State v. Caballero

• Citation: 714 A.2d 1254,49 Conn.App. 486
• Decision Date: 21 July 1998
• Docket Number: No. 16007,16007
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Luis CABALLERO.

Page 1254

714 A.2d 1254

49 Conn.App. 486

STATE of Connecticut v. Luis CABALLERO.

No. 16007.

Appellate Court of Connecticut.

Argued Feb. 24, 1998.

Decided July 21, 1998.

Tara L. Knight, Special Public Defender, for appellant (defendant).

Ellen A. Jawitz, Deputy Assistant State's Attorney, with whom, on the brief, were James E. Thomas, State's Attorney, and Warren Maxwell, Senior Assistant State's Attorney, for appellee (State).

Before EDWARD Y. O'CONNELL, C.J., and SPEAR and SULLIVAN, JJ.

SULLIVAN, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of criminal attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a)(3) ¹ and 53a-49 (a)(2). ² On appeal, the defendant claims that the trial court improperly (1) denied his motion for acquittal, determining that there was sufficient evidence to convict him on the attempt charge, (2) marshalled the evidence in favor of the state during its charge to the jury and (3) impeded the defendant's ability to question prospective jurors during voir dire examination. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On June 17, 1994, at approximately 8:15 p.m., Thomas Grodecki, an officer with the Hartford police department, was on patrol, driving north on Washington Street. As Grodecki turned onto Ward Street, he observed a man, later identified as the defendant, quickly approach the victim from behind. The defendant grabbed the victim's neck and pulled at the gold necklace he was wearing. The victim struggled against the defendant's attack and tried to prevent the defendant from stealing the necklace. During the struggle, the necklace broke and was caught by the victim. The defendant then took a pocket knife from his waistband and held it to the victim's neck.

By this time, Grodecki had exited his car and was approaching the men. The defendant ran away, but Grodecki apprehended him after a brief chase, during which the defendant dropped his knife to the ground. Grodecki retrieved the pocket knife, arrested the defendant and arranged to have him taken to police headquarters. Grodecki then attempted to interview the victim, but the man spoke little English and was too agitated to communicate clearly. As a result, Grodecki did not obtain a signed, sworn statement from the victim regarding the circumstances of the attempted robbery. The only information that was solicited from the victim was a name and address. At the end of the interview, Grodecki did not tag the necklace into evidence and allowed the victim to retain possession of it.

At trial, the state presented the testimony of Grodecki, the only witness to the crime, and Stephen Looby, an inspector from the Hartford state's attorney's office. Looby testified that he attempted to serve a subpoena on the victim, but was unable to locate him because he had provided a false address. Accordingly, the victim did not testify at trial. The defense called no witnesses. After a jury trial, the defendant was found guilty of attempted robbery in the first degree. This appeal followed.

I

We first address the defendant's claim that the trial court improperly denied his motion for acquittal, determining that there was sufficient evidence to sustain the defendant's conviction of attempted robbery in the first degree. We disagree.

"[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence." (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 132, 646 A.2d 169 (1994), quoting State v. Grant, 219 Conn. 596, 604, 594 A.2d 459 (1991). "It is well settled that in reviewing a defendant's challenge to a verdict based on insufficient evidence, we defer to the jury. We do not sit as a seventh juror empowered to cast an overriding vote over the jury of six that actually heard the case. State v. Brunori, 22 Conn.App. 431, 434-45 [434-35], 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990). On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports a jury's verdict of guilty. State v. Sivri, [supra, at 134, 646 A.2d 169]. Our Supreme Court has stated that the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.... State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983)." (Emphasis in original; internal quotation marks omitted.) State v. Godfrey, 39 Conn.App. 1, 8-9, 663 A.2d 1117 (1995)(Spear, J., dissenting), appeal dismissed, 236 Conn. 904, 670 A.2d 1305 (1996). "On appellate review ... we do not resurrect hypotheses of innocence that the jury obviously rejected, but instead review the evidence pursuant to the familiar two-pronged analysis stated [hereinafter]." Id., at 11, 663 A.2d 1117.

"In accordance with well established principles, appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury's verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct." (Internal quotation marks omitted.) State v. Goodrum, 39 Conn.App. 526, 531-32, 665 A.2d 159, cert. denied, 235 Conn. 929, 667 A.2d 554 (1995).

The defendant specifically claims that the evidence was insufficient to sustain his conviction of attempted robbery in the first degree because the state did not prove two necessary elements of that crime: (1) that he intended to permanently deprive the victim of his necklace, and (2) that the taking of the necklace, had it been accomplished, was wrongful. See General Statutes §§ 53a-118 (a)(3), ³ 53a-119, ⁴ 53a-133 ⁵ and 53a-134 (a)(3). At trial, the state presented evidence that the defendant approached the victim from behind, grabbed him around his neck, yanked at his gold necklace and held a knife to his neck when he resisted. On the basis of evidence of the defendant's conduct, we conclude that the jury reasonably could have inferred that the defendant intended to permanently deprive the victim of the gold necklace. See State v. Garcia, 37 Conn.App. 619, 627, 657 A.2d 691, cert. denied, 234 Conn. 917, 661 A.2d 97 (1995) (intent may be and usually is inferred from conduct).

In addition, the evidence was sufficient to establish that the defendant's conduct was wrongful. The taking of property is "wrongful" when it is done "without color of right or excuse for the act." State v. Kurvin, 186 Conn. 555, 568, 442 A.2d 1327 (1982). There was no evidence from which the jury reasonably could have inferred that the defendant was acting under color of right or excuse.

For a taking to be wrongful, however, it must also be done "without the knowing consent of the owner." Id. The defendant asserts that the state cannot prove that the victim was the owner of the necklace and, thus, that the attempted taking was wrongful, because the victim did not offer a signed, sworn statement or testify as to his ownership at trial. General Statutes § 53a-118 (5) defines "owner" as "any person who has a right to possession superior to that of a taker, obtainer or withholder." Our Supreme Court "has not defined with specificity what the state must prove with regard to the victim's interest in the property, when that interest is arguably something less than full possessory ownership." State v. Crosswell, 223 Conn. 243, 253, 612 A.2d 1174 (1992). The Crosswell court held, nevertheless, that "a showing that the victim had custody or control over the appropriated property is sufficient to support a charge of larceny." (Emphasis added.) Id., at 254, 612 A.2d 1174. We conclude that the jury reasonably could have found from the evidence that the victim, who was wearing the necklace when the defendant attempted to take it, had, at a minimum, custody and control of the necklace. The defendant's attempted taking of the necklace, therefore, was wrongful because it was without the owner's consent.

Finally, the defendant asserts that the evidence was insufficient to establish his guilt of attempted robbery in the first degree because it was predicated only upon the testimony of Grodecki. Our Supreme Court has held, however, that "a single witness is sufficient to support a finding of guilt beyond a reasonable doubt. It is not uncommon for an accused to be found guilty upon identification by only the complaining witness, and it is not the law that corroboration is essential to the proof of guilt." (Internal quotation marks omitted.) State v. Whitaker, 215 Conn. 739, 756 n. 18, 578 A.2d 1031 (1990). After thoroughly reviewing the record, evidence and trial transcripts, we conclude that Grodecki's testimony was sufficient to establish the defendant's guilt beyond a reasonable doubt.

II

The defendant's second claim is that the trial court unfairly marshalled the evidence in favor of the state during its charge to the jury, in violation of the defendant's federal and state constitutional rights to due process. The defendant did not raise this claim at trial and now seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). ⁶ We conclude that the defendant's claim fails the third prong of Golding.

The standard of review of...