State v. Joseph

976 A.2d 772

116 Conn.App. 339

STATE of Connecticut v. Reginald JOSEPH.

No. 28679.

Appellate Court of Connecticut.

Argued April 14, 2009.

Decided August 11, 2009.

Matthew D. Popilowski, special deputy assistant public defender, with whom was Elizabeth M. Inkster, senior assistant public defender, for the appellant (defendant).

Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and James M. Bernardi, supervisory assistant state's attorney, for the appellee (state).

LAVINE, ROBINSON and BERDON, Js.

BERDON, J.

The defendant, Reginald Joseph, appeals from the judgments of conviction, rendered after a jury trial of one count of larceny in the third degree in violation of General Statutes §§ 53a-119 and 53a-124(a)(2), and two counts of unlawful restraint in the first degree in violation of General Statutes § 53a-95(a). The court, Hon. Martin L. Nigro, judge trial referee, sentenced the defendant to an effective term of eight years imprisonment. On appeal, the defendant claims that (1) the evidence was insufficient to sustain his conviction of unlawful restraint in the first degree; (2) the court improperly failed to instruct the jury on reckless endangerment in the second degree, which he claims is a lesser offense included within unlawful restraint in the first degree; (3) the court improperly instructed the jury on the statutory definition of intent; and (4) the court improperly joined in one trial the charges against him, which arose from two unrelated incidents. We agree with the defendant's second claim and, therefore, reverse the judgment in the second case with respect to the defendant's conviction of two counts of unlawful restraint in the first degree. With respect to the defendant's conviction of larceny in the third degree in the first case, we conclude that the defendant has failed to demonstrate substantial prejudice as a result of the joinder, and, therefore, we affirm that judgment.

Evidence of the following facts were presented at trial. On December 30, 2005, Jolanta Pierce, the manager of the Toys "R" Us store in Danbury, called Richard Fernandez, the district loss prevention manager, to investigate a theft of merchandise. When Fernandez arrived at the Danbury store, he and Pierce viewed a videotape that allegedly showed¹ the defendant, an employee of the store, removing a large amount of electronics merchandise from the store without paying for it. Fernandez called the defendant, explained the content of the tape and asked the defendant to return to the store and do his best to recover the merchandise that he took. The defendant admitted that he had removed merchandise from the store without paying for it and agreed to return to the store.

Upon his arrival at the store, the defendant returned approximately $1450 worth of merchandise, which was scanned and determined to be part of the merchandise that had been taken that day. He also admitted that he had stolen other merchandise, valued by Fernandez at approximately $12,000, which he already had turned over to individuals in Bridgeport to sell. In a signed statement, which was introduced into evidence, the defendant admitted that, with the help of others, he had stolen from the store between $15,000 and $17,000 worth of merchandise. Fernandez testified that the defendant admitted to stealing approximately $3000 worth of merchandise on December 29, 2005, and approximately $13,000 worth of merchandise on December 30, 2005. The December 30 incident is the incident with which the defendant was charged. Thereafter, the police arrested the defendant, and he was charged with larceny in the third degree.

In an unrelated incident, on January 31, 2006, at approximately 9 p.m., Melinda Mock and her twenty-two year old son, Joseph Baker, returned to Mock's condominium in Norwalk. Mock and the defendant had been involved romantically, and the defendant kept some of his personal effects at her condominium. As Mock and Baker approached Mock's deck, the defendant confronted them and poured gasoline on himself. The events that followed were disputed at trial.

On the night of that incident, Baker signed a statement, which was admitted into evidence, indicating that (1) the defendant poured gasoline on himself and stated, "you think I'm playing"; (2) Baker heard the lighter make a clicking noise but did not see a flame; (3) the defendant pulled Mock and rubbed her hand on his chest; (4) the defendant poured gasoline on Baker and Mock; and (5) Baker "squared up with [the defendant] and then [he] was scuffling with him. ... After [they] wrestled for a while then [Mock] broke it up. ..." Mock also signed a statement that night, which was admitted into evidence, indicating that (1) she saw the defendant come from "nowhere"; (2) the defendant held a twisted newspaper and a lighter "as if he was going to light himself up"; (3) she was "pushing [the defendant] away"; and (4) the defendant "went towards [her] son and grabbed him. ..." The next day, in connection with this incident, the Norwalk police department arrested the defendant on charges of attempt to commit assault in the first degree and unlawful restraint in the first degree.

At trial, Baker testified that his memory of the January 31, 2006, incident was unclear. Although at times his testimony was self-contradictory, he clearly stated that the defendant did not pull Mock or pour gasoline on her. He also described his encounter with the defendant as a fight. Mock's trial testimony also differed from her January 31 statement. She testified that she did not remember the incident well, the defendant poured gasoline on himself and not on her, she pushed him in an attempt to stop him from hurting himself and she did not want him to be prosecuted.

In connection with the December 30, 2005, incident, the jury found the defendant guilty of larceny in the third degree. In connection with the January 31, 2006, incident, the jury found the defendant not guilty of two counts of attempt to commit assault in the first degree and guilty of two counts of unlawful restraint in the first degree. This appeal followed.

I

The defendant claims that the evidence adduced at trial was insufficient to sustain his conviction of unlawful restraint in the first degree.² "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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Jason B., 111 Conn. App. 359, 363, 958 A.2d 1266 (2008), cert. denied, 290 Conn. 904, 962 A.2d 794 (2009).

"A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury." General Statutes § 53a-95(a). Unlawful restraint in the first degree requires that the defendant had the specific intent to restrain the victim. State v. Youngs, 97 Conn.App. 348, 363, 904 A.2d 1240 cert. denied, 280 Conn. 930, 909 A.2d 959 (2006). "`Restrain' means to restrict a person's movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent. ..." General Statutes § 53a-91(1).

The defendant argues that the state did not present sufficient evidence from which the jury could have found beyond a reasonable doubt that he intentionally restrained Mock and Baker. The defendant argues that to prove restraint, the state relied on the conflicting testimony of Baker and Mock, which, even if accepted, proved only that he poured gasoline on himself and that any contact between himself and Baker and Mock was incidental to his conduct toward himself. Notwithstanding the defendant's argument, the statements of Mock and Baker from the night of the incident indicated that (1) the defendant pulled Mock and rubbed gasoline on her; (2) the defendant grabbed Baker; and (3) Baker and the defendant wrestled. Reviewing the evidence in the light most favorable to sustaining the verdict, we conclude that the evidence was sufficient for the jury to conclude beyond a reasonable doubt that the defendant intentionally restrained Mock and Baker. See, e.g., State v. Drake, 19 Conn.App. 396, 400-401, 562 A.2d 1130 (1989) (large male defendant restrained female victim where he, appearing "`desperate,'" entered her home and told her to hang up telephone and that he was running from police); State v. Pauling, 102 Conn.App. 556, 565-66, 925 A.2d 1200 (defendant restrained victim where he slapped her, struggled with her, grabbed her by throat and threw her onto bed), cert.denied, 284 Conn. 924, 933 A.2d 727 (2007). Accordingly, we conclude that the evidence adduced at trial was sufficient to sustain the defendant's conviction of two counts of unlawful restraint in the first degree.

II

The defendant argues next that the court improperly failed to instruct the jury on reckless endangerment in the second degree as a lesser offense included within unlawful restraint in the first degree. We agree.

Before we reach the merits of the defendant's claim, we must address the state's assertion that we should decline to review this claim because the defendant abandoned it. The state argues that the defendant abandoned his request for a jury instruction on reckless endangerment in the second degree because he did not ask the court to state on the record a ruling on the request. It is well established, however, that a party preserves its right to challenge on...