State v. Niemeyer, (SC 16232)

• Court: Supreme Court of Connecticut
• Writing for the Court: PALMER, J.
• Citation: 782 A.2d 658,258 Conn. 510
• Parties: STATE OF CONNECTICUT v. TONY NIEMEYER
• Docket Number: (SC 16232)
• Decision Date: 06 November 2001

258 Conn. 510
782 A.2d 658

STATE OF CONNECTICUT
v.
TONY NIEMEYER

(SC 16232)

Supreme Court of Connecticut.

Argued November 28, 2000.

Officially released November 6, 2001.

McDonald, C. J., and Borden, Katz, Palmer and Vertefeuille, JS.¹

258 Conn. 512

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were Mary M. Galvin, state's attorney, and Paul Gaetano, senior assistant state's attorney, for the appellant-appellee (state)

Pamela S. Nagy, special public defender, for the appellee-appellant (defendant).

Opinion

PALMER, J.

This certified appeal requires us to determine whether the Appellate Court properly concluded that the evidence was insufficient to support the conviction of the defendant, Tony Niemeyer, for kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and (C),² and, if not, whether the trial court's jury instructions on that offense were proper. A jury convicted the defendant of one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (3)³ and one count of kidnapping in the first

258 Conn. 513

degree. After the trial court rendered judgment in accordance with the jury verdict,⁴ the defendant appealed to the Appellate Court, which affirmed the defendant's assault conviction but reversed his kidnapping conviction on the ground of insufficient evidence.⁵ State v. Niemeyer, 55 Conn. App. 447, 460, 740 A.2d 416 (1999). We granted the state's petition for certification limited to the following issue: "Did the Appellate Court properly conclude that there was insufficient evidence to support a conviction for kidnapping in violation of ... § 53a-92 (a) (2) (A) and (C)?" State v. Niemeyer, 252 Conn. 916, 747 A.2d 517 (1999). We also granted the defendant's petition for certification on the following issue: "If the [Appellate Court improperly concluded that there was insufficient evidence to support the defendant's conviction for kidnapping in the first degree], should the trial court have given a specific unanimity charge when the defendant was charged under both... [subparagraphs (A) and (C) of] § 53a-92 (a) (2)... and the state argued that different evidence satisfied

258 Conn. 514

the different subparagraphs?" State v. Niemeyer, 252 Conn. 917, 744 A.2d 437 (1999). We conclude that, contrary to the determination of the Appellate Court, the evidence was sufficient to support the defendant's kidnapping conviction. We also conclude that the defendant is not entitled to a new trial notwithstanding the trial court's failure to give the unanimity charge. Accordingly, we reverse the judgment of the Appellate Court in part and remand the case to that court with direction to affirm the trial court's judgment as to the defendant's conviction of kidnapping in the first degree.⁶

The opinion of the Appellate Court sets forth the following facts that the jury reasonably could have found. "The defendant shared an apartment in Derby with [the victim], Dawn Siok, and her three children.⁷ On February 9, 1996, the defendant left the apartment to go to work on the 3:30 to 11 p.m. shift at Synthetic Products in Stratford. At approximately 11 p.m., [the victim] observed two individuals, known to her as Wayne and Joel,⁸ in her backyard. She invited them in and offered them ... beer. The three then smoked a marijuana cigarette, and Joel left soon after. Shortly after midnight, the defendant returned and met Wayne, who was in the process of leaving.

"The defendant believed that Wayne and [the victim] had been having an affair and demanded to know what Wayne was doing in the apartment. [The victim] started backing into the master bedroom. The defendant [who was six feet, three inches tall and weighed 270 pounds] began hitting [the victim, who was five feet, two inches

258 Conn. 515

tall and weighed 110 pounds] in the stomach with a closed fist and calling her names.⁹ For the next two to three hours, the defendant repeated the cycle of assaulting [the victim], leaving the room for a short time and then returning to assault her again. At approximately 3 a.m., the defendant stopped beating [the victim] and told her to take a shower. [The victim] showered and then went to sleep in her daughters' bedroom.¹⁰

"[The victim] remained in bed for most of that day. She told the defendant in the morning that she needed to see a doctor and asked him in the afternoon to bring her to a hospital. At approximately 10:30 p.m., the defendant called an ambulance to take [the victim] to a hospital, but only on the condition that she promise not to have him arrested.

"Winston Reed, an emergency room physician, examined [the victim]. He observed bruising on her left arm, and on the upper third of her chest and left ear. [The victim's] eyes were black and blue, and she complained of severe pain in the upper portion of her abdomen. Reed contacted Guy Nicastri, chief surgeon at the hospital, and asked him to examine [the victim]. Nicastri decided to operate and found that [the victim] was bleeding internally from a severed artery to her liver.

"The defendant remained with [the victim] during most of her time at the hospital. A few days after being admitted, however, [the victim] was alone with her mother and sisters and told them that the defendant had assaulted her. On February 15, 1996, [the victim] told the police of the assault, and the defendant was

258 Conn. 516

subsequently arrested."¹¹ State v. Niemeyer, supra, 55 Conn. App. 449-50

On appeal, the Appellate Court held that the state had presented insufficient evidence to prove that the defendant had committed kidnapping in the first degree in violation of § 53a-92 (a) (2) (A) and (C). Id., 460. In support of this conclusion, the Appellate Court stated that "there simply was no evidence from which the jury reasonably could infer that he restrained or abducted [the victim]....

"There was no evidence that the defendant restricted [the victim's] movement in any manner. The defendant did not force [the victim] into the master bedroom, tell her to remain there, prevent her from leaving the room or threaten her with violence if she left. [The victim] did not testify that she tried to escape and was prevented from doing so. She did not testify that she was afraid of the defendant and for this reason did not try to escape." Id., 459-60.

On appeal to this court, the state maintains that, contrary to the determination of the Appellate Court, the jury reasonably found that the defendant had restrained and abducted the victim in violation of § 53a-92 (a) (2). The defendant contends otherwise and, in the alternative, claims that: (1) the state failed to prove an intent to terrorize under § 53a-92 (a) (2) (C); and (2) the trial court improperly failed to instruct the jury regarding the necessity of a unanimous verdict on the defendant's guilt under either subparagraph (A) or (C) of § 53a-92 (a) (2). We are persuaded that the evidence was sufficient to support the defendant's kidnapping conviction and reject the defendant's claim of instructional impropriety. We, therefore, conclude that the

258 Conn. 517

Appellate Court improperly reversed the defendant's kidnapping conviction

I

We first address the state's claim that the Appellate Court improperly determined that the evidence presented at trial was insufficient to warrant a finding by the jury that the defendant had abducted and restrained the victim, a finding required for conviction under § 53a-92 (a) (2) (A) or (C). Because we agree with the state, we also consider the defendant's claim that the state failed to establish that the defendant abducted and restrained the victim with the intent to terrorize her as required under § 53a-92 (a) (2) (C). We reject the defendant's claim and, consequently, conclude that the evidence adduced at trial was sufficient to warrant the defendant's conviction of kidnapping in the first degree.

"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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict." (Internal quotation marks omitted.) State v. Montgomery, 254 Conn. 694, 732, 759 A.2d 995 (2000).

"Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.... Indeed, direct evidence of the

258 Conn. 518

accused's state of mind is rarely available.... Therefore, intent is often inferred from conduct ... and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.... This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt ... because this court has held that a jury's factual inferences that support a guilty verdict need only be reasonable." (Citation omitted; internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 239-40, 745 A.2d 800 (2000)

"[I]t is a function of the jury to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.... Because [t]he only kind of an inference recognized by the law is a reasonable one ... any such inference cannot be based on possibilities, surmise or conjecture.... It is axiomatic, therefore, that [a]ny...