State v. LaFleur

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The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be repro- duced and distributed without the express written per- mission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ******************************************************  STATE OF CONNECTICUT v. STEEVE LAFLEUR (SC 18757) Rogers, C. J., and Palmer, Zarella, McLachlan, Eveleigh, Harper and Vertefeuille, Js.* Argued November 28, 2011—officially released September 28, 2012** Richard E. Condon, Jr., senior assistant public defender, for the appellant (defendant). Melissa L. Streeto, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James G. Clark, former senior assistant state’s attorney, for the appellee (state).  Opinion EVELEIGH, J. A jury found the defendant, Steeve LaFleur, guilty on various charges in two informations, both involving the physical assault of a female victim, which had been joined for trial pursuant to the state’s motion. In the first case, regarding the victim, Larrisha Washington (Washington case), the defendant was found guilty of assault in the third degree in violation of General Statutes § 53a-61 (a),1 a class A misde- meanor, and two separate counts of violating a protec- tive order in violation of General Statutes § 53a-223, a class D felony, and was found not guilty of one addi- tional count of violating a protective order. In the sec- ond case, regarding the victim, Diana Hazard (Hazard case), the defendant was found guilty of assault in the first degree in violation of General Statutes § 53a-59 (a) (1),2 a class B felony, and violation of the conditions of release in the first degree in violation of General Statutes § 53a-222,3 a class D felony. The defendant thereafter pleaded guilty in the second part of the infor- mation in the Hazard case to a charge of being a persis- tent dangerous felony offender pursuant to General Statutes (Rev. to 2007) § 53a-40.4 After the trial court rendered judgment in accordance with the jury’s verdict and the subsequent plea, the defendant appealed,5 claiming that he is entitled to a judgment of acquittal on the charge of assault in the first degree in the Hazard case and a new trial in the Washington case. Specifi- cally, on appeal, the defendant raises the following claims: (1) his conviction of assault in the first degree in the Hazard case must be reversed on the ground that the trial court improperly instructed the jury that ‘‘[a] fist can be a dangerous instrument’’ within the meaning of § 53a-59 (a) (1); (2) if he prevails on his first claim, this court should not only reverse the defendant’s con- viction of assault in the first degree, but also remand the matter to the trial court with direction to render a judgment of acquittal as to that charge, where the defendant claims that, because a fist is not a ‘‘dangerous instrument’’ under § 53a-59 (a) (1), it follows that the state presented insufficient evidence to prove beyond a reasonable doubt that he committed assault in the first degree; (3) the joinder of the Hazard and Washing- ton cases violated the defendant’s due process right to a fair trial, where, under the second factor of the joinder test set forth in State v. Boscarino, 204 Conn. 714, 722–24, 529 A.2d 1260 (1987), the assault in the first degree charge in the Hazard case involved such brutal or shocking conduct that it inflamed the passions of the jury regarding the Washington case, and any jury instructions by the trial court were insufficient to cure the resulting prejudice; and (4) the trial court abused its discretion in admitting Hazard’s entire statement regarding the assault as a prior consistent statement for rehabilitative and contextual purposes when the defendant did not introduce any portion of the state- ment and the entire statement was not relevant contex- tually to the limited areas highlighted during Hazard’s cross-examination. We agree with the defendant as to claims one and two but disagree as to his third claim. Accordingly, we reverse the judgment in the Hazard case and remand that case to the trial court with direc- tion to render judgment of acquittal on all counts, including the persistent dangerous felony offender count. Additionally, we affirm the judgment of the Washington case but vacate the sentence and remand that case for resentencing. In view of our resolution of these claims, it is not necessary for us to reach the defendant’s fourth claim. The jury reasonably could have found the following facts regarding the Hazard case. Hazard met the defen- dant in 2007 and started dating him in June, 2008. She lived with the defendant at his third floor apartment on West Division Street in New Haven for approxi- mately three weeks in the summer of 2008. Thereafter, she moved to a friend’s apartment that was located a couple of blocks from the defendant’s apartment. On August 21, 2008, between midnight and 1 a.m., Hazard was walking home from a deli located at the corner of Dixwell Avenue and Bassett Street in New Haven. While walking on Dixwell Avenue, she came upon the defen- dant, who asked her with a raised and stern voice if she was ‘‘going to stop dealing with him, was that it?’’ When Hazard replied ‘‘yes,’’ the defendant, using his fists, began to assault Hazard. He first hit her very hard on the right side of her nose. Hazard heard her nose crack and felt pressure throughout her face. The defen- dant thereafter hit Hazard many times in the face, until she fell to the ground. While on the ground, the defen- dant kicked her in the abdomen.6 After the defendant left, Hazard remained on the ground for approximately five minutes and then went home to go to sleep. The next day, Hazard went to a police station to report the assault and then went to the emergency room, where she was treated for a number of facial fractures, includ- ing fractures to both bones in her nose, multiple frac- tures of her right eye socket and sinus, and substantial swelling and bruising above and below her right eye and throughout the nasal bridge. She received inpatient treatment for five days at Yale New-Haven Hospital and then stayed at a home in Greenwich for her safety. The jury reasonably could have found the following facts regarding the Washington case. Washington and the defendant had been involved in a five year relation- ship and had one child. Shortly before July 24, 2008, Washington learned that the defendant had impreg- nated another woman. Washington telephoned the defendant at one point to confront him and threaten to take their child to Virginia. On July 24, at approximately 6:30 p.m., the defendant telephoned Washington and asked her to bring their daughter to see him at his apartment. When Washington and her daughter arrived in the vicinity of the defendant’s apartment, Washington was admittedly angry, and she and the defendant exchanged words on Dixwell Avenue. The defendant punched Washington in the right side of her face. Subse- quently, Washington went to the police station and reported that the defendant had punched her in the right side of her face; a police officer noticed a bump on the right side of her face. Additional facts will be set forth as necessary. In the Hazard case, the trial court instructed the jury that the state had charged the defendant with assault in the first degree and had alleged that, acting with the intent to cause serious physical injury, the defendant fractured several of Hazard’s facial bones by punching her repeatedly with his fists, which, under the circum- stances in which they were used, as alleged by the state, constituted a dangerous instrument. The court then par- aphrased the statutory definition of assault in the first degree under § 53a-59 (a) (1), stating, ‘‘[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 by means of a danger- ous instrument.’’ The court’s specific instructions on ‘‘dangerous instrument’’ were as follows: ‘‘ ‘Dangerous instrument’ is defined by statute7 as ‘any instrument, article, or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury.’ It is important to note that the article need not be inherently dangerous. All that is required is that the article was capable of causing death or serious physical injury under the circumstances in which it was used. Any article or substance, without limitation and even though harmless under normal use, may be found by you to be a dangerous instrument if, under the circum- stances of its use or threatened or attempted use, it is readily capable of producing serious physical injury. A fist can be a dangerous instrument if you find that, under the circumstances of its use, it is readily capable of producing serious physical injury or death.’’ I The defendant claims that the trial court denied him his due process right to a properly instructed jury on the essential elements of assault in the first degree under § 53a-59 (a) (1). Specifically, he contends that the court improperly expanded the scope of liability under that section by instructing the jury that ‘‘[a] fist can be a dangerous instrument . . . .’’ The defendant claims that, due to this error, the jury improperly con- victed the defendant of assault in the first degree on the basis of its erroneous belief that a fist could qualify as a dangerous instrument. Both parties recognize that the question of whether a fist is a dangerous instrument under General Statutes § 53a-3 (7) is a matter of first impression in this state. The state urges us to follow the Appellate Court and interpret the word ‘‘instrument’’ in § 53a-3 (7)8 broadly as ‘‘a means whereby something is achieved, performed, or furthered.’’ (Internal quotation marks omitted.) State v. McColl, 74 Conn. App. 545, 554, 813 A.2d 107, cert. denied, 262 Conn. 953, 818 A.2d 782 (2003), quoting Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993). The defendant, however, propounds a narrower definition that is limited to tools and implements that are external to, and separate and apart from, the perpe- trator’s body.9 We agree with the defendant. We begin by setting forth the applicable standard of review. Both sides agree that, with respect to the charge of assault in the first degree, the defendant never raised his claim of instructional error or the specific claim of evidentiary insufficiency that we address in part II of this opinion at trial. Consequently, the defendant requests review of these claims under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).10 The state concedes that both claims are entitled to Golding review because the record is adequate for review and both claims are of constitutional dimension. We agree. The due process clause of the fourteenth amendment to the United States constitution requires that every fact necessary to constitute the crime of which the accused stands charged must by proven beyond a rea- sonable doubt before the accused may be convicted. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). In order to ensure that every fact is proven beyond a reasonable doubt, ‘‘[i]t is, of course, constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged.’’ State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988). ‘‘If justice is to be done in accordance with the rule of law, it is of paramount importance that the court’s instructions be clear, accurate, complete and compre- hensible, particularly with respect to the essential ele- ments of the alleged crime that must be proved by the government beyond a reasonable doubt . . . .’’ (Cita- tions omitted.) United States v. Clark, 475 F.2d 240, 248 (2d Cir. 1973). We must, therefore, construe § 53a- 3 (7) to determine whether it permits an alleged assail- ant’s fist to constitute a dangerous instrument under § 53a-59 (a) (1). Statutory interpretation is a question of law over which this court exercises plenary review. State v. Fernando A., 294 Conn. 1, 13, 981 A.2d 427 (2009). When interpreting a statute, ‘‘[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.’’ (Internal quotation marks omitted.) Picco v. Voluntown, 295 Conn. 141, 147, 989 A.2d 593 (2010). General Statutes § 1-2z11 directs this court to first con- sider the text of the statute and its relationship to other statutes to determine its meaning. If, after such consid- eration, the meaning is plain and unambiguous and does not yield absurd or unworkable results, we shall not consider extratextual evidence of the meaning of the statute. General Statutes § 1-2z; see also Saunders v. Firtel, 293 Conn. 515, 525, 978 A.2d 487 (2009). Only if we determine that the statute is not plain and unambigu- ous or yields absurd or unworkable results may we consider extratextual evidence of its meaning such as ‘‘the legislative history and circumstances surrounding its enactment . . . the legislative policy it was designed to implement . . . its relationship to existing legislation and common law principles governing the same general subject matter . . . .’’ (Internal quotation marks omitted.) Thomas v. Dept. of Developmental Ser- vices, 297 Conn. 391, 399, 999 A.2d 682 (2010). ‘‘The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reason- able interpretation.’’ (Internal quotation marks omit- ted.) Weems v. Citigroup, Inc., 289 Conn. 769, 779, 961 A.2d 349 (2008). ‘‘We presume that the legislature did not intend to enact meaningless provisions. . . . [S]tat- utes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignifi- cant . . . .’’ (Internal quotation marks omitted.) Hou- satonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 303, 21 A.3d 759 (2011). ‘‘[W]hen the statute being construed is a criminal statute, it must be construed strictly against the state and in favor of the accused.’’ State v. Cardwell, 246 Conn. 721, 739, 718 A.2d 954 (1998). ‘‘[C]riminal statutes [thus] are not to be read more broadly than their lan- guage plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant.’’ (Internal quota- tion marks omitted.) State v. Kirk R., 271 Conn. 499, 510, 857 A.2d 908 (2004). Rather, ‘‘penal statutes are to be construed strictly and not extended by implication to create liability which no language of the act purports to create.’’ (Internal quotation marks omitted.) State v. Woods, 234 Conn. 301, 308, 662 A.2d 732 (1995). Further, if, after interpreting a penal provision, there remains any ambiguity regarding the legislature’s intent, the rule of lenity applies. ‘‘It is a fundamental tenet of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment.’’ (Inter- nal quotation marks omitted.) State v. Hinton, 227 Conn. 301, 317, 630 A.2d 593 (1993). In accordance with § 1-2z, we begin our analysis with the text of the statute. Section 53a-3 (7) defines ‘‘ ‘[d]an- gerous instrument,’ ’’ in relevant part, as ‘‘any instru- ment, article or substance which, under the circumstances in which it is used or attempted or threat- ened to be used, is capable of causing death or serious physical injury,12 and includes a ‘vehicle’ as that term is defined in this section and includes a dog that has been commanded to attack . . . .’’ In order for the defendant to be guilty of assault in the first degree, a class B felony, he must have intended to cause serious physical injury to Hazard and caused such injury with a dangerous instrument. See footnote 2 of this opinion. Because the only method of inflicting serious physical injury alleged by the state in the information was ‘‘punching [Hazard] repeatedly in the face with his fists,’’ it follows that, to find the defendant guilty of assault in the first degree, the jury must be able to conclude that the defendant’s fists were a dangerous instrument as defined by § 53a-3 (7). The statutory definition of dangerous instrument does not further define the essential terms therein or ‘‘instrument,’’ ‘‘article’’ or ‘‘substance.’’ In the absence of a definition of terms in the statute itself, ‘‘[w]e may presume . . . that the legislature intended [a word] to have its ordinary meaning in the English language, as gleaned from the context of its use.’’ (Internal quotation marks omitted.) Paul Dinto Electrical Contractors, Inc. v. Waterbury, 266 Conn. 706, 725, 835 A.2d 33 (2003). Under such circumstances, ‘‘it is appropriate to look to the common understanding of the term as expressed in a dictionary.’’ (Internal quotation marks omitted.) State v. Fernando A., supra, 294 Conn. 17. There are many dictionary definitions of the term ‘‘instrument,’’ but only a few that are plausible in the context of § 53a-3 (7). An instrument may be ‘‘a means whereby something is achieved, performed, or fur- thered’’; ‘‘one used by another as a means or aid . . . tool’’; and ‘‘implement . . . .’’ Merriam-Webster’s Col- legiate Dictionary (10th Ed. 1993). Although, the term ‘‘article’’ also has many definitions, most of which are clearly inapplicable to § 53a-3 (7), the most plausible among them is: ‘‘a member of a class of things; esp[e- cially] an item of goods. . . .’’ Id. Finally, ‘‘substance’’ is defined as ‘‘physical material from which something is made or which has discrete existence’’; ‘‘matter of particular or definite chemical constitution’’; and ‘‘something (as drugs or alcoholic beverages) deemed harmful and usu[ally] subject to legal restriction. . . .’’ Id. We have observed that ‘‘[§] 53a-3 (7) requires that the circumstances in which the instrument is used be considered to determine its potential as an instrument of death or serious physical injury, but the instrument need not actually cause death or serious physical injury. . . . [Serious physical injury] is but a definitional com- ponent of an essential element. . . . If, however, an instrument has, in fact, caused a serious physical injury, it is considered dangerous ipso facto. . . . Whether an instrument is dangerous and whether a physical injury is serious are questions of fact commit- ted to the province of the jury. See, e.g., State v. Almeda, 211 Conn. 441, 450, 560 A.2d 389 (1989) (serious physical injury); State v. Jones, 173 Conn. 91, 95, 376 A.2d 1077 (1977) (dangerous instrument).’’ (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Ovechka, 292 Conn. 533, 541, 975 A.2d 1 (2009). In accordance with § 1-2z, we continue our analysis by looking to the relationship of the statute to other statutes. A comparison to assault offenses of a lesser degree reveals some limitation on the meaning of the term dangerous instrument. A person is guilty of assault in the second degree, a class D felony, when, ‘‘[w]ith intent to cause serious physical injury to another per- son, he causes such injury to such person or to a third person . . . .’’ General Statutes § 53a-60 (a) (1). The sole difference between assault in the first degree under § 53a-59 (a) (1) and assault in the second degree under § 53a-60 (a) (1) is whether the accused used a dangerous instrument or deadly weapon to inflict serious physical injury. It is self-evident that, under both statutes, the intended serious physical injury must be accomplished through some means capable of causing serious physi- cal injury under the circumstances. If every means by which serious physical injury may be caused could be a ‘‘dangerous instrument,’’ then the mere presence of a serious physical injury would establish that a dangerous instrument caused it. Therefore, such a construction would render the apparent aggravating factor in § 53a- 59 (a) (1) meaningless and superfluous and, as a result, merge the two crimes. Thus, in order to avoid an absurd and unworkable construction, it follows that at least some means capable of causing serious physical injury under the circumstances must be excluded from the category of ‘‘any instrument, article or substance’’ con- tained within the definition of ‘‘ ‘[d]angerous instrument . . . .’ ’’ General Statutes § 53a-3 (7). Similarly, a person is guilty of assault in the second degree under § 53a-60 (a) (2) when, ‘‘with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon13 or a dangerous instrument other than by means of the discharge of a firearm . . . .’’ Thus, in crafting § 53a-60 (a) (2), the legislature relied on an aggravating factor, namely the use of a deadly weapon or a dangerous instrument, to equate a crime of lesser intent and harm, because the physical injury need not be serious in § 53a-60 (a) (2), with a crime of greater intent and injury under § 53a-60 (a) (1). If any means capable of causing serious physical injury under the circumstances is included in the definition of ‘‘danger- ous instrument,’’ however, then the use of a dangerous instrument, an explicit element of the crime under § 53a-60 (a) (2), would be implicit under § 53a-60 (a) (1). See State v. Ovechka, supra, 292 Conn. 541 (‘‘[i]f, however, an instrument has, in fact, caused a serious physical injury, it is considered dangerous ipso facto’’). Thus, a person who intended and caused physical injury by some means capable under the circumstances of causing serious physical injury would be guilty of assault in the second degree regardless of whether the injury intended and caused by the defendant qualified as a serious physical injury. Such a broad construction of ‘‘dangerous instrument’’ would thus eliminate the intended distinction between levels of intent and injury in assault in the second degree under § 53a-60 (a) (1) and (2). Indeed, applying such a broad meaning would lead to similar anomalies under our statutory scheme gov- erning the crime of robbery, which, like our statutory scheme for assault crimes, also relies upon the use or threatened use of a ‘‘dangerous instrument’’ as an aggravating factor to elevate simple robberies to more severe crimes subject to more stringent penalties. All forms of robbery require a larceny by use or threatened use of force. General Statutes § 53a-133.14 A person is guilty of robbery in the third degree, a class D felony, ‘‘when he commits robbery as defined in section 53a- 133.’’ General Statutes § 53a-136 (a). The statutory defi- nition of robbery contained within § 53a-133 makes no reference to the use of a weapon. General Statutes § 53a-133. The display, use or threatened use of a dan- gerous instrument in the course of a robbery is an aggravating factor. Under General Statutes § 53a-135 (a), a person is guilty of robbery in the second degree, a class C felony, when he commits robbery and ‘‘(1) he is aided by another person actually present; or (2) in the course of the commission of the crime or of immediate flight therefrom he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument.’’ Finally, under General Statutes § 53a-134 (a), a defendant is guilty of robbery in the first degree, a class B felony, when he commits robbery and he or another participant in the crime ‘‘(1) [c]auses serious physical injury to any person who is not a partic- ipant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instru- ment; or (4) displays or threatens the use of what he represents by his words or conduct to be a . . . fire- arm . . . .’’ The difference between these crimes is that the per- petrator used or threatened to use an actual dangerous instrument, when committing robbery in the first degree; General Statutes § 53a-134 (a); displayed or threatened the use of what is merely represented to be a dangerous instrument, when committing robbery in the second degree; General Statutes § 53a-135 (a); but, in committing robbery in the third degree; General Stat- utes § 53a-136 (a); used or threatened the use of force. It is the use of the dangerous instrument that increases the penalty for the crimes. General Statutes § 53a-136 (a); see Commission to Revise the Criminal Statutes, Penal Code Comments, Conn. Gen. Stat. Ann. § 53a- 134 (West 2007), commission comment (‘‘[s]imple [third degree] robbery is raised to robbery in the first degree on the basis of any of [the following] aggravating factors . . . being armed with a deadly weapon [i.e. a pistol] or being armed with and threatening the use of a danger- ous instrument [i.e. a club]’’). If any body part could constitute a dangerous instrument, because all robbery involves the use or threat of use of force, it would be impossible to commit robbery without triggering this aggravating factor, thereby collapsing the hierarchical structure that the legislature intended and rendering the third degree robbery statute meaningless. Accord- ingly, we must construe the language concerning ‘‘any instrument, article or substance’’ in the definition of ‘‘ ‘[d]angerous weapon’ ’’ to exclude some means capa- ble of causing serious physical injury under the circum- stances. Although the previous discussion informs us that the legislature did not intend an all encompassing term, we must ascertain with greater clarity what the pertinent term does mean. When determining the legislature’s intended meaning of a statutory word, it also is appro- priate to consider the surrounding words pursuant to the canon of construction noscitur a sociis.15 McCoy v. Commissioner of Public Safety, 300 Conn. 144, 159, 12 A.3d 948 (2011). By using this interpretive aid, the meaning of a statutory word may be indicated, con- trolled or made clear by the words with which it is associated in the statute. State v. Roque, 190 Conn. 143, 152, 460 A.2d 26 (1983). Therefore, in determining the meaning of ‘‘instrument,’’ ‘‘substance’’ and ‘‘article’’ in § 53a-3 (7), we consider the grouping of all three terms. Pursuant to our reading of the assault statutes in the previous paragraphs, we first exclude the definitions that would encompass anything and everything capable of causing serious physical injury. Such a broad defini- tion would also render the references to ‘‘instrument,’’ ‘‘substance’’ and ‘‘article’’ in § 53a-3 (7) meaningless and redundant, as each would be subsumed by the broad definition of the other. Thus, ‘‘instrument’’ may not sim- ply be ‘‘a means whereby something is achieved, per- formed, or furthered . . . .’’ Merriam-Webster’s Collegiate Dictionary, supra. Similarly, ‘‘substance’’ may not be any ‘‘physical material from which some- thing is made or which has discrete existence,’’ or ‘‘mat- ter of particular or definite chemical constitution . . . .’’ Id. What remains are definitions that refer to a tangible item, something separate and apart from the human body. An instrument may be ‘‘one used by another as a means or aid . . . tool’’; and is synony- mous with the word ‘‘implement . . . .’’ Id. ‘‘[A]rticle’’ is ‘‘a member of a class of things; esp[ecially] an item of goods . . . .’’ Id. ‘‘[S]ubstance’’ is ‘‘something (as drugs or alcoholic beverages) deemed harmful and usu[- ally] subject to legal restriction . . . .’’ Id. Many of our sister states have come to the same conclusion. In Ex parte Cobb, 703 So. 2d 871, 877 (Ala. 1996), the Alabama Supreme Court held that body parts are not included within the definition of ‘‘dangerous instrument,’’ noting that such a result was both the majority rule and the conclusion of better reasoned cases. When interpreting a statute very similar to the one which we consider today, the court stated that ‘‘ ‘[a]rticle’ and ‘substance’ are used in [the statute] to denote physical, inanimate objects or items. We con- clude that by associating the word ‘instrument’ with these two words the legislature intended for it to refer to utensils or implements, not parts of the human body.’’ Id., 876. Likewise, in Roney v. Commonwealth, 695 S.W.2d 863, 864 (Ky. 1985), the Kentucky Supreme Court stated that, ‘‘[i]n common usage, hands and feet are not described as substances nor are they regarded as articles.’’ That court, interpreting a similar statutory scheme16 as ours, applied the rule of lenity and con- cluded that the narrower definition of an instrument as a tool or implement, other than a part of the body, was plausible. Id. Similarly, in considering an assault charge predicated on an assailant biting a victim, our sister state of Massachusetts concluded that ‘‘parts of the human body should be removed from consideration as dangerous weapons . . . .’’ Commonwealth v. Davis, 10 Mass. App. 190, 193, 406 N.E.2d 417 (1980). We previously have noted that ‘‘our Penal Code is modeled after the New York Penal Code.’’ State v. Henry, 253 Conn. 354, 363, 752 A.2d 40 (2000). The New York Court of Appeals, in addressing the precise issue before us, stated that ‘‘[i]t is readily apparent, and the [state does] not argue to the contrary, that a part of one’s body is not encompassed by the terms ‘article’ or ‘substance’ as used in the statute. . . . [Moreover] [o]ne’s hands, teeth and other body parts are not, in common parlance, ‘instruments.’ ’’ People v. Owusu, 93 N.Y.2d 398, 400–401, 712 N.E.2d 1228, 690 N.Y.S.2d 863 (1999). In construing the term ‘‘dangerous instrument’’ to exclude the perpetrator’s natural body parts, the Court of Appeals explained that ‘‘[i]ncreased criminal liability arises from the use or threatened use of a dan- gerous instrument because the actor has upped the ante by employing a device to assist in the criminal endeavor . . . .’’ (Citation omitted; emphasis added.) Id., 405. We agree with this reasoning. This construction is not only consistent with the approach taken in a majority of states, but also avoids an absurd or unworkable result when applied to other statutes that employ the term ‘‘dangerous weapon.’’ Under General Statutes § 53a-18 (6) (B),17 a teacher may use reasonable physical force upon a minor under his or her care or supervision to ‘‘obtain possession of a dangerous instrument . . . .’’ Obviously, it would be absurd to conclude that our legislature intended to sug- gest that a teacher may obtain possession of a minor’s body part, even if intended to be used to inflict serious physical injury. Rather, the statute is intended to allow a teacher to use reasonable physical force to obtain possession of some tool or implement that is external to, and separate and apart from, the minor’s body that, under the circumstances, is capable of causing serious physical injury. The state urges this court to adopt a broad definition of ‘‘instrument,’’ namely, a means by which something is achieved, performed or furthered, but fails to demon- strate how such a definition could avoid the absurd results we previously have described. The state agrees that the only difference between assault in the first degree and assault in the second degree is that assault in the first degree requires proof of the use of a dangerous instrument. The state maintains, however, that ‘‘[i]t is neither the definition of ‘dangerous instrument’ nor the inclusion of body parts within that broad definition, that blurs the distinction between the . . . degrees of assault, but, rather, the plain language of the assault statutes themselves, under which the same conduct, causing the same [seriousness of] injury with the same object, might constitute either or both, first and second degree assault.’’ We disagree. Surely the accused is not more culpable for a crime simply because the state elects to charge the defendant under one statute rather than the other, where both crimes consist of identical elements. Rather, the aggravating factor of the use of a dangerous instrument increases culpability because an actor has taken the intermediate action of arming himself and striking his victim with something capable of causing serious physical injury under the circum- stances. If we were to accept the state’s position, a person who caused serious physical injury could always be charged with first degree assault, because the broad definition of instrument would make the second degree assault charge superfluous. In our opinion, such a result would yield an absurd and unworkable result, and would render the assault in the second degree stat- ute, in this regard, superfluous. We must strive in our interpretation of the statutes to avoid such a result. The state also argues that the specific inclusion of a dog, under certain circumstances, within the statutory definition of a dangerous instrument supports its argu- ment that the definition of ‘‘instrument’’ cannot be lim- ited to inanimate objects, because, clearly, a dog is not an inanimate object. In response to this contention, the defendant makes several observations with which we agree. The defendant points out that if the term instru- ment was limited to inanimate items, then the legisla- ture would not have deemed it necessary to specify that a dog ordered to attack can be a dangerous instrument. Further, the defendant argues that the state’s definition of instrument would render the legislature’s inclusion of both ‘‘motor vehicle’’ and ‘‘dog’’ superfluous, as any- thing and everything would fit the definition of instru- ment as a ‘‘means whereby something is achieved . . . .’’ Merriam-Webster’s Collegiate Dictionary, supra. Such a broad definition would also render the statutory references to ‘‘articles’’ and ‘‘substances’’ meaningless and redundant, as these would be subsumed by the broad definition of ‘‘instrument.’’ By contrast, the defen- dant argues, the usage of ‘‘motor vehicle,’’ ‘‘dog,’’ ‘‘arti- cle’’ and ‘‘substance’’ in the definition of dangerous instrument is consistent with our construction of an ‘‘instrument’’ as being a tool or implement that is exter- nal to, and separate and apart from, the perpetrator’s body. The state also relies on the Appellate Court’s adoption of the broad definition of ‘‘instrument’’ in State v. McColl, supra, 74 Conn. App. 554, in which that court held that ‘‘ ‘feet and footwear’ ’’ may be dangerous instruments under some circumstances. McColl, how- ever, provides neither a controlling authority nor a per- suasive argument contrary to our holding today. Moreover, we note that the Appellate Court’s holding is consistent with our opinion to the extent that foot- wear—forcefully wielded by a foot and leg in the same manner as a club wielded by a hand and arm—may survive scrutiny under the narrower definition. Indeed, although the question of whether ‘‘fists can constitute a dangerous instrument under §§ 53a-3 (7) and 53a-59 (a) (1) . . . [is] an issue of first impression in this state’’; State v. Millan, 290 Conn. 816, 824, 966 A.2d 699 (2009) (resolving case without deciding that issue); at least one of our cases suggests a long-standing recognition that body parts cannot be dangerous weap- ons under § 53a-3 (7). In State v. Joyner, 225 Conn. 450, 455–56, 625 A.2d 791 (1993), the defendant had argued that there was insufficient evidence to show that the cause of serious physical injury was a stick rather than his fists. Although we rejected that claim, it is implicit in our holding that the distinction was relevant.18 None of our cases suggest otherwise. If the legislature had intended that absolutely any means whereby something is achieved, performed or furthered, including a part of the human body, would constitute a dangerous instrument, it readily could have used such language in the statute. See Dept. of Public Safety v. Freedom of Information Commission, 298 Conn. 703, 729, 6 A.3d 763 (2010). Clearly, the use of the phrase ‘‘instrument, article or substance’’ conveys the legislative intent that the object used in the assault be in some subset of the entire universe of things. Of all things to exclude from the definition of an aggravating factor in a criminal statute, a natural body part of the defendant seems the most obvious, because a person cannot commit a crime without their body. The use of ‘‘dog that has been commanded to attack’’ as a specific example in § 53a-3 (7) further supports our conclusion that the legislature knows how to convey its intent expressly when a dangerous instrument is not unambig- uously covered by the terms ‘‘instrument, article or substance . . . .’’ Indeed, if the legislature wished to include parts of the defendant’s body in the definition of ‘‘dangerous instrument’’ it certainly could have done so in the same manner that it included the use of the words ‘‘dog’’ or ‘‘motor vehicle,’’ just as some other states have done.19 The absence of any reference to an accused’s body parts in the statute, and the coherent construction yielded under our criminal statutes by applying a narrower reading to the terms actually included, compel us to conclude that the legislative intent is clear and unambiguous. Because we do not find the legislature’s intent ambiguous in this regard, we are unable to follow the example of our sister state of Kentucky in Roney v. Commonwealth, supra, 695 S.W.2d 864, and consider whether to apply the rule of lenity in a construction of the statute. Accordingly, we conclude that the meaning of the term ‘‘dangerous instrument’’ in § 53a-59 (a) (1) is not ambiguous. The statutory definition set forth in § 53a- 3 (7) and the usage of that same term in other statutes clearly indicates that the legislature intended the term ‘‘dangerous instrument’’ to mean a tool, implement or device that is external to, and separate and apart from, the perpetrator’s body. Therefore, we further conclude that the defendant’s conviction of assault in the first degree in the Hazard case must be reversed on the ground that the trial court improperly instructed the jury that ‘‘[a] fist can be a dangerous instrument’’ within the meaning of § 53a-59 (a) (1). II We next turn to the defendant’s second claim. The defendant contends that, in the event he prevails on his instructional claim, this court should reverse h