State v. Fleming, No. 27836.

• Decision Date: 25 November 2008
• Docket Number: No. 27836.
• Citation: 958 A.2d 1271,111 Conn.App. 337
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Randy FLEMING.

958 A.2d 1271

111 Conn.App. 337

STATE of Connecticut v. Randy FLEMING.

No. 27836.

Appellate Court of Connecticut.

Argued September 15, 2008.

Decided November 25, 2008.

William B. Westcott, special public defender, for the appellant (defendant).

Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Roger S. Dobris, senior assistant state's attorney, for the appellee (state).

BISHOP, GRUENDEL and FOTI, Js.

FOTI, J.

The defendant, Randy Fleming, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134, larceny in the sixth degree in violation of General Statutes § 53a-125b, attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59, and carrying a pistol without a permit in violation of General Statutes § 29-35. On appeal, the defendant claims that the trial court improperly (1) denied his motion for a judgment of acquittal because the evidence was insufficient to support his conviction and (2) instructed the jury on the crime of attempt to commit assault in the first degree. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On February 26, 2005, just after midnight, Salim Ali, a cashier, was finishing his shift at the Quick and E-Z Deli (deli) on Washington Street in New Haven. Ali's colleague, Abdullah, was in the deli's back room. Ali observed a man, whom he later identified as the defendant, approach the deli and pull what Ali described as a "half mask" over his face. After the defendant entered the deli, Ali admonished him to remove the half mask from his face. The defendant ignored Ali's demand and approached the counter where Ali was standing. The defendant then pulled a handgun from his jacket pocket, pointed it at Ali and said, "this is a stickup, give me all your money." Ali gave the money from the cash register, a total of $38 to the defendant, who placed it in his pocket, pointing the gun at Ali all the while.

The defendant, however, did not leave the deli but stood silent with the gun pointed at Ali. Trying to accommodate the defendant, Ali offered his own money, which was in his wallet in the pocket of his jacket hung up on the wall behind Ali, to his left in a small area out of view of the defendant. Ali assured the defendant that all he had in his jacket was his wallet, and, with his hands raised, Ali slowly moved toward his jacket. Ali lost sight of the defendant and thought that he had left the deli. Ali peered through a deli case, which had glass on both the front and back, trying to determine if the defendant had, indeed, left the deli. Ali saw the defendant crouching in front of the deli case. The defendant then fired two gunshots through the case at Ali, shattering the glass and cutting Ali's hands, causing him to bleed. By the time Ali's coworker, Abdullah, came from the back room and pushed the panic button alerting the police of the robbery, the defendant had left the deli. The police arrived, questioned Ali about the robbery and collected physical evidence.

On March 30, 2005, Detectives Joseph Pettola and Michael Wuchek of the New Haven police department went to another of Ali's places of employment in New Haven with a photographic array containing a photograph of the defendant. Ali selected the photograph of the defendant in the array but could not make a positive identification, stating that the defendant's face in the photograph was fuller than it was on the night of the robbery. Ali asserted that he nearly was certain that the person in the photograph was the man who robbed him on February 26, 2005, but requested that he see a more recent photograph.

On April 4, 2005, the defendant was arrested by the New Haven police for his alleged involvement in four other robberies of local businesses that occurred on March 23 and 24, 2005. On April 5, 2005, Ali saw an article in the New Haven Register that contained a photograph of the defendant. The headline of the article was, "Elm City man facing robbery charges." The defendant was identified by name in the caption of the photograph. Soon after, Ali telephoned Pettola, telling him that he was certain that the man depicted in the photograph in the newspaper, the defendant, was the same man who had robbed him on February 26, 2005. The next day Ali went to the police department and met with Pettola and Wuchek. Ali again viewed a photographic array with a photograph of the defendant and seven other similar looking men.¹ Ali immediately identified the defendant as the man who had robbed the deli.

The defendant subsequently was charged with various crimes stemming from the alleged robberies of these local business establishments, including the February 26, 2005 robbery of the deli. The defendant's jury trial commenced in January, 2006. After closing arguments, the court instructed the jury. The jury found the defendant guilty only of the charges related to the robbery of the deli and found him not guilty of all other charges. On May 6, 2006, the court sentenced the defendant to a total effective term of fifteen years incarceration, execution suspended after eight years, with five years probation. This appeal followed. Additional facts will be set forth where necessary.

I

The defendant first claims that the court improperly denied his motion for a judgment of acquittal because the evidence was insufficient to sustain his conviction. Specifically, he argues that there was insufficient evidence to prove beyond a reasonable doubt (1) the identity of the robber and (2) that the defendant carried a pistol with a barrel length of less than twelve inches. We are not persuaded.

"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 [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Green, 261 Conn. 653, 667, 804 A.2d 810 (2002).

"It is within the province of the jury to draw reasonable and logical inferences from the facts proven.... The jury may draw reasonable inferences based on other inferences drawn from the evidence presented.... Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable.... It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned.... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence." (Internal quotation marks omitted.) State v. Sanchez, 75 Conn.App. 223, 238-39, 815 A.2d 242, cert. denied, 263 Conn. 914, 821 A.2d 769 (2003).

"[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence ... established guilt beyond a reasonable doubt.... Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.... We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record." (Internal quotation marks omitted.) State v. Davis, 68 Conn. App. 794, 798, 793 A.2d 1151, cert. denied, 260 Conn. 920, 797 A.2d 518 (2002). Furthermore, "[i]n our review of the evidence to determine its sufficiency, we do not look at the evidence to see whether it supports the defendant's innocence.... Instead, our focus is whether there is a reasonable view of the evidence that supports the [trier's] verdict of guilty." (Citation omitted; internal quotation marks omitted.) State v. Farnum, 275 Conn. 26, 36, 878 A.2d 1095 (2005). Guided by these principles, we now turn to the defendant's specific claims.

A

The first argument posed by the defendant is that the evidence adduced at trial was insufficient to establish his identity as the perpetrator of the February 26, 2005 robbery. On the basis of our review of the record, we conclude that sufficient evidence existed from which the jury reasonably could have found that the defendant was the perpetrator of this robbery.

"It is black letter law that in any criminal prosecution, the state bears the burden of proving beyond a reasonable doubt the defendant's identity as one of the perpetrators of the crime charged." State v. Smith, 280 Conn. 285, 302, 907 A.2d 73 (2006). The defendant argues that the testimony of the one eyewitness to the robbery, Ali, was insufficient as a matter of law to support the conviction for two reasons. First, the defendant claims that Ali's ultimate identification of him was unreliable because it was made only after Ali saw a photograph of the defendant in a newspaper article alleging his involvement in a string of local robberies. Second, the defendant asserts that because the perpetrator wore a mask, it was impossible for Ali to make a positive identification of the robber he encountered on February 26, 2005. The defendant emphasizes that Ali was unable, with certainty, to identify the defendant the first time the police showed him a photographic array on March 30, 2005. The defendant also underscores the span of time between the robbery, Ali's having seen the newspaper article and his ultimate identification of the defendant at the police station. The defendant contends that those factors indicate that the...