State v. Garcia, 11805

• Decision Date: 10 July 1995
• Docket Number: No. 11805,11805
• Citation: 37 Conn.App. 619,657 A.2d 691
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Jose Luis GARCIA.

Page 691

657 A.2d 691

37 Conn.App. 619

STATE of Connecticut v. Jose Luis GARCIA.

No. 11805.

Appellate Court of Connecticut.

Argued Jan. 11, 1995.

Decided April 25, 1995.

Certification Denied July 10, 1995

Scott Perry, Certified Legal Intern, with whom were Brian J. Kornbrath and, on brief, Timothy H. Everett, Hartford, and Kristen Miller and Christopher Drew, Certified Legal Interns, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on brief, were Donald A. Browne, State's Atty., and Linda Howe, Asst. State's Atty., for appellee (State).

Before DUPONT, C.J., and EDWARD Y. O'CONNELL and LANDAU, JJ.

LANDAU, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of one count of robbery in the first degree in violation of General Statutes § 53a-134(a)(2) ¹ and one count of larceny in the first degree in violation of General Statutes §§ 53a-119 and 52a-122(a)(3). ² The defendant claims that the trial court improperly The jury reasonably could have found the following facts. On February 7, 1991, Mark Krzos parked a black 1990 GMC Jimmy in a lot adjacent to his residence in West Haven. The following morning, he reported the vehicle missing. At about midnight on February 8, 1991, Edward J. Malvey left the Nutmeg-Bowl bowling alley in Fairfield and walked to his car, which was located in an isolated, dark area of the parking lot. As he unlocked his car, a Jimmy approached slowly and stopped in front of his car. An individual exited from the passenger side door, walked toward Malvey and stated, "Hold it right there...." Malvey described this person as a man smaller than himself, of medium height and build, with a dark complexion and wearing dark clothing. After patting down Malvey and taking his keys and wallet, the person told Malvey to lay facedown on the ground. That individual then began to search the inside of Malvey's car. While on the ground, Malvey was able to observe a weapon in the possession of the person searching his car. A second person approached and attempted to remove Malvey's wedding ring. While searching Malvey's car, the first person discharged a shot from his gun. Malvey saw him return to the Jimmy, apparently favoring his left leg and dragging a bowling ball bag with him. When the Jimmy sped away, Malvey was able to observe its license plate, which matched that of Krzos' missing vehicle. Malvey reported that a key ring, his wallet containing credit cards and seven or eight dollars and a bowling ball bag with equipment in it had been stolen from him. A Fairfield police officer dispatched to the scene observed a .22 caliber casing beneath the passenger side seat of Malvey's vehicle.

(1) denied his motions for judgment of acquittal on both charges when the evidence was insufficient to sustain his convictions, (2) instructed the jury on the larceny charge so as to allow a conviction of an uncharged offense, and (3) admitted a vial of crack cocaine into evidence.

At about 12:40 a.m. on February 8, 1991, Officer Angelo Pierce of the Bridgeport police department observed two men, one of whom was the defendant, standing on Pequonnock Street in Bridgeport next to a black GMC Jimmy with its lights on and motor running. This location is approximately a five to seven minute drive from the Nutmeg-Bowl in Fairfield. When Pierce pulled up behind the Jimmy, the second man, later identified as Francisco Rodriguez, walked to a Buick Riveria that was parked in front of the Jimmy. The defendant walked toward the officer's cruiser and tossed an object into a grassy area. Pierce requested that the defendant sit in the cruiser while he retrieved the object, which proved to be Malvey's wallet.

An examination of the Jimmy revealed that the door lock and steering column were smashed and that the vehicle was running despite the absence of an ignition key. Inside the Jimmy were items later identified by Malvey as articles taken from him in Fairfield. During the investigation, Rodriguez left the scene in the Buick with an individual later identified as his brother and was stopped by the police two blocks away. As he exited the vehicle, Rodriguez almost fell, suffering from what was determined to be a gunshot wound to his leg.

The defendant began trial with Rodriguez as a codefendant. The trial court initially denied Rodriguez' motions to sever the trial. After jury selection had been completed, however, the court reconsidered the motion to sever and granted it. ³

I

A ROBBERY OF EDWARD MALVEY

The defendant first claims that the trial court improperly denied his motion for judgment of acquittal as to the charge of robbery in the first degree. He argues that the state did not present sufficient evidence to establish "In reviewing a jury verdict that is challenged on the ground of insufficient evidence, we employ a two part analysis. We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant's guilt beyond a reasonable doubt.... The evidence must be construed in a light most favorable to sustaining the jury's verdict." (Citations omitted; internal quotation marks omitted.) State v. Ford, 230 Conn. 686, 692, 646 A.2d 147 (1994). In reaching its verdict, "[i]t is within the province of the jury to draw reasonable and logical inferences from the facts proven, [as well as to] 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....' " (Citations omitted.) Id.

that the defendant was the second person involved in the robbery of Malvey.

"While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. State v. Adams, 225 Conn. 270, 276-77, 623 A.2d 42 (1993), quoting State v. Stanley, 223 Conn. 674, 678, 613 A.2d 788 (1992). Proof beyond a reasonable doubt requires that the evidence exclude every reasonable hypothesis of innocence. State v. Little, 194 Conn. 665, 671-72, 485 A.2d 913 (1984); State v. Morrill, 193 Conn. 602, 611, 478 A.2d 994 (1984). But the requirement of proof beyond a reasonable doubt does not mean that the proof must be beyond a possible doubt, and a possible hypothesis or supposition of innocence is far different from a reasonable supposition.... Emphasis needs to be placed on the distinction between the word reasonable and the word possible.... Proof of guilt must exclude every reasonable supposition of innocence ... [while a] mere possible hypothesis of innocence will not suffice.... State v. Little, supra, [194 Conn. at] 672 ; State v. Morrill, supra, [193 Conn. at], 611 ." (Citations omitted; internal quotation marks omitted.) State v. Ford, supra, 230 Conn. at 693, 646 A.2d 147.

Restated, the first issue in this case is whether the jury could have drawn reasonable inferences from the evidence presented at trial to enable it to conclude beyond a reasonable doubt that it was the defendant who accompanied Rodriguez in the robbery of Malvey. The defendant argues that the only evidence linking him to the robbery was Malvey's wallet, which he threw aside as he approached Pierce. This evidence alone, he asserts, cannot prove the disputed issue of identification beyond a reasonable doubt. The state contends that the defendant's conviction of robbery in the first degree was based on reasonable inferences drawn from the evidence presented. We agree.

" '[T]he possession of property recently stolen, if unexplained and standing alone or without other facts pointing to a contrary conclusion, will justify the trier in drawing an inference that the possessor stole the property, and the inference may be sufficiently strong to warrant a conviction of a charge of theft.' State v. Palkimas, 153 Conn. 555, 558-59, 219 A.2d 220 (1966); State v. Donnelly, 124 Conn. 661, 663, 2 A.2d 214 (1938)." State v. Higgins, 201 Conn. 462, 473, 518 A.2d 631 (1986). "Possession of recently stolen property puts the burden of explanation upon one charged with having stolen it.... In other words, the circumstantial evidence of possession of recently stolen property raises a permissible inference of criminal connection with the property, and if no explanation is forthcoming, the inference of criminal connection may be as a principal in the theft ... depending upon the other facts and circumstances which may be proven...." (Citations omitted; internal quotation marks omitted.) State v. Palkimas, supra, 153 Conn. at 559, 219 A.2d 220.

The fact that the defendant was in possession of Malvey's recently stolen wallet raised After a review of the record, we conclude that, on the basis of the facts established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established beyond a reasonable doubt that the defendant was the second person involved in the robbery of Malvey.

                a permissible inference that he had stolen it.   The defendant's explanation for his possession of the wallet was that he had picked it up from the ground when Rodriguez, whom he claimed not to have known, asked him for help.   It was reasonable for the jury to reject this explanation and instead to rely on the inference.   Moreover, the state presented other facts that tended to support the inference that the defendant had been involved in the robbery.   The wallet that was in the defendant's possession had

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