State v. Nicholson, 22834.

• Decision Date: 20 August 2002
• Docket Number: No. 22834.,22834.
• Citation: 71 Conn.App. 585,803 A.2d 391
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Allan NICHOLSON.

803 A.2d 391

71 Conn.App. 585

STATE of Connecticut v. Allan NICHOLSON.

No. 22834.

Appellate Court of Connecticut.

Argued May 28, 2002.

Decided August 20, 2002.

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FOTI, DRANGINIS and HEALEY, Js.

Daniel J. Krisch, special public defender, with whom were Michael S. Taylor and, on the brief, Trenton C. Haas, legal intern, for the appellant (defendant).

John A. East III, assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Eva B. Lenczewski, assistant state's attorney, for the appellee (state).

FOTI, J.

The defendant, Allan Nicholson, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a)(3)¹ and of being a persistent serious felony offender in violation of General Statutes (Rev. to 1999) § 53a-40 (b).² On appeal, the defendant claims that (1) the evidence was insufficient to sustain his conviction, beyond a reasonable doubt, of robbery in the first degree, (2) the trial court abused its discretion when it permitted the state to amend the second part of the information charging him as a persistent serious felony offender and (3) he was deprived of his constitutional right to a speedy trial. On the basis of our resolution of the defendant's first claim, we reverse the judgment of the trial court in part, but affirm the judgment in all other respects.

The jury reasonably could have found the following relevant facts. Prior to the events underlying this appeal, the defendant was convicted of a felony, namely, robbery in the first degree. Upon his release from prison, the defendant supplemented his income from lawful employment by selling illegal drugs. On February 17, 1999, at about 4:30 p.m., the defendant, after drinking a quantity of vodka, entered a Kentucky Fried Chicken restaurant located in Waterbury. Upon entering, the defendant walked directly across the restaurant. He passed through a doorway that separated the kitchen area from the rest of the restaurant and entered the kitchen work area behind the cash registers. In doing so, he passed by Margaret Powell, the cashier working at the counter, and several customers.

The defendant approached Barry Southworth, an assistant manager, who was working behind the counter. With his left hand, the defendant grabbed Southworth's left arm and positioned himself so that his face was close to Southworth's. The defendant stated, "[O]pen the drawer, give me the money or I'm going to hurt you real bad." The defendant kept his right hand in the pocket of his sweatshirt, causing his pocket to protrude outward. By doing so, the defendant gave Southworth the impression that he may have possessed a knife, gun or other weapon in his pocket.

Southworth opened the cash register and removed some of the money contained therein, totaling less than one hundred dollars. The defendant grabbed the money with his left hand and stuck it into his sweatshirt pocket. The defendant then calmly exited the restaurant. In addition to Southworth and Powell, Angela Williams, another assistant restaurant manager, who had been working in a rear office, witnessed all or part of the incident by means of video cameras that relayed images to a monitor in her office. None of these witnesses ever observed a weapon in the defendant's possession.

After the defendant left the restaurant, Powell called the Waterbury police department to report the incident. Upon leaving the restaurant, the defendant went to the department of children and families (department) building, which is located about 100 yards from the restaurant. Williams and an acquaintance, who had been in the restaurant at that time, followed the defendant. Williams called to the defendant and told him, "Give me back my money." The defendant did not respond to Williams; he continued to run away from the restaurant. Williams observed the defendant enter the department building and converse with a woman therein. Shortly thereafter, Williams flagged down police officers who responded to the crime scene. On the basis of Williams' identification, officers apprehended the defendant as he exited the department building. Upon taking the defendant into custody, officers discovered that he had a razor knife or box cutter in his right sweatshirt pocket. The woman with whom the defendant had been conversing possessed a crumpled wad of cash in the amount of eighty-nine dollars.

At trial, the defendant testified that, about four days prior to the incident, he sold Southworth illegal drugs and that Southworth had not paid him for the drugs. He admitted that he asked Southworth for his money and that after Southworth had removed cash from the register, he "snatched" it from his hand. The defendant also testified that, after he had left the restaurant, he gave the money to his girlfriend, who was in the department building, and that he was unaware that Williams had been observing him. Additional facts will be set forth as necessary in the context of the defendant's claims.

I

The defendant first claims that the evidence presented was insufficient to support his conviction of robbery in the first degree under § 53a-134 (a)(3) because the state failed to prove beyond a reasonable doubt that he used or threatened the use of a dangerous instrument, to wit a box cutter razor,³ as required by the statute. We agree.⁴

"When reviewing a claim of insufficiency of evidence, our task is twofold: We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or jury could reasonably have concluded that the cumulative effect of the evidence established the defendant's guilt beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Lavigne, 57 Conn.App. 463, 468, 749 A.2d 83 (2000).

"It is well settled that in reviewing a defendant's challenge to a verdict based on insufficient evidence, we defer to the jury.... We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury's opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility. ... The scope of our factual inquiry on appeal is limited. This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict.... [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational tier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Young, 56 Conn.App. 831, 835-36, 746 A.2d 795, cert. denied, 235 Conn. 904, 753 A.2d 939 (2000).

"While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Bell, 68 Conn.App. 660, 665, 792 A.2d 891, cert. denied, 260 Conn. 921, 797 A.2d 518 (2002).

It is clear that the evidence was sufficient to prove beyond a reasonable doubt that the defendant committed a larceny at the time, date and place alleged, and that he threatened the use of immediate physical force on Southworth. The evidence, however, was not sufficient to demonstrate that the defendant threatened to inflict such immediate physical force by means of a dangerous instrument, that is, a box cutter razor, as alleged in the information pursuant to § 53a-134 (a)(3).

Section 53a-134 (a)(3) applies when a defendant "uses or threatens the use of a dangerous instrument." That section is unlike § 53a-134 (a)(4), which applies when a defendant "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 ...." The issue in this case is not whether the seized box cutter razor is a dangerous instrument, but whether the evidence showed that the defendant used or threatened to use it. It is not relevant to our inquiry whether the defendant was actually armed during the crime, as it is possible to be armed, or in possession of a dangerous instrument such as the box cutter razor, without either using or threatening to use of that instrument. See State v. Dolphin, 203 Conn. 506, 518, 525 A.2d 509 (1987).

We interpret subdivision (3) of § 53a-134 (a) to require either the actual use of a dangerous instrument, or its threatened use, demonstrated by either an actual display or words combined with an overt display of the threatened instrument. A conviction pursuant to § 53a1-34 (a)(3) cannot stand if the evidence merely shows that the defendant was armed with a dangerous instrument, or that he gave the impression by his words or conduct that he was armed with a dangerous instrument. Viewed in the light most favorable to sustaining the verdict, the evidence adduced at trial demonstrated that the defendant kept his right hand in his pocket and said words to the effect of "give me the money or I'll hurt you real bad." The impression that the defendant gave that he had something in his right front pocket was insufficient...