8 Conn. App. 620 | Conn. App. Ct. | 1986
The defendant was charged with sexual assault in the first degree in violation of General Statutes § 53a-70, unlawful restraint in the first degree in violation of General Statutes § 53a-95 and robbery in the third degree in violation of General Statutes § 53a-136/ arising out of a series of events occurring in Hartford on February 17, 1984. Prior to trial, the defendant requested that the state disclose the essential facts claimed to constitute the offense pursuant to Practice Book § 625.
After a trial to a jury, the defendant was convicted as charged. He now appeals, challenging the judgment of conviction of robbery in the third degree only, claiming that the trial court erred in three respects: (1) in failing to submit to the jury an information amended by the statement of essential facts pursuant to Practice Book § 625, and in instructing the jury on General Statutes § 53a-133 (1) which he claims related to and defined conduct totally distinct from that specified in the statement of essential facts; (2) in denying his motion for judgment of acquittal because the state failed to present sufficient evidence to support his conviction for robbery in the third degree; and (3) in charging the jury on reasonable doubt. We find no error.
The pertinent facts which the jury could reasonably have found are as follow: At 8 p.m., on February 17, 1984, the victim, twenty-nine years of age, went to get her car in the Hartford Civic Center garage. As she was getting ready to exit the garage, the defendant came up to the driver’s side of her car and forced her into the middle of the car. He then ripped at her clothing, partially undressed her, threatened to kill her, and forced her to have vaginal intercourse with him and to perform fellatio on him.
At trial, the defendant admitted that he was with the victim the night in question and that he wrongfully retained the payroll check that she endorsed to him for the purpose of cashing it. He denied, however, sexually assaulting or physically injuring her, or using any force or threat of force to obtain or retain the check. He claimed that he met the victim and walked with her to her car in the garage and that she asked him to back her car out because it was in a tight spot. He testified that she wanted money to buy cocaine and, as part of
The defendant’s first claim is that the trial court erred in instructing the jury on General Statutes § 53a-133 (1) which he claims concerns conduct totally distinct from that specified in the statement of essential facts. The defendant concedes that no exception was taken to the charge on this ground. He asserts that this issue is, nevertheless, reviewable under the fundamental rights — fair trial exception of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). In support of his claim of reviewability, the defendant asserts that by filing the statement of essential facts, in which it specified that the “defendant forced [the victim] to sign over to him her pay check,” the state eliminated the possibility of convicting him on proof that he used or threatened force for the purpose of “[preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking,” as prohibited by General Statutes § 53a-133 (1). The defendant argues that the phrase used in the statement of essential facts describes the conduct prohibited by subsection (2) only and, therefore, that the state was limited to proving that he used or threatened force for the purpose of “(2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny,” as prohibited by General Statutes § 53a-133 (2). Accordingly, he claims that when the trial court charged the jury using the definition of robbery in § 53a-133 (1), it instructed the jury under a statute with which he was not charged in violation of his due process rights.
In State v. Secore, 194 Conn. 692, 485 A.2d 1280 (1984), our Supreme Court faced a claim similar to that raised here. The defendant had been indicted under subsection (1) of General Statutes (Rev. to 1979) § 53a-70 (a) for sexual assault by the use of force. This indictment was replaced by an information charging the defendant under subsection (2) with sexual assault “by the threat of use of force.” The defendant claimed that because these constituted separate offenses, the indictment for one could not be replaced by an information charging the other, but only by a new indictment.
The defendant also argues that the combination of the trial court’s instruction on General Statutes § 53a-133 (1) and its submission of the information which, contrary to the mandates of Practice Book § 625, did not incorporate the essential facts, deprived him of his fundamental right to due process. He concedes, however, that “had the trial court ultimately provided correct instruction that incorporated the robbery offense as alleged and particularized,” the noncompliance with Practice Book § 625 would have been harmless. We have already concluded that the trial court did provide correct instruction as particularized by the statement of essential facts. Accordingly, this claim falls with the first claim on which it is dependent.
Under these standards, the defendant’s claim of insufficiency of the evidence borders on the frivolous. We will not rehash the overwhelming evidence before the jury that the defendant inflicted a reign of terror on the victim, starting in the Civic Center garage. Both the direct evidence and the reasonable inferences to be drawn therefrom present a compelling picture of intimidation and coercion. The victim was sexually assaulted and restrained for over two hours. She was choked and threatened with death. She was slapped in the face. She was threatened with abduction to New York. Under this blanket of fear, the defendant “gave” her pay check to the defendant. To isolate, as the defendant attempts to, the narrow circumstances of the turning over of the paycheck from the whole factual scenario is totally unrealistic and unsupported by the law. Our Supreme Court has held that while an offender, to commit robbery, must use or threaten force with the purpose of committing a larceny, he need not use or threaten the force at the “precise time” he takes that property. State v. Gordon, 185 Conn. 402, 410-11, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982). The trial court did not err in denying the defendant’s motion for judgment of acquittal on this basis.
The defendant also claims that there was insufficient evidence that any force or threat of force was used/or the purpose of committing a larceny. “An act may have more than one purpose and more than one effect. Thus a jury reasonably may find that acts which compelled a victim to engage in sexual intercourse also had the purpose of preventing the victim’s resistance to the taking of her property.” Id., 411. Force is used to prevent resistance to the taking of property or to compel delivery of property “if it induces in the victim a physical
The defendant’s final claim is that the trial court erred in charging the jury on reasonable doubt. He concedes that he did not properly preserve this issue. He claims, however, that review is warranted under the fundamental rights — fair trial exception of State v. Evans, supra, 70. The defendant’s claim does implicate the fundamental constitutional right to be found guilty only on proof beyond a reasonable doubt; In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); and the record is sufficient for us to consider the defendant’s claim on its merits. Accordingly, we review the claim to see if the defendant was deprived of this right.
In instructing the jury on the state’s burden of proof, the trial court gave the following definition of reasonable doubt: “And what is a reasonable doubt? A reasonable doubt is not a slight doubt, nor a possible doubt. It is not a surmise, a guess or a conjecture. It doesn’t rise from feelings of sympathy or pity for anyone who may be affected by your verdict. A reasonable doubt is one which is based on the evidence and flows naturally from the evidence or lack of evidence. In short, it is doubt which is based on reason.
“Now, in this connection it’s not necessary for the state to prove the absolute guilt of the defendant or guilt with certainty. However, each element which is essential to establish the defendant’s guilt must be proved by facts or circumstances beyond a reasonable doubt.”
According to the defendant, the language that “it is not necessary for the state to prove the absolute guilt
The defendant’s reliance on State v. DelVecchio, 191 Conn. 412, 464 A.2d 813 (1983), is misplaced. Our Supreme Court in DelVecchio analyzed a trial court’s charge analogizing the state’s burden to a football field.
There is no error.
In this opinion the other judges concurred.
General Statutes § 53a-136 provides in part: “(a) A person is guilty of robbery in the third degree when he commits robbery.”
Practice Book § 625 provides: “Whenever the information charges the offense only by referring to the statute which is alleged to have been vio
We note that the defendant did not claim lack of notice of the nature of the charges, nor could he. Without specifically ruling on the interplay between a bill of particulars and a request for essential facts, we note that the function of the bill of particulars in a criminal case is to provide infor
The trial court in State v. DelVecchio, 191 Conn. 412, 417-18, 464 A.2d 813 (1983), perhaps recovering from a weekend of television football, used the following language: “ ‘Reasonable doubt is not guilt beyond any doubt. You don’t have to go a hundred yards for a guilty finding. You got to go somewhere, I suppose, beyond the fifty yard line; where it is in there is up to you to decide.’ ”