State v. Hodkoski
State v. Hodkoski
Opinion of the Court
Opinion
The defendant, Mark C. Hodkoski, appeals from the judgment of conviction rendered against him after a jury trial on charges of criminal attempt to commit evasion of responsibility in the operation of a motor vehicle in violation of General Statutes §§ 53a-49 and 14-224 (b), and operation of a motor vehicle while under the influence of intoxicating liquor as a third or subsequent offender in violation of General Statutes § 14-227a (g) (3).
The following procedural history and facts, as the jury reasonably could have found them, are relevant to our resolution of the foregoing issues. Shortly after 7 p.m. on February 26, 2010, while operating his son’s pickup truck on Main Street in Terryville, the defendant drove off the road and crashed into a tree on private property at 403 Main Street.
Based on his observations of the defendant, and the defendant’s admission that he had been drinking alcohol, Surprenant asked him to submit to a field sobriety test. The defendant initially responded to this request by telling Surprenant that he just wanted to leave and that Surprenant should let him go. Believing, however, that the defendant was intoxicated, Surprenant asked him once again to submit to a field sobriety test, and the defendant agreed. Surprenant began the field sobriety test with the horizontal gaze nystagmus test,
After the defendant was placed in handcuffs, Officer Richard Reney searched the cab of the pickup track, where he had smelled the odor of burnt marijuana. During his search, Reney found a pipe and a small vial containing green plant like material that was later submitted for testing to the state toxicology laboratory, where it was found to be marijuana. Surprenant transported the defendant to the police station for booking, where he advised the defendant of his Miranda rights, of his right to refuse to provide a blood, breath or urine sample for chemical testing, and of the legal consequences of refusing to submit to chemical testing. The defendant refused to provide a breath sample for chemical testing and acknowledged his refusal in writing by signing a police department form A-44. After the booking process was completed, the defendant signed an appearance bond and was allowed to leave the police station with his son, who had been called to pick him up.
On May 10, 2011, the defendant filed, based on his rights under the fifth, sixth, and fourteenth amendments to the United States constitution and under article first, §§ 7, 8, and 9 of the Connecticut constitution, a motion to suppress both the evidence the police had seized from the pickup track and the postarrest statements he had made to the arresting officer while in custody, including his refusal to submit to a Breathalyzer test. On June 10, 2011, the trial court, Kahn, J., denied the motion from the bench following an evidentiary hearing at which Surprenant and the defendant testified. The court later articulated the basis for its ruling in a written
Following a jury trial, where the defendant was found guilty of attempted evasion of responsibility and operation under the influence, further trial proceedings were held before the jury on the repeat offender allegations set forth in the part B information. In the part B trial, the state presented the testimony of one witness, Dawn Therriault, an administrative assistant at the Bristol Superior Court, who stated that the defendant was the same Mark Hodkoski who, on August 6, 2004, had pleaded guilty in her presence to operation under the influence as a second offender. The state also presented certified records of the defendant’s Bristol conviction and of two earlier convictions for operation under the influence of a person with the same name as the defendant, the first of which was rendered in the New Britain Superior Court on September 1, 1989, and the second of which was rendered in the Enfield Superior Court on May 28, 1997. At the conclusion of the part B trial, the jury found the defendant guilty.
On the charge of operation under the influence as a third or subsequent offender, the court sentenced the defendant to a term of three years imprisonment, execution suspended after two years, with three years probation and a $2000 fine. On the charge of attempted
I
The defendant’s first claim on appeal is that the trial court erred in denying that portion of his motion to suppress in which he challenged the admissibility of his postarrest statements to the arresting officer while he was being processed on the charge of operation under the influence as a third or subsequent offender. Among the statements he thereby sought to suppress was his refusal to submit a breath sample for chemical testing.
In support of his motion, the defendant claimed and testified that, before he answered the officer’s questions about the circumstances of his operation of the pickup truck on the evening in question and refused the officer’s request that he submit a breath sample for chemical testing, he was never advised of his Miranda rights or warned of the legal consequences of refusing to submit to chemical testing.
Surprenant testified at the suppression hearing that, upon arriving at the police station with the defendant in custody, he picked up a packet of paperwork that the
Surprenant testified that he next read the defendant the implied consent advisory notice on the A-44 form, which informed the defendant of his rights with regard to submitting a blood, breath or urine sample for chemical testing.
In order to invoke his or her Miranda rights, a person must be in custody and subject to police interrogation. State v. Canady, 297 Conn. 322, 335, 998 A.2d 1135
“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in
The trial court found that the defendant was read his Miranda rights twice—first, while he was being processed on his motor vehicle charges, before he refused to submit a breath sample for chemical testing, and later, while he was being processed on his other charges. Further, the trial court considered the defendant’s extensive criminal record, including twenty-three previous arrests, at least three of which were for operation under the influence, as evidence of his familiarity with his rights and the booking process. The trial court concluded that “[t]he refusal and other statements contained in the A-44 form were made after the defendant was properly advised [of] and knowingly, intelligently and voluntarily waived his right to remain silent.” The trial court’s denial of the defendant’s motion to suppress was not clearly erroneous in view of the previously described evidence, and thus, the defendant’s motion to suppress his statements on the A-44 form and his refusal to take a Breathalyzer test was properly denied by the court.
II
The defendant next claims that he is entitled to the reversal of his conviction and the entry of a judgment of acquittal on the charge of attempted evasion of responsibility. He claims, more particularly, that the state failed to prove, as an essential element of that offense, that the motor vehicle accident here at issue, from which he allegedly attempted to drive away without giving notice to the owner of the tree, had caused damage to the tree, thus triggering his duty to give notice of the accident to its owner under § 14-224 (b). In support of this claim, the defendant makes two basic arguments. First, he contends that the mere removal
The state disputes both aspects of the defendant’s claim. As for his contention that the removal of bark from a tree, like the leaving of a paint transfer, cannot constitute damage to property as a matter of law, the state counters: first, that the defendant’s reading of Humphrey is mistaken, for that case did not hold that mere paint transfer cannot constitute damage to property as a matter of law; and second, that the removal of bark from a tree does in fact cause damage to the tree because it permanently alters the tree’s physical structure. As for the defendant’s fallback argument that the removal of tree bark in this case was not shown to have caused damage to property because it was not shown to have caused any particular financial loss to the owner of the tree, the state responds that § 14-224 (b) does not require such proof, but only proof of some damage to property, of no particular kind, amount, degree or proven value. For the following reasons, we agree with the state, and thus reject the defendant’s claim.
In reviewing a claim of evidentiary insufficiency, our task is to determine whether the evidence presented at trial, if construed in the light most favorable to sustaining the challenged conviction, is sufficient to prove
It is axiomatic that the state must prove its case in precise accordance with the allegations of the information, as sworn to and filed by the prosecuting attorney. Where, then, the prosecuting attorney charges the defendant with committing the offense under a particular statutory theory of liability, the state must prove each fact essential to conviction under that theory. Here, the prosecuting attorney charged the defendant in the second count of the substitute information, with attempted evasion of responsibility as follows: “The State’s Attorney for the Judicial District of New Britain through the undersigned Supervisory Assistant State’s Attorney accuses Mark Hodkoski of the crime of attempted evading responsibility in violation of . . . §§ 53a-49 (a) (2) [and] 14-224 (b) and alleges that on or about February 26, 2010, at approximately 7:00 p.m. at or near Main Street, Plymouth, Connecticut, the defendant Mark Hodkoski, acting with the kind of mental state required for the commission of the crime of evading responsibility, did intentionally do and omit to do anything which, under the circumstances as he believed them to be, were acts of omissions constituting a substantial step in a course of conduct planned to culminate in his commission of the crime of evading responsibility.”
Insofar as it applies to this case, § 14-224 (b) provides in relevant part as follows: “Each person operating a motor vehicle who is knowingly involved in an accident which causes . . . injury or damage to property shall at once stop and . . . give his name, address and operator’s license number and registration number ... to
In light of the foregoing requirements, the offense of attempted evasion of responsibility requires, inter alia, proof beyond a reasonable doubt that, when acting with the mental state required for the commission of evasion of responsibility, the defendant intentionally took a substantial step in a course of conduct planned to culminate in the commission of that offense, to wit: leaving the scene of a motor vehicle accident that has caused damage to property without stopping to give notice to the owner of the injured or damaged property or to any officer or witness to the damage. One essential element of that offense, as charged in this case, was that the motor vehicle accident in which the defendant was involved actually caused damage to property, within the meaning of § 14-224 (b).
As this case was tried, the state’s only claim of damage to property resulting from the accident was that bark was removed from the stricken tree. The defendant does not contest that bark was removed from a tree as a result of the accident, or that the tree in question was not the property of another. Instead, he claims that the proven removal of bark from the tree, which concededly belonged to the owner of the property on which it stood, did not establish damage to property as a matter of law.
With respect to the defendant’s initial challenge to the sufficiency of the state’s evidence of damage to property, the court must first examine State v. Humphrey, supra, 22 Conn. Supp. 317, the case on which the defendant relies for the proposition that the mere leaving of a paint transfer on property struck by a motor vehicle does not constitute damage to property as a
As for the defendant’s alternative argument that the removal of bark from a tree cannot be found to constitute damage to property without proof of resulting financial loss, the state correctly notes that § 14-224 (b) imposes no such requirement. The statute does not define the term “damage to property,” and contains no qualifying language conditioning the duty to stop and give notice to the owner of damaged property upon the occurrence of damage of any particular nature, extent, degree or value. Consistent with this omission, the Appellate Division of the Circuit Court has held on two occasions that the amount of damage is immaterial to the duties arising under the evasion of responsibility statute. See State v. Herbst, 2 Conn. Cir. Ct. 236, 238, 197 A.2d 550 (1963); State v. Gereg, 6 Conn. Cir. Ct. 6, 8, 261 A.2d 867 (1969) (“[w]hether the damage is slight or great is immaterial, so long as there has been damage” [internal quotation marks omitted]). Surely, it would be poor public policy to afford drivers of vehicles
Against this background, we conclude that the state’s evidence of removal of bark from the tree struck by the defendant’s vehicle in the accident here at issue was sufficient to prove damage to property, as required for conviction under § 14-224 (b). The removal of such bark from a living tree by the impact of the defendant’s vehicle upon it was well described and documented in the evidence. Such removal of bark permanently altered the structure of the tree—a living thing that draws its essential nutrients through its bark to survive. Because the occurrence of such damage is uncontested, and such damage constituted damage to property within the meaning of the statute, the defendant was required to stop and give notice of the accident to the owner of the damaged property. Evidence of his proven effort to drive away without doing so was sufficient to support his conviction for attempted evasion of responsibility.
Ill
Lastly, the defendant claims that there was insufficient evidence to convict him as a third or subsequent offender of operation under the influence. He argues that “[s]imply comparing names from prior convictions to the defendant is insufficient to prove beyond a reasonable doubt the identity of the defendant is the same as the individual in the records.” The state does not disagree that mere name comparison alone is typically insufficient to prove beyond a reasonable doubt that the criminal record of a person with the same name as the defendant is the defendant’s criminal record. Here,
Turning first to the testimony of Therriault,
Moreover, even if Therriault had not testified, the certified records admitted into evidence of the defendant’s 2004 conviction in Bristol and of the 1989 and 1997 convictions for operation under the influence of a person with the defendant’s name, in New Britain and Enfield, respectively, contained sufficient identifying information about the person to whom those records pertained to identify the defendant as that person. The record of the 1997 Enfield conviction, like that of the defendant’s 2004 Bristol conviction, listed not only the defendant’s name, but his date of birth, operator’s license number, address, and social security number, all of which were identical to those of the defendant in this case.
The defendant argues that because the 1989 New Britain conviction does not include the defendant’s social security number, the state cannot prove beyond a reasonable doubt that he is the person to whom that
Consistent with the latter conclusion, this court has previously held that information such as name, address, date of birth, physical description, and operator’s license number are all indicators that identify a defendant. See State v. Windley, 95 Conn. App. 62, 67, 895 A.2d 270 (concluding that “the court reasonably could have found beyond a reasonable doubt that the defendant was a third time offender” even though “not all of the court documents pertaining to those convictions
Construing the evidence in the light most favorable to sustaining the conviction, we conclude that the jury reasonably could have found that the defendant was guilty beyond a reasonable doubt of operation under the influence as a third or subsequent offender.
The judgment is affirmed.
In tMs opmion the other judges concurred.
The jury found the defendant not guilty on two other charges, possession of marijuana in violation of General Statutes § 21a-279 (c) and possession of drug paraphernalia in violation of General Statutes § 21-267 (a).
Terryville is a section of the town of Plymouth. The responding police officers were employed by the Plymouth Police Department.
Surprenant testified that the horizontal gaze nystagmus test is a test of the eyes in which the suspect is told to follow the movement of a stimulus, i.e., a pen or finger, with only his or her eyes while keeping his or her head straight.
The defendant admitted that he was, however, read his rights during the booking process on the charge of possession of marijuana and possession of drug paraphernalia.
The notice of rights form contained the following language: “You are not obligated to say anything, in regard to this offense you are charged with but may remain sEent. . . . Anything you may say or any statements you may make may be used against you. . . . You are entitled to the services of an attorney. ... If you are unable to pay for the services of an attorney you wEl be referred to a Public Defender Office where you may request the appointment of an attorney to represent you. . . . You may consult with an attorney before being questioned, you may have an attorney present during questioning and you cannot be questioned without your consent.”
The defendant was read a notice of rights form for both the motor vehicle and other charges against him. The notice of rights form for the charge of operation under the influence was not entered into evidence because it could not be produced by either party. The notice of rights form for the charges of possession of marijuana and drug paraphernalia was entered into evidence at the suppression hearing as state’s exhibit 1.
The implied consent advisory notice contained the foEowing language: “You are requested to submit to a blood, breath, or urine test chosen by the police officer. You may refuse a blood test, in which case another test wEl be selected. If you elect to submit to testing, you wEl be required to provide two samples. If you refuse to submit, the tests wEl not be given. Your refusal wEl result in the revocation of your operator’s Ecense for twenty-four (24) hours and the suspension of your operator’s Ecense for at least six (6) months. If you submit to the tests, and the results indicate that you have an elevated blood alcohol content, your operator’s Ecense wEl be revoked for twenty-four (24) hours and wEl be suspended for at least ninety
Surprenant testified that 20:13 hours is the equivalent of 8:13 p.m.
The defendant was processed separately on the motor vehicle and other charges.
In his appellate brief, the defendant suggests that the trial court erred in denying his motion to suppress because, in concluding that there was no “indication that his level of intoxication or any other factor kept him from understanding his rights and options,” it “ignored” evidence of his intoxication, with which the record was “replete.” The state responds to this suggestion by arguing that this court should not consider the effects of the defendant’s intoxication on the validity of his waiver of rights, because the portion of his motion to suppress that challenged his postarrest custodial statements “was expressly and narrowly focused solely on whether there was sufficient evidence that he adequately was informed of those rights in the first place . . . .”
The issue of whether the defendant’s intoxication affected the validity and sufficiency of the postarrest waiver of his rights, which was not included in the defendant’s preliminary statement of issues, has not been adequately briefed for our review. The defendant wrote only one paragraph that even mentioned the issue. That paragraph appears in the section of his brief that addresses the distinct and different issue of whether the arresting officer read him his Miranda rights before subjecting him to custodial interrogation after his arrest. The defendant cited no case law concerning the effects of intoxication on the waiver of fundamental constitutional rights, either in the previously referenced paragraph or elsewhere, and failed even to identify the standard of review under which such an issue must be analyzed and decided. Under that standard of review, this court must make a scrupulous examination of the record to ascertain whether the trial court’s finding of waiver of fundamental constitutional rights is supported by substantial evidence. See State v. Chung, 202 Conn. 39, 48-49, 519 A.2d 1175 (1987). Consistent with this omission, the defendant failed to draw the court’s attention to any facts of record to which the standard of review might appropriately be applied, apart from a brief description of his own alleged conduct at the scene of his arrest. Furthermore, he presented no legal argument as to the significance of the described conduct in relation to his level of intoxication or the resulting validity and sufficiency of his waiver under controlling legal standards. In short, the defendant did nothing to present, support or argue any challenge to the validity and sufficiency of his waiver of rights on the basis of his intoxication other than briefly to mention it, then just as briefly and uniUuminatingly, to criticize the court for failing to address it adequately in ruling on his motion to suppress. We conclude, for these reasons, that this issue is inadequately briefed.
Therriault was the courtroom clerk whose signature appears on multiple documents relating to the defendant’s August 5, 2004 conviction and resulting order of probation.
Although the defendant did not testify at trial, he did testily at the suppression hearing that he has lived at “91 Scott Road, Tenyville, Connecticut” for “fifty-nine years.” This is the same address noted on the court records from the previous convictions for operation under the influence in the Bristol, Enfield, and New Britain cases, which date only as far back as twenty-two years before the date of this trial. The information contained in the records of conviction is also consistent with the address and date of birth listed on the booking information sheet, the A-44 form, the defendant’s driver’s license, and the fingerprint information, which were all full exhibits made available to the jury during its deliberations.
It bears noting that the 1989 New Britain record spells the defendant’s last name as “Hodkowski” instead of “Hodkoski,” which could be one reason why his social security number was not generated on the police department’s computer record. Despite this typographical error, the record still lists the defendant’s birthdate as “05/15/1952” and address as “Scott Rd, Terryville, CT 06786,” which is consistent with the other court records of his prior convictions of operation under the influence.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.