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     STATE v. BERTHIAUME—CONCURRENCE AND DISSENT

   KELLER, J., concurring in part and dissenting in part.
I concur with part II of the majority opinion. I respect-
fully dissent with respect to the conclusion reached in
part I, that there was sufficient evidence for the jury
to reasonably infer that the defendant, Toby Arthur
Berthiaume, knowingly or recklessly inflicted physical
injury on the victim and is therefore guilty of burglary
in the first degree in violation of General Statutes § 53a-
101 (a) (2).
  I begin by noting that although Jessica Navarro-Gil-
more’s testimony about seeing two people acting suspi-
ciously and holding a small flat television screen or
monitor suggested that two people were involved in
committing the burglary, the jury was not instructed
under the theory of accessory liability.1 In its first
request to charge, the state requested that the court
deliver an accessorial liability instruction. Before
Navarro-Gilmore testified about her observation of the
two suspicious men, the prosecutor indicated to the
court that he expected Navarro-Gilmore to testify to
having observed the defendant and another man walk-
ing together down the street, and that the defendant
was carrying a television monitor. The prosecutor
argued that this evidence, along with the fact that he
believed Navarro-Gilmore would testify that once the
two men knew they were spotted, they attempted to
conceal themselves, warranted instructions on both
conspiracy to commit burglary in the third degree and
accessorial liability.
   The court responded that because it had not yet heard
the evidence from Navarro-Gilmore, it would ‘‘just skip
this part [of the proposed charge] for now, take it home
and study it up and ask you to move on.’’ Prior to the
final charging conference, however, after both sides
had rested, the state, without any explanation or further
argument to the court, filed an amended information
eliminating the second count of conspiracy to commit
burglary in the third degree and deleting the reference
to General Statutes § 53a-8, the accessorial liability stat-
ute, in the first count that charged the defendant with
burglary in the first degree. The state also did not pursue
further its earlier request for an accessorial liability
instruction.
   The state’s case, therefore, went to the jury on the
theory that the defendant was the principal perpetrator
of burglary in the first degree.2 Accordingly, the state
is precluded from arguing, and does not argue, that the
first degree burglary conviction may be affirmed based
on an alternative accessorial liability theory. See, e.g.,
State v. Allen, 289 Conn. 550, 559, 958 A.2d 1214 (2008)
(because defendant was charged as accessory to both
crimes of capital felony and murder, it was not neces-
sary for state to prove that defendant, rather than other
shooter, fired fatal shot); State v. Channer, 28 Conn.
App. 161, 166, 612 A.2d 95 (noting in review of suffi-
ciency of evidence that reviewing court is limited to
considering whether evidence supported finding that
defendant acted as principal because trial court did not
instruct jury as to accessorial liability), cert. denied,
223 Conn. 921, 614 A.2d 826 (1992).
   In State v. Parham, 174 Conn. 500, 506–509, 391 A.2d
148 (1978), the defendant raised a claim similar to the
present claim. In Parham, the defendant challenged the
court’s charge to the jury under the first degree burglary
statute. Id., 506. He argued that the statute required
that to be found guilty of the aggravated burglary
offense, he—as opposed to his accomplice or copartici-
pant—had to have inflicted or attempted to inflict bodily
injury. Id., 507. Our Supreme Court found no error
because the trial court properly instructed the jury on
accessorial as well as principal liability, and there was
evidence from which ‘‘the jury could reasonably and
logically conclude that the defendant was guilty of bur-
glary in the first degree either as a principal perpetrator
or as an aider or abettor.’’ Id., 508. In that case, the
defendant’s fingerprint was found on a stereo speaker
in the victim’s living room, and the victim identified the
defendant as one of two men she had encountered
in her garage. Id., 503. The victim testified that the
defendant threw a shirt over her head. Id., 508–509. She
further testified about her struggle with the two men,
how they handled her, and the resultant injuries
inflicted upon her by the perpetrators of the crime.
Id., 509.
   In the present case, the state was limited to proving
beyond a reasonable doubt that the defendant was the
principal perpetrator of a burglary in the first degree.
The identification witness, Navarro-Gilmore, observed
two men, one of whom she later identified as the defen-
dant, ‘‘walking quickly and looking over their shoul-
der[s] suspiciously’’ on Hartford Avenue in Enfield, a
street not far from the victim’s home, both carrying
what appeared to be a flat screen TV or monitor, resem-
bling one of the items stolen and which the defendant
later pawned. Although the majority notes that ‘‘there
was no evidence presented at trial concerning the iden-
tity of the second man or his alleged role, if any, in the
burglary,’’3 it acknowledges the testimony of Navarro-
Gilmore that both of the white men she observed were
acting suspiciously, as if they had stolen something.4 It
then refers to a litany of evidence: the defendant lived
only a few houses away from the victim, so he was in
a position to know that she was alone and vulnerable
because he could see that no cars were in her driveway;5
Navarro-Gilmore reported her observations of the two
men to the police about an hour after the victim’s daugh-
ter had left the victim uninjured in her home, which
appeared to be in order; shortly thereafter, after receiv-
ing a call from the victim that her knee was bleeding,
her daughter arrived to find the victim’s residence in a
state of disarray: items had been hastily dumped out,
various drawers and cabinets were open, and the dining
room chandelier was broken;6 the television and ring
were missing; there was blood on the dining room floor;
the victim had sustained a bloody knee, chipped tooth
and bruised face, all signs of a struggle; and the phone
line in the living room had been cut. The majority con-
cludes that ‘‘[a]ll of this evidence, in combination with
the defendant’s sale of the victim’s stolen ring and televi-
sion shortly thereafter, supports the inference that the
defendant remained unlawfully in the victim’s home
with the intent to commit a crime therein, namely,
larceny.’’
   Next, relying on State v. Cote, 136 Conn. App. 427,
445–46, 46 A.3d 256 (2012), aff’d, 314 Conn. 570, 107
A.3d 367 (2014), the majority concludes that ‘‘evidence
that the defendant was at or near the residence at about
the time of the burglary and that the defendant was in
possession of items stolen from the residence there-
after’’ supports the sustaining of a finding that a burglary
occurred on the basis that ‘‘although there were no
signs of a forced entry, the jury nevertheless could have
concluded that the defendant remain[ed] unlawfully in
the victim’s residence.’’ (Internal quotation marks omit-
ted.) In my view, the majority then takes an unfounded
leap by positing that there was sufficient evidence to
support the jury’s finding that the defendant, in the
course of committing the burglary, inflicted bodily
injury on the victim. The majority observes that ‘‘the
state adduced evidence that the victim was uninjured
as of 12:50 p.m., and that by at least 3 p.m. had sustained
a bloody injury to her knee, a mark on her nose, a
bruise on her face and a chipped tooth. During that
same time period, around 1:53 p.m., the defendant was
observed ‘walking suspiciously’ with a second man
away from the victim’s residence with what appeared
to be a television, and was photographed selling the
victim’s stolen items approximately two hours later in
Springfield, Massachusetts. The chandelier in the vic-
tim’s dining room was broken, there was blood on the
floor, and the telephone cord in the adjacent room was
cut. [The victim’s daughter, Marita] Cunningham testi-
fied that despite the victim’s advanced age, she was a
‘feisty individual’ who would ‘try to stand up for herself
and . . . fight back’ if someone tried to ‘push their way’
into her home.7 From this evidence, the jury reasonably
could have concluded that the victim resisted the defen-
dant’s attempts to burglarize her home, prompting the
defendant to physically assault the victim and to cut
the telephone wire to prevent her from contacting help.’’
(Emphasis added; footnote added.)
  While I agree that Cote permits the circumstantial
evidence in this case to be interpreted in such an attenu-
ated manner as to uphold a conviction of third degree
burglary,8 the other man walking quickly with the defen-
dant at or near the residence at about the time of the
burglary and in possession of an item stolen from the
residence should not magically disappear from this
inferential equation, resulting in the divination that the
defendant was the sole perpetrator of the burglary and,
therefore, the person who physically assaulted the vic-
tim9 and cut her telephone cord to prevent her from
contacting help. The evidence that distinguished these
two men did not shed any light on the issue of which one
of them, or both, inflicted bodily injury upon the victim.
   In State v. Cote, supra, 136 Conn. App. 429–30, there
was circumstantial evidence that a suspicious vehicle,
a Saab, with out-of-state license plates was parked in
front of a burglarized home in Stonington. A neighbor
saw two men get into the vehicle. Id., 430. Later, by
chance, a police chief in nearby Richmond, Rhode
Island, saw the same Saab parked in the yard of his
friend’s home and observed that two men were peering
through a window of a garage. Id., 431. Bloodstained
white athletic socks were found in the jacket pocket
of one of the men, and there were burglary tools as
well as a stolen item from the Stonington home in the
Saab.10 Id., 431–32. The defendant in Cote and the other
man, the codefendant, were charged with burglary in
the third degree and larceny in the second degree. Id.,
433. We concluded in Cote that ‘‘the jury . . . reason-
ably could have inferred that the defendant and [the
codefendant] worked together to commit the Stoning-
ton burglary.’’ (Emphasis added.) Id., 447.
   Cote is instructive because, like the present case, it
involved evidence that implicated two codefendants but
did not suggest that one of them was the principal
perpetrator of the crime. Cote’s reasoning suggests that
the evidentiary inferences the majority uses to implicate
only the defendant in the present case should apply
equally to the unidentified man who was seen accompa-
nying the defendant in the vicinity of the victim’s home
shortly after the burglary took place. It is significant
that Navarro-Gilmore did not identify the defendant as
the only person holding the small flat screen television
alone, but she twice testified that both men were both
holding it. I disagree with the majority that it is permissi-
ble to allow the jury to extend the allowable inference
that the defendant and the other male were involved
in a burglary as a result of being near the crime scene
and being in possession of the stolen flat screen televi-
sion into conjecture that the defendant must have been
the sole perpetrator of the burglary who unlawfully
remained in the home, stole the victim’s property, and
inflicted physical injury on the victim because he lived
nearby and ultimately pawned the victim’s stolen televi-
sion and ring.
 This is especially true in light of the fact that there
was no testimony from the victim either describing any
kind of struggle or assault or identifying her attacker
or attackers; no testimony from the other man with
whom the defendant was observed; or any physical
evidence such as blood, fingerprints, or DNA evidence
that implicated the defendant as an assailant. Against
this evidentiary backdrop, I conclude that any inference
the jury drew that the defendant knowingly or reck-
lessly inflicted physical injury on the victim appears to
have been the product of unreasonable speculation.
There is no evidence, direct or circumstantial, that sup-
ports a finding that one specific man out of the two,
or both, inflicted physical injury on the victim. ‘‘[A] jury
may draw reasonable and logical inferences from the
facts proven, but it may not resort to speculation and
conjecture.’’ (Internal quotation marks omitted.) State
v. Terry, 161 Conn. App. 797, 807, 128 A.3d 958 (2015),
cert. denied, 320 Conn. 916, 131 A.3d 751 (2016).
   Connecting the defendant to the infliction of the vic-
tim’s injuries because he was seen shortly after the time
the burglary probably occurred with one of the stolen
items on a street near to the burgled premises and
the evidence that, later that day, he pawned the stolen
property, is not the result of drawing reasonable infer-
ences. The majority agrees with the state that the defen-
dant criminally assaulted the victim and that, by cutting
a telephone cord in her residence, he tried to prevent
her from obtaining help, but the undisputed presence
of an equally suspicious cohort and the lack of any
additional evidence, direct or circumstantial, as to the
exact role the defendant played in the process of burgla-
rizing the premises makes it speculative to conclude
that the defendant inflicted physical injury on the vic-
tim. As to the infliction of physical injury element of
burglary in the first degree, the jury was not viewing
evidence that could yield contrary inferences as to guilt
or innocence of the defendant alone. Rather, it was
viewing evidence that yielded contrary, irreconcilable
inferences as to which of the equally positioned suspi-
cious white men seen by Navarro-Gilmore was the vic-
tim’s attacker, and no additional circumstantial
evidence justified the choice the jury made in rejecting
the possibility that the other suspicious man, as
opposed to the defendant, or that both men caused
injury to the victim. The only evidence that differenti-
ates the defendant from the man who was suspiciously
walking with him is that the defendant lived near the
victim,11 and he was later seen at a business in Spring-
field, Massachusetts, pawning the stolen items. Yet
none of this additional evidence concerning the defen-
dant reasonably or logically justifies the factual infer-
ence that the defendant, alone or in concert with the
other suspicious man, inflicted physical injury on the
victim.
  ‘‘[T]he line between permissible inference and imper-
missible speculation is not always easy to discern. When
we infer, we derive a conclusion from proven facts
because such considerations as experience, or history,
or science have demonstrated that there is a likely cor-
relation between those facts and the conclusion. . . .
But if the correlation between the facts and the conclu-
sion is slight, or if a different conclusion is more closely
correlated with the facts than the chosen conclusion,
the inference is less reasonable. At some point, the
link between the facts and the conclusion becomes so
tenuous that we call it speculation. When that point is
reached is, frankly, a matter of judgment.’’ (Internal
quotation marks omitted.) State v. Rivera, 169 Conn.
App. 343, 359, 150 A.3d 244 (2016), cert. denied, 324
Conn. 905,         A.3d        (2017). In my assessment of
the evidence, there is no correlation between the facts
established in the present case and the conclusion that
the defendant inflicted physical injury on the victim.
   The four decisions the state cites to support its argu-
ment that there was sufficient evidence that the defen-
dant inflicted injury on the victim do not persuasively
compare with or establish the sufficiency of the circum-
stantial evidence the jury had in this case. In the two
Connecticut decisions cited, State v. Gemmell, 151
Conn. App. 590, 94 A.3d 1253, cert. denied, 314 Conn.
915, 100 A.3d 405 (2014), and State v. Clark, 48 Conn.
App. 812, 713 A.2d 834, cert. denied, 245 Conn. 921,
717 A.2d 238 (1998), the perpetrator of the attack was
absolutely identified by the victim. The defendant in
Gemmell had been in a previous relationship with the
victim, and she testified as to his attack of her. State
v. Gemmell, supra, 593–94. The defendant in Clark was
a neighbor of the victim, and she knew who he was.
She, too, described his physical attack of her. State v.
Clark, supra, 814–18. In the two out-of-state cases cited
by the state, Laster v. State, 311 Ga. App. 360, 360–62,
715 S.E.2d 768 (2011), and State v. Greene, Docket No.
E-2013-00475-CCA-R3-CD, 2014 WL 3384661, *4 (Tenn.
Crim. App. July 10, 2014), cert. denied, Tennessee
Supreme Court, Docket No. E2013-00475-SC-R11-CD
(December 17, 2014), the victims identified their attack-
ers and described the details of their assaults.12
   ‘‘The due process clause of the fourteenth amend-
ment protects the accused against conviction except
upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is
charged.’’ (Internal quotation marks omitted.) State v.
Johnson, 165 Conn. App. 255, 288, 138 A.3d 1108, cert.
denied, 322 Conn. 904, 138 A.3d 933 (2016). Here, the
court instructed the jury that the defendant could be
found guilty only upon proof that he ‘‘knowingly or
recklessly inflicted bodily injury on someone.’’ I would
conclude that the circumstantial evidence in this case
was insufficient to convict the defendant of burglary
in the first degree beyond a reasonable doubt. Although
the state presented sufficient evidence to demonstrate
that the defendant, with the intent to commit a larceny,
entered and remained unlawfully in the victim’s resi-
dence, I do not believe that the state presented suffi-
cient evidence to demonstrate beyond a reasonable
doubt that, in the course of committing the offense, he
knowingly or recklessly inflicted bodily injury on the
victim. Thus, I would conclude that the state satisfied
its burden of proof with respect to burglary in the third
degree in that it presented evidence that the defendant
remained unlawfully in a building for the purpose of
committing a larceny therein, but, in my view, it failed
to prove beyond a reasonable doubt the additional
required element that serves to elevate the crime to the
perpetration of a burglary in the first degree.
  This court may order modification of an erroneous
judgment if the evidence is sufficient to support a con-
viction of a lesser included offense on which the jury
properly had been charged, as the jury’s verdict neces-
sarily includes a finding that the defendant was guilty
of that lesser offense. See, e.g., State v. Saracino, 178
Conn. 416, 421, 423 A.2d 102 (1979); State v. Grant, 177
Conn. 140, 147–49, 411 A.2d 917 (1979). In the present
case, the court charged the jury on the lesser included
offense of burglary in the third degree under General
Statutes § 53a-103, and the defendant does not claim
error as to any portion of the charge.
   Accordingly I would reverse the judgment of the trial
court and remand the case to the trial court with direc-
tion to modify the judgment and for the resentencing
of the defendant on the lesser included offense of bur-
glary in the third degree.
   1
     In our evaluation of the sufficiency of the evidence, we, of course,
consider the theory of liability on which the jury was instructed and, thus,
legally and logically could have based its verdict. See Cole v. Arkansas, 333
U.S. 196, 202, 68 S. Ct. 514, 92 L. Ed. 644 (1948) (‘‘[t]o conform to due
process of law, [defendants are] entitled to have the validity of their convic-
tions appraised on consideration of the case as it was tried and as the issues
were determined in the trial court’’); State v. Crespo, 317 Conn. 1, 15 n.14,
115 A.3d 447 (2015) (‘‘our review of the defendant’s claim of evidentiary
insufficiency is limited to the theory on which the case was submitted to
the jury’’).
   2
     On the count of burglary in the first degree, the trial court did not instruct
the jury to consider whether the defendant intentionally inflicted physical
injury on the victim or whether the defendant merely attempted to inflict
physical injury on her. Earlier, during one of several charging conferences,
in discussing the proposed instruction on burglary in the first degree, the
court stated: ‘‘Then . . . the next, element three, we took out intentionally,
so we’ll take it out here, it’s knowingly or recklessly inflicted.’’ There is no
indication in the record as to the evidentiary gap that may have formed the
basis for this deletion. ‘‘Penal statutes are to be construed strictly . . . and
not extended by implication to create liability that the legislature did not
purport to create.’’ (Citation omitted.) State v. Hufford, 205 Conn. 386, 392,
533 A.2d 866 (1987). ‘‘Inflict’’ means ‘‘[to] afflict . . . to give by or as if by
striking’’ or ‘‘to cause . . . something unpleasant . . . to be endured
. . . .’’ Merriam-Webster’s Collegiate Dictionary (11th Ed. 2012) p. 641. This
case, of course, concerns the infliction of physical injury.
   The state argues, and the majority agrees, that the jury had sufficient
evidence to infer that the defendant engaged in an altercation with the
victim and that he struck her in the face. Because, as the charge was
submitted to the jury in this case, proof of the aggravating element of
burglary in the first degree requires a showing that the defendant ‘‘inflict[ed]’’
physical injury on the victim; General Statutes § 53a-101 (a) (2); the exclusion
of the word ‘‘intentionally’’ nevertheless did not permit the jury to conclude
that the defendant could be convicted on that count absent proof he had
knowingly or recklessly caused physical injury to the victim by personally
engaging in a physical struggle with her that caused her injury. In charging
the jury on the lesser included offense of burglary in the third degree, the
court instructed the jury that it had to determine that it was the defendant
who was the perpetrator of that offense, but it did provide similar guidance
to the jury in relation to its burglary in the first degree instruction.
    Additionally, I observe that, although it was not raised by the defendant
as a claim of prosecutorial impropriety on appeal, the prosecutor improperly
argued to the jury during rebuttal argument and wrongfully informed it that
‘‘[i]f you decide that [the defendant] is the person [who] entered that house,
[who] took the TV, [and who] then pawned up in Springfield, there’s no
need to find him not guilty on count one, you should never get to burglary
in the third degree.’’ The element of knowing or reckless infliction of physical
injury to the victim was not mentioned.
    3
      There was a codefendant who was prosecuted separately.
    4
      Navarro-Gilmore testified that she had prior larceny convictions and a
pending larceny charge and therefore justified her suspicions as she had
‘‘walked the walk,’’ acting in the same manner as the two men she observed
after stealing something and fearing discovery.
    5
      As to this conclusion, there was no evidence that the defendant had
been home during the time preceding the burglary. Detective Brian Callaghan
of the Enfield Police Department testified that the defendant was ‘‘associ-
at[ed] with another address,’’ 10 Bigelow Avenue, and the location of this
address was shown to the jury by means of an aerial photograph. Yet, this
evidence appears to demonstrate that an occupant located inside of the
residence at 10 Bigelow Avenue would not have been able to observe the
victim’s residence. The Bigelow Avenue residence is blocks away from the
victim’s residence, and is located on the corner of White Street and Bigelow
Street. It was after Navarro-Gilmore and the driver of the car in which she
was a passenger turned the car onto White Street that she lost sight of the
two suspicious men she had seen carrying the television.
    6
      The victim’s daughter, Norma Shannon, testified that a crystal from the
dining room chandelier had fallen off of it.
    7
      Again, the majority previously noted that ‘‘there were no signs of a forced
entry . . . .’’
    8
      The state relies on Cote and other cases, but they are distinguishable in
that they involved direct or circumstantial evidence of a more convincing
nature than that presented in the present case, and they did not involve
situations in which the defendant was one of several suspected perpetrators
of the crime. In State v. Sherman, 127 Conn. App. 377, 383–90, 13 A.3d 1138
(2011), the defendant was unable to demonstrate that the evidence was
insufficient to prove beyond a reasonable doubt that he had entered the
premises unlawfully in light of evidence that he was in close proximity to
the victim’s residence at the time of the burglary, he possessed items missing
from the residence following the burglary, and he admitted that he had
stolen jewelry and guns. In State v. Spikes, 111 Conn. App. 543, 555, 961
A.2d 426 (2008), cert. denied, 291 Conn. 901, 967 A.2d 114, cert. denied, 558
U.S. 898, 130 S. Ct. 249, 175 L. Ed. 2d 170 (2009), the defendant was seen
in close proximity to the burgled home not only ‘‘shortly after’’ the burglary
occurred, but also shortly before the burglary, and he was observed by a
police officer and a postal worker. In State v. Marshall, 51 Conn. App. 489,
491, 495–96, 723 A.2d 1156, cert. denied, 248 Conn. 903, 732 A.2d 178 (1999),
the defendant, who was the only suspected perpetrator, was, like the defen-
dant in the present case, in possession of a stolen item at a pawn shop later
in the day, but there also was signature crime evidence, and the defendant’s
fingerprints were found on an air conditioning duct used to enter the burgla-
rized apartment.
    9
      The state previously had charged the defendant with assault of an elderly
person in the third degree in violation of General Statutes § 53a-61a, an
offense which was not charged in either of its two subsequent amended
informations. During trial, the state filed its first amended information and
charged the defendant with burglary in the first degree and conspiracy to
commit burglary in the third degree. After the state rested its case, the
defendant moved for judgment of acquittal on both counts. The court denied
the defendant’s motion for judgment of acquittal on the count of burglary
in the first degree but reserved decision on the count of conspiracy to
commit burglary in the third degree. Thereafter, the state filed its second
amended information, at which time it deleted the conspiracy to commit
burglary in the third degree count.
    10
       There also was conduct evincing consciousness of guilt by the defendant
in Cote in that there was evidence that he had dumped a bag of stolen
jewelry outside his car in the bushes where he had parked his car after
following the Richmond police chief to the police station. See State v. Cote,
supra, 136 Conn. App. 433.
  11
     There was no evidence presented to the jury identifying the codefendant,
the factual basis for his being charged with respect to the burglary, or the
location of his residence.
  12
     In Laster, however, the victim, who suffered from dementia, had diffi-
culty remembering what had happened to her, but her original statements
to her neighbor, her daughter, and the police describing her assault at the
hands of the defendant in that case were held to be sufficient evidence to
convict him, notwithstanding the victim’s contradictory testimony in court
that the defendant had injured her accidentally. Laster v. State, supra, 311
Ga. App. 360–62.
