State v. Pond

• Decision Date: 25 September 2012
• Docket Number: No. 32468.,32468.
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Terrell Williams POND.

138 Conn.App. 228

50 A.3d 950

STATE of Connecticut

v.Terrell Williams POND.

No. 32468.

Appellate Court of Connecticut.

Argued March 20, 2012.

Decided Sept. 25, 2012.

Kate MacLeman, certified legal intern, with whom were Timothy H. Everett, special public defender, Sabrina Copp and Andrew Veale, certified legal interns, and, on the brief, Matthew Bristol, Irene Kim and Louisa Lindberg, certified legal interns, for the appellant (defendant).

Leonard C. Boyle, deputy chief state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and John Lion, senior assistant state's attorney, for the appellee (state).

BEACH, ALVORD and BORDEN, Js.

ALVORD, J.

The crime of robbery in the second degree in violation of General Statutes § 53a–135 (a)(2)230 ¹ provides that a person is guilty of that crime when he commits robbery ² and “in the course of the commission of the crime ... he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument.” The inchoate crime of conspiracy in violation of General Statutes § 53a–48 (a)³ provides that “[a] person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any of them commits an overt act in pursuance of such conspiracy.” ⁴ The two related issues in this appeal present the question of whether, in order to convict a defendant of conspiracy to commit robbery in the second degree in violation of §§ 53a–48 (a) and 53a–135 (a)(2), the state must prove that the defendant conspirator had the specific intent that there would be a display or threat of the use of what was represented to be a deadly weapon or dangerous instrument, even if that specific intent is not required for proof of the underlying crime of robbery in the second degree. We conclude that our Supreme Court authority requires the state to prove such specific intent.

On appeal, the defendant, Terrell Williams Pond, claims that (1) there was insufficient evidence of his specific intent that, in the course of the robbery, another participant in the robbery would display or threaten the use of what that participant represented to be a deadly weapon or dangerous instrument and (2) the trial court improperly failed to instruct the jury that the state had to prove that the defendant had such specific intent. We agree with the defendant's second claim and, accordingly, reverse the judgment of conviction.

The jury reasonably could have found the following facts. On October 27, 2008, Stanislaw Grzadko, the victim, returned home from work at approximately 5:45 p.m. Grzadko's home is located on Church Street in Hamden. Upon returning home, he ate dinner and then went for his evening walk. At approximately 6:45 p.m., while he was walking on the Dixwell Avenue sidewalk, he was approached from behind by the defendant and Montel Harris, both of whom were riding bicycles on the sidewalk. Harris approached the victim on his left, the defendant approached on his right, each wearing a dark hooded sweatshirt and dark pants. Harris asked the victim where he was going and then demanded that he stop, repeating the order “two [or] three times....” When the victim continued to walk, the defendant pushed his bicycle in front of the victim, forcing him to stop. With the victim now unable to move forward, Harris raised his jacket and lifted the handle of what appeared to be a gun, later determined to be a CO2 pistol, from his waistband, asking the victim, “do you know what it is?” When the victim responded, “yes, yes, I know,” and as the defendant continued to block the victim from moving, Harris ordered the victim to remove everything from his pockets. Rather than turn his belongings over to the two young men, the victim turned to the side and ran into traffic on Dixwell Avenue in order to escape. The defendant and Harris rode off on their bicycles. Shortly thereafter, the victim called the Hamden police and reported the incident. Later that evening, the Hamden police detained the defendant and Harris, and the victim later identified them as the two young men who had accosted him.

The defendant was charged with attempt to commit robbery in the second degree in violation of General Statutes §§ 53a–49 and 53a–135 (a)(2), and conspiracy to commit robbery in the second degree in violation of §§ 53a–48 and 53a–135 (a)(2). Following a jury trial, the defendant was convicted of the conspiracy count and acquitted of the attempt count. The court sentenced the defendant to five years incarceration, suspended after fifteen months, and three years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that there was insufficient evidence to support the jury's verdict on the conspiracy charge. Specifically, he claims that the charge of conspiracy to commit robbery in the second degree required the state to prove that (1) he and Harris specifically “had an agreement to display a deadly weapon or dangerous instrument” and (2) he had the specific intent that such a weapon or instrument would be displayed by Harris. The defendant argues further that the evidence was insufficient to prove that he and Harris had such a specific agreement and that he had such a specific intent.

The state responds that, as a legal matter, in order to prove a conspiracy to commit robbery in the second degree under § 53a–135 (a)(2), “the state is not required to offer independent proof that the defendant specifically intended that a dangerous instrument or deadly weapon would be displayed.” The state further contends, however, that as a factual matter, if there is such a requirement, it produced sufficient evidence thereof. While we disagree with the state's legal contention, we agree that, nevertheless, the state produced sufficient evidence for the jury reasonably to conclude that the defendant specifically intended that a dangerous instrument or deadly weapon would be displayed.

We begin with the pertinent language of the conspiracy statute. Section 53a–48 (a) provides in relevant part that a “person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct....” (Emphasis added.) Although the language of the conspiracy statute does not, by its terms, establish whether the specific intent provided by the statute—the “intent that conduct constituting a crime be performed”—requires proof of a specific intent to perform all of the elements of the crime conspired, including any aggravating elements, our Supreme Court addressed this issue in State v. Padua, 273 Conn. 138, 869 A.2d 192 (2005).

In Padua, the defendants were convicted of conspiracy to sell marijuana within 1500 feet of a public housing project. Id., at 145, 869 A.2d 192. The court stated that it was an essential element of the conspiracy charge that the conspirators agreed to sell marijuana specifically within 1500 feet of a public housing project. Id., at 166, 869 A.2d 192. Our Supreme Court held, in accord with the state's concession, that the trial court's instruction, which had omitted this element, was improper but that the impropriety was harmless beyond a reasonable doubt. Id. In doing so, the court stated that “[p]roof of a conspiracy to commit a specific offense requires proof that the conspirators intended to bring about the elements of the conspired offense.” (Internal quotation marks omitted.) Id., at 167, 869 A.2d 192. This means that the specific intent required by the conspiracy statute requires specific intent to bring about all of the elements of the conspired offense, even those that do not by themselves carry a specific intent with them. We must reach this conclusion because, when Padua was decided, it was already settled law that in a prosecution for sale of drugs within 1000 feet of a school, the state was not required to prove that the defendant knew that his sale was within 1000 feet of a school. See State v. Denby, 235 Conn. 477, 482, 668 A.2d 682 (1995) (“[T]he plain language of [General Statutes] § 21a–278a (b) requires as an element of the offense an intent to sell or dispense the narcotics at a location that is within 1000 feet of a school. The state is not, however, required to prove that the defendant knew that this location was within the zone.”).

In the present case, we are bound by the holding in Padua to conclude that, in order to prove the defendant guilty of conspiracy to commit robbery in the second degree in violation of § 53a–135 (a)(2), the state needed to prove that he and his coconspirator specifically had an agreement to display a deadly weapon or dangerous instrument and that the defendant had the specific intent that such a weapon or instrument would be displayed. We agree with the state that there was sufficient evidence of both an agreement and the defendant's specific intent that such a weapon or instrument would be displayed.

“The standard of review we apply to a claim of insufficient evidence is well established. 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.” (Internal quotation marks omitted.) State v. Martin, 285 Conn. 135, 147, 939 A.2d 524, cert. denied, 555 U.S. 859, 129 S.Ct. 133, 172 L.Ed.2d 101, after remand, 110 Conn.App. 171, 954 A.2d 256 (2008), appeal dismissed, 295 Conn. 192, 989 A.2d 1072 (2010). “On appeal, we do not ask whether there is a...