State v. Daniel G.

• Decision Date: 21 January 2014
• Docket Number: No. 33653.,33653.
• Citation: 147 Conn.App. 523,84 A.3d 9
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. DANIEL G.

147 Conn.App. 523

84 A.3d 9

STATE of Connecticut

v.DANIEL G.^*

No. 33653.

Appellate Court of Connecticut.

Argued Nov. 27, 2012.

Decided Jan. 21, 2014.

Jon L. Schoenhorn, Hartford, with whom, on the brief, was Irene J. Kim, certified legal intern, for the appellant(defendant).

Kathryn W. Bare, assistant state's attorney, with whom, on the brief, were Michael L. Regan, state's attorney, and Rafael I. Bustamante, assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and BEACH and McDONALD, Js.

DiPENTIMA, C.J.

The defendant, Daniel G., appeals from the judgment of conviction, rendered after a jury trial, of increasing the speed of a motor vehicle in an attempt to escape or elude a police officer in violation of General Statutes § 14–223(b) and interfering with a police officer in violation of General Statutes § 53a–167a. On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction under § 14–223(b); (2) § 14–223(b) is unconstitutionally vague as applied to the facts of this case; (3) the trial court improperly failed to charge the jury on two theories of defense; and (4) the defendant was deprived of the right to a fair trial as a result of prosecutorial impropriety. We are not persuaded and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 23, 2009, at approximately 4:45 p.m., New London police Officer Deana Nott responded to a motor vehicle accident and drove her police cruiser to a CVS parking lot located on Jefferson Street. After speaking with the individuals involved in the accident, including Dustin Colburn, Nott returned to her cruiser to complete some paperwork. Nott noticed a white van pull into a parking space in the CVS parking lot and saw the defendant exit with a small child. A few moments later, while approaching Colburn, the defendant commented on Nott's abilities as a police officer. The defendant asked Colburn if Nott was issuing Col-burn a “ticket....” The defendant then said that Nott was “[o]n the wrong end of a lawsuit” and asked Colburn for his name and telephone number. At this point, Nott exited her cruiser and instructed the defendant to “step away” several times. The defendant ignored Nott's instructions and continued his comments about her. Nott determined that she could not complete her investigation of the motor vehicle accident as a result of the defendant's actions, and requested assistance from her fellow police officers. Upon hearing the response to Nott's request, the defendant entered his van and departed from the CVS parking lot onto Jefferson Street.

When requesting assistance, Nott had spoken with Todd Bergeson, a sergeant in the New London Police Department and the acting shift supervisor. Nott asked Bergeson to initiate a motor vehicle stop and issue the defendant “a ticket for interfering or ... creating a disturbance.” Bergeson was located nearby at a funeral home. Bergeson observed the white van exiting from the CVS parking lot and followed it, turning on his vehicle's overhead lights and police siren. The defendant proceeded up Wall Street while Bergeson was directly behind him with the overhead lights and police siren turned on. The defendant turned onto Summer Street, then Redden Avenue, then Colman Street and into his residence. Bergeson parked his cruiser at the front of the residence and proceeded to the rear of the residence on foot. Bergeson observed the defendant and his daughter in the van. He ordered the defendant to exit the van and informed him that he was under arrest. At some point, the defendant began to exit the van, and Bergeson pointed his Taser at the defendant. The defendant returned to the interior of the van, shutting and locking the door. The defendant placed a telephone call to the police dispatcher, requesting to speak to either a captain or lieutenant, and claiming that he and his daughter were being threatened by the police. The dispatcher informed the defendant that Bergeson was acting lieutenant. The defendant then exited the van and was taken into custody without further incident.

In an amended substitute information, the defendant was charged with risk of injury to a child in violation of General Statutes § 53–21(a)(1), increasing speed in an attempt to escape or elude a police officer in violation of § 14–223(b) and two counts of interfering with an officer in violation of § 53a–167a. Following the presentation of the state's case, the defendant moved for a judgment of acquittal as to all four counts. Count one of the amended substitute information alleged that the defendant had obstructed and hindered Nott in the performance of her duties in the CVS parking lot “by repeatedly yelling at the parties to a motor vehicle crash and interfering with ... Nott's investigation of the accident in which the defendant was not involved....” The court granted the defendant's motion for a judgment of acquittal with respect to count one. Referring to our Supreme Court's decision in State v. Williams, 205 Conn. 456, 473, 534 A.2d 230 (1987),¹ the court ruled: “When, in fact, one is dealing with [a] first amendment question and the right of expression, the interfering statute is restricted to what is known as fighting words, either words directed at the officer or to those in the area such that they are—their very nature would require or ordinarily cause one to react in a negative fashion, in fact, one of violence. That is, clearly, not what happened here. As for the verbal exchange, it is correct that the verbal exchange was not even with [Nott], according to the evidence that has been presented. As far as the claim that the verbal exchange interfered with [Nott's] ability, I see no evidence of that. I see no specific testimony that would indicate that the conversation between the witness and the defendant interfered, prevented [Nott], or even delayed [Nott] in any way. There may have been a subsequent argument with [Nott]; but, again, citing Williams, that is not sufficient for a charge of interfering with a police officer.” The court denied the remainder of the defendant's motion.

Following the conclusion of the trial, the jury found the defendant not guilty of risk of injury, guilty of attempting to escape or elude a police officer and guilty of interfering with an officer. The interfering with an officer count was based on the defendant's locking the van door and preventing Bergeson from arresting him following the police pursuit. The court denied the defendant's postverdict motions and rendered judgment in accordance with the jury's verdict. The court sentenced the defendant to one year of incarceration, execution suspended, two years of probation and a $500 fine. This appeal followed.

I

The defendant first claims that the evidence was insufficient to support his conviction of attempting to escape or elude a police officer. Specifically, he argues that a video of the pursuit, as captured by a dashboard camera in Bergeson's vehicle, “unequivocally demonstrated that the defendant never increased his speed or tried to elude Bergeson.” ² The state counters that the video does not conclusively establishthe facts so as to have preclusive effect over the testimony of the witnesses. We agree with the state.

We begin with our standard of review. “In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... We note that the [finder of fact] must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.... If it is reasonable and logical for the [finder of fact] to conclude that a basic fact or an inferred fact is true, the [finder of fact] is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt....

“When there is conflicting evidence ... it is the exclusive province of the ... trier of fact, to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness' testimony.... Questions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses.... We must defer to the trier of fact's assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.... 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 the [finder of fact's] verdict of guilty.” (Citation omitted; internal quotation marks omitted.) State v. Little, 127 Conn.App. 336, 339–40, 14 A.3d 1036, cert. denied, 302 Conn. 928, 28 A.3d 343 (2011); see also State v. Testa, 123 Conn.App. 764, 767–68, 3 A.3d 142, cert. denied, 298 Conn. 934, 10 A.3d 518 (2010).

“Furthermore, [i]n [our] 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.... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.... [An] ...