entered that house,

[who] took the TV, [and who] then pawned up in Springfield, there’s no

need to find him not guilty on count one, you should never get to burglary

in the third degree.’’ The element of knowing orreckless infliction of physical

injury to the victim was not mentioned.

3 There was a codefendant who was prosecuted separately.

4 Navarro-Gilmore testified that she had prior larceny convictions and a

pending larceny charge and therefore justified her suspicions as she had

‘‘walked the walk,’’ acting in the same manner as the two men she observed

after stealing something and fearing discovery.

5 As to this conclusion, there was no evidence that the defendant had

been home during the time preceding the burglary. Detective Brian Callaghan

of the Enfield Police Department testified that the defendant was ‘‘associat[ed] with another address,’’ 10 Bigelow Avenue, and the location of this

address was shown to the jury by means of an aerial photograph. Yet, this

evidence appears to demonstrate that an occupant located inside of the

residence at 10 Bigelow Avenue would not have been able to observe the

victim’s residence. The Bigelow Avenue residence is blocks away from the

victim’s residence, and is located on the corner of White Street and Bigelow

Street. It was after Navarro-Gilmore and the driver of the car in which she

was a passenger turned the car onto White Street that she lost sight of the

two suspicious men she had seen carrying the television.

6 The victim’s daughter, Norma Shannon, testified that a crystal from the

dining room chandelier had fallen off of it.

7 Again, the majority previously noted that ‘‘there were no signs of a forced

entry . . . .’’

8 The state relies on Cote and other cases, but they are distinguishable in

that they involved direct or circumstantial evidence of a more convincing

nature than that presented in the present case, and they did not involve

situations in which the defendant was one of several suspected perpetrators

of the crime. In State v. Sherman, 127 Conn. App. 377, 383–90, 13 A.3d 1138

(2011), the defendant was unable to demonstrate that the evidence was

insufficient to prove beyond a reasonable doubt that he had entered the

premises unlawfully in light of evidence that he was in close proximity to

the victim’s residence at the time of the burglary, he possessed items missing

from the residence following the burglary, and he admitted that he had

stolen jewelry and guns. In State v. Spikes, 111 Conn. App. 543, 555, 961

A.2d 426 (2008), cert. denied, 291 Conn. 901, 967 A.2d 114, cert. denied, 558

U.S. 898, 130 S. Ct. 249, 175 L. Ed. 2d 170 (2009), the defendant was seen

in close proximity to the burgled home not only ‘‘shortly after’’ the burglary

occurred, but also shortly before the burglary, and he was observed by a

police officer and a postal worker. In State v. Marshall, 51 Conn. App. 489,

491, 495–96, 723 A.2d 1156, cert. denied, 248 Conn. 903, 732 A.2d 178 (1999),

the defendant, who was the only suspected perpetrator, was, like the defendant in the present case, in possession of a stolen item at a pawn shop later

in the day, but there also was signature crime evidence, and the defendant’s

fingerprints were found on an air conditioning duct used to enter the burglarized apartment.

9 The state previously had charged the defendant with assault of an elderly

person in the third degree in violation of General Statutes § 53a-61a, an

offense which was not charged in either of its two subsequent amended

informations. During trial, the state filed its first amended information and

charged the defendant with burglary in the first degree and conspiracy to

commit burglary in the third degree. After the state rested its case, the

defendant moved for judgment of acquittal on both counts. The court denied

the defendant’s motion for judgment of acquittal on the count of burglary

in the first degree but reserved decision on the count of conspiracy to

commit burglary in the third degree. Thereafter, the state filed its second

amended information, at which time it deleted the conspiracy to commit

burglary in the third degree count.

10 There also was conduct evincing consciousness of guilt by the defendant
in Cote in that there was evidence that he had dumped a bag of stolen

jewelry outside his car in the bushes where he had parked his car after

following the Richmond police chief to the police station. See State v. Cote,

supra, 136 Conn. App. 433.

11 There was no evidence presented to the jury identifying the codefendant,

the factual basis for his being charged with respect to the burglary, or the

location of his residence.

12 In Laster, however, the victim, who suffered from dementia, had difficulty remembering what had happened to her, but her original statements

to her neighbor, her daughter, and the police describing her assault at the

hands of the defendant in that case were held to be sufficient evidence to

convict him, notwithstanding the victim’s contradictory testimony in court

that the defendant had injured her accidentally. Laster v. State, supra, 311

Ga. App. 360–62.