State v. Mention, 5153

• Citation: 12 Conn.App. 258,530 A.2d 645
• Decision Date: 09 October 1987
• Docket Number: No. 5153,5153
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. George MENTION.

Page 645

530 A.2d 645

12 Conn.App. 258

STATE of Connecticut v. George MENTION.

No. 5153.

Appellate Court of Connecticut.

Argued June 2, 1987.

Decided Sept. 8, 1987.

Certification Denied Oct. 9, 1987.

Mark Rademacher, New Haven, for appellant (defendant).

Geoffrey Marion, Deputy Asst. State's Atty., with whom, on brief, were James G. Clark and Juliett Crawford, Asst. State's Attys., for appellee (state).

Before DUPONT, C.J., and HULL and SPALLONE, JJ.

HULL, Judge.

After a trial to the court, the defendant was found guilty of creating a public disturbance in violation of General Statutes § 53a-181a ¹ and simple trespass in violation of General Statutes § 53a-110a. ² The defendant appeals from the judgment, raising five claims of error: (1) that the trial court erred in failing to grant the defendant a trial by jury on both the simple trespass charge and the charge of creating a public disturbance; (2) that the trial court erred in finding the defendant guilty of simple trespass because the statute is unconstitutionally vague and overbroad; (3) that the defendant's conduct and speech were constitutionally protected; (4) and (5) that there was insufficient evidence to find the defendant guilty of either simple trespass or creating a public disturbance.

The underlying facts are not in dispute. The defendant was standing with his friends in a busy passageway of the food court in the Chapel Square Mall in New Haven. The defendant was asked by a private security guard, employed by the mall, to move along. In response, the defendant verbally attacked the security guard using vile language. He assumed a posture appropriate for a search and arrest and challenged the security guard to arrest him. The director of security testified that the confrontation between the defendant and the security guard was loud enough to attract his attention from some distance. The director of security also asked the defendant to move along. The defendant responded by verbally attacking the director of security and challenging the director to arrest him. The security guard and the director of security testified that a crowd gathered as a result of the defendant's conduct. The state presented evidence that the defendant had not purchased anything while in the mall. There was no evidence presented, however, that the defendant entered the mall with the intent to trespass or knowledge that he was trespassing.

The defendant's claims logically fall into two distinct categories: those which address the charge of simple trespass and those which address the charge of creating a public disturbance.

I

The defendant raises three claims of error relating to his conviction for simple trespass: (1) that the Connecticut constitution requires a trial by jury for the crime of simple trespass; (2) that the simple trespass statute, General Statutes § 53a-110a, is repugnant to the state and federal constitutions because it is vague and overbroad; and (3) that there was insufficient evidence for the trial court to find the defendant guilty of simple trespass. ³ In light of our determination on the issue of the sufficiency of evidence, we consider this claim first.

General Statutes § 53a-110a provides in part: "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." (Emphasis added.) The language of General Statutes § 53a-110a does not create a strict liability crime. The statute requires knowledge on the part of the accused that he is entering without license or privilege.

The defendant in this case was a business invitee. Corcoran v. Jacovino, 161 Conn. 462, 465, 290 A.2d 225 (1971). A business invitee is not required to make a purchase. The mere possibility that he will make a purchase in the future is sufficient to confer the status of business invitee. Corcoran v. Jacovino, supra; Restatement (Second), Torts § 332, comment (3)(f). In the absence of evidence that the defendant knowingly entered as a trespasser there can be no trespass unless the possessor revoked the status of business invitee.

General Statutes § 53a-110a does not provide for revocation of the status of business invitee. The simple trespass statute differs from criminal trespass in the first degree in precisely this respect. General Statutes § 53a-107(a)(1), the criminal trespass statute, provides that a trespass occurs "after an order to leave or not to enter [is] personally communicated to such person by the owner of the premises or other authorized person." See State v. Martin, 35 Conn.Sup. 555, 398 A.2d 1197 (1978). Since the defendant was charged with simple trespass, and not with criminal trespass, the state bore the burden of proving that the defendant entered as a knowing trespasser. There must be at least indirect evidence presented on an element of a crime for the finder of fact to determine guilt. State v. Tucker, 181 Conn. 406, 419, 435 A.2d 986 (1980). The record discloses that no evidence was presented at trial that the defendant entered the Chapel Square Mall as a knowing trespasser.

"[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt 'does not require a court to "ask itself whether it believes that the evidence ... established guilt beyond a reasonable doubt." ' (Emphasis in original.) (Citation omitted.) Jackson v. Virginia, [443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979) ]. 'Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S. [356, 362, 92 S.Ct. 1620, 1624-25, 32 L.Ed.2d 152 (1972) ]. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon [the trier's] discretion only to the extent necessary to guarantee the fundamental protection of due process of law.' (Emphasis in original.) Jackson v. Virginia, supra, [443 U.S. at] 319 ." State v. Scielzo, 190 Conn. 191, 197-98, 460 A.2d 951 (1983). The state's failure to present any evidence on the knowing element of the simple trespass statute requires us to find the trial court's judgment on this count clearly erroneous. Absent sufficient evidence for a finding of guilt on the charge of simple trespass, we are precluded from reaching the defendant's constitutional claims. Whether General Statutes § 53a-110a is unconstitutionally vague and whether it requires a jury trial cannot be tested in the abstract. Moscone v. Manson, 185 Conn. 124, 134, 440 A.2d 848 (1981). " '[C]onstitutional issues are not considered unless absolutely necessary to the decision of a case.' " State v. Onofrio, 179 Conn. 23, 37-38, 425 A.2d 560 (1979), quoting State v. DellaCamera, 166 Conn. 557, 560-61, 353 A.2d 750 (1974).

II

The defendant raises three claims of error relating to his conviction for creating a public disturbance: (1) that the state constitution requires a trial by jury for creating a public disturbance; (2) that words and conduct for which the defendant was convicted are protected speech under the state and federal constitutions; and (3) that there was insufficient evidence to find the defendant guilty of creating a public disturbance.

The defendant's first claim of error is that the trial court erred in denying him a jury trial on the charge of creating a public disturbance in violation of General Statutes § 53a-181a. The defendant contends that because he was charged by an information he is entitled to a jury trial. We disagree. This precise issue was addressed in State v. Weisser, 9 Conn.App. 255, 518 A.2d 655 (1986), cert. denied, 202 Conn. 803, 519 A.2d 1207 (1987). In Weisser, we noted that the origins of General Statutes § 53a-181a are in the disorderly conduct statute, General Statutes § 53a-182. We concluded that the precedent concerning a jury trial for disorderly conduct therefore controlled our analysis of whether a defendant is entitled to a trial by jury for violating General Statutes § 53a-181a. We held in Weisser, as we do today, that a violation of General Statutes § 53a-181a does not give rise to a right to be tried by a jury.

The defendant's second claim of error is that his speech and conduct at the time of his arrest were protected under the Connecticut and United States constitutions. We disagree.

General Statutes § 53a-181a(a)(2) provides: "A person is guilty of creating a public disturbance when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof ... he (2) annoys or interferes with another person by offensive conduct." The trial court heard evidence that the defendant and his friends were asked by a security guard to move along because they were in the main passageway of the food court in the Chapel Square Mall. All members of the group acquiesced except the defendant.

According to the record, the defendant refused to move and responded "Go ahead, arrest me." The defendant then spread his arms and legs and leaned against a counter. The defendant began verbally attacking the security guard in a loud voice, saying "Go ahead. Arrest me. You fucking crazy. You can't fucking arrest me. Go ahead. Try it." The defendant's outburst was sufficiently loud to attract the attention of the mall's security director. The security director also asked the defendant to move along. In response, the defendant told the security...