State v. Watson

Syllabus

Convicted, following a jury trial, of the crimes of strangulation in the second degree, assault in the third degree, unlawful restraint in the first degree and threatening in the second degree, the defendant appealed to this court. The defendant's conviction resulted from an incident in which the defendant, who had been hanging out and drinking beer with the victim, accompanied the victim to his apartment, where he restrained, assaulted and choked her over the course of several hours, in different areas of the apartment. On appeal, he claimed, inter alia, that the trial court improperly made the determination of whether the charges of assault and unlawful restraint were ''upon the same incident'' as the strangulation charge for purposes of the statute ([Rev. to 2015] § 53a- 64bb [b]) that provides that no person shall be found guilty of strangula- tion in the second degree and unlawful restraint or assault ''upon the same incident,'' but that such person may be charged and prosecuted for all three offenses upon the same information. Held: 1. The defendant's unpreserved claim that the determination of whether the charges were ''upon the same incident'' was a question of fact for the jury, not the court, to determine was unavailing; this court has determined previously, under similar factual circumstances, that it was proper for the trial court, rather than the jury, to determine whether the charges were ''upon the same incident'' for purposes of § 53a-64bb (b), and denied the defendant's request that the present case be heard en banc in order to overturn that prior case law. 2. The defendant could not prevail on his claim that the trial court violated § 53a-64bb (b) and his right to be free from double jeopardy when it punished him for assault, unlawful restraint and strangulation, which was based on his claim that the separate charges of assault and unlawful restraint, as charged in the information and based on the evidence, were not established as wholly separate c