State v. Haight

• Decision Date: 29 March 2005
• Docket Number: No. 24335.,24335.
• Citation: 869 A.2d 251,88 Conn. App. 235
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Andrew C. HAIGHT.

869 A.2d 251

88 Conn.App. 235

STATE of Connecticut v. Andrew C. HAIGHT.

No. 24335.

Appellate Court of Connecticut.

Argued October 26, 2004.

Decided March 29, 2005.

Brenden P. Leydon, with whom, on the brief, was Mark D. Phillips, Stamford, for the appellant (defendant).

Sarah Hanna, special deputy assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Robert G. Hall, Jr., supervisory assistant state's attorney, for the appellee (state).

FOTI, WEST and McDONALD, Js.

FOTI, J.

The defendant, Andrew C. Haight, appeals from the judgment of conviction, rendered after the trial court accepted his conditional plea of nolo contendere,¹ of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. The court accepted the defendant's plea after it denied his motion to dismiss.² On appeal, the defendant claims that the court improperly denied his motion to dismiss because there was insufficient evidence to sustain the charge. We agree and reverse the judgment of the trial court.

The record reflects that the court held an evidentiary hearing on the defendant's motion to dismiss and denied the motion orally at the conclusion of the hearing. The court subsequently filed a memorandum of decision encompassing its ruling, which included the following facts.³ At or around 12:30 a.m. on October 20, 2001, Kevin J. Dowling, a New Canaan police officer, was driving along Elm Street when he observed the defendant's Lexus RX300 parked in a parking space with its headlamps illuminated. He did not observe anyone in or around the motor vehicle and drove around the block. Dowling returned to the vehicle and observed the defendant inside of the vehicle, asleep. Dowling looked inside the vehicle and saw that the keys were in the ignition in the off position. The vehicle was not running. Dowling attempted to rouse the defendant, to no avail. Dowling then opened the driver's door and a warning chime in the vehicle sounded, indicating that the keys were in the ignition and that the door was open. The defendant was placed under arrest and subsequently submitted to breath tests, which he failed.⁴

In its memorandum of decision, the court stated that "[i]t is for the trier of facts, with all the relevant testimony and evidence, to determine if there was `operation' with the insertion of the car key and turning on of car lights which alone or in sequence would set the car in motion." The court concluded that the evidence was sufficient to sustain the charge and denied the motion to dismiss. On appeal, the defendant claims that the court improperly denied the motion because the state did not establish a prima facie case. Specifically, the defendant posits that the fact that the key was in the vehicle's ignition, in the off position, absent other circumstances, is insufficient to demonstrate operation for purposes of § 14-227a.

We begin our discussion by addressing the propriety of the court's action on the defendant's motion to dismiss for insufficient evidence prior to trial. We note that the state did not object to the evidentiary hearing; in fact, it participated in the hearing.⁵ "Dismissal under [General Statutes] § 54-56 for insufficient cause to justify the prosecution requires the court explicitly to weigh all the competing factors and considerations of fundamental fairness to both sides — the defendant, the state and society, and presumably the victim.... This difficult and delicate process necessarily involves a careful consideration by the court of such factors as the strength of the state's case, the likelihood of conviction, the severity of the crime, its effect on the victim, the strength of the defendant's defense, the defendant's personal situation, and all the other myriad factors that underlie a judgment regarding fundamental fairness." (Citation omitted.) State v. Dills, 19 Conn.App. 495, 503-504, 563 A.2d 733 (1989).

The evidentiary insufficiency prong of § 54-56 does not apply when probable cause has been found by the issuance of a warrant, in which case a trial first must transpire. Id., at 503, 563 A.2d 733. Pursuant to § 54-56, a court, on motion by the defendant, may dismiss pending criminal charges if "there is not sufficient evidence or cause to justify" the continued prosecution. See State v. Kinchen, 243 Conn. 690, 701, 707 A.2d 1255 (1998). Practice Book § 41-8(5) provides that in criminal matters, a motion to dismiss is the proper vehicle to make a claim of insufficiency of the evidence. The denial of such a motion may form the basis of an appeal following a judgment of conviction rendered after a conditional plea of nolo contendere. See State v. Vickers, 260 Conn. 219, 221, 796 A.2d 502 (2002); State v. Wiggs, 60 Conn.App. 551, 552, 760 A.2d 148 (2000). In the present case, the defendant was not arrested pursuant to a warrant.

The sole issue to be decided on appeal is whether the court properly denied the defendant's motion to dismiss in light of the evidence presented. Our review of the court's ultimate legal conclusion and resulting denial of the motion to dismiss is de novo. Pitchell v. Hartford, 247 Conn. 422, 429, 722 A.2d 797 (1999).

"The definition of operation of a motor vehicle is well established. One need not drive a vehicle to operate it.... Operation occurs when a person in the vehicle intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle." (Internal quotation marks omitted.) State v. Gordon, 84 Conn.App. 519, 527, 854 A.2d 74, cert. denied, 271 Conn. 941, 861 A.2d 516 (2004). Engaging a motor vehicle's ignition affects or could affect the vehicle's movement and may be sufficient to constitute operation. See State v. Ducatt, 22 Conn.App. 88, 93, 575 A.2d 708, cert. denied, 217 Conn. 804, 584 A.2d 472 (1990). We conclude, however, that the state did not factually support its allegation of operation by presenting evidence that a key was in the motor vehicle's ignition, while such key was neither in the "on" nor "start" positions of the ignition,⁶ even when the motor vehicle's headlamps were illuminated.

The defendant in State v. DeCoster, 147 Conn. 502, 162 A.2d 704 (1960), was convicted of operating a motor vehicle while intoxicated. In DeCoster, the evidence supported a finding that a police officer found the defendant, who was intoxicated, slumped over the steering wheel of his motor vehicle. Id., at 504, 162 A.2d 704. The vehicle's key was in the ignition, but the ignition was in the off position. Id. The two right tires on the motor vehicle were flat, and the vehicle exhibited body damage on its right side. Id. Four traffic signs close to where the motor vehicle was stopped had been knocked down. Id.

In reversing in part the conviction on the ground of insufficient evidence, our Supreme Court in DeCoster concluded that the state had failed to demonstrate the critical nexus between intoxication and operation; that is, the state failed to demonstrate how much time had transpired between the moment the defendant last operated his motor vehicle and the moment he was discovered sitting in the motor vehicle. Id., at 505, 162 A.2d 704. The court noted that although the evidence supported an inference that the defendant's motor vehicle had struck the signs along the nearby intersection, there were no witnesses who had observed the defendant operating the motor vehicle and no evidence to show how long it had been stationary. Id., at 504, 162 A.2d 704.

As in DeCoster, there is no evidence in the present case demonstrating when the defendant operated his motor vehicle in relation to his intoxication. The evidence does not demonstrate that the defendant was operating his motor vehicle when Dowling discovered him. Apart from evidence concerning the defendant's physical condition and position in the vehicle, there is only evidence of a key in the motor vehicle's ignition and the motor vehicle's headlamps having been turned on. Taken individually or together, this evidence is not sufficient to demonstrate that the defendant had engaged the mechanical or electrical equipment of his motor vehicle so as to activate the motive power of the vehicle. In the present case, the evidence of operation as required by § 14-227a is lacking.⁷ The judgment is reversed and the case is remanded with direction to grant the defendant's motion to dismiss and to render judgment thereon.

In this opinion WEST, J., concurred.

McDONALD, J., dissenting.

I disagree that the denial of the motion to dismiss should be reversed.

In granting a motion dismiss for insufficient evidence, the trial court must find that the entire case that the state could present fails to support a reasonable finding that General Statutes § 14-227a has been violated. Cf. State v. Morrill, 193 Conn. 602, 611, 478 A.2d 994 (1984). In so doing, the court must consider the evidence in the light most favorable to the state. State v. Kinchen, 243 Conn. 690, 702, 707 A.2d 1255 (1998).

At the hearing, the defendant called as witnesses the arresting police officer and a Lexus automobile mechanic. On the issue of whether the officer's testimony would constitute the state's entire case, the state did not make such a concession, and the officer's testimony that he did not know of any other police reports was not the required conclusive evidence. See State v. Bellamy, 4 Conn.App. 520, 528, 495 A.2d 724 (1985). The mechanic's testimony did not concern this issue. The mechanic presented the defendant's case, explaining the operation of an ignition switch over the state's objection.

Moreover, our Supreme Court has stated that the question of whether a vehicle was being operated is one of fact to be determined under the particular facts of the case. Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 344, 757 A.2d 561 (2000). In Murphy, our Supreme Court...