State v. MooreState v. Moore
- Reporters:
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- Before:
- Gruendel
Opinion
Following a trial, a jury found the defendant, Joseph Moore, guilty of robbery in the first degree in violation of
On appeal, the defendant claims that (1) the court improperly denied his motion for a judgment of acquittal because the evidence adduced at trial was insufficient to establish that he threatened the use of a firearm at the time of the robbery and (2) his sentence enhancement pursuant to
The jury reasonably could have found the following facts. At approximately 1 p.m. on July 13, 2009, the defendant entered the New Alliance Bank in Columbia wearing a white tank top and dark sweatpants. Branch manager Penny Ritchie and tellers Maria DePietro and Michelle LaLiberty, who were working at the bank that day, observed the defendant approach the check writer station. The defendant then asked another patron, David Woodward, where the withdrawal slips were located, at which point the defendant took a slip from the station and began to write on
The defendant approached Ritchie and handed her a deposit slip that read, “Give cash. I have gun.” When Ritchie explained that she was not a teller, the defendant ordered her to “ ‘[g]ive me the cash. Give it now.’ ” Ritchie then slid the deposit slip to DePietro, who unlocked her teller drawer. As she did, the defendant demanded, “ ‘[hjurry up, hurry up,’ ” and reached over the counter. DePietro then handed the defendant $3600 in cash.
The defendant immediately exited the bank and Woodward followed. As Ritchie locked the bank’s doors and DiPietro called 911, LaLiberty closed the bank’s drive-through window. As she did, she saw the defendant walking at the rear of the bank to a grassy strip between the drive-through lane and an adjacent firehouse. LaLiberty wrote down a description of the defendant at that time. Approximately six hours later, the Connecticut state police apprehended the defendant in a grassy area near Route 66 in Columbia. The defendant subsequently reviewed and executed a waiver of Miranda rights1 form and agreed to speak with Detective Derek Kasperowski. The defendant then admitted to robbing the bank and stated that he remembered “smoking crack before going into the bank, going to the bank teller and telling her to give him money.” Although no firearm was found on the defendant’s person or the surrounding area, the $3500 in cash was recovered.
The defendant was arrested and charged, by substitute information, with robbery in the first degree in violation of
I
The defendant claims that the court improperly denied his motion for a judgment of acquittal because the evidence adduced at trial was insufficient to establish
“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e 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 [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... [A reviewing court] cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . . [P]roof 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 evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Internal quotation marks omitted.) State v. St. Cyr, 100 Conn. App. 189, 194-95, 917 A.2d 578, cert. denied, 282 Conn. 915, 924 A.2d 140 (2007).
To convict the defendant of robbery in the first degree,
Contrary to the defendant’s contention, we conclude that a reasonable view of the evidence plainly exists that supports the jury’s finding that the defendant threatened the use of a firearm while committing the robbery. Ritchie, DiPietro and LaLiberty all testified at trial that the defendant entered the bank, proceeded to the check writer station and wrote on a deposit slip, which he then handed to Ritchie. Security cameras at the bank produced photographs of the defendant engaging in that act, which were introduced into evidence. The deposit slip, which contained the handwritten message “Give cash. I have gun,” also was introduced into evidence. Ritchie, DiPietro and LaLiberty all verified in their testimony at trial that the deposit slip introduced into evidence was the same note that the defendant handed to Ritchie during the commission of the robbery. They further testified that because the defendant had indicated that he possessed a gun, they immediately complied with his demand in order to prevent him from shooting anyone. On that documentary and testimonial evidence, which the jury was free to credit; see State v. Wortham, 80 Conn. App. 635, 642, 836 A.2d 1231 (2003), cert. denied, 268 Conn. 901, 845 A.2d 406 (2004); the jury reasonably could conclude that the defendant threatened the use of a firearm when, through his words and conduct, he represented
The defendant nevertheless posits that “[a]s a matter of law, the defendant could not be convicted of robbery in the first degree, or of an enhanced sentence, when the state failed to prove that he was armed during the commission of the robbery.” He is mistaken. Under Connecticut law, the state is not required to prove that a defendant actually possessed a firearm to obtain a conviction under
In light of the foregoing, the defendant’s claim fails. Accordingly, we conclude that
II
The defendant also maintains that his sentence enhancement pursuant to
The following additional facts are relevant to this claim. On December 14, 2010, the defendant appeared before the court for sentencing. At that time, he pleaded guilty to being a persistent felony offender in violation of
On appeal, the defendant contends that his constitutional rights, as articulated in Apprendi and its progeny, were violated “when the court rather than the jury considered factors, other than the defendant’s previous convictions” that allegedly “contributed to the increase of the defendant’s
For example, in Apprendi, the United States Supreme Court distinguished its earlier decision in Almendarez-Torres v. United States, 523 U.S. 224, 239, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), noting that “[b]ecause Almendarez-Torres had admitted the three earlier convictions for aggravated felonies — all of which had been entered pursuant to proceedings with substantial procedural safeguards of their own — no question concerning the right to a jury trial or the standard of proof that would apply to a contested issue of fact was before the Court.” (Emphasis in original.) Apprendi v. New Jersey, supra, 530 U.S. 488. Likewise, in Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the court emphasized that “[o]ur precedents make clear . . . that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.‘” (Emphasis in original.)
In State v. Michael A., 297 Conn. 808, 819-21, 1 A.3d 46 (2010), the Connecticut Supreme Court expressly relied on that federal precedent in concluding that a defendant who pleads guilty to a sentence enhancement pursuant to the persistent felony offender statute,
The record substantiates the court’s finding that the defendant knowingly, intelligently and voluntarily pleaded guilty to being a persistent felony offender in violation of
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
In the written stipulation signed by the defendant and dated October 25,2010, the defendant acknowledged that “[b] efore July 13,2009, at approximately 1:13 p.m., the defendant had been arrested and released pursuant to [General Statutes] §§ 54-63a to 54-63g inclusive, or §§ 54-64a [to] 54-64c inclusive, other than in violation of [General Statutes] § 53a-222, on two other charges and those charges remained pending on July 13, 2009, which would expose the defendant, if he is found guilty, to the enhancement pursuant to
The defendant claims that, in State v. Tomlin, 266 Conn. 608, 623, 836 A.2d 12 (2003), our Supreme Court held that any conviction for robbery in the first degree requires proof that a defendant actually possessed a firearm. Tomlin does not stand for that broad proposition, nor does it concern the offense of robbery; Tomlin involved a conviction for manslaughter in the first degree with a firearm in violation of
In Apprendi, the United States Supreme Court held that, “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, supra, 530 U.S. 490. Apprendi “thus applies to factual findings that serve to enhance a defendant’s maximum sentence beyond that allowable under the verdict alone.” State v. Walker, 90 Conn. App. 737, 742, 881 A.2d 406, cert. denied, 275 Conn. 930, 883 A.2d 1252 (2005).