State v. Darante H.
State v. Darante H.
Opinion of the Court
Opinion
The defendant, Darante H., appeals from the judgment of the trial court adjudicating him a youthful offender in violation, of General Statutes § 54-76b for having committed the crime of larceny in the sixth degree in violation of General Statutes §§ 53a-119 and 53a-125b. On appeal, the defendant claims that the judgment should be reversed because (1) the court made clearly erroneous factual findings that were critical to the court’s adjudication and (2) there was insufficient evidence to support the adjudication. We affirm the judgment of the trial court.
After the victim’s mother picked up the victim and the victim’s friend from school, she drove toward the friend’s home, which was located near the defendant’s home. The victim saw the defendant near his home and identified him to her mother as the person who had taken her cell phone. Her mother stopped, exited the vehicle, asked the defendant about the cell phone and requested that he return it. The victim’s mother then called the police, who subsequently arrested the defendant.
The day after his arrest, the defendant informed the school security officer that he had been arrested and that he knew who had possession of the victim’s cell
The returned cell phone did not contain the victim’s battery or micro secure digital card (SD card).
On May 25, 2011, the state charged the defendant by way of a substitute information with being a youthful offender for committing larceny in the sixth degree.
I
On appeal, the defendant claims that the court’s finding of guilt was based on clearly erroneous factual findings and the adverse credibility inferences drawn from
“The law governing [our] limited appellate review is clear. A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Because it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings. ... In reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached. . . . Instead, we make every reasonable presumption ... in favor of the trial court’s ruling.” (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 154-55, 920 A.2d 236 (2007).
A
The defendant claims that the court’s finding that the cell phone “materialize [d] without a battery” is clearly
The record reveals that two witnesses testified as to whether the cell phone contained a battery when it was returned to the victim. First, the victim testified as follows regarding the condition of her cell phone when it was returned to her:
“Q. And so, after you got your phone back, was the phone okay? Was there anything wrong with it?
“A. The battery was messed up in the back and my SIM [card] and my chip was missing. . . .
“Q. So, it was not your battery that you had originally installed?
“A. No.”
Also, the school security officer testified as follows as to whether the cell phone had a batteiy when it was given to him, before he returned it to the victim:
*514 “Q. Did [the victim’s cell phone] have a battery when [the student] gave it to you?
“A. I’m not sure if it had a battery or not. I believe so.”
On the basis of this testimony, the court reasonably could have found that the battery in the victim’s cell phone, when it was returned to her, was a defective battery, different from the battery that was in the phone at the time it was taken. The court, therefore, reasonably could have concluded that the victim’s cell phone did not contain her original functioning battery and that she effectively was left with no battery. We agree with the state that the court’s statement that the cell phone “materialize [d] without a battery” reasonably can be understood to relate to the defective nature of the battery that was present when the cell phone was returned to the victim. See Werblood v. Birnbach, 41 Conn. App. 728, 733, 678 A.2d 1 (1996) (court’s misstatement of child being able to attend same school for next four years interpreted as child being able to attend school in same school district for next four years).
B
The defendant claims that the court erred in finding that there was conflicting testimony regarding his original cell phone battery. The defendant argues that his testimony and his aunt’s testimony demonstrate that his original cell phone battery did not work. The defendant further argues that this testimony is consistent with the victim’s testimony that the defendant told her that his cell phone battery did not work. The state argues that this was not the only testimony regarding the defendant’s cell phone battery and that the evidence supports the court’s finding that there was conflicting testimony. We agree with the state.
The following additional facts are relevant to the disposition of this claim. The defendant and his aunt
C
The defendant also claims that the court erred in finding that there was conflicting testimony regarding the number of batteries at issue, not counting the battery in the victim’s cell phone when it was taken. The defendant argues that his testimony and his aunt’s testimony demonstrate that there were three batteries at issue and that their testimony is logical and consistent. The state argues that the evidence supports the court’s finding that there was conflicting testimony regarding the number of batteries. We agree with the state.
The defendant and his aunt both testified that the defendant’s original cell phone battery did not work, that his aunt bought him a replacement battery, that he gave this replacement battery to the school security officer and that his grandmother bought him a second replacement battery. The defendant’s grandmother, however, testified that she was not aware of anyone other than herself buying a replacement battery for the defendant’s cell phone.
The defendant’s testimony and his aunt’s testimony provided a basis for the court to conclude that there were three batteries: the defendant’s original defective battery; the battery purchased by the defendant’s aunt;
D
Finally, the defendant claims that the court’s factual finding that there was no need for his grandmother to buy a second new battery is clearly erroneous. Our review of the record, however, reveals that the court did not find that there was no need for the grandmother to buy a second battery. Rather, the court found that “there would have been no need for the grandmother to go out and buy another battery if, in fact, the aunt, the guardian, had bought a battery herself.” We construe the defendant’s claim, therefore, as challenging the court’s finding that the defendant’s aunt did not buy him a battery.
“Questions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . Our review of factual determinations is limited to whether those findings are clearly erroneous. . . . We must defer to the [finder]
As stated previously in this opinion, the defendant and his aunt testified that the defendant’s original battery did not work, that his aunt bought him a replacement battery, that he gave this replacement battery to the school security officer and that his grandmother bought him a second replacement battery. In setting forth its factual findings, the court stated: “[I]f [the defendant] didn’t take the battery ... his phone should have had a battery in it, there would’ve been no need to buy two additional batteries, even if the phone was taken and the battery, only one additional battery would’ve been needed because . . . [the defendant] still would’ve had the battery to his phone. ... I can’t credit any credibility to the aunt’s testimony, because there would’ve been no need for the grandmother to go out and buy another battery if, in fact, the aunt, the guardian, had bought a battery herself.” The court also stated: “The bottom line is the court does not credit [the defendant’s] testimony as credible.” The grandmother, whom the court found to be a credible witness, testified that she was not aware of anyone other than herself buying a replacement battery for the defendant’s cell phone. The grandmother also testified that she did not recall when she bought the battery for the defendant’s cell phone.
Because the court’s finding that the defendant’s aunt did not buy him a battery was based on a credibility determination, which we cannot second-guess; see State v. White, supra, 127 Conn. App. 851; we conclude that the finding is not clearly erroneous.
The defendant next claims that there was insufficient evidence to prove beyond a reasonable doubt that he wrongfully obtained or withheld the victim’s cell phone. The defendant argues that certain facts and favorable inferences demonstrate his innocence. The state argues that the cumulative impact of the evidence was more than sufficient to enable the court to find beyond a reasonable doubt that the defendant wrongfully obtained or withheld the victim’s cell phone. We agree with the state.
“[T]he [d]ue [p]rocess [c]lause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. . . . The standard of review for a sufficiency of the evidence claim employs 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 [trier 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 [trier] if there is sufficient evidence to support [the] verdict. . . .
“It is axiomatic that the [trier of fact] 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 [trier of fact] to conclude that a basic fact or an inferred fact is true, the [trier] 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
“[I]t 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. . . .
“[P]roof 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 trier, would have resulted in an acquittal.” (Citation omitted; internal quotation marks omitted.) State v. White, supra, 127 Conn. App. 850.
Section 53a-119 provides in relevant part: “A person commits larceny when, with the intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”
Although the defendant and his aunt testified that the battery the defendant handed over was a replacement battery that she had purchased for the defendant, the court found that this testimony was not credible and concluded that the defendant’s aunt did not purchase a replacement battery for him. The court credited the grandmother’s testimony that she purchased a replacement battery for the defendant. The court reasonably could have inferred from this testimony that the grandmother purchased this replacement battery after the defendant returned the victim’s battery, which had been
The court concluded that the credible testimony given and the inferences drawn from this testimony demonstrated that the defendant had a defective battery; the victim’s cell phone was taken; the defendant gave the victim the SIM card to her cell phone; the victim’s cell phone was returned to her with a defective battery; and, then the defendant gave the school security officer a functioning battery that the victim identified as her cell phone’s original battery. The court stated that on the basis of the evidence, it found beyond a reasonable doubt that the defendant wrongfully obtained or withheld the victim’s cell phone.
Mindful of our standard of review, we conclude that on the basis of the evidence presented and the reasonable inferences drawn therefrom, the court reasonably could have concluded that the evidence was sufficient to prove beyond a reasonable doubt that the defendant wrongfully obtained or withheld the victim’s cell phone.
The judgment is affirmed.
In this opinion the other judges concurred.
“A SIM card ... is a portable memory chip used in [certain cell] phones. It is a crucial component in mobile telecommunications as it identifies and stores the telephone number and connects the cell phone to the mobile carrier’s network. Since SIM cards also have a (limited) memory element, they can also be used as portable stores for one’s phone contacts.” Tech-opedia Technology Dictionary, available at http://www.techopedia.com/defi-nition/23747/subscriber-identity-module-card-sim-card (last visited November 29, 2012).
An SD card provides “a non-volatile form of flash memory for portable and mobile devices.” Techopedia Technology Dictionary, available at http:// www.techopedia.com/definition/2808/secure-digital-card-sd-card (last visited November 29, 2012).
The state also charged the defendant with being a youthful offender for committing the crimes of interfering with an officer and disorderly conduct. The defendant filed a motion for a judgment of acquittal as to the disorderly conduct and larceny in the sixth degree charges. At the close of the defendant’s case, the court granted the defendant’s motion as to the disorderly conduct charge but denied the motion as to the larceny in the sixth degree
Alternatively, the state argues that the defendant failed to establish that any clearly erroneous factual findings by the court were harmful, i.e., that any such erroneous factual finding would undermine confidence in the defendant’s conviction. We do not reach the state’s alternative argument because we conclude that the court’s factual findings were not clearly erroneous.
“Neither this court nor our Supreme Court is bound by the issues as framed by the parties in their statement of the issues. Bather, our analysis is addressed to the contents of the brief. . . . Moreover, a review of the case history in this state reveals that, in determining what issues are to be addressed on appeal, it has been the practice to examine the contents of the brief rather than rely on the statement of the issues.” (Internal quotation marks omitted.) State v. Miscellaneous Fireworks, 132 Conn. App. 679, 681 n.1, 34 A.3d 992 (2011).
General Statutes § 53a-125b (a) provides in relevant part: “A person is guilty of larceny in the sixth degree when he commits larceny as defined in section 53a-119 and the value of the property or service is five hundred dollars or less.” The court found that the cell phone had a value and that
Case-law data current through December 31, 2025. Source: CourtListener bulk data.