State v. Berthiaume
State v. Berthiaume
Opinion of the Court
*438The defendant, Toby Arthur Berthiaume, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2). On appeal, the defendant claims (1) there was insufficient evidence to convict him of burglary in the first degree, and (2) even if there were sufficient evidence to sustain his conviction, the trial court committed plain error by failing to exclude evidence of an eyewitness identification of the defendant. Unpersuaded by either claim, we affirm the judgment of the trial court.
The jury reasonably could have found the following facts. In mid-2013, the victim, Simone LaPointe, was ninety-three years old and resided at 126 Windsor Street in Enfield, her home for over four decades. She suffered from dementia and short term memory loss, and although she lived alone, was accompanied by either a friend or one of her surviving eleven children "most of the time." Typically, the victim's friend stayed with her overnight, and her children took turns visiting her throughout the day. Despite this visitation schedule, there were gaps of time throughout the day in which *439the victim was home alone. Because the victim neither drove nor owned a car, her driveway would be empty during these gap periods, thus indicating that she was alone.
On May 6, 2013, Marita Cunningham, one of the victim's daughters, arrived at 126 Windsor Street around noon, and departed, leaving the victim home alone, at approximately 12:50 p.m. When Cunningham left 126 Windsor Street, nothing inside the residence looked out of order and the victim was uninjured. About one hour later, Jessica Navarro-Gilmore, while passing by in a motor vehicle, saw the defendant and another white man "walking suspiciously" on a road near the victim's home while carrying what appeared to be "a twenty inch flat screen ... TV or monitor ...." The two men were "walking quickly and looking over their shoulder[s] suspiciously." Drawing on her own experience committing theft offenses, Navarro-Gilmore immediately suspected that the two men had stolen something from a *685home in the neighborhood.
At approximately 3 p.m., the victim called Norma Shannon, another of her daughters, and told Shannon that her knee was bleeding. Shannon went to 126 Windsor Street in response to the call, and upon entering, noticed that "the house had been ransacked ...." Various drawers and cabinets inside the house had been left open, jewelry and other items were lying on the victim's bed and dresser "as if they had been dumped there," and the dining room chandelier was broken. There was blood on the floor of the dining room, and the phone line in the living room, which was adjacent to the dining room, had been cut. The victim's knee *440was bandaged, and she had sustained a "mark on her nose," a bruise on her face, and a chipped tooth. A search of the home revealed that the victim's ring, which contained fourteen birthstones, and her nineteen inch flat screen television, had been stolen.
At 3:44 p.m., the defendant sold what was later determined to be the victim's ring and television at the Money Shop, a pawn shop and jewelry store located in Springfield, Massachusetts. In order to make the sales, the defendant provided Jeffrey Fiske, the owner of the pawn shop, with his identification and had his photograph taken. The defendant also provided his address, 116 Windsor Street, and telephone number. Fiske identified the defendant as the person who received the sales proceeds.
Thereafter, police showed Navarro-Gilmore a sequential photographic array that did not include a photograph of the defendant, and she did not identify anyone as one of the men she saw carrying the television on May 6, 2013. After developing the defendant as a suspect, Detective Brian Callaghan of the Enfield Police Department searched the New England State Police Information Network, a database wherein local pawn shops record their daily transactions, which returned information on the Money Shop. On June 11, 2013, Fiske provided Detective Callaghan with sales slips, the defendant's photograph, and the victim's television and ring.
The defendant was arrested on July 3, 2013, and charged with burglary in the first degree and several other offenses.
On April 7, 2014, following a trial, the jury found the defendant guilty of burglary in the first degree. The court imposed a total effective sentence of twenty years incarceration. This appeal followed. Additional facts and procedural history will be set forth where necessary to the resolution of the defendant's claims.
I
The defendant first claims that there was insufficient evidence to convict him of burglary in the first degree. Specifically, he argues that the state failed to adduce evidence from which the jury reasonably could have concluded beyond a reasonable doubt that he remained unlawfully inside the victim's home with the intent to commit a crime therein, or that he had knowingly or recklessly inflicted bodily injury on the victim. Additionally, the defendant contends there was insufficient evidence that he was the person who injured the victim while remaining unlawfully inside her residence *442because Navarro-Gilmore's testimony revealed the presence of a second, unidentified white man who was seen on a nearby street and could have injured the victim. We disagree with both contentions.
The following principles guide our resolution of the defendant's sufficiency of the evidence claim. "Unlike Aristotelian and Thomistic logic, law does not demand metaphysical certainty in its proofs. In law, we recognize three principal proofs: beyond a reasonable doubt, which is the very high burden in a criminal case; clear and convincing evidence, required to prove fraud and certain other claims, which equates to a very high probability; and preponderance of the evidence, applied to civil claims generally, which means it is more probable than not. None of these varying proofs require absolute certainty." (Footnote omitted.) Curran v. Kroll ,
"To meet one's burden of proof, evidence is necessary. This evidence comes in two forms, direct and circumstantial. 'The basic distinction between direct and circumstantial evidence is that in the former instance the witnesses testify directly of their own knowledge as to the main facts to be proved, while in the latter case proof is given of facts and circumstances from which the jury may infer other connected facts which reasonably follow, according to common experience.' 29 Am. Jur. 2d 329, Evidence § 313 (1994). 'Proof of a fact by the use of circumstantial evidence usually involves a two-step process. A fact is first established by direct evidence, which is ordinarily eyewitness or other direct testimony. That direct evidence can serve as a basis from which the jury infers another fact. Thus, the direct evidence may operate as circumstantial evidence from which a fact is inferred by the jury.' State v. Sullivan ,
*443'When the necessity to resort to circumstantial evidence arises either from the nature of the inquiry or the failure of direct proof, considerable latitude is allowed in its reception.' 29 Am. Jur. 2d 331, Evidence § 315 (2008).
" 'An inference is a factual conclusion that can rationally be drawn from other facts. If fact A rationally supports the conclusion that fact B is also true, then B may be inferred from A. The process of *687drawing inferences based on a rough assessment of probabilities is what makes indirect or circumstantial evidence relevant at trial. If the inference (fact B from fact A) is strong enough, then fact A is relevant to prove fact B. Inferences are by their nature permissive, not mandatory: although the fact proved rationally supports the conclusion the offering party hopes will be inferred, the factfinder is free to accept or reject the inference.' ... 1 C. Fishman, Jones on Evidence (1992) § 4:1, pp. 299-300; see also D. Faulkner & S. Graves, Connecticut Trial Evidence Notebook (2d Ed. 2008 Rev.) I-14." (Emphasis in original.) Curran v. Kroll , supra,
"In reviewing a sufficiency of the evidence claim, we 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 [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence. ... The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. ... This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved *444beyond a reasonable doubt ... because this court has held that a [trier's] factual inferences that support a guilty verdict need only be reasonable. ...
"[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 trier, 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 [trier's] verdict of guilty. ... Furthermore, [i]n [our] process of review, 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." (Internal quotation marks omitted.) State v. Butler ,
"[P]roof of a material fact by inference from circumstantial evidence need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact. ... Thus, in determining whether the evidence supports a particular inference, we ask whether that inference is so unreasonable as to be unjustifiable. ... In other words, an inference need not be compelled by the evidence; rather, the evidence need only be reasonably susceptible of such an inference. Equally well established is our holding that a jury may draw factual inferences on the basis of already inferred facts. ... Moreover, [i]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing *445those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence." (Citations omitted; internal quotation marks omitted.) *688State v. Copas ,
"Review of any claim of insufficiency of the evidence introduced to prove a violation of a criminal statute must necessarily begin with the skeletal requirements of what necessary elements the charged statute requires to be proved." State v. Pommer ,
A person is guilty of the crime of burglary in the first degree when he "enters or remains unlawfully in a building with intent to commit a crime therein and, in the course of committing the offense, intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone ...." General Statutes § 53a-101 (a) (2).
In the present case, the defendant correctly points out the lack of direct evidence-in the form of fingerprints, DNA or eyewitness testimony-establishing his presence inside the victim's home. Nevertheless, we conclude that the state introduced sufficient circumstantial evidence upon which the jury reasonably could have found not only that the defendant was present in the victim's home, but also that each element of the crime of burglary in the first degree had been proven beyond a reasonable doubt. As an initial matter, we note that the defendant was photographed selling the victim's stolen ring and television at a pawn shop shortly after the items were discovered to be stolen. From that evidence, the jury reasonably could have inferred not just *446that the defendant had received or was in possession of the stolen items, as the defendant argues, but that he was the person who stole them. See State v. Higgins ,
Proceeding from that premise, we address the remainder of the evidence that, in our view, established a strong circumstantial case against the defendant. Cunningham testified that she had visited the victim around noon on May 6, 2013, at which time the home was intact and the victim was uninjured, and that she left the victim home alone at approximately 12:50 p.m. The defendant, who lived only a few houses away from the victim at 116 Windsor Street, was in a position to know that the victim was alone and thus vulnerable because he could see that no cars were in her driveway. One hour after Cunningham left, at around 1:53 p.m., Navarro-Gilmore saw the defendant and a second white man "walking suspiciously," as if they had stolen something, down a nearby street while carrying a flat screen television or monitor. Shortly thereafter, the victim called Shannon, her daughter, and told Shannon that her knee was bleeding. Shannon arrived at the victim's residence to find it in a state of disarray. Items had been hastily "dumped" out, various drawers and cabinets were open, and a crystal from the dining room chandelier had fallen to the floor, suggesting that someone had ransacked the home in search of valuables. The victim's television and ring had been stolen. There was blood on the dining *447room floor, and the victim had sustained a bloody knee, chipped tooth, and bruised *689face, all signs that a struggle had taken place. All of this evidence, in combination with the defendant's sale of the victim's stolen ring and television shortly thereafter, supports the inference that the defendant remained unlawfully in the victim's home with the intent to commit a crime therein, namely, larceny. See, e.g., State v. Cote ,
We note that although there were no signs of a forced entry, the jury nevertheless could have concluded that the defendant "remain[ed] unlawfully" in the victim's residence.
Finally, we must determine whether there was sufficient evidence to support the jury's finding that the defendant, in the course of committing the burglary, "knowingly or recklessly inflict[ed] ... bodily injury" on the victim. General Statutes § 53a-101 (a) (2). As previously noted, the state adduced evidence that the victim was uninjured as of 12:50 p.m., and that by at least 3 p.m. had sustained a bloody injury to her knee, a mark on her nose, a bruise on her face, and a chipped tooth. During that same time period, around 1:53 p.m., the defendant was observed "walking suspiciously" with a second man away from the victim's residence with what appeared to be a television, and *690was photographed selling the victim's stolen items approximately two hours later in Springfield, Massachusetts. The chandelier in the victim's dining room was broken, there *449was blood on the floor, and the telephone cord in the adjacent room was cut. Cunningham testified that despite the victim's advanced age, she was a "feisty individual" who would "try to stand up for herself and ... fight back" if someone tried to "push their way" into her home. From this evidence, the jury reasonably could have concluded that the victim resisted the defendant's attempts to burglarize her home, prompting the defendant to physically assault the victim and to cut the telephone wire to prevent her from contacting help.
Despite this evidence and authority, the defendant argues that there was insufficient evidence that he inflicted bodily harm on the victim because Navarro-Gilmore testified that, when she saw the defendant walking down a nearby street with the television, he was accompanied by a second, suspicious looking white man. We are not persuaded that Navarro-Gilmore's testimony regarding the presence of a second white man on the street renders the evidence insufficient as a matter of law. Essentially, the defendant's argument is that the jury could have inferred that the second man had been inside the victim's residence and had participated in the burglary, and, thus, could have been the person who inflicted bodily injury on the victim. In determining whether there was sufficient evidence to sustain a conviction, however, "the trier of fact [in evaluating evidence] is not required to accept as dispositive those inferences that are consistent with the defendant's innocence. ... The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Internal quotation marks omitted.)
*450State v. Butler , supra,
In view of that principle, the jury was not required to infer that the second man had been present inside the victim's home during the burglary, much less that he, and he alone, inflicted bodily harm on the victim.
II
The defendant next claims that his conviction should be reversed because the court improperly failed to *453exclude, under State v. Holliman ,
The following additional facts and procedural history are relevant to this claim. On March 14, 2014, the defendant moved to suppress "any and all in-court or out-of-court identifications of [him] ... because said identifications were obtained in violation of [his] rights." In support of his argument, the defendant relied on various state and federal constitutional provisions, as well as the United States Supreme Court's decision in Manson v. Brathwaite ,
It is well settled that "[d]ue process requires that [eyewitness] identifications [may be admitted at trial] only if they are reliable and are not the product of unnecessarily suggestive police procedures." (Internal quotation marks omitted.) State v. Johnson ,
The plain error doctrine "is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. [T]he plain error doctrine ... is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment, for reasons of policy. ... In addition, the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... Plain error is a doctrine that should be invoked sparingly." (Internal quotation marks omitted.) State v. Sanchez ,
Our review of claims of plain error involves a two step process. "First, we must determine whether the trial court in fact committed an error and, if it did, whether that error was indeed plain in the sense that it is patent [or] readily discernable on the face of a factually adequate record, [and] also ... obvious in the sense of not debatable ." (Emphasis in original; internal quotation marks omitted.) State v. Coward ,
With the Holliman standard in mind, we conclude, on the basis of the totality of the evidence introduced at trial, that the defendant's claim fails the first prong of the plain error analysis. That is, the defendant has failed to establish that the court, in admitting Navarro-Gilmore's identification, committed an error that was "so clear, obvious and indisputable as to warrant the extraordinary remedy of reversal."
The judgment is affirmed.
In this opinion DiPENTIMA, C.J., concurred.
At the time she testified at trial, Navarro-Gilmore had three convictions for larceny in the sixth degree and a fourth larceny charge that was pending.
Detective Callaghan determined that the television stolen from the victim's home and the one the defendant sold at the pawn shop had the same serial number. The ring sold by the defendant contained fourteen stones, matching the description of the ring that was stolen.
When the defendant's trial began, the defendant also was charged, by an amended information dated April 2, 2014, with being an accessory to burglary in the first degree in violation of General Statutes §§ 53a-8 and 53a-101 (a) (2), and with conspiracy to commit burglary in the third degree in violation of General Statutes §§ 53a-48 and 53a-103 (a). During trial, at the conclusion of the state's case-in-chief and after argument on the defendant's motion for a judgment of acquittal, the state filed the operative charging document, an amended information dated April 4, 2014, which dropped the conspiracy count and accessory liability theory. Thus, when the case went to the jury, the defendant was charged solely with committing, as a principal perpetrator, burglary in the first degree.
Because the state charged the defendant with remaining unlawfully inside the victim's residence with the intent to commit a crime therein, it did not have to prove that the defendant's entry into the residence was unlawful. See State v. Peay,
As we will explain, the presence of the second man after the burglary does not negate the jury's finding that the defendant knowingly or recklessly inflicted bodily injury on the victim during the burglary.
In view of this evidence, we reject the defendant's suggestion that the evidence was insufficient because the victim, given her age, could have injured herself by falling. The jury reasonably could have concluded that the perpetrator assaulted the victim in order to incapacitate her while he was searching the home for valuables. Indeed, Cunningham testified that the victim was readily able to move around and was not prone to falling.
For example, in State v. Cote, supra,
In our view, the concurring and dissenting judge's reliance on State v. Parham,
The defendant did not request a third-party culpability instruction at trial.
We do not agree with the concurring and dissenting judge's characterization of the record as indicating that Navarro-Gilmore "testified that both men were ... holding [the television]." Navarro-Gilmore initially testified that she "saw two men walking suspiciously ... carrying" the television, and that she saw "them carrying [the television] ...." Immediately thereafter, however, she testified that she "wasn't trying to get a good look at the [television]. I just-I was trying to get a look at who was taking it so that I honestly ... saw it happen, we went back to turn onto White Street, I was able to get a face on view of the person and honestly I just-I described what I saw in the statement." (Emphasis added.) Navarro-Gilmore's testimony, viewed in the light most favorable to the state, was therefore that while she saw two people walking together away from the victim's residence, only one of them was carrying the television. Because the defendant was the person photographed selling the television at a pawn shop shortly thereafter, and thus receiving the fruits of the crime, the jury could have inferred that the man she saw carrying the television was the defendant.
The defendant agrees that, because the Holliman rule is evidentiary in nature, his claim is not subject to review under State v. Golding,
In Johnson, our Supreme Court expressed doubt regarding the continued efficacy of the Holliman evidentiary rule in light of Perry v. New Hampshire,
Concurring in Part
I concur with part II of the majority opinion. I respectfully dissent with respect to the conclusion reached in part I, that there was sufficient evidence for the jury to reasonably infer that the defendant, Toby Arthur Berthiaume, knowingly or recklessly inflicted physical injury on the victim and is therefore guilty of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2).
I begin by noting that although Jessica Navarro-Gilmore's testimony about seeing two people acting suspiciously and holding a small flat television screen or monitor suggested that two people were involved in committing the burglary, the jury was not instructed under the theory of accessory liability.
The state's case, therefore, went to the jury on the theory that the defendant was the principal perpetrator of burglary in the first degree.
In State v. Parham ,
In the present case, the state was limited to proving beyond a reasonable doubt that the defendant was the principal perpetrator of a burglary in the first degree. The identification witness, Navarro-Gilmore, observed two men, one of whom she later identified as the defendant, "walking quickly and looking over their shoulder[s] suspiciously" on Hartford Avenue in Enfield, a street not far from the victim's home, both carrying what appeared to be a flat screen TV or monitor, resembling one of the items stolen and which the defendant later pawned. Although the majority notes that "there was no evidence presented at trial concerning the identity of the second man or his alleged role, if any, in the burglary,"
Next, relying on State v. Cote ,
While I agree that Cote permits the circumstantial evidence in this case to be interpreted in such an attenuated manner as to uphold a conviction of third degree burglary,
In State v. Cote , supra,
Cote is instructive because, like the present case, it involved evidence that implicated two codefendants but did not suggest that one of them was the principal *466perpetrator of the crime. Cote 's reasoning suggests that the evidentiary inferences the majority uses to implicate only the defendant in the present case should *700apply equally to the unidentified man who was seen accompanying the defendant in the vicinity of the victim's home shortly after the burglary took place. It is significant that Navarro-Gilmore did not identify the defendant as the only person holding the small flat screen television alone, but she twice testified that both men were both holding it. I disagree with the majority that it is permissible to allow the jury to extend the allowable inference that the defendant and the other male were involved in a burglary as a result of being near the crime scene and being in possession of the stolen flat screen television into conjecture that the defendant must have been the sole perpetrator of the burglary who unlawfully remained in the home, stole the victim's property, and inflicted physical injury on the victim because he lived nearby and ultimately pawned the victim's stolen television and ring.
This is especially true in light of the fact that there was no testimony from the victim either describing any kind of struggle or assault or identifying her attacker or attackers; no testimony from the other man with whom the defendant was observed; or any physical evidence such as blood, fingerprints, or DNA evidence that implicated the defendant as an assailant. Against this evidentiary backdrop, I conclude that any inference the jury drew that the defendant knowingly or recklessly inflicted physical injury on the victim appears to have been the product of unreasonable speculation. There is no evidence, direct or circumstantial, that supports a finding that one specific man out of the two, or both, inflicted physical injury on the victim. "[A] jury may draw reasonable and logical inferences from the facts proven, but it may not resort to speculation and conjecture." (Internal quotation marks omitted.)
*467State v. Terry ,
Connecting the defendant to the infliction of the victim's injuries because he was seen shortly after the time the burglary probably occurred with one of the stolen items on a street near to the burgled premises and the evidence that, later that day, he pawned the stolen property, is not the result of drawing reasonable inferences. The majority agrees with the state that the defendant criminally assaulted the victim and that, by cutting a telephone cord in her residence, he tried to prevent her from obtaining help, but the undisputed presence of an equally suspicious cohort and the lack of any additional evidence, direct or circumstantial, as to the exact role the defendant played in the process of burglarizing the premises makes it speculative to conclude that the defendant inflicted physical injury on the victim. As to the infliction of physical injury element of burglary in the first degree, the jury was not viewing evidence that could yield contrary inferences as to guilt or innocence of the defendant alone. Rather, it was viewing evidence that yielded contrary, irreconcilable inferences as to which of the equally positioned suspicious white men seen by Navarro-Gilmore was the victim's attacker, and no additional circumstantial evidence justified the choice the jury made in rejecting the possibility that the other suspicious man, as opposed to the defendant, or that both men caused injury to the victim. The only evidence that differentiates the defendant from the man who was suspiciously walking with him is that the defendant lived near the victim,
"[T]he line between permissible inference and impermissible speculation is not always easy to discern. When we infer, we derive a conclusion from proven facts because such considerations as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. ... But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter of judgment." (Internal quotation marks omitted.) State v. Rivera ,
The four decisions the state cites to support its argument that there was sufficient evidence that the defendant inflicted injury on the victim do not persuasively compare with or establish the sufficiency of the circumstantial evidence the jury had in this case. In the two Connecticut decisions cited, State v. Gemmell ,
*469State v. Gemmell , supra, at 593-94,
"The due process clause of the fourteenth amendment 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." (Internal quotation marks omitted.) State v. Johnson ,
This court may order modification of an erroneous judgment if the evidence is sufficient to support a conviction of a lesser included offense on which the jury properly had been charged, as the jury's verdict necessarily includes a finding that the defendant was guilty of that lesser offense. See, e.g., State v. Saracino ,
Accordingly I would reverse the judgment of the trial court and remand the case to the trial court with direction to modify the judgment and for the resentencing of the defendant on the lesser included offense of burglary in the third degree.
In our evaluation of the sufficiency of the evidence, we, of course, consider the theory of liability on which the jury was instructed and, thus, legally and logically could have based its verdict. See Cole v. Arkansas,
On the count of burglary in the first degree, the trial court did not instruct the jury to consider whether the defendant intentionally inflicted physical injury on the victim or whether the defendant merely attempted to inflict physical injury on her. Earlier, during one of several charging conferences, in discussing the proposed instruction on burglary in the first degree, the court stated: "Then ... the next, element three, we took out intentionally, so we'll take it out here, it's knowingly or recklessly inflicted." There is no indication in the record as to the evidentiary gap that may have formed the basis for this deletion. "Penal statutes are to be construed strictly ... and not extended by implication to create liability that the legislature did not purport to create." (Citation omitted.) State v. Hufford,
The state argues, and the majority agrees, that the jury had sufficient evidence to infer that the defendant engaged in an altercation with the victim and that he struck her in the face. Because, as the charge was submitted to the jury in this case, proof of the aggravating element of burglary in the first degree requires a showing that the defendant "inflict [ed]" physical injury on the victim; General Statutes § 53a-101 (a) (2) ; the exclusion of the word "intentionally" nevertheless did not permit the jury to conclude that the defendant could be convicted on that count absent proof he had knowingly or recklessly caused physical injury to the victim by personally engaging in a physical struggle with her that caused her injury. In charging the jury on the lesser included offense of burglary in the third degree, the court instructed the jury that it had to determine that it was the defendant who was the perpetrator of that offense, but it did provide similar guidance to the jury in relation to its burglary in the first degree instruction.
Additionally, I observe that, although it was not raised by the defendant as a claim of prosecutorial impropriety on appeal, the prosecutor improperly argued to the jury during rebuttal argument and wrongfully informed it that "[i]f you decide that [the defendant] is the person [who] entered that house, [who] took the TV, [and who] then pawned up in Springfield, there's no need to find him not guilty on count one, you should never get to burglary in the third degree." The element of knowing or reckless infliction of physical injury to the victim was not mentioned.
There was a codefendant who was prosecuted separately.
Navarro-Gilmore testified that she had prior larceny convictions and a pending larceny charge and therefore justified her suspicions as she had "walked the walk," acting in the same manner as the two men she observed after stealing something and fearing discovery.
As to this conclusion, there was no evidence that the defendant had been home during the time preceding the burglary. Detective Brian Callaghan of the Enfield Police Department testified that the defendant was "associat[ed] with another address," 10 Bigelow Avenue, and the location of this address was shown to the jury by means of an aerial photograph. Yet, this evidence appears to demonstrate that an occupant located inside of the residence at 10 Bigelow Avenue would not have been able to observe the victim's residence. The Bigelow Avenue residence is blocks away from the victim's residence, and is located on the corner of White Street and Bigelow Street. It was after Navarro-Gilmore and the driver of the car in which she was a passenger turned the car onto White Street that she lost sight of the two suspicious men she had seen carrying the television.
The victim's daughter, Norma Shannon, testified that a crystal from the dining room chandelier had fallen off of it.
Again, the majority previously noted that "there were no signs of a forced entry ...."
The state relies on Cote and other cases, but they are distinguishable in that they involved direct or circumstantial evidence of a more convincing nature than that presented in the present case, and they did not involve situations in which the defendant was one of several suspected perpetrators of the crime. In State v. Sherman,
The state previously had charged the defendant with assault of an elderly person in the third degree in violation of General Statutes § 53a-61a, an offense which was not charged in either of its two subsequent amended informations. During trial, the state filed its first amended information and charged the defendant with burglary in the first degree and conspiracy to commit burglary in the third degree. After the state rested its case, the defendant moved for judgment of acquittal on both counts. The court denied the defendant's motion for judgment of acquittal on the count of burglary in the first degree but reserved decision on the count of conspiracy to commit burglary in the third degree. Thereafter, the state filed its second amended information, at which time it deleted the conspiracy to commit burglary in the third degree count.
There also was conduct evincing consciousness of guilt by the defendant in Cote in that there was evidence that he had dumped a bag of stolen jewelry outside his car in the bushes where he had parked his car after following the Richmond police chief to the police station. See State v. Cote, supra,
There was no evidence presented to the jury identifying the codefendant, the factual basis for his being charged with respect to the burglary, or the location of his residence.
In Laster, however, the victim, who suffered from dementia, had difficulty remembering what had happened to her, but her original statements to her neighbor, her daughter, and the police describing her assault at the hands of the defendant in that case were held to be sufficient evidence to convict him, notwithstanding the victim's contradictory testimony in court that the defendant had injured her accidentally. Laster v. State, supra,
Reference
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