State v. Luciano

S
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                 STATE OF CONNECTICUT v.
                   ZAIRE RAULIN LUCIANO
                         (AC 42263)
                 Bright, C. J., and Alvord and Prescott, Js.

                                  Syllabus

Convicted of the crimes of assault in the second degree and conspiracy to
    commit assault in the first degree in connection with a fight at a bar,
    the defendant appealed to this court. One victim of the fight, C, suffered
    a head wound as a result of being punched, and the other victim, T,
    was struck by a bat and suffered, inter alia, a fractured ankle. Although
    there was evidence that the defendant exchanged punches with C, no
    evidence was presented that the defendant wielded the bat or as to the
    identity of the person who did. The defendant claimed, inter alia, that
    the evidence was insufficient to support his conviction. Held:
1. The evidence adduced at trial was insufficient to support the defendant’s
    conviction of conspiracy to commit assault in the first degree: there
    was no evidence presented or any reasonable inference that could have
    been drawn that a relationship existed between the defendant and the
    unidentified person who wielded the bat or that they engaged in any
    coordinated action, and an inference by the jury that the defendant
    had entered into an agreement with that person would be based on
    impermissible conjecture; moreover, the brief nature of the incident
    supported the conclusion that, even if the defendant saw the individual
    with the bat while he continued to exchange punches with C for a short
    period of time, there could not have been an inference that his continued
    participation in the fight supported an inference of an agreement with
    the bat wielding individual, and, accordingly, a judgment of acquittal of
    that crime was directed.
2. There was insufficient evidence presented at trial to establish that C’s
    injuries were caused by means of a dangerous instrument, as C did
    not testify and the evidence established only that the defendant had
    exchanged punches with C and C was later transported to a hospital,
    and, accordingly, a judgment of acquittal of assault in the second degree
    was directed.
            Argued February 4—officially released May 4, 2021

                            Procedural History

   Amended information charging the defendant with
the crimes of assault in the first degree, assault in the
second degree, and conspiracy to commit assault in the
first degree, brought to the Superior Court in the judicial
district of New Haven and tried to the jury before B.
Fischer, J.; thereafter, the court denied the defendant’s
motion for a judgment of acquittal; verdict and judg-
ment of guilty of the crimes of assault in the second
degree and conspiracy to commit assault in the first
degree; subsequently, the court denied the defendant’s
motions for a new trial and to vacate the conviction,
and the defendant appealed to this court. Reversed;
judgment directed.
   Erica A. Barber, for the appellant (defendant).
   Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Seth R. Garbarsky, senior assistant state’s
attorney, for the appellee (state).
                           Opinion

   ALVORD, J. The defendant, Zaire Raulin Luciano,
appeals from the judgment of conviction, rendered after
a jury trial, of one count of assault in the second degree
in violation of General Statutes § 53a-60 (a) (2), and
one count of conspiracy to commit assault in the first
degree in violation of General Statutes §§ 53a-48 (a)
and 53a-59 (a) (1).1 On appeal, the defendant claims
that the evidence was insufficient to support (1) his
conviction of conspiracy to commit assault in the first
degree and (2) his conviction of assault in the second
degree.2 We agree with the defendant and, accordingly,
reverse the judgment of the trial court.
   The jury was presented with evidence of the following
facts. On the evening of April 22, 2016, Jason Torello
was having a few beers at home in North Branford. He
had recently lost someone close to him and was ‘‘sort of
a homebody.’’ Torello’s good friend, Edward Corradino,
called to ask if he wanted to go out. Although Torello
declined, Corradino stopped by his house and con-
vinced him to go to Bar 80 (bar), which was approxi-
mately a mile from Torello’s house. They arrived at the
bar around 9 p.m. and went inside. The bar was fairly
empty. They sat at a table, and Torello had four to
eight beers. Torello also had taken Xanax, which was
prescribed to him for anxiety, and had snorted one line
of cocaine, and he described himself as intoxicated.
Corradino also was drinking and using drugs.
   Outside the front entrance to the bar, a large group
of ‘‘Hispanic, Latino looking’’ men were standing around
and smoking cigarettes. Corradino and Torello went
outside in front of the bar to smoke cigarettes two or
three times throughout the night. At around 10 p.m.,
Torello and Corradino were outside smoking cigarettes
when Rob Burgos,3 who knew Torello but had not seen
him in a long time, reintroduced himself. The two made
small talk for less than a minute before Torello went
back inside the bar and Burgos walked back toward
the group of men.
    Sometime after midnight, Torello and Corradino went
outside to smoke another cigarette. Someone from the
same group of men present earlier told Torello that he
could not smoke in front of the bar and that he had to
go around the back of the building by the dumpster.
Torello responded by saying ‘‘that sounds pretty weird’’
that there is a group of people smoking but he cannot
smoke his cigarette. Then he said, ‘‘Anybody planning
to do anything?’’ According to Torello, ‘‘things kind of
hit the fan’’ at that point. Torello used his cell phone
to call his father to come help him.4 While Torello was
still holding his cell phone, a stocky Hispanic man with
‘‘lighter skin’’ and ‘‘short hair’’ walked up to him. ‘‘Fists
started flying,’’ and Torello and the man exchanged
blows. Torello could not make much of a fist because
he still had his cell phone in his hand.
   The two had not been fighting for very long when
another individual came from Torello’s left and hit him
in the head with a ‘‘bat, something metal.’’ Torello did
not get a good look at the bat, and testified that ‘‘it
could have been a pipe, one of the extendo baton
things.’’ Torello tried to grab it but it slid out of his
grasp, and the next swing hit Torello in the head. Torello
lost consciousness for about thirty seconds and fell to
the ground. More than one person continued to beat
Torello with ‘‘bat hits, kicks, [and] punches.’’
   Meanwhile, the defendant had squared up with Corra-
dino, and the two exchanged punches. Out of Torello’s
peripheral vision, he could see the defendant ‘‘in [Corra-
dino’s] face.’’ At some point, Corradino fell on top of
Torello. Torello never saw the defendant with a bat. At
some point, the group of men took off. Torello saw a
few of them leaving in a black BMW, and he believed
that he saw the defendant and Burgos leave together in
a red Corvette.5 Torello, however, was unsure whether
Burgos was involved in the fight or whether he was
present with the group of Hispanic men outside the bar
just before the fight started.
   Edwin Serrano, a friend of the defendant’s father,
who had known the defendant for seven years, testified
at trial to other events leading up to the fight. According
to Serrano, he arrived at the bar at the same time as
the defendant. Later in the evening, Serrano was outside
smoking a cigarette with the defendant when he saw
three white men around twenty-five or twenty-seven
years old walk into the bar. One of the men appeared
intoxicated and said ‘‘something racist against [His-
panic] people.’’ The comment was not directed at any-
one in particular. About twenty minutes later, Serrano
was outside with the defendant smoking another ciga-
rette when he saw the man who he thought had made
the racist comment come outside. Serrano then saw
three other men, one of whom had a bat, approach from
Serrano’s left. Serrano was not able to describe the men
because it ‘‘happened so fast.’’ According to Serrano,
the defendant put his hands up and said, ‘‘Whoa, whoa,
whoa, whoa.’’ Serrano went back into the bar and did
not see the fight. The defendant stayed outside.
  Kelsey Henninger was inside the bar when the fight
broke out. Henninger had dated Burgos but the two
were on ‘‘a break,’’ and she did not know that he was
going to be at the bar that night. Henninger knew the
defendant through Burgos, and she knew Torello from
middle school. At some point during the evening, Hen-
ninger saw Burgos and the defendant with a group of
people that she had never seen before.
  Through the bar window, Henninger saw people run-
ning outside and ‘‘a lot of chaos.’’ She went outside and
saw Torello on the ground and vehicles leaving the
parking lot. Henninger testified that she then went back
inside and met Burgos as he was coming in from the
back door of the bar. According to Henninger, Burgos
told her that there was ‘‘a fight.’’ Henninger never saw
the defendant after the fight. Henninger testified that
she and Burgos left the bar together.6
   Officer Henry Browne of the North Branford Police
Department was at a gas station 100 to 200 yards away
from the scene when he was dispatched to the bar for
an ‘‘active fight.’’7 He responded within seconds and
saw two vehicles leaving the property as he arrived.8
A woman yelled to Officer Browne for help, and he
found Corradino and Torello, both of whom were
injured and appeared to be in shock but were able to
answer questions. Corradino was bleeding from a
wound on his head and was ‘‘pacing around.’’ He told
Officer Browne that he was hit in the head. Torello was
lying on the ground and had sustained an injury to his
leg. Torello and Corradino told Officer Browne that
they could not identify who had assaulted them. By this
time, Torello’s father had arrived and was trying to
render aid to him. Paramedics also arrived and began
attending to Torello and Corradino. Officer Browne
spoke with people at the bar.9
   Torello was taken to Yale New Haven Hospital (hospi-
tal), where he underwent surgery for a fractured ankle.10
He told the treating physician that he did not know
whether he had been struck in the ankle or had fallen
on it.
   Sean Anderson, an acting lieutenant and sergeant
in the detective bureau, and his colleague, Detective
Robert Deko, both of the North Branford Police Depart-
ment, began investigating the fight a few days after it
happened. They located the red Corvette that had been
seen leaving the bar,11 obtained a search and seizure
warrant, and had it towed to the police station. Detec-
tive Nieves of the New Haven Police Department pro-
cessed the Corvette. Nieves seized from inside the Cor-
vette a white polo shirt with a diagonal stripe, a pair
of jeans, a Walgreen’s receipt,12 and a bank statement
in the defendant’s name. Both the shirt and jeans had
brown stains on them, and presumptive tests revealed
the presence of blood. A presumptive test on the driver’s
side headrest also revealed the presence of blood.
Nieves took swabs from various areas of the vehicle,
and the clothing and swabs were sent to a laboratory
run by the division of scientific services of the Depart-
ment of Emergency Services and Public Protection (lab-
oratory) to be analyzed for DNA. Buccal swabs from
the defendant, Torello, and Corradino also were sent
to the laboratory.
  Michael Bourke, a DNA analyst with the laboratory,
performed an analysis of and made comparisons
between the DNA profiles generated from the buccal
swabs and the DNA profiles derived from the clothing
and car swabs and prepared a report of his findings.
With respect to the clothing, the defendant was included
as a contributor to the DNA profile generated from the
interior of the shirt collar and the stain on the jeans,
and Torello and Corradino were eliminated as contribu-
tors to both profiles. With respect to the stain on the
shirt, Corradino was included as a contributor, Torello
was eliminated as a contributor, and the comparison
with the defendant was inconclusive.
   Both Corradino and the defendant were included as
contributors to the genetic profiles generated from
swabs taken from the gear shift and driver’s side head-
rests of the Corvette, and Torello was eliminated as
a contributor to both. Corradino was included as a
contributor to the genetic profile generated from a swab
taken from the passenger side armrest, while both Tore-
llo and the defendant were eliminated.
   About two weeks after the fight, Corradino showed
Torello a photograph of the defendant, and Torello iden-
tified the defendant13 as one of the men who had been
involved in the fight.14 In discussions with the police,
Torello shared this information. The defendant was
arrested and charged by way of an amended long form
information dated July 27, 2018. The first count alleged
assault in the first degree of Torello in violation of
General Statutes §§ 53a-8 and 53a-59 (a) (1). The second
count alleged assault in the second degree of Corradino
in violation of §§ 53a-8 and 53a-60 (a) (2), and the third
count alleged conspiracy to commit assault in the first
degree in violation of §§ 53a-48 (a) and 53a-59 (a) (1).
   A trial was held in July and August, 2018. The state
presented the testimony of Torello, Officer Browne,
Lieutenant Anderson, Henninger, Detective Nieves,
Adrienne Socci,15 and Bourke. The defendant presented
the testimony of Serrano. Neither Corradino nor Burgos
testified at trial. The state issued a subpoena to Burgos,
and, although he appeared on the date requested, he
failed to return the next day as instructed. The court
issued a capias for Burgos’ arrest. When he had not
been located the following day, the state rested its case-
in-chief. That same day, the court put on the record the
state’s intention to proceed under a theory of Pinker-
ton16 liability, rather than pursuing a theory of accesso-
rial liability, as to counts one and two. After the parties
informed the court that they had no further evidence,
the trial court denied the defendant’s motion for a judg-
ment of acquittal.
   The jury found the defendant not guilty of the assault
of Torello, count one, but found the defendant guilty
of counts two and three. Thereafter, the court sentenced
the defendant to eight years of incarceration, execution
suspended after five years, followed by three years of
probation, on each count, to run concurrently. This
appeal followed.
   Before turning to the defendant’s claims on appeal,
we set forth the well established principles that guide
our review. ‘‘[A] defendant who asserts an insufficiency
of the evidence claim bears an arduous burden. . . .
[F]or the purposes of sufficiency review . . . we
review the sufficiency of the evidence as the case was
tried . . . . [A] claim of insufficiency of the evidence
must be tested by reviewing no less than, and no more
than, the evidence introduced at trial. . . . In
reviewing a sufficiency of the evidence claim, we apply
a two part test. First, we construe the evidence in the
light most favorable to sustaining the verdict. Second,
we determine whether upon the facts so construed and
the inferences reasonably drawn therefrom the [jury]
reasonably could have concluded that the cumulative
force of the evidence established guilt beyond a reason-
able doubt . . . . This court cannot substitute its own
judgment for that of the jury if there is sufficient evi-
dence to support the jury’s verdict. . . .
   ‘‘[T]he jury must find every element proven beyond
a reasonable doubt in order to find the defendant guilty
of the charged offense, [but] each of the basic and
inferred facts underlying those conclusions need not
be proved beyond a reasonable doubt. . . . If it is rea-
sonable and logical for the jury to conclude that a basic
fact or an inferred fact is true, the jury is permitted to
consider the fact proven and may consider it in combi-
nation with other proven facts in determining whether
the cumulative effect of all the evidence proves the
defendant guilty of all the elements of the crime charged
beyond a reasonable doubt. . . .
   ‘‘Moreover, it does not diminish the probative force
of the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
It is not one fact . . . but the cumulative impact of
a multitude of facts which establishes guilt in a case
involving substantial circumstantial evidence. . . . In
evaluating evidence, the [jury] is not required to accept
as dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [jury] may draw
whatever inferences from the evidence or facts estab-
lished by the evidence [that] it deems to be reasonable
and logical.’’ (Citations omitted; internal quotation
marks omitted.) State v. VanDeusen, 

160 Conn. App.
815

, 822–23, 

126 A.3d 604

, cert. denied, 

320 Conn. 903

,

127 A.3d 187

(2015).
   ‘‘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 conclu-
sion. If that correlation is sufficiently compelling, the
inference is reasonable. 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 reason-
able. At some point, the link between the facts and the
conclusion becomes so tenuous that we call it specula-
tion. When that point is reached is, frankly, a matter
of judgment.’’ (Internal quotation marks omitted.) State
v. Rhodes, 

335 Conn. 226

, 238,      A.3d      (2020).
   ‘‘Finally, on appeal, we do not ask whether there is
a reasonable view of the evidence that would support
a reasonable hypothesis of innocence. We ask, instead,
whether there is a reasonable view of the evidence that
supports the jury’s verdict of guilty.’’ (Internal quotation
marks omitted.) State v. 

VanDeusen, supra

, 160 Conn.
App. 823.
                             I
  The defendant’s first claim on appeal is that there
was insufficient evidence to support his conviction of
conspiracy to commit assault in the first degree. We
agree with the defendant.
   Pursuant to § 53a-48 (a), ‘‘[a] person is guilty of con-
spiracy when, with intent that conduct constituting a
crime be performed, he agrees with one or more per-
sons to engage in or cause the performance of such
conduct, and any one of them commits an overt act in
pursuance of such conspiracy.’’ ‘‘Conspiracy is a spe-
cific intent crime, with the intent divided into two ele-
ments: (a) the intent to agree or conspire and (b) the
intent to commit the offense which is the object of the
conspiracy. . . . Thus, [p]roof of a conspiracy to com-
mit a specific offense requires proof that the conspira-
tors intended to bring about the elements of the con-
spired offense.’’ (Internal quotation marks omitted.)
State v. Allan, 

311 Conn. 1

, 12, 

83 A.3d 326

(2014).
Pursuant to § 53a-59 (a) (1): ‘‘A person is guilty of
assault in the first degree when . . . With intent to
cause serious physical injury to another person, he
causes such injury to such person or to a third person
by means of a deadly weapon or a dangerous instru-
ment . . . .’’
  ‘‘To obtain a conviction for conspiracy to commit
assault in the first degree in violation of §§ 53a-48 (a)
and 53a-59 (a) (1), as charged, the state bore the burden
of proving beyond a reasonable doubt that the defen-
dant (1) intended that conduct constituting the crime
of assault in the first degree be performed, (2) agreed
with one or more persons to engage in or cause the
performance of such conduct and (3) that any one of
those persons committed an overt act in pursuance of
such conspiracy.’’ State v. Wells, 

100 Conn. App. 337

,
347, 

917 A.2d 1008

, cert. denied, 

282 Conn. 919

, 

925
A.2d 1102

(2007). ‘‘[W]hile the state must prove an agree-
ment [to commit assault with a dangerous weapon],
the existence of a formal agreement between the con-
spirators need not be proved because [i]t is only in rare
instances that conspiracy may be established by proof
of an express agreement to unite to accomplish an
unlawful purpose. . . . [T]he requisite agreement or
confederation may be inferred from proof of the sepa-
rate acts of the individuals accused as coconspirators
and from the circumstances surrounding the commis-
sion of these acts. . . . Further, [c]onspiracy can sel-
dom be proved by direct evidence. It may be inferred
from the activities of the accused persons. . . . A con-
spiracy can be formed [however] in a very short time
period . . . .’’ (Citation omitted; internal quotation
marks omitted.) State v. Millan, 

290 Conn. 816

, 826,

966 A.2d 699

(2009).
  On appeal, the defendant argues that ‘‘there is no
evidence, nor any reasonable inference that can be
drawn, that the defendant knew the unidentified person
wielding a bat, much less that he entered into an agree-
ment with that person to cause serious physical injury
to another person.’’ He further maintains that ‘‘the evi-
dence, viewed in the light most favorable to the state,
suggests that the defendant may have exchanged
punches with Corradino, and Corradino’s blood was on
the defendant’s clothing and in his vehicle. A spontane-
ous response to violence coupled with mere presence
does not support a conspiracy conviction.’’
   The state responds by highlighting the ‘‘evidence lead-
ing up to the actual altercation.’’ As argued by the state,
the jury could have credited Serrano’s testimony that
the defendant heard Torello say ‘‘something racist
against [Hispanic] people.’’ The state continues: ‘‘As a
Hispanic man himself, it could be inferred that this
made the defendant angry. In addition, a rational trier
of fact could have credited those portions of Torello’s
testimony that placed Burgos and the defendant
together, along with a group of other, older, Hispanic
looking men.’’17 The state recounts the evidence that,
just prior to the fight, an individual from the group of
Hispanic men told Torello that he could not smoke in
front of the bar, and that Torello responded by asking
if anyone was ‘‘planning to do anything?’’ As argued by
the state, the defendant and his ‘‘compatriots’’ then
attacked Torello and Corradino. The state further
responds that, ‘‘given the fact that this group of men
was at a bar, it is reasonable to infer that they did not
carry the bat into the bar with them and, therefore,
the defendant’s cohort had retrieved the weapon in
anticipation of starting a fight with Torello, in retaliation
for Torello’s previous racist comment.’’ The state con-
tends that ‘‘based on the concerted, simultaneous attack
of Corradino and Torello by the defendant and his
cohorts, it was reasonable to infer that the defendant
and his companions had planned out the attack in
advance.’’
  The state’s version of events, however, relies on a
chain of inferences too tenuous to be reasonably drawn.
There was no evidence presented or any reasonable
inference that could be drawn that there existed a rela-
tionship between the defendant and the unidentified
individual with the bat. Thus, the jury would have been
required to resort to speculation to infer (1) that the
unidentified individual with the bat was the defendant’s
‘‘compatriot’’ or ‘‘cohort,’’ and (2) that the attack was
‘‘concerted.’’ The only evidence in the record with
respect to the bat is found in the testimony of Torello
and Serrano. Torello testified that while he was
exchanging blows with the unidentified man who had
walked up to him, another individual coming ‘‘some-
where from [his] left’’ hit him in the head with the bat.
   We cannot find support for the state’s representation
in its appellate brief, without record citation, that ‘‘the
defendant’s own witness, Serrano, testified that the
defendant saw the bat prior to the actual assault.’’
(Emphasis added.) Because Serrano’s testimony is the
only evidence from which the jury could have inferred
that the defendant saw the bat, we review it in some
detail. In addition to Serrano’s testimony regarding the
racist comment and the individual who he thought had
made such comment come outside the bar, Serrano
testified to the following regarding the bat: ‘‘[A]ll I
remember is three guys coming from this side, basically
one guy with the bat—with a bat started and [the defen-
dant] came and said, Whoa, Whoa, Whoa, Whoa’’; that
the defendant was standing ‘‘right next to’’ Serrano; and
that the defendant ‘‘tried to like break it up and say,
whoa, whoa.’’ On cross-examination, Serrano further
testified: ‘‘Me and [the defendant] was talking, and then
we just seen one gentleman come out, come outside,
went this way—went this way. That’s when three gentle-
man came with a bat. They came with a bat and started
hitting that—the gentleman that went that way . . . .
And [the defendant] said, whoa, whoa, whoa, whoa.’’
Serrano testified that the three men with the bat were
‘‘[b]asically like walking real fast,’’ and that ‘‘it happened
so fast’’ that he did not know what the men looked like.
He further testified that the defendant did not walk to
the three guys with the bat, but stood where he was
and said, ‘‘Whoa, whoa, whoa, whoa.’’
  On redirect, the following colloquy occurred between
defense counsel and Serrano:
   ‘‘Q. [H]ow long did this entire event take place when
you were outside with [the defendant] and you saw this
altercation with the bats? It was pretty fast; right?
  ‘‘A. Yes.
  ‘‘Q. Okay. And how far was [the defendant] from the
person who was being assaulted, when you testified he
had his hands up saying, no, no, no?
  ‘‘A. Basically like where you at.
  ‘‘Q. The distance from me to you?
  ‘‘A. Um-hm.
  ‘‘Q. Okay. And that was [the defendant’s] distance
from the person with the bat; correct?
  ‘‘A. Actually, he was like—he had his hands up and
the guy with the bat was like over here.
  ‘‘Q. Behind him?
  ‘‘A. Yeah.18
  ‘‘Q. And so—
  ‘‘A. And that’s when I went—that’s when I went inside
the bar.
  ‘‘Q. Okay. And when you had testified—When [the
prosecutor] was asking you about witnessing the event
that evening with [the defendant] between the person
being struck, how far away was he from the person
being struck? [The defendant]?
  ‘‘A. Like he would—Like—
  ‘‘Q. It happened pretty quick; right?
  ‘‘A. It was—It was like that.
  ‘‘Q. Okay. Very quick; correct?
  ‘‘A. Um-hm.
  ‘‘Q. Okay. Thank you.’’ (Footnote added.)
    We note that Serrano’s account of the evening was
both internally inconsistent and conflicted with other
evidence in the case. He first testified that he did not
speak to the defendant on the evening of the fight but
later testified that he both spoke with and played pool
with the defendant. He testified that, after the defendant
said, ‘‘Whoa, whoa, whoa, whoa,’’ the defendant went
‘‘right back in the bar’’ but later testified that the defen-
dant remained outside when he went back into the bar.
   Lastly, and most importantly, although Serrano testi-
fied that ‘‘the three gentlemen came with a bat and
started hitting that—the gentleman that went that way,’’
he later acknowledged that he did not see anyone get
hit with a bat.
  The following exchange occurred between the prose-
cutor and Serrano:
  ‘‘Q. And so these three guys, one of them had a
bat; right?
  ‘‘A. Um-hm.
  ‘‘Q. And were they saying something, are they excited
about something?
   ‘‘A. They just came, they was like—and the accident
like happened so fast, that I looked, and I was like, Oh,
and then I went inside.
  ‘‘Q. Yeah. Right. You didn’t want to be around for
that; right?
  ‘‘A. No.
  ‘‘Q. No. And so these three guys with the bat, they
started hitting this other guy; right?
  ‘‘A. I guess.
  ‘‘Q. So you don’t even know?
  ‘‘A. (Laughs.)
  ‘‘Q. You didn’t see the guy?
  ‘‘A. Yeah.
  ‘‘Q. All right. You have to just say no if you don’t mind.
  ‘‘A. Yeah.
  ‘‘Q. All right. Thank you. And so you see three guys
with a bat and you go I don’t want any part of this, you
go back inside; right?
  ‘‘A. Yes.’’
   We recognize that a jury may ‘‘credit part of a witness’
testimony and . . . reject other parts.’’ (Internal quota-
tion marks omitted.) State v. 

Rhodes, supra

, 

335 Conn.
249

–50. Serrano’s testimony places the defendant in
close proximity to the individual with the bat and sug-
gests that the defendant tried to break up the fight by
saying, ‘‘Whoa, whoa, whoa, whoa,’’ but Serrano never
specifically testified that the defendant saw the bat.
Even if the jury reasonably could infer that the defen-
dant saw the bat, on the basis of Serrano’s testimony,
any further inference that the defendant had entered
into an agreement with that unidentified individual
impermissibly would be based on ‘‘possibilities, surmise
or conjecture.’’ (Internal quotation marks omitted.)
State v. Green, 

261 Conn. 653

, 668, 

804 A.2d 810

(2002).
  The defendant relies on two cases from our appellate
courts in support of his contention that the cumulative
force of the evidence is insufficient to establish his guilt.
In Green, our Supreme Court affirmed the judgment
of the Appellate Court setting aside the defendant’s
conviction of conspiracy to commit murder on the
ground of insufficient evidence.

Id., 655–57.

In Green,
several members of a gang, carrying handguns, went
to a housing complex to settle a dispute with the defen-
dant.

Id., 658.

The gang members approached the hous-
ing complex and found the defendant standing and talk-
ing with three people, one of whom, Duane Clark, saw
the gang members approaching and exclaimed, ‘‘Shoot
the motherfucker.’’

Id. A gunfight ensued,

during which
one of the gang members, Tyrese Jenkins, was fatally
wounded.

Id. A witness to

the gunfight testified that he
saw the defendant shoot Jenkins.

Id. The defendant and

Clark were tried together, and the jury found Clark
guilty of criminal possession of a pistol or revolver but
not guilty of murder and conspiracy to commit murder.


Id., 659.

The jury found the defendant guilty of murder
as an accessory, conspiracy to commit murder, and
criminal possession of a pistol or revolver.

Id., 655.

On
appeal, the defendant claimed, inter alia, that there was
insufficient evidence to support his conviction of con-
spiracy to commit murder. This court agreed; see State
v. Green, 

62 Conn. App. 217

, 224, 

774 A.2d 157

(2001);
as did our Supreme Court. See State v. 

Green, supra

,

261 Conn. 673

.
   Our Supreme Court first recognized that the jury
‘‘could not have found that the defendant conspired
with Clark to commit murder because Clark was acquit-
ted of conspiracy to commit murder by the same jury
that convicted the defendant of that offense.’’19

Id., 670.

The court then reviewed the evidence to determine
whether the jury reasonably could have found that the
defendant conspired with the other two people with
whom he was standing and talking, Bobby Cook and
Ryan Baldwin.

Id., 671.

The court found the record
devoid of any evidence of a ‘‘prearranged plan to kill
Jenkins,’’ noting that there was no evidence to establish
that Cook or Baldwin knew about any dispute between
Jenkins’ gang and the defendant.

Id. The court further

determined that the evidence was insufficient to estab-
lish that the defendant and Cook or Baldwin had agreed
to kill Jenkins upon Jenkins’ arrival to the housing com-
plex.

Id. The court explained

that the evidence at trial
had established only ‘‘that the defendant, Cook and
Baldwin simultaneously reached for their guns, appar-
ently in response to Clark’s statement, ‘shoot the moth-
erfucker,’ when Jenkins and his cohorts approached
while wielding their guns.’’

Id. Recognizing that ‘‘[a]

conspiracy can be formed in a very short time period,’’
the court stated that the evidence arguably could sup-
port a finding that the defendant had agreed with Clark
to shoot Jenkins, but, because the jury found Clark not
guilty of the charge of conspiracy to commit murder,
that finding compelled the conclusion that the jury had
rejected the state’s claim that the defendant had con-
spired with Clark to kill Jenkins.

Id.
In Green, the

state argued that the defendant and his
companions were members of a gang and, thus, the
jury reasonably could have inferred that Cook and Bal-
dwin, as members of the same gang as the defendant,
knew of the dispute between the defendant’s alleged
gang and Jenkins’ gang, and that Cook, Baldwin, and
the defendant had agreed to kill Jenkins and his fellow
gang members.

Id., 672.

The court rejected that argu-
ment, stating that the only evidence as to the relation-
ship among Cook, Baldwin, and the defendant sug-
gested that they ‘‘were friends who associated with each
other’’ in the housing complex.

Id. The court summa-

rized the evidence in support of an inference that the
defendant conspired with Cook or Baldwin as follows:
‘‘(1) the defendant, Cook and Baldwin were friends; (2)
the defendant may have had a dispute with certain
members of [Jenkins’] gang, including Jenkins; and (3)
the defendant, Cook and Baldwin simultaneously drew
their guns and started shooting as Jenkins and his fellow
gang members approached, apparently in response to
Clark’s instruction to ‘shoot the motherfucker.’ ’’

Id.,
672–73.

The court found this evidence to constitute ‘‘too
weak a foundation upon which to base an inference of
an agreement, however swiftly formed, to kill Jenkins.’’


Id., 673.

   The defendant also relies on State v. Smith, 36 Conn.
App. 483, 

651 A.2d 744

(1994), cert. denied, 

233 Conn.
910

, 

659 A.2d 184

(1995), in which this court reversed
the defendant’s conviction of conspiracy to commit
assault in the first degree.

Id., 484.

In Smith, the victim,
Walter Traynham, and his two friends confronted Har-
old Smith regarding a motor vehicle accident and shoot-
ing that occurred two weeks earlier.

Id. Harold Smith
also

had two friends with him at the time of the confron-
tation, and the confrontation escalated and one of
Traynham’s friends punched Harold Smith in the face.


Id. Harold Smith went

into a nearby store and returned
with the defendant.

Id., 484–85.

After Traynham’s group
left and walked up the street, the Smith group, which
included the defendant, followed them into a conve-
nience store.

Id., 485.

There was neither a discussion
among the members of the Smith group nor any visible
weapons while they were walking.

Id. When the defen-

dant entered the store, he and Traynham began fighting.


Id. A member of

the Smith group shouted, ‘‘Shoot him,
shoot him,’’ pulled a gun, and began shooting at two
members of Traynham’s group. (Internal quotation
marks omitted.)

Id. At this point,

the defendant drew
a revolver and shot Traynham.

Id. Noting that the

defen-
dant was not present at the initial altercation and the
lack of any evidence suggesting that the defendant knew
that any other person in the Smith group had a gun and
intended to use it to cause serious physical injury to
Traynham, this court found the evidence insufficient to
support an inference that the defendant entered into
an agreement with anyone to commit the crime of
assault in the first degree.

Id., 487.

   As in Smith and Green, the facts in the present case
are wholly insufficient to support an inference that the
defendant entered into an agreement with the unidenti-
fied individual with the bat to commit the crime of
assault in the first degree. We note that the facts in
Smith, in which the defendant not only knew his alleged
coconspirators but also walked with them down the
road to follow the victim into a store, and those in
Green, in which the defendant’s alleged coconspirators
were friends of his, are even stronger than the facts of
the present case, in which no relationship between the
defendant and the unidentified bat wielding person was
evinced.
  The state argues that the evidence supported a con-
clusion that the defendant ‘‘knew of the bat’s existence
during the course of the assault and continued to partici-
pate.’’ Citing State v. 

VanDeusen, supra

, 

160 Conn. App.
826

–27, the state argues that the jury reasonably could
have inferred that, having seen the bat ‘‘in his cohort’s
possession,’’ the defendant must have realized that he
intended to use it against the victims. As argued by the
state, the defendant’s ‘‘subsequent participation in the
group assault fully supported an inference that he had
the requisite intent to agree with at least one other
person to bring about all the elements of assault in the
first degree.’’ We disagree.
    In VanDeusen, the defendant led her acquaintance,
Charles Knowles, who was armed with a handgun, to the
victim’s house to fight the victim. State v. 

VanDeusen,
supra

, 

160 Conn. App. 819

–20. The defendant saw that
Knowles was armed.

Id., 820.

Upon arriving at the vic-
tim’s house, the defendant called the victim and asked
her to come outside.

Id. When the victim

refused to
come outside, Knowles fired his handgun at the house.


Id. One of the

bullets pierced the front door window
and lodged in an interior wall.

Id. The defendant was

convicted of conspiracy to commit assault in the first
degree, attempt to commit assault in the first degree
as an accessory, and risk of injury to a child.

Id., 817.

The defendant appealed to this court claiming, inter
alia, that there was insufficient evidence to support her
conviction.

Id., 823–24.

With respect to her claim that
there was insufficient evidence to prove that she had the
requisite intent that she or another participant caused
serious physical injury to another person, this court
referenced testimony that the defendant admitted that
she had seen the gun behind Knowles’ belt buckle and,
further, that she had seen him transfer it to his lap on
the way to the victim’s house.

Id., 826.

Despite knowl-
edge that he was armed with the gun, the defendant
led Knowles to the house and then called the victim
‘‘in an attempt to lure her’’ outside. (Internal quotation
marks omitted.)

Id., 827.

The defendant later fled the
scene with Knowles, helped him dispose of the gun,
and lied to the police about her involvement.

Id., 827–28.

On the basis of this evidence, this court determined
that the jury could have reasonably inferred that the
defendant possessed the requisite intent.

Id., 828.

  In contrast with VanDeusen, in which the defendant
knew that her acquaintance was armed with a handgun
and continued to lead him to the victim’s house, there
was no evidence in the present case of any relationship
between the defendant and the unidentified individual
with the bat. In the present case, accepting the state’s
position that the jury reasonably could infer that the
defendant saw the unidentified individual with the bat,
and nonetheless continued to exchange punches with
Corradino, would not support a further inference that
the defendant had the requisite intent to agree with at
least one other person to bring about all of the elements
of assault in the first degree. That is, the lack of any
evidence of a relationship between the defendant and
the unidentified individual is fatal to the state’s argu-
ment.
   Moreover, the brief nature of the incident further
supports our conclusion that, even were the jury to
infer that the defendant saw the unidentified individual
with the bat, the defendant’s continued exchange of
punches with Corradino for a short period of time does
not support the inference of an agreement. First, we
note that, according to Torello’s testimony, he already
was exchanging punches with an unidentified man
when the individual approached and hit him with the
bat. Moreover, Serrano was not even able to describe
the men with the bat because ‘‘it happened so fast.’’
Lastly, through the bar window, Henninger saw people
running outside and ‘‘a lot of chaos.’’ Although a con-
spiracy can be formed in a very short time period; see
State v. 

Millan, supra

, 

290 Conn. 826

; the brief nature
of the incident in the present case when considered
together with the lack of any evidence of a prior rela-
tionship between the defendant and the unidentified
individual with the bat, renders the link between the
continued participation in the fight following percep-
tion of the bat and the inference of agreement too tenu-
ous.
   We are mindful that ‘‘the requisite agreement or con-
federation may be inferred from proof of the separate
acts of the individuals accused as coconspirators and
from the circumstances surrounding the commission
of these acts.’’ State v. Crosswell, 

223 Conn. 243

, 256,

612 A.2d 1174

(1992). Our appellate courts have upheld
convictions for conspiracy when the state presented
evidence that the coconspirators acted in concert. See


id. (defendant stood by

silently when gun was displayed
in order to gain entry and then used to intimidate occu-
pants of premises is evidence from which jury might
reasonably have inferred defendant’s acquiescence in
this enlarged criminal enterprise); State v. Faust, 

161
Conn. App. 149

, 168 and n.4, 

127 A.3d 1028

(2015) (evi-
dence sufficient to infer agreement to commit robbery
when two men acted in concert and engaged in coordi-
nated robbery, whereby first man had gun and stayed
with victims, while second man moved throughout
other rooms in store and demanded to know where
cashbox was located), cert. denied, 

320 Conn. 914

, 

131
A.3d 252

(2016); State v. 

VanDeusen, supra

, 160 Conn.
App. 826–27 (with knowledge that coconspirator had
weapon ‘‘at the ready,’’ defendant continued guiding
coconspirator to victim’s house and called victim in
attempt to lure her outside); State v. Elsey, 81 Conn.
App. 738, 747, 

841 A.2d 714

(jury could have based at
least part of its decision regarding conspiracy charges
on defendant’s decision to come to scene of crime with
coconspirators, stay at scene while crimes were com-
mitted and leave scene with coconspirators), cert.
denied, 

269 Conn. 901

, 

852 A.2d 733

(2004).20
  In the present case, we conclude that the jury could
not reasonably infer the requisite agreement from the
proof of the separate acts of the defendant and the
unidentified individual with the bat or from the circum-
stances surrounding the commission of these acts.
Here, there was no evidence presented that the defen-
dant and the unidentified individual with the bat
engaged in any coordinated action or had any relation-
ship whatsoever. Even in the light most favorable to
the state, the cumulative weight of the evidence sug-
gested only that, while the defendant exchanged
punches with Corradino, an unidentified individual beat
Torello with a bat, not that the two did so pursuant to
a mutual plan. Accordingly, the jury would have been
required to resort to speculation to infer the existence
of an agreement.
  On the basis of the foregoing, we conclude that the
evidence adduced at trial was insufficient to support
the defendant’s conviction of conspiracy to commit
assault in the first degree.
                             II
   The defendant’s second claim on appeal is that there
is insufficient evidence to sustain his conviction for
assault in the second degree. He argues, inter alia, that
even ‘‘assuming arguendo that an agreement with a still
as yet unidentified third party can be shown, the state
presented no evidence that said individual caused physi-
cal injury to Corradino with a dangerous instrument.’’21
The state agrees with the defendant and acknowledges
that the defendant’s conviction of assault in the second
degree should be reversed. We agree with the parties.
   The defendant was charged in count two with assault
in the second degree as to Corradino, which required
proof beyond a reasonable doubt that Corradino’s injur-
ies were caused by a dangerous instrument. See General
Statutes § 53a-60 (a) (2) (‘‘[a] person is guilty of assault
in the second degree when . . . with intent to cause
physical injury to another person, the actor causes such
injury to such person or to a third person by means of
a deadly weapon or a dangerous instrument other than
by means of the discharge of a firearm’’). As the state
acknowledges, no such evidence was presented. Corra-
dino did not testify at trial. Torello testified that the
defendant squared up with Corradino, and the two
exchanged punches. He further testified that Corradino
had fallen on top of him at some point. Officer Browne
testified that upon his arrival at the scene, he encoun-
tered Corradino, who was bleeding from his head. Offi-
cer Browne testified that Corradino told him that he
was ‘‘hit in the head,’’ and a photograph was entered
into evidence depicting Corradino’s head injury. Officer
Browne additionally testified that both Torello and
Corradino were transported to the hospital. On this
record, we agree with the parties that insufficient evi-
dence was presented to establish that Corradino’s injur-
ies were caused ‘‘by means of a dangerous instrument’’
and, therefore, the defendant’s conviction of assault in
the second degree under § 53a-60 (a) (2) should be
reversed.22
  The judgment is reversed and the case is remanded
with direction to render judgment of acquittal.
      In this opinion the other judges concurred.
  1
     The defendant also was charged with one count of assault in the first
degree in violation of § 53a-59 (a) (1). The jury found him not guilty of
that charge.
   2
     The defendant also raises on appeal a claim of instructional error. Specifi-
cally, he claims that the court, in charging the jury, ‘‘improperly omitted
the scienter requirement that the defendant intended that a dangerous instru-
ment be used to carry out the assault’’ and maintains that the omission
‘‘diluted the state’s burden of proof [and] deprived the defendant of due
process and his right to trial by jury.’’ We do not reach the defendant’s claim
of instructional error because we conclude that the evidence was insufficient
to support the defendant’s conviction and we reverse the judgment of convic-
tion on that basis.
   3
     Burgos’ last name is spelled both ‘‘Bergos’’ and ‘‘Burgos’’ throughout the
transcripts. Throughout this opinion, we refer to him as Burgos.
   4
     Torello had a pistol in the car but he never retrieved it.
   5
     Surveillance video from a nearby business showed a Corvette leaving
the plaza where the bar is located. The video was transferred to a thumb
drive, but it was lost.
   6
     Henninger’s testimony conflicts with Torello’s testimony that he believed
he saw Burgos leave with the defendant.
   7
     The recording of the 911 call reporting the fight no longer existed at the
time of trial.
   8
     Officer Browne was not close enough to identify the two vehicles leaving
the property.
   9
     Officer Browne did not take any photographs of the scene.
   10
      Tests conducted at the hospital revealed the presence of cocaine, benzo-
diazepine, and alcohol in Torello’s system. Xanax is a common prescription
form of a benzodiazepine.
   11
      Officer Browne had received information that the license plate of the
Corvette had two ‘‘B’s’’ in the plate number. Officers were then able to
determine the full plate number. The vehicle was registered to the defen-
dant’s mother.
   12
      The Walgreens receipt was timestamped about six hours before the
fight. The police seized surveillance footage from Walgreens, which footage
showed the Corvette and a man wearing a white polo shirt with a diago-
nal stripe.
   13
      The police did not take any written statements from Torello or Corradino
during their investigation.
   14
      Torello subsequently filed a civil action against the defendant, seeking
money damages.
   15
      Socci is an orthopedic surgeon, who performed surgeries on Torello’s
ankle following the fight.
   16
      ‘‘In Pinkerton v. United States, [

328 U.S. 640

, 647–48, 

66 S. Ct. 1180

, 

90
L. Ed. 1489

(1946)], the United States Supreme Court concluded that under
the federal common law, a conspirator may be held liable for criminal
offenses committed by a coconspirator if those offenses are within the scope
of the conspiracy, are in furtherance of it, and are reasonably foreseeable
as a necessary or natural consequence of the conspiracy. . . . We note that
our Supreme Court first recognized the Pinkerton theory of liability as a
matter of state law in State v. Walton, 

227 Conn. 32

, 40–54, 

630 A.2d 990

(1993).’’ (Citation omitted; internal quotation marks omitted.) State v. Van-
Deusen, 

160 Conn. App. 815

, 843 n.16, 

126 A.3d 604

, cert. denied, 

320 Conn.
903

, 

127 A.3d 187

(2015).
   17
      Serrano testified that both he and the defendant are Hispanic.
   18
      In its appellate brief, the state represents the distance between the
defendant and the three men with the bat to be approximately ten feet. In
support of this distance, the state represents that ‘‘Serrano referred to the
distance between the defendant and the man with the bat by referencing
the distance between the witness box and defense counsel.’’ It further notes
that the prosecutor in closing argument ‘‘referred to this testimony, without
objection, as placing the defendant ‘about ten or twelve feet away’ when
he tried to break up the fight.’’
   19
      We disagree with the state’s contention that the unique circumstances
of Green renders it wholly inapplicable. Although our Supreme Court con-
cluded that the jury necessarily must have rejected the state’s claim that
the defendant had conspired with Clark to kill the victim, our Supreme
Court thereafter analyzed, in the light most favorable to sustaining the
verdict, whether sufficient evidence existed to establish that the defendant
had conspired with the other two people with whom he was standing and
talking. State v. 

Green, supra

, 

261 Conn. 671

.
   20
      The state also points to the defendant’s ‘‘flight from the scene with
one of his compatriots, both of whom tracked Corradino’s blood into the
defendant’s Corvette,’’ as supportive of the conclusion that they had con-
spired to commit assault in the first degree. Although the jury was permitted
to consider whether the defendant’s flight from the bar reflected conscious-
ness of guilt, the evidence regarding the defendant’s leaving the bar, even
when considered together with the other evidence presented during trial,
was too weak a foundation to permit an inference of an agreement. There
was no evidence presented that the passenger in the defendant’s car was
the unidentified individual with the bat. Cf. State v. Young, 

157 Conn. App.
544

, 553, 

117 A.3d 944

(sufficient evidence to establish conspiracy when
defendant and coconspirator arrived at scene of shooting together, fired
weapons simultaneously in same direction, fled scene together, disposed
of weapons beneath porch of nearby building, and attempted to hide in
school), cert. denied, 

317 Conn. 922

, 

118 A.3d 549

(2015). Moreover, Torello
testified that he thought he saw Burgos leave with the defendant. However,
Torello was ‘‘unsure’’ whether Burgos had been involved in the fight or even
whether he was with the group of Hispanic men outside the bar just before
the fight started.
   21
      The defendant also argues that because there was insufficient evidence
to support his conviction of conspiracy to commit assault in the first degree,
the defendant’s conviction of assault in the second degree cannot be sus-
tained as a matter of law. Noting that the state charged him with assault
in the second degree pursuant to a theory of conspiratorial liability under
the Pinkerton doctrine, the defendant maintains that the jury first would
have had to convict him of the underlying charged conspiracy. See footnote
16 of this opinion. We need not address this argument because we agree
with the parties that insufficient evidence was presented to establish that
Corradino’s injuries were caused ‘‘by means of a dangerous instrument,’’
and we reverse his conviction of assault in the second degree on that basis.
   22
      The state argues that the proper remedy should be a remand with
direction to modify the defendant’s conviction to reflect the lesser included
offense of assault in the third degree in violation of General Statutes § 53a-
61 (a) (1). The state acknowledges, however, that this court’s remand order
is controlled by our Supreme Court’s decisions in State v. Petion, 

332 Conn.
472

, 499–507, 

211 A.3d 991

(2019), and State v. LaFleur, 

307 Conn. 115

,
140–42, 

51 A.3d 1048

(2012), pursuant to which the state is not entitled to
a modification of the judgment to reflect a conviction of the highest lesser
included offense supported by the evidence when, as here, the jury was not
instructed on such lesser included offense. The state raises the argument that
‘‘LaFleur, and by extension Petion, were wrongly decided for preservation
purposes.’’ To the extent that the state urges this court, in some form, to
question the correctness of those rulings, we observe, as the state recognizes,
that as an intermediate court of appeals, we are unable to overrule, reevalu-
ate or reexamine controlling precedent of our Supreme Court. See State v.
Johnson, 

143 Conn. App. 617

, 628, 

70 A.3d 168

, cert. denied, 

310 Conn. 950

,

82 A.3d 625

(2013).

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