State v. Belton

• Decision Date: 28 June 1983
• Citation: 461 A.2d 973,190 Conn. 496
• Parties: STATE of Connecticut v. Sam BELTON.
• Court: Connecticut Supreme Court

Page 973

461 A.2d 973

190 Conn. 496

STATE of Connecticut v. Sam BELTON.

Supreme Court of Connecticut.

Argued March 2, 1983.

Decided June 28, 1983.

Suzanne Zitser, Asst. Public Defender, with whom, on brief, were Jerrold H. Barnett, Public Defender, and Bruce A. Sturman and Richard F. Kelly, Asst. Public Defenders, for appellant (defendant).

Katherine J. Lambert, Deputy Asst. State's Atty., with whom, on brief, were John M. Bailey, State's Atty., Warren Maxwell, Asst. State's Atty., and Jorge A. Simon, Deputy Asst. State's Atty., for appellee (state).

Before SPEZIALE, C.J., and PETERS, HEALEY, PARSKEY and GRILLO, JJ.

GRILLO, Associate Justice.

The defendant has appealed, after a trial to a jury, from his conviction of the crime of burglary in the first degree in violation of § 53a-101(a)(1) of the General Statutes, ¹ claiming error in (1) the trial court's charge to the jury; and, (2) in the trial court's refusal to grant his motion for judgment of acquittal. ²

The jury could reasonably have found the following facts: At approximately midnight on the night of October 25-26, 1978, the complaining victim, a twenty-four year old female at the time of the incident, was watching television in the bedroom of her first floor apartment in Hartford. Her apartment had a front and rear entrance, both of which were locked. Upon hearing a knock on the front door, the complainant got up and twice inquired as to who was there, each time receiving no response. Fifteen minutes later, after returning to her bedroom, she heard a "tapping" or "creaking" noise coming from the kitchen, which she dismissed as the settling of the building. Soon thereafter she heard a tapping on her bedroom door, and screamed when she saw a man standing in the bedroom doorway carrying a knife.

The intruder first demanded money, and upon being informed by the complainant that she had none, pulled her into the living room where, brandishing the knife, he forced her to perform various sexual acts. During the course of this assault, the victim realized that he had dropped the knife. She reached for it, and without looking, swung the knife backwards and into the thigh of the man, who was behind her. He staggered up, struggled into the kitchen, and jumped out an open kitchen window. The complainant had noticed the open window when they had first left the bedroom, and testified that it had been closed all day and night prior to the incident. Although in her statement to the police immediately after the incident the complainant had assumed that the knife was the property of the intruder, at trial she testified that when she returned to her apartment several days later she had realized that it was hers, and identified it as her kitchen knife. She had normally kept it in the drain board along the side of the sink in the kitchen.

The investigating police officer testified that upon arriving at the scene she found the defendant lying in a parking lot behind the victim's building, bleeding profusely from an upper thigh wound. The complainant's kitchen window looks out on this parking area. An upside down garbage can containing blood stains was situated directly underneath the kitchen window from which the intruder exited.

In contrast to the testimony of the complainant, the defendant characterized everything that occurred on the night of October 25-26 as consensual. He testified that he had met the victim previously, and that on the night in question he had been invited into her apartment. Once there, he and the complainant had proceeded to have sexual relations, and when he began to dress in order to leave, she became angered and subsequently stabbed him. Fearful of further injury, he abandoned any further attempt to dress and fled out of the kitchen window.

In its information, ³ the state charged the defendant with burglary in the first degree "in that he entered a building unlawfully, with intent to commit a crime therein, and he was armed with a deadly weapon or dangerous instrument, in violation of Section 53a-101(a)(1) of the General Statutes."

In his first assignment of error, the defendant asserts that in light of the specificity of the information and the evidence introduced at trial, the trial court erred in its charge to the jury by incorporating throughout its instruction the phrase "remains unlawfully" when explaining the elements of burglary in the first degree. Under the circumstances of the present case, we agree.

We note, first, that intent aside, the essential prerequisite to a conviction of burglary in any degree is proof beyond a reasonable doubt that the defendant entered or remained unlawfully in a building or dwelling. General Statutes §§ 53a-101 through 53a-103a. To enter unlawfully contemplates an entry which is accomplished unlawfully, while to remain unlawfully contemplates an initial legal entry which becomes unlawful at the time that the actor's right, privilege or license to remain is extinguished. ⁴ Assuming the presence of other applicable elements of the crime, a burglary is committed when either type of "entry" is established. In the present case, the state charged solely that the defendant "entered unlawfully." ⁵

In its charge to the jury, the trial court repeatedly utilized the disjunctive phrase "or remains unlawfully" while instructing the jury on the elements of burglary in the first degree. The defendant duly excepted to this component of the charge.

"The function of an accusatory pleading such as an information is to inform a defendant of 'the nature and cause of the accusation' as required by our federal and state constitutions. U.S.Const., amend. VI; Conn.Const., art. I § 8." State v. Carter, 189 Conn. 631, 646, 458 A.2d 379 (1983). "Nothing is more elementary in criminal law than that an accused is required to defend only against the charge alleged." State v. Genova, 141 Conn. 565, 572, 107 A.2d 837 (1954) (O'Sullivan, J., dissenting). "[T]he state is limited to proving that the defendant has committed the offense in substantially the manner described." State v. Ruiz, 171 Conn. 264, 270, 368 A.2d 222 (1976).

"We have disapproved the practice of reading an entire statute to a jury where under the pleadings or the evidence only a portion of it is applicable. State v. Ruiz, [supra, 269-72, 368 A.2d 222]; State v. Criscuolo, 159 Conn. 175, 177, 268 A.2d 374 (1970)." State v. Carter, supra, 189 Conn. at 645, 458 A.2d 379. " 'While the court may instruct in the exact language of the statute, it should not do so where the exact statutory language might mislead the jury ....' " State v. Criscuolo, supra. Where, as here, the trial court's charge, in effect reciting the words of the statute, included both the "enters unlawfully" and the "remains unlawfully" statutory language, each of which may be an element of the crime of burglary; and where the information restricted the offense to "entering unlawfully" and no amendment was requested; see footnote 4, supra; the trial court erred in instructing the jury on the "remains unlawfully" disjunctive element of burglary. See State v. Ruiz, supra, 171 Conn. at 270-72, 368 A.2d 222.

Our conclusion that the charge was erroneous does not, however, end our analysis. " 'A charge to the jury will not be critically dissected for the purpose of discovering possible inaccuracies of statements, but the charge is to be considered, rather, as to its probable effect upon the jury in guiding them to a correct verdict in the case.' " State v. Miller, 186 Conn. 654, 661, 443 A.2d 906 (1982). "To determine whether an error in a charge constitutes reversible error, the court must consider the whole charge." State v. Williams, 182 Conn. 262, 267-68, 438 A.2d 80 (1980). In the present case the state does not dispute that should we find error in the "or remains unlawfully" phrase, the error would be of constitutional dimension. The test we must apply, therefore, is whether it is reasonably possible that the jury were misled. State v. Johnson, 188 Conn. 515, 527, 450 A.2d 361 (1982). It is the state's position that in light of the "clear and convincing" evidence of guilt of the crime charged in the information, and because there was no evidence tending to prove that the defendant entered lawfully and thereafter remained unlawfully, it is not reasonably possible that the jury were misled. Under the circumstances presented, we find this claim unpersuasive.

In its charge, not only did the court repeatedly utilize the disjunctive "enters or remains unlawfully" language, it also "discussed this alternative mode for commission of the crime, effectively enlarging the offense as stated in the information" ⁶; State v. Carter, supra, 189 Conn. at 646, 458 A.2d 379; thus further exacerbating the harm to the defendant. Moreover, when, after two hours of deliberation, the jury requested a restatement of the definitions of burglary in the first and second degree, the court again repeatedly employed the "or remains unlawfully" language. This is not a case, therefore, where although an inapplicable section of a statute was read, the ensuing discussion was confined solely to the parameters of the information. See State v. Carter, 189 Conn. 611, 628-29, 458 A.2d 369 (1983). Nor can we conclude from the verdict itself; State v. Ruiz, supra 171 Conn. at 272-73, 368 A.2d 222; or from a polling of the jury; State v. Carter, supra, 189 Conn. at 630-31, 458 A.2d 369; that the erroneous charge "manifestly did not affect the ultimate verdict." State v. Ruiz, supra, 171 Conn. at 273, 368 A.2d 222.

That the erroneous charge was prejudicial to the defendant is readily apparent from his own testimony. He stated that he entered the building lawfully and remained lawfully, while the complainant testified in a manner consistent with unlawful entry. "It is the function of the jury to consider evidence, draw logical deductions and make reasonable inferences from facts proven ...." State v. Avcollie, 178 Conn....