34 Conn. App. 191 | Conn. App. Ct. | 1994
The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of failure to appear in the first degree
The jury reasonably could have found the following facts. As a result of an incident on September 28,1990, the defendant was arrested and charged with the crimes of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b), and possession of narcotics in violation of General Statutes § 21a-279 (a). Upon his postarrest release, the defendant signed an appearance bond indicating his obligation to appear and knowledge that failure to appear would result in forfeiture of the bond and other penalties. The defendant pleaded not guilty to the charges and elected to be tried by a jury.
On February 7, 1992, the defendant failed to appear in court as scheduled. The defendant visited the Mount Sinai Hospital emergency room that morning and was diagnosed as having bronchitis and sinusitis. The hospital records indicate that he was there for forty-three minutes. He made no attempt to contact the court, either prior to his scheduled hearing or at any other time, to notify it that he would be unable to appear. The bond was forfeited and a rearrest warrant was ordered on February 7, 1992. On March 11, 1992, the defendant was arrested and arraigned for failure to appear on the underlying drug possession charges. Some time thereafter, the court ordered a pretrial hearing scheduled on August 17, 1992.
On August 17, 1992, the defendant again failed to appear. The defendant was at the courthouse on August 17, and requested that a clerk pull his file. The defendant then waited in the courtroom for a confer
A bail bondsman, Carl Schwartz, saw the defendant outside the courtroom on August 17, and told him that he was due in court and that the judge and the prosecutor were waiting for him. The defendant mumbled something and left the courthouse. The defendant returned to the courthouse later that day. After the clerk informed him that the court had ordered a bond forfeiture and a rearrest, the defendant filled out the forms for a motion to vacate.
The defendant was charged subsequently with two counts of failure to appear in the first degree in violation of § 53a-172. On December 1,1992, the jury found the defendant not guilty of possession of narcotics with intent to sell by a person who is not drug-dependent, and returned a guilty verdict on the remaining charges.
The defendant first claims that there was insufficient evidence to support the conviction for failure to appear in the first degree in that the state did not offer sufficient proof as to his wilfulness.
On the basis of the evidence and the inferences reasonably drawn therefrom, the jury could have concluded beyond a reasonable doubt that the defendant failed to appear pursuant to § 53a-172 (a). “ '[I]n order to prove the “wilful” element of General Statutes § 53a-172, the state must prove beyond a reasonable doubt either that the defendant received and deliberately ignored a notice to appear or that he intentionally embarked on a course of conduct designed to prevent him from receiving such notice.’ State v. Candito, 4 Conn. App. 154, 157, 493 A.2d 250 (1985).” State v. Cerilli, 222 Conn. 556, 583-84, 610 A.2d 1130 (1992).
There was no dispute that the defendant had received notice of his obligation to appear in court on February 7, and August 17,1992. The question then becomes whether there was sufficient evidence presented so that a jury could have reasonably concluded that the defendant deliberately ignored the notice to appear in both instances.
The defendant claims that, on February 7, his sole intent was to seek medical assistance, not to violate the law. The Mount Sinai Hospital emergency room records indicate that the defendant did, in fact, seek medical care there. His visit, however, lasted only forty-three minutes. Upon his release, the defendant went to a pharmacy to fill a prescription. The defendant did not attempt to contact the court, the prosecutor, or his attorney during this time period. He returned his attorney’s telephone call when he arrived home. The jury reasonably could infer from the facts that the
On August 17,1992, the defendant was again scheduled to appear in court, but failed to do so. He claims that he experienced a diarrhetic accident that prevented him from appearing; that he was at the courthouse that day but left to change his clothing. The jury reasonably could have found that the defendant had the opportunity and knowledge either to file an application for a continuance, which would have avoided a failure to appear charge, or to appear and explain his circumstances. Prior to his scheduled court appearance, he spoke to the court clerk, he spoke to the prosecutor, and, at the moment he was due in court, he spoke to the bail bondsman in the corridor. He did not mention to the clerk or to the prosecutor that he was feeling ill, nor did he adequately communicate to the bail bondsman that he was unable to appear as scheduled. It was only after he returned to the courthouse to file a motion to vacate the rearrest that he mentioned to the clerk that he had been ill. Given these facts, the jury reasonably could have concluded that the defendant deliberately failed to appear.
The defendant next claims that the jury instructions were inaccurate as to the element of intent. He first argues that the court defined wilfully without using the
The defendant attacks the charge for its failure to include the word “purposefully” in defining the element of intent as required under General Statutes § 53a-172. “In reviewing a constitutionally based challenge to the
“While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury.” State v. Channer, 28 Conn. App. 161, 172, 612 A.2d 95, cert. denied, 223 Conn. 921, 614 A.2d 826 (1992). Our review of the charge indicates that the jury was adequately instructed on the element of intent and there is no reasonable possibility that the jury was misled by the charge. The trial court charged that “an act is done willfully if done knowingly, intentionally or deliberately.” Our approval in State v. Candito, 4 Conn. App. 154, 157, 493 A.2d 250 (1985), of an instruction for failure to appear in the first degree that included the word “purposefully” in its definition of intent, does not make this charge incorrect. It is not critical that a jury instruction include the exact language of previ
We next address the defendant’s unpreserved claim that the charge permitted the jury to infer wilfulness from a finding that the defendant knew that he was scheduled to appear and then faded to appear, and shifted the burden of proof on the element of intent to him.
“In Sandstrom, v. Montana, [supra, 442 U.S. 517-24], the United States Supreme Court held that a jury
The defendant cannot prevail on his unpreserved claims of error because he has not satisfied the third prong of Golding. Therefore, we will not review his unpreserved claims.
The judgment is affirmed.
In this opinion the other judges concurred.
The defendant was also convicted of possession of narcotics in violation of General Statutes § 21a-279 (a) but does not challenge that part of the judgment.
General Statutes § 53a-172 (a) provides: “A person is guilty of failure to appear in the first degree when, while charged with the commission of a felony and while out on bail or released under other procedure of law, he wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear.”
The defendant makes two arguments with respect to the jury instruction.
The motion to vacate was later heard and denied on September 4,1992.
The defendant did not address his sufficiency challenge to any other elements of the crime of failure to appear.
Although the record indicates that the defendant objected to the charge on the ground that the word “purposefully” was not included in the definition of intent, he failed to request an exception to the trial court’s ruling.
The defendant contends that the following sentence of the trial court’s charge was constitutionally violative: “If you find beyond a reasonable doubt that the defendant received notice of the date on which he was to appear before the court and that he failed to appear on that date, then you may infer that his failure to appear was wilful.”