STATE OF CONNECTICUT v. KELLY ANN DANFORTH
(SC 19243)
Supreme Court of Connecticut
Argued February 10, 2014—officially released February 10, 2015
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.
Annacarina Jacob, senior assistant public defender, with whom, on the brief, was James B. Streeto, assistant public defender, for the appellant (defendant). Kathryn W. Bare, assistant state‘s attorney, with whom, on the brief, were Matthew C. Gedansky, state‘s attorney, and Andrew Reed Durham, assistant state‘s attorney, for the appellee (state).
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PALMER, J. A jury found the defendant, Kelly Ann Danforth, guilty of robbery in the first degree as an accessory in violation of
The jury reasonably could have found the following facts. In October, 2010, the defendant, her boyfriend, Anthony Flemke, and their mutual friend, Chadwick Matzdorff, resided together in an apartment in the town of Lebanon. On October 19, 2010, the defеndant learned that Charissa McDonald, from whom she frequently purchased prescription drugs, including Percocet, illegally, was in possession of a large quantity of such drugs. The defendant proposed to Flemke and Matzdorff that they rob McDonald of the drugs, and, together, they devised a plan for doing so. Specifically, they agreed that the defendant would arrange to meet McDonald later that evening in the parking lot of a gas station in the town of Bolton, ostensibly for the purpose of purchasing ten Percocet pills from her. Because McDonald knew both the defendant and Flemke, they decided that Matzdorff should carry out the robbery and that Flemke, using the defendant‘s car, would serve as Matzdorff‘s driver. The plan called for Flemke to drive Matzdorff to the gas station where the defendant and McDonald had agreed to meet. The defendant would wait at home and Flemke would wait in a nearby
In accordance with the plan, the defendant arranged to meet McDonald at the Bolton gas station where they usually met when the defendant purchased drugs from her. Flemke then drove Matzdorff to that location to wait for McDonald. When McDonald arrived at the gas station with her friend, Kelly D‘Aprile, they saw that the station was closed and decided that it was unsafe to complete the transaction there. At that time, McDonald, who was sitting in the passenger seat, sent a text message to the defendant‘s cell phone, instructing the defendant to meet her at a 7-Eleven store in the town of Andover instead. Flemke, who had taken the defendant‘s cell phone with him, responded to the text message, pretending to be the defendant. Flemke informed McDonald that thеy would meet at the 7-Eleven store. Flemke then drove Matzdorff to that location. Once there, Matzdorff waited in the woods behind the store until all other customers had left the parking lot. He then ran up to McDonald‘s car, opened the driver‘s side door, pointed the gun at D‘Aprile‘s head, and demanded that she give him “everything” she had. Before D‘Aprile could respond, Matzdorff reached into the car, grabbed a purse from the backseat and ran off to meet up with Flemke. When Matzdorff got back to the car, he discovered that he had stolen D‘Aprile‘s purse, which contained no drugs. As Flemke and Matzdorff drove home, Matzdorff called the defendant to inform her that the robbery was completed, and that she should call McDonald to establish their alibi. McDonald did not answer her phone at that time, however, because she was busy speaking to police officers who had responded to the robbery. The defendant eventually spoke with McDonald later that evening and informed her that she had gone to the 7-Eleven store as planned but did not stop because there were police cars in the parking lot.
When speaking to police on the night of the robbery, McDonald did not reveal that she was at the 7-Eleven store to sell prescription medication to the defendant. Over the next few days, however, she began to suspect that the defendant was involvеd in the robbery, and she ultimately told the police about the planned drug transaction. She also told the police that the perpetrator resembled Matzdorff, whom she previously had met through the defendant. After learning that McDonald had informed the police of her suspicions regarding the defendant and Matzdorff, Flemke and Matzdorff disposed of the gun. Matzdorff was eventually arrested and charged with the robbery, and he gave a statement
The defendant thereafter was arrested and charged with robbery in the first degree as an accessory and conspiraсy to commit robbery in the first degree. Additionally, the state sought a mandatory five year sentence enhancement pursuant to
I
We first address the defendant‘s claim that the evidence was insufficient to support her conviction of robbery in the first degree as an accessory and conspiracy to commit robbery in the first degree. The defendant contends that the state failed to adduce sufficient evidence to establish that (1) she intentionally aided Matzdorff and Flemke in the commission of the robbery, whiсh was required to support her conviction of robbery in the first degree as an accessory, and (2) she intended that Matzdorff would use a firearm in the commission of the robbery, which was required to support her conviction of conspiracy to commit robbery in the first degree. We reject both contentions.10
The following additional facts and procedural history are relevant to our analysis of these claims. At trial, the state relied principally on the testimony of Matzdorff and, to a lesser extent, the testimony of McDonald, to prove its case against the defendant. Matzdorff testified that, on the day of the robbery, the defendant and Flemke had told him that McDonald was in possession оf a significant quantity of prescription drugs and that the defendant wanted to rob McDonald of them. Matzdorff further testified that the defendant called McDonald to arrange to meet her at a local gas station so that the defendant could purchase some of the drugs. Matzdorff also testified that, while they were working out the details of the robbery, Flemke went to the bedroom that he shared with the defendant and retrieved a ski mask and an airsoft pellet gun for Matzdorff to use during the robbery. According to Matzdorff, the
McDonald cоnfirmed much of Matzdorff‘s testimony, explaining that, on the day of the robbery, the defendant had called her to arrange to meet at a local gas station so that the defendant could purchase drugs from her. McDonald also confirmed that, shortly after the robbery, the defendant called her and told her that she had driven by the 7-Eleven store but did not stop because of the police presence in the parking lot. The state also presented cell phone records from the night of the robbery, which corroborated Matzdorff‘s and McDonald‘s testimony regarding the timing of the calls and text messages between the defendant‘s cell phone and McDonald‘s cell phone.
“We review a claim of evidentiary insufficiency by applying 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury‘s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Fourtin, 307 Conn. 186, 197–98, 52 A.3d 674 (2012).
Additionally, “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 [jury], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the
A
We first address the defendant‘s claim that the evidence was insufficient to support her conviction of robbery in the first degree as an accessory because the state failed to prove that she intentionally aided Matzdorff and Flemke in the commission of that offense. The defendant argues that the evidencе was insufficient to establish that she assisted in the commission of the robbery because, although there was proof that she initially had arranged to meet McDonald at the gas station, it was undisputed that Flemke arranged to meet McDonald at the 7-Eleven store after McDonald chose not to stop at the gas station in Bolton. The defendant further contends that her telephone call to McDonald following the robbery, to explain why she had not stopped at the 7-Eleven store, did not aid in the commission of the offense because the crime had been committed before she made that call.
To establish the defendant‘s guilt with respect to the offense of robbery in the first degree as an accessory under
We agree with the state that the evidence amply supported the jury‘s finding that the defendant solicited Matzdorff to commit the robbery, and that she intentionally aided in the commission of the offense by аrranging to meet McDonald at a gas station, by allowing Matzdorff and Flemke to use her car to drive to that location, and by allowing Flemke to use her cell phone at or around the time of the robbery. Indeed, according to Matzdorff, the defendant hatched the plan to rob McDonald and proposed that Matzdorff carry it out. All of this evidence, if credited by the jury, was more than sufficient to support a finding that the defendant solicited Matzdorff to commit the robbery and wilfully assisted him in carrying it out. See, e.g., State v. Harris, 32 Conn. App. 831, 841, 632 A.2d 50 (1993) (“‘solicits, requests, commands, importunes or intentionally aids’ requires only an asking or insistence that an act be done“), appeal dismissed, 230 Conn. 347, 644 A.2d 911 (1994). The defendant‘s argument that she did not aid in the robbery because it was Flemke, posing as her, who arranged to meet McDonald at the 7-Eleven store after McDonald chose not to stop at the gas station in Bolton, ignores the fact that McDonald would not have been in contact with Flemke in the first place if the defendant had not lured McDonald to the gas station and given Flemke her cell phone so that he could communicate with McDonald while pretending to be the defendant. See State v. Haddad, 189 Conn. 383, 399–400, 456 A.2d 316 (1983) (there was sufficient evidence to support defendant‘s conviction of burglary and attempt to commit larceny as accessory even though defendant was not present during commission of offenses, when evidence established that hе devised plan, solicited perpetrators to carry out offenses, and encouraged them to proceed with plan); State v. Conde, 67 Conn. App. 474, 476–77, 487–89, 787 A.2d 571 (2001) (evidence that gang leader created conditions to facilitate murder by approving killing and ensuring that certain gang members would not retaliate was sufficient to support conviction for murder as accessory), cert. denied, 259 Conn. 927, 793 A.2d 251 (2002). There is no merit to the defendant‘s contention that the evidence was insufficient to support her conviction of robbery in the first degree as an accessory.
B
We next consider the defendant‘s contention that the evidence was insufficient to support her conviction of conspiracy to commit robbery in thе first degree. The defendant argues that, in order to establish her guilt with respect to that crime, the state was required to
“To establish the crime of conspiracy under
In the present сase, the state alleged that the object of the conspiracy was robbery in the first degree in violation of
Construing the evidence in the light most favorable to the state, we conclude that it is readily apparent that the evidence supported a finding that the defendant intended for Matzdorff to use a firearm during the robbery. Although it is true, as the defendant argues, that Matzdorff did not expressly testify that the defendant was present at the precise moment when Flemke handed him the gun, it was reasonable to infer from Matzdorff‘s testimony that the defendant was present at that time and that, in any event, she knew full well that Matzdorff would use the gun to rob McDonald. For example, when the assistant state‘s attorney (prosecutor) asked Matzdorff whether there was any discussion as to how the robbery would be committed, he stated: “Yeah. There was a lot . . . of discussion about how we would do it to get away with it because, obviously, I didn‘t want to get caught [because] I would be the one [doing] most of the time for the crime.” The prosecutor then asked Matzdorff: “And . . . were all three of you involved in this discussion, or only certain parties?” Matzdorff responded: “Yeah, all three of us. . . . [It] was a collective . . . agreement.” The prosecutor also asked Matzdorff: “And, out of that discussion, did you come up with a plan?” Matzdorff responded: “Yes, we did.” After Matzdorff generally described the plan, the prosecutor asked him, “[a]nd, how were you supposed to rob them?” Matzdorff responded: “I had [an] . . . airsoft pellet gun. . . . It was [Flemke‘s], I guess. . . . [He and the defendant] had pulled it out before, shot it a couple of times. But it wasn‘t something that was out all the time [because] we had a lot of young kids around the house all the time. . . . It was in their room.” Matzdorff further explained that, while they were planning the robbery, Flemke had gone to the bedroom that he shared with the defendant to retrieve the gun, as well as a ski mask for Matzdorff to wear during the robbery. Finally, the fact that the defendant laughed as Matzdorff was recounting the terrified looks on McDonald‘s and D‘Aprile‘s faces when he pointed the gun at D‘Aprile‘s head is wholly consistent with her knowledge that the gun would be used.
We agree with the state that this testimony, combined with Matzdorff‘s testimony regarding the defendant‘s central role in planning the robbery, was more than sufficient to support a finding that the defendant was aware that a gun would be used to commit the offense. See, e.g., State v. Millan, supra, 290 Conn. 828–30 (there was sufficient evidence that agreement included use of
II
The defendant next claims that the trial court improperly concluded that she was subject to a sentence enhancement under
The defendant cannot prevail on this claim in light of our decision today in the companion case of State v. Flemke, 315 Conn. 500, 108 A.3d 1073 (2015). In particular, in Flemke, we reaffirmed our conclusion in Davis that the language of
III
The defendant‘s final contention is thаt the trial court improperly instructed the jury concerning the state‘s burden of proof. Specifically, the defendant challenges three separate statements that the trial court made in explaining the meaning of reasonable doubt: (1) that a reasonable doubt is “a real doubt, an honest doubt“; (2) that a reasonable doubt is “such a doubt as, in the serious affairs that concern you, you would heed“; and (3) that “[t]he meaning of reasonable doubt can be arrived at by emphasizing the word reasonable.” The defendant also argues that the “cumulative effect” of these instructions diluted the state‘s burden of proof and deprived her of a fair trial. Although the defendant acknowledges that this court repeatedly has rejected these claims in prior cases; see, e.g., State v. Winfrey, 302 Conn. 195, 218–19, 24 A.3d 1218 (2011); State v. Mark R., 300 Conn. 590, 616–17, 17 A.3d 1 (2011); State v. Bowman, 289 Conn. 809, 811 n.2, 960 A.2d 1027 (2008), overruled in part on other grounds by State v. Elson, 311 Conn. 726, 91 A.3d 862 (2014); State v. Patterson, supra, 276 Conn. 491 n.26; she explains that she has raised them to preserve them for future federal habeas review. The state argues that the defendant waived her claims under State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942 (2011),13 by failing to object to the challenged jury instructions after the trial court provided the parties with copies of its proposed instructions and afforded the parties a meaningful opportunity to review them. Alternatively, the state argues that the defendant has provided no reason why we should overrule our precedent rejecting identical claims of instructional impropriety.
It is unnecessary to decide whether the defendant waived her claim under Kitchens because, even if she did not, she has offered no convincing reason why we should reconsider our prior case law. “Moreover, as in those prior cases, we see no reasonable possibility that the challenged language, when read in the context of the entire charge regarding reasonable doubt, misled the jury in its understanding of the state‘s burden of proving the defendant‘s guilt beyond a reasonable doubt.” State v. Winfrey, supra, 302 Conn. 219.
The judgment is affirmed.
In this opinion the other justices concurred.