State v. Iovieno

• Decision Date: 14 June 1988
• Docket Number: No. 4862,4862
• Citation: 14 Conn.App. 710,543 A.2d 766
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Michael IOVIENO.

Page 766

543 A.2d 766

14 Conn.App. 710

STATE of Connecticut v. Michael IOVIENO.

No. 4862.

Appellate Court of Connecticut.

Argued Nov. 17, 1987.

Decided June 14, 1988.

Kent Drager, Asst. Public Defender, with whom, on the brief, was Joette Katz, Public Defender, for appellant (defendant).

Leah Hawley, Deputy Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and Susan C. Marks, Deputy Asst. State's Atty., for appellee (State).

Before DUPONT, C.J., and DALY and NORCOTT, JJ.

DALY, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of three counts of burglary in the second degree in violation of General Statutes § 53a-102(a), one count of unlawful restraint in the first degree in violation of General Statutes § 53a-95(a), and one count of sexual assault in the first degree in violation of General Statutes § 53a-70(a). ¹ He claims that the trial court erred (1) in determining that there was sufficient evidence to support the convictions, (2) in granting the state's motion for joinder of the three cases and denying the defendant's motion for severance, (3) in its instructions concerning the elements of burglary in the second degree, (4) in permitting the prosecutor to comment on the defendant's failure to testify in his closing argument, and (5) in its instructions concerning the state's burden of proof. We find error in part.

Three of the counts against the defendant, burglary in the second degree, unlawful restraint, and sexual assault in the first degree, all stem from an incident involving a residence on Rock Road, North Haven. The count of burglary in the second degree with intent to commit the crime of sexual assault therein involves a residence on Putnam Avenue in Hamden, and the remaining count of burglary in the second degree involves a residence on Dixwell Avenue in Hamden.

I

The defendant's first claim of error is that there was insufficient evidence to support his conviction. The issue of sufficiency of evidence and its appropriate standard of review has been analyzed countless times by both this court and our Supreme Court. An excellent summation of the issue of sufficiency was collated and reported in State v. Little, 194 Conn. 665, 485 A.2d 913 (1984). In Little, the court stated: "In determining whether the evidence is sufficient to sustain a verdict, we have said that ' "the issue is whether the jury could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.... [T]he evidence presented at trial must be given a construction most favorable to sustaining the jury's verdict." ' State v. Giguere, 184 Conn. 400, 402-403, 439 A.2d 1040 (1981); see Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560, reh. denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State v. Kish, 186 Conn. 757, 767, 443 A.2d 1274 (1982). 'Each essential element of the crime charged must be established by proof beyond a reasonable doubt'; State v. Stankowski, 184 Conn. 121, 126, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S.Ct. 596, 70 L.Ed.2d 588 (1981); and ' "although it is within the province of the jury to draw reasonable logical inferences from the facts proven, they may not resort to speculation and conjecture." ' State v. Gaynor, 182 Conn. 501, 503, 438 A.2d 749 (1980)." State v. Gabriel, 192 Conn. 405, 421-22, 473 A.2d 300 (1984). " ' " 'A conclusion of guilt requires proof beyond a reasonable doubt, and proof to that extent is proof which precludes every reasonable hypothesis except that which it tends to support, and is consistent with the defendant's guilt and inconsistent with any other rational conclusion.' State v. Foord, 142 Conn. 285, 295, 113 A.2d 591 [1955]; State v. Kelsey, 160 Conn. 551, 553, 274 A.2d 151 [1970]; State v. Reid, 154 Conn. 37, 40, 221 A.2d 258 [1966]; State v. Annunziato, 145 Conn. 124, 136, 139 A.2d 612 [1958]." State v. Mayell, [163 Conn. 419, 427-28, 311 A.2d 60 (1972) ].' State v. Payne, 186 Conn. 179, 184, 440 A.2d 280 (1982). ' "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." (Citations omitted.) State v. Foord, supra [142 Conn. at], 294-95 ; see State v. Payne, [supra].... "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.... '[A] mere "possible hypothesis" of innocence will not suffice.' " (Citations omitted.) State v. Englehart, 158 Conn. 117, 121-22, 256 A.2d 231 (1969).' State v. Morrill, 193 Conn. 602, 611, 478 A.2d 994 (1984); see State v. Foord, supra, [142 Conn. at], 295 ; State v. McDonough, 129 Conn. 483, 485, 29 A.2d 582 (1942). While proof of guilt must exclude every reasonable supposition of innocence, it need not exclude every possible supposition of innocence. State v. Englehart, supra [158 Conn. at], 121 ." State v. Little, supra, 194 Conn. at 671-72, 485 A.2d 913. We will consider the crimes at each of the three locations in chronological order and the facts which the jury could have found in support of its guilty verdicts.

A

At approximately 1 a.m. on November 13, 1984, a young woman had been dropped off after a date and walked to the front door of her house on Dixwell Avenue in Hamden. The young woman lived in a two-family house with her two sisters and their families. As she was ringing the doorbell, she heard an automobile put on its brakes rather hard and observed a man get out of the stopped car. She recalled that the car was an older model, red, with a red vinyl top. The driver subsequently identified by her as the defendant, was a male about five feet, ten inches tall, with brown hair, and a full beard and moustache. He appeared to be in his late twenties, and was wearing a white hat and a dungaree jacket. Fearing an encounter with the defendant, the woman fled to the rear of the house where she frantically knocked, cracking a window in the process, to get the attention of her sisters. Her sister admitted her and she went upstairs to her room where she saw the defendant return to his vehicle and drive away.

While the young woman was being admitted into the house by her sister, her brother-in-law went to the front door and unlocked it. After discovering that his sister-in-law had been allowed in, he turned to the front door and observed the defendant who had walked into the house. The defendant asked for Billy Anderson, a nephew of the occupants who no longer resided there although the name Anderson was listed on the mailbox. The defendant, who identified himself as Mike Johnson, went out to his car after being informed that Billy no longer lived there. ²

The defendant argues that there was no evidence concerning the necessary element of the defendant's "intent to commit a crime therein" as required for a conviction of burglary in the second degree under General Statutes § 53a-102(a). ³ We agree.

"Our Supreme Court has stated: 'Intent is a mental process, and absent an outright declaration of intent, must be proved through inferences drawn from the actions of an individual, i.e., by circumstantial evidence.' State v. Crump, 201 Conn. 489, 495, 518 A.2d 378 (1986). Furthermore, 'any inference drawn must be rational and founded upon the evidence.' State v. Williams, 202 Conn. 349, 355, 521 A.2d 150 (1987); see also B. Holden & J. Daly, Connecticut Evidence, § 66(c)." State v. D'Ambrosia, 14 Conn.App. 309, 321, 541 A.2d 880 (1988). In this case, there was no such circumstantial evidence available for the jury. In State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985), our Supreme Court stated that, in burglary cases, evidence of an attempt to make a forcible entry was sufficient evidence for the jury to infer an intent to commit the crime of theft therein. Similarly, in State v. Sinclair, 197 Conn. 574, 577-78, 500 A.2d 539 (1985), the court relied upon the defendant's "surreptitious entry" and his flight from apprehension to uphold the jury's inference beyond a reasonable doubt the defendant's similar intent.

In this case, there is no forcible entry, since the defendant simply walked through the unlocked front door. Indeed, the defendant's behavior, at the time of entry, did not indicate intent to commit a crime. Moreover, there was no evidence introduced about flight. The defendant, upon being told that Billy Anderson no longer lived there, walked out to his car. It is important to recognize that the state's theory of the crime is that the defendant intended to commit a sexual assault. The intent to commit a crime must occur when the defendant enters or remains unlawfully in a dwelling. Any intent that the defendant might have had to commit a crime appeared to have evaporated since the defendant did not pursue the young woman and he did not know whether she had been allowed in the house when he entered. Moreover, since he was visible to those in front of the house, and vice versa, his conduct did not support an inference to commit any crime therein. The evidence presented was therefore insufficient to support the defendant's conviction on one of the burglary counts.

B

On that same night, at approximately 1:20 a.m., Barbara Collins was in her Putnam Avenue apartment with her fifteen year old son, her ten year old daughter and her son's girlfriend. She heard a noise by the kitchen door and called to her son that someone was at the door. Seeing the doorknob move she headed for the kitchen telephone to call the police. At this point, the door was kicked open and a male, later identified as the defendant, burst into the apartment and lunged for Collins. He was attempting to push...