State v. Jones

• Decision Date: 10 May 1977
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Scott JONES.

Page 1077

376 A.2d 1077

173 Conn. 91

STATE of Connecticut v. Scott JONES.

Supreme Court of Connecticut.

Argued March 3, 1977.

Decided May 10, 1977.

Michael J. Sullivan, Sp. Public Defender, for appellant (defendant).

Ernest J. Diette, Jr., Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and Edward J. Mullarkey, Asst. State's Atty., for appellee (state).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JJ.

LONGO, Associate Justice.

The defendant was convicted by a jury of the crime of attempted robbery in the first degree while armed with a dangerous instrument, namely, a hockey stick, in violation of § 53a-49 ¹ and § 53a-134(a) ² of the General Statutes. He was sentenced to the minimum mandatory term of not less than five nor more than ten years, and has appealed from the judgment rendered on the verdict, assigning as error portions of the court's charge to the jury and the denial of his motions to dismiss and to set aside the verdict.

During the trial, the defendant, after the state had rested, moved for dismissal of the information. The court denied the motion and the defendant has assigned the denial as error. A motion to dismiss is not properly assignable as error. State v. Beauton, 170 Conn. 234, 237, 365 A.2d 1105; State v. L'Heureux, 166 Conn. 312, 324, 348 A.2d 578; State v. Peay, 165 Conn. 374, 375, 335 A.2d 296; Maltbie, Conn.App.Proc. § 212. As admitted by the state, however, the defendant's motion for a directed verdict, which was properly filed and argued at the conclusion of the evidence, raised the same basic issue as did the motion to dismiss, namely, that there was insufficient evidence to justify the finding of guilt beyond a reasonable doubt of the crime charged.

At the trial there was evidence from which the jury could reasonably have found that on April 24, 1974, three youths, Laverne Kelley, the defendant Scott Jones and his brother Leroy Jones, entered a furniture store on Congress Avenue in New Haven. One of the youths was carrying what appeared to be a portion of a hockey stick. The seventy-two-year-old owner of the store, William Handleman, was asked for a screwdriver, and when he turned to walk to the area where they were located, he was grabbed from behind by one of the three, later identified as the defendant, and while he was being held, a second youth attempted to go through his pockets. The store owner cried out for help; his eyes were closed; he was hit with the stick above the knee and felt a sting, but he was not injured; he was thrown to the ground and he did not feel threatened or concerned because one of the three youths was carrying a portion of a hockey stick.

The defendant was identified by a nearby storeowner who had seen the defendant and two others near the victim's store shortly before the incident. Further, one of the accomplices, Kelley, admitted his participation in the attempted robbery and testified at the trial that the defendant first grabbed Handleman and afterwards threw him down to the floor when he, Kelley, was unable to get into Handleman's pockets. The three youths ran out of the store and were apprehended a short time later by the police. At the trial the defendant denied that he participated in the attempted robbery.

The defendant's assignment of error to the denial of his motion for a directed verdict is essentially an attack on the sufficiency of the evidence to sustain his conviction. As we recently stated: "This court's task in reviewing the sufficiency of the evidence to sustain the verdict of a jury is to construe the evidence as favorably as possible with a view toward sustaining the verdict and then to decide whether the verdict is one which jurors acting reasonably could have reached. State v. Brown, 169 Conn. 692, 364 A.2d 186; State v. Wright, 169 Conn. 256, 257, 362 A.2d 983." State v. Jeustiniano, 172 Conn. 275, 281, 374 A.2d 209. Clearly the evidence recited above was sufficient to sustain the jury in finding that the defendant was a participant in the attempted robbery and that he was carrying a hockey stock. The defendant's principal claim is directed at the issue whether the evidence was sufficient to support a conviction for attempted first degree robbery rather than for some lesser crime. This issue is raised by the defendant's claims that he did not cause "serious physical injury to any person who (was) not a participant in the crime," and that he was not "armed with a deadly weapon or dangerous instrument," as required by General Statutes § 53a-134. The state does not contend that serious physical injury was inflicted on anyone or that the defendant was armed with a deadly weapon, but it does argue that the evidence was sufficient to establish that the portion of a hockey stick was a dangerous instrument and that it was used in the commission of the crime. A dangerous instrument is defined by General Statutes § 53a-3(7) as "any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury . . . ." There was testimony by the victim that he was struck above the knee by the stick. The victim conceded that he did not feel threatened by the presence of the stick during the incident and that he...