13 Conn. App. 578 | Conn. App. Ct. | 1988
In this appeal from a judgment of conviction, rendered after a jury trial, of larceny in the sixth degree in violation of General Statutes § 53a-125b,
The jury could reasonably have found the following facts. On January 10, 1986, the defendant was termi
Ronald Mullen, the assistant night manager, had noticed the defendant in the store that night and, although he thought it unusual for the terminated employee to be there, he did not ask the defendant to leave. Mullen also noticed that there were only four Samsung TV sets on display instead of five. After checking with the cashiers, Mullen instituted a search for the missing TV set. The TV set cartons have security stickers which will trigger an alarm unless deactivated by a cashier. A search of the store failed to unearth the set, but it was discovered that a chain on a back room overhead door had been removed from its pulley and the door was open about 3 feet. The door was located in the area of the store most familiar to the defendant due to his prior position as a sorter.
The defendant’s second claim of error is that the trial court erred in its instruction on circumstantial evidence.
As a preliminary matter, we note that the defendant did not file a request to charge on circumstantial evidence, nor did he take exception to that particular portion of the charge. Ordinarily, we decline to review claims of error not properly preserved for appeal, but because this claim implicates the defendant’s constitutional right to have the state prove him guilty beyond a reasonable doubt, we will review it. In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); State v. Biggs, 13 Conn. App. 12, 20, 534 A.2d 1217 (1987).
“Our courts have consistently held that ‘a jury instruction in a criminal case which informs a panel that it may infer a fact when it is more probable than not that such a fact exists is erroneous “because, as applied to inferences for the finding of facts that are essential elements of the crime, it unconstitutionally dilutes the state’s burden of proving guilt beyond a reasonable doubt.” State v. McKenna, [11 Conn. App. 122, 135, 525 A.2d 1374 (1987)]. Such error, however, has been held to be reversible only if it is reasonably possible that the jury was misled by the trial court’s instructions. Id.’ State v. Trujillo, 12 Conn. App. 320, 330, 531 A.2d 142 (1987).” Biggs, supra, 20-21.
Our inquiry, therefore, is “whether ‘it is reasonably possible that the jury was misled by the instruction into misunderstanding an issue that has fundamental constitutional significance.’ State v. Torrence, 196 Conn.
We find that in the case at bar the state’s case consisted solely of circumstantial evidence. The issue in this case was whether a larceny by shoplifting had taken place.
Under these circumstances, we undertake a close scrutiny of the instruction on circumstantial evidence, in isolation from the remainder of the charge, which reveals that there was reversible error in the instruction.
The remaining question to answer is whether the erroneous instruction was harmless beyond a reasonable doubt. State v. Perez, supra, 290. “Such an analysis requires that we determine whether, based upon the whole record, it is clear beyond a reasonable doubt that the constitutional error did not contribute to the jury’s verdict.” State v. Trujillo, 12 Conn. App. 320, 333, 531 A.2d 142, cert. denied, 205 Conn. 817, 527 A.2d 588 (1987); see State v. Dullivan, 10 Conn. App. 474, 479, 523 A.2d 1353 (1987). We cannot say, on the basis of the record before us, that the erroneous instruction did not contribute to the jury’s verdict. Specifically, the state failed to proffer overwhelming evidence on the fact that the defendant did not pay the purchase price of the TV set. The only evidence proffered was the testimony showing that Mullen searched the store after speaking with the cashiers. Although it can reasonably be inferred from these facts that the purchase price was not tendered, the evidence can, by no means be seen as overwhelming. See State v. Dullivan, supra, 479.
There is error, the judgment is set aside and the case is remanded for a new trial.
In this opinion the other judges concurred.
General Statutes § 53a-125b provides: “larceny in the sixth degree: class C MISDEMEANOR, (a) A person is guilty of larceny in the sixth degree when he commits larceny as defined in section 53a-119 and the value of the property or service is two hundred fifty dollars or less.”
The instructions set forth in relevant part: “Next, we’ll deal with circumstantial evidence. Proof beyond a reasonable doubt does not mean that you must have direct evidence supporting a fact. You may apply the rule of circumstantial evidence of facts from which you are asked to infer the existence of another fact or set of facts. Such an inference may be made provided two elements in the application of this rule are satisfied. That the
Although the state would much rather have us believe that the principal disputed issue was the credibility of the state’s witnesses, it was clearly not the major or only issue at trial. Cf. State v. McDonough, 9 Conn. App. 631, 635, 521 A.2d 160, rev’d, 205 Conn. 352, 533 A.2d 857 (1987).
In State v. Rodgers, 198 Conn. 53, 56-60, 502 A.2d 360 (1985), our Supreme Court found reversible error in a trial court’s instruction that an inference may be drawn “if it is more probable that the fact to be inferred is true.”