25 Conn. App. 472 | Conn. App. Ct. | 1991
This case presents two issues: (1) whether the trial court improperly instructed the jury on the state’s burden of proof relative to circumstantial evidence and (2) whether the trial court improperly denied the defendant credit toward his term of probation.
The defendant, Robert W. Haynes, was charged by information with assault in the third degree in violation of General Statutes § 53a-61 and possession of narcotics in violation of General Statutes (Rev. to 1981) §§ 19-452 and 19-481 (a).
The defendant’s appeals from those judgments were consolidated for review. We affirm the first judgment in part and reverse it in part. We dismiss the appeal from the revocation of probation.
The charges against the defendant arose from an incident in a New London cafe on the evening of April 18, 1981. The victim, Cynthia Griffin, who owed the defendant ten dollars for a bag of heroin she had bought from him, went to the club that evening. During an encounter between them, an argument ensued, and the defendant struck her in her right eye with his fist, knocking her to the floor. At trial, Griffin testified that the defendant hit her after becoming angry over the money she owed. Two police officers testified that shortly after the incident they saw bruises about her eye and that it was puffy and red. The defendant called two witnesses who testified that they were in the club at the time of the incident but did not see him strike Griffin. The defendant did not testify, and no evidence was presented as to whether he hit Griffin accidentally or intentionally.
After she was struck, Griffin left the club to find a police officer. She summoned Officer Glenn Davis, gave him a description of the defendant and said that the defendant might have a weapon. After additional officers arrived, the police, accompanied by an acquaint
The defendant claims that his assault conviction should be vacated because the trial court improperly instructed the jury on the state’s burden of proof relative to the use of circumstantial evidence. He claims that the court’s instruction permitted the jury to infer facts, including those pertinent to intent, on the basis of a preponderance of the evidence. The defendant argues that this had the effect of diluting the state’s burden to prove the essential elements of a criminal charge beyond a reasonable doubt, thereby denying him his federal and state constitutional rights to due process. We disagree.
Although the defendant admits that he neither filed a request to charge nor excepted to the court’s instruction, we review his claim under the Evans-Golding
The trial court instructed the jury that it could infer the existence of one or more facts based on other facts offered into evidence if (1) “the fact from which you are asked to draw the inference has itself been proven beyond a reasonable doubt,” and (2) such inference “is not only logical and reasonable but is strong enough so that you can find that is more probable than not that
The defendant also claims that his conviction for possession of heroin was improper for the same reasons. We note at the outset that the state concedes that the trial court improperly instructed the jury and that the conviction cannot stand. The state also concedes that the principal factual issue at trial, possession, was established entirely through circumstantial evidence. In such a case, a reviewing court will closely scrutinize the trial court’s jury instructions as to such evidence. State v. Robinson, supra, 210; State v. Mullings, supra, 12; State v. Whelan, supra, 757. Here, the court instructed the jury that it was entitled to draw reasonable infer
Finally, the defendant asserts that the trial court improperly extended his probation and denied him credit for time served. Although we note that the defendant’s conviction for assault provided a proper basis for extending his probation, we decline to consider these claims, as no controversy exists for this court to adjudicate. “ ‘ “It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” ’ ” McCallum v. Inland Wetlands Commission, 196 Conn. 218, 225, 492 A.2d 508 (1985), quoting Arnold Bernhard & Co. v. Planning & Zoning Commission, 194 Conn. 152, 158, 479 A.2d 801 (1984). The defendant’s term of probation has expired. Since the defendant is no longer being supervised under the term of probation, no relief exists that this court could grant. The defendant’s appeal from the extension of his probation is dismissed.
The judgment is reversed only as to the conviction of possession of heroin and the case is remanded for a new trial on that charge; the appeal from the revocation of probation is dismissed.
In this opinion the other judges concurred.
General Statutes §§ 19-452 and 19-481 (a) are now codified at General Statutes §§ 21a-245 and 21a-279 (a), respectively.
State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).