State v. Marsala, AC 40071

• Decision Date: 06 November 2018
• Docket Number: AC 40071
• Citation: 198 A.3d 669,186 Conn.App. 1
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Michael J. MARSALA

186 Conn.App. 1

198 A.3d 669

STATE of Connecticut

v.Michael J. MARSALA

AC 40071

Appellate Court of Connecticut.

Argued September 13, 2018

Officially released November 6, 2018

Laila M.G. Haswell, for the appellant (defendant).

Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Kevin D. Lawlor, state's attorney, Matthew R. Kalthoff, assistant state's attorney, Laurie N. Feldman, special deputy assistant state's attorney, and Brett R. Aiello, special deputy assistant state's attorney, for the appellee (state).

Alvord, Moll and Eveleigh, Js.

ALVORD, J.

The defendant, Michael J. Marsala, appeals from the judgment of conviction, rendered after a jury trial, of one count of criminal trespass in the first degree in violation of General Statutes § 53a-107(a)(1).¹ On appeal, the defendant claims that the trial court improperly declined to instruct the jury on the infraction of simple trespass, General Statutes § 53a-110a,² which the defendant claims is a lesser included offense of criminal trespass in the first degree. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The Centennial Connecticut Post Mall (mall) is located at 1201 Boston Post Road in Milford (mall property). Currently owned by Centennial Corporation (Centennial), the mall was previously owned by Westfield Corporation (Westfield). Westfield, and later Centennial, has employed Dan Kiley as the mall's general manager. The mall contracts with Professional Security Consultants for security services. Professional Security Consultants employs Thomas Arnone as security director at the mall, and Arnone reports directly to Kiley. Wilfred Castillo, also an employee of Professional Security Consultants, began working at the mall in November, 2014, and had received calls about the defendant on approximately ten to fifteen occasions prior to November 28, 2015. In each call, the defendant was described as a man carrying a red gas can and was present in one of the parking lots at the mall. In response to the calls, Castillo would find the defendant and tell him that panhandling is not allowed on mall property and that he would have to leave.

During the holiday season, from November through January, the mall hires Milford police officers to support the mall security staff and conduct traffic control at the mall's exterior entrances and exits. The mall pays the city of Milford, which pays the police officers' wages, to work what is described as a "private duty job." On November 27, 2015, Officer Joanna Salati of the Milford Police Department was working for the mall on a private duty job when she observed the defendant walking around on mall property with his gas can.³ She called for a security officer to come out and confirmed with security that the defendant was banned from the mall property. Salati told the defendant that he had been advised several times before that he was banned from the mall property, and she informed the defendant of the property's boundaries. Salati told the defendant that he would be arrested the next time he was found on mall property. Salati saw the defendant leave the mall property and reported the incident to the Milford Police Department, where a report of the incident was generated.

The next day, November 28, Salati was again working private duty at the mall when her partner, Detective Steve Noss, also of the Milford Police Department, told her that he had observed the defendant on mall property near Sears. Salati, who was working traffic enforcement at the intersection of Boston Post Road and Cedarhurst Road at the time, called for additional officers. She also told mall security to meet her in the Sears parking lot and began walking in that direction, where she observed the defendant approaching customers with his red gas can. The defendant walked away from Salati as she called his name. The defendant eventually stopped walking, Salati arrested him, and he was transported by other officers to the Milford Police Department. The defendant was charged in a long form information with one count of criminal trespass in the first degree in violation of § 53a-107(a)(1). The defendant elected a jury trial, and evidence was presented on September 14, 2016.

After the close of evidence on September 14, 2016, the court held a charge conference on the record. The court preliminarily discussed the defendant's request to charge the jury on the infraction of simple trespass as a lesser included offense to criminal trespass in the first degree. Defense counsel agreed to submit a revised proposed charge,⁴ and the court also indicated that it would afford the state an opportunity to brief its opposition to the defendant's request. The court stated its intention to decide the issue the following day.

The next morning, defense counsel submitted to the trial court a revised written request that the court charge the jury on the infraction of simple trespass as a lesser included offense to criminal trespass in the first degree. In the written request, defense counsel asked that the court give the following charge: "If you have unanimously found the defendant not guilty of the crime of criminal trespass in the first degree, you shall then consider the lesser offense of simple trespass. Do not consider the lesser offense until you have unanimously acquitted the defendant of the greater offense.

"A person is guilty of simple trespass when, knowing that he is not licensed or privileged to do so, he enters any premises without intent to harm any property. For you to find the defendant guilty of simple trespass, the state must prove the following elements beyond a reasonable doubt: first that he entered the premises. Premises is not defined in the law so it has the common meaning. The second element is that he entered knowing he was not licensed or privileged to do so. To be licensed or privileged the defendant must have either consent from the owner of the premises or other authorized person or have some other right to be on the premises. A person acts knowingly with respect to conduct when he is aware that his conduct is of such nature or such circumstances exist."

The state filed a memorandum in opposition to the defendant's request to charge as to the infraction of simple trespass, arguing that (1) the claim fails under the second prong of the Whistnant test⁵ and (2) an infraction should not be submitted to a jury as a lesser included offense of a crime.

The court heard oral argument on the defendant's request to charge after counsel gave closing arguments.⁶ The court then issued an oral decision denying the request to charge. The court began its discussion by noting the absence of appellate authority directly on point. With respect to the issue of whether the jury should be permitted to decide the facts of a case as it relates to an infraction, the court read State v. Steinmann , 20 Conn. App. 599, 607, 569 A.2d 557, cert. denied, 214 Conn. 806, 573 A.2d 319 (1990), in conjunction with State v. Mention , 12 Conn. App. 258, 261, 530 A.2d 645, cert. denied, 205 Conn. 809, 532 A.2d 78 (1987),⁷ as "leaning against an infraction being a lesser included offense." The court further found persuasive the state's argument that the infraction of simple trespass fails to satisfy the Whistnant test because it contains an added element, specifically that the defendant enter or remain on the premises "without intent to harm any property," which is not required for a conviction of criminal trespass in the first degree. See footnotes 1 and 2 of this opinion. The court then instructed the jury, and the jury retired for deliberations. The next day, the jury reached a verdict, finding the defendant guilty of criminal trespass in the first degree. On October 28, 2016, the defendant was sentenced to one year incarceration, execution suspended after four months, followed by two years conditional discharge. This appeal followed.

On appeal, the defendant claims that the court improperly declined to instruct the jury on the infraction of simple trespass as a lesser included offense of criminal trespass in the first degree. Specifically, he argues that the infraction of simple trespass satisfies all four prongs of the Whistnant test. The state responds that the trial court "correctly found that an infraction could not be treated as a lesser included offense of a crime." The state argues in the alternative that, even if certain infractions could be submitted to a jury as lesser included offenses of crimes, the infraction of "simple trespass contains an element that criminal trespass in the first degree does not—the lack of intent to harm property." Thus, the state argues that the trial court correctly found that the infraction of simple trespass fails to satisfy the second prong of Whistnant . Although we conclude that the defendant's claim fails the third and fourth prongs of Whistnant , we also briefly address the defendant's claim as to the second prong.⁸

We first set forth our standard of review. "It is well settled that [t]here is no fundamental constitutional right to a jury instruction on every lesser included offense.... [ State v. Whistnant , 179 Conn. 576, 583, 427 A.2d 414 (1980) ]. Rather, the right to such an instruction is purely a matter of our common law. A defendant is entitled to an instruction on a lesser [included] offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiates the lesser offense from the offense charged is sufficiently in...