State v. ZiembaState v. Ziemba
- Reporters:
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- Before:
- Spallone
The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crimes of robbery in the first degree;
From the evidence produced at trial, the jury could reasonably have found the following facts. Between November and December, 1986, Brian Britton was employed as the assistant manager of the Kentucky Fried Chicken restaurant located at 382 East Main Street in Middletown. As part of his duties, Britton would deposit, at the close of each business day, the cash receipts for that day in the night depository at the bank. Britton and the defendant, Duane Ziemba, along with Margaret Bair, the defendant’s girlfriend, agreed to stage a robbery of the restaurant’s cash proceeds. Their plan was that the defendant, using a toy pistol, would “rob” Britton, and later the two would meet and divide the money. Britton, who had been previously involved in criminal activities and was known to the police, feared that the police might suspect a staged robbery. Accordingly, he and the defendant planned to have present an unwitting coworker who would witness the events and whose account of the events they hoped would lend credence to Britton’s report of a robbery.
Pursuant to this plan, Britton closed the restaurant on December 11, 1986, and, carrying a bag of fried chicken and the day’s cash proceeds, approximately $1800, walked with a coworker, Eric Beavers, toward his car, which was parked behind the restaurant near a trash dumpster. As Britton and Beavers were about to enter the car, they were accosted by the defendant, who, wearing a ski mask and a dark shirt and brandishing a toy pistol, leaped from behind the dumpster and directed them to get on the ground or he would *557“blow [their] . . . head[s] off.” Beavers complied and, while Beavers was on the ground, the defendant ordered Britton to throw the money bags over to him. Britton threw the money bags and the bag of fried chicken. While this was occurring, Beavers, still on the ground, looked up at the defendant. The defendant kicked Beavers in the shoulder, saying, “I told you to keep your head down.” The defendant then fled from the scene, taking the money and the bag of chicken with him.
Later that morning, the defendant and Britton met to divide the money. The defendant informed Britton that the money totaled $1100 and offered Britton one half of that amount. Britton, knowing the defendant was shortchanging him, became angry and informed the police of the defendant’s involvement in the crime. The police apprehended the defendant that afternoon and transported him to the Middletown police department. Upon learning that Britton had implicated him in the robbery, the defendant implicated Britton.
Shortly after the defendant’s arrest, the defendant’s girlfriend, Margaret Bair, took the police along the route the defendant had used to escape on the night of the robbery. Bair had accompanied the defendant during his flight from the scene. Along the route shown them by Bair, the officers discovered a plastic pistol, a ski mask, and a bag bearing the Kentucky Fried Chicken logo and containing chicken bones.
In the defendant’s car, the police found a red flannel shirt and a pair of sneakers. The soles of the sneakers were determined to match the footprints left in the snow at the crime scene. Moreover, police talked with a witness who stated that he had observed the defendant’s car departing from the scene.
The defendant’s first claim is dispositive of the appeal. The defendant claims that the trial court erred *558in denying his motions for judgment of acquittal on the first degree robbery and conspiracy to commit robbery charges. During argument to the court on the motions for judgment of acquittal, the defendant consistently pointed out that he had been specifically charged in the information with having “committed a robbery of Brian Britton.” The defendant’s position was that the evidence presented was insufficient to support that charge. The defendant has made a number of arguments, both to the trial court and on appeal, in support of that position. We agree with his argument that there was insufficient evidence to support a finding that the defendant used or threatened the use of force for the purpose of preventing or overcoming resistance to the taking or retention of the property or compelling the owner or another to deliver up the property. Accordingly, we find error.
The following facts are pertinent to our analysis. In count one of the substitute information, the state charged the defendant with robbery in the first degree, as follows: “At the town of Middletown, in the parking lot of Kentucky Fried Chicken, 382 South Main Street, on or about the 11th day of December, 1986 at approximately 10:00 p.m., the said Duane Ziemba did commit a robbery of Brian Britton and in the course of the commission of the crime the said Duane Ziemba did display and threaten the use of what he represented by his words and conduct to be a pistol, in violation of
By charging the defendant with “committing] a robbery of Brian Britton,” the state effectively narrowed the charge against the defendant.
In this case, the evidence failed to support what the state alleged in the information. “Without the purpose of ‘(1) [preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (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’;
The only evidence of the defendant’s purpose in displaying what he represented by words or conduct to be a firearm was the state’s evidence regarding the agreement between Britton and the defendant to “stage” a robbery in front of Beavers. The necessary inference to be drawn from that testimony was that, in pulling out the toy gun, the defendant, acting in conformance with that agreement, merely intended to deceive Beavers as to the true nature of the transaction then occurring. The state introduced no evidence to support a conclusion that the defendant pulled out the toy gun for the purpose of effectuating the taking of the money from Britton. In short, the state failed to prove that the defendant committed the crime of robbery as alleged in the information.
The issue of whether the state’s evidence was legally sufficient to establish that the defendant committed the crime of robbery in some way other than that charged is not before us.4 We are faced with an information charging the defendant with having committed a robbery in the first degree in a particular manner. The *562possibility that the state’s evidence might have been legally sufficient to establish the commission of a robbery by means other than that alleged is immaterial. The state is constrained to prove what it alleges in the charging documents.
The defendant claims as well that the evidence failed to support the charge of conspiracy to commit robbery in the first degree.
In the fourth count of the information, the state charged the defendant as follows: “[The state] further accuses Duane Ziemba of conspiracy and charges that at the Town of Middletown, at the Kentucky Fried Chicken ... on or about the 11th day of December 1986, the said Duane Ziemba, with intent that conduct constituting a crime be performed, namely, robbery in the first degree ([General Statutes]
To establish the crime of conspiracy under
In this case, the state charged the defendant with the crime of conspiracy to commit robbery in the first degree as defined in
There is error, the judgment is set aside as to the conviction on count one of robbery in the first degree;
In this opinion the other judges concurred.
Notes
The crime of robbery is defined in
The defendant elected to introduce evidence on Ms own behalf after the trial court had denied his motion for judgment of acquittal made at the end of the state’s evidence. Under the waiver rule, a defendant may not appeal the denial of a motion for judgment of acquittal brought at the close of the state’s case-in-chief when he elects thereafter to introduce evidence in Ms own behalf. State v. Simino, 200 Conn. 113, 118, 509 A.2d 1039 (1986); State v. Lizzi, 199 Conn. 462, 464, 508 A.2d 16 (1986); State v. Rutan, 194 Conn. 438, 440-44, 479 A.2d 1209 (1984). In reviewing the sufficiency of the evidence in cases in which the defendant has elected to present a defense after his initial motion for judgment of acquittal is denied, therefore, we ordinarily look at the evidence in toto in order to review the trial court’s ruling on the motion for judgment of acquittal made after all the evidence had been presented. State v. Simino, supra. We have reviewed the record with these principles in mind and conclude that the evidence as a whole fails to support the allegations set out in the information.
The state argues that there was sufficient evidence to support a conviction of robbery in that the defendant used force against Eric Beavers. In support of this argument, the state points out that the force or threat of force may be directed at anyone who is in a position to prevent the taking. See State v. Tinsley, 181 Conn. 388, 391, 435 A.2d 1002 (1980), cert. denied, 449 U.S. 1086, 101 S. Ct. 874, 66 L. Ed. 2d 811 (1981). Whether in the abstract the evidence could be found to support a finding that the defendant committed a robbery in any of the myriad ways possible under the statute is not the issue before us. The defendant was charged with one specific way of committing the crime of robbery, and the evidence simply fails to support that charge. The defendant was not charged in count one with robbery by virtue of his use of force against Beavers.