State v. Quintiliano

206 Conn.App. 712

261 A.3d 31

STATE of Connecticut

v.Paul A. QUINTILIANO

AC 43137

Appellate Court of Connecticut.

Argued February 18, 2021

Officially released August 17, 2021

Alexander Copp, Danbury, with whom were Neil R. Marcus, Danbury, and, on the brief, Barbara M. Schellenberg, for the appellant (defendant).

Linda F. Currie, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Joseph Danielowski, senior assistant state's attorney, for the appellee (state).

Bright, C. J., and Moll and DiPentima, Js.

MOLL, J.

In this criminal appeal, which arises out of a property dispute between neighbors, the defendant, Paul A. Quintiliano, appeals from the judgment of conviction, rendered after a trial to the court, of criminal mischief in the first degree in violation of General Statutes § 53a-115 (a) (1).¹ On appeal, the defendant claims, inter alia, that there was insufficient evidence to demonstrate that he had no reasonable ground to believe that he had a right to remove certain trees planted by his former neighbor, Brian Collins, on a portion of land then owned by Collins with respect to which the defendant claimed to enjoy deeded or prescriptive easement rights.² We agree and, accordingly, reverse the judgment of the trial court.

The following facts, as set forth in the court's memorandum of decision, are relevant to our decision. "On June 25, 2017 ... Collins, and the defendant ... owned lots in a subdivision in Southbury. [Collins] owned lot number [23.04], and the defendant owned lot number [23.03] .... There are two warranty deeds ... and a quitclaim deed .... Each [deed] references a common driveway agreement, hereinafter referred to as a CDA.... The CDA includes an easement granted by the owner of lot number [23.04] to the owner of lot number [23.03]. The easement granted a perpetual right-of-way for ingress and egress, by foot or vehicle, including the right to construct, pave and maintain a driveway and use the same in common with the owner, present and future. The easement area is within the northerly most 1000 feet of the 30 foot wide portion of lot number [23.04] adjoining the westerly boundary of lot number [23.03] and lot number [23.02]. ... The CDA was signed on June 2, 1993, and the easement runs with the land.

"Prior to 2013, the defendant had a box truck and small white tent parked in the corner of his lot. He used this for storage. His wife said [that] the small tent had been destroyed. [Collins] gave the defendant permission to access the storage area from the common driveway. [The defendant's wife] also stated [that] the permission was granted approximately one year before [Collins] started planting, and [Collins] had promised to leave access to the storage area on the property. And that was granted about one year before [Collins] started planting the trees.

"In 2013, the defendant erected a very large green tent and attached it to the box truck located on his property. The defendant expanded his excavating business in 2013. [Collins] stated that the defendant never came down to the area prior to erecting the large green tent. He was always in the back area on his property—on his own property. [The defendant's wife] said the defendant went down twice a week, and she drove down once every other week as she used the storage area to store items connected with her eBay business. However, it is unclear when she started her eBay business. The defendant did not live on the premises between 2002 and 2010. Furthermore, the defendant could access the storage area on his own lot without having to use the common driveway. With the expansion of his excavating business, the large green tent was needed to store additional equipment connected with that business. After the erection of the large green tent, the defendant started coming down to the area. ...

"In 2013 or 2014, [Collins] informed the defendant he would be planting trees. On June 3, 2016, [Collins] paid Green Giant Arborvitaes Rapid Grow [$5423.21] for forty-three or forty-four trees to include the planting of the trees .... The trees were planted on June 11, 2016, eighteen of which were along the border beyond the thirty foot wide portion of lot number [23.04] adjoining the westerly boundary of lot number [23.03] and lot number [23.02]. After [Collins] planted the trees, the defendant informed him that he would tear out the trees. [Collins] also noticed one tree had been knocked over.

"[Collins] called the police and Officer [Brian] McKirryher responded. The defendant told the officer he had used the area for fifteen years. Officer McKirryher informed the defendant that any right he believed he had should be determined in a civil proceeding, but if he ran over the trees, there would be consequences. [Collins] said the officer told the defendant that it would be a crime.

"Thereafter, the defendant sent a letter to [Collins] informing him that he had four days to remove the trees and that his attorney had advised him he could take out ten of the trees. ...

"[O]n June 25, 2017, eighteen of the trees had been dug up and thrown on the side of the road .... [Collins] called the police. When the officer arrived, he saw the trees uprooted and on the side of the road in dirt. He also saw the defendant's excavator. Later he saw the defendant on the excavator, and he also saw the area where the defendant had ripped up the trees. The defendant informed the officer that the trees wouldn't die if they were watered and replanted and that his attorney had advised him he had a right to access the large green tent he had put up. And the trees blocked the access to his shed, and his attorney told him he had a right to tear them up. The officer informed the defendant that he had a right to access his property."

The defendant subsequently was charged by way of a substitute information with criminal mischief in the first degree in violation of § 53a-115 (a) (1), which provides that "[a] person is guilty of criminal mischief in the first degree when ... [w]ith intent to cause damage to tangible property of another and having no reasonable ground to believe that such person has a right to do so, such person damages tangible property of another in an amount exceeding one thousand five hundred dollars."

A bench trial took place on March 18, 19, 20 and 25, 2019. On March 19, 2019, after the close of the state's case-in-chief, the defendant orally moved for a judgment of acquittal on the ground that the state had failed to present sufficient evidence of each element to convict him of criminal mischief in the first degree beyond a reasonable doubt. The court denied the motion. On March 20, 2019, after the close of evidence, the defendant again moved for a judgment of acquittal. The court deferred ruling until after closing arguments and subsequently denied the motion. The defendant additionally submitted to the court written proposed legal findings as to each element of § 53a-115 (a) (1). The court rejected all of the defendant's proposed legal findings.

On March 25, 2019, the court found the defendant guilty of criminal mischief in the first degree in violation of § 53a-115 (a) (1). With specific regard to the third element of § 53a-115 (a) (1) (i.e., no reasonable ground to believe that one has the right to cause damage to tangible property of another), the court found: "The defendant had no reasonable ground to believe he had a right to tear out the trees and dump them on the side of the road. No reasonable person in his situation considering his point of view would believe he had a right to damage the trees. He had been given permission to access the storage area and he hardly—he never used or seldom used that until 2013, after he erected the large green tent and attached it to his box truck. His wife stated that they had been given permission approximately one year before the planting and that [Collins] in the planting had promised access. The defendant could access the storage area on his property without having to cross [Collins’] property. So if there is a right, then there was no need to be given permission or a promise to have access to the storage area. And the access to the storage area on his own property ... over [Collins’] property is different than having access to a storage area on his property.

"It is not credible that an attorney would advise the defendant that the remedy for blocking a right-of-way granted in an easement is to destroy the property that is blocking access.³ But, again, this is access to the shed and the tent, which is a storage area as opposed to blocking access in terms of ingress and egress onto his own property. The proper course of conduct as suggested by the officer was to go to civil court and have the question about the boundaries or the extent of the easement with the right for ingress and egress resolved in that forum. That advice, if given, the defendant and his wife did not follow it in terms of the advice from counsel, according to [the defendant's wife], because they were not that kind of people, but they clearly did not, in 2016, after saying if it wasn't removed in four days, they had a right to tear the trees out or, at a minimum, ten of the eighteen that were ripped out.

"In Connecticut, a [prescriptive] easement is acquired with continued and uninterrupted use for fifteen years. The state presented evidence that showed that there was no continued and uninterrupted use for fifteen years, that use being access to [the defendant's] storage shed that was located on his property. There was no evidence that the defendant could not enter or leave his property. To the contrary, he built a driveway off of the common driveway down to his own property. So there was definitely ingress and egress to his lot. So under the circumstances as laid out, no reasonable person would believe that, being in the defendant's position, that he had a right to access the storage shed on his own property via [C...