State v. Berthiaume

• Decision Date: 14 March 2017
• Docket Number: AC 37913
• Citation: 157 A.3d 681,171 Conn.App. 436
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Toby Arthur BERTHIAUME

171 Conn.App. 436

157 A.3d 681

STATE of Connecticut

v.Toby Arthur BERTHIAUME

AC 37913

Appellate Court of Connecticut.

Argued October 6, 2016

Officially released March 14, 2017

Conrad Ost Seifert, assigned counsel, for the appellant (defendant).

Toni M. Smith–Rosario, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, Vicki Melchiorri, supervisory assistant state's attorney, David L. Zagaja, senior assistant state's attorney, and Thomas R. Garcia, former senior assistant state's attorney, for the appellee (state).

DiPentima, C.J., and Keller and Flynn, Js.

FLYNN, J.

The defendant, Toby Arthur Berthiaume, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes § 53a–101 (a) (2). On appeal, the defendant claims (1) there was insufficient evidence to convict him of burglary in the first degree, and (2) even if there were sufficient evidence to sustain his conviction, the trial court committed plain error by failing to exclude evidence of an eyewitness identification of the defendant. Unpersuaded by either claim, we affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In mid–2013, the victim, Simone LaPointe, was ninety-three years old and resided at 126 Windsor Street in Enfield, her home for over four decades. She suffered from dementia and short term memory loss

, and although she lived alone, was accompanied by either a friend or one of her surviving eleven children "most of the time." Typically, the victim's friend stayed with her overnight, and her children took turns visiting her throughout the day. Despite this visitation schedule, there were gaps of time throughout the day in which the victim was home alone. Because the victim neither drove nor owned a car, her driveway would be empty during these gap periods, thus indicating that she was alone.

On May 6, 2013, Marita Cunningham, one of the victim's daughters, arrived at 126 Windsor Street around noon, and departed, leaving the victim home alone, at approximately 12:50 p.m. When Cunningham left 126 Windsor Street, nothing inside the residence looked out of order and the victim was uninjured. About one hour later, Jessica Navarro–Gilmore, while passing by in a motor vehicle, saw the defendant and another white man "walking suspiciously" on a road near the victim's home while carrying what appeared to be "a twenty inch flat screen ... TV or monitor ...." The two men were "walking quickly and looking over their shoulder[s] suspiciously." Drawing on her own experience committing theft offenses, Navarro–Gilmore immediately suspected that the two men had stolen something from a home in the neighborhood.¹ After doubling back to get a better look at the men, Navarro–Gilmore called the police at 1:53 p.m. and reported what she had seen.

At approximately 3 p.m., the victim called Norma Shannon, another of her daughters, and told Shannon that her knee was bleeding. Shannon went to 126 Windsor Street in response to the call, and upon entering, noticed that "the house had been ransacked ...." Various drawers and cabinets inside the house had been left open, jewelry and other items were lying on the victim's bed and dresser "as if they had been dumped there," and the dining room chandelier was broken. There was blood on the floor of the dining room, and the phone line in the living room, which was adjacent to the dining room, had been cut. The victim's knee was bandaged, and she had sustained a "mark on her nose," a bruise on her face

, and a chipped tooth. A search of the home revealed that the victim's ring, which contained fourteen birthstones, and her nineteen inch flat screen television, had been stolen.

At 3:44 p.m., the defendant sold what was later determined to be the victim's ring and television at the Money Shop, a pawn shop and jewelry store located in Springfield, Massachusetts. In order to make the sales, the defendant provided Jeffrey Fiske, the owner of the pawn shop, with his identification and had his photograph taken. The defendant also provided his address, 116 Windsor Street, and telephone number. Fiske identified the defendant as the person who received the sales proceeds.

Thereafter, police showed Navarro–Gilmore a sequential photographic array that did not include a photograph of the defendant, and she did not identify anyone as one of the men she saw carrying the television on May 6, 2013. After developing the defendant as a suspect, Detective Brian Callaghan of the Enfield Police Department searched the New England State Police Information Network, a database wherein local pawn shops record their daily transactions, which returned information on the Money Shop. On June 11, 2013, Fiske provided Detective Callaghan with sales slips, the defendant's photograph, and the victim's television and ring.²

The defendant was arrested on July 3, 2013, and charged with burglary in the first degree and several other offenses.³ Two days later, the defendant's booking photograph, along with an article referencing the burglary, was published in the Enfield Patch, a local online newspaper. While browsing online, Navarro–Gilmore saw the defendant's photograph and immediately recognized him as one of the men she saw carrying the television on May 6, 2013. Thereafter, Detective Callaghan contacted Navarro–Gilmore to request that she view another photographic array. Navarro–Gilmore indicated that she already had seen the defendant's photograph in the Enfield Patch and therefore could not fairly participate in an identification procedure.

On April 7, 2014, following a trial, the jury found the defendant guilty of burglary in the first degree. The court imposed a total effective sentence of twenty years incarceration. This appeal followed. Additional facts and procedural history will be set forth where necessary to the resolution of the defendant's claims.

I

The defendant first claims that there was insufficient evidence to convict him of burglary in the first degree. Specifically, he argues that the state failed to adduce evidence from which the jury reasonably could have concluded beyond a reasonable doubt that he remained unlawfully inside the victim's home with the intent to commit a crime therein, or that he had knowingly or recklessly inflicted bodily injury on the victim. Additionally, the defendant contends there was insufficient evidence that he was the person who injured the victim while remaining unlawfully inside her residence because Navarro–Gilmore's testimony revealed the presence of a second, unidentified white man who was seen on a nearby street and could have injured the victim. We disagree with both contentions.

The following principles guide our resolution of the defendant's sufficiency of the evidence claim. "Unlike Aristotelian and Thomistic logic, law does not demand metaphysical certainty in its proofs. In law, we recognize three principal proofs: beyond a reasonable doubt, which is the very high burden in a criminal case; clear and convincing evidence, required to prove fraud and certain other claims, which equates to a very high probability; and preponderance of the evidence, applied to civil claims generally, which means it is more probable than not. None of these varying proofs require absolute certainty." (Footnote omitted.) Curran v. Kroll , 118 Conn.App. 401, 408, 984 A.2d 763 (2009), aff'd, 303 Conn. 845, 37 A.3d 700 (2012).

"To meet one's burden of proof, evidence is necessary. This evidence comes in two forms, direct and circumstantial. ‘The basic distinction between direct and circumstantial evidence is that in the former instance the witnesses testify directly of their own knowledge as to the main facts to be proved, while in the latter case proof is given of facts and circumstances from which the jury may infer other connected facts which reasonably follow, according to common experience.’ 29 Am. Jur. 2d 329, Evidence § 313 (1994). ‘Proof of a fact by the use of circumstantial evidence usually involves a two-step process. A fact is first established by direct evidence, which is ordinarily eyewitness or other direct testimony. That direct evidence can serve as a basis from which the jury infers another fact. Thus, the direct evidence may operate as circumstantial evidence from which a fact is inferred by the jury.’ State v. Sullivan , 11 Conn.App. 80, 97, 525 A.2d 1353 (1987), citing State v. Rome , 64 Conn. 329, 334, 30 A. 57 (1894).

‘When the necessity to resort to circumstantial evidence arises either from the nature of the inquiry or the failure of direct proof, considerable latitude is allowed in its reception.’ 29 Am. Jur. 2d 331, Evidence § 315 (2008).

" ‘An inference is a factual conclusion that can rationally be drawn from other facts. If fact A rationally supports the conclusion that fact B is also true, then B may be inferred from A. The process of drawing inferences based on a rough assessment of probabilities is what makes indirect or circumstantial evidence relevant at trial. If the inference (fact B from fact A) is strong enough, then fact A is relevant to prove fact B. Inferences are by their nature permissive, not mandatory: although the fact proved rationally supports the conclusion the offering party hopes will be inferred, the factfinder is free to accept or reject the inference.’ ... 1 C. Fishman, Jones on Evidence (1992) § 4:1, pp. 299–300; see also D. Faulkner & S. Graves, Connecticut Trial Evidence Notebook (2d Ed. 2008 Rev.) I–14." (Emphasis in original.) Curran v. Kroll , supra, 118 Conn.App. at 409–10, 984 A.2d 763.

"In reviewing a sufficiency of the evidence 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 [trier of fact] reasonably could have concluded that the cumulative force...