Opinion
Thе 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
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.
Officer Paul Surprenant of the Plymouth Police Department was the first officer to respond to the scene. Upon his arrival, Surprenant observed a pickup truck, partially on, partially off the road at 403 Main Street, with the defendant trying to get out of the truck through the driver’s side door. After parking his cruiser, Surpren-ant approached the defendant and asked him what had happened. The defendant responded that he had slid off the road on an accumulation of ice and snow. As the defendant was talking, Surprenant detected the odors of alcohol and marijuana on his person and noticed that his eyes were glassy. When Surprenant asked the defendant if he had been drinking alcohol that evening, the defendant stated that he had had “two beers.”
Based on his obsеrvations 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
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 statе 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 memorandum of decision dated October 20, 2011. With respect to the defendant’s challenged statements, the court held that the defendant had been advised of his constitutional rights, as prescribed by Miranda, and that there was no indication “that his level of intoxication or any other factor kept him from understanding his rights and options.” On that basis, it concluded that all the statements made by the defendant after his arrest, including his refusal to take a Breathalyzer test, had been made “after the defendant was properly advised [of] and knowingly, intelligently and voluntarily waived his right to remain silent.”
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.
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 evasion of responsibility, the court sentenced the defendant to a consecutive term of one year imprisonment, execution suspended after six months, for a total effective sentence of four years imprisonment, execution suspended after two and one-half years, with three years probation and a $2000 fine. This appeal followed. Additional facts will be set forth as necessary.
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 stаtion with the defendant in custody, he picked up a packet of paperwork that the Plymouth Police Department uses whenever processing suspects charged with operation under the influence. The packet contained an “A-44 form, [a] notice of rights [form], [andan] appearance bond.” Surprenant testified that he read the defendant his rights from the notice of rights form, and that the defendant then said that he understood those rights.
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
At the end of the suppression hearing on June 10, 2011, the court orally denied the motion to suppress. As previously noted, the court later issued a written memorandum of decision explaining the basis for its ruling. On the threshold issue presented for its decision with respect to the defendant’s postarrest statements, the
“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 sеt out in the memorandum of decision . . . (Citations omitted; internal quotation marks omitted.) State v. Colvin,
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 motiоn 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 ownеr under § 14-224 (b). In support of this claim, the defendant makes two basic arguments. First, he contends that the mere removal of bark from a tree, without more, is analogous to the mere leaving of a paint transfer on stricken property, which assertedly was held, in State v. Humphrey,
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 each essential element of the charged offense beyond a reasonable doubt. If the evidence, so construed, is incapable of proving even one such essential element by that high standard, the defendant is entitled to the reversal of his conviction on that offense and the entry of a judgment of acquittal.
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 the owner of the injured or damaged property, or to any officer or witness to the . . . injury or damage to property . . . Violation of these statutory requirements constitutes the offense of evasion of responsibility.
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
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 mattеr 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,
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 lоss, 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,
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—а 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, however, the state argues that much more evidence was presented to the jury than the bare criminal records of one or more persons who might share the defendant’s name to establish that the defendant had at least two prior convictions for operation under the influence before the date of his operation under the influence in this case. It relies, for this purpose, both upon the long list of other common features shared by the defendant and the person or persons listed and described in the proffered criminal records, as well as on the testimony of Therriault, who personally identified the defendant as the person who, on August 6, 2004, pleaded guilty in her presence to operation under the influence as a second offender, while she was working in the Bristol Superior Court. We agree with the state that the foregoing evidence afforded the jury a sufficient basis for finding the defendant guilty of operation under the influence as a third or subsequent offender, and thus, we reject the defendant’s claim to the contrary.
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 casе.
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 record pertains.
Consistent with the latter conclusion, this court has previously held that information
Construing the evidence in the light most favorable to sustaining the conviction, we conclude thаt 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.
Notes
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 fоrm 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 rеfusal 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 (90) days. If you hold an operator’s license from another state other than Connecticut, your driving privilege in Connecticut is subject to the same revocation and suspension penalties. The results of the tests or the fact of a refusal may be admissible in evidence against you in a criminal prosecution for driving under the influence of alcohol and/or drugs, or other offense, and evidence of a refusal may be used against you in any criminal prosecution.”
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 nаrrowly 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, еither 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,
“[F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited. . . . [Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” (Internal quotation marks omitted.) State v. Crocker,
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.