State v. Moreno-Hernandez
| Decision Date | 30 June 2015 |
| Docket Number | No. 18919.,18919. |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Jose MORENO–HERNANDEZ. |
317 Conn. 292
118 A.3d 26
STATE of Connecticut
v.
Jose MORENO–HERNANDEZ.
No. 18919.
Supreme Court of Connecticut.
Argued March 17, 2015.
Decided June 30, 2015.
Richard E. Condon, Jr., senior assistant public defender, for the appellant (defendant).
Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Stacey Haupt Miranda, senior assistant state's attorney, for the appellee (state).
ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.
Opinion
ZARELLA, J.
The present appeal requires us to define the scope of liability under our criminal attempt statute, General Statutes § 53a–49. Section 53a–49 (a) makes it a crime for an individual, acting with the intent required for the commission of the predicate crime, to intentionally engage in conduct that would constitute the crime if the attendant circumstances were as he believed them to be; General Statutes § 53a–49 (a)(1) (attendant circumstances subdivision); or to intentionally take a substantial step in a course of conduct planned to culminate in the commission of the crime. General Statutes § 53a–49 (a)(2) (substantial step subdivision). In the present case, the defendant, Jose Moreno–Hernandez, was charged with, inter alia, attempt to commit murder under only the attendant circumstances subdivision, and a jury found him guilty as charged. On appeal, the defendant claims that the trial court incorrectly denied his motion for a judgment of acquittal because the state failed to prove beyond a reasonable doubt that he had attempted to commit murder under the attendant circumstances subdivision. The defendant concedes that the jury would have found him guilty under the substantial step subdivision if he had been charged under that subdivision but claims that the attendant circumstances subdivision is simply inapplicable in the present case. We disagree and, accordingly, affirm the judgment of the trial court.
The jury reasonably could have found the following facts. In the early morning hours of March 27, 2009, the victim1 finished her shift at the Temple Grill, a restaurant
in the city of New Haven, where she worked as a waitress. As she was leaving, the defendant, who worked at the restaurant as a dishwasher, asked her for a ride home, and the victim agreed. The defendant gave the victim directions to where he lived, but, after forty-five minutes of driving, the victim was lost and they still had not yet arrived at the defendant's home. The victim eventually pulled over, apologized, and asked the defendant to get out of her car. At that point, the
defendant began making sexual advances toward the victim, and, when she resisted, he struck her in the face. The defendant repeatedly sexually assaulted the victim inside the car and physically assaulted her when she resisted. The victim attempted to call 911 and escape multiple times, but the defendant stopped her each time.
After assaulting the victim inside her car, the defendant drove the car to a public park and forced the victim to a remote area in the woods. There, the defendant continued to sexually and physically assault the victim. At a certain point, the defendant told the victim that he was going to kill her, and he struck her with his fist and a tree branch, kicked her with his boots, and twisted her head and neck. The victim stopped reacting to the defendant's blows in an attempt to lead him to believe that she was dead. Finally, after the defendant stopped striking the victim and left, she ran from the park to a nearby house and called the police. The police apprehended the defendant within hours, and he confessed to physically and sexually assaulting the victim. The defendant told police that he had tried to kill the victim because he thought she would report the sexual assault and that, when he left the park, he thought that he had killed her.
The defendant was charged with five counts of first degree sexual assault in violation of General Statutes § 53a–70 (a)(1), one count of first degree kidnapping
in violation of General Statutes § 53a–92 (a)(2)(A), one count of first degree assault in violation of General Statutes § 53a–59 (a)(1), and one count of attempt to commit murder in violation of General Statutes §§ 53a–54a (a) and 53a–49 (a)(1). While the state was proceeding with its case against the defendant, the trial court held a charging conference with the parties at which it raised sua sponte the question of whether the state had presented sufficient evidence to permit a reasonable jury to find the defendant guilty of attempt to commit murder in light of the fact that the defendant was charged under the attendant circumstances subdivision and not the substantial step subdivision, as is far more common. That same day, the state moved to amend the long form information pursuant to Practice Book § 36–18 to charge the defendant with attempt to commit murder in violation of the substantial step subdivision instead of the attendant circumstances subdivision. The trial court denied the state's motion, reasoning that the state should not be allowed to amend the long form information when it would not have been aware of the potential deficiency if the court had not raised the issue sua sponte.
When the state rested its case, the defense rested without presenting any evidence and moved for a judgment of acquittal with respect to the attempt to commit murder charge, which the trial court denied. With respect to that charge, the trial court instructed the jury only on the attendant circumstances subdivision. The jury found the defendant guilty on all counts, and the trial court sentenced the defendant to a total effective term of eighty years incarceration. At the sentencing hearing, the trial court also denied the defendant's post-conviction motion for a new trial with respect to the sexual assault, assault, and kidnapping charges, and his motion for judgment of acquittal notwithstanding the
verdict with respect to the attempted murder charge. This appeal followed.
On appeal, the defendant claims that the attendant circumstances subdivision applies only to situations in which it is impossible for an individual to commit the intended
crime due to a mistake of fact.2 That was not the situation in the present case, according to the defendant, because he could have killed the victim; his actions simply fell short of causing her death. In making this argument, the defendant relies primarily on our decisions in State v. Gonzalez, 222 Conn. 718, 609 A.2d 1003 (1992), and State v. Cox, 293 Conn. 234, 977 A.2d 614 (2009), in which we interpreted the differences between the attendant circumstances and substantial step subdivisions as “significant.” Id., at 241, 977 A.2d 614.
The state concedes that, were we to interpret the attendant circumstances subdivision as requiring evidence of impossibility, then a reasonable jury could not have found the defendant guilty under that subdivision. The state claims, however, that the attendant circumstances subdivision is not limited only to impossibility situations, but also is satisfied when an individual would have completed the intended crime but for certain intervening circumstances. Applying this interpretation to the present case, the state argues that it presented sufficient evidence to prove the defendant's guilt beyond a reasonable doubt because the defendant believed that he had done all that was necessary to kill the victim but did not actually do so because of an intervening circumstance, namely, that the victim pretended
to be dead.3 In making this argument, the state relies on the concurring opinion in Gonzalez, as well as our decision in State v. Green, 194 Conn. 258, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S.Ct. 964, 83 L.Ed.2d 969 (1985), both of which indicated that certain conduct can satisfy both the attendant circumstances and substantial step subdivisions. See State v. Gonzalez, supra, 222 Conn. at 729–30, 609 A.2d 1003 (Peters, C.J., concurring in the judgment); State v. Green, supra, at 275, 480 A.2d 526.
We conclude that the attendant circumstances subdivision is not limited only to impossibility situations and that, in the present case, the state presented sufficient evidence to permit a reasonable jury to find the defendant guilty of attempt to commit murder under the attendant circumstances subdivision.4 Accordingly, we affirm the judgment of the trial court.
“In reviewing a sufficiency of the evidence claim, we 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
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