State v. Alika Mcfarlane.

• Decision Date: 17 May 2011
• Docket Number: No. 31808.,31808.
• Citation: 128 Conn.App. 730,17 A.3d 1131
• Parties: STATE of Connecticutv.Alika McFARLANE.
• Court: Connecticut Court of Appeals

128 Conn.App. 730

17 A.3d 1131

STATE of Connecticut

v.Alika McFARLANE.

No. 31808.

Appellate Court of Connecticut.

Argued Feb. 9, 2011.Decided May 17, 2011.

David J. Reich, special public defender, for the appellant (defendant).Melissa Patterson, assistant state's attorney, with whom, on the brief, were John A. Connelly, former state's attorney, and Cynthia S. Serafini, senior assistant state's attorney, for the appellee (state).LAVINE, ALVORD and STOUGHTON, Js.STOUGHTON, J.

The defendant, Alika McFarlane, appeals from the judgment of conviction, rendered following a jury trial, of assault in the first degree in violation of General Statutes § 53a–59 (a)(5),¹ reckless endangerment in the first degree in violation of General Statutes § 53a–63 (a) ² and carrying a pistol without a permit in violation of General Statutes § 29–35.³ On appeal, the defendant claims that: (1) the court's instructions permitted the jury to return legally inconsistent verdicts on the assault and reckless endangerment charges; and (2) the evidence was insufficient to support his conviction of carrying a pistol without a permit. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. On May 20, 2008, as a result of a confrontation the prior day between Dennis Rolan and members of a gang known as the “Triple Bs,” the defendant, Rolan and five others went to Bronson Street in Waterbury, where the Triple Bs were known to be located, in order to fight the individuals who had confronted Rolan. When the defendant and his group arrived, they parked their vehicles and ran toward several members of the Triple Bs, including Glenn Jamison, who were located on Bronson Street in front of a convenience store. As the two groups converged, Jamison punched the defendant in the face. He and the defendant separated, and each began fighting other group members. The defendant then pulled a handgun from his waist and fired five shots into the crowd of participants in the fight, one of which struck Jamison in his left arm and abdomen. The crowd then dispersed, and the defendant fired another shot as he ran back toward his car.

The state charged the defendant in a three count substitute information with assault in the first degree in violation of § 53a–59 (a)(5), reckless endangerment in the first degree in violation of § 53a–63 (a) and carrying a pistol without a permit in violation of § 29–35. Following a jury trial, the jury returned a verdict of guilty on each count, and the court rendered judgment accordingly. This appeal followed. Additional facts, which the jury reasonably could have found, will be set forth as necessary.

I

The defendant first claims that the court's jury instructions allowed the jury to return legally inconsistent guilty verdicts on the assault and reckless endangerment charges. The defendant concedes on appeal that this claim was not preserved at trial but nevertheless seeks to prevail under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).⁴ Although we conclude that the record is adequate for review and the claim is of constitutional magnitude; see State v. Mooney, 61 Conn.App. 713, 719, 767 A.2d 770 (claim that guilty verdicts legally inconsistent constitutional in nature), cert. denied, 256 Conn. 905, 772 A.2d 598 (2001); the defendant has failed to demonstrate that a constitutional violation clearly exists.

The following additional facts and procedural history are relevant to our resolution of this claim. In the first count of the substitute information, in which the defendant was charged with assault in the first degree, the state alleged specifically that the defendant, “with intent to cause physical injury to another person, caused such injury ... by means of the discharge of a firearm, to wit: he shot Glenn Jamison in the arm and stomach.” The court, in defining the elements of this crime, instructed the jury, inter alia, that the state was required to prove beyond a reasonable doubt that the defendant “caused physical injury to ... Jamison by means of the discharge of a firearm,” and that “when [he] did so he had the intent to cause physical injury to ... Jamison or to a third person.” In the second count, the state's attorney charged the defendant with reckless endangerment in the first degree, and alleged specifically that, “with extreme indifference to human life,” the defendant “recklessly engaged in conduct which created a risk of serious physical injury to another person.” After defining the elements of this crime to the jury, the court instructed as follows: “The state claims that the defendant acted recklessly and with extreme indifference to human life by pulling out a handgun on Bronson Street and firing the gun six times. The state further claims that this conduct created a risk of serious physical injury to ... Jamison and the other individuals on Bronson Street at the time the defendant fired the handgun.” It also instructed the jury that the defendant, by pleading not guilty, placed all the essential elements of the crimes at issue.

The defendant contends that the court's instructions permitted the jury to return a verdict of guilty on both the assault and reckless endangerment counts, which was improper because each crime contains a mutually exclusive mental state, namely, those of intentionality and recklessness. Specifically, he argues that it would be inconsistent for the jury to find that the defendant both intended to cause physical injury and simultaneously acted recklessly because an individual cannot act intentionally and recklessly with regard to the same act and the same result. See State v. Hinton, 227 Conn. 301, 315, 630 A.2d 593 (1993); State v. King, 216 Conn. 585, 593–94, 583 A.2d 896 (1990), on appeal after remand, 218 Conn. 747, 591 A.2d 813 (1991). We are not persuaded that the court's instructions permitted this result.

“The issue of legal inconsistency typically arises when a defendant is convicted of two offenses that contain contradictory elements.” (Internal quotation marks omitted.) State v. Hazel, 106 Conn.App. 213, 222, 941 A.2d 378, cert. denied, 287 Conn. 903, 947 A.2d 343 (2008). “To determine whether a jury verdict is legally inconsistent, we look carefully to determine whether the existence of the essential elements for one offense negates the existence of the essential elements for another offense of which the defendant also stands convicted. If that is the case, the verdicts are legally inconsistent and cannot withstand challenge.... Put more simply, we determine if there is a rational theory by which the jury could have found the defendant guilty of both crimes.... It is not inconsistent ... to find that a criminal defendant possesses two different mental states, as long as [the] different mental states relate to different results.” (Citation omitted; internal quotation marks omitted.) State v. Kuranko, 71 Conn.App. 703, 714, 803 A.2d 383 (2002). Because the resolution of a claim of inconsistent guilty verdicts presents a question of law, our review is plenary. State v. Hazel, supra, at 223, 941 A.2d 378.

It seems evident that one who deliberately shoots at another person acts intentionally, while one who shoots into a crowd acts recklessly. Indeed, the defendant does not suggest to the contrary. In order to establish his claim that the verdicts in this case were legally inconsistent, he asserts, in essence, that the court defined the reckless act to the jury as firing the handgun six times into the crowd. He argues that, on the basis of such instruction, the six shots constituted one unified physical act, with one such shot necessarily being the one that struck Jamison. According to the defendant, therefore, both the assault charge and the reckless endangerment charge, as defined by the court, involved the same unified act.

The defendant's assertion fails, however, because the court never instructed the jury that the defendant's firing the handgun six times was a single act. Instead, after instructing the jury on the elements of the crime of reckless endangerment, the court remarked that it was the state's position that the defendant acted recklessly by firing the handgun six times into the crowd on Bronson Street. Contrary to the defendant's argument, our review of the instructions reveals that the court's recitation of the state's allegations did not instruct the jury in a manner that required it to find that the crimes were committed by the same physical act.

Furthermore, even if we assume, arguendo, that the defendant's firing of the handgun six times constituted the same physical act, rather than separate acts, the defendant cannot prevail on his claim. On the basis of the evidence presented in this case, the jury reasonably could have found that when the defendant fired the handgun into the crowd, it was his intent to strike and to injure Jamison physically, as evidenced by the fact that Jamison was the member of the Triple Bs who first punched the defendant. That is certainly a permissible and perhaps the most reasonable inference the jury could have drawn. At the same time, the jury reasonably could have found that it was reckless and extremely indifferent to human life to fire a gun several times into a nearby crowd. Under the circumstances of this case, it was not inconsistent to find that the defendant acted intentionally when he shot Jamison and at the same time acted recklessly when he fired several other shots into a crowd, as the jury reasonably could have concluded that the defendant's actions constituted different crimes that arose from the same continuum of events. See State v. Mooney, supra, 61 Conn.App. at 722, 767 A.2d 770; see also State v. Bjorklund, 79 Conn.App. 535, 567–68, 830 A.2d 1141 (2003) (reasonable for jury to conclude that defendant's kicking victim in torso in attempt to steal wallet exhibited intent to...