State v. SpillaneState v. Spillane
Opinion
The defendant, Robert W. Spillane, was convicted, following a jury trial, of the crime of larceny in the third degree in violation of
The jury reasonably could have found the following facts. The defendant operated Walnut Street Services, Inc., a towing company in Hartford. Walnut Street Services, Inc., was authorized by various area businesses, including Mechanics’ Savings Bank on Farmington Avenue in Hartford, to tow unauthorized vehicles from their lots during nonbusiness hours.
Around midnight, on April 27, 1996, Webster Lewis parked his car on the street in front of Mechanics’ Savings Bank and entered the apartment of his girlfriend, Andrea Gudealm. When Lewis exited the building, he discovered his car was missing. Gudealm called the police from a nearby pay telephone, and the police gave her the telephone numbers of several tow compa
The defendant was tried on two counts of larceny in the third degree in violation of
Much of the trial testimony addressed where Lewis’ car had been parked when it was towed. If it had been parked in the Mechanics’ Savings Bank parking lot,
I
JURY INSTRUCTIONS
The state argues that the trial court’s instruction to the jury regarding “the intent to . . . appropriate” element of larceny was proper. Section 53a-119 sets forth two different types of intent that may be established to prove larceny: “when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. ...” (Emphasis added.) Either intent to deprive or intent to appropriate must be found to convict a defendant of larceny. The state proceeded on a theory that the defendant here intended to appropriate Lewis’ vehicle.
The first count of the state’s information charged the defendant with larceny in the third degree in that the defendant, “with intent to appropriate a motor vehicle
Reflecting the specificity of the state’s charge, the trial court instructed the jury in relevant part: “Our statute defines larceny as follows: A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself ... he wrongfully takes, obtains or withholds the property from an owner. Each of the following elements must be proved by the state beyond a reasonable doubt. First, that the defendant wrongfully took, obtained or withheld property from an owner. And second, that at the time the defendant obtained the property, he intended to appropriate that property to himself or a third person. . . . The state must prove to you beyond a reasonable doubt that first, [the defendant] wrongfully took, obtained or withheld property from the owner and at the time he did that, he intended to appropriate the same to himself or a third person.” (Emphasis added.) In so instructing, the trial court declined to offer the jury the instructions suggested by the defendant.
In addition to declining to deliver the defendant’s entire requested jury instruction, the trial court refrained from stating to the jury the statutory definition of “appropriate.”
Although a trial court is not necessarily obligated to instruct the jury as to a statutory definition; see, e.g., State v. Sinclair,
To determine whether the ordinary meaning of “appropriate” comports with the definition of that term in
The trial court’s improper omission of the statutory definition of “appropriate” from its instructions to the
In determining whether the jury instruction resulted in harm, it is helpful to look to the complexity of the issues involved. See State v. Lemoine,
In the present case, the fundamental issue for the jury to decide was whether the defendant towed Lewis’ car wrongfully from the street or lawfully from the parking lot; the wrongfulness of the tow was disputed, not whether the defendant disposed of the vehicle for a $148 benefit. The defendant did not contest the evidence that he towed the vehicle; indeed, the defendant’s own witnesses corroborated that fact. Similarly, the defendant did not contest the fact that Walnut Street Services, Inc., collected a $148 fee for the return of the vehicle. “In a case . . . where a defendant did not, and apparently could not, bring forth facts contesting the omitted element, answering the question whether the jury verdict would have been the same absent the error
II
THE DEFENDANT’S ALTERNATIVE GROUNDS FOR AFFIRMANCE
A
The Waiver Rule
Because the defendant’s motion for judgment of acquittal at the close of the state’s case was denied as to the larceny charge on which he was ultimately found guilty, he asks us to evaluate the constitutionality of the waiver rule in this case, even though he has not presented us with a complete record for review. The defendant raises this claim as an alternative ground for affirmance of the Appellate Court’s reversal of his conviction, and he asks that we go further than the Appellate Court and direct a judgment of acquittal on the larceny count.
“Under the waiver rule, when a motion for acquittal at the close of the state’s case is denied, a defendant may not secure appellate review of the trial court’s ruling without [forgoing] the right to put on evidence in his or her own behalf. The defendant’s sole remedy is to remain silent and, if convicted, to seek reversal
Sufficiency of the Evidence
The defendant argues that the evidence against him was insufficient to support his larceny conviction. As indicated previously, the defendant has not presented us with a complete record. Accordingly, we will not address this claim.
C
Intent to Deprive Permanently
The defendant also argues that the judgment of the Appellate Court providing the defendant with a new trial should be affirmed because the trial court did not instruct the jury that, at the time of the taking, the defendant must have intended the taking to be permanent. Such a requirement, however, is not mandated by
We have previously established that the state’s case proceeded under the “intent to appropriate,” rather than the “intent to deprive” prong of § 53a-119.
Unlike subparagraph (A), subparagraph (B) contains no permanency element. Accordingly, the trial court acted properly in not instructing the jury on that term.
In this opinion the other justices concurred.
Notes
The Appellate Court rejected the defendant’s claim that the trial court improperly had denied his motions for acquittal; State v. Spillane, supra,
A private tow company may tow a vehicle parked on a public street only if it has been ticketed by the police. The police had not issued a ticket in this case.
The defendant, citing D. Borden & L. Orland, 5 Connecticut Practice Series: Criminal Jury Instructions (2d Ed. 1997) §§ 13.1 and 7.1, pp. 606-607, requested the following jury instructions regarding intent to appropriate:
“Insofar as it applies here, larceny in the third degree means that a larceny, which is a theft or stealing of property, has been committed and that the property stolen consisted of a motor vehicle.
“Larceny means theft or stealing. The statute provides that a person commits larceny when, with intent to deprive another of property or to appropriate that property to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner.
“The state must prove that property was taken with the specific intention of depriving the owner (or some other person) of it, or of appropriating it
“It is essential, therefore, that the state prove beyond a reasonable doubt that the person who took the property had this unlawful purpose or intention in his mind at the time the property was taken. In addition to this mental element of the crime, the state must also prove that the property was wrongfully taken from the owner. . . .
“To summarize, then, in order for you to convict the defendant under this count, you must be satisfied beyond a reasonable doubt that the following firings have been proven: (1) that the defendant had the intention to deprive another of property or to appropriate it to himself or to someone else; (2) that acting with that intent he wrongfully took, obtained or withheld that property from its owner; and (3) that the property consisted of a motor vehicle.
“In this case, the defendant claims that he was engaged in a legal tow of an illegally parked motor vehicle from private property. The defendant claims that Walnut Street Services, Inc. was authorized to tow motor vehicles from the parking lot in front of [Mechanics’ Savings Bank] on Farmington Avenue; that the tow in fact took place from that parking lot; and that the defendant did not have the requisite intent to deprive another of his property.
“If you find that the state has not proven all these elements—intent to deprive or appropriate; wrongful taking, obtaining or withholding; and that the property consisted of a motor vehicle, your verdict would be not guilty on this count. If, however, you do find that the state has proven all these elements, your verdict would be guilty on this count.”
On March 14, 1997, the state’s attorney, in response to the defendant’s motion for judgment of acquittal at the close of the state’s case, stated: “There are alternates . . . put forth for the state to prove larceny. And in this case, the state chose . . . intent to appropriate a motor vehicle to himself.
“To appropriate, it is defined under
The instructions requested by the defendant; see footnote 7 of this opinion; were overbroad, not only because they included the “deprive” section of the statute, as described previously, but also because they unnecessarily addressed the definition of “appropriate” under
In his transcript request, the defendant specifically excluded the testimony of ten witnesses.
The defendant also contends that, under