Posts tagged with "attempt"

Where Defense Counsel Invited Error, He Could Not Then Demand a Mistrial

In the previous article “Jury Could Reasonably Infer That Defendant Withheld Fact She Participated in Robbery In Order To Receive State Benefits,” the defendant did not succeed in her claim that the State presented insufficient evidence to convict her of fraudulent receipt of worker’s compensation benefits. In her appeal, she additionally argued that because an officer improperly referenced the defendant’s request for counsel during his testimony, the court should have declared a mistrial but failed to do so.

During cross-examination, defense counsel pressed the officer regarding whether he had taken a statement from the defendant following the robbery, asking variants of the same question. The officer consistently stated he did not take a statement, and upon repeat questioning, clarified that he had not done so because the defendant asked for an attorney. Defense counsel did not object to this testimony, and it was the judge who pointed out, outside the presence of the jury, the potential constitutional issue of referencing the counsel request. At this point, defense counsel made an oral motion for a mistrial, arguing that the statement was improper and nonresponsive. The court denied the motion, finding that the officer’s testimony was “sort of responsive,” and instead instructed the jury to disregard the officer’s testimony about the defendant’s request for counsel.

Declaring a mistrial is an extreme measure granted in very few situations, such as prejudice undermining the right to a fair trial. If the court can implement a curative action to counter the prejudice, oftentimes through a jury instruction, this is the preferred course of action. It is within the trial court’s discretion to grant or deny a motion for a mistrial, and the defendant “bears the burden of establishing that there was irreparable prejudice to the defendant’s case such that it denied him a fair trial.” However, if the error claimed by the defendant resulted from questioning on his part during cross-examination, “[s]o long as the answer is clearly responsive to the question asked, the questioner may not later secure a reversal on the basis of any invited error.”

In this case, the Appellate Court determined that defense counsel invited the error. By repeatedly asking the officer whether he had taken a statement from the defendant, despite consistent negative answers, defense counsel “opened the door for [the officer] to explain why there was no statement.” In addition, the defendant failed to show how she was denied a fair trial. The judge gave a curative instruction to disregard the statement, and “[a]bsent evidence to the contrary, we presume that the jury followed the court’s limiting instruction.” The Court further noted the strength of circumstantial evidence against the defendant. Therefore, this argument on appeal was rejected as well, and the judgment affirmed.

When faced with a charge of larceny, burglary, conspiracy, 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.

Written by Lindsay E. Raber, Esq.

Jury Could Reasonably Infer That Defendant Withheld Fact She Participated in Robbery In Order To Receive State Benefits

In a recent criminal law matter, the Appellate Court of Connecticut affirmed the judgment of an individual who fraudulently received worker’s compensation benefits following a staged robbery.

This case arose from an incident that occurred on March 3, 2002. The defendant was the general cashier and income auditor of a Hilton Hotel, and appeared to be the victim of a robbery at that location. The perpetrator escaped with over $100,000 in cash and checks. Subsequently, the defendant sought medical treatment for anxiety, insomnia, muscle spasms, and other conditions that seemed to stem from this event. She filed for worker’s compensation, receiving over $5,500 in medical and indemnity benefits. As police investigated the robbery, they began to realize that the defendant was actually a willing participant and, in fact, suffered no injuries. Therefore, she was arrested and charged with fraudulent receipt of worker’s compensation benefits in violation of Connecticut General Statutes § 31-290c(a).

At trial, the State did not offer the defendant’s claim form into the record, which prompted defense counsel to file a motion for a judgment of acquittal (MJOA) at the close of evidence. It argued that unless the jury actually saw the form or statements the defendant made to the worker’s compensation board, it would need to speculate as to whether or not the defendant misrepresented or omitted important material information. The State argued that there was sufficient evidence on the record, upon which a reasonable inference could be made that the defendant did not truthfully describe the circumstances of the robbery and her part in it.

The court denied the motion, as well as the renewed MJOA after the defendant was convicted. It found that the jury did not need to speculate in order to reach a verdict in this case. Following sentencing, the defendant appealed, arguing once more that because the State did not submit the written claim into evidence, the jury was left in the position to guess whether the defendant omitted material facts in her claim.

The use of inferences, based on proven facts and circumstances, to establish knowledge has become commonplace in our justice system. In determining whether an inference made by the jury was proper, a reviewing court will consider “whether the circumstances of the particular case form a basis for a sound inference as to the knowledge of the accused in the transaction under inquiry.” In this case, with respect to the second MJOA, the Court engaged in the following discussion with defense counsel regarding why the jury did not have to speculate to reach their decision:

The Court: I understand that juries are not supposed to speculate, but is it speculation that she withheld the fact that this was a staged robbery?

[Defense Counsel]: Yes. We don’t know the circumstances she claimed the injury occurred in or what the injury was.

The Court: If you write to the [workers’] compensation commission and say I staged a robbery at the hotel, I took $ 114,000 worth of money and checks and credit card slips or whatever they use there, and I got hurt during a robbery that I conspired to create and participate in, and falsify, they’re still going to give you [compensation]?

[Defense Counsel]: I wouldn’t think so.

The Court: I wouldn’t think so, either. Here, I do not think that the jury had to engage in speculation. […]

The Appellate Court agreed that the inference drawn by the jury was reasonable based on the evidence presented. “It was the jury’s right to infer that no workers’ compensation benefits would have been paid to the defendant if she had disclosed that she had participated in the staged robbery.” Therefore, this aspect of the defendant’s claims on appeal failed, and ultimately the judgment was affirmed.

When faced with a charge of larceny, burglary, conspiracy, 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.

Written by Lindsay E. Raber, Esq.

Stolen Dealer Plates Found Relevant and Probative in Vehicle Retagging Scheme

In a recent criminal law matter, the Appellate Court of Connecticut affirmed a defendant’s conspiracy and larceny convictions, finding that evidence of stolen dealer plates was properly admitted.

This case arose from an incident that occurred on February 4, 2008. Months before, state police began investigating an operation where vehicles stolen in New York were “retagged” and sold in Connecticut. A detective went undercover posing as a buyer and agreed to purchase two stolen vehicles for $20,500. The defendant was present when dealer plates belonging to his previous employer were attached to one car, and he drove the second vehicle to the exchange point in Fairfield. Police moved in and arrested the defendant and several other individuals involved. Troopers observed materials used in the retagging process on the defendant’s person, as well as inside nearby vehicles driven by coconspirators.

The defendant was charged with two counts of conspiracy to commit larceny in the first degree and two counts of larceny in the first degree. Prior to trial, the defendant filed a motion seeking to exclude evidence of the stolen dealer plates. He argued that it was irrelevant, and the probative value, if any, was far outweighed by the prejudicial effect it would have on the jury. The State countered that such evidence went to intent and to show the defendant was a knowing participant in the conspiracy rather than an unwitting passenger.

The court allowed the evidence and attendant testimony, noting it was relevant to a material fact in the case. Thus, for example, a detective “opined that, based on her training and experience, a former employee would have better access than a stranger to the dealer plates because of his familiarity with the dealership and the knowledge of its layout.” The defendant was subsequently found guilty on all counts and appealed his convictions, arguing that evidence of the dealer plates was improperly admitted because it was not relevant, and alternatively that it was unfairly prejudicial.

To convict a defendant of conspiracy under Connecticut General Statutes § 53a-48, the State must show that an agreement to commit a crime was made between two or more people, one of whom acts overtly to further the conspiracy. This is a specific intent crime, and the State must prove that the conspirators “intended to agree and that they intended to commit the elements of the underlying offense.” Because it is difficult to ascertain a person’s subjective intent, it is often inferred from circumstantial evidence and rational inferences. Evidence is relevant so long as it has a “logical tendency to aid [the judge or jury] in the determination of an issue” to even the slightest degree, so long as it is not unduly prejudicial or merely cumulative.

In this case, the Appellate Court found that the dealer plates “had a logical tendency to show a connection between the defendant and the larcenous scheme,” as well as the requisite intent to commit conspiracy to commit larceny. Indeed, this evidence countered the defendant’s assertion that he was an innocent bystander. While the evidence itself might have been weak, this was an issue of its weight, not its relevance. Therefore, the trial court did not abuse its discretion by allowing it.

There are many grounds for excluding relevant evidence, such as the risk of unfair prejudice. Naturally, all evidence against the defendant is damaging and thus prejudicial, so the appropriate inquiry is whether the proffered evidence will “improperly arouse the emotions of the jury.” In this case, the defendant argued that the jury may have concluded that the dealer plates, which belonged to his previous employer, were stolen, a fact which they would then impermissibly use to infer he committed the presently charged offenses. The Appellate Court stated that while such impermissible inferences may have been drawn, the trial court has broad discretion in weighing the probative value versus prejudicial impact, a decision reversible only upon showing an abuse of discretion or manifest injustice. Based on the facts of this case, the Court could not conclude that the trial court abused its discretion; therefore, the defendant’s claims on appeal failed.

When faced with a charge of larceny, burglary, conspiracy, 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.

Written by Lindsay E. Raber, Esq.

Coconspirator’s Opinion Was Properly Admitted, As It Did Not Involve “Ultimate Issue”

In the article “Stolen Dealer Plates Found Relevant and Probative in Vehicle Retagging Scheme,” the defendant did not prevail on his arguments that the trial court improperly allowed dealer plates belonging to his previous employer into evidence. In his appeal, he also argued that the trial court abused its discretion when it allowed another member of the conspiracy to give “impermissible opinion testimony regarding an ultimate issue of fact.”

One of the coconspirators testified for the State, and the prosecutor asked this individual a series of questions about whether the defendant was “part of the group” of those arrested in Fairfield on February 4, 2008. Defense counsel objected, arguing that this involved an ultimate issue of fact, but the State countered, “I believe I asked him if he was part of this group. Whether he’s part of the conspiracy, I didn’t ask him that.” The court overruled the objection and allowed the questioning.

In essence, the coconspirator testified that if the defendant was not “part of the group,” he would not have been present while the vehicle plates were being changed or at the exchange point. The coconspirator further answered, “I imagine that if he wasn’t part of the group, he wouldn’t drive the car.” On appeal, the defendant characterized this testimony as impermissible lay opinion regarding an ultimate issue of fact, and the trial court erred by permitting it.

The Connecticut Code of Evidence § 7-1 is relevant to the Appellate Court’s conclusion in this matter. Pursuant to this section:

If a witness is not testifying as an expert, the witness may not testify in the form of an opinion, unless the opinion is rationally based on the perception of the witness and is helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue.

Opinions are improper if they “embrace an ultimate issue to be decided by the trier of fact.” This includes legal opinions about whether or not the defendant is guilty.

In this case, the Appellate Court concluded that the coconspirator’s testimony was proper lay opinion. It was “rationally based on his perception of the circumstances as he perceived them on the night of February 4, 2008, and when he observed prior conduct in New York.” Such testimony was helpful to the jury in determining whether the defendant had the requisite intent for committing conspiracy. In addition:

Although it is true that evidence of association is relevant to proving participation in a conspiracy… association, by itself, does not necessarily constitute intentional participation in a conspiracy. One can be “with” a group without being a conspirator, even if others in the group are, in fact, conspirators.

The nature of the coconspirator’s testimony was not the same as giving an opinion about whether the defendant “intended to agree to engage in a larceny or whether he intended to actually commit the larceny,” which are ultimate issues in this case. Because the testimony did not encompass opinions of guilt, the trial court did not abuse its discretion by allowing it.

When faced with a charge of larceny, burglary, conspiracy, 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.

Written by Lindsay E. Raber, Esq.

Although Court Misinstructed the Jury on Essential Criminal Elements, Overwhelming Evidence of Guilt Supported the Conviction on Appeal

In a previous article, the defendant failed to convince the Appellate Court that the State provided insufficient evidence to convict him of numerous charges arising from a robbery incident. He further contended that the trial court did not properly instruct the jury regarding attempt to commit assault in the first degree, and its failure to do so constituted harmful error that deprived him of his right to fair notice of the charges against him.

The defendant was charged for attempted assault under Connecticut General Statutes § 53a-59(a)(1), which requires a showing of attempted serious physical injury by use of a deadly weapon. However, the judge instructed the jury by the language of § 53a-59(a)(5), which only requires intent to cause physical injury by means of discharging a firearm. Because of this error, the defendant argued that the court improperly gave the jury a “legally inadequate theory of liability.”

It is harmless error for a court to give an instruction that improperly omits an essential criminal element “if a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error.” This concept goes hand-in-hand with another principle of appellate review of jury instructions: “[T]he test of a court’s charge is… whether it fairly represents the case to the jury in such a way that injustice is not done to either party.”

In this case, the Appellate Court found that with respect to the element describing the type of weapon, the jury was not misled. It received a written copy of the jury charge for deliberation purposes, and within this document was the definition of “deadly weapon.” In addition, the jury found the defendant guilty of robbery in the first degree, which requires that the defendant be armed with a dangerous weapon while committing the crime.

In addition, the element regarding the seriousness of the attempted injury was satisfied by the evidence. It was undisputed that the perpetrator aimed for the cashier’s midsection while firing at close range. As the Court explained, “There can be no doubt that such action ‘creates a substantial risk of death, or… serious disfigurement… impairment of health… loss or impairment of the function of any bodily organ.” The defendant never contested this evidence at trial, only his identification as the perpetrator. Therefore, the Court found that the misinstruction was, beyond a reasonable doubt, harmless error and did not mislead the jury.

When faced with a charge of larceny, burglary, robbery, 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.

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

In a recent criminal law matter, the Appellate Court of Connecticut held that the State presented sufficient evidence to convict the defendant of charges arising from the robbery of a deli.

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.

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.

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.

When faced with a charge of larceny, burglary, robbery, 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.

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Knife-Wielding Defendant Properly Convicted of Attempted Assault, Appellate Court Finds

In a recent criminal law matter, the Appellate Court of Connecticut found that the State provided sufficient evidence to convict the defendant of attempt to commit assault in the first degree.

This case arose from an incident that occurred on October 21, 2006. The defendant and his wife were arguing over his alcoholism when he threatened to kill her. The defendant went to the butcher’s block for a knife, and as the wife fled their home, she saw him opening a kitchen drawer containing loose knives. At a neighbor’s house, the wife called her daughter and asked to be picked up. After the daughter arrived with her boyfriend, the wife realized she forgot her medication at the house, so the group returned to retrieve it.

After entering the home, they saw the defendant standing at the top of the stairs wielding a knife saying “I’m going… to kill her.” As the wife ran for the door, “she saw the defendant start down the stairs toward her, knife raised, before she again ran from the home.” The daughter’s boyfriend saw the defendant swing the knife. Outside, the group called police as the defendant entered the garage. He was placed under arrest, but police could not find a knife on him or inside the garage. However, they located a three-inch knife on the kitchen table.

The defendant was charged with attempt to commit assault in the first degree, among other crimes, in violation of Connecticut General Statutes §§ 53a-49(a)(2) and 53a-59(a)(1). At trial, the daughter’s boyfriend testified that the knife he saw the defendant holding was approximately 2.5 to 3 inches in length. The three witnesses, however, provided inconsistent testimony regarding the distance the defendant moved down the stairs. Regardless, the defendant was convicted and sentenced to eighteen years of incarceration.

On appeal, the defendant argued in part that the State provided insufficient evidence to convict him of attempted assault. He claimed that the State did not show he came within close proximity of the wife, or that the knife submitted into evidence was the one he alleged wielded. Finally, he argued that because the testimonial inconsistencies were not resolved, the State failed to meet their burden.

In Connecticut, to be convicted of attempt to commit assault in the first degree, the State must provide “proof of intentional conduct constituting a substantial step toward intentionally causing the victim serious physical injury by means of a dangerous instrument.” To qualify as a substantial step, the act taken by the assailant “must be strongly corroborative of the actor’s criminal purpose.” In other words, the action had to be the start of “a line of conduct which will lead naturally to the commission of the crime.”

In this case, the Appellate Court was not persuaded by any aspect of the defendant’s insufficiency of the evidence claim. It stated that there is no requirement under Connecticut law that “an assailant must obtain a particular physical proximity to an intended victim to have taken a substantial step toward committing an assault.” Indeed, various types of conduct enumerated in the attempt statute, such as lying in wait and following a contemplated victim, have no physical proximity requirement.

The Appellate Court disagreed that the State failed to authenticate the knife found at the scene as the one used in the crime. It noted the boyfriend’s testimony as consistent with the knife actually found, and noted that the defense “offered no argument in law or logic that a three inch knife cannot be a deadly weapon.” Finally, it is the responsibility of a jury to weigh the credibility of witness testimony, and could either accept all of it, some of it, or none of it. However, in this case, “nothing in the testimony of the witnesses contradicted the basic facts… that the defendant was holding a knife and advancing toward [his wife] after having threatened her life.” Therefore, it was reasonable for a jury to conclude that the defendant attempted to commit assault using a dangerous instrument.

When faced with a charge of assault, battery, 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.

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In Reviewing Evidentiary Inferences, Whether They Are Reasonable and Logical is Paramount Consideration on Appeal

As described in an article posted yesterday, the Appellate Court of Connecticut agreed with the State that a jury made permissible inferences regarding a defendant’s fraudulent receipt of worker’s compensation benefits. Prior to this decision, the Court heard additional matters regarding the sufficiency of the evidence used to convict the defendant of charges stemming from the hotel robbery itself.

As the police investigation proceeded, the evidence began to indicate that the defendant was not an innocent victim of the robbery, but rather an active participant. As such, she was arrested for and charged with larceny in the first degree and falsely reporting an incident in the second degree, in violation of Connecticut General Statutes §§ 53a-122(a)(2) and 53a-180c(a)(3). A jury returned guilty verdicts on both counts, and the defendant received a total effective sentence of twelve years’ incarceration, execution suspended after five years, with five years of probation.

On appeal, the defendant asserted four arguments, including the claim that the trial court erred by not granting her motion for a judgment of acquittal (MJOA) for both crimes. After the State closed its case-in-chief, defense counsel orally moved for acquittal, arguing that “the evidence was insufficient to permit a finding of guilt as to either crime in general.” The court denied this motion, and defense counsel promptly rested its own case.

The defendant initially attempted to diminish the evidence’s sufficiency by noting it was circumstantial, rather than direct, in nature. However, there is no legal distinction between these two types of evidence with respect to probative force. As long as a jury is convinced of guilt beyond a reasonable doubt, either form may be used.

The defendant further asserted her insufficiency of the evidence claim by arguing that police did not spend enough time on this case to pursue other possible perpetrators, such as the defendant’s coworkers. In her appellate brief, the defendant argued that the jury should have disagreed with the State’s interpretation of the evidence to favor her own, asserting “‘plausible’ ways to interpret the evidence so as to reach a [not guilty] verdict.”

When a jury considers evidence, it need not “accept as dispositive those inferences that are consistent with the defendant’s innocence. … The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence that it deems to be reasonable and logical.” Therefore, when a reviewing court determines whether or not a jury’s inference was proper, it asks whether there is “a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” In this case, it was the jury’s authority to weigh the credibility of witness testimony and choose which inferences to accept – here, those asserted by the State. Therefore, the Court found that there was ample evidence to support the defendant’s convictions, and the denial of the MJOA was not erroneous.

When faced with a charge of larceny, burglary, conspiracy, 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.

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Jury Reasonably Concluded Threat of Force Was Made During Course of Robbery; Absence of Firearm Immaterial

In a recent criminal law matter, the Appellate Court of Connecticut rejected a defendant’s claims that the State provided insufficient evidence to convict her of robbery and conspiracy.

This case arose from an incident that occurred on February 29, 2004. A loss prevention supervisor at the J.C. Penney in Danbury observed the defendant and her friend taking a foot massager from the store without paying for it. He pursued them into the mall and requested that they return with him; both refused and claimed they purchased the item. The defendant then threatened that she would blow the supervisor’s brains out if he touched the friend, who was presently holding the massager. The friend dropped the item as they walked away.

The defendant was subsequently convicted on numerous counts, including robbery in the third degree and conspiracy to commit robbery in the first degree. Following sentencing, she appealed and argued in part that there was insufficient evidence to convict. She claimed that the statement was not made for the purpose of retaining possession of the foot massager. The defendant further stated that at the time the threat was made, she made no action indicating she actually had a firearm in her possession.

Under Connecticut General Statutes § 53a-133, a person commits a robbery:

[W]hen, in the course of committing a larceny, he uses or threatens to use immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling 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.

A jury must consider whether the use or threatened use of force takes place “during the continuous sequence of events surrounding the taking or attempted taking.” If the jury answers in the affirmative, the use in question “is considered to be in the course of the robbery or attempted robbery within the meaning of the statute.” In this case, the Appellate Court determined that the jury had authority to conclude that the threat made by the defendant – blowing the supervisor’s brains out – was made “during the continuous sequence of events surrounding the taking of the foot massager.” Indeed, it was stated while the friend was holding onto the massager after they had only just left the store.

The Appellate Court rejected the defendant’s argument regarding the significance of an absent firearm. Third degree robbery requires mere physical force, while robbery in the first degree includes “[threatened] use of what he represents by his words or actions to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.” In other words, the State need not prove that the defendant in question actually had a gun at the time he made the threat. Therefore, with respect to this aspect of the appeal, the Court agreed that the State provided sufficient evidence to convict on both counts.

When faced with a charge of larceny, burglary, conspiracy, 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.

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State Presented Sufficient Evidence that Defendant “Intended to Convert the Property to His Use Without Paying For It”

In a recent criminal law matter, the Appellate Court of Connecticut affirmed the defendant’s conviction for sixth degree larceny, as he had the requisite intent to commit the crime.

This case arose from an incident that occurred on May 5, 2005. The defendant purchased a foam poster board from Staples in Fairfield, but as he was exiting the main store into the foyer, he was not carrying it. Instead, he was observed scooting a box with an item he did not pay for along the floor beneath the theft detection sensors located adjacent to the exit doors. The defendant scooped it up and proceeded outside, with store employees in pursuit. When one yelled at him to “drop the box,” the defendant placed it on a nearby dolly and quickly left the area. Inside the box was “a Uniden telephone, in its original packaging, that was offered for sale” at the store.

Another Staples customer observed the defendant getting into a vehicle and driving off. She informed the store manager, who wrote down the license plate and called police. Officers identified the owner as the defendant’s girlfriend and proceeded to her residence, where they located the car (which had signs of recent use) but not the defendant. Soon thereafter, the defendant turned himself in and provided police with a signed written statement in which he accepted responsibility for his actions.

The defendant was charged with larceny in the sixth degree by shoplifting, and for being a persistent larceny offender. At trial, the defendant testified that he came across the box inside the store and immediately returned it to a sales associate. He denied leaving the store with the box or having knowledge of its contents, and stated he never intended to leave the store without paying for it. The sales associate and store manager provided a much different version of the events. The jury returned a guilty verdict on the larceny count, and the defendant pled guilty to the second, resulting in three years’ incarceration. On appeal, the defendant contended that the State provided insufficient evidence that he had the requisite intent to commit larceny.

Under Connecticut General Statute (CGS) § 53a-119, “[a] person commits larceny when, with the intent to [permanently] deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains, or withholds such property from an owner.” Larceny is considered a specific intent crime, so the State must provide direct or circumstantial evidence (most often the latter) that the defendant possessed a “subjective desire or knowledge that his actions constituted stealing” at the time of the crime.

In this case, the Appellate Court determined that the defendant confused sufficiency and credibility issues. He appeared to argue that all of the testimony was identical. However, this is an inaccurate reading of the trial court record, for there were vast discrepancies between the testimonies given by the defendant and State’s witnesses. It is the province of the jury to weigh the credibility of witness testimony and believe all of it, some of it, or none of it. Thus, the jury was within its right to credit the testimony of the State witnesses, and such testimony, along with the defendant’s written statement, provided sufficient evidence that the defendant intended to take the phone without paying for it.

When faced with a charge of larceny, burglary, conspiracy, 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.

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