State v. Pascal, 27463.

• Court: Appellate Court of Connecticut
• Citation: 950 A.2d 566,109 Conn.App. 55
• Decision Date: 08 July 2008
• Docket Number: No. 27463.,27463.
• Parties: STATE of Connecticut v. Brent PASCAL.

950 A.2d 566 109 Conn.App. 55 STATE of Connecticut
v.
Brent PASCAL. No. 27463. Appellate Court of Connecticut. Argued March 28, 2008. Decided July 8, 2008.

[950 A.2d 569]

Mary H. Trainer, special public defender, for the appellant (defendant).

Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, was Kevin D. Lawlor, state's attorney, for the appellee (state).

FLYNN, C.J., and McLACHLAN and PELLEGRINO, Js.

FLYNN, C.J.

109 Conn.App. 57

The defendant, Brent Pascal, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first

950 A.2d 570

degree in violation of General Statutes § 53a-134(a)(4). On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction, (2) the prosecutor engaged in impropriety that deprived him of a fair trial and (3) the court improperly instructed the jury on consciousness of guilt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 17, 2004, at approximately 10:30 a.m., a man later identified as the defendant entered Romantix, an adult retail establishment, located on Boston Post Road in Milford. On that day, Christopher Towne was the clerk on duty at Romantix and was working the 9 a.m. to 5 p.m. shift. During the next several hours, the defendant, who was wearing a powder blue sleeveless T-shirt, a powder blue do-rag on his head and powder blue boots, remained in Romantix, though he frequently walked in and out of the store. At one point, the defendant purchased a video card, which he used to view adult movies in a video booth located in the store.

Shortly before 4 p.m., the defendant approached Towne, who was standing near a chair behind the counter, and motioned toward his waistline. The defendant then lifted his shirt, revealing a portion of a handgun. As the defendant reached toward the handgun, he stated to Towne: "You know what this is. You know what you have to do. Open the register and put the money in the bag." The defendant also stated: "This is how I make my money." Towne then walked over to

109 Conn.App. 58

the first cash register and, after several attempts, opened the register. Towne put the money from the cash register, which totaled $270, into a bag and handed the bag to the defendant. The defendant, after looking at the money in the bag, became angry and told Towne to open the other cash register because the bag did not contain enough money. Towne informed the defendant that he was unable to open the other register because he did not have a key. The defendant remained in the store for approximately five to ten minutes before departing.

After the defendant exited Romantix, Towne activated an alarm, which notified the police, and telephoned his supervisor. Detective Greg Kopanza of the Milford police department, as well as several other Milford police officers, responded to the call. Kopanza arrived at Romantix shortly after 4 p.m. to investigate the incident, and he spoke with Towne, who provided a description of the defendant. The police were unable to locate the defendant that day.

As part of his investigation, Kopanza spoke with a clerk who was working in a video store located in the same shopping plaza as Romantix and gave the clerk a description of the defendant. The video store clerk informed Kopanza that a person matching the defendant's description had been in the video store that day, and the clerk gave Kopanza a surveillance videotape, which depicted the defendant. Kopanza also obtained a surveillance videotape from Romantix, which revealed the defendant standing at the counter and then moving something near his waistline with his right hand. The videotape further depicted Towne removing money from the first cash register, placing the money in a bag and then handing the bag to the defendant.

Approximately four months later, on December 27, 2004, the defendant entered Romantix, purchased a

109 Conn.App. 59

video card from the sales clerk, Ivan Aponte, and went into a video booth to the view a movie. Aponte, recognizing the defendant from a photograph taken from the video store's surveillance camera on August 17, 2004,

950 A.2d 571

used his cellular telephone to contact the police. Thereafter, several officers from the Milford police department, including Jason Anderson and Kenneth Rahn, were dispatched to Romantix. The police located the defendant, along with another male, who was partially undressed, in a video booth. The police questioned the defendant about his involvement in the August 17, 2004 robbery of Romantix, which he denied. The defendant initially provided the police with an incorrect name and date of birth, but the police eventually learned the defendant's actual name and date of birth from the defendant's mother.

In February, 2005, following further investigation, the defendant was arrested and charged with robbery in the first degree.¹ After the defendant's arrest, Nancy Bodick, president of Milford Boat Works, contacted the police because the defendant, her former employee, had left a pair of powder blue boots at Milford Boat Works. Bodick also informed the police that she had observed the defendant wearing the powder blue boots as well as a powder blue do-rag and a powder blue shirt. The police retrieved the boots from Milford Boat Works.

On December 6, 2005, the jury found the defendant guilty of robbery in the first degree. The court subsequently sentenced the defendant to seven years imprisonment, execution suspended after three years, and five years of probation with special conditions. This appeal followed. Additional facts will be set forth where necessary.

109 Conn.App. 60

I

The defendant first claims that the court improperly denied his motion for a judgment of acquittal on the ground that there was insufficient evidence to support his conviction of robbery in the first degree. Specifically, the defendant argues that the evidence did not establish that he had the requisite mental state. We do not agree.

"In reviewing the sufficiency of the evidence to support a criminal conviction 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

"We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] 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. . . .

"Moreover, 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. . . . In

950 A.2d 572

evaluating evidence, the [finder] of fact is not required to accept

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as dispositive those inferences that are consistent with the defendant's innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .

"Finally, [a]s we have often noted, proof 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 [finder of fact], 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 [finder of fact's] verdict of guilty." (Internal quotation marks omitted.) State v. Lopez, 289 Conn. 779, 808-809, 911 A.2d 1099 (2007).

In order to find the defendant guilty of robbery in the first degree, the jury had to find beyond a reasonable doubt that the evidence showed that, "in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, [the defendant] or another participant in the crime . . . (4) display[ed] or threaten[ed] the use of what he represent[ed] by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm. . . ." General Statutes § 53a-134(a).

General Statutes § 53a-133 defines robbery as follows: "A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver

109 Conn.App. 62

up the property or to engage in other conduct which aids in the commission of the larceny." Larceny is defined in relevant part by General Statutes § 53a-119 as follows: "A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . ."

The mental state required to commit robbery in the first degree is the intent to commit larceny, which requires the specific intent...