State v. Davila

• Decision Date: 11 March 2003
• Citation: 75 Conn. App. 432,816 A.2d 673
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. NOEL DAVILA

75 Conn. App. 432

816 A.2d 673

STATE OF CONNECTICUT v. NOEL DAVILA

(AC 21760), (AC 21900).

Appellate Court of Connecticut.

Argued December 2, 2002.

Officially released March 11, 2003.

Bishop, West and Hennessy, Js.

David B. Rozwaski, for the appellant (defendant).

Frederick W. Fawcett, supervisory assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Stephen J. Sedensky III, supervisory assistant state's attorney, for the appellee (state).

Opinion

WEST, J.

The defendant in these consolidated appeals, Noel Davila, appeals from the judgments of conviction, rendered following jury trials,¹ of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21, reckless endangerment in the first degree in violation of General Statutes § 53a-63, criminal possession of a firearm in violation of General Statutes § 53a-217, carrying a pistol without a permit in violation of General Statutes § 29-35 and possession of narcotics in violation of General Statutes § 21a-279 (a).² On appeal, the defendant challenges (1) the sufficiency of the evidence supporting the conviction for risk of injury to a child, (2) the sufficiency of the evidence supporting the conviction for reckless endangerment in the first degree and (3) the court's denial of his motion in limine seeking to exclude evidence of crimes for which he had been acquitted previously.

The jury reasonably could have found the following facts. Angela Velez, Julio Alvarez and five minor children resided in a first floor apartment at 203 Calhoun Avenue in Bridgeport. On the afternoon of May 1, 1999, the defendant, wearing a black, long sleeved, hooded sweatshirt, appeared at the back door of the victims' apartment and asked Velez if he could speak to Alvarez.³ Velez refused the defendant's request because Alvarez was having lunch at that time. The defendant then brandished a pistol and attempted to force his way into the apartment. Velez called out to Alvarez that somebody was trying to break into the apartment. Unsuccessful in his attempt to gain entry, the defendant fired several gunshots into the apartment through various first floor windows. During the shooting, Velez gathered the five children together and fled the apartment, bringing the children to a nearby liquor store. The owner of the liquor store called the police, who arrived at the scene shortly thereafter.

The defendant, meanwhile, fled on foot to his sister's apartment, which was not far from the scene of the shooting. Once at the apartment, the defendant changed shirts and hid the pistol under the cushions of the living room sofa. Police apprehended the defendant at the apartment, where they also recovered the weapon and the sweatshirt. Additional facts will be set forth as necessary.

I

The defendant first claims that the evidence presented at trial was insufficient to support his conviction of risk of injury to a child. Specifically, he argues that (1) there was no evidence that he was aware that there was more than one child in the home when the gunshots were fired, (2) there was no evidence that any of the children sustained actual injuries and (3) the testimony of the mother establishes that the children already had fled to a neighboring liquor store by the time that the gunshots were fired. Those arguments are unavailing.⁴

"The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e 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. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict." (Internal quotation marks omitted.) State v. Morgan, 70 Conn. App. 255, 282, 797 A.2d 616, cert. denied, 261 Conn. 919, 806 A.2d 1056 (2002).

A

We first address the defendant's argument that the evidence was insufficient to support his conviction for risk of injury to a child because there was no evidence that any of the children sustained actual injuries.

General Statutes (Rev. to 1999) § 53-21 provides in relevant part that "[a]ny person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child. . . shall be guilty of a class C felony." "[T]he charge of risk of injury to a child does not require proof of an actual injury, but only that the actions of the defendant exposed the victim to a situation that potentially could impair his health." State v. Peters, 40 Conn. App. 805, 828-29, 673 A.2d 1158, cert. denied, 237 Conn. 925, 677 A.2d 949 (1996). The relevant inquiry is whether the defendant committed any act that was likely to endanger the life or limb, or impair the health, of the children, not whether the children actually were injured. "Lack of an actual injury to either the physical health or morals of the victim is irrelevant . . . actual injury is not an element of the offense." (Citation omitted; internal quotation marks omitted.) State v. Sullivan, 11 Conn. App. 80, 98, 525 A.2d 1353 (1987). "[T]he creation of a prohibited situation is sufficient." State v. Perruccio, 192 Conn. 154, 160, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984).

In the present case, the jury heard sufficient evidence that, if credited, would support its finding that the defendant's actions created a risk of injury to five children younger than sixteen years of age. Velez testified that all five children were present inside the apartment during the shooting. As the shooting began, the children were gathered in the living room. Police later recovered two bullet fragments from stereo speakers in the living room. The victims' landlord, Fernando Queiroz, testified that there also were bullet holes in the kitchen and in the bedroom walls. Officer Joseph Hernandez testified that not all of the bullets were recovered because some had lodged in the walls and studs of the apartment, making retrieval difficult. From that evidence, the jury reasonably could have concluded that the defendant's action in firing the pistol into the apartment created a situation that endangered the children present in the apartment.

B

The defendant also argues that he was unaware of the presence of more than one child in the apartment when the gunshots were fired. That argument is unavailing.

Regardless of whether the defendant knew that the children were in the apartment, the jury reasonably could have found that he violated the statute on the basis of his reckless disregard of the consequences of his actions. It is not necessary, to support a conviction under § 53-21, that the defendant be aware that his conduct is likely to impact a child younger than the age of sixteen years. Specific intent is not a necessary requirement of the statute. Rather, the intent to do some act coupled with a "reckless disregard of the consequences"; State v. Cutro, 37 Conn. App. 534, 540, 657 A.2d 239 (1995); of that act is sufficient to find a violation of the statute. Id., 539-40. Applying that standard, we conclude, on the basis of the evidence presented at trial, that the jury reasonably could have found that the defendant acted wilfully in firing his pistol into the apartment and that his conduct was of such a character that it demonstrated a reckless disregard of the consequences. See id.

II

The defendant also claims that the evidence presented at trial was insufficient to support his conviction of reckless endangerment in the first degree in violation of § 53a-63. We disagree.

The defendant bases his claim on his interpretation of the testimony offered at trial. Specifically, the defendant argues that the testimony establishes that Velez was not in the specific room into which the weapon was fired. Therefore, he argues, Velez never was at risk of injury. We are unpersuaded. The defendant's argument ignores both the evidence presented in the case and the common sense and logic on which jurors are expected to rely in their deliberations.

General Statutes § 53a-63 (a) provides: "A person is guilty of reckless endangerment in the first degree when, with extreme indifference to human life, he recklessly engages in conduct which creates a risk of serious physical injury to another person." General Statutes § 53a-3 (13) provides: "A person acts `recklessly' with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation . . . ." Thus, the jury had to consider objectively the nature and degree of the risk and the defendant's subjective awareness of that risk. "Subjective realization of a risk may be inferred from a person's words and conduct when viewed in the light of the surrounding circumstances. LaFave and Scott, Criminal Law (2d Ed.) § 30." State v. Ghiloni, 35 Conn. Sup. 570, 573, 398 A.2d 1204 (1978).

The defendant was aware that Velez was in the apartment when he began firing his pistol through the windows. Thus, the defendant cannot argue that he was unaware...