State v. Owens
| Decision Date | 19 September 1991 |
| Docket Number | Nos. 7073,7074,s. 7073 |
| Citation | 25 Conn.App. 181,594 A.2d 991 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Andrew L. OWENS. |
Suzanne H. Werner, Hartford, for appellant (defendant).
James M. Ralls, Asst. States Atty., with whom, on the brief, were Michael Dearington, State's Atty. and John Waddock, Asst. State's Atty., for appellee (state).
Before DUPONT, C.J., and NORCOTT and FOTI, JJ.
The defendant appeals from the judgments of conviction, rendered after a jury trial, of larceny in the first degree in violation of General Statutes § 53a-122(a)(3) and carrying a weapon in a motor vehicle in violation of General Statutes § 29-38. The defendant claims that the trial court (1) improperly instructed the jury, and (2) allowed extraneous facts to be presented to the jury that prevented it from fairly reviewing the relevant evidence. The defendant also claims that he has been deprived of meaningful appellate review of certain pretrial events because of the loss of the court reporter's notes and the inadequate efforts to reconstruct the record. We affirm the judgments of the trial court.
The jury could reasonably have found the following facts. On June 10, 1987, the defendant and other individuals accompanied Connie Sheppard, his girl friend's sister, to Thrifty Rent-A-Car in Danbury, where Sheppard rented a maroon Chrysler New Yorker using a credit card. The rental agreement called for the return of the automobile after one week. Sheppard used the car, and on June 17 the defendant asked to borrow it for a few minutes to go to a store. The car was not returned and after four days she notified the rental agency and the Danbury police.
Acting on a separate complaint, officers of the Stratford police department apprehended the defendant for questioning and he denied knowing Sheppard or anything about the car. The defendant had been seen in the stolen vehicle by Audrey Hodgkins who later supplied information to the police that led them to a hotel in Milford. When the police arrived at the hotel, they did not find the stolen vehicle, but they did confirm that the vehicle had been there and that the defendant had checked out. Hodgkins then told police that the car was being taken to New Haven to be stripped because it was too hot in the Bridgeport area. Subsequently, the car was observed being driven in New Haven by Jean Johnson. Johnson became acquainted with the defendant when she exchanged cars with him at the request of Tyrone Harden. The defendant drove away with Harden in Johnson's Subaru, and left the Chrysler for her to use. Approximately two days later, the two approached Johnson again and asked her to rent a room for them at the Howard Johnson hotel in New Haven. She rented a room for them in her name and gave the keys to Harden.
When the police went to the Howard Johnson's hotel, they found neither the defendant nor the Subaru. Approximately three hours later, at 5 a.m., on July 19, 1987, the officers returned, saw the parked Subaru, and went to the room that had been rented by Johnson. The defendant was arrested for larceny in the first degree and denied being Andrew Owens, supplying the police with several aliases.
While securing the Subaru in preparation for towing, a police officer observed a bullet on the rear floor of the car. After finding that the car's exhaust pipe was still hot, they opened the car and found two loaded weapons: a .44 caliber magnum protruding from under the driver's side floor mat, and a .38 caliber revolver concealed underneath the passenger's side of the front seat. The .44 caliber contained six live and two spent rounds. The .38 caliber contained four live and two spent rounds. Both revolvers were fully operable. There had been no weapons in the Subaru when Johnson lent it to the defendant.
Meanwhile, a search of the Chrysler revealed a number of live bullets in the trunk of the vehicle, including nine .44 caliber super magnums and six .38 caliber rounds, which were the same type of bullets in the handguns found in the Subaru.
The defendant claims that the trial court improperly instructed the jury in four ways: (1) in refusing to charge the jury as to the lesser included offense of using a motor vehicle without the owner's permission; (2) in its instruction regarding the elements of the crime of carrying a weapon in a motor vehicle; (3) in its instructions as to consciousness of guilt; and (4) in failing to instruct the jury that as a matter of law there was insufficient evidence presented to convict the defendant of carrying a weapon in a motor vehicle.
The defendant claims that the court should not have refused to instruct on the offense of using a motor vehicle without the owner's permission, General Statutes § 53a-119b, as a lesser included offense of first degree larceny.
Although the defendant did file a written request to charge, he did not set forth, as required, a complete statement of the essential facts, or any facts whatsoever, that would justify the court's charging in the form requested. Practice Book § 854; State v. Dedrick, 24 Conn.App. 518, 523-24, 589 A.2d 1241 (1991). Accordingly, we conclude that the trial court properly refused to instruct on the lesser included offense.
In order to be entitled to a charge on a lesser included offense, a defendant must show that he has complied with the four conditions stated in State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). "The standards for the first prong of Whistnant were articulated by our Supreme Court in State v. McIntosh, 199 Conn. 155, 158-61, 506 A.2d 104 (1986)." The requirement that the defendant request an appropriate instruction means that the request must be in compliance with Practice Book § 854, the pertinent portion of which states that State v. Dedrick, supra, 24 Conn.App. at 524, 589 A.2d 1241. A complete statement of the facts is required; State v. Killenger, 193 Conn. 48, 57, 475 A.2d 276 (1984); a request to charge that does not conform to the requirements of Practice Book § 854 and State v. Whistnant, supra, need not be given. State v. Payne, 14 Conn.App. 169, 171, 540 A.2d 87 (1988).
In view of our conclusion regarding the defendant's request to charge, we will not consider the merits of his claim that using a motor vehicle without the permission of the owner is a lesser included offense of larceny in the first degree. 1
The defendant next claims that the court incorrectly instructed the jury as to the elements of knowledge and possession necessary for a conviction for knowing possession of an unregistered weapon in a motor vehicle. 2
(Citations omitted.) State v. Grullon, 212 Conn. 195, 204, 562 A.2d 481 (1989). In appeals involving a constitutional question, the standard of review is whether it is reasonably possible that the jury was misled. State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982).
There are four elements that the state must prove in a prosecution for a violation of General Statutes § 29-38: (1) that the defendant owned, operated or accepted the vehicle; (2) that he had a weapon in the vehicle; (3) that he knew the weapon was in the vehicle; and (4) that he had no permit or registration for the weapon. State v. Delossantos, 211 Conn. 258, 273, 559 A.2d 164, cert. denied, --- U.S. ----, 110 S.Ct. 188, 107 L.Ed.2d 142 (1989). The defendant claims that the trial court improperly instructed the jury as to elements two and three of the offense, having a weapon and having knowledge of its presence. He alleges that the court gave an overly expansive definition of having a weapon without instructing the jury as to the necessity of some form of control, and permitted the jury to draw improper inferences from the defendant's mere presence in the motor vehicle. 3 We do not agree.
The clear intent of § 29-38 is to make it a crime to have a weapon in a motor vehicle, and "[t]he statute is not concerned with possession or ownership of a weapon, but rather aims to penalize those who know that there is a weapon inside a motor vehicle." State v. Mebane, 17 Conn.App. 243, 246, 551 A.2d 1268, cert. denied, 210 Conn. 811, 556 A.2d 609 (1989), cert. denied, 492 U.S. 919, 109 S.Ct. 3245, 106 L.Ed.2d 591 (1989). The defendant argues that the court did not adequately define the word "has" and should have instructed that it means having control. Because the state is not required to prove either actual or constructive possession; id., 17 Conn.App. at 245, 551 A.2d 1268; it certainly is not required to prove control.
The defendant also claims that the court's instruction as to the knowledge element of the offense was incorrect. 4 The defendant relies on State v. Watson, 165 Conn. 577, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S.Ct. 1977, 40 L.Ed.2d 311 (1974). In Watson, our Supreme Court held that it was unconstitutional for the legislature to enact a provision making the mere presence of a weapon in a vehicle prima facie evidence of a violation by each occupant. The defendant argues that the court's jury instructions in this case permitted the same inference that was struck down in Watson--that merely because the defendant was in the car, he knew about the weapons.
An examination of the charge shows that the court gave a thorough definition of knowledge and twice cautioned...
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