State v. Brooks

• Decision Date: 22 March 2005
• Docket Number: (AC 24902).
• Citation: 868 A.2d 778,88 Conn. App. 204
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. AMIR BROOKS.

88 Conn. App. 204

868 A.2d 778

STATE OF CONNECTICUT v. AMIR BROOKS.

(AC 24902).

Appellate Court of Connecticut.

Argued December 7, 2004.

Officially released March 22, 2005.

Foti, DiPentima and Cretella, Js.

James M. Fox, special public defender, for the appellant (defendant).

Elizabeth M. Moseley, special deputy assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Victor Carlucci, Jr., senior assistant state's attorney, for the appellee (state).

Opinion

CRETELLA, J.

The defendant, Amir Brooks, appeals from the judgment of conviction, rendered following a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (1), attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1), and assault in the second degree in violation of General Statutes § 53a-60 (a) (2). He claims that there was insufficient evidence to support the conviction and, furthermore, that his conviction of both attempt to commit assault in the first degree and assault in the second degree violates the constitutional prohibition against double jeopardy. We disagree with both claims and affirm the judgment of the trial court.

The defendant's arrest and subsequent conviction arise out of a rather bizarre set of circumstances. From the evidence, the jury reasonably could have found that while the defendant was sitting on some steps in front of a multitenant building in an incoherent state, he was robbed by two young boys who went through his pockets, stealing his money, beeper and cell phone. Jennifer Allen, a female tenant in that building who witnessed the incident, and Fletcher Moore, the ultimate victim in this criminal matter, went to the defendant's aid and attempted to help him as he was falling, stumbling and bleeding from a cut on his face.

Approximately two weeks later, the defendant was allowed into Allen's residence, where he accused Allen and Moore of previously having taken his possessions. She attempted to explain to the defendant that he had been robbed by two young boys and that she and Moore simply had tried to help him. Moore then appeared from another room and ordered the defendant to leave the premises, after which the defendant left the apartment. He returned about one hour later, again accusing Moore, who was alone in the apartment, of robbing him, at which time a fight broke out. The police were called about the incident and ultimately took the defendant into custody. While in custody, he was identified by Moore as the attacker.

I

The defendant claims that there was insufficient evidence to find him guilty beyond a reasonable doubt of the crimes of which he was convicted. In reviewing his claim, we apply a two part test. We first construe the evidence in the light most favorable to sustaining the verdict, and then determine whether the facts so construed and the inferences reasonably drawn therefrom would have allowed the jury reasonably to conclude that the cumulative force of the evidence established guilt beyond a reasonable doubt. State v. Merriam, 264 Conn. 617, 628-29, 835 A.2d 895 (2003). We do not inquire whether a reasonable view of the evidence would support a hypothesis of innocence, but rather whether a reasonable view of the evidence supports the jury's guilty verdict. Id., 629; State v. Murphy, 254 Conn. 561, 576, 757 A.2d 1125 (2000).

A

To justify a conviction of burglary in the first degree in violation of § 53a-101 (a) (1),¹ the state had to prove beyond a reasonable doubt that (1) the defendant entered or remained unlawfully in a building, (2) he did so with the intent to commit a crime therein and (3) he was armed with a dangerous instrument.

Viewed in the light most favorable to sustaining the verdict, the evidence reflects as follows. On July 15, 2002, at about 10 a.m., the defendant informed his girlfriend, Natalie Benjamin, with whom he shared an apartment, that he was leaving to go to a corner store. Instead, he proceeded downstairs to Allen's apartment, knocked on her door and angrily demanded to see Moore. When Moore appeared, the defendant demanded that Moore return the items stolen from the defendant two weeks earlier. Allen explained to the defendant that he had been robbed by two young boys, and that she and Moore simply had tried to help him, but the defendant was adamant that Moore return the stolen items. The defendant eventually left the apartment, as did Allen. Moore asked Allen to lock the apartment door on her way out, as he did not "want [the defendant] coming up in here." To be sure that she did so, Moore checked the door after she left. Shortly afterward, while on the telephone, Moore realized that the defendant had gained entry into the apartment and was standing a short distance away, glaring at him. Without delay, the defendant charged Moore, but was thrown into a window. Moore testified that at that moment, he thought he saw a weapon in the defendant's pocket, so he grabbed a four foot long steel pipe to use to defend himself. The defendant wrestled the pipe from Moore and started swinging it at him, eventually striking Moore's hand, causing a laceration and other injuries. Moore then obtained a second pipe, and the altercation continued. At one point, the defendant attempted to bite Moore's right hand. Allen later returned and observed the defendant chasing Moore with the pipe.

With regard to the first element of burglary in the first degree, "[a] person `enters or remains unlawfully' in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so." General Statutes § 53a-100 (b). In the present case, there was no evidence presented that Allen's apartment was open to the public, nor was there evidence presented that the defendant had permission to enter Allen's apartment. Indeed, the record reveals that Moore asked Allen to lock the apartment door after their initial confrontation with the defendant and that Moore checked the apartment door to be sure that she did so. Furthermore, Officer Keith Schmeiske of the Hartford police department, who surveyed the scene of the incident, testified that the apartment door's jam had been damaged. On the basis of that evidence, the jury reasonably could have concluded that the defendant had entered Allen's apartment unlawfully.²

As for the second element of burglary in the first degree, namely, the defendant's "intent to commit a crime therein," we are mindful that "[i]ntent is generally proven by circumstantial evidence because direct evidence of the accused's state of mind is rarely available.. . . Therefore, intent is often inferred from conduct. . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom." (Internal quotation marks omitted.) State v. Garner, 270 Conn. 458, 475, 853 A.2d 478 (2004). The evidence reveals that after an earlier heated dispute with Allen and Moore, in which the defendant angrily demanded that Moore return the stolen items, the defendant forcefully broke into Allen's apartment, immediately lunged at Moore, wrestled a four foot long steel pipe from him and repeatedly swung it at him. From that evidence, the jury reasonably could have concluded that the defendant entered Allen's apartment with the intent to commit the crime of assault therein.

The final element of burglary in the first degree requires proof that the defendant armed himself with a dangerous instrument. A dangerous instrument is "any instrument, article or substance which, under the circumstances in which it is used . . . is capable of causing death or serious physical injury . . . ." General Statutes § 53a-3 (7). "[I]t need only be used in a manner capable of causing serious injury under the circumstances. Hence, the analysis focuses on the actual circumstances in which the instrument is used in order to consider the instrument's potential to cause harm.. . . The statute neither restricts the inquiry to the exact manner in which the object was actually used, nor requires any resulting serious physical injury. . . . The facts and circumstances need show only that the general way in which the object was used could potentially have resulted in serious physical injury." (Citations omitted.) State v. Green, 38 Conn. App. 868, 880-81, 663 A.2d 1085 (1995). Here, there is no doubt that the instrument in question—a four foot long steel pipe—under the circumstances in which it was used— to strike Moore—was capable of causing serious physical injury.³

The record establishes that the defendant did not enter the apartment with the steel pipe in his possession. It came into his possession only when he wrestled it away from Moore during their scuffle. He then proceeded to use it to assault Moore. To be "`armed' . . . simply requir[es] that a weapon be in one's possession." State v. Anderson, 178 Conn. 287, 294, 422 A.2d 323 (1979) ("[d]ictionary defines the term `armed' as `furnished with weapons of offense or defense: fortified, equipped'"). Further, "it is immaterial whether the defendant was armed at the time of unlawful entry, as long as he armed himself at any time while he remained unlawfully in the apartment." (Emphasis added.) State v. Belton, 190 Conn. 496, 505, 461 A.2d 973 (1983); see also State v. Rozmyslowicz, 52 Conn. App. 149, 153, 726 A.2d 142 (1999) ("[w]hether a person arms himself with a dangerous instrument after entering the dwelling or enters the dwelling already armed is irrelevant with respect to his culpability under the statute"). The issue is not how the defendant armed himself, but whether he did in fact arm himself at any time while he remained unlawfully in the apartment. That the defendant wrestled the steel pipe from Moore does not negate the fact that the defendant used it to arm himself while he remained unlawfully in...