STATE v. MICHAEL D. JONES, SC 18143

Judicial District of Waterbury

 Criminal; Sufficiency of the Evidence; Whether Verdicts on Assault in the First Degree and Assault in the Third Degree Charges were Legally Inconsistent.  The defendant was convicted of assault in the first degree in violation of General Statutes § 53a-59 (a) (3) in connection with an incident in which the victim was struck in the head with a beer bottle.  Section 53a-59 (a) (3) provides that a person is guilty of assault in the first degree 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 . . . ."  On appeal, the defendant claims that the jury's verdict finding him guilty of assault in the first degree was legally inconsistent with its verdict finding him not guilty of assault in the third degree in violation of § 53a-61 (a) (3), which assesses liability when a person, with criminal negligence, causes physical injury to another person by means of a deadly weapon or dangerous instrument.  The defendant contends that criminally negligent assault under § 53a-61 (a) (3) is a lesser included offense of assault in the first degree in violation of § 53a-59 (a) (3) and that he could not have been found to be criminally reckless without having been found criminally negligent.  The defendant also argues that there was insufficient evidence to prove that he recklessly engaged in conduct creating a risk of death or that the circumstances surrounding the crime evinced an extreme indifference to human life.  He claims, for example, that his act of striking the victim with a beer bottle did not constitute a degree of force that was either likely to cause or that would be expected to cause death and that, while the victim did in fact sustain a life-threatening injury, the severity of the injury was exacerbated by the victim's hemophilia, a condition of which the defendant was unaware.  Among the defendant's other claims are that the trial court should have instructed the jury on assault in the third degree in violation of § 53a-61 (a) (2) as a lesser included offense of assault in the first degree, and that the evidence was insufficient to prove that the defendant was not justified in using the force he did in self-defense.