State v. Channer

• Decision Date: 17 September 1992
• Docket Number: No. 10233,10233
• Citation: 28 Conn.App. 161,612 A.2d 95
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Clifton CHANNER.

Page 95

612 A.2d 95

28 Conn.App. 161

STATE of Connecticut v. Clifton CHANNER.

No. 10233.

Appellate Court of Connecticut.

Argued April 28, 1992.

Decided July 7, 1992.

Certification Denied Sept. 17, 1992.

[28 Conn.App. 162] Elizabeth M. Inkster, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (defendant).

Mary H. Lesser, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Paul Murray, Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and NORCOTT and LAVERY, JJ.

NORCOTT, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134(a)(4) and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48(a) and 53a-134(a)(4). He was sentenced to twenty years imprisonment on each charge, to be served consecutively to a sentence he currently is serving in federal prison.

On appeal, the defendant claims that the trial court (1) improperly denied his motions for judgment of acquittal because of evidentiary insufficiency, (2) improperly instructed the jury on an essential element of the crime of robbery in the first degree, and (3) improperly instructed the jury on an essential element of the crime of conspiracy to commit robbery in the first degree. We affirm the trial court's judgment.

The jury could reasonably have found the following facts. Delroy Lewis was driving his car on Sigourney Street in Hartford accompanied by his fiancee, Dawn Jones, on June 12, 1988. At a traffic light, a car pulled up on the passenger side of Lewis' vehicle. The defendant was a passenger in the second car. When the light changed, the defendant's car swerved in front of Lewis' and for the next few blocks continued swerving near Lewis' car. The driver of the second car was never identified.

During this time, Jones saw a gun pointed at her from the defendant's car, although she was uncertain whether it was the driver or the defendant who pointed it at her. Lewis did not see the gun during the time the defendant's car was swerving close to his. At a traffic light farther along the road, the driver of the second car left his vehicle and told Lewis that he was going to shoot him. Lewis then turned his car onto another street. At this point, the driver of the other car returned to his vehicle and again swerved in front of Lewis' car, blocking it. Jones got out of Lewis' car to ask the defendant and the other driver why they were behaving as they did.

The other driver got out of his vehicle again, armed with a gun, and said that he was going to shoot Lewis. He approached Lewis' car and kicked the door. Lewis saw the gun and maneuvered his vehicle around the other car and drove away, leaving Jones at the scene. Lewis stopped his car a short distance away. He was followed by the defendant and the unidentified driver in the other car. Jones screamed and began running toward Lewis. The defendant and the driver both got out of their vehicle and approached Lewis. Lewis got out of his car. The driver of the other vehicle, who at this point did not have a gun, then punched Lewis in the face. During a scuffle that ensued, a ring Lewis was wearing was either pulled off by the other driver or fell off. Lewis was unable to find it later.

During the scuffle, Lewis heard the other driver order the defendant to "bring the gun" from the car. The defendant then approached with the gun and asked the driver to move because he was between the defendant and Lewis. When Lewis saw the weapon, he fled toward a parking lot. Moments later, he looked back and saw both men driving away. The defendant was driving Lewis' car. Lewis then ran to Jones saying, "They stole my car."

At the conclusion of the state's case-in-chief, the defendant moved for judgment of acquittal. He also moved for judgment of acquittal after all of the evidence had been presented and again at his sentencing. The trial court denied all three motions. This appeal followed.

I SUFFICIENCY OF THE EVIDENCE

The defendant first claims that the trial court improperly denied his motions for acquittal because there was insufficient evidence to support his convictions. We disagree.

When reviewing a claim of evidentiary insufficiency, we employ a two part test. We first review the evidence presented at trial, construing it in the light most favorable to sustaining the jury's verdict. Next, we determine whether, on the facts so construed and the inferences reasonably drawn therefrom, the jury could have concluded that the cumulative force of the evidence established the defendant's guilt beyond a reasonable doubt. State v. Lewis, 220 Conn. 602, 606, 600 A.2d 1330 (1991); State v. Jupin, 26 Conn.App. 331, 337, 602 A.2d 12, cert. denied, 221 Conn. 914, 603 A.2d 404 (1992). In determining if the jury reasonably could have found the defendant guilty, we ask if any rational factfinder could have done so. State v. Montanez, 219 Conn. 16, 20, 592 A.2d 149 (1991); State v. Jupin, supra, 26 Conn.App. at 338, 602 A.2d 12.

A

The defendant first attacks the sufficiency of the evidence that resulted in his conviction of robbery in the first degree in violation of General Statutes § 53a-134(a)(4). ¹ He argues, in essence, that the state failed to prove beyond a reasonable doubt that he used or threatened immediately to use physical force to prevent Lewis from resisting the taking of his car. In the defendant's view, the force or the threat of force he exhibited had nothing to do with the loss of Lewis' ring or the taking of his car. Thus, there was no robbery.

"Robbery is an offense against the person, the distinguishing characteristic of which is the intimidation of the victim." State v. Hawthorne, 175 Conn. 569, 573, 402 A.2d 759 (1978); State v. Childree, 189 Conn. 114, 123, 454 A.2d 1274 (1983). Under the plain language of General Statutes § 53a-133, ² a criminal defendant "commits robbery when, in the course of committing a larceny," he engages in forcible conduct with a proscribed purpose. State v. Tweedy, 219 Conn. 489, 498, 594 A.2d 906 (1991). A larceny does not constitute a robbery unless the force or threat of force is for the purpose of coercing the victim in the manner described in General Statutes § 53a-133. State v. Gordon, 185 Conn. 402, 410-11, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982). The term "purpose" is synonymous with the terms "object" and "intent." State v. Kurvin, 186 Conn. 555, 567, 442 A.2d 1327 (1982). Intent may be determined from the inferences drawn from the defendant's conduct; State v. Morrill, 193 Conn. 602, 609, 478 A.2d 994 (1984); because " '[i]ntent is a mental process which ordinarily can be proven only by circumstantial evidence.' " State v. Tweedy, supra, 219 Conn. at 501, 594 A.2d 906, quoting State v. Just, 185 Conn. 339, 355, 441 A.2d 98 (1981).

With respect to the defendant's assertion that his robbery conviction cannot be based on the larceny of the ring, this is not in dispute because the jury was not instructed as to accessory liability. Rather, it was instructed that it had to find that it was the defendant who, in the course of committing a larceny, threatened the immediate use of physical force against Lewis so as to prevent him from resisting the taking of his personal property. See State v. Tweedy, supra. Thus, the jury had to consider the theft of the car as the larceny giving rise to the robbery charge.

The evidence clearly demonstrates that the defendant and his companion engaged in a continuing course of conduct that included swerving their automobile to impede Lewis' car, cutting him off, and threatening him by brandishing a gun as the cars proceeded along Sigourney Street. When the defendant finally got out of the car to bring his companion a gun, the defendant further threatened Lewis with the use of force by requesting the unidentified driver to move so there would be a clear path between Lewis and the gun the defendant was carrying. At this point, Lewis fled and looked back to see the defendant driving away in his car.

Viewing the evidence in the light most favorable to sustaining the jury's verdict, as we must, we conclude that sufficient evidence existed to find beyond a reasonable doubt that the defendant's display of the gun and his request that his companion move were intended to prevent Lewis from resisting the taking of his car. State v. Gordon, supra, 185 Conn. at 411, 441 A.2d 119. Although the defendant argues that the taking of the car was only a larceny because the threat of force ended when Lewis fled, such is not the case. Inherent in the defendant's reasoning is the mistaken assumption that the use of force or the threatened use of force must occur simultaneously with the taking of the property for the force or threat of force to be for the purpose of preventing resistance. The time frame for committing the offense of robbery, however, is " 'the course of committing a larceny,' " rather than the course of forcible conduct. State v. Tweedy, supra, 219 Conn. at 498-99, 594 A.2d 906; State v. Gordon, supra, 185 Conn. at 410-11, 441 A.2d 119. "An offender ... may commit robbery although he does not use or threaten to use force at the precise time he takes the property...." (Emphasis added.) State v. Gordon, supra; State v. Tweedy, supra, 219 Conn. at 499 n. 10, 594 A.2d 906. With the facts here, it was entirely reasonable for the jury to conclude that the defendant threatened Lewis for the purpose of preventing resistance to the taking of the car.

B

The defendant next challenges the sufficiency of the evidence that led to his conviction of conspiracy to commit robbery in the first degree in violation of §§ 53a-48(a) ³ and 53a-134(a)(4). He argues that the state lacked the evidence necessary to prove that he entered into a plan to commit the crime...