State v. Gore, No. 26304.

• Citation: 901 A.2d 1251,96 Conn.App. 758
• Decision Date: 01 August 2006
• Docket Number: No. 26304.
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Curtis GORE.

901 A.2d 1251

96 Conn.App. 758

STATE of Connecticut v. Curtis GORE.

No. 26304.

Appellate Court of Connecticut.

Argued April 20, 2006.

Decided August 1, 2006.

Kent Drager, senior assistant public defender, for the appellant (defendant).

Melissa Streeto Brechlin, assistant state's attorney, with whom, on the brief, were Thomas Griffin, supervisory assistant state's attorney, and Stephen M. Carney, senior assistant state's attorney, for the appellee (state).

DIPENTIMA, GRUENDEL and LAVINE, Js.

LAVINE, J.

The defendant, Curtis Gore, was charged with assault of an employee of the department of correction in violation of General Statutes § 53a-167c(a)(1). The defendant pleaded not guilty and elected to be tried by the court. Following a trial, the court found him guilty of assault of an employee of the department of correction. On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction, (2) the court failed to ensure that his waiver of his constitutional right to a jury trial was knowing, intelligent and voluntary, and (3) the court improperly admitted certain testimony into evidence. We agree with the defendant's second claim and conclude that the record is devoid of any evidence that he made a knowing, intelligent and voluntary waiver of his right to a jury trial. We reverse the judgment of conviction on that basis.

The court reasonably could have found the following facts. In August, 2003, the defendant was incarcerated at the Corrigan Correctional Institution in Uncasville and assigned as an inmate to the restrictive housing unit. The unit, consisting of eleven cells that are parallel to one another, functions as a segregation area in which inmates remain confined to their cells for twenty-three hours a day. In the center of the unit is a protected glass area, known as the control station, where a correction employee monitors the inmates. During second shift duty, there is one correction employee who stays in the control station and two correction employees who patrol the outside of the cells. Each individual cell door contains a small metal rectangular sliding door that is utilized by the correction employees to deliver meals to the inmates.

On August 18, 2004, correction employees Christopher Hanney, Jason Ware and Joseph Iozzia were assigned to second shift duty at the restrictive unit. Iozzia was assigned to the control station, and Hanney and Ware were patrolling the area outside the cells. All three employees were informed prior to beginning their shift that the defendant had been disruptive all day because he was upset that he would not be receiving a vegetarian meal. The defendant had failed to put in the proper request for the vegetarian meal.

At approximately 4:05 p.m., Hanney and Ware began delivering the meals to the inmates through the sliding doors. This procedure involved Ware's unlocking the door and sliding it open, providing each inmate with a beverage and leaving the door open for Hanney to slide the meal through. When Hanney arrived at the defendant's door, he asked the defendant if he wanted his meal. The defendant initially refused to eat the regular meal but then told Hanney that he would eat it. The defendant then stuck his hands through the door, which prevented Hanney from sliding the food tray through the door. Hanney repeatedly ordered the defendant to pull his hands back through the door, so that he could deliver the food tray. The defendant refused to move his hands. Ware joined Hanney, and they both threatened to close the sliding door if the defendant did not move his hands. The defendant refused to comply with the order, prompting Hanney to attempt to close the sliding door. As he attempted to do so, the defendant grabbed Hanney's hands, and using his fingernails, cut Hanney's fingers, hands and wrist. Hanney was able to remove his hands from the defendant's grip and closed the sliding door. The defendant was charged with assault of an employee of the department of correction, tried, convicted and ultimately sentenced. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant claims that the evidence was insufficient to support the court's finding of guilt on the charge of assault of an employee of the department of correction. Specifically, the defendant argues that the state failed to prove beyond a reasonable doubt that he had the specific intent to prevent Hanney from performing his duty.¹ We are not persuaded.

The defendant failed to move for a judgment of acquittal at the conclusion of the state's case or before the case was submitted to the court or to move to set aside the finding of guilt and now seeks to prevail on appeal under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Golding review is not necessary to resolve the defendant's claim. See State v. Ashe, 74 Conn.App. 511, 514, 812 A.2d 194, cert. denied, 262 Conn. 949, 817 A.2d 108 (2003). "Unpreserved sufficiency claims are reviewable on appeal because such claims implicate a defendant's federal constitutional right not to be convicted of a crime upon insufficient proof. . . . Our Supreme Court has stated that Jackson v. Virginia, [443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)], compels the conclusion that any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of [Golding] . . . . Thus . . . there is no practical reason for engaging in a Golding analysis of a claim based on the sufficiency of the evidence. . . ." (Internal quotation marks omitted.) State v. Ashe, supra, at 514, 812 A.2d 194.

The standard of review for sufficiency of the evidence claims has been stated frequently and is well established. "In reviewing a sufficiency of the evidence claim, 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 [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a [trier's] factual inferences that support a guilty verdict need only be reasonable . . . .

"[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. . . . 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 [trier's] verdict of guilty. . . . 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." (Citations omitted; internal quotation marks omitted.) State v. Padua, 273 Conn. 138, 146-47, 869 A.2d 192 (2005).

"It is well established that the question of intent is purely a question of fact. . . . Intent may be, and usually is, inferred from the defendant's verbal or physical conduct. . . . Intent may also be inferred from the surrounding circumstances . . . . The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused's state of mind is rarely available. . . . Furthermore, it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct." (Citation omitted; internal quotation marks omitted.) State v. Porter, 76 Conn.App. 477, 487-88, 819 A.2d 909, cert. denied, 264 Conn. 910, 826 A.2d 181 (2003).

Pursuant to § 53a-167c(a), to prove assault of an employee of the department of correction, the state must prove beyond a reasonable doubt that the defendant "with intent to prevent a reasonably identifiable . . . employee of the Department of Correction . . . from performing his . . . duties, and while such . . . employee . . . is acting in the performance of his . . . duties, (1) such person causes physical injury to such . . . employee . . . ." General Statutes 53a-167c(a)(1). In the present case, the defendant contends that the evidence was not sufficient to prove that he had the specific intent to prevent Hanney from performing his duties. The defendant's claim appears to be that while the evidence may have been sufficient to permit the court to conclude that he intended to harm Hanney, it was not sufficient to permit the court to conclude that he intended to prevent Hanney from performing his duties.

The cumulative impact of the evidence in this case sufficiently enabled the court to conclude beyond a reasonable doubt that the defendant was guilty of assault of a department of correction employee. The evidence indicates that Hanney was in uniform at the time of the incident and that the defendant knew that he was a department of correction employee. The evidence further indicates that Hanney was carrying out his lawful duty in an orderly manner at the time the defendant became...