State v. Moore

917 A.2d 564

100 Conn.App. 122

STATE of Connecticut v. Catherine MOORE.

No. 26608.

Appellate Court of Connecticut.

Argued November 30, 2006.

Decided March 27, 2007.

Donald D. Dakers, special public defender, for the appellant (defendant).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Walter D. Flanagan, state's attorney, and Stephen J. Sedensky III, senior assistant state's attorney, for the appellee (state).

SCHALLER, BISHOP and LAVINE, Js.

SCHALLER, J.

The defendant, Catherine Moore, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the third degree in violation of General Statutes § 53a-136, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a)(4), larceny in the sixth degree in violation of General Statutes §§ 53a-125b (a) and 53a-119 (9), and conspiracy to commit larceny in the sixth degree in violation of §§ 53a-48 and 53a-125b. On appeal, the defendant claims that (1) there was insufficient evidence to sustain her conviction for robbery in the third degree, (2) the court improperly instructed the jury as to the crime of conspiracy to commit robbery in the first degree and (3) her rights against double jeopardy were violated.¹ We agree with the defendant that the court improperly instructed the jury with respect to the charge of conspiracy to commit robbery in the first degree and deprived her of the right to a fair trial. We therefore reverse the judgment of conviction and remand the case for a new trial on that charge. We affirm all other aspects of the defendant's conviction.

The jury reasonably could have found the following facts. On February 29, 2004, Imran Quazi, a loss prevention supervisor at the J.C. Penney retail store in Danbury, commenced video surveillance of the defendant and her companion, James Evans. Quazi and his associate, Andrew Benicewicz, observed the defendant and Evans remove a foot massager from a merchandise display and place it behind a fixture. The defendant and Evans then went to the register to pay for other items. After completing their transaction, the defendant and Evans walked back to the fixture where the foot massager had been placed. Evans picked it up, and the two left the store and exited into the mall without paying for the foot massager.

Benicewicz immediately pursued the defendant and Evans into the mall and requested that they return to the store. Evans indicated that he would not return to the store, and the defendant stated that they had purchased the foot massager. The defendant also informed Benicewicz that she would not return to the store. The defendant then loudly threatened Benicewicz by stating that if he touched Evans, she "would blow his brains out." Evans subsequently dropped the foot massager, and he and the defendant began walking away.

At this point, Benicewicz and Quazi followed the defendant and Evans to the parking lot where they entered a motor vehicle and drove away. Benicewicz wrote down the license plate of the vehicle and contacted the Danbury police department.

The defendant subsequently was arrested and charged with robbery in the first degree, threatening in the second degree, larceny in the sixth degree, conspiracy to commit robbery in the first degree, conspiracy to commit robbery in the second degree and conspiracy to commit larceny in the sixth degree. The jury found the defendant not guilty on the charges of robbery in the first degree and threatening in the second degree. The jury found the defendant guilty of the lesser included offense of robbery in the third degree, larceny in the sixth degree, conspiracy to commit robbery in the first degree and conspiracy to commit larceny in the sixth degree. The court denied the defendant's post-verdict motion for a judgment of acquittal and imposed a total effective sentence of five years incarceration, execution suspended after thirty months, and five years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that there was insufficient evidence to sustain her conviction for robbery in the third degree and conspiracy to commit robbery in the first degree.² Specifically, she claims that there was insufficient evidence for the jury to conclude that her statement to Benicewicz was made with the intent of retaining the foot massager after the taking and that this statement alone was insufficient to constitute a robbery. We are not persuaded.

"The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e 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. . . ." This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict. . . . In conducting our review, we are mindful that the finding of facts, the gauging of witness credibility and the choosing among competing inferences are functions within the exclusive province of the jury, and, therefore, we must afford those determinations great deference. . . .

"We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . ." If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

"Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . ." It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . In evaluating evidence, the [finder] of fact is not required to 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 it deems to be reasonable and logical. . . .

"Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact's] verdict of guilty." (Citation omitted; internal quotation marks omitted.) State v. Sam, 98 Conn.App. 13, 32-34, 907 A.2d 99, cert. denied, 280 Conn. 944, 912 A.2d 478 (2006). With these principles in mind, we address each of the defendant's arguments in turn.

A

The defendant first contends that her statement that she would "blow [Benicewicz'] brains out" was not made with the purpose of retaining the foot massager and, therefore, there was insufficient evidence to sustain her conviction for robbery in the third degree. In support of her claim, she relies heavily on State v. Coston, 182 Conn. 430, 438 A.2d 701 (1980). The state responds that Coston is not controlling and that the defendant's threat toward Benicewicz constituted sufficient evidence to support her conviction for robbery. We agree with the state.

As a preliminary matter, we set forth the elements of robbery in the third degree. Section 53a-136 (a) provides that "[a] person is guilty of robbery in the third degree when he commits robbery as defined in section 53a133." General Statutes § 53a-133 provides that "[a] person commits robbery when, in the course of committing a larceny, he uses or threatens the 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." This court has explained that "[r]obbery occurs when a person, in the course of committing a larceny, uses or threatens the immediate use of physical force upon the victim. . . . While there is no definition of the word threaten in the statutes, General Statutes 1-1(a) provides that the commonly approved usage of the language should control. . . . A threat is 1. an indication of something impending and usually undesirable or unpleasant . . . 2. something that by its very nature or relation to another threatens the welfare of the latter. . . . A threat has also been defined as any menace of such a nature and extent as to unsettle the mind of the person on whom it operates, and to take away from his acts that free and voluntary action [which] alone constitutes consent." (Citations omitted; internal quotation marks omitted.) State v. Littles, 31 Conn.App. 47, 54, 623 A.2d 500, cert. denied, 227 Conn. 902, 630 A.2d 72 (1993); see also State v. Preston, 248 Conn. 472, 478, 728 A.2d 1087 (1999).

In the present case, both Quazi and Benicewicz testified that the defendant made the statement that she would "blow [Benicewicz'] brains out" seconds after she and...