STATE v. NA’IM B., 288 Conn. 290 (2008)

952 A.2d 755

(SC 17923)Supreme Court of Connecticut

Norcott, Palmer, Vertefeuille, Zarella and Schaller, Js.

Syllabus
Convicted of the crime of risk of injury to a child arising from his wilful delay in seeking medical treatment for his four month old son after the child’s hand had been severely burned on an electric hair straightener, the defendant appealed to the Appellate Court, claiming, inter alia, that there was insufficient evidence to support his conviction. The Appellate Court concluded that the state presented no direct evidence from which the jury could have found that the defendant had delayed seeking medical attention or that the defendant had known of the child’s injury prior to the time that the child’s mother called for medical assistance after she arrived home. That court also concluded that the state’s claim that its expert testimony had established that the burns would have caused the child to scream and cry and that the child’s crying would have alerted the defendant to the fact that the child had suffered a severe injury was too speculative to support a finding of guilt beyond a reasonable doubt. The Appellate Court reversed the defendant’s conviction, and the state, on the granting of certification, appealed to this court. Held that the Appellate Court improperly concluded that there was insufficient evidence to support the defendant’s conviction of risk of injury to a child, the state having presented substantial circumstantial evidence indicating when the injury must have occurred and that the defendant was aware of the severe injury from which the jury reasonably could have concluded that the defendant wilfully delayed seeking medical attention for the injured child; testimony from the child’s mother and his treating physicians permitted the jury to infer that the injury occurred within a certain time frame, during which the defendant was the sole caregiver, more than two and one-half hours before the mother sought medical attention, and that the defendant was aware of the severe injury because the child would have screamed uncontrollably for a certain period of time when the injury occurred.

Argued April 17, 2008

Officially released August 12, 2008

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Procedural History
Substitute information charging the defendant with two counts of the crime of risk of injury to a child and with the crime of assault in the first degree, brought to the Superior Court in the judicial district of Hartford and tried to the jury before Mullarkey, J.; verdict and judgment of guilty of one count of risk of injury to a child, from which the defendant appealed to the Appellate Court, Flynn, C. J., an Rogers and Stoughton, Js., which reversed the judgment of the trial court and remanded the case with direction to render judgment of not guilty, and the state, on the granting of certification, appealed to this court. Reversed; further proceedings.

Timothy F. Costello, deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Anne Mahoney, senior assistant state’s attorney, for the appellant (state).

Paul W. Summers, assistant public defender, with whom was James B. Streeto, assistant public defender, for the appellee (defendant).

Opinion
NORCOTT, J.

The sole issue in this certified appeal is whether there is sufficient evidence to support the conviction of the defendant, Na’im B., of one count of risk of injury to a child in violation of General Statutes

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§ 53-21 (a) (1).[2] The state appeals, following our grant of certification, [3] from the judgment of the Appellate Court reversing the judgment of conviction, rendered after a jury trial, of risk of injury to a child arising from the defendant’s delay in seeking medical attention for burns suffered by the victim, his four month old son State v. Na’im B., 101 Conn. App. 373, 921 A.2d 679 (2007). On appeal, the state claims that it introduced sufficient evidence to support the defendant’s conviction and that the Appellate Court’s conclusion to the contrary was improper. Specifically, the state contends that the Appellate Court misapplied the appropriate standard of review and did not adequately consider relevant circumstantial evidence in its analysis. We agree with the state, and, therefore, we reverse the judgment of the Appellate Court.

The record reveals the following facts that the jury reasonably could have found, and the relevant procedural history. On the night of January 12, 2003, the victim suffered third degree burns on both the palm and back of his left hand, which were caused by an electric hair straightener. Earlier that same evening, U, the victim’s mother, had used that straightener while preparing to attend a birthday party, but had forgotten to turn it off when she was finished. U left the apartment for the party at 11:30 p.m., leaving the defendant at home with the victim and U’s two other sons, ages

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six and three. The victim was not injured when U left the apartment.

U returned home from the party at approximately 1:15 a.m., and was greeted in the hallway by her three year old son. The victim was not crying when U entered the apartment. U sat with her three year old son in the living room until 3 or 3:30 a.m., at which point she went to the master bedroom and found the defendant and the victim asleep on the bed. U did not hear the victim cry at all during the time she was in the living room. U laid down in the bed with the defendant and the victim, but, before she could fall asleep, the three year old entered the room and climbed into bed with them, waking up the victim and causing him to whine and fuss. U started to play with the victim, at which point she noticed that his left hand did not feel normal and would not respond to her touch. U took the victim to the bathroom, where there was more lighting, and saw that his hand was extremely swollen and had formed a large blister. U began yelling at the sight of the victim’s hand, at which point he started to cry. U called 911 shortly before 4 a.m.

The police arrived at the apartment at approximately 4 a.m. Both the defendant and U informed the police that the victim had not been injured before U had left for the birthday party at 11:30 p.m., and the defendant further stated that he had been with the victim all night long. The defendant was taken to the police station, where he subsequently gave the following four explanations about how the injury had occurred: (1) he accidentally had burned the victim while preparing a bottle; (2) he had burned the victim either with his lighter or a cigarette; (3) the three year old may have burned the victim with the lighter; and (4) the victim may have crawled over the bed and burned himself on the baseboard heater beside the bed. After further questioning,

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the defendant finally claimed that he did not know how the burn had occurred.

The state charged the defendant with two counts of risk of injury to a child in violation of § 53-21 (a) (1), [4] and one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (1).[5]
Following a jury trial, the defendant was convicted of one count of risk of injury to a child for his wilful delay in seeking medical attention for the victim, but he was acquitted of the other two charges. The trial court sentenced the defendant to ten years imprisonment, execution suspended after thirty-five months, followed by five years of probation.

The defendant appealed from the judgment of conviction to the Appellate Court, claiming, inter alia, [6] that the state produced insufficient evidence from which the jury could have concluded that he was guilty beyond

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a reasonable doubt. Id., 374. The Appellate Court agreed with the defendant, and concluded that there was no direct evidence indicating how old the injury was when U called 911, and, therefore, no evidence indicating that there was a delay in seeking medical attention at all. Id., 378. The Appellate Court further concluded that the state had presented insufficient evidence to prove that the defendant was aware of the victim’s injury before U called 911, and that the jury’s inference regarding such awareness was too speculative to support a finding of guilt beyond a reasonable doubt. Id., 379. The Appellate Court reversed the judgment of the trial court, and remanded the case with direction to render judgment of acquittal. Id. This certified appeal followed. See footnote 3 of this opinion.

On appeal, the state claims that the evidence was sufficient to support the defendant’s conviction beyond a reasonable doubt. Specifically, the state claims that the Appellate Court improperly failed to: (1) consider the circumstantial evidence relied upon by the state to support its theory of when the injury occurred; and (2) view the evidence in the light most favorable to sustaining the verdict when it determined that there was insufficient evidence to show a delay in seeking medical attention or that the defendant was aware of the injury before U called 911. In response, the defendant adopts the reasoning of the Appellate Court in claiming that there was no evidence indicating when the injury occurred from which the jury could conclude that there was a delay in seeking medical attention, and that the state’s theory as to the defendant’s awareness of the injury was too speculative based on the evidence adduced at trial. We agree with the state and conclude that the evidence was sufficient to support the defendant’s conviction.

“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test.

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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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“We note that the 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 reasonable 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 combination 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 [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Ledbetter, 275 Conn. 534, 542-43, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006). Nevertheless, “[b]ecause [t]he only kind of an inference recognized by the law is a reasonable one . . . any such inference cannot be based on possibilities, surmise or conjecture. . . . It is axiomatic,

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therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence.” (Internal quotation marks omitted.) State v. Niemeyer, 258 Conn. 510, 518, 782 A.2d 658 (2001).

“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. . . . 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 [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Ledbetter, supra, 275 Conn. 543.

In order to establish the crime of risk of injury to a child under the “situation” prong of § 53-21 (a) (1), the state must prove that the defendant wilfully or unlawfully caused or permitted a child under the age of sixteen years to be placed in a situation where the life or limb of the child was endangered, the health of the child was likely to be injured, or the morals of the child were likely to be impaired.[7]
Conduct is wilful when “done purposefully and with knowledge of [its] likely consequences.” State v. Padua, 273 Conn. 138,161,869 A.2d 192 (2005). A defendant’s failure to act when under a duty to do so, which causes a dangerous situation to exist or continue, may be sufficient to support a conviction under § 53-21 (a) (1). State v. Miranda,

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260 Conn. 93, 117, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002). Because the defendant was charged under § 53-21 (a) (1) with a delay in seeking medical attention, the wilfulness element of the crime required the state to show that the defendant was aware of the victim’s injury and its seriousness, and that the defendant purposefully delayed seeking medical attention after becoming so aware. See id.

I
We begin with the state’s claim that the Appellate Court improperly concluded that the state did not present any evidence as to how old the injury was at the time U called 911, and that the jury, therefore, had “no direct evidence from which to determine whether medical attention to the wound was delayed at all.”[8] (Emphasis added.) State v. Na’im B., supra, 101 Conn. App. 378. Specifically, the state claims that the Appellate Court improperly did not consider circumstantial evidence from U and the state’s experts regarding the chronology of events and the victim’s likely responses to being burned, but relied instead on expert testimony regarding the time that it would take for the victim’s blisters to appear and develop.[9] The state further contends

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that, when the circumstantial evidence upon which it relies is considered cumulatively, and in the light most favorable to sustaining the verdict, it is sufficient to have permitted the jury reasonably to infer that the injury occurred at some point between 11:30 p.m. and 1:15 a.m., at least two hours and forty-five minutes before U called 911. We agree.

We conclude that the state presented substantial circumstantial evidence at trial indicating when the injury must have occurred.[10]
Specifically, it is undisputed that the victim was unharmed when U left the apartment at 11:30 p.m. U testified that she did not hear the victim cry between when she returned home at 1:15 a.m. and when she called 911 at 4 a.m., and that the acoustics in the apartment were such that she would have heard him if he was crying. In addition, Richard Garvey, the victim’s treating physician, testified that the victim would have “screamed bloody murder” when he was burned, and Seth Asser, a pediatrician, testified that the victim would have been “screaming his head off” for up to fifteen minutes after being burned.[11] From this

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evidence the jury reasonably could have inferred that the victim screamed when burned, that U would have heard the scream if it had occurred while she was in the apartment, and that, because she did not hear the victim scream, the injury must have occurred when she was not at home. Viewing this evidence in the light most favorable to sustaining the verdict, we conclude that there was sufficient evidence to support the reasonable inference that the injury occurred between 11:30 p.m. and 1:15 a.m., when U was not at home.[12]

II
We next address the state’s claim that the Appellate Court improperly concluded that the evidence was insufficient to support the reasonable inference that the defendant was aware of the victim’s injury.[13] Se State v. Na’im B., supra, 101 Conn. App. 379. The state claims that the Appellate Court did not construe the state’s evidence in the light most favorable to sustaining the verdict, and that, when so viewed, the evidence was sufficient to support the reasonable inference that the

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defendant was aware of the victim’s injury when it occurred. We agree.

The state introduced a significant amount of circumstantial evidence to prove that the defendant was aware of the victim’s injury when it occurred. In addition to the evidence discussed in part I of this opinion that would have supported the reasonable inference that the victim screamed uncontrollably for up to fifteen minutes when burned, and that any person present in the apartment would have heard those screams, the state offered evidence that the defendant was in the apartment with the victim for the entire night. Although there was no evidence about what the defendant was doing during that time, the evidence did indicate that the defendant is a light sleeper, and that a person in the front living room could hear what was going on in the back of the apartment, even if the television was on. On the basis of this evidence, construed in the light most favorable to sustaining the verdict, we conclude that it was reasonable for the jury to have inferred that the defendant heard the victim cry when the injury took place, and that he was, therefore, aware of the injury from that time on.[14]

We further conclude that the state presented sufficient evidence to permit the jury reasonably to infer

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that the defendant was aware of the seriousness of the victim’s injury. Garvey testified that the appearance of the victim’s hand, which was grotesquely charred and blistered, would have taken between ten to thirty minutes to develop. Asser placed the development of the victim’s blisters even closer to the time of the injury, within three to five minutes from when the burn occurred. Asser further testified that the victim would have screamed uncontrollably for up to fifteen minutes when he was burned. Given that the defendant was the sole caregiver in the apartment during this time, and that he would have heard the victim’s screams, the jury reasonably could have inferred that the defendant knew or should have known of the victim’s injury when he started to cry. From that inference, the jury reasonably could have inferred that the defendant was also aware of the seriousness of the victim’s injury, since the victim’s hand would have developed the severe blister while the victim was crying, or at the very least within minutes from when the victim stopped crying.

Accordingly, the jury reasonably could have inferred that the defendant immediately was aware of the seriousness of the victim’s injury, as it is simply inconceivable that a person within such close proximity to a child whose hand was touched with an instrument capable of reaching 140 degrees Celsius or 280 degrees Fahrenheit would not comprehend the seriousness of the injuries caused thereby. See State v. Zayas, 195 Conn. 611,620, 490 A.2d 68 (1985) (“common sense does not take flight when one enters a courtroom”). The Appellate Court, therefore, improperly concluded that the evidence was insufficient to support the jury’s verdict.

The judgment of the Appellate Court is reversed and the case is remanded to that court for consideration of the defendant’s remaining claims.

In this opinion the other justices concurred.

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