State v. Andrews

• Decision Date: 02 June 2009
• Docket Number: No. 29029.,29029.
• Citation: 114 Conn.App. 738,971 A.2d 63
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Mark ANDREWS.

971 A.2d 63

114 Conn.App. 738

STATE of Connecticut v. Mark ANDREWS.

No. 29029.

Appellate Court of Connecticut.

Argued March 17, 2009.

Decided June 2, 2009.

Glenn W. Falk, special public defender, for the appellant (defendant).

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Roger S. Dobris, senior assistant state's attorney, for the appellee (state).

HARPER, LAVINE and BEACH, Js.

BEACH, J.

The defendant, Mark Andrews, appeals from the judgment of conviction, rendered after a jury trial, of the crimes of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49(a)(2) and 53a-59(a)(1) and attempt to commit assault of a peace officer in violation of General Statutes §§ 53a-49 (a)(2) and 53a-167c(a)(1).¹ On appeal, the defendant claims that the evidence was insufficient to support his conviction of either of those charges. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of March 16, 2006, Officers Robert Levy and Mark O'Neill of the New Haven police department were partners enforcing motor vehicle laws and patrolling the city for drivers who may have been under the influence of intoxicating liquor or drugs. Sometime between 8 and 8:30 p.m., Levy noticed two vehicles, a white Volkswagen Jetta and a blue Dodge Intrepid traveling more than sixty miles per hour through an intersection at which a speed limit of twenty-five miles per hour was posted. The defendant was operating the Intrepid without the permission of the owner, with whom the defendant was acquainted. Three of the defendant's friends occupied various passenger seats in the vehicle.

Levy and O'Neill pursued the two vehicles in their police cruiser. The Jetta turned left at an intersection, while the Intrepid continued on Long Wharf Drive. Levy and O'Neill followed the Intrepid and activated the lights and siren in their police cruiser. A nighttime road construction project was taking place on East Street, and the defendant was stopped in traffic. Levy and O'Neill were able to catch up with him. Levy drove his patrol car alongside the Intrepid and instructed the defendant to pull over. The defendant answered, "yes sir," and drove to the right side of the road. Levy notified police headquarters of their location. He and O'Neill got out of their patrol car.

Meanwhile, New Haven police officers Robert Hayden and Anthony Campbell were working an extra duty assignment at the intersection of Chapel Street and East Street. They observed Levy and O'Neill leave their patrol car. Hayden and Campbell approached Levy and O'Neill to assist them in the motor vehicle stop. When Levy and O'Neill approached the Intrepid, the defendant appeared nervous and had his right hand inside his coat. There was an active warrant outstanding for the defendant on a charge of escape. Additionally, he had a sawed-off shotgun inside the Intrepid. Levy told the defendant to show his hands. At this point, the defendant stepped on the accelerator and sped away. He headed directly at Hayden and Campbell, who had to jump out of the way to avoid being hit.

Levy and O'Neill returned to their patrol car and pursued the defendant. Hayden and Campbell proceeded on foot. The defendant turned left onto Wallace Street and became trapped because that street leads to a dead end. Although there were no roads leading out of Wallace Street, there was a fenced in construction site at the end of the road. The defendant turned into the construction site and forced the vehicle through a small opening leading into the site. One of the Intrepid's tires blew out in the process. Blocking any means of escape, Levy then parked his patrol car at the opening, and he and O'Neill proceeded into the construction site on foot. Looking for an exit, the defendant began driving around the construction site. Levy and O'Neill both drew their service weapons and yelled at the defendant to stop the car.

Although the construction site was fenced in completely, there was a closed gate to the construction site located on East Street. Hayden and Campbell had proceeded on foot to the gated area of the fenced in construction site. They were both standing with weapons drawn on the sidewalk outside the gated fence and were repeatedly yelling at the defendant to stop. The Intrepid approached the gate behind which Hayden and Campbell were standing and stopped approximately twenty-five to thirty feet from the gate. The defendant flashed his high beams at Hayden and Campbell and quickly accelerated toward the gate. The Intrepid ran into the gate, which in turn hit Campbell, who flew into the air and landed on the street. Campbell suffered serious physical injuries as a result.

Although the gate was severely buckled and damaged as a result of the impact, it did not break apart. The defendant put the Intrepid into reverse gear and backed up so that he could make a second run at the gated portion of the fence. The defendant then drove the Intrepid directly toward the same portion of the fence. Hayden realized that if the Intrepid kept going forward in the same direction, it would run over Campbell. Hayden fired four shots at the Intrepid. The defendant then turned the Intrepid toward Hayden and drove directly at him. Although Hayden was able to get out of the way of the Intrepid before it hit him, the vehicle made contact with Hayden's service weapon.

The defendant was apprehended and charged with assault in the first degree, assault of a peace officer, attempt to commit assault in the first degree, attempt to commit assault of a peace officer and possession of a sawed-off shotgun. Before the start of trial, the defendant chose to have the charge of possession of a sawed-off shotgun tried to the court. Following a jury trial, the defendant was convicted of assault of a peace officer, attempt to commit assault in the first degree and attempt to commit assault of a peace officer. The jury was unable to agree on the charge of assault in the first degree, and the court declared a mistrial on that charge. The court found the defendant guilty of possession of a sawed-off shotgun. The defendant was sentenced to a total effective term of forty years imprisonment. This appeal followed. Additional facts will be set forth as necessary.

We begin by setting forth our standard of review. "In reviewing the sufficiency of the evidence to support a criminal conviction 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 [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... We note that the [jury] must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Davis, 283 Conn. 280, 329-30, 929 A.2d 278 (2007).

I

The defendant first claims that the evidence was insufficient to support his conviction of attempt to commit assault in the first degree. The defendant argues that the state presented insufficient evidence to prove that he intended to cause serious physical injury to Hayden or that he took a substantial step to commit the crime. We disagree.

General Statutes § 53a-59(a) provides in relevant part: "A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person ... by means of a deadly weapon or a dangerous instrument. ..." General Statutes § 53a-49(a) provides in relevant part: "A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he ... (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime." Accordingly, "[a] conviction of attempt to commit assault in the first degree, in violation of §§ 53a-49 (a)(2) and 53a-59(a)(1), requires proof of intentional conduct constituting a substantial step toward intentionally causing the victim serious physical injury by means of a dangerous instrument." State v. Brooks, 88 Conn.App. 204, 211-12, 868 A.2d 778, cert. denied, 273 Conn. 933, 873 A.2d 1001 (2005).

The defendant first argues that the state presented insufficient evidence to prove that he acted with the requisite intent. He states that his intent simply was to elude the police and that there is no reliable evidence to show that he maneuvered his car with the intent to cause serious physical injury to Hayden. We disagree.

"Intent is a question of fact, the determination of which should stand unless the conclusion drawn by the trier is an unreasonable one." (Internal quotation marks omitted.) State v. DeJesus, 236 Conn. 189, 197, 672 A.2d 488 (1996). "[T]he [jury is] not bound to accept as true the defendant's claim of lack of intent or his explanation of why he lacked intent." (Internal quotation marks omitted.) State v. Delgado, 247 Conn. 616, 623-24, 725 A.2d 306 (1999). "Intent may be, and usually is, inferred from the defendant's verbal or physical conduct.... Intent may also be...