State v. Aleksiewicz

• Decision Date: 06 February 1990
• Docket Number: No. 7291,7291
• Citation: 20 Conn.App. 643,569 A.2d 567
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Gary ALEKSIEWICZ.

Page 567

569 A.2d 567

20 Conn.App. 643

STATE of Connecticut v. Gary ALEKSIEWICZ.

No. 7291.

Appellate Court of Connecticut.

Argued Oct. 19, 1989.

Decided Feb. 6, 1990.

Kenneth W. Williams, Sp. Public Defender, with whom, on the brief, was Duncan Ross MacKay, Sp. Public Defender, for appellant (defendant).

Mitchell S. Brody, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Warren Maxwell, Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and BORDEN and LAVERY, JJ.

DUPONT, Chief Judge.

The defendant appeals from a judgment of conviction rendered after a jury found him guilty of robbery in the first degree, in violation of General Statutes § 53a-134(a)(4). The defendant claims that the evidence was insufficient to support a conviction because, during the commission of the crime, he had not threatened the use of what he represented, by his words or conduct, to be a firearm. ¹ We agree.

On the basis of the evidence produced, the jury could reasonably have found certain relevant facts. On July 16, 1986, at approximately 9 p.m., Thomas Norton and his brother Donald Norton drove to the Connecticut National Bank on Main Street in New Britain. Thomas withdrew $400 from the bank's automatic teller machine. The defendant approached the window on the driver's side of the car and said, "Give me that money or you're dead." The defendant then grabbed some of the cash from Thomas' hands, and Thomas, frightened, handed the remaining cash in his lap to the defendant. The defendant then ran toward the front of the bank building. Donald initially pursued him on foot, but when the defendant jumped into a car and fled, the brothers pursued him in their car for twenty to thirty minutes, until they lost him in traffic.

In reporting the details of the robbery at the police station shortly thereafter, Thomas stated that the defendant was holding his hand inside a "t-shirt" when he demanded the money. At trial, Thomas testified that the defendant had held his hand flat against his abdomen in a "coat like or jacket." The defendant was ultimately arrested and charged with robbery in the first degree, in violation of General Statutes § 53a-134(a).

An essential element of robbery in the first degree is that, in the course of the commission of the robbery, the perpetrator "displays or threatens the use of what he represents by his words or conduct to be ... a firearm." The defendant claims that the evidence presented at trial was insufficient for the court to submit the question to the jury or to permit a jury reasonably to have found against the defendant on this element, and that his conviction was, therefore, in error. In support of his claim, he cites the fact that the trial court refused to allow testimony as to whether the victims believed a gun was in the assailant's possession because it found the evidence insufficient even to render such a belief reasonable.

It is axiomatic that in a criminal trial, the state must prove each element of the crime, as well as every essential fact necessary to establish that crime, beyond a reasonable doubt. State v. Mullings, 202 Conn. 1, 11, 519 A.2d 58 (1987); State v. Rodriquez, 200 Conn. 685, 688, 513 A.2d 71 (1986). In reviewing the sufficiency of the evidence, an appellate court, first, must examine the evidence presented at trial in the light most favorable to sustaining the verdict; State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985); and, second, must determine whether, when considered in that light, the evidenceave led a jury to conclude beyond a reasonable doubt that the defendant was guilty. Id.; State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983).

A jury is permitted to draw reasonable inferences from the evidence before it, and it is free to draw inferences consistent with guilt as well as those consistent with innocence. State v. Dumlao, 3 Conn.App. 607, 616, 491 A.2d 404 (1985). In drawing inferences, however, the jury may not resort to "speculation and conjecture." State v. Saracino, 178 Conn. 416, 419, 423 A.2d 102 (1979); State v. Rodriquez, supra, 200 Conn. at 687, 513 A.2d 71; State v. Little, 194 Conn. 665, 671, 485 A.2d 913 (1984); see also State v. Stevenson, 198 Conn. 560, 569, 504 A.2d 1029 (1986). "While proof of guilt must exclude every reasonable supposition of innocence, it need not exclude every possible supposition of innocence." (Emphasis added.) State v. Little, supra, 194 Conn. at 672, 485 A.2d 913.

The only evidence in the present case that the defendant threatened the use of what he represented by word or conduct to be a firearm was the testimony of one of the victims that the assailant held one hand flat against his body, inside his shirt, vest or jacket, and that he said, "Give me that money or you're dead." This testimony does not definitely establish the firearm element of this crime because no gun was shown and no specific indication was given, by either the defendant's words or actions, that he had in his possession or would use specifically a gun to accomplish his threat. The question is whether the jury could have found, logically and beyond a reasonable doubt, from the facts presented and inferences drawn from those facts, that the defendant represented by his conduct and words that he had or would use a gun.

The defendant argues that, based upon the evidence presented at trial, the jury's verdict could have been reached only through speculation and conjecture and that the jury could not have drawn a reasonable and logical inference from the evidence that the defendant represented that he had a firearm. He argues that the state failed to prove that the defendant, during the commission of the crime, threatened the use of what he represented to be a firearm to the exclusion of any other type of weapon or no weapon at all. See State v. Rodriquez, supra, 200 Conn. at 688, 513 A.2d 71; State v. Gaines, 196 Conn. 395, 399, 493 A.2d 209 (1985). If these assertions are true, the defendant could not have been found guilty of first degree robbery.

In support of its argument that the evidence on this point was sufficient, the state cites several cases in which a jury was found to have properly inferred that the defendant had represented, by a hand held under his clothing, that he had a firearm. In each of those cases, however, there was additional evidence beyond that offered in the present case to indicate that the use of a firearm, rather than another type of weapon, was threatened.

In James v. State, 405 So.2d 71, 72 (Ala.Crim.App.1981), the victim firmly and repeatedly stated that she knew the assailant had a gun. Furthermore, the Alabama statute involved required only using an item so as to lead a reasonable person to believe that a perpetrator had a gun, in contrast to the Connecticut statute's objective requirement that the perpetrator represented that he had or would use a gun. In the present case, there was no testimony that the victim knew or believed that the defendant had or would use a firearm.

In People v. Kimble, 109 Mich.App. 659, 311 N.W.2d 446, 449 (1981), the court cited Guilty Plea Cases, 395 Mich. 96, 130, 235 N.W.2d 132 (1975), in which a defendant admitted that he had "made like I had a gun in a paper bag." The defendant in the case before us has given no such testimony.

In People v. Knowles, 79 App.Div.2d 116, 117, 436 N.Y.S.2d 25 (1981), the defendant admitted holding his hand in his pocket in a manner "which was meant to," and presumably did, "convey to [the victim] the impression that [the assailant] had a gun," thus satisfying the statute in question, which applies to a person who, in the course of a robbery, "[d]isplays what appears to be" a firearm. New York Penal Code § 160.10, subd. 2(b) (McKinney 1988). Once again, no such testimony was given in the case before us.

In People v. Lopez, 135 App.Div.2d 443, 444, 522 N.Y.S.2d 145 (1987), there was testimony that the defendant had placed his hand inside his vest "as if he had a gun." Again, no such testimony was offered in the present case.

In fact, at trial, the court in this case refused to allow any testimony regarding whether Thomas Norton believed the assailant had a firearm. The court stated: "I don't think this witness [Thomas Norton] can give an opinion as to what the particular kind of weapon was that he felt threatened by. I don't think there's sufficient foundation here to allow him reasonably to form an opinion that what the person had inside his shirt or vest was a gun, as opposed to some other kind of weapon. And I think that that's just a question that the jury [could decide] ... if the jury wishes to make that inference, that's another question. But ... the question ... is ... whether or not this witness can say, based upon what ... he has told us here today, that the defendant was armed with a firearm ... [W]hat's reasonable about the inference that ... the man has a handgun under his shirt.... [H]e can testify that he was in fear because he thought that the ... defendant was armed.... But to say that he's armed with a gun is an entirely different matter, because that requires such specification, for which there's absolutely no foundation.... [I]f the only scintilla of evidence is an opinion of a witness for which there is no foundation.... I don't know how ... I'm going to charge on an element of a crime if there is scant evidence of it...." (Emphasis added.)

The court seriously questioned whether any evidence had been introduced to support the conclusion that the assailant had threatened the use, specifically, of a gun. "[I]f an element making up the crime, as laid down by a statute, is wholly unsupported by the evidence, it is error to submit it to the jury as if the evidence justified the determination of the presence of that element." State v. Rogers, 177 Conn. 379, 382, 418 A.2d 50 (1979).

The court's assessment of the evidence was that even the victim could not have...