Posts tagged with "attempt to commit assault in the first degree"

By Purposefully Driving At Officer on Foot, Defendant Took “Substantial Step” to Commit Assault

The Case

This case arose from an incident that occurred on March 16, 2006. A police cruiser pursued the operator of a motor vehicle into a fenced-in construction site after he sped off during a valid traffic stop. Two foot patrol officers, C and H, assisted and made their way to a closed gate on the other side of the property. With weapons drawn, the officers repeatedly yelled at the operator, later identified as the defendant, to stop.

The defendant flashed his high beams at the officers and drove his vehicle into the fence, which in turn struck C, who “flew in the air and landed in the street.” The fence did not break, and the defendant once again drove at it. H realized that if the defendant continued on this path, C, who was lying motionless in the street, would be run over. H fired four shots at the defendant’s car, which turned and drove directly toward him. H managed to get out of the way of the car, which instead made contact with H’s service weapon.

The Charges

The defendant was subsequently arrested, charged with, and convicted of assault of a peace officer, attempt to commit assault in the first degree, and attempt to commit assault of a peace officer, among other charges. On appeal, the defendant argued that there was insufficient evidence “to prove that he intended to cause serious physical injury to [H] or that he took a substantial step to commit the crime.”

To be convicted of attempt to commit assault in the first degree, the State must prove “intentional conduct constituting a substantial step toward intentionally causing the victim serious physical injury by means of a dangerous instrument.” Unless a defendant confesses, circumstantial evidence is frequently used to infer intent to commit a crime. As the Appellate Court previously explained:

Intent may be gleaned from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading up to and immediately following the incident. … [I]t is a permissible… inference that a defendant intended the natural consequences of his conduct.

The Defendant’s Argument

The defendant claimed that he simply intended to elude police, but the Court was not persuaded. “The existence of an intent to escape does not necessarily negate the existence of an intent to cause serious physical injury when making the escape.” Instead, the Court held that a jury could reasonably find that intent to injury H was established: the defendant knew of the officers’ location, because they were repeatedly yelling at him; he flashed his high beams at them; he struck C with his car; and he purposefully turned his vehicle toward H on his second attempt to escape.

In addition, the defendant argued that the State failed to prove that he took a substantial step to commit a first-degree assault. “To constitute a substantial step, the conduct must be strongly corroborative of the actor’s criminal purpose.” The defendant stated that he merely brushed H’s service weapon, which was simply not enough. The Appellate Court disagreed, writing that simply because H dodged the oncoming vehicle did not mean that there was insufficient showing the defendant intended to inflict serious physical injury. “An attempt is complete and punishable, when an act is done with intent to commit the crime… whether the purpose fails by reason of interruption… or for other extrinsic cause.”

Thus, in this case, the jury could reasonably conclude that the defendant’s actions “constituted a substantial step that strongly corroborated the defendant’s criminal purpose.” Therefore, this aspect of the defendant’s appeal failed.

Written by Lindsay E. Raber, Esq.

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When faced with a charge of assault or attempt, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Deli Robber’s Conviction Upheld, as State Presented Sufficient Evidence to Establish Requisite Guilt

Case Background

This case arose from an incident that occurred on February 26, 2005. The defendant wore a half mask as he entered a deli, pulled a handgun from his jacket pocket, and pointed it at the cashier while demanding money. When the cashier went to get his wallet from his coat, located behind a glass deli case, the defendant fired at him twice. Both shots missed, and the defendant escaped with a paltry $38 cash.

One month after the robbery, police presented a photographic array to the cashier, who chose the defendant but needed a recently-taken picture to be sure. Four days later, a newspaper article with a more recent picture of the defendant appeared, linking him with another robbery. The cashier promptly called police and stated the man in the newspaper photograph (the defendant) was the same man who robbed him at the deli, then made a positive identification (ID) of the defendant in a second photographic array. However, the gun used to perpetrate this crime was never recovered.

Sufficient Evidence For Robbery, Larceny, and Attempt to Commit Assault Found

The defendant was charged with a convicted of robbery in the first degree, larceny in the sixth degree, attempt to commit assault in the first degree, and carrying a pistol without a permit. On appeal, he argued that the State presented insufficient evidence identifying him as the robber. The defendant claimed that the cashier’s ID was unreliable because the perpetrator wore a mask. He cited the cashier’s initial inability to positively identify the defendant in the first photographic array and the passage of time between the incident and the second photographic array.

The Appellate Court was not convinced, citing a plethora of trial evidence upon which the jury could reasonably conclude the defendant as the robber. The cashier saw the defendant for an extended period of time in a brightly lit area at close proximity. According to testimony, the mask itself was particularly thin, allowing the cashier to see features through it, and was only a half mask, which does not cover one’s mouth, nose, forehead, eyes, and sections of hair.

Finally, in contrast to the defendant’s assertion, the cashier was “100 percent sure that the defendant was the [perpetrator]” and made an in-court identification during trial. It was up to the jury, as the arbiter of credibility, to decide what testimony to believe. Thus, this aspect of the defendant’s insufficiency of the evidence claim failed.

Sufficient Evidence for Carrying a Pistol without a Permit Found

In Connecticut, a person may not carry a pistol or revolver outside of their home or place of business without a permit to do so. A pistol or revolver that falls under this statute must have a barrel length of less than twelve inches. Without the gun itself presented into evidence, the defendant argued that the State did not sufficiently establish the length of the barrel on the firearm used in the robbery. As such, a conviction for this charge was improper.

Police recovered two spent .45 caliber shell casings and two spent bullets, the latter located behind the deli case. At trial, State experts testified that only a handful of companies create the weapons that can fire this ammunition, and “none… manufactured firearms with a barrel length of more than twelve inches capable of discharging the kind of spent casings and bullets found at the scene of the robbery.”

In addition, the cashier provided testimony that the firearm was pulled from a jacket pocket and held with just one hand, facts from which inferences are permitted that would suggest the barrel is only twelve inches or less in length. Therefore, the Appellate Court found that the jury could reasonably infer that all elements of the carrying without a permit charge were supported by sufficient evidence.