State v. Crump, 11224

Decision Date02 December 1986
Docket NumberNo. 11224,11224
Citation518 A.2d 378,201 Conn. 489
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Elkie Lee CRUMP.

Bruce L. Levin, Sp. Public Defender, for appellant (defendant).

Patricia B. Perkins, Sp. Asst. State's Atty., with whom, on brief, were John M. Bailey, State's Atty., Susann E. Gill, Deputy Asst. State's Atty., and Marc Needelman, Former Deputy Asst. State's Atty., for appellee (state).

Before HEALEY, SHEA, DANNEHY, CALLAHAN and QUINN, JJ.

ARTHUR H. HEALEY, Associate Justice.

The crimes involved in this case arose out of a robbery of a restaurant in Hartford on January 29, 1981. After a trial to the court, Kremski, J., the defendant, Elkie Lee Crump, was found guilty under both counts of a substitute information which charged the crimes of robbery in the second degree, in violation of General Statutes § 53a-135, 1 and conspiracy to commit robbery in the second degree, in violation of General Statutes §§ 53a-135 and 53a-48. 2 This appeal followed.

On appeal, the defendant claims that there was "insufficient evidence" to sustain the trial court's finding that he was guilty of robbery in the second degree and conspiracy to commit robbery in the second degree, 3 that he did not knowingly and intelligently waive his right to a jury trial and that he was denied the effective assistance of counsel. 4 We find no error.

We turn first to the claim that the evidence was "insufficient." Although the defendant does not dispute the factual findings made, he does claim that those findings fail to support a conclusion of guilt of either crime charged. " 'This court will construe the evidence in the light most favorable to sustaining the trial court's verdict and will affirm the conclusion of the trier of fact if it is reasonably supported by the evidence and the logical inferences drawn therefrom. State v. Perez, 182 Conn. 603, 606, 438 A.2d 1149 (1981); see, e.g., State v. Gaynor, 182 Conn. 501, 503, 438 A.2d 749 (1980); State v. Festo, 181 Conn. 254, 259, 435 A.2d 38 (1980); State v. Avcollie, 178 Conn. 450, 466, 423 A.2d 118 (1979). Our review is the same whether the trier of fact is a judge, a panel of judges, or a jury. State v. Perez, supra; see State v. Holley, 174 Conn. 22, 26, 381 A.2d 539 (1977).' State v. D'Antuono, 186 Conn. 414, 421, 441 A.2d 846 (1982)." State v. Vincent, 194 Conn. 198, 206, 479 A.2d 237 (1984). " 'The trier of the facts determines with finality the credibility of witnesses and the weight to be accorded their testimony. "We cannot retry the facts or pass upon the credibility of the witnesses." Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975).' " State v. Haddad, 189 Conn. 383, 389, 456 A.2d 316 (1983), quoting State v. Penland, 174 Conn. 153, 157-58, 384 A.2d 356, cert. denied, 436 U.S. 906, 98 S.Ct. 2237, 56 L.Ed.2d 404 (1978). In reviewing the evidence upon which the trier of fact relied in reaching its conclusion, we must recognize that "the burden rested upon the [state] to prove the guilt of the accused, i.e., to prove each material element of the offense[s] charged beyond a reasonable doubt. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 [1975]...." State v. Haddad, supra, 388.

It will be useful in our review of the defendant's claim to set out at this point the findings 5 upon which the trial court based its conclusions. These findings include: On the date in question, the defendant entered a restaurant in Hartford with two other black males. The three then had a conversation among themselves, after which the defendant and another of the men went to the counter near the cash register while the third left the restaurant. One of the two men who remained (the defendant or his companion) 6 ordered a soft drink at the counter and money was proffered to the victim, Julia Pelarinos, for the drink which was presented. When Pelarinos opened the cash register to deposit the money, she was pushed aside by the man who had ordered the soft drink. He then took approximately $300 from the opened cash register drawer. The two men immediately hurried from the restaurant. The man who did not take the money from the cash register opened the door "to assist" the man with the $300 to leave. After exiting the restaurant, both entered a waiting automobile "being operated" by the third man, who had left the restaurant earlier. The automobile then left the scene.

Initially, the defendant claims that he could not be found guilty as an accessory 7 on the robbery count, as the state now contends, because the state did not so charge him in the substitute information, did not so claim at trial and did not advance that theory as an alternative ground of affirmance under Practice Book § 3012(a) (now § 4013[a]. This argument lacks merit because the fact that the defendant was not formally charged as an accessory does not preclude his being so convicted. State v. Johns, 184 Conn. 369, 373-74 n. 7, 439 A.2d 1049 (1981); State v. Ives, 172 Conn. 322, 323, 374 A.2d 244 (1977); see State v. Raffone, 161 Conn. 117, 128, 285 A.2d 323 (1971).

Contrary to the defendant's claim, there was sufficient evidence to prove that he was guilty of robbery in the second degree. A robbery is committed when, in the course of committing a larceny, a person uses or threatens the immediate use of physical force upon another person for any of the purposes set out in General Statutes § 53a-133. 8 Conviction of a simple larceny requires proof of the taking of the property of another with the intent to deprive the owner of possession permanently. State v. Kurvin, 186 Conn. 555, 556, 442 A.2d 1327 (1982); see General Statutes §§ 53a-118, 53a-119. 9

The findings contained in the trial court's decision, as originally given and as later articulated, which we have set out, are adequate to justify beyond a reasonable doubt the conclusion that the defendant was guilty of being an accessory to the crime of robbery in the second degree. The commission of a robbery in the context of the larceny with its accompanying use or threat of use of immediate force upon Pelarinos for either of the purposes set out in General Statutes § 53a-133 was proven. In this case, the defendant or his companion actually pushed Pelarinos away from the open cash register and took the $300 from it. It is not required that the proof show that the defendant was the actual perpetrator because the proof does show that the perpetrator "[was] aided by another person actually present." General Statutes § 53a-135(a)(1). 10 The defendant contends that the state did no more than prove that he was merely innocently present. We do not agree. We recognize that " '[m]ere presence as an inactive companion, passive acquiescence, or the doing of innocent acts which may in fact aid the one who commits the crime must be distinguished from the criminal intent and community of unlawful purpose shared by one who knowingly and wilfully assists the perpetrator of the offense in the acts which prepare for, facilitate, or consummate it.' State v. Laffin, 155 Conn. 531, 536, 235 A.2d 650 (1967)." State v. Maltese, 189 Conn. 337, 343, 455 A.2d 1343 (1983). We find, however, that the evidence in this case supports the conclusion of the trial court of the defendant's complicity as either a principal or an accessory in the crime of robbery in the second degree.

Whether a person who is present at the commission of a crime aids or abets its commission so as to be criminally liable depends on the circumstances surrounding his presence there and his conduct while there. " 'The accessory statute, § 53a-8, sets forth the element of intent as a twofold requirement: that the accessory have the intent to aid the principal and that in so aiding he intend to commit the offense with which he is charged. See LaFave & Scott, Criminal Law (1972), p. 505 n. 53, § 64.' (Emphasis in original.) State v. Harrison, [178 Conn. 689, 694, 425 A.2d 111 (1979) ]." State v. Haddad, supra, 399. "A person acts 'intentionally' with respect to a result or conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct." General Statutes § 53a-3(11). Intent is a mental process, and absent an outright declaration of intent, must be proved through inferences drawn from the actions of an individual, i.e., by circumstantial evidence. State v. Rodriguez, 180 Conn. 382, 404, 429 A.2d 919 (1980); State v. Harrison, 178 Conn. 689, 695, 425 A.2d 111 (1979). There is, of course, no legal distinction between direct and circumstantial evidence as far as probative force is concerned. State v. Wilson, 178 Conn. 427, 434, 423 A.2d 72 (1979). "It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence." State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981); see State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984). "It is clear that since the guilt of one who aids or abets is equal to the guilt of one who actually commits the crime, that statute [here General Statutes § 53a-8] renders anyone who comes within its terms guilty as a principal offender." State v. Raffone, supra. The findings show that the defendant was "not passively acquiescent nor acting innocently." State v. Haddad, supra.

The defendant next claims that the evidence upon which the trial court relied was insufficient to support its conclusion that the defendant participated in a conspiracy 11 to commit robbery in the second degree. We do not agree.

At the end of the trial, the trial court, after stating orally its findings of fact and conclusions on the robbery count, then immediately went on and stated: "With regard to the charge of conspiracy to commit robbery in the second degree, the court finds that the facts as indicated by the court there was an intent to engage in criminal activity, that is, the robbery of...

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