State v. Cochran

• Decision Date: 16 August 1983
• Citation: 463 A.2d 618,191 Conn. 180
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Michael COCHRAN.

Page 618

463 A.2d 618

191 Conn. 180

STATE of Connecticut v. Michael COCHRAN.

Supreme Court of Connecticut.

Argued May 5, 1983.

Decided Aug. 16, 1983.

David F. Egan, Public Defender, with whom, on brief, was E. Eugene Spear, Public Defender, for appellant (defendant).

John M. Massameno, Asst. State's Atty., with whom, on brief, were John J. Kelly, State's Atty., and Douglas Karp, Sp. Deputy Asst. State's Atty., for appellee (state).

Before SPEZIALE, C.J., and PETERS, ARTHUR H. HEALEY, SHEA and GRILLO, JJ.

GRILLO, Associate Justice.

By a two count information, dated July 13, 1979, the defendant was charged with the crimes of burglary in the third degree; General Statutes § 53a-103(a); ¹ and larceny in the second degree, General Statutes § 53a-123(a)(2). ² At the close of the state's evidence and again at the close of all evidence, the defendant moved for a judgment of acquittal as to each count. Both motions were denied by the court, and he was subsequently found guilty as charged by the jury. The defendant thereafter pleaded guilty to two counts of being a persistent felony offender; General Statutes § 53a-40; and was sentenced to five to ten years on each count, to run concurrently, for an effective total sentence of five to ten years. From this judgment the defendant appeals.

The defendant presents the following issues: (1) whether the defendant, who was an invited guest in one portion of a single family house, could be found guilty of burglarizing a bedroom within that structure; (2) whether the trial court erred in its instructions to the jury on the definition of "building" as that term is used in General Statutes § 53a-103; (3) whether the evidence of value was sufficient to support a conviction of larceny in the second degree; (4) whether the trial court erred in its supplemental instructions to the jury regarding the definition of market value.

The following facts could reasonably have been found by the jury: On March 6 and 7, 1979, a one-family, two bedroom house on 41 Deerfield Avenue in Milford was occupied by four people, including Diane Boxwell, the defendant's niece. Boxwell and her daughter occupied the living room, Sherri Williams occupied one bedroom and Heidi Williams occupied the second bedroom. Although the front door to the house did not lock, the individual bedrooms were equipped with chain bolt locks on the doors.

On March 6, 1979, between 5 and 7 p.m., Sherri Williams left the house after locking her bedroom door. It was her practice to keep the door locked, as her room contained numerous valuables, including a stereo system. She gave no one permission to enter her bedroom on March 6 or 7, 1979.

Boxwell invited the defendant to the Deerfield Avenue house on March 6, 1979. He arrived at approximately 8:30 p.m. and remained there overnight, sleeping on a living room couch. The following morning Boxwell left for work at approximately 7 a.m., leaving her uncle at the residence. She had checked the bedroom doors to verify that they were locked.

Sherri Williams returned home at approximately 2:30 p.m. on March 7, 1979. She found her bedroom door open and the contents of her room in disarray. Her stereo system, which included two speakers, a turntable with cartridge and a receiver, was gone. Additionally, a roll of ten one dollar bills was missing from her bookshelf. None of the missing items was returned or found.

Julie Sweeton, who is also the defendant's niece, and Sherri Urabel arrived at 41 Deerfield Avenue at approximately 12:15 p.m. on March 7, 1983. They had planned to take the defendant out to lunch. Each testified that upon arrival they viewed the defendant loading stereo speakers into a waiting taxi cab. The turntable and receiver were visible on the rear seat of the taxi. The defendant left in the taxi after failing to respond to Sweeton's inquiry as to what he was doing. Subsequently, Sweeton entered the house and noticed that Sherri Williams' bedroom door was open and that her stereo was missing.

In this appeal the defendant does not contest the sufficiency of the evidence regarding his wrongful appropriation of the missing property, but asserts that an essential element of each of the crimes, as charged, has not been sufficiently established. Additionally, he alleges error in the trial court's charge to the jury relative to each of these disputed elements. We first consider the defendant's claims relating to the burglary conviction.

The defendant contends that the language of General Statutes § 53a-100, ³ read in conjunction with § 53a-103(a), ⁴ exculpates him under the facts of this case. Succinctly stated, it is his position that having been invited by his niece to be inside the premises at 41 Deerfield Avenue, his appropriation of the missing property from the bedroom of Sherri Williams cannot constitute an entering or remaining unlawfully "in a building." Although candidly admitting that "[i]t was certainly a crime for the defendant to enter her room and steal the stereo equipment," the defendant nonetheless asserts that the bedroom was not a separate "building" within the meaning of that term and that therefore his actions were "more properly a larceny in conjunction with some type of criminal trespass or criminal mischief." We disagree.

We begin our analysis by noting the definition of "building" as stated within General Statutes § 53a-100. Under this section, "building" is defined, inter alia, as follows: "Where a building consists of separate units, such as, but not limited to separate apartments, offices, or rented rooms, any unit not occupied by the actor is, in addition to being a part of such building, a separate building ...." (Emphasis added.) In light of this definition, we are satisfied that the subordinate facts recited above justify the conclusion that Sherri Williams' bedroom was a "building" within the meaning of General Statutes § 53a-103. ⁵

The testimony establishes the fact that three individuals (as well as one of the tenant's children) occupied distinct parts of a building originally constructed as a one-family residence. Although the defendant was invited within 41 Deerfield Avenue, it is clear that his "invitation" was never expressly or impliedly extended to either of the bedrooms, which were locked. Indeed, Diane Boxwell testified that she had specifically "checked all the doors" to ensure that they were locked prior to leaving for work on the morning of March 7, 1979. Nor does the defendant's reliance upon the legislative history of § 53a-103 support his claim. It is clear that one purpose behind the enactment of our present burglary statutes was protection against intrusions likely to terrorize occupants. State v. Belton, 190 Conn. 496, 506, 461 A.2d 973 (1983). The defendant, noting that Williams knew of his presence within the house on the evening of March 6, 1979, claims that the potential for terror was lacking under these circumstances. Can it be disputed that the defendant's actions would have terrorized Williams if she had been in her room at the time of the break-in? The defendant's argument is baseless, and his actions were just the type of activity against which the burglary statutes were designed to protect. ⁶

The defendant, while conceding that the court defined "building" in the words of the statute, took exception to the court's charge with respect to that definition. Specifically, he claims error by the trial court in its charge that "[w]hen a building consists of two or more units separately secured or occupied, any one of these units, when intruded upon ... may be considered as a separate building." ⁷ The defendant argues that the jury could well have concluded that the bedroom was a "building" only because it was "separately secured or occupied."

When considered in its entirety, the charge adequately explained the meaning of a "building." See Kelly v. Bliss, 160 Conn. 128, 132-33, 273 A.2d 873 (1970). " 'The charge to the jury ... must be read as a whole, and an attempt to assert reversible error by culling a single phrase or inaccurate statement must fail unless it is reasonably probable that the jury were misled.' " State v. Turcio, 178 Conn. 116, 122, 422 A.2d 749 (1979). Moreover, even if we assume, for the sake of argument, that the court erred by concluding the "secured or occupied" language within its charge, this error heightened the evidentiary plateau necessary for conviction. Any such error "was favorable to the defendant and is therefore not a justifiable basis of complaint by him." Burton v. Burton, 189 Conn. 129, 137, 454 A.2d 1282 (1983); see State v. Hawthorne, 175 Conn. 569, 574, 402 A.2d 759 (1978). We conclude that the defendant has failed to satisfy his burden of showing that the trial court's charge defining "building" was probably harmful to him. See State v. Vennard, 159 Conn. 385, 393-94, 270 A.2d 837 (1970), cert. denied, 400 U.S. 1011, 91 S.Ct. 576, 27 L.Ed.2d 625 (1971).

With respect to his conviction of larceny in the second degree in violation of § 53a-123(a)(2) of the General Statutes, the defendant contends that the evidence presented at trial was insufficient to establish a larceny of property with a value in excess of $500. Conceding that there was sufficient evidence of his wrongful appropriation of the ten one dollar bills, the defendant avers that the jury could not reasonably have found the value of Williams' stereo system to be at least $490. We agree.

The evidence presented concerning valuation of the stereo system is as follows: Sherri Williams testified that she purchased the system as a package in May, 1978, or approximately ten months prior to the alleged larceny. She recalled paying "around 550 dollars" for all of the components, which figure included the applicable sales tax paid thereon. She used the system daily prior to its appropriation and on one occasion had it repaired. Although Williams characterized the set as in "excellent condition" in...