STATE v. PAUL OVECHKA, SC 17895

Judicial District of Fairfield

 

Criminal; Whether Defendant's Spraying Either Pepper Spray or Weed Killer in a Person's Eyes and Face Constituted the use of a Dangerous Instrument Within the Meaning of General Statutes 53a-60 (a) (2). In 2003, the defendant sprayed Michael Rynich in the eyes and face with either pepper spray or weed killer. As a result of this incident, the defendant was convicted of assault in the second degree pursuant to General Statutes 53a-60 (a) (2). On appeal, he claimed that there was insufficient evidence to support the conviction because the state did not prove that he used a dangerous instrument as required by 53a-60 (a) (2). The Appellate Court agreed (99 Conn. App. 679) and reversed the conviction. In so ruling, the court first noted that under General Statutes 53a-3 (7), a "dangerous instrument" is "any instrument . . . which, under the circumstances in which it is used . . . is capable of causing death or serious physical injury . . ." and that under General Statutes 53a-3 (4), "serious physical injury" is a "physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ. . . ." It then concluded that the evidence proffered by the state established only that Rynich suffered physical injury, that is, skin and eye irritation, not serious physical injury. In coming to this conclusion, it emphasized that Rynich was able to follow the defendant even after he was sprayed in the face and eyes and was able to drive himself home after the incident. It further determined that the state failed to prove that the instrument was dangerous under the circumstances in which it was used in this case. It reasoned that the only evidence proffered by the state in this regard was that the defendant sprayed Rynich in the eyes and face. It opined that this evidence, without more, did not prove that the instrument was capable of causing death or serious physical injury. Based upon the foregoing, the court held that the jury could not have reasonably found that the defendant was guilty of assault in the second degree. In this appeal, the Supreme Court will determine whether the Appellate Court's decision was correct.