State v. Chance

147 Conn.App. 598

83 A.3d 703

STATE of Connecticut

v.Noel CHANCE.

No. 34393.

Appellate Court of Connecticut.

Argued Sept. 12, 2013.

Decided Jan. 21, 2014.

Glenn W. Falk, assigned counsel, for the appellant (defendant).

Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, was David Shepack, state's attorney, for the appellee (state).

GRUENDEL, LAVINE and BEACH, Js.

BEACH, J.

The defendant, Noel Chance, appeals from the judgment of conviction, rendered after a jury trial, of kidnapping in the second degree in violation of General Statutes § 53a–94, and attempt to commit kidnapping in the second degree in violation of General Statutes §§ 53a–49 and 53a–94. ¹ On appeal, the defendant claims that: (1) there was insufficient evidence for him to be convicted of kidnapping in the second degree and attempted kidnapping in the second degree; (2) any distinction between kidnapping in the second degree, § 53a–94 (a), and unlawful restraint in the first degree, General Statutes § 53a–95 (a), is unconstitutionally vague as applied to him in this case; (3) his conviction and sentences for both kidnapping and attempted kidnapping, which were based on the same incident, violate his right against double jeopardy; and (4) the trial court abused its discretion in ordering him to register as a sex offender upon release from imprisonment. We affirm in part and reverse in part the judgment of the trial court.

The jury reasonably could have found the following facts. From the spring of 2006 through the summer of 2007, the defendant regularly drove around rural areas of Litchfield County in his pickup truck with his black Labrador retrievers and followed female joggers. Four women testified about events that occurred prior to the incident involving the victim in this case. They identified the defendant's silver pickup truck, which sported an oval black Labrador retriever silhouette sticker on the rear window, as the truck that followed them. These women testified at trial that the defendant repeatedly drove past them without acknowledging them, as if he was watching them, as many as ten to twelve times during any one individual run.

One of the women, for example, a forty-three year old schoolteacher, reported the defendant's behavior to a state police trooper who worked in her school. The trooper advised her to note the license plate number of the defendant's vehicle. Later, when getting into her car after a jog, she saw the defendant's truck and was able to get close enough to make out, and to record, the license plate number. After recording the license plate number, she continued driving. At the next stop sign, she looked up and saw that the defendant's truck had circled around her and appeared behind her in her rearview mirror. “[F]rightened,” she drove to the Litchfield courthouse. Shortly thereafter, she stopped running in the area and provided the state trooper who worked at her school with the defendant's license plate number.²After receiving complaints, police officers talked to the defendant on three separate occasions and warned him that his conduct was alarming female joggers. On March 30, 2007, after receiving one witness' complaint and determining that the license plate number the witness provided was registered to the defendant, Troopers Jason Uliano and Cono D'Elia contacted the defendant. When the troopers informed the defendant that his actions were alarming female joggers, the defendant indicated that he understood and said that “he would drive somewhere else, he wouldn't do that anymore.” The defendant later provided a written statement to Trooper Samantha McCord in which he explained that he occasionally drove around Litchfield with his dogs and may have driven on the same roads repeatedly while drinking his coffee, but that he did not intend to offend anyone.

On April 27, 2007, McCord again visited the defendant and confronted him with information she uncovered that was inconsistent with information he had previously provided about his employment status. When confronted, the defendant acknowledged that he was out of work and stated that he had left some things out of his initial statement. The defendant then admitted that he was driving in the area described by the witness in her complaint—stating that he had observed a “pretty” brunette and that “he had been driving past to check out the pretty brunette.” McCord warned the defendant that his conduct was alarming female joggers in the area and that he should cease driving in the area. The defendant appeared to understand McCord's warning.

On August 11, 2007, the five foot tall, ninety pound, fourteen year old victim in this case was jogging on a secluded road in Litchfield.³ The defendant, who was driving in his truck with his dog, started following the victim. The defendant slowed down and asked her if she wanted a ride. When she refused, the defendant stopped his truck on the side of the road, exited his truck, and chased her. The defendant grabbed her by her ponytail causing her to fall face down on the side of the road. The defendant then engaged in a struggle with the victim that, according to testimony, lasted approximately five minutes. The defendant wrapped his arms around her, touching her breasts, and tried to pick her up. The victim fought back and screamed. The defendant covered her mouth to suppress her screams, told her to shut up, and attempted to pick her up. The victim began “heaving,” unable to catch her breath. The defendant released the victim, backed away, and asked her if she was okay. The victim responded, “just leave,” and, “please leave.” When the defendant turned and walked toward his truck, the victim ran into a wooded area and hid. The victim attempted to call her mother from her cell phone, but was unable to reach her. She then called 911. State troopers arrived at the scene and aided the victim.

The state charged the defendant in a six count information as follows: in count one, kidnapping in the first degree in violation of General Statutes § 53a–92 (a)(2)(A); in count two, kidnapping in the second degree in violation of § 53a–94; in count three, attempted kidnapping in the second degree in violation of §§ 53a–94 and 53a–49 (a)(2); in count four, unlawful restraint in the first degree in violation of § 53a–95; and in counts five and six, risk of injury to a child in violation of § 53–21(a)(1) and (2), respectively. The jury found the defendant guilty of kidnapping in the second degree, attempted kidnapping in the second degree, unlawful restraint in the first degree, and risk of injury to a child in violation of § 53–21(a)(1). The trial court merged the defendant's conviction on count three, attempted kidnapping in the second degree, with his conviction on count two, kidnapping in the second degree. On October 17, 2008, the court imposed a total effective sentence of twenty years of incarceration, execution suspended after eight and one-half years, followed by five years of probation with special conditions. The court additionally ordered the defendant to register as a sex offender for a period of ten years following his release. The defendant unsuccessfully moved for a new trial. After restoration of the defendant's appellate rights through a habeas corpus proceeding, this appeal followed. ⁴ Additional facts will be set forth as necessary.

I

The defendant first claims that the state failed to introduce sufficient evidence to prove kidnapping in the second degree and attempted kidnapping in the second degree beyond a reasonable doubt.⁵ Specifically, the defendant claims that the state failed to prove beyond a reasonable doubt that he restrained or attempted to restrain the victim with the intent to prevent her liberation. The defendant argues that on the basis of State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), insufficient evidence existed from which the jury reasonably could conclude that he intended to prevent the victim's liberation for a longer period of time or to a greater degree than was necessary to commit the uncharged crime of assault. We disagree.

We first set forth our standard of review. “In reviewing the sufficiency of the evidence to support a criminal conviction 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] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Cook, 287 Conn. 237, 254, 947 A.2d 307, cert. denied, 555 U.S. 970, 129 S.Ct. 464, 172 L.Ed.2d 328 (2008). “While ... every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense[s], each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.... [I]n determining whether the evidence supports a particular inference, we ask whether that inference is so unreasonable as to be unjustifiable.... [A]n inference need not be compelled by the evidence; rather, the evidence need only be reasonably susceptible of such an inference.” (Internal quotation marks omitted.) State v. Ayala, 133 Conn.App. 514, 519, 36 A.3d 274, cert. denied, 304 Conn. 913, 40 A.3d 318 (2012).

“[T]he question of intent is purely a question of fact.... The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged.... Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person's state of mind is usually proven by circumstantial evidence.... Intent may be and usually is inferred from conduct.... [W]hether such an inference should be drawn is properly a question for the jury to decide.” (...