State v. Moore

• Court: Connecticut Court of Appeals
• Writing for the Court: GRUENDEL
• Citation: State v. Moore, 141 Conn. App. 814, 64 A.3d 787 (Conn. App. 2013)
• Decision Date: 09 April 2013
• Docket Number: No. 33101.,33101.
• Parties: STATE of Connecticut v. Joseph MOORE.

141 Conn.App. 814

64 A.3d 787

STATE of Connecticut

v.Joseph MOORE.

No. 33101.

Appellate Court of Connecticut.

Argued Jan. 9, 2013.

Decided April 9, 2013.

Deborah G. Stevenson, special public defender, for the appellant (defendant).

Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, was Matthew C. Gedansky, state's attorney, for the appellee (state).

DiPENTIMA, C.J., and GRUENDEL and ALVORD, Js.

GRUENDEL, J.

Following a trial, a jury found the defendant, Joseph Moore, guilty of robbery in the first degree in violation of General Statutes § 53a–134 (a)(4) and commission of a class B felony with a firearm in violation of General Statutes § 53–202k. The defendant then stipulated, in response to a part B information, that the aforementioned offenses were committed while on release in violation of General Statutes § 53a–40b. The defendant also pleaded guilty to a second part B information charging him with being a persistent felony offender in violation of General Statutes § 53a–40 (f). The court rendered a judgment of conviction in accordance therewith, from which the defendant now appeals.

On appeal, the defendant claims that (1) the court improperly denied his motion for a judgment of acquittal because the evidence adduced at trial was insufficient to establish that he threatened the use of a firearm at the time of the robbery and (2) his sentence enhancement pursuant to § 53a–40 (f) runs afoul of the rule set forth in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 1 p.m. on July 13, 2009, the defendant entered the New Alliance Bank in Columbia wearing a white tank top and dark sweatpants. Branch manager Penny Ritchie and tellers Maria DePietro and Michelle LaLiberty, who were working at the bank that day, observed the defendant approach the check writer station. The defendant then asked another patron, David Woodward, where the withdrawal slips were located, at which point the defendant took a slip from the station and began to write on it. Photographs from the bank's security cameras introduced into evidence depict the defendant writing on a piece of paper at the check writer station and then approaching the teller station with the piece of paper in his hand.

The defendant approached Ritchie and handed her a deposit slip that read, “Give cash. I have gun.” When Ritchie explained that she was not a teller, the defendant ordered her to “ ‘[g]ive me the cash. Give it now.’ ” Ritchie then slid the deposit slip to DePietro, who unlocked her teller drawer. As she did, the defendant demanded, “ ‘[h]urry up, hurry up,’ ” and reached over the counter. DePietro then handed the defendant $3500 in cash.

The defendant immediately exited the bank and Woodward followed. As Ritchie locked the bank's doors and DiPietro called 911, LaLiberty closed the bank's drive-through window. As she did, she saw the defendant walking at the rear of the bank to a grassy strip between the drive-through lane and an adjacent firehouse. LaLiberty wrote down a description of the defendant at that time. Approximately six hours later, the Connecticut state police apprehended the defendant in a grassy area near Route 66 in Columbia. The defendant subsequently reviewed and executed a waiver of Miranda rights ¹ form and agreed to speak with Detective Derek Kasperowski. The defendant then admitted to robbing the bank and stated that he remembered “smoking crack before going into the bank, going to the bank teller and telling her to give him money.” Although no firearm was found on the defendant's person or the surrounding area, the $3500 in cash was recovered.

The defendant was arrested and charged, by substitute information, with robbery in the first degree in violation of § 53a–134 (a)(4) and commission of a class B felony with a firearm in violation of § 53–202k. The defendant also was charged, in separate part B informations, with committing those offenses while on release in violation of § 53a–40b and with being a persistent felony offender in violation of § 53a–40 (f). After a trial, the jury found the defendant guilty of both robbery in the first degree and the commission of a class B felony with a firearm. The court subsequently found, consistent with the written stipulation entered into by the defendant, that the defendant committed those offenses while on release in violation of § 53a–40b.² In addition, the defendant pleaded guilty to being a persistent felony offender in violation of § 53a–40 (f). The court sentenced the defendant to a total effective term of thirty-four years incarceration, and this appeal followed.

I

The defendant claims that the court improperly denied his motion for a judgment of acquittal because the evidence adduced at trial was insufficient to establishthat he threatened the use of a firearm during the commission of the robbery. We disagree.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... [A reviewing court] cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict.... [P]roof beyond a reasonable doubt does not mean proof beyond all possible doubt ... nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal.... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury's verdict of guilty.” (Internal quotation marks omitted.) State v. St. Cyr, 100 Conn.App. 189, 194–95, 917 A.2d 578, cert. denied, 282 Conn. 915, 924 A.2d 140 (2007).

To convict the defendant of robbery in the first degree, § 53a–134 (a)(4) required the state to prove beyond a reasonable doubt that the defendant, while “in the course of the commission of the crime of robbery ... displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm....” Similarly, § 53–202k required the state to prove that the defendant committed “any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm....” The defendant in this appeal does not contest the jury's finding that he committed the robbery in question. Rather, his sole claim is that the evidence does not support a finding that he represented by his words or conduct that he possessed a firearm during the course of that robbery.

Contrary to the defendant's contention, we conclude that a reasonable view of the evidence plainly exists that supports the jury's finding that the defendant threatened the use of a firearm while committing the robbery. Ritchie, DiPietro and LaLiberty all testified at trial that the defendant entered the bank, proceeded to the check writer station and wrote on a deposit slip, which he then handed to Ritchie. Security cameras at the bank produced photographs of the defendant engaging in that act, which were introduced into evidence. The deposit slip, which contained the handwritten message “Give cash. I have gun,” also was introduced into evidence. Ritchie, DiPietro and LaLiberty all verified in their testimony at trial that the deposit slip introduced into evidence was the same note that the defendant handed to Ritchie during the commission of the robbery. They further testified that because the defendant had indicated that he possessed a gun, they immediately complied with his demand in order to prevent him from shooting anyone. On that documentary and testimonial evidence, which the jury was free to credit; see State v. Wortham, 80 Conn.App. 635, 642, 836 A.2d 1231 (2003), cert. denied, 268 Conn. 901, 845 A.2d 406 (2004); the jury reasonably could conclude that the defendant threatened the use of a firearm when, through his words and conduct, he representedthat he possessed a firearm and demanded cash from bank employees.

The defendant nevertheless posits that “[a]s a matter of law, the defendant could not be convicted of robbery in the first degree, or of an enhanced sentence, when the state failed to prove that he was armed during the commission of the robbery.” He is mistaken. Under Connecticut law, the state is not required to prove that a defendant actually possessed a firearm to obtain a conviction under § 53a–134 (a)(4). Our appellate courts repeatedly have rejected that contention. See, e.g., State v. Dolphin, 195 Conn. 444, 449, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S.Ct. 103, 88 L.Ed.2d 84 (1985); State v. Moore, 100 Conn.App. 122, 132–33, 917 A.2d 564 (2007). As our Supreme Court held in State v. Hawthorne, 175 Conn. 569, 573, 402 A.2d 759 (1978), under § 53a–134 (a)(4), “a defendant need not have an operable firearm; in fact, he need not even have a gun. He need only represent by his words or conduct that he is so armed.” ³ (Emphasis in original.) Accord State v. Bradley, 39 Conn.App. 82, 93 n. 10, 663 A.2d 1100 (1995) ( “[a] conviction [under § 53a–134 (a)(4) ] can result whether [or not] the defendant possessed a gun”), cert. denied, 236 Conn. 901, 670 A.2d 322 (1996). The Supreme Court rejected a similar challenge to sentence enhancements pursuant to § 53–202k, noting that the state need not...