State Of Conn. v. Rodriguez-roman.

• Decision Date: 22 June 2010
• Docket Number: No. 18348.,18348.
• Citation: 297 Conn. 66,3 A.3d 783
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Jannette RODRIGUEZ-ROMAN.

297 Conn. 66

3 A.3d 783

STATE of Connecticut

v.Jannette RODRIGUEZ-ROMAN.

No. 18348.

Supreme Court of Connecticut.

Argued Oct. 27, 2009.

Decided June 22, 2010.

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David V. DeRosa, special public defender, for the appellant (defendant).

John A. East III, senior assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, former state's attorney, and John H. Malone, senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and McLACHLAN, Js. ^*

ZARELLA, J.

The defendant, Jannette Rodriguez-Roman, appeals ¹ from the judgment of conviction, rendered after a jury trial, of two counts of racketeering, each involving seven incidents in which she allegedly procured driver's licenses for illegal immigrants, in violation of the Corrupt Organizations and Racketeering Activity Act (CORA), General Statutes §§ 53-394(a)(9) and (10) and 53-395(b) (counts one and twenty-four); eight counts of bribery in violation of General Statutes § 53a-147(a) (counts two through nine); seven counts of bribe receiving in violation of General Statutes § 53a-148(a) (counts ten through sixteen); seven counts of conspiracy to commit bribe receiving in violation of General Statutes §§ 53a-48(a) and 53a-148(a) (counts seventeen through twenty-three); seven counts of forgery in the second degree in violation of General Statutes § 53a-139(a)(1) and (3) (counts twenty-five through thirty-one); and seven counts of conspiracy to commit forgery in the second degree in violation of §§ 53a-48(a) and 53a-139(a)(1) and (3) (counts thirty-two through thirty-eight). ² On appeal, the defendant claims that: (1) the evidence was insufficient to support the jury's verdict of guilty on the two racketeering counts because there was no proof of an “ ‘[e]nterprise,’ ” as required under § 53-394(c); (2) to the extent that the state alleges that the department of motor vehicles (department) constituted an enterprise under § 53-394(c), the statutory scheme is unconstitutionally vague; (3) even if the evidence was sufficient to support the convictions on the two racketeering counts, the trial court improperly failed to instruct the jury on the essential element of an enterprise, which requires proof that the defendant's activities extended beyond those inherent in the pattern of criminal activity; and (4) the evidence was insufficient to support the bribery convictions under the theory of vicarious liability enunciated in Pinkerton v. United States, 328 U.S. 640, 647-48, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). The state responds that the evidence was sufficient to support the jury's verdict of guilty on the racketeering counts, CORA is not unconstitutionally vague as applied to the defendant, the trial court's instructions to the jury were proper and the evidence presented at trial was sufficient to support the jury's verdict on the bribery counts. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. During the years 2003 and 2004, while the defendant was employed in the licensing division of the department's Bridgeport office, she participated in a scheme with Hector R. Portillo, who was not a department employee, to issue fraudulent driver's licenses to illegal immigrants. Portillo testified as a witness for the prosecution ³ that he had met the defendant while he was working at his daughter's barbershop, and that he and the defendant had instituted the scheme after she had told him that if he knew anyone who needed a driver's license she could help them get one for $2500 to $3000. Thereafter, a customer asked Portillo if he knew anyone who could obtain fraudulent driver's licenses and Portillo said that he did. The customer told other people and “word got around.”

Portillo testified that, upon being approached to obtain a fraudulent license, he would provide the “client” with a driver's license application that he had obtained from the defendant and would assist the client in completing the form. After the form was completed, Portillo would transport the client to the department's Bridgeport office or meet the client in the office parking lot or at a nearby fast-food restaurant. Using his cellular telephone, Portillo would call the defendant and tell her that he was about to send the client into the office. After describing the client to the defendant and completing the call, Portillo would describe the defendant to the client. He also would give the client a small green ticket allowing the client, once inside the office, to advance to the head of the line.

Supplied with these materials, the client would enter the office and wait in line to be summoned by the defendant. The defendant would review the client's application and issue a driver's license without demanding the requisite forms of valid identification, and without subjecting the client to the requisite vision test, written test or road test. After leaving the office, the client would pay Portillo $2500 to $3000 for the issuance of the license. Portillo would meet with the defendant after work and give her the money. The defendant would take approximately $2000 from each transaction and return the rest to Portillo. Portillo testified that the defendant was the only person from the department who participated in the scheme, which ended when the defendant was transferred to another office.

On October 18, 2003, the defendant was arrested and charged with thirty-eight counts of racketeering, bribery, bribe receiving, conspiracy to commit bribe receiving, forgery in the second degree and conspiracy to commit forgery in the second degree. Trial commenced on December 12, 2006. In addition to Portillo, ten individuals who had obtained fraudulent licenses testified that their licenses had been issued by the defendant or someone who looked like the defendant. Nine of the ten individuals further testified that Portillo had facilitated the scheme, and one individual testified that he had approached the defendant directly after learning about the scheme. Evidence in the form of department records and time sheets, as well as Portillo's cellular telephone records, was introduced to corroborate Portillo's account, as was the testimony of investigating police officers and department officials. On December 21, 2006, the jury returned verdicts of guilty on all thirty-eight counts. After sentencing the defendant to consecutive terms for racketeering and bribery on the first two counts, the court sentenced the defendant on the remaining thirty-six counts and ordered the sentences on those counts to run concurrently with the sentence on count one, for a total effective sentence of twenty years, execution suspended after ten years, and five years probation. This appeal followed.

I

The defendant claimed in her initial brief to this court that the evidence was insufficient to support the jury's verdict of guilty on the two racketeering counts because there was no proof of an enterprise under § 53-394(c). The defendant claimed that the word enterprise, as used in § 53-394(c), specifically excludes a partnership like the one she had with Portillo, and, therefore, the conspiracy between them was not a violation of CORA. The state responded that the defendant had misread the charges against her and that she had not been charged with a violation of § 53-395(c), but, rather, with a violation of § 53-395(b). The state also contended that the evidence presented was more than sufficient to support the defendant's conviction of racketeering under § 53-395(b). In her reply brief, the defendant acknowledges her mistake as to the statutory basis for the racketeering charges but argues that, even under § 53-395(b), there must be proof of an enterprise, regardless of the fact that the portion of the statute under which she was charged ⁴ makes no reference to an enterprise. We agree with the state.

Although the defendant's claim was not preserved at trial, it is entitled to review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), ⁵ because “any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of Golding.” (Internal quotation marks omitted.) State v. King, 289 Conn. 496, 519, 958 A.2d 731 (2008).

In reviewing an evidentiary insufficiency claim, we apply a two part test. “First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) Id., at 520, 958 A.2d 731.

The defendant acknowledges in her reply brief that she was charged in the racketeering counts with violations of CORA under § 53-395(b), which makes no reference to an enterprise, and that she was not charged under § 53-395(c), which makes direct reference to an enterprise. Accordingly, she implicitly concedes that, to the extent that she initially claimed that there was insufficient evidence of an enterprise to convict her under § 53-395(c), her claim has no merit. We nonetheless consider her claim that an enterprise is an essential element of § 53-395(b) and that there was insufficient evidence upon which to convict her under that provision because the state, after identifying the defendant's mistake, addressed the issue in the context of the proper statute in its brief to this court and the defendant had the opportunity to respond in her reply brief. ⁶

The defendant's claim initially requires consideration of the applicable statutes. “The principles that govern statutory construction are well established. When construing a statute, [o]...