State v. Gonsalves

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State v. Gonsalves

STATE OF CONNECTICUT v. FRANK GONSALVES
(AC 47606)
Alvord, Suarez and Palmer, Js.

Syllabus

Convicted, after a jury trial, of the crimes of, inter alia, assault in the first
degree as an accessory, conspiracy to commit assault in the first degree and
conspiracy to commit robbery in the first degree, the defendant appealed. The
charges stemmed from an incident in which, after four individuals entered a
house to commit a robbery, one of the perpetrators shot and seriously injured
an occupant of the house, C. The defendant claimed, inter alia, that the evi-
dence was insufficient to support his convictions of all three offenses. Held:

This court reversed the defendant’s conviction with respect to the charge of
assault in the first degree as an accessory, as there was no evidence from which
the jury could have inferred, beyond a reasonable doubt, that the defendant
intended to cause serious physical injury to C, or that he intentionally aided
the perpetrator who did shoot C, which were required elements of the charge.

This court reversed the defendant’s conviction with respect to the charge of
conspiracy to commit assault in the first degree, as there was no evidence to
establish that the defendant had the intent to cause C serious physical injury
or that he intended that a deadly weapon would be used to injure C, thus, the
state necessarily failed to prove that the defendant planned or conspired to
cause C serious physical injury with a deadly weapon.

This court reversed the defendant’s conviction with respect to the charge of
conspiracy to commit robbery in the first degree, as there was no evidence that
the defendant ever formed the specific intent that C would suffer a serious
physical injury during the commission of the robbery and, consequently, there
was also no evidence that the defendant agreed with any other perpetrator
of the robbery to cause serious physical injury to any nonparticipant in the
robbery, including C.

Argued May 20, 2025—officially released April 14, 2026

Procedural History

Substitute information charging the defendant with
the crimes of assault in the first degree, conspiracy to
commit assault in the first degree, robbery in the first
degree and conspiracy to commit robbery in the first
degree, brought to the Superior Court in the judicial
district of Fairfield and tried to the jury before Pavia,
J.; verdict and judgment of guilty, from which the
State v. Gonsalves

defendant appealed to this court. Reversed in part; judg-
ment directed.
Deren Manasevit, assigned counsel, for the appellant
(defendant).
Lena A. Arnold, special deputy state’s attorney, with
whom, on the brief, was Joseph T. Corradino, state’s
attorney, for the appellee (state).

Opinion

PALMER, J. The defendant, Frank Gonsalves, appeals
from the judgment of conviction, rendered after a jury
trial, of assault in the first degree as an accessory in
violation of General Statutes §§ 53a-8 and 53a-59 (a)
(1), conspiracy to commit assault in the first degree in
violation of General Statutes §§ 53a-48 and 53a-59 (a) (1),
and conspiracy to commit robbery in the first degree in
violation of General Statutes §§ 53a-48 and 53a-134.1 On
appeal, the defendant claims that the evidence was insuf-
ficient to support his convictions of all three offenses.
We agree with the defendant and, accordingly, we reverse
the judgment of conviction with respect to each of those
charges.2
The jury reasonably could have found the following
facts. A few nights prior to January 14, 2014, Leah
McNellis visited a house located at 585 Pond Street in
Bridgeport (Pond Street house). McNellis had been at
1
The defendant also was convicted of robbery in the first degree in
violation of § 53a-134 (a) (1). See footnote 18 of this opinion. He has not
appealed from his conviction of that offense, however, and it therefore
is not the subject of this appeal.
2
The defendant also claims that (1) the trial court committed plain
error in its jury instructions on conspiracy to commit assault in the
first degree and conspiracy to commit robbery in the first degree and
(2) his convictions of both conspiracy to commit assault in the first
degree and conspiracy to commit robbery in the first degree violate his
constitutional protection against double jeopardy. Because we agree
with the defendant that the evidence was insufficient to support his
convictions of conspiracy to commit assault in the first degree and
conspiracy to commit robbery in the first degree, we need not address
these additional claims.
State v. Gonsalves

the Pond Street house on several prior occasions where
she engaged in “partying, drinking, doing drugs” and,
on occasion, provided sexual favors for residents of the
house. McNellis knew the victim, Geraldo Costa, who
lived in the house, and she also was acquainted with the
other residents, Marcos Lima, Jose Silverio Ferreira
and Gilvan Gonsalves. Upon McNellis leaving the house
that night to walk back to her apartment, the defendant,
who was driving a Mercury sport utility vehicle, and his
brother, Maurice Orr, stopped to give her a ride.3 On the
ride home, McNellis told the defendant and Orr that the
residents at the Pond Street house kept a considerable
amount of money there and that Costa, in particular,
kept money in his bedroom closet.
On the night of January 14, 2014, the defendant and
Orr returned, unannounced, to McNellis’ residence and
waited in the defendant’s vehicle until she walked out-
side. When she did, the defendant and Orr asked her to
take them to the Pond Street house because they wanted
to break into the house and steal the money that the resi-
dents kept there. Although McNellis preferred not to do
so, she agreed because she “kind of wanted money, too.”
McNellis was uneasy about riding with the defendant
and Orr, however, and she asked them to take her to her
boyfriend’s home so that she could pick up his car and
drive to the Pond Street house herself. The defendant
and Orr agreed and, after McNellis picked up her boy-
friend’s car, they followed her to the Pond Street house.
When they arrived, McNellis parked directly in front of
the Pond Street house and the defendant and Orr parked
across the street, facing in the opposite direction. The
defendant and Orr asked McNellis about the layout of the
house and the location of the money, and she provided
the information as requested. According to McNellis,
she observed that Orr was armed with a black handgun at
this time. The defendant, Orr and two other perpetrators
McNellis did not recognize sent her to gain entry into
3
At the time, McNellis only knew the defendant by his nickname,
Nitty, and Orr by his nickname, MoMo.
State v. Gonsalves

the house, and McNellis knocked on the door and called
out to be let in. Receiving no response, McNellis climbed
in through a window and opened the back door for the
perpetrators. McNellis then walked back to her car and,
shortly before midnight, she observed the defendant, Orr,
and two unknown perpetrators enter the house through
the back door. The defendant had left his vehicle running
with the wheels turned out, pointed toward the road.
According to McNellis, she did not drive away when the
four men entered the house but, rather, remained in her
car at the scene because she was concerned “[f]or not only
the people in the house but people that went in.”
Once inside, one of the intruders broke into the locked
bedroom where Ferriera was sleeping and, brandishing a
knife, demanded money from Ferreira. Ferreira gave the
individual approximately $70 or $80 in cash and a check
for $1000. Damage to Costa’s bedroom door indicated
that force also had been used to enter that bedroom.
One or more of the intruders engaged in an altercation
with Costa in the common hallway that resulted in Costa
sustaining a gunshot wound to his head. The intruders
then fled from the house, taking with them a flat screen
television that was hanging on the wall in the kitchen.
While this was taking place inside the house, Offi-
cers David Uliano and Peter Billings of the Bridgeport
Police Department each responded to a call that there
were several masked men surrounding the Pond Street
house. Upon arrival, Uliano noticed McNellis sitting
in the car parked in front of the house. Before Uliano
got out of his patrol car, he heard gunshots and radioed
Billings. Uliano then approached McNellis and spoke to
her briefly, at which point two men came running out
of the house and down the driveway, in opposite direc-
tions. Uliano and Billings each chased one of the men,
but they were unable to apprehend them. While Uliano
and Billings were pursuing those two perpetrators, the
two other men who had entered the house exited down
the driveway, and they, too, evaded capture. McNellis,
State v. Gonsalves

after observing the four men running from the Pond
Street house, drove away.
Shortly thereafter, paramedics responded to the scene,
and Costa was transported to Saint Vincent’s Hospital,
where a CT scan revealed a skull fracture and bleeding in
the brain. Costa underwent cranial surgery to remove a
portion of his skull. The injuries that Costa suffered are
serious and interrupt his major life functions.
The police towed the abandoned Mercury sport util-
ity vehicle to the identification unit of the Bridgeport
Police Department for processing, and the defendant
was determined to be the registered owner of the vehicle.
The identification unit obtained a search warrant for the
vehicle and seized several items from inside the vehicle,
including an LG cell phone, an iPhone, a photograph of
an individual later identified as Juwan Gonsalves, a util-
ity bill, a bottle of Remy Martin and a cork, a baseball
hat and a black knit hat. On the basis of extracted data
from the cell phones, the police concluded that the LG cell
phone belonged to the defendant and the iPhone belonged
to Orr. In addition, the defendant was included as a
contributor to DNA found around the rim of the Remy
Martin bottle, and Orr was included as a contributor to
the baseball cap found in the vehicle.
The defendant was arrested and charged with assault in
the first degree in violation of § 53a-59 (a) (1), conspiracy
to commit assault in the first degree in violation of §§
53a-48 and 53a-59 (a) (1), robbery in the first degree in
violation of § 53a-134 (a) (1) and conspiracy to commit
robbery in the first degree in violation of §§ 53a-48 and
53a-134.4 Following trial,5 the jury found the defendant
4
Orr also was arrested and charged with these crimes, and the court
granted the state’s motion for joinder of the two cases. After jury
selection, however, Orr entered into a plea agreement with the state
and, consequently, the defendant was tried alone.
5
The witnesses at trial included McNellis, Lima, Ferreira, Gilvan
Gonsalves and Officers Uliano and Billings. Costa had no recollection
about the night in question and was unable to testify. None of the
residents of the Pond Street house who did testify was able to identify
any of the perpetrators.
State v. Gonsalves

guilty of each count. The court thereafter sentenced
the defendant to a total effective sentence of eighteen
years of imprisonment, followed by eleven years of spe-
cial parole.6 This appeal, challenging his convictions of
assault in the first degree, conspiracy to commit assault
in the first degree, and conspiracy to commit robbery in
the first degree, followed.7
Before addressing the merits of the defendant’s claims,
we first set forth the principles applicable to the defen-
dant’s contention that the evidence was insufficient to
support his convictions of all three of those offenses. “In
reviewing a sufficiency of the evidence claim, we apply
a two part test. 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 [jury] reason-
ably could have concluded that the cumulative force of
the evidence established guilt beyond a reasonable doubt.
. . . This court cannot substitute its own judgment for
that of the jury if there is sufficient evidence to support
the jury’s verdict. . . .
“[T]he 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
6
More specifically, the court sentenced the defendant to concurrent
terms of nine years of incarceration and eleven years of special parole
with respect to the charges of assault in the first degree and conspiracy
to commit assault in the first degree, and to concurrent sentences of nine
years of incarceration and eleven years of special parole with respect
to the charges of robbery in the first degree and conspiracy to commit
robbery in the first degree, with the sentences on the defendant’s con-
victions of assault in the first degree and conspiracy to commit assault
in the first degree to run consecutively to the sentences on the convic-
tions of robbery in the first degree and conspiracy to commit robbery
in the first degree, for a total effective sentence of eighteen years of
imprisonment, followed by eleven years of special parole.
7
Due to an oversight, the defendant’s application for waiver of fees
and costs and the appointment of counsel was not granted by the court
until April 10, 2024. On June 5, 2024, this court granted the defen-
dant’s motion for permission to file a late appeal, which had been filed
on April 30, 2024.
State v. Gonsalves

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 cumu-
lative 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 [jury] is not required to accept as
dispositive those inferences that are consistent with the
defendant’s innocence. . . . The [jury] may draw whatever
inferences from the evidence or facts established by the
evidence [that] it deems to be reasonable and logical. . . .
“[O]n appeal, we do not ask whether there is a reason-
able view of the evidence that would support a reason-
able hypothesis of innocence. We ask, instead, whether
there is a reasonable view of the evidence that supports
the jury’s verdict of guilty.” (Internal quotation marks
omitted.) State v. White, 215 Conn. App. 273, 279–80,
283 A.3d 542 (2022), cert. denied, 346 Conn. 918, 291
A.3d 108 (2023). With these principles in mind, we turn
to the defendant’s claims of evidentiary insufficiency.
I
The defendant first contends that the evidence was
insufficient to support his conviction of assault in the
first degree as an accessory under §§ 53a-8 and 53a-59
(a) (1) in connection with the shooting of Costa during
the commission of the robbery at the Pond Street house.8
8
We note that the defendant did not raise his claims of evidentiary
insufficiency at trial and, on appeal, he seeks review of his unpreserved
claims pursuant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d
1188 (2015). Our Supreme Court has “previously recognized that any
defendant found guilty on the basis of insufficient evidence has been
State v. Gonsalves

In support of his claim, the defendant argues that there
was no evidence from which the jury reasonably could
infer, beyond a reasonable doubt, that he intended to
cause serious physical injury to Costa, that he shot Costa
himself, or that he intentionally aided the perpetrator
who did shoot Costa. We agree with the defendant.
We commence our discussion of the defendant’s claim
with a review of the governing statutes and legal prin-
ciples. Section 53a-59 provides in relevant part that
“(a) [a] person is guilty of assault in the first degree
when (1) [w]ith intent to cause serious physical injury to
another person, he causes such injury to such person or to
a third person by means of a deadly weapon or a danger-
ous instrument . . . .” Thus, “[t]o warrant a conviction
for assault in the first degree in violation of § 53a-59 (a)
(1), the state bore the burden of proving the following
elements beyond a reasonable doubt: (1) the defendant
possessed the intent to cause serious physical injury to
another person; (2) the defendant caused serious physical
injury to such person . . . and (3) the defendant caused
such injury by means of a deadly weapon or a dangerous
instrument.” (Internal quotation marks omitted.) State
v. Artis, 136 Conn. App. 568, 580, 47 A.3d 419 (2012),
rev’d, 314 Conn. 131, 101 A.3d 915 (2014).
Because it was unknown which of the four individuals
who entered the house assaulted Costa, the state opted
to proceed on a theory of accessorial liability under §
53a-8,9 and the court instructed the jury on principal
deprived of a constitutional right, and would therefore necessarily meet
the four prongs of Golding. . . . Because there is no independent signifi-
cance of a Golding analysis in this context, we review an unpreserved
sufficiency of the evidence claim as though it had been preserved.”
(Citation omitted; footnote omitted; internal quotation marks omitted.)
State v. Hughes, 341 Conn. 387, 395, 267 A.3d 81 (2021).
9
General Statutes § 53a-8 provides in relevant part: “(a) A person,
acting with the mental state required for commission of an offense, who
solicits, requests, commands, importunes or intentionally aids another
person to engage in conduct which constitutes an offense shall be crimi-
nally liable for such conduct and may be prosecuted and punished as if
he were the principal offender. . . .”
State v. Gonsalves

liability, as well.10 “[F]or the purposes of determining
criminal liability, it is of no consequence whether one is
labeled an accessory or a principal.” (Internal quotation
marks omitted.) State v. White, supra, 215 Conn. App.
280. “[A]ccessorial liability is not a distinct crime, but
only an alternative means by which a substantive crime
may be committed . . . .” (Internal quotation marks
omitted.) State v. Hinton, 352 Conn. 183, 190–91, 336
A.3d 62 (2025).
“[A] conviction under § 53a-8 requires [the state to
prove the defendant’s] dual intent . . . [first] that the
accessory have the intent to aid the principal and [sec-
ond] that in so aiding he intend to commit the offense
with which he is charged. . . . Additionally, one must
knowingly and wilfully assist the perpetrator in the acts
[that] prepare for, facilitate or consummate it.” (Internal
quotation marks omitted.) State v. White, supra, 215
Conn. App. 280–81. In other words, “[t]o be guilty as
an accessory [under § 53a-8] one must share the crimi-
nal intent and community of unlawful purpose with the
perpetrator of the crime and one must knowingly and
wilfully assist the perpetrator in the acts which prepare
for, facilitate or consummate it. . . . [Section] 53a-8
requires the defendant have the specific mental state
required for the commission of the substantive crime. .
. . Consequently, to establish a person’s culpability as an
accessory to a particular offense, the state must prove
that the accessory, like the principal, had committed
each and every element of the offense.” (Emphasis in
original; internal quotation marks omitted.) State v.
Hinton, supra, 352 Conn. 190–91. Moreover, each of
the elements must be proved beyond a reasonable doubt.
10
We note that the operative substitute information did not charge
the defendant as an accessory under § 53a-8. At the charging confer-
ence, however, the prosecutor sought an instruction on accessorial and
accomplice liability, and the court granted the state’s request. The
defendant does not challenge the propriety of the court’s decision to
instruct the jury as the state requested.
State v. Gonsalves

See State v. Gonzalez, 311 Conn. 408, 424, 87 A.3d
1101 (2014).
Furthermore, “Connecticut case law remains consistent
. . . in permitting the imposition of accessorial liability
pursuant to § 53a-8, without requiring that the defen-
dant intend to satisfy the criminal statute’s aggravat-
ing circumstances in cases wherein that aggravating
circumstance does not have a specific mental state and
requires only that the principal act with the general
intent to perform the prescribed act.” State v. Gonzalez,
300 Conn. 490, 506, 15 A.3d 1049 (2011). In the present
case, therefore, “the state was not required to prove that
the defendant intended to cause serious physical injury
by means of a dangerous instrument, or to prove that
the defendant was even aware that another participant
had a dangerous instrument . . . . The use of a dangerous
instrument simply represents the means by which the
defendant is alleged to have participated in causing the
serious physical injury, but to be culpable, the defendant
only needs to have the intent to cause serious physical
injury to another person, not the intent to do so with a
dangerous instrument.” (Citation omitted; emphasis in
original.) State v. Artis, supra, 136 Conn. App. 584–85.
Thus, “[a] person is an accessory to assault in the first
degree by means of [a deadly weapon or] a dangerous
instrument when he has the specific intent to cause seri-
ous physical injury to an individual and solicits, requests,
commands, importunes or intentionally aids another
person, who, using [a deadly weapon or] a dangerous
instrument, causes serious injury to that individual
while also possessing the specific intent to do so.” State v.
Artis, 314 Conn. 131, 159, 101 A.3d 915 (2014). “To act
intentionally, the defendant must have had the conscious
objective [to inflict serious physical injury on the victim] .
. . . Intent is generally proven by circumstantial evidence
because direct evidence of the accused’s state of mind is
rarely available. . . . [T]he defendant’s state of mind at
the time of the shooting may be proven by his conduct
before, during and after the shooting. . . . Such conduct
State v. Gonsalves

yields facts and inferences that demonstrate a pattern
of behavior toward the victim by the defendant that is
probative of the defendant’s mental state.” (Internal
quotation marks omitted.) State v. White, supra, 215
Conn. App. 281.
As noted previously, the defendant has not appealed
from his conviction of robbery in the first degree in
violation of § 53a-134 (a) (1) for his participation in
the robbery at the Pond Street house, and he does not
challenge the sufficiency of the evidence with respect to
that robbery. He also does not dispute either that Costa
suffered a serious physical injury during the commis-
sion of the robbery or that the injury was caused by a
deadly weapon. The defendant, however, does contest
the sufficiency of the state’s proof with respect to the
two other elements of the assault, namely, that, like
the principal, he had the specific intent to cause seri-
ous physical injury to Costa, and that he intentionally
aided and assisted the principal in causing that injury.
More specifically, the defendant maintains, first, that
the evidence did not establish that he formed the intent
to cause serious physical injury to Costa or anyone else
either before or after he entered the Pond Street house.
Second, the defendant argues that there was insufficient
evidence to establish that the shooting was intentional
and not accidental but that, even if the perpetrator who
shot Costa had the specific intent to cause Costa serious
physical injury, there is no proof that the defendant
himself had that intent.
As the state concedes, the evidence was insufficient to
prove that the defendant acted as a principal in Costa’s
shooting because the state’s proof did not establish which
of the four perpetrators of the robbery shot and seriously
wounded Costa. We conclude, as well, that there was
insufficient evidence to support the jury’s guilty verdict
with respect to the offense of assault in the first degree
under an accessory theory of liability in accordance with
§ 53a-8. Although we must consider the evidence in the
manner most favorable to upholding the verdict, the
State v. Gonsalves

defendant’s conviction of assault in the first degree as
an accessory cannot stand even under the most generous
view of that evidence and the inferences that reasonably
may be drawn therefrom.
As we have discussed, from this evidence, the jury
reasonably found that the defendant and the other per-
petrators planned to use force or the threat of force to
accomplish the robbery, and they did so. The evidence
that supports that finding, however, does not also sup-
port the conclusion that, at some unknown time prior
to the shooting, the defendant and one or more of the
other perpetrators planned to cause Costa serious physi-
cal injury and that the defendant aided and assisted the
perpetrator in causing that injury. Rather, the evidence
adduced at trial establishes only that, on the night of
January 14, 2014, the defendant, along with Orr, who
was armed, and two other masked men, entered the Pond
Street house and, using force and threats to intimidate
and overcome resistance by the residents, stole money
and a television set and fled. This evidence, though
sufficient proof of robbery, which is defined as the use
or threatened use of force or compulsion to prevent or
overcome resistance to, or otherwise facilitate, the taking
of property from another person; see General Statutes §
53a-133;11 is not sufficient to establish that the defendant
aided and abetted Costa’s shooting in accordance with
the requirements of § 53a-8.
In support of its contrary claim, the state asserts that
the defendant and the other perpetrators knew that the
Pond Street house was occupied when they entered it
late at night, and the perpetrators’ entry into residents’
bedrooms by breaking down locked doors indicated “that
11
General Statutes § 53a-133 provides: “A person commits robbery
when, in the course of committing a larceny, he uses or threatens the
immediate use of physical force upon another person for the purpose of:
(1) [p]reventing or overcoming resistance to the taking of the property
or to the retention thereof immediately after the taking; or (2) com-
pelling the owner of such property or another person to deliver up the
property or to engage in other conduct which aids in the commission
of the larceny.”
State v. Gonsalves

the defendant and the other perpetrators . . . intended to
overcome any resistance from the occupants of the house
by using force.” In further support of its claim, the state
points to evidence demonstrating that the perpetrators’
activities inside the house took place in a relatively small
area in or near the common hallway where Costa was shot,
thereby permitting the inference that “each perpetra-
tor was aware of the events happening in [that] central
hallway, namely, Costa being confronted by an armed
coventurer and being shot in the head at close range
when he attempted to thwart the robbery.” In addition,
the state relies on the fact that Orr possessed a handgun
during the commission of the robbery and the defendant’s
purported knowledge of that fact; that the defendant
fled the scene immediately after the shooting without
summoning medical assistance for Costa or otherwise
providing aid to him; and that the defendant had parked
his vehicle, which he left running, across from the Pond
Street house in such a manner as to allow for a speedy
escape. Contrary to the state’s contention, none of these
facts, considered individually or together, supports a
finding that the defendant committed assault in the first
degree as an accessory predicated on Costa’s shooting.
On the contrary, there is no evidence from which the
jury reasonably could have found that the defendant
shot Costa, planned to have him shot or even knew that
he would be shot, and there also is no evidence that the
defendant participated in the shooting or otherwise aided
the perpetrator who shot Costa.
The state’s proof demonstrating that the defendant and
the other perpetrators entered the Pond Street house to
commit a robbery late at night, while its residents were
inside, and did so with the intent to use force to overcome
any resistance from the occupants does not support an
inference that the defendant also had the intent to use
the degree of force necessary to cause Costa, or anyone
else in the house, serious physical injury, which, under
our Penal Code, is defined as “physical injury which cre-
ates a substantial risk of death, or which causes serious
disfigurement, serious impairment of health or serious
State v. Gonsalves

loss or impairment of the function of any bodily organ.”
General Statutes § 53a-3 (4). In other words, evidence
of the perpetrators’ willingness to use force to overcome
resistance from the occupants of the house does not
constitute proof that the defendant formed the specific
intent to cause Costa serious physical injury. Nor does
the perpetrators’ intention to overcome any such resis-
tance constitute proof that the defendant participated
in the shooting in any way or that he otherwise aided and
abetted the perpetrator who shot Costa. Indeed, that
general intention does not support an inference that the
defendant was present in the common hallway when the
shooting took place or that he knew about the shooting
before it occurred.
Testimony placing the common hallway where Costa
was shot near the first floor bedrooms does not support
a reasonable inference that the perpetrators, including
the defendant, witnessed the altercation between Costa
and the perpetrator who shot him. Any such inference,
however, would have scant bearing on the issue of the
defendant’s liability as an accessory to the shooting.
Even if the defendant was aware of the altercation that
culminated in the shooting, that fact alone does not suf-
ficiently connect the defendant to the shooting to give
rise to criminal liability. Indeed, even if the defendant
had known in advance that the shooting would take place,
that knowledge by itself would have been insufficient
to establish the defendant’s shared culpability for the
assault without proof that the defendant actively aided,
encouraged or assisted the principal offender; see, e.g.,
State v. Bennett, 307 Conn. 758, 771–72, 59 A.3d 221
(2013) (knowledge that crime will be committed, without
more, is insufficient to prove accessorial liability); and
there is no such proof in the present case.
Orr’s possession of a handgun when he entered the
Pond Street house does not reasonably support the infer-
ence that the defendant intended for Costa to suffer a
serious physical injury and provides no indication of
the defendant’s state of mind with respect to Costa’s
State v. Gonsalves

shooting. First, it is questionable whether the jury rea-
sonably could have inferred that the defendant was aware
that Orr was carrying a handgun merely because McNellis
knew that Orr was armed. McNellis’ brief testimony that
Orr possessed a handgun consisted of only a few sentences
and provided no context that shed any light on whether
the defendant also knew that Orr was armed. Indeed,
McNellis testified only that Orr was in possession of a
black handgun and offered no explanation as to when
she saw the weapon in Orr’s possession, where he was
carrying it, whether it was visible to the defendant when
she observed it, or anything else to support an inference
that the defendant, like McNellis, knew that Orr pos-
sessed a gun.12 Given the paucity of McNellis’ testimony
about Orr’s possession of the handgun, there was little
basis for the jury to conclude the defendant knew that
Orr was armed when the men entered the Pond Street
house. See, e.g., State v. Bemer, 340 Conn. 804, 812,
266 A.3d 116 (2021) (inference cannot be based on mere
possibilities or surmise).
Even if the jury reasonably could have inferred that
the defendant knew that Orr was carrying a handgun,
any such knowledge would be insufficient to support an
inference either that the defendant intended to cause
Costa serious physical injury or that he aided and abet-
ted the perpetrator who inflicted that injury. At most,
the defendant’s knowledge that Orr was armed gave rise
to an inference that Orr might use the handgun during
the commission of the robbery. As we discuss at greater
length hereinafter, however, the mere foreseeability
12
The state asserts that, in light of McNellis’ testimony that she was in
the defendant’s vehicle with both the defendant and Orr on the evening
of the robbery, and because McNellis “did not testify at any point she
saw Orr without the defendant . . . it was entirely reasonable for the
jury to infer that when McNellis saw Orr wielding the firearm . . . the
defendant was present and thus [also saw] the weapon.” Although it is
true that McNellis never testified that she saw Orr outside the defen-
dant’s presence, she also never testified that she, Orr and the defendant
remained together at all times or that, when they were all together, they
were situated in such a manner that it was likely the defendant also saw
Orr in possession of the handgun.
State v. Gonsalves

that a weapon may be used during the commission of a
crime does not equate to the purposeful intent necessary
to establish accessorial liability. See State v. Bennett,
supra, 307 Conn. 771 (foreseeability is not commensurate
with conscious objective to cause result or engage in con-
duct required for accessorial liability). Moreover, there is
no evidence that Orr, as distinguished from any one of the
other perpetrators, shot Costa, nor is there any evidence
that the defendant was present in the common hallway
when Costa was shot or that he knew Costa would be shot.
In fact, because there is so little evidence as to how or why
the shooting occurred, it is by no means certain that the
shooting was intentional rather than accidental. Even if
we assume, however, that Orr intentionally shot Costa,
and the defendant, with knowledge that Orr possessed a
handgun, was present when the shooting took place, those
facts are insufficient to support a finding of accessorial
liability without proof that the defendant shared the
specific intent to cause Costa serious physical injury and
assisted the perpetrator in causing that injury. See, e.g.,
id., 768–73 (evidence that defendant knew that perpetra-
tor who shot victim possessed handgun and defendant
was present when shooting occurred was insufficient to
establish defendant’s liability as accessory in absence of
evidence that defendant had specific intent to kill victim
and aided and abetted perpetrator in connection with
victim’s shooting). As previously discussed, the state
adduced no such evidence.
The fact that the defendant did not seek aid for Costa
after Costa was shot provides little support for the state’s
contention that the evidence was sufficient to establish
that the defendant intended to seriously injure Costa.
In State v. Bennett, supra, 307 Conn. 758, our Supreme
Court addressed and rejected a similar claim under facts
analogous to those of the present case. In Bennett, the
defendant, Calvin Bennett, was convicted of murder as
an accessory for the fatal shooting of the victim, James
Caffrey, by Bennett’s codefendant, Tamarius Maner.
Id., 760–61. The shooting occurred during the com-
mission of a robbery by Bennett and Maner at Caffrey’s
State v. Gonsalves

apartment, after which both men fled without stopping
to render aid to Caffrey. Id., 761–62. In concluding
that Bennett’s failure to assist Caffrey did not support
an inference that Bennett had the intent to kill Caf-
frey, our Supreme Court first acknowledged the general
principle that “[a] jury reasonably can infer an intent to
kill from [a] defendant’s failure to attempt to aid [the
victim] or to show concern for [his] welfare following the
shooting.”13 (Internal quotation marks omitted.) Id.,
770. Our Supreme Court further explained, however,
that “[w]e have stated this principle . . . in the context
of cases in which the defendant inflicted the fatal injury
but claimed no intent to kill . . . or in cases in which such
evidence was used to impeach a defendant’s claim that
he did not share the principal’s intent because of a good
relationship with the victim. . . . We are unaware of any
case, in this or other jurisdictions, however, in which
intent to kill has been inferred solely or even principally
from the defendant’s failure to render aid to the victim.”
(Citations omitted.) Id., 770–71. As in Bennett, there is
no proof that the defendant in the present case inflicted
the injury on Costa or claimed that he had a good rela-
tionship with Costa, and the record otherwise lacks any
indication that the defendant intended to cause Costa
serious physical injury.
Moreover, in concluding that the evidence was insuf-
ficient to sustain Bennett’s conviction of murder as an
accessory, our Supreme Court explained, with respect to
Bennett’s failure to come to Caffrey’s aid, that “[t]he sum
of [Bennett’s] conduct after Maner shot . . . Caffrey—
both acts and omissions—did not provide a sufficient
evidentiary basis to infer his intent to kill. Rather, the
fact that the killing did not deter or delay [Bennett]
from carrying on with the planned burglary leads to the
reasonable inferences that [Bennett] was indifferent
13
Although State v. Bennett, supra, 307 Conn. 758, involved a shooting
that resulted in Caffrey’s death and, therefore, Bennett was charged
with murder as an accessory, this general principle is no less applicable
when, as in the present case, the shooting results in serious physical
injury, rather than death, to the victim.
State v. Gonsalves

to Caffrey’s death or even that Caffrey’s death was a
foreseeable consequence of the [robbery]. Indifference,
however, is not intent.” Id., 771. The reasoning in Ben-
nett is equally applicable here: there is nothing of con-
sequence to be gleaned from the defendant’s apparent
indifference concerning the injuries Costa sustained
because of the shooting. Furthermore, in the present
case, the defendant knew that the other residents of
the Pond Street house, as well as the police—who were
already at the scene when the perpetrators fled—would
come to Costa’s aid, thereby obviating any concern that
Costa would not receive immediate attention unless the
defendant himself provided such aid.
Finally, the state’s reliance on the fact that the defen-
dant parked his car to enable a quick getaway is mis-
placed. Although that fact is probative of the defendant’s
plan to commit a robbery from which his prompt escape
was required, it sheds no light on the defendant’s state
of mind and conduct, if any, with respect to Costa.
It is apparent, therefore, that the evidence, when con-
sidered in its totality and in the light most favorable to
sustaining the verdict, falls short of the proof necessary
for a finding that the defendant committed the offense of
assault in the first degree as an accessory. Our Supreme
Court reached the same decision in State v. Bennett,
supra, 307 Conn. 758, the reasoning and holding of which
are highly pertinent in the present case.
In Bennett, Maner and Bennett together walked up to
the door of a Waterbury apartment to steal money and
drugs and knocked on the door. Id., 761. Bennett was
armed with a loaded handgun, as was Maner, who, in
Bennett’s presence, immediately shot and killed Caffrey
when Caffrey opened the door. Id. Maner and Bennett
entered the apartment and walked past Caffrey’s body
into the bedroom, where Bennett held his gun to the head
of Caffrey’s girlfriend, Samantha Bright, and demanded
money and drugs. Id., 762. The two men then entered the
kitchen, where they encountered Caffrey’s mother. Id.
With Bennett present, Maner fired a shot at Caffrey’s
State v. Gonsalves

mother but missed, and both Bennett and Maner ran out
of the apartment, pushing Caffrey’s mother to the floor as
they fled. Id. Following his arrest and trial, Bennett was
convicted of, inter alia, murder as an accessory in con-
nection with Maner’s fatal shooting of Caffrey. Id., 760.
As noted previously, however, on appeal, our Supreme
Court reversed Bennett’s conviction of murder as an
accessory, concluding that the evidence was insufficient
to support his conviction of that offense.14 Id., 761, 774.
Despite the reversal of Bennett’s conviction of murder
as an accessory on grounds of evidentiary insufficiency,
the facts in Bennett presented a considerably stronger
case for accessorial liability than the evidence in the pres-
ent case. In contrast to Bennett, there is no evidence in
the present case that the defendant was armed; there is
no evidence as to which perpetrator shot Costa; there is
no evidence that the defendant was present when Costa
was shot or that he participated in the shooting in any
way; there is no evidence concerning the nature and
circumstances of the confrontation between Costa and
the perpetrator who shot Costa; and there is no evidence
that the defendant took any violent or threatening action
against Costa or anyone else.
The present case does bear marked similarities to Ben-
nett, however, and, as in Bennett, such similarities all
lead to the conclusion that the evidence was insufficient
to support the defendant’s conviction as an accessory to
Costa’s shooting. In particular, there is no evidence that
the defendant shot Costa; there is no evidence that the
defendant formed the intent to shoot Costa or planned to
have Costa shot, either before or after entering the Pond
Street house; there is no evidence that the defendant
knew that Costa would be shot; there is no evidence that
the defendant aided or assisted the perpetrator who shot
Costa; there is no evidence that the defendant or any of
the other perpetrators had any animus toward Costa or
14
Bennett also was convicted of felony murder, home invasion and
burglary in the first degree, but he did not appeal from those convic-
tions. State v. Bennett, supra, 307 Conn. 760–61.
State v. Gonsalves

any other reason independent of the robbery to harm
Costa or any other resident of the house; and there is
no evidence that the defendant otherwise “solicit[ed],
request[ed], command[ed], importun[ed] or intention-
ally aid[ed]” any one or more of the other perpetrators
in the assault against Costa as required under § 53a-8.
Clearly, if, as our Supreme Court held in Bennett, there
was insufficient evidence to establish Bennett’s liability
as an accessory for the shooting in that case, there can
be no such liability for the shooting in the present case.
The sparse evidence of the defendant’s conduct estab-
lishes only that he entered the Pond Street house with
the intent to commit an armed robbery. Nothing more is
known about his role or involvement in the robbery, let
alone about his role or involvement in Costa’s shooting.
By contrast, in Bennett, the jury had a clear and complete
picture of the nature and extent of Bennett’s violent and
threatening conduct—including the fact that he was with
Maner at the front door of the apartment, armed with a
loaded handgun himself, when Maner shot and killed Caf-
frey—from the moment that he and Maner approached
the apartment until they fled. State v. Bennett, supra,
307 Conn. 761–62. Given the absence of any evidence
as to what, if anything, the defendant in the present
case knew about Costa’s shooting or what, if anything,
the defendant did to aid or facilitate the shooting, it is
apparent that the evidence of Bennett’s involvement in
and potential culpability for the shooting in that case
was appreciably greater than that of the defendant in
the present case. Consequently, Bennett forecloses the
state’s claim that the proof in this case supported a find-
ing that the defendant committed the offense of assault
in the first degree as an accessory.
Finally, Bennett is relevant to the present case for yet
another reason, namely, in that case, our Supreme Court
discussed the difference between accessorial liability
under § 53a-8, which was charged in both Bennett and
the present case, and vicarious liability under Pinkerton
v. United States, 328 U.S. 640, 647–48, 66 S. Ct. 1180,
State v. Gonsalves

90 L. Ed. 1489 (1946), a theory of liability that the state
did not pursue either in Bennett or in this case,15 and
explained why the evidence against Bennett, though
insufficient to support his conviction of murder as an
accessory, likely would have resulted in his conviction
of murder under Pinkerton. State v. Bennett, supra, 307
Conn. 774. That analysis in Bennett is equally germane
to the present case and, therefore, bears repeating here,
as follows.16
“Because [Bennett’s claim] involves [the] sufficiency
of proof to assign criminal responsibility to [him] for a
fatal injury inflicted by another, it is useful to be mind-
ful of the substantive differences between [accessorial
liability and another theory] under which such vicari-
ous liability may arise [namely] Pinkerton liability17 . .
. . [U]nder the Pinkerton doctrine . . . a defendant may
not be convicted of murder unless one of his criminal
associates, acting foreseeably and in furtherance of the
conspiracy, caused the victim’s death with the intent
to do so. Thus . . . under Pinkerton, a coconspirator’s
intent to kill may be imputed to a defendant who does not
share that intent . . . . The rationale for liability under
this theory is that [w]hen the defendant has played a
necessary part in setting in motion a discrete course
of criminal conduct . . . he cannot reasonably complain
that it is unfair to hold him vicariously liable . . . for
the natural and probable results of that conduct that,
although he did not intend, he should have foreseen. .
. . [U]nlike coconspirator liability under Pinkerton . .
15
The prosecutor expressly informed the trial court in the present case
that the state was not seeking to prove its case against the defendant on
the basis of a Pinkerton theory of liability. The record does not disclose
why the state declined to rely on Pinkerton.
16
Although the defendant in Bennett was convicted of murder as an
accessory and the defendant in the present case was convicted of assault
in the first degree as an accessory, that difference is immaterial for
purposes of the following discussion, which is equally applicable to
both offenses.
17
Our Supreme Court in Bennett also discussed felony murder, a third
theory of vicarious liability. See State v. Bennett, supra, 307 Conn.
764. Because felony murder has no applicability to the present case,
however, we have not included that portion of the analysis in Bennett.
State v. Gonsalves

. accessorial liability pursuant to § 53a-8 requires the
defendant to have the specific mental state required for
the commission of the substantive crime . . . [and] the
state must prove that the accessory, like the principal,
had committed each and every element of the offense.”
(Citations omitted; emphasis in original; footnote added;
footnotes omitted; internal quotation marks omitted.)
State v. Bennett, supra, 307 Conn. 764–65.
After explaining the facts of the case as set forth previ-
ously herein, our Supreme Court in Bennett continued:
“Our review of Connecticut appellate cases in which
accessorial liability for murder properly was found under-
scores the deficiency of the proof in the present case.
In every other accessorial liability case, the defendant
had engaged in some act to prepare for, aid, encourage,
facilitate or consummate the murder; it was from such
acts that intent reasonably was inferred. In some cases,
the defendant participated in the killing by inflicting, or
attempting to inflict, harm on the victim while the princi-
pal inflicted the fatal injury, or the evidence was unclear
as to whether the defendant actually inflicted the fatal
injury. . . . In cases lacking such proof, the defendant
otherwise actively participated in the murder through
acts beneficial to the principal such as identifying the
victim, taking the principal to the victim, distracting
the victim, acting as a lookout to prevent interruption
[of] the murder or facilitating the principal’s escape.
. . . Oftentimes, evidence of a motive to kill had been
established. . . .
“No such evidence was proffered [against Bennett]
in the present case. Although it is reasonable to infer
from [Bennett’s] entry into Bright’s bedroom with a
loaded gun immediately following [Caffrey’s] shooting,
simultaneously with Maner, that [Bennett] was in close
proximity when Maner shot Caffrey and that [Bennett]
was in possession of a loaded gun at the time, it would be
sheer speculation to conclude that [Bennett] threatened
Caffrey with the gun or engaged in any act preceding
the shooting that aided, encouraged or facilitated the
State v. Gonsalves

shooting. One who is present when a crime is committed
but neither assists in its commission nor shares in the
criminal intent of its perpetrator cannot be convicted as
an accessory. . . . Mere presence as an inactive companion,
passive acquiescence, or the doing of innocent acts which
may in fact aid the one who commits the crime must be
distinguished from the criminal intent and community
of unlawful purpose shared by one who knowingly and
wilfully assists the perpetrator of the offense in the acts
which prepare for, facilitate, or consummate it. . . .
“Moreover, as we previously have explained, although
a foreseeable risk of death to a victim in the course of a
crime is a basis on which . . . Pinkerton liability may be
established, foreseeability is not commensurate with the
conscious objective to cause death required for accesso-
rial liability. . . . To find intent to kill under the present
circumstances would obliterate a critical distinction
between [the Pinkerton theory] of vicarious liability and
accessorial liability. . . . Moreover, even if we can infer
from [Bennett’s] reaction that he was not surprised by
Maner’s conduct, [m]ere knowledge that a crime is going
to be committed is not sufficient to establish liability as
an accessory if the defendant does not encourage or inten-
tionally aid in the commission of the crime. . . . Silent
acquiescence [by a defendant, even] when [he] knew the
plan [to kill the victim], [is] not enough to make [him]
guilty of [murder as an accessory]. . . . The [s]tate [is]
bound to prove more than that, and show that [he] know-
ingly abetted, counseled or encouraged [the principal] in
his guilty purpose. . . .
“[In addition], there was no motive to kill independent
of the burglary . . . . There also is no evidence to support
an inference that [Bennett] aided or encouraged Maner
with respect to the fatal act or that [Bennett] threatened
Caffrey directly in any manner. . . . In our view, the evi-
dence [against Bennett] would have made a strong case
for murder under a theory of Pinkerton liability, but
falls short of the requisite proof for accessorial liability.
Therefore, because the state did not advance a theory
State v. Gonsalves

of liability under the Pinkerton doctrine, and the state
did not prove beyond a reasonable doubt that [Bennett]
intended to cause [Caffrey’s] death, [Bennett’s] convic-
tion for murder as an accessory cannot stand.” (Cita-
tions omitted; emphasis in original; footnotes omitted;
internal quotation marks omitted.) Id., 768–74.
Precisely the same may be said here. Although the
state’s proof in the present case did not establish the
defendant’s liability as an accessory to assault in the
first degree, the evidence was more than sufficient to
support a conviction under a Pinkerton theory of liabil-
ity. Specifically, a jury reasonably could have found,
in accordance with the requirements of Pinkerton, that
the perpetrator who shot Costa did so foreseeably and in
furtherance of the plan to steal money from the residents
at the Pond Street house. In such circumstances, under
Pinkerton, the conduct and intent of the perpetrator who
shot Costa properly may be imputed to the defendant even
though there is no evidence either that the defendant was
involved in the shooting or that he knew it was going to
happen. Instead of proceeding under a Pinkerton theory
of vicarious liability, however, the state prosecuted the
defendant for the assault under a theory of accessorial
liability. Consequently, the foreseeability that Costa
would be shot and seriously injured was insufficient to
establish that the defendant had the intent to cause Costa
serious physical injury.
The state assumed the burden of establishing beyond
a reasonable doubt that the defendant, no different than
the principal, had the conscious objective of causing
Costa serious physical injury, and that he aided and
abetted the perpetrator in causing that injury. As previ-
ously explained, however, the evidence cannot bear the
weight that the state places on it with respect to either
of those two elements of the offense of assault in the
first degree as an accessory because the inferences that
the state would have us draw from that evidence are
based on speculative possibilities, not reasonable prob-
abilities. See, e.g., State v. Bemer, supra, 340 Conn. 812
State v. Gonsalves

(“[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” (internal
quotation marks omitted)); Vance v. New Haven, 236
Conn. App. 724, 740, 349 A.3d 1116 (2025) (“[u]nder
our law, inferences must be based on probabilities, not
possibilities” (internal quotation marks omitted)). Con-
sequently, as in Bennett—and for essentially the same
reasons identified by our Supreme Court in Bennett—the
state failed to meet its burden of proof in the present case
with respect to the charge of assault in the first degree
as an accessory.
II
The defendant next contends that the evidence was
insufficient to support both his conviction of conspiracy
to commit assault in the first degree in violation of §§ 53a-
48 and 53a-59 (a) (1) and his conviction of conspiracy to
commit robbery in violation of §§ 53a-48 and 53a-134.18
With respect to his conviction of conspiracy to commit
assault in the first degree, the defendant maintains that
the evidence was insufficient to establish, first, that
he entered into an agreement, either before or during
the robbery, to cause Costa serious physical injury, and
second, that he had the specific intent that a deadly
weapon would be used in furtherance of any such agree-
ment to assault Costa. With respect to his conviction
of conspiracy to commit robbery in the first degree, the
defendant asserts that the evidence was insufficient to
prove that he had the specific intent that Costa would
18
General Statutes § 53a-134 provides in relevant part: “(a) A per-
son is guilty of robbery in the first degree when, in the course of the
commission of the crime of robbery as defined in section 53a-133 or of
immediate flight therefrom, he or another participant in the crime: (1)
Causes serious physical injury to any person who is not a participant in
the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens
the use of a dangerous instrument; or (4) displays or threatens the use
of what he represents by his words or conduct to be a pistol, revolver,
rifle, shotgun, machine gun or other firearm, except that in any pros-
ecution under this subdivision, it is an affirmative defense that such
pistol, revolver, rifle, shotgun, machine gun or other firearm was not
a weapon from which a shot could be discharged. . . .”
State v. Gonsalves

suffer a serious physical injury in furtherance of the
agreement to commit the robbery. We agree with the
defendant’s claims.
Pursuant to § 53a-48 (a), “[a] person is guilty of con-
spiracy when, with intent that conduct constituting a
crime be performed, he agrees with one or more persons
to engage in or cause the performance of such conduct,
and any one of them commits an overt act in pursuance
of such conspiracy.” “Conspiracy . . . is a specific intent
crime, with the intent divided into two elements: [1]
the intent to agree or conspire and [2] the intent to com-
mit the offense which is the object of the conspiracy.”
(Internal quotation marks omitted.) State v. Pond, 315
Conn. 451, 467, 108 A.3d 1083 (2015). Furthermore, in
contrast to the offense of assault in the first degree as
an accessory, for purposes of the charge of conspiracy to
commit assault in the first degree, the state was required
to prove both that the defendant entered into an agree-
ment to cause Costa serious physical injury and that a
deadly weapon would be used in furtherance of the com-
mission of the offense. See id., 453 (“to be convicted of
conspiracy, a defendant must specifically intend that
every element of the planned offense be accomplished,
even an element that itself carries no specific intent
requirement”). Similarly, with respect to the charge
of conspiracy to commit robbery in the first degree, the
state was required to prove both that the defendant
entered into an agreement to commit a robbery and that
he intended that Costa would suffer a serious physical
injury in furtherance of the commission of the offense.
See id.
“[Although] the state must prove an agreement, the
existence of a formal agreement between the conspirators
need not be proved because [i]t is only in rare instances
that conspiracy may be established by proof of an express
agreement to unite to accomplish an unlawful purpose.
. . . [T]he requisite agreement or confederation may be
inferred from proof of the separate acts of the individuals
accused as coconspirators and from the circumstances
State v. Gonsalves

surrounding the commission of these acts. . . . Further,
[c]onspiracy can seldom be proved by direct evidence. It
may be inferred from the activities of the accused per-
sons. . . . The state need not prove that the defendant and
a coconspirator shook hands, whispered in each other’s
ear, signed papers, or used any magic words such as we
have an agreement.” (Internal quotation marks omitted.)
State v. VanDeusen, 160 Conn. App. 815, 824, 126 A.3d
604, cert. denied, 320 Conn. 903, 127 A.3d 187 (2015).
To support the defendant’s conviction of conspiracy
to commit assault in the first degree in violation of §§
53a-48 and 53a-59 (a) (1), the state was required to prove
that, at some time prior to Costa’s shooting, either before
or after the defendant entered the Pond Street house,
the defendant agreed with one or more of the other per-
petrators to cause Costa serious physical injury and, in
addition, that the defendant had the specific intent that
a deadly weapon would be used in connection with the
offense. As explained in part I of this opinion, there is
no evidence that the defendant had the intent to cause
Costa serious physical injury, and, in the absence of
such proof, there also is no evidence that he intended
for a deadly weapon to be used to injure Costa. Having
proved no such intent, the state necessarily also failed to
prove that the defendant planned or conspired to cause
Costa serious physical injury with a deadly weapon. That
failure of proof entitles the defendant to the reversal
of his conviction of the offense of conspiracy to commit
assault in the first degree.
With respect to the charge of conspiracy to commit
robbery in the first degree in violation of §§ 53a-48 and
53a-134 (a) (1), the state bore the burden of proving
that the defendant agreed with one or more of the other
perpetrators to commit a robbery at the Pond Street
house, and that, in furtherance of the commission of the
robbery, one or more of the perpetrators of the robbery
would cause serious physical injury to Costa by use of a
deadly weapon. As discussed in part I of this opinion,
although the defendant does not dispute that the evi-
dence was sufficient to establish that he committed a
State v. Gonsalves

robbery and that Costa suffered a serious physical injury
during its commission, there was no evidence that the
defendant ever formed the intent for Costa or anyone
else to suffer a serious physical injury during the com-
mission of the robbery. Consequently, there also is no
evidence that the defendant agreed with any other per-
petrator of the robbery to cause serious physical injury
to any nonparticipant in that offense, including Costa.
Because there was no such evidence, the state failed to
prove that the defendant conspired to commit robbery
in the first degree.
The state, however, raises an alternative argument in
support of its claim that the defendant’s conviction of
conspiracy to commit robbery in the first degree was sup-
ported by sufficient evidence. This claim is predicated on
the fact that, in contrast to the count of the information
charging the defendant with robbery in the first degree
in violation of § 53a-134 (a) (1), the count charging the
defendant with conspiracy to commit robbery in the first
degree alleged that the defendant conspired to violate §
53a-134, without reference to subsection (a) (1) or any of
the other three subsections of § 53a-134. See footnote 18
of this opinion. Relying on the fact that the information
broadly charges the defendant under § 53a-134, with-
out limitation to any specific statutory subsection, the
state asserts that the defendant’s claim of evidentiary
insufficiency must fail with respect to his conviction of
conspiracy to commit robbery in the first degree so long
as the evidence was sufficient to prove the defendant’s
guilt under any one of the subsections of § 53a-134.
The state further maintains that, because the evidence
was sufficient to prove a violation of subsection (a) (2)
of § 53a-134, which provides that a person is guilty of
robbery in the first degree when “he or another partici-
pant” in the robbery “is armed with a deadly weapon,”
and the testimony established that at least one of the
perpetrators, Orr, possessed such a weapon during the
commission of the robbery, the defendant cannot prevail
on his claim of evidentiary sufficiency.
As the defendant points out, however, the trial court
instructed the jury under § 53a-134 (a) (1) only, making
State v. Gonsalves

no mention of any of the other subsections of § 53a-134.
According to the defendant, the court’s instruction
“effectively limited the conspiracy charge to conspiracy
to commit robbery in the first degree under [subsection]
(a) (1) of § 53a-134.” The state disagrees, explaining that,
under long-standing precedent from both our Supreme
Court and this court, the determination of the legal suf-
ficiency of the evidence presented at trial must be based
solely on the evidence presented and the elements of the
crime charged in the information, and not on the court’s
jury instructions. See, e.g., State v. Gradzik, 193 Conn.
35, 38–39, 475 A.2d 269 (1984) (“The trial court cannot
by its instruction change the nature of the crime charged
in the information. . . . Though the [court’s] instruction
incorrectly limited the proof necessary for a conviction,
on review of a sufficiency of the evidence claim this
court looks to see if the evidence supports the verdict on
the crime charged.” (Citation omitted.)); State v. Rus-
sell, 101 Conn. App. 298, 327 n.30, 922 A.2d 191, cert.
denied, 284 Conn. 910, 931 A.2d 934 (2007) (explaining
that there is “[no] authority for the proposition that a
reviewing court, when determining whether sufficient
evidence exists to sustain a conviction, must do so with
reference to the jury charge rather than to the elements
of the crime as statutorily defined and as set out in the
information”).
The state is correct that, on appellate review, resolution
of a claim of evidentiary insufficiency must be based on
a determination of whether the evidence was sufficient
to establish each of the elements of the offense charged
in the information, and not on whether the evidence
was sufficient under the erroneous jury instruction.
In the present case, however, the court instructed the
jury that, to find the defendant guilty of robbery in the
first degree, the state must establish that the defendant
conspired to commit robbery in the first degree in viola-
tion of § 53a-134 (a) (1), and did not instruct the jury
on any of the other three subsections of § 53a-134 (a).
Moreover, the state never sought an instruction that
included those other statutory subsections, nor did the
State v. Gonsalves

state inform the court, after the jury instructions were
given, that its instruction on conspiracy to commit rob-
bery in the first degree was incomplete or inadequate. It
is highly implausible that the state intended to prosecute
the defendant for conspiracy to commit robbery in the
first degree under any or all of the four subsections of §
53a-134 and yet took no corrective action when the court
failed altogether to instruct the jury under subsections
(a) (2), (a) (3) and (a) (4) of § 53a-134.
In such circumstances, it is apparent that the state,
the defendant and the court understood that, although
the information charging conspiracy to commit robbery
in the first degree referred to § 53a-134, the state was
proceeding against the defendant under § 53a-134 (a)
(1), just as it had charged the defendant under § 53a-134
(a) (1) for purposes of the offense of robbery in the first
degree. Indeed, the understanding of the parties and
the court in this regard is further reflected by the fact
that the court, without objection, instructed the jury
on the offense of conspiracy to commit robbery in the
first degree by express reference to the court’s earlier
instruction on the count of the information charging
the defendant with robbery in the first degree in viola-
tion of § 53a-134 (a) (1).19 Thus, in accordance with the
19
The court instructed the jury in relevant part as follows: “The
defendant is charged in count four with conspiracy to commit robbery
in the first degree. You will recall that I previously charged you in
relation to count two on the crime of conspiracy and all the elements
relating thereto. I instruct you to apply that instruction to this count
as well. You will additionally recall that I have previously instructed
you in relation to count three on the crime of robbery in the first degree
and the elements relating thereto, and I instruct you that you shall
apply that instruction to this count as well.
“In summary, as to conspiracy, the state must prove beyond a reason-
able doubt that the defendant had an agreement with one or more persons
to commit robbery in the first degree, at least one of the coconspirators
did an overt act in furtherance of the conspiracy, the defendant specifi-
cally intended to enter into the agreement and intended the conduct and
had the specific intent that each independent element constituting the
crime of robbery in the first degree.
“As to the crime of robbery in the first degree, the state must prove
beyond a reasonable doubt: 1) that the defendant was committing lar-
ceny; 2) that he used physical force or threatened the use of physical
State v. Gonsalves

apparent intent of the parties, the state was required to
prove that the defendant conspired to commit robbery
in the first degree in violation of §§ 53a-48 and 53a-134
(a) (1), and the court properly instructed the jury under
those statutory provisions. Consequently, the state’s
claim that the defendant’s conviction of conspiracy to
commit robbery in the first degree should stand because
the evidence was sufficient to establish a violation of §§
53a-48 and 53a-134 (a) (2) is unavailing.
For the foregoing reasons, the evidence was insufficient
to establish that the defendant committed the offenses
of assault in the first degree as an accessory, conspiracy
to commit assault in the first degree, and conspiracy to
commit robbery in the first degree. Accordingly, the
defendant is entitled to reversal of his convictions of
those offenses and to a judgment of acquittal on each
of the charges.
The judgment is reversed with respect to the defen-
dant’s convictions of assault in the first degree as an
accessory, conspiracy to commit assault in the first
degree, and conspiracy to commit robbery in the first
degree, and the case is remanded with direction to render
a judgment of acquittal on those charges and for resen-
tencing; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
force in preventing or overcoming resistance to the taking of property
or compelling the owner of the property or another person to deliver up
the property or to engage in other conduct that is in the commission of
larceny and that in the course of the robbery the defendant or another
participant in the robbery caused serious physical injury to another
person, in this case, Geraldo Costa, who is not a participant in the crime.
“So, I’ll refer you back to my instructions on both the conspiracy
and the robbery in the first degree, counts two and three, and instruct
you to apply it to this count as well. Again, the state has the burden
of proving each and every element beyond a reasonable doubt. If you
unanimously find that the state has proved beyond a reasonable doubt
each of the elements of the crime of conspiracy to commit robbery in
the first degree, then you shall find the defendant guilty.
“On the other hand, if you unanimously find that the state has failed
to prove beyond a reasonable doubt any of the elements you shall then
find the defendant not guilty.” (Emphasis added.)

************************************************
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************************************************
State v. Gonsalves

STATE OF CONNECTICUT v. FRANK GONSALVES
(AC 47606)
Alvord, Suarez and Palmer, Js.

Syllabus

Convicted, after a jury trial, of the crimes of, inter alia, assault in the first
degree as an accessory, conspiracy to commit assault in the first degree and
conspiracy to commit robbery in the first degree, the defendant appealed. The
charges stemmed from an incident in which, after four individuals entered a
house to commit a robbery, one of the perpetrators shot and seriously injured
an occupant of the house, C. The defendant claimed, inter alia, that the evi-
dence was insufficient to support his convictions of all three offenses. Held:

This court reversed the defendant’s conviction with respect to the charge of
assault in the first degree as an accessory, as there was no evidence from which
the jury could have inferred, beyond a reasonable doubt, that the defendant
intended to cause serious physical injury to C, or that he intentionally aided
the perpetrator who did shoot C, which were required elements of the charge.

This court reversed the defendant’s conviction with respect to the charge of
conspiracy to commit assault in the first degree, as there was no evidence to
establish that the defendant had the intent to cause C serious physical injury
or that he intended that a deadly weapon would be used to injure C, thus, the
state necessarily failed to prove that the defendant planned or conspired to
cause C serious physical injury with a deadly weapon.

This court reversed the defendant’s conviction with respect to the charge of
conspiracy to commit robbery in the first degree, as there was no evidence that
the defendant ever formed the specific intent that C would suffer a serious
physical injury during the commission of the robbery and, consequently, there
was also no evidence that the defendant agreed with any other perpetrator
of the robbery to cause serious physical injury to any nonparticipant in the
robbery, including C.

Argued May 20, 2025—officially released April 14, 2026

Procedural History

Substitute information charging the defendant with
the crimes of assault in the first degree, conspiracy to
commit assault in the first degree, robbery in the first
degree and conspiracy to commit robbery in the first
degree, brought to the Superior Court in the judicial
district of Fairfield and tried to the jury before Pavia,
J.; verdict and judgment of guilty, from which the
State v. Gonsalves

defendant appealed to this court. Reversed in part; judg-
ment directed.
Deren Manasevit, assigned counsel, for the appellant
(defendant).
Lena A. Arnold, special deputy state’s attorney, with
whom, on the brief, was Joseph T. Corradino, state’s
attorney, for the appellee (state).

Opinion

PALMER, J. The defendant, Frank Gonsalves, appeals
from the judgment of conviction, rendered after a jury
trial, of assault in the first degree as an accessory in
violation of General Statutes §§ 53a-8 and 53a-59 (a)
(1), conspiracy to commit assault in the first degree in
violation of General Statutes §§ 53a-48 and 53a-59 (a) (1),
and conspiracy to commit robbery in the first degree in
violation of General Statutes §§ 53a-48 and 53a-134.1 On
appeal, the defendant claims that the evidence was insuf-
ficient to support his convictions of all three offenses.
We agree with the defendant and, accordingly, we reverse
the judgment of conviction with respect to each of those
charges.2
The jury reasonably could have found the following
facts. A few nights prior to January 14, 2014, Leah
McNellis visited a house located at 585 Pond Street in
Bridgeport (Pond Street house). McNellis had been at
1
The defendant also was convicted of robbery in the first degree in
violation of § 53a-134 (a) (1). See footnote 18 of this opinion. He has not
appealed from his conviction of that offense, however, and it therefore
is not the subject of this appeal.
2
The defendant also claims that (1) the trial court committed plain
error in its jury instructions on conspiracy to commit assault in the
first degree and conspiracy to commit robbery in the first degree and
(2) his convictions of both conspiracy to commit assault in the first
degree and conspiracy to commit robbery in the first degree violate his
constitutional protection against double jeopardy. Because we agree
with the defendant that the evidence was insufficient to support his
convictions of conspiracy to commit assault in the first degree and
conspiracy to commit robbery in the first degree, we need not address
these additional claims.
State v. Gonsalves

the Pond Street house on several prior occasions where
she engaged in “partying, drinking, doing drugs” and,
on occasion, provided sexual favors for residents of the
house. McNellis knew the victim, Geraldo Costa, who
lived in the house, and she also was acquainted with the
other residents, Marcos Lima, Jose Silverio Ferreira
and Gilvan Gonsalves. Upon McNellis leaving the house
that night to walk back to her apartment, the defendant,
who was driving a Mercury sport utility vehicle, and his
brother, Maurice Orr, stopped to give her a ride.3 On the
ride home, McNellis told the defendant and Orr that the
residents at the Pond Street house kept a considerable
amount of money there and that Costa, in particular,
kept money in his bedroom closet.
On the night of January 14, 2014, the defendant and
Orr returned, unannounced, to McNellis’ residence and
waited in the defendant’s vehicle until she walked out-
side. When she did, the defendant and Orr asked her to
take them to the Pond Street house because they wanted
to break into the house and steal the money that the resi-
dents kept there. Although McNellis preferred not to do
so, she agreed because she “kind of wanted money, too.”
McNellis was uneasy about riding with the defendant
and Orr, however, and she asked them to take her to her
boyfriend’s home so that she could pick up his car and
drive to the Pond Street house herself. The defendant
and Orr agreed and, after McNellis picked up her boy-
friend’s car, they followed her to the Pond Street house.
When they arrived, McNellis parked directly in front of
the Pond Street house and the defendant and Orr parked
across the street, facing in the opposite direction. The
defendant and Orr asked McNellis about the layout of the
house and the location of the money, and she provided
the information as requested. According to McNellis,
she observed that Orr was armed with a black handgun at
this time. The defendant, Orr and two other perpetrators
McNellis did not recognize sent her to gain entry into
3
At the time, McNellis only knew the defendant by his nickname,
Nitty, and Orr by his nickname, MoMo.
State v. Gonsalves

the house, and McNellis knocked on the door and called
out to be let in. Receiving no response, McNellis climbed
in through a window and opened the back door for the
perpetrators. McNellis then walked back to her car and,
shortly before midnight, she observed the defendant, Orr,
and two unknown perpetrators enter the house through
the back door. The defendant had left his vehicle running
with the wheels turned out, pointed toward the road.
According to McNellis, she did not drive away when the
four men entered the house but, rather, remained in her
car at the scene because she was concerned “[f]or not only
the people in the house but people that went in.”
Once inside, one of the intruders broke into the locked
bedroom where Ferriera was sleeping and, brandishing a
knife, demanded money from Ferreira. Ferreira gave the
individual approximately $70 or $80 in cash and a check
for $1000. Damage to Costa’s bedroom door indicated
that force also had been used to enter that bedroom.
One or more of the intruders engaged in an altercation
with Costa in the common hallway that resulted in Costa
sustaining a gunshot wound to his head. The intruders
then fled from the house, taking with them a flat screen
television that was hanging on the wall in the kitchen.
While this was taking place inside the house, Offi-
cers David Uliano and Peter Billings of the Bridgeport
Police Department each responded to a call that there
were several masked men surrounding the Pond Street
house. Upon arrival, Uliano noticed McNellis sitting
in the car parked in front of the house. Before Uliano
got out of his patrol car, he heard gunshots and radioed
Billings. Uliano then approached McNellis and spoke to
her briefly, at which point two men came running out
of the house and down the driveway, in opposite direc-
tions. Uliano and Billings each chased one of the men,
but they were unable to apprehend them. While Uliano
and Billings were pursuing those two perpetrators, the
two other men who had entered the house exited down
the driveway, and they, too, evaded capture. McNellis,
State v. Gonsalves

after observing the four men running from the Pond
Street house, drove away.
Shortly thereafter, paramedics responded to the scene,
and Costa was transported to Saint Vincent’s Hospital,
where a CT scan revealed a skull fracture and bleeding in
the brain. Costa underwent cranial surgery to remove a
portion of his skull. The injuries that Costa suffered are
serious and interrupt his major life functions.
The police towed the abandoned Mercury sport util-
ity vehicle to the identification unit of the Bridgeport
Police Department for processing, and the defendant
was determined to be the registered owner of the vehicle.
The identification unit obtained a search warrant for the
vehicle and seized several items from inside the vehicle,
including an LG cell phone, an iPhone, a photograph of
an individual later identified as Juwan Gonsalves, a util-
ity bill, a bottle of Remy Martin and a cork, a baseball
hat and a black knit hat. On the basis of extracted data
from the cell phones, the police concluded that the LG cell
phone belonged to the defendant and the iPhone belonged
to Orr. In addition, the defendant was included as a
contributor to DNA found around the rim of the Remy
Martin bottle, and Orr was included as a contributor to
the baseball cap found in the vehicle.
The defendant was arrested and charged with assault in
the first degree in violation of § 53a-59 (a) (1), conspiracy
to commit assault in the first degree in violation of §§
53a-48 and 53a-59 (a) (1), robbery in the first degree in
violation of § 53a-134 (a) (1) and conspiracy to commit
robbery in the first degree in violation of §§ 53a-48 and
53a-134.4 Following trial,5 the jury found the defendant
4
Orr also was arrested and charged with these crimes, and the court
granted the state’s motion for joinder of the two cases. After jury
selection, however, Orr entered into a plea agreement with the state
and, consequently, the defendant was tried alone.
5
The witnesses at trial included McNellis, Lima, Ferreira, Gilvan
Gonsalves and Officers Uliano and Billings. Costa had no recollection
about the night in question and was unable to testify. None of the
residents of the Pond Street house who did testify was able to identify
any of the perpetrators.
State v. Gonsalves

guilty of each count. The court thereafter sentenced
the defendant to a total effective sentence of eighteen
years of imprisonment, followed by eleven years of spe-
cial parole.6 This appeal, challenging his convictions of
assault in the first degree, conspiracy to commit assault
in the first degree, and conspiracy to commit robbery in
the first degree, followed.7
Before addressing the merits of the defendant’s claims,
we first set forth the principles applicable to the defen-
dant’s contention that the evidence was insufficient to
support his convictions of all three of those offenses. “In
reviewing a sufficiency of the evidence claim, we apply
a two part test. 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 [jury] reason-
ably could have concluded that the cumulative force of
the evidence established guilt beyond a reasonable doubt.
. . . This court cannot substitute its own judgment for
that of the jury if there is sufficient evidence to support
the jury’s verdict. . . .
“[T]he 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
6
More specifically, the court sentenced the defendant to concurrent
terms of nine years of incarceration and eleven years of special parole
with respect to the charges of assault in the first degree and conspiracy
to commit assault in the first degree, and to concurrent sentences of nine
years of incarceration and eleven years of special parole with respect
to the charges of robbery in the first degree and conspiracy to commit
robbery in the first degree, with the sentences on the defendant’s con-
victions of assault in the first degree and conspiracy to commit assault
in the first degree to run consecutively to the sentences on the convic-
tions of robbery in the first degree and conspiracy to commit robbery
in the first degree, for a total effective sentence of eighteen years of
imprisonment, followed by eleven years of special parole.
7
Due to an oversight, the defendant’s application for waiver of fees
and costs and the appointment of counsel was not granted by the court
until April 10, 2024. On June 5, 2024, this court granted the defen-
dant’s motion for permission to file a late appeal, which had been filed
on April 30, 2024.
State v. Gonsalves

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 cumu-
lative 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 [jury] is not required to accept as
dispositive those inferences that are consistent with the
defendant’s innocence. . . . The [jury] may draw whatever
inferences from the evidence or facts established by the
evidence [that] it deems to be reasonable and logical. . . .
“[O]n appeal, we do not ask whether there is a reason-
able view of the evidence that would support a reason-
able hypothesis of innocence. We ask, instead, whether
there is a reasonable view of the evidence that supports
the jury’s verdict of guilty.” (Internal quotation marks
omitted.) State v. White, 215 Conn. App. 273, 279–80,
283 A.3d 542 (2022), cert. denied, 346 Conn. 918, 291
A.3d 108 (2023). With these principles in mind, we turn
to the defendant’s claims of evidentiary insufficiency.
I
The defendant first contends that the evidence was
insufficient to support his conviction of assault in the
first degree as an accessory under §§ 53a-8 and 53a-59
(a) (1) in connection with the shooting of Costa during
the commission of the robbery at the Pond Street house.8
8
We note that the defendant did not raise his claims of evidentiary
insufficiency at trial and, on appeal, he seeks review of his unpreserved
claims pursuant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d
1188 (2015). Our Supreme Court has “previously recognized that any
defendant found guilty on the basis of insufficient evidence has been
State v. Gonsalves

In support of his claim, the defendant argues that there
was no evidence from which the jury reasonably could
infer, beyond a reasonable doubt, that he intended to
cause serious physical injury to Costa, that he shot Costa
himself, or that he intentionally aided the perpetrator
who did shoot Costa. We agree with the defendant.
We commence our discussion of the defendant’s claim
with a review of the governing statutes and legal prin-
ciples. Section 53a-59 provides in relevant part that
“(a) [a] person is guilty of assault in the first degree
when (1) [w]ith intent to cause serious physical injury to
another person, he causes such injury to such person or to
a third person by means of a deadly weapon or a danger-
ous instrument . . . .” Thus, “[t]o warrant a conviction
for assault in the first degree in violation of § 53a-59 (a)
(1), the state bore the burden of proving the following
elements beyond a reasonable doubt: (1) the defendant
possessed the intent to cause serious physical injury to
another person; (2) the defendant caused serious physical
injury to such person . . . and (3) the defendant caused
such injury by means of a deadly weapon or a dangerous
instrument.” (Internal quotation marks omitted.) State
v. Artis, 136 Conn. App. 568, 580, 47 A.3d 419 (2012),
rev’d, 314 Conn. 131, 101 A.3d 915 (2014).
Because it was unknown which of the four individuals
who entered the house assaulted Costa, the state opted
to proceed on a theory of accessorial liability under §
53a-8,9 and the court instructed the jury on principal
deprived of a constitutional right, and would therefore necessarily meet
the four prongs of Golding. . . . Because there is no independent signifi-
cance of a Golding analysis in this context, we review an unpreserved
sufficiency of the evidence claim as though it had been preserved.”
(Citation omitted; footnote omitted; internal quotation marks omitted.)
State v. Hughes, 341 Conn. 387, 395, 267 A.3d 81 (2021).
9
General Statutes § 53a-8 provides in relevant part: “(a) A person,
acting with the mental state required for commission of an offense, who
solicits, requests, commands, importunes or intentionally aids another
person to engage in conduct which constitutes an offense shall be crimi-
nally liable for such conduct and may be prosecuted and punished as if
he were the principal offender. . . .”
State v. Gonsalves

liability, as well.10 “[F]or the purposes of determining
criminal liability, it is of no consequence whether one is
labeled an accessory or a principal.” (Internal quotation
marks omitted.) State v. White, supra, 215 Conn. App.
280. “[A]ccessorial liability is not a distinct crime, but
only an alternative means by which a substantive crime
may be committed . . . .” (Internal quotation marks
omitted.) State v. Hinton, 352 Conn. 183, 190–91, 336
A.3d 62 (2025).
“[A] conviction under § 53a-8 requires [the state to
prove the defendant’s] dual intent . . . [first] that the
accessory have the intent to aid the principal and [sec-
ond] that in so aiding he intend to commit the offense
with which he is charged. . . . Additionally, one must
knowingly and wilfully assist the perpetrator in the acts
[that] prepare for, facilitate or consummate it.” (Internal
quotation marks omitted.) State v. White, supra, 215
Conn. App. 280–81. In other words, “[t]o be guilty as
an accessory [under § 53a-8] one must share the crimi-
nal intent and community of unlawful purpose with the
perpetrator of the crime and one must knowingly and
wilfully assist the perpetrator in the acts which prepare
for, facilitate or consummate it. . . . [Section] 53a-8
requires the defendant have the specific mental state
required for the commission of the substantive crime. .
. . Consequently, to establish a person’s culpability as an
accessory to a particular offense, the state must prove
that the accessory, like the principal, had committed
each and every element of the offense.” (Emphasis in
original; internal quotation marks omitted.) State v.
Hinton, supra, 352 Conn. 190–91. Moreover, each of
the elements must be proved beyond a reasonable doubt.
10
We note that the operative substitute information did not charge
the defendant as an accessory under § 53a-8. At the charging confer-
ence, however, the prosecutor sought an instruction on accessorial and
accomplice liability, and the court granted the state’s request. The
defendant does not challenge the propriety of the court’s decision to
instruct the jury as the state requested.
State v. Gonsalves

See State v. Gonzalez, 311 Conn. 408, 424, 87 A.3d
1101 (2014).
Furthermore, “Connecticut case law remains consistent
. . . in permitting the imposition of accessorial liability
pursuant to § 53a-8, without requiring that the defen-
dant intend to satisfy the criminal statute’s aggravat-
ing circumstances in cases wherein that aggravating
circumstance does not have a specific mental state and
requires only that the principal act with the general
intent to perform the prescribed act.” State v. Gonzalez,
300 Conn. 490, 506, 15 A.3d 1049 (2011). In the present
case, therefore, “the state was not required to prove that
the defendant intended to cause serious physical injury
by means of a dangerous instrument, or to prove that
the defendant was even aware that another participant
had a dangerous instrument . . . . The use of a dangerous
instrument simply represents the means by which the
defendant is alleged to have participated in causing the
serious physical injury, but to be culpable, the defendant
only needs to have the intent to cause serious physical
injury to another person, not the intent to do so with a
dangerous instrument.” (Citation omitted; emphasis in
original.) State v. Artis, supra, 136 Conn. App. 584–85.
Thus, “[a] person is an accessory to assault in the first
degree by means of [a deadly weapon or] a dangerous
instrument when he has the specific intent to cause seri-
ous physical injury to an individual and solicits, requests,
commands, importunes or intentionally aids another
person, who, using [a deadly weapon or] a dangerous
instrument, causes serious injury to that individual
while also possessing the specific intent to do so.” State v.
Artis, 314 Conn. 131, 159, 101 A.3d 915 (2014). “To act
intentionally, the defendant must have had the conscious
objective [to inflict serious physical injury on the victim] .
. . . Intent is generally proven by circumstantial evidence
because direct evidence of the accused’s state of mind is
rarely available. . . . [T]he defendant’s state of mind at
the time of the shooting may be proven by his conduct
before, during and after the shooting. . . . Such conduct
State v. Gonsalves

yields facts and inferences that demonstrate a pattern
of behavior toward the victim by the defendant that is
probative of the defendant’s mental state.” (Internal
quotation marks omitted.) State v. White, supra, 215
Conn. App. 281.
As noted previously, the defendant has not appealed
from his conviction of robbery in the first degree in
violation of § 53a-134 (a) (1) for his participation in
the robbery at the Pond Street house, and he does not
challenge the sufficiency of the evidence with respect to
that robbery. He also does not dispute either that Costa
suffered a serious physical injury during the commis-
sion of the robbery or that the injury was caused by a
deadly weapon. The defendant, however, does contest
the sufficiency of the state’s proof with respect to the
two other elements of the assault, namely, that, like
the principal, he had the specific intent to cause seri-
ous physical injury to Costa, and that he intentionally
aided and assisted the principal in causing that injury.
More specifically, the defendant maintains, first, that
the evidence did not establish that he formed the intent
to cause serious physical injury to Costa or anyone else
either before or after he entered the Pond Street house.
Second, the defendant argues that there was insufficient
evidence to establish that the shooting was intentional
and not accidental but that, even if the perpetrator who
shot Costa had the specific intent to cause Costa serious
physical injury, there is no proof that the defendant
himself had that intent.
As the state concedes, the evidence was insufficient to
prove that the defendant acted as a principal in Costa’s
shooting because the state’s proof did not establish which
of the four perpetrators of the robbery shot and seriously
wounded Costa. We conclude, as well, that there was
insufficient evidence to support the jury’s guilty verdict
with respect to the offense of assault in the first degree
under an accessory theory of liability in accordance with
§ 53a-8. Although we must consider the evidence in the
manner most favorable to upholding the verdict, the
State v. Gonsalves

defendant’s conviction of assault in the first degree as
an accessory cannot stand even under the most generous
view of that evidence and the inferences that reasonably
may be drawn therefrom.
As we have discussed, from this evidence, the jury
reasonably found that the defendant and the other per-
petrators planned to use force or the threat of force to
accomplish the robbery, and they did so. The evidence
that supports that finding, however, does not also sup-
port the conclusion that, at some unknown time prior
to the shooting, the defendant and one or more of the
other perpetrators planned to cause Costa serious physi-
cal injury and that the defendant aided and assisted the
perpetrator in causing that injury. Rather, the evidence
adduced at trial establishes only that, on the night of
January 14, 2014, the defendant, along with Orr, who
was armed, and two other masked men, entered the Pond
Street house and, using force and threats to intimidate
and overcome resistance by the residents, stole money
and a television set and fled. This evidence, though
sufficient proof of robbery, which is defined as the use
or threatened use of force or compulsion to prevent or
overcome resistance to, or otherwise facilitate, the taking
of property from another person; see General Statutes §
53a-133;11 is not sufficient to establish that the defendant
aided and abetted Costa’s shooting in accordance with
the requirements of § 53a-8.
In support of its contrary claim, the state asserts that
the defendant and the other perpetrators knew that the
Pond Street house was occupied when they entered it
late at night, and the perpetrators’ entry into residents’
bedrooms by breaking down locked doors indicated “that
11
General Statutes § 53a-133 provides: “A person commits robbery
when, in the course of committing a larceny, he uses or threatens the
immediate use of physical force upon another person for the purpose of:
(1) [p]reventing or overcoming resistance to the taking of the property
or to the retention thereof immediately after the taking; or (2) com-
pelling the owner of such property or another person to deliver up the
property or to engage in other conduct which aids in the commission
of the larceny.”
State v. Gonsalves

the defendant and the other perpetrators . . . intended to
overcome any resistance from the occupants of the house
by using force.” In further support of its claim, the state
points to evidence demonstrating that the perpetrators’
activities inside the house took place in a relatively small
area in or near the common hallway where Costa was shot,
thereby permitting the inference that “each perpetra-
tor was aware of the events happening in [that] central
hallway, namely, Costa being confronted by an armed
coventurer and being shot in the head at close range
when he attempted to thwart the robbery.” In addition,
the state relies on the fact that Orr possessed a handgun
during the commission of the robbery and the defendant’s
purported knowledge of that fact; that the defendant
fled the scene immediately after the shooting without
summoning medical assistance for Costa or otherwise
providing aid to him; and that the defendant had parked
his vehicle, which he left running, across from the Pond
Street house in such a manner as to allow for a speedy
escape. Contrary to the state’s contention, none of these
facts, considered individually or together, supports a
finding that the defendant committed assault in the first
degree as an accessory predicated on Costa’s shooting.
On the contrary, there is no evidence from which the
jury reasonably could have found that the defendant
shot Costa, planned to have him shot or even knew that
he would be shot, and there also is no evidence that the
defendant participated in the shooting or otherwise aided
the perpetrator who shot Costa.
The state’s proof demonstrating that the defendant and
the other perpetrators entered the Pond Street house to
commit a robbery late at night, while its residents were
inside, and did so with the intent to use force to overcome
any resistance from the occupants does not support an
inference that the defendant also had the intent to use
the degree of force necessary to cause Costa, or anyone
else in the house, serious physical injury, which, under
our Penal Code, is defined as “physical injury which cre-
ates a substantial risk of death, or which causes serious
disfigurement, serious impairment of health or serious
State v. Gonsalves

loss or impairment of the function of any bodily organ.”
General Statutes § 53a-3 (4). In other words, evidence
of the perpetrators’ willingness to use force to overcome
resistance from the occupants of the house does not
constitute proof that the defendant formed the specific
intent to cause Costa serious physical injury. Nor does
the perpetrators’ intention to overcome any such resis-
tance constitute proof that the defendant participated
in the shooting in any way or that he otherwise aided and
abetted the perpetrator who shot Costa. Indeed, that
general intention does not support an inference that the
defendant was present in the common hallway when the
shooting took place or that he knew about the shooting
before it occurred.
Testimony placing the common hallway where Costa
was shot near the first floor bedrooms does not support
a reasonable inference that the perpetrators, including
the defendant, witnessed the altercation between Costa
and the perpetrator who shot him. Any such inference,
however, would have scant bearing on the issue of the
defendant’s liability as an accessory to the shooting.
Even if the defendant was aware of the altercation that
culminated in the shooting, that fact alone does not suf-
ficiently connect the defendant to the shooting to give
rise to criminal liability. Indeed, even if the defendant
had known in advance that the shooting would take place,
that knowledge by itself would have been insufficient
to establish the defendant’s shared culpability for the
assault without proof that the defendant actively aided,
encouraged or assisted the principal offender; see, e.g.,
State v. Bennett, 307 Conn. 758, 771–72, 59 A.3d 221
(2013) (knowledge that crime will be committed, without
more, is insufficient to prove accessorial liability); and
there is no such proof in the present case.
Orr’s possession of a handgun when he entered the
Pond Street house does not reasonably support the infer-
ence that the defendant intended for Costa to suffer a
serious physical injury and provides no indication of
the defendant’s state of mind with respect to Costa’s
State v. Gonsalves

shooting. First, it is questionable whether the jury rea-
sonably could have inferred that the defendant was aware
that Orr was carrying a handgun merely because McNellis
knew that Orr was armed. McNellis’ brief testimony that
Orr possessed a handgun consisted of only a few sentences
and provided no context that shed any light on whether
the defendant also knew that Orr was armed. Indeed,
McNellis testified only that Orr was in possession of a
black handgun and offered no explanation as to when
she saw the weapon in Orr’s possession, where he was
carrying it, whether it was visible to the defendant when
she observed it, or anything else to support an inference
that the defendant, like McNellis, knew that Orr pos-
sessed a gun.12 Given the paucity of McNellis’ testimony
about Orr’s possession of the handgun, there was little
basis for the jury to conclude the defendant knew that
Orr was armed when the men entered the Pond Street
house. See, e.g., State v. Bemer, 340 Conn. 804, 812,
266 A.3d 116 (2021) (inference cannot be based on mere
possibilities or surmise).
Even if the jury reasonably could have inferred that
the defendant knew that Orr was carrying a handgun,
any such knowledge would be insufficient to support an
inference either that the defendant intended to cause
Costa serious physical injury or that he aided and abet-
ted the perpetrator who inflicted that injury. At most,
the defendant’s knowledge that Orr was armed gave rise
to an inference that Orr might use the handgun during
the commission of the robbery. As we discuss at greater
length hereinafter, however, the mere foreseeability
12
The state asserts that, in light of McNellis’ testimony that she was in
the defendant’s vehicle with both the defendant and Orr on the evening
of the robbery, and because McNellis “did not testify at any point she
saw Orr without the defendant . . . it was entirely reasonable for the
jury to infer that when McNellis saw Orr wielding the firearm . . . the
defendant was present and thus [also saw] the weapon.” Although it is
true that McNellis never testified that she saw Orr outside the defen-
dant’s presence, she also never testified that she, Orr and the defendant
remained together at all times or that, when they were all together, they
were situated in such a manner that it was likely the defendant also saw
Orr in possession of the handgun.
State v. Gonsalves

that a weapon may be used during the commission of a
crime does not equate to the purposeful intent necessary
to establish accessorial liability. See State v. Bennett,
supra, 307 Conn. 771 (foreseeability is not commensurate
with conscious objective to cause result or engage in con-
duct required for accessorial liability). Moreover, there is
no evidence that Orr, as distinguished from any one of the
other perpetrators, shot Costa, nor is there any evidence
that the defendant was present in the common hallway
when Costa was shot or that he knew Costa would be shot.
In fact, because there is so little evidence as to how or why
the shooting occurred, it is by no means certain that the
shooting was intentional rather than accidental. Even if
we assume, however, that Orr intentionally shot Costa,
and the defendant, with knowledge that Orr possessed a
handgun, was present when the shooting took place, those
facts are insufficient to support a finding of accessorial
liability without proof that the defendant shared the
specific intent to cause Costa serious physical injury and
assisted the perpetrator in causing that injury. See, e.g.,
id., 768–73 (evidence that defendant knew that perpetra-
tor who shot victim possessed handgun and defendant
was present when shooting occurred was insufficient to
establish defendant’s liability as accessory in absence of
evidence that defendant had specific intent to kill victim
and aided and abetted perpetrator in connection with
victim’s shooting). As previously discussed, the state
adduced no such evidence.
The fact that the defendant did not seek aid for Costa
after Costa was shot provides little support for the state’s
contention that the evidence was sufficient to establish
that the defendant intended to seriously injure Costa.
In State v. Bennett, supra, 307 Conn. 758, our Supreme
Court addressed and rejected a similar claim under facts
analogous to those of the present case. In Bennett, the
defendant, Calvin Bennett, was convicted of murder as
an accessory for the fatal shooting of the victim, James
Caffrey, by Bennett’s codefendant, Tamarius Maner.
Id., 760–61. The shooting occurred during the com-
mission of a robbery by Bennett and Maner at Caffrey’s
State v. Gonsalves

apartment, after which both men fled without stopping
to render aid to Caffrey. Id., 761–62. In concluding
that Bennett’s failure to assist Caffrey did not support
an inference that Bennett had the intent to kill Caf-
frey, our Supreme Court first acknowledged the general
principle that “[a] jury reasonably can infer an intent to
kill from [a] defendant’s failure to attempt to aid [the
victim] or to show concern for [his] welfare following the
shooting.”13 (Internal quotation marks omitted.) Id.,
770. Our Supreme Court further explained, however,
that “[w]e have stated this principle . . . in the context
of cases in which the defendant inflicted the fatal injury
but claimed no intent to kill . . . or in cases in which such
evidence was used to impeach a defendant’s claim that
he did not share the principal’s intent because of a good
relationship with the victim. . . . We are unaware of any
case, in this or other jurisdictions, however, in which
intent to kill has been inferred solely or even principally
from the defendant’s failure to render aid to the victim.”
(Citations omitted.) Id., 770–71. As in Bennett, there is
no proof that the defendant in the present case inflicted
the injury on Costa or claimed that he had a good rela-
tionship with Costa, and the record otherwise lacks any
indication that the defendant intended to cause Costa
serious physical injury.
Moreover, in concluding that the evidence was insuf-
ficient to sustain Bennett’s conviction of murder as an
accessory, our Supreme Court explained, with respect to
Bennett’s failure to come to Caffrey’s aid, that “[t]he sum
of [Bennett’s] conduct after Maner shot . . . Caffrey—
both acts and omissions—did not provide a sufficient
evidentiary basis to infer his intent to kill. Rather, the
fact that the killing did not deter or delay [Bennett]
from carrying on with the planned burglary leads to the
reasonable inferences that [Bennett] was indifferent
13
Although State v. Bennett, supra, 307 Conn. 758, involved a shooting
that resulted in Caffrey’s death and, therefore, Bennett was charged
with murder as an accessory, this general principle is no less applicable
when, as in the present case, the shooting results in serious physical
injury, rather than death, to the victim.
State v. Gonsalves

to Caffrey’s death or even that Caffrey’s death was a
foreseeable consequence of the [robbery]. Indifference,
however, is not intent.” Id., 771. The reasoning in Ben-
nett is equally applicable here: there is nothing of con-
sequence to be gleaned from the defendant’s apparent
indifference concerning the injuries Costa sustained
because of the shooting. Furthermore, in the present
case, the defendant knew that the other residents of
the Pond Street house, as well as the police—who were
already at the scene when the perpetrators fled—would
come to Costa’s aid, thereby obviating any concern that
Costa would not receive immediate attention unless the
defendant himself provided such aid.
Finally, the state’s reliance on the fact that the defen-
dant parked his car to enable a quick getaway is mis-
placed. Although that fact is probative of the defendant’s
plan to commit a robbery from which his prompt escape
was required, it sheds no light on the defendant’s state
of mind and conduct, if any, with respect to Costa.
It is apparent, therefore, that the evidence, when con-
sidered in its totality and in the light most favorable to
sustaining the verdict, falls short of the proof necessary
for a finding that the defendant committed the offense of
assault in the first degree as an accessory. Our Supreme
Court reached the same decision in State v. Bennett,
supra, 307 Conn. 758, the reasoning and holding of which
are highly pertinent in the present case.
In Bennett, Maner and Bennett together walked up to
the door of a Waterbury apartment to steal money and
drugs and knocked on the door. Id., 761. Bennett was
armed with a loaded handgun, as was Maner, who, in
Bennett’s presence, immediately shot and killed Caffrey
when Caffrey opened the door. Id. Maner and Bennett
entered the apartment and walked past Caffrey’s body
into the bedroom, where Bennett held his gun to the head
of Caffrey’s girlfriend, Samantha Bright, and demanded
money and drugs. Id., 762. The two men then entered the
kitchen, where they encountered Caffrey’s mother. Id.
With Bennett present, Maner fired a shot at Caffrey’s
State v. Gonsalves

mother but missed, and both Bennett and Maner ran out
of the apartment, pushing Caffrey’s mother to the floor as
they fled. Id. Following his arrest and trial, Bennett was
convicted of, inter alia, murder as an accessory in con-
nection with Maner’s fatal shooting of Caffrey. Id., 760.
As noted previously, however, on appeal, our Supreme
Court reversed Bennett’s conviction of murder as an
accessory, concluding that the evidence was insufficient
to support his conviction of that offense.14 Id., 761, 774.
Despite the reversal of Bennett’s conviction of murder
as an accessory on grounds of evidentiary insufficiency,
the facts in Bennett presented a considerably stronger
case for accessorial liability than the evidence in the pres-
ent case. In contrast to Bennett, there is no evidence in
the present case that the defendant was armed; there is
no evidence as to which perpetrator shot Costa; there is
no evidence that the defendant was present when Costa
was shot or that he participated in the shooting in any
way; there is no evidence concerning the nature and
circumstances of the confrontation between Costa and
the perpetrator who shot Costa; and there is no evidence
that the defendant took any violent or threatening action
against Costa or anyone else.
The present case does bear marked similarities to Ben-
nett, however, and, as in Bennett, such similarities all
lead to the conclusion that the evidence was insufficient
to support the defendant’s conviction as an accessory to
Costa’s shooting. In particular, there is no evidence that
the defendant shot Costa; there is no evidence that the
defendant formed the intent to shoot Costa or planned to
have Costa shot, either before or after entering the Pond
Street house; there is no evidence that the defendant
knew that Costa would be shot; there is no evidence that
the defendant aided or assisted the perpetrator who shot
Costa; there is no evidence that the defendant or any of
the other perpetrators had any animus toward Costa or
14
Bennett also was convicted of felony murder, home invasion and
burglary in the first degree, but he did not appeal from those convic-
tions. State v. Bennett, supra, 307 Conn. 760–61.
State v. Gonsalves

any other reason independent of the robbery to harm
Costa or any other resident of the house; and there is
no evidence that the defendant otherwise “solicit[ed],
request[ed], command[ed], importun[ed] or intention-
ally aid[ed]” any one or more of the other perpetrators
in the assault against Costa as required under § 53a-8.
Clearly, if, as our Supreme Court held in Bennett, there
was insufficient evidence to establish Bennett’s liability
as an accessory for the shooting in that case, there can
be no such liability for the shooting in the present case.
The sparse evidence of the defendant’s conduct estab-
lishes only that he entered the Pond Street house with
the intent to commit an armed robbery. Nothing more is
known about his role or involvement in the robbery, let
alone about his role or involvement in Costa’s shooting.
By contrast, in Bennett, the jury had a clear and complete
picture of the nature and extent of Bennett’s violent and
threatening conduct—including the fact that he was with
Maner at the front door of the apartment, armed with a
loaded handgun himself, when Maner shot and killed Caf-
frey—from the moment that he and Maner approached
the apartment until they fled. State v. Bennett, supra,
307 Conn. 761–62. Given the absence of any evidence
as to what, if anything, the defendant in the present
case knew about Costa’s shooting or what, if anything,
the defendant did to aid or facilitate the shooting, it is
apparent that the evidence of Bennett’s involvement in
and potential culpability for the shooting in that case
was appreciably greater than that of the defendant in
the present case. Consequently, Bennett forecloses the
state’s claim that the proof in this case supported a find-
ing that the defendant committed the offense of assault
in the first degree as an accessory.
Finally, Bennett is relevant to the present case for yet
another reason, namely, in that case, our Supreme Court
discussed the difference between accessorial liability
under § 53a-8, which was charged in both Bennett and
the present case, and vicarious liability under Pinkerton
v. United States, 328 U.S. 640, 647–48, 66 S. Ct. 1180,
State v. Gonsalves

90 L. Ed. 1489 (1946), a theory of liability that the state
did not pursue either in Bennett or in this case,15 and
explained why the evidence against Bennett, though
insufficient to support his conviction of murder as an
accessory, likely would have resulted in his conviction
of murder under Pinkerton. State v. Bennett, supra, 307
Conn. 774. That analysis in Bennett is equally germane
to the present case and, therefore, bears repeating here,
as follows.16
“Because [Bennett’s claim] involves [the] sufficiency
of proof to assign criminal responsibility to [him] for a
fatal injury inflicted by another, it is useful to be mind-
ful of the substantive differences between [accessorial
liability and another theory] under which such vicari-
ous liability may arise [namely] Pinkerton liability17 . .
. . [U]nder the Pinkerton doctrine . . . a defendant may
not be convicted of murder unless one of his criminal
associates, acting foreseeably and in furtherance of the
conspiracy, caused the victim’s death with the intent
to do so. Thus . . . under Pinkerton, a coconspirator’s
intent to kill may be imputed to a defendant who does not
share that intent . . . . The rationale for liability under
this theory is that [w]hen the defendant has played a
necessary part in setting in motion a discrete course
of criminal conduct . . . he cannot reasonably complain
that it is unfair to hold him vicariously liable . . . for
the natural and probable results of that conduct that,
although he did not intend, he should have foreseen. .
. . [U]nlike coconspirator liability under Pinkerton . . .
15
The prosecutor expressly informed the trial court in the present case
that the state was not seeking to prove its case against the defendant on
the basis of a Pinkerton theory of liability. The record does not disclose
why the state declined to rely on Pinkerton.
16
Although the defendant in Bennett was convicted of murder as an
accessory and the defendant in the present case was convicted of assault
in the first degree as an accessory, that difference is immaterial for
purposes of the following discussion, which is equally applicable to
both offenses.
17
Our Supreme Court in Bennett also discussed felony murder, a third
theory of vicarious liability. See State v. Bennett, supra, 307 Conn.
764. Because felony murder has no applicability to the present case,
however, we have not included that portion of the analysis in Bennett.
State v. Gonsalves

accessorial liability pursuant to § 53a-8 requires the
defendant to have the specific mental state required for
the commission of the substantive crime . . . [and] the
state must prove that the accessory, like the principal,
had committed each and every element of the offense.”
(Citations omitted; emphasis in original; footnote added;
footnotes omitted; internal quotation marks omitted.)
State v. Bennett, supra, 307 Conn. 764–65.
After explaining the facts of the case as set forth previ-
ously herein, our Supreme Court in Bennett continued:
“Our review of Connecticut appellate cases in which
accessorial liability for murder properly was found under-
scores the deficiency of the proof in the present case.
In every other accessorial liability case, the defendant
had engaged in some act to prepare for, aid, encourage,
facilitate or consummate the murder; it was from such
acts that intent reasonably was inferred. In some cases,
the defendant participated in the killing by inflicting, or
attempting to inflict, harm on the victim while the princi-
pal inflicted the fatal injury, or the evidence was unclear
as to whether the defendant actually inflicted the fatal
injury. . . . In cases lacking such proof, the defendant
otherwise actively participated in the murder through
acts beneficial to the principal such as identifying the
victim, taking the principal to the victim, distracting
the victim, acting as a lookout to prevent interruption
[of] the murder or facilitating the principal’s escape.
. . . Oftentimes, evidence of a motive to kill had been
established. . . .
“No such evidence was proffered [against Bennett]
in the present case. Although it is reasonable to infer
from [Bennett’s] entry into Bright’s bedroom with a
loaded gun immediately following [Caffrey’s] shooting,
simultaneously with Maner, that [Bennett] was in close
proximity when Maner shot Caffrey and that [Bennett]
was in possession of a loaded gun at the time, it would be
sheer speculation to conclude that [Bennett] threatened
Caffrey with the gun or engaged in any act preceding
the shooting that aided, encouraged or facilitated the
State v. Gonsalves

shooting. One who is present when a crime is committed
but neither assists in its commission nor shares in the
criminal intent of its perpetrator cannot be convicted as
an accessory. . . . Mere presence as an inactive companion,
passive acquiescence, or the doing of innocent acts which
may in fact aid the one who commits the crime must be
distinguished from the criminal intent and community
of unlawful purpose shared by one who knowingly and
wilfully assists the perpetrator of the offense in the acts
which prepare for, facilitate, or consummate it. . . .
“Moreover, as we previously have explained, although
a foreseeable risk of death to a victim in the course of a
crime is a basis on which . . . Pinkerton liability may be
established, foreseeability is not commensurate with the
conscious objective to cause death required for accesso-
rial liability. . . . To find intent to kill under the present
circumstances would obliterate a critical distinction
between [the Pinkerton theory] of vicarious liability and
accessorial liability. . . . Moreover, even if we can infer
from [Bennett’s] reaction that he was not surprised by
Maner’s conduct, [m]ere knowledge that a crime is going
to be committed is not sufficient to establish liability as
an accessory if the defendant does not encourage or inten-
tionally aid in the commission of the crime. . . . Silent
acquiescence [by a defendant, even] when [he] knew the
plan [to kill the victim], [is] not enough to make [him]
guilty of [murder as an accessory]. . . . The [s]tate [is]
bound to prove more than that, and show that [he] know-
ingly abetted, counseled or encouraged [the principal] in
his guilty purpose. . . .
“[In addition], there was no motive to kill independent
of the burglary . . . . There also is no evidence to support
an inference that [Bennett] aided or encouraged Maner
with respect to the fatal act or that [Bennett] threatened
Caffrey directly in any manner. . . . In our view, the evi-
dence [against Bennett] would have made a strong case
for murder under a theory of Pinkerton liability, but
falls short of the requisite proof for accessorial liability.
Therefore, because the state did not advance a theory
State v. Gonsalves

of liability under the Pinkerton doctrine, and the state
did not prove beyond a reasonable doubt that [Bennett]
intended to cause [Caffrey’s] death, [Bennett’s] convic-
tion for murder as an accessory cannot stand.” (Cita-
tions omitted; emphasis in original; footnotes omitted;
internal quotation marks omitted.) Id., 768–74.
Precisely the same may be said here. Although the
state’s proof in the present case did not establish the
defendant’s liability as an accessory to assault in the
first degree, the evidence was more than sufficient to
support a conviction under a Pinkerton theory of liabil-
ity. Specifically, a jury reasonably could have found,
in accordance with the requirements of Pinkerton, that
the perpetrator who shot Costa did so foreseeably and in
furtherance of the plan to steal money from the residents
at the Pond Street house. In such circumstances, under
Pinkerton, the conduct and intent of the perpetrator who
shot Costa properly may be imputed to the defendant even
though there is no evidence either that the defendant was
involved in the shooting or that he knew it was going to
happen. Instead of proceeding under a Pinkerton theory
of vicarious liability, however, the state prosecuted the
defendant for the assault under a theory of accessorial
liability. Consequently, the foreseeability that Costa
would be shot and seriously injured was insufficient to
establish that the defendant had the intent to cause Costa
serious physical injury.
The state assumed the burden of establishing beyond
a reasonable doubt that the defendant, no different than
the principal, had the conscious objective of causing
Costa serious physical injury, and that he aided and
abetted the perpetrator in causing that injury. As previ-
ously explained, however, the evidence cannot bear the
weight that the state places on it with respect to either
of those two elements of the offense of assault in the
first degree as an accessory because the inferences that
the state would have us draw from that evidence are
based on speculative possibilities, not reasonable prob-
abilities. See, e.g., State v. Bemer, supra, 340 Conn. 812
State v. Gonsalves

(“[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” (internal
quotation marks omitted)); Vance v. New Haven, 236
Conn. App. 724, 740, 349 A.3d 1116 (2025) (“[u]nder
our law, inferences must be based on probabilities, not
possibilities” (internal quotation marks omitted)). Con-
sequently, as in Bennett—and for essentially the same
reasons identified by our Supreme Court in Bennett—the
state failed to meet its burden of proof in the present case
with respect to the charge of assault in the first degree
as an accessory.
II
The defendant next contends that the evidence was
insufficient to support both his conviction of conspiracy
to commit assault in the first degree in violation of §§ 53a-
48 and 53a-59 (a) (1) and his conviction of conspiracy to
commit robbery in violation of §§ 53a-48 and 53a-134.18
With respect to his conviction of conspiracy to commit
assault in the first degree, the defendant maintains that
the evidence was insufficient to establish, first, that
he entered into an agreement, either before or during
the robbery, to cause Costa serious physical injury, and
second, that he had the specific intent that a deadly
weapon would be used in furtherance of any such agree-
ment to assault Costa. With respect to his conviction
of conspiracy to commit robbery in the first degree, the
defendant asserts that the evidence was insufficient to
prove that he had the specific intent that Costa would
18
General Statutes § 53a-134 provides in relevant part: “(a) A per-
son is guilty of robbery in the first degree when, in the course of the
commission of the crime of robbery as defined in section 53a-133 or of
immediate flight therefrom, he or another participant in the crime: (1)
Causes serious physical injury to any person who is not a participant in
the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens
the use of a dangerous instrument; or (4) displays or threatens the use
of what he represents by his words or conduct to be a pistol, revolver,
rifle, shotgun, machine gun or other firearm, except that in any pros-
ecution under this subdivision, it is an affirmative defense that such
pistol, revolver, rifle, shotgun, machine gun or other firearm was not
a weapon from which a shot could be discharged. . . .”
State v. Gonsalves

suffer a serious physical injury in furtherance of the
agreement to commit the robbery. We agree with the
defendant’s claims.
Pursuant to § 53a-48 (a), “[a] person is guilty of con-
spiracy when, with intent that conduct constituting a
crime be performed, he agrees with one or more persons
to engage in or cause the performance of such conduct,
and any one of them commits an overt act in pursuance
of such conspiracy.” “Conspiracy . . . is a specific intent
crime, with the intent divided into two elements: [1]
the intent to agree or conspire and [2] the intent to com-
mit the offense which is the object of the conspiracy.”
(Internal quotation marks omitted.) State v. Pond, 315
Conn. 451, 467, 108 A.3d 1083 (2015). Furthermore, in
contrast to the offense of assault in the first degree as
an accessory, for purposes of the charge of conspiracy to
commit assault in the first degree, the state was required
to prove both that the defendant entered into an agree-
ment to cause Costa serious physical injury and that a
deadly weapon would be used in furtherance of the com-
mission of the offense. See id., 453 (“to be convicted of
conspiracy, a defendant must specifically intend that
every element of the planned offense be accomplished,
even an element that itself carries no specific intent
requirement”). Similarly, with respect to the charge
of conspiracy to commit robbery in the first degree, the
state was required to prove both that the defendant
entered into an agreement to commit a robbery and that
he intended that Costa would suffer a serious physical
injury in furtherance of the commission of the offense.
See id.
“[Although] the state must prove an agreement, the
existence of a formal agreement between the conspirators
need not be proved because [i]t is only in rare instances
that conspiracy may be established by proof of an express
agreement to unite to accomplish an unlawful purpose.
. . . [T]he requisite agreement or confederation may be
inferred from proof of the separate acts of the individuals
accused as coconspirators and from the circumstances
State v. Gonsalves

surrounding the commission of these acts. . . . Further,
[c]onspiracy can seldom be proved by direct evidence. It
may be inferred from the activities of the accused per-
sons. . . . The state need not prove that the defendant and
a coconspirator shook hands, whispered in each other’s
ear, signed papers, or used any magic words such as we
have an agreement.” (Internal quotation marks omitted.)
State v. VanDeusen, 160 Conn. App. 815, 824, 126 A.3d
604, cert. denied, 320 Conn. 903, 127 A.3d 187 (2015).
To support the defendant’s conviction of conspiracy
to commit assault in the first degree in violation of §§
53a-48 and 53a-59 (a) (1), the state was required to prove
that, at some time prior to Costa’s shooting, either before
or after the defendant entered the Pond Street house,
the defendant agreed with one or more of the other per-
petrators to cause Costa serious physical injury and, in
addition, that the defendant had the specific intent that
a deadly weapon would be used in connection with the
offense. As explained in part I of this opinion, there is
no evidence that the defendant had the intent to cause
Costa serious physical injury, and, in the absence of
such proof, there also is no evidence that he intended
for a deadly weapon to be used to injure Costa. Having
proved no such intent, the state necessarily also failed to
prove that the defendant planned or conspired to cause
Costa serious physical injury with a deadly weapon. That
failure of proof entitles the defendant to the reversal
of his conviction of the offense of conspiracy to commit
assault in the first degree.
With respect to the charge of conspiracy to commit
robbery in the first degree in violation of §§ 53a-48 and
53a-134 (a) (1), the state bore the burden of proving
that the defendant agreed with one or more of the other
perpetrators to commit a robbery at the Pond Street
house, and that, in furtherance of the commission of the
robbery, one or more of the perpetrators of the robbery
would cause serious physical injury to Costa by use of a
deadly weapon. As discussed in part I of this opinion,
although the defendant does not dispute that the evi-
dence was sufficient to establish that he committed a
State v. Gonsalves

robbery and that Costa suffered a serious physical injury
during its commission, there was no evidence that the
defendant ever formed the intent for Costa or anyone
else to suffer a serious physical injury during the com-
mission of the robbery. Consequently, there also is no
evidence that the defendant agreed with any other per-
petrator of the robbery to cause serious physical injury
to any nonparticipant in that offense, including Costa.
Because there was no such evidence, the state failed to
prove that the defendant conspired to commit robbery
in the first degree.
The state, however, raises an alternative argument in
support of its claim that the defendant’s conviction of
conspiracy to commit robbery in the first degree was sup-
ported by sufficient evidence. This claim is predicated on
the fact that, in contrast to the count of the information
charging the defendant with robbery in the first degree
in violation of § 53a-134 (a) (1), the count charging the
defendant with conspiracy to commit robbery in the first
degree alleged that the defendant conspired to violate §
53a-134, without reference to subsection (a) (1) or any of
the other three subsections of § 53a-134. See footnote 18
of this opinion. Relying on the fact that the information
broadly charges the defendant under § 53a-134, with-
out limitation to any specific statutory subsection, the
state asserts that the defendant’s claim of evidentiary
insufficiency must fail with respect to his conviction of
conspiracy to commit robbery in the first degree so long
as the evidence was sufficient to prove the defendant’s
guilt under any one of the subsections of § 53a-134.
The state further maintains that, because the evidence
was sufficient to prove a violation of subsection (a) (2)
of § 53a-134, which provides that a person is guilty of
robbery in the first degree when “he or another partici-
pant” in the robbery “is armed with a deadly weapon,”
and the testimony established that at least one of the
perpetrators, Orr, possessed such a weapon during the
commission of the robbery, the defendant cannot prevail
on his claim of evidentiary sufficiency.
As the defendant points out, however, the trial court
instructed the jury under § 53a-134 (a) (1) only, making
State v. Gonsalves

no mention of any of the other subsections of § 53a-134.
According to the defendant, the court’s instruction
“effectively limited the conspiracy charge to conspiracy
to commit robbery in the first degree under [subsection]
(a) (1) of § 53a-134.” The state disagrees, explaining that,
under long-standing precedent from both our Supreme
Court and this court, the determination of the legal suf-
ficiency of the evidence presented at trial must be based
solely on the evidence presented and the elements of the
crime charged in the information, and not on the court’s
jury instructions. See, e.g., State v. Gradzik, 193 Conn.
35, 38–39, 475 A.2d 269 (1984) (“The trial court cannot
by its instruction change the nature of the crime charged
in the information. . . . Though the [court’s] instruction
incorrectly limited the proof necessary for a conviction,
on review of a sufficiency of the evidence claim this court
looks to see if the evidence supports the verdict on the
crime charged.” (Citation omitted.)); State v. Russell,
101 Conn. App. 298, 327 n.30, 922 A.2d 191 (explaining
that there is “[no] authority for the proposition that a
reviewing court, when determining whether sufficient
evidence exists to sustain a conviction, must do so with
reference to the jury charge rather than to the elements
of the crime as statutorily defined and as set out in the
information”), cert. denied, 284 Conn. 910, 931 A.2d
934 (2007).
The state is correct that, on appellate review, resolution
of a claim of evidentiary insufficiency must be based on
a determination of whether the evidence was sufficient
to establish each of the elements of the offense charged
in the information, and not on whether the evidence
was sufficient under the erroneous jury instruction.
In the present case, however, the court instructed the
jury that, to find the defendant guilty of robbery in the
first degree, the state must establish that the defendant
conspired to commit robbery in the first degree in viola-
tion of § 53a-134 (a) (1), and did not instruct the jury
on any of the other three subsections of § 53a-134 (a).
Moreover, the state never sought an instruction that
included those other statutory subsections, nor did the
State v. Gonsalves

state inform the court, after the jury instructions were
given, that its instruction on conspiracy to commit rob-
bery in the first degree was incomplete or inadequate. It
is highly implausible that the state intended to prosecute
the defendant for conspiracy to commit robbery in the
first degree under any or all of the four subsections of §
53a-134 and yet took no corrective action when the court
failed altogether to instruct the jury under subsections
(a) (2), (a) (3) and (a) (4) of § 53a-134.
In such circumstances, it is apparent that the state,
the defendant and the court understood that, although
the information charging conspiracy to commit robbery
in the first degree referred to § 53a-134, the state was
proceeding against the defendant under § 53a-134 (a)
(1), just as it had charged the defendant under § 53a-134
(a) (1) for purposes of the offense of robbery in the first
degree. Indeed, the understanding of the parties and
the court in this regard is further reflected by the fact
that the court, without objection, instructed the jury
on the offense of conspiracy to commit robbery in the
first degree by express reference to the court’s earlier
instruction on the count of the information charging
the defendant with robbery in the first degree in viola-
tion of § 53a-134 (a) (1).19 Thus, in accordance with the
19
The court instructed the jury in relevant part as follows: “The
defendant is charged in count four with conspiracy to commit robbery
in the first degree. You will recall that I previously charged you in
relation to count two on the crime of conspiracy and all the elements
relating thereto. I instruct you to apply that instruction to this count
as well. You will additionally recall that I have previously instructed
you in relation to count three on the crime of robbery in the first degree
and the elements relating thereto, and I instruct you that you shall
apply that instruction to this count as well.
“In summary, as to conspiracy, the state must prove beyond a reason-
able doubt that the defendant had an agreement with one or more persons
to commit robbery in the first degree, at least one of the coconspirators
did an overt act in furtherance of the conspiracy, the defendant specifi-
cally intended to enter into the agreement and intended the conduct and
had the specific intent that each independent element constituting the
crime of robbery in the first degree.
“As to the crime of robbery in the first degree, the state must prove
beyond a reasonable doubt: 1) that the defendant was committing lar-
ceny; 2) that he used physical force or threatened the use of physical
State v. Gonsalves

apparent intent of the parties, the state was required to
prove that the defendant conspired to commit robbery
in the first degree in violation of §§ 53a-48 and 53a-134
(a) (1), and the court properly instructed the jury under
those statutory provisions. Consequently, the state’s
claim that the defendant’s conviction of conspiracy to
commit robbery in the first degree should stand because
the evidence was sufficient to establish a violation of §§
53a-48 and 53a-134 (a) (2) is unavailing.
For the foregoing reasons, the evidence was insufficient
to establish that the defendant committed the offenses
of assault in the first degree as an accessory, conspiracy
to commit assault in the first degree, and conspiracy to
commit robbery in the first degree. Accordingly, the
defendant is entitled to reversal of his convictions of
those offenses and to a judgment of acquittal on each
of the charges.
The judgment is reversed with respect to the defen-
dant’s convictions of assault in the first degree as an
accessory, conspiracy to commit assault in the first
degree, and conspiracy to commit robbery in the first
degree, and the case is remanded with direction to render
a judgment of acquittal on those charges and for resen-
tencing; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
force in preventing or overcoming resistance to the taking of property
or compelling the owner of the property or another person to deliver up
the property or to engage in other conduct that is in the commission of
larceny and that in the course of the robbery the defendant or another
participant in the robbery caused serious physical injury to another
person, in this case, Geraldo Costa, who is not a participant in the crime.
“So, I’ll refer you back to my instructions on both the conspiracy
and the robbery in the first degree, counts two and three, and instruct
you to apply it to this count as well. Again, the state has the burden
of proving each and every element beyond a reasonable doubt. If you
unanimously find that the state has proved beyond a reasonable doubt
each of the elements of the crime of conspiracy to commit robbery in
the first degree, then you shall find the defendant guilty.
“On the other hand, if you unanimously find that the state has failed
to prove beyond a reasonable doubt any of the elements you shall then
find the defendant not guilty.” (Emphasis added.)