State v. Patterson

Page 258

646 A.2d 258

35 Conn.App. 405

STATE of Connecticut v. Michael A. PATTERSON.

No. 11399.

Appellate Court of Connecticut.

Argued April 4, 1994.

Decided Aug. 9, 1994.

Elizabeth M. Inkster, Asst. Public Defender, for appellant (defendant).

Nancy L. Gillespie, Deputy Asst. State's Atty., with whom, on the brief, were James E. Thomas, State's Atty. and Carl E. Taylor, Asst. State's Atty., for appellee (State).

Before HEIMAN, FREDERICK A. FREEDMAN and SPEAR, JJ.

HEIMAN, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of burglary in the third degree in violation of General Statutes § 53a-103. ¹ The defendant was found not guilty of a single count of larceny in the fourth degree as defined by General Statutes § 53a-125. Following the jury verdict of guilty to the charge of burglary in the third degree, the defendant entered a plea of guilty to a charge of being a persistent serious felony offender as defined by General Statutes § 53a-40(b). ² On appeal, the defendant asserts that the trial court improperly (1) concluded that the evidence was sufficient to sustain a conviction of burglary in the third degree, and (2) charged the jury during its instructions concerning the crime of burglary in the third degree (a) by misstating the mental intent required to commit the offense, (b) by not advising the jury as to the crime that the state alleged the defendant intended to commit, and (c) by enlarging the offense charged, thereby violating the defendant's rights to due process and notice as guaranteed to him by the federal and state constitutions. ³ We disagree and affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On November 28, 1988, Robert Blesso left his condominium at 8 Crown Ridge in Newington and returned at about 3 p.m. When he arrived at his home, he found police officers investigating a possible breaking and entering at his address.

Blesso observed that the front door of his home exhibited signs of having been pried open. Upon further investigation, he discovered that a ring and a gold Seiko wristwatch were missing from a jewelry box that he kept in the second floor master bedroom.

Earlier that day at approximately noon, John Rossier, a self-employed concrete contractor, and his assistant, Brad Dubowski, had arrived at 8 Crown Ridge to repair a cracked foundation in the basement of Blesso's condominium. As they approached Blesso's condominium, the front door opened, a black male appeared in the doorway, and the door was immediately closed in their faces. Rossier knocked on the door several times, receiving no response. Rossier became suspicious and sent Dubowski to the corner of the building so that he would be in a position to observe anyone attempting to leave the area by way of the backdoor. Rossier observed a person run from the rear of the condominium, enter a white Chevrolet Beretta, and start to back down Kitts Lane.

Rossier ran to his truck, which was parked in front of the condominium unit, and pulled it into a position so as to cut off the Beretta. He observed the operator of the vehicle and recognized him as the person that had opened the front door of Blesso's condominium. The driver of the Beretta rolled down the window to speak with Rossier, giving Rossier an opportunity to observe the driver clearly. Rossier followed the Beretta and obtained the vehicle license plate number. He then went to a construction trailer and asked the developer to notify the Newington police.

Peter Lavery, a member of the Newington police department, responded to the complaint. Lavery traced the license plate number of the Beretta to a vehicle belonging to Budget Car and Truck Rental in Windsor Locks. That vehicle had been rented several days before the incident by Cameron Tappin, the defendant's brother.

On November 29, 1988, Tappin came to the Newington police station at the request of Lavery. He was driving the Beretta. Tappin informed Lavery that on the day of the crime, he took public transportation from his home to his place of employment at the Sage-Allen store in Hartford. He left the Beretta and the keys to it at his home, to which the defendant had access. Tappin told Lavery that he had asked the defendant whether he had used the vehicle on the day of the crime and the defendant admitted that he had.

On the day following the incident, Rossier returned to Crown Ridge. At that time, he was shown a series of photographs and he picked out a picture of the defendant, Michael Patterson, as being of the individual that he had seen in the doorway of Blesso's condominium and as the person that was operating the Beretta.

Rossier made an in-court identification of the defendant as the person whom he had observed opening the door of Blesso's condominium on November 28, 1988, and as the person whom he had observed operating the Beretta. Blesso testified that he did not know the defendant and that he had never given him permission to enter his premises.

The defendant was found guilty of burglary in the third degree in violation of General Statutes § 53a-103, but not guilty of larceny in the fourth degree. He further pleaded guilty to being a persistent serious felony offender. This appeal followed.

I

The defendant first asserts that his conviction cannot be permitted to stand because the evidence produced against him was insufficient, as a matter of law, to sustain a conviction of the crime of burglary in the third degree. We disagree.

A

As a preliminary matter, we first turn our attention to the procedural posture of the case. The record discloses that, at the completion of the state's case-in-chief, the defendant moved for a judgment of acquittal pursuant to Practice Book § 884. ⁴ The trial court denied the defendant's motion. As is his right, the defendant elected to offer evidence in his own behalf. The record further discloses that at the completion of all of the evidence, the defendant failed to move for a judgment of acquittal pursuant to Practice Book § 885. The defendant claims, however, that he properly preserved the issue of evidentiary insufficiency by moving for a judgment of acquittal after the verdict of guilty. See Practice Book § 899. The record does not support this claim. The transcript of the proceedings reveals that after the rendition of the guilty verdict, the defendant orally moved "for judgment notwithstanding the verdict." ⁵ No other form of postjudgment motion was ever requested orally or filed in writing by the defendant.

Under our present rules, when a defendant puts on evidence after a denial of a motion for judgment of acquittal at the completion of the state's case, he is deemed to have waived his right to appellate review as to the sufficiency of the evidence as it existed at the completion of the state's case-in-chief. State v. Roy, 34 Conn.App. 751, 765, 643 A.2d 289 (1994); State v. Battista, 31 Conn.App. 497, 502, 626 A.2d 769, cert. denied, 227 Conn. 907, 632 A.2d 696 (1993); State v. Wolff, 29 Conn.App. 524, 527, 616 A.2d 1143 (1992). Thus, the defendant's claim with respect to the sufficiency of the evidence at the completion of the state's case is not reviewable. State v. Booker, 28 Conn.App. 34, 41, 611 A.2d 878, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992); State v. Wolff, supra, 29 Conn.App. at 528, 616 A.2d 1143.

The defendant also failed to preserve properly his appellate right to a review of the sufficiency of the evidence at the conclusion of all of the evidence or after the rendition of the verdict of guilty by failing to move for judgment of acquittal at either of these times. See State v. Roy, supra, 34 Conn.App. at 766, 643 A.2d 289; State v. Harvey, 27 Conn.App. 171, 186, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992).

The defendant posits, however, that, in the event that we conclude, as we do, that he failed to preserve properly his claim of evidentiary insufficiency as to the entirety of the evidence, he is nonetheless entitled to review under a claim that due process of law under both the state and federal constitutions demands that no person be convicted on evidence that is not sufficient to establish each element of the offense charged beyond a reasonable doubt. ⁶ He thus claims a right of review pursuant to the mandate of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). ⁷

B

The defendant in his claim of evidentiary insufficiency focuses on that part of the burglary statute that requires that the state prove beyond a reasonable doubt that the defendant intended to commit a crime within the building. General Statutes § 53a-103(a). The defendant posits that, since the jury acquitted him of the crime of larceny in the fourth degree, and since there was no evidence of an intent to commit a crime other than larceny, that the defendant could not properly be convicted of burglary since that would, under the facts of this case, be inconsistent with the fact of his acquittal on the larceny count. We are unpersuaded.

We begin our analysis by pointing out that burglary and larceny are two separate and distinct crimes. State v. Little, 194 Conn. 665, 676, 485 A.2d 913 (1984); State v. Fields, 31 Conn.App. 312, 328, 624 A.2d 1165, cert. denied, 226 Conn. 916, 628 A.2d 989 (1993). The fact that no actual larceny was committed does not bar a conviction of the defendant for the crime of burglary even where the crime alleged to have been intended was larceny. State v. Little, supra, 194 Conn. at 675-76, 485 A.2d 913. The crime proscribed by the provisions of General Statutes § 53a-103, is committed completely once a person enters or remains unlawfully in a building with the intent to commit a crime therein. Id., at 675, 485 A.2d 913. The evidence produced at trial was sufficient to establish this intent.

"When we are called on to review a sufficiency of the evidence claim, we impose a two-part analysis. We first...