State v. RussellState v. Russell
- Reporters:
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- Before:
- Hull
The defendant, Eugene Russell, was charged by substitute information with burglary in the *275third degree;
The jury could reasonably have found the following facts. On April 11, 1987, at approximately 5 a.m., the night manager of the Pathmark grocery store in East Haven noticed that several cartons of cigarettes appeared to be missing from a cigarette display located in the store’s “service area.” The service area is the portion of the store that, despite the fact that the store provides service 24 hours a day, is closed between the hours of 9 p.m. and 9 a.m., due to the presence of high value merchandise. During these hours, the service area is enclosed by a padlocked, metal folding gate that is eight feet in height.
Following his discovery, the manager, accompanied by the store detective, unlocked the gate and entered the service area. Investigation revealed that numerous cartons of cigarettes were missing. In addition, a brown wallet, containing the defendant’s driver’s license, was retrieved from the floor.
Outside the service area, the manager and the detective discovered that a child’s car seat had been removed from its box and placed on the floor and that the box was missing. A review of a videotape recording made by the store’s surveillance camera revealed that earlier that morning, at approximately 2:20 a.m., a man had removed the car seat from its box and, with the box in hand, had climbed over the gate and into the service area. Within a few minutes, the man had climbed back over the gate and, while still in possession of the box, had exited the store.
*277Following a report of the theft, the East Haven police went to the house located at the address that appeared on the license found in the service area. In a trash can at the rear of the house, the police uncovered an empty box for a child’s car seat. The police thereafter obtained search warrants for the house and for a car parked near the house. Upon executing the warrants, the police discovered numerous cartons of cigarettes in both the house and the car, each of which bore the Pathmark store’s tax number.
The defendant claims that because the enclosed service area of the Pathmark grocery store is not a “building” within the meaning of
“A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”
We faced a similar question in State v. Thomas, 210 Conn. 199, 554 A.2d 1048 (1989), where the defendant was alleged to have committed a burglary by unlawfully entering the counter area of a convenience store, which was open to the public, with the intent to commit a crime therein. We concluded “that under no stretch of the statutory language can the counter area of [a] . . . convenience store be deemed a ‘building’ as that term is defined in
According to the rule of ejusdem generis, unless a contrary intent appears, where general terms are followed by specific terms in a statute, the general terms will be construed to embrace things of the same general kind or character as those specifically enumerated. 2A J. Sutherland, Statutory Construction (4th Ed. Sands) § 47.17; see also Eastern Connecticut Cable Television, Inc. v. Montville, 180 Conn. 409, 413, 429 A.2d 905 (1980); Easterbrook v. Hebrew Ladies Orphan Society, 85 Conn. 289, 296, 82 A. 561 (1912). In
By virtue of the independent living or working relations that occur therein and despite the fact that they are located in a single building, within its ordinary meaning, “separate apartments, offices [and] rented rooms” are treated as “legally identifiable ‘separate unit[s]’ ” for purposes of our burglary statutes. In the present case, although the service area was sufficiently secured at the time of the defendant’s entry, the temporary enclosure did not render the service area a separate working unit akin to the examples set forth in
We are equally unpersuaded by the precedent that the state offers in support of its position. See Dixon v. State, 165 Ga. App. 133, 299 S.E.2d 608 (1983); State *280v. Sanchez, 105 N.M. 619, 735 P.2d 536, cert. denied, 105 N.M. 618, 735 P.2d 535 (1987); Evans v. State, 677 S.W.2d 814 (Tex. App. 1984). Although those cases upheld burglary convictions based upon entry into secured, but arguably interdependent areas of a building otherwise open to the public, the jurisdictions in which the convictions were procured prohibited, in addition to unlawful entry into a “building,” unlawful entry into “portions” and “parts” of a building. See Dixon v. State, supra, 135 (“[bjurglary is committed when one, without authority, enters any building or room or part thereof ’) (emphasis added); State v. Sanchez, supra, 621 (“ ‘[a] person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof’ ”) (emphasis added); Evans v. State, supra, 817 (“ ‘[a] person commits an offense if without the effective consent of the owner, he: [1] enters a habitation, or a building [or any portion of a building] not then open to the public’ ”). (Emphasis added.) Each of these cases, therefore, is inapposite.
As in State v. Thomas, supra, 205, under no stretch of the statutory language can a temporarily enclosed portion of a grocery store be deemed a “building” as that term is defined in
The judgment is reversed in part and the case is remanded to the Appellate Court with direction to *281remand it to the trial court with direction to vacate the judgment of conviction of burglary in the third degree and to grant the defendant’s motion for a judgment of acquittal on that count of the substitute information.
In this opinion the other justices concurred.
Notes
The trial court imposed two consecutive sentences of five years imprisonment, execution suspended after three and one-half years. Although ordinarily the maximum sentence authorized for a conviction of larceny in the fourth degree is one year imprisonment; see
It is undisputed that the state alleged that the defendant, with the intent to commit a crime therein, unlawfully entered the enclosed service area which it claims is a “separate unit” of the Pathmark store.