State v. Rose

• Decision Date: 27 January 2009
• Docket Number: No. 28174.,28174.
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Irvin D. ROSE.

963 A.2d 68

112 Conn.App. 324

STATE of Connecticut v. Irvin D. ROSE.

No. 28174.

Appellate Court of Connecticut.

Argued October 17, 2008.

Decided January 27, 2009.

Joseph A. Jaumann, special public defender, with whom, on the brief, was John C. Drapp II, special public defender, for the appellant (defendant).

Timothy F. Costello, deputy assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Nicholas J. Bove, Jr., senior assistant state's attorney, for the appellee (state).

McLACHLAN, LAVINE and FOTI, Js.

McLACHLAN, J.

The defendant, Irvin D. Rose, appeals from the judgment of conviction, rendered after a jury trial, of assault of public safety personnel, specifically an employee of the department of correction (department), in violation of General Statutes § 53a-167c(a)(5). On appeal, the defendant claims that the trial court improperly (1) denied his motion for a judgment of acquittal because the evidence was insufficient to support his conviction and (2) compelled him to wear prison garb during trial.¹ We agree with the defendant's second claim and therefore reverse the judgment of the trial court.

The jury reasonably could have found the following facts. On January 15, 2006, the defendant was incarcerated at the Bridgeport correctional center (center). While housed in the center's hospital unit in an isolation cell, the defendant removed his hospital gown and pushed it, along with his blanket, under his cell door. Thereafter, he tore the seam of his mattress, created a large hole and removed the mattress' stuffing. He then crawled into the mattress and wrapped it around his body, covering himself entirely.

Correction Lieutenant Timothy Cox was alerted by a department employee that the defendant had crawled into his mattress. Cox instructed uniformed correction Officers Brian Guerrera and Scott Whiteley to remove the damaged mattress from the defendant's cell. Whiteley was instructed to remove the remains of the mattress while Guerrera served as a "cover down" officer. Guerrera was assigned to position himself between Whiteley and the defendant, continuously to monitor the defendant and to protect Whiteley as he removed the mattress. While still outside the cell, Cox instructed the defendant to remove himself from the mattress and sit on the bunk frame. The defendant complied with the instruction, and Guerrera and Whiteley entered the cell. Whiteley picked up the damaged mattress and backed out of the cell. Guerrera maintained his position between Whiteley and the defendant and, still facing the defendant, started to exit the cell. The defendant, without leaving his position seated on the bunk, spat at Guerrera before he exited the cell. Saliva struck Guerrera's face and chest.

Following department protocol for such an incident, Guerrera reported to a department nurse at the center. The nurse instructed Guerrera to wipe his face with alcohol pads and complete medical and incident reports. The defendant subsequently was charged with assault of public safety personnel. The defendant represented himself at trial. After a jury trial, the defendant was found guilty and sentenced to a term of ten years incarceration, execution suspended after six years, and five years probation. This appeal followed.

I

The defendant first claims that the court improperly denied his motion for a judgment of acquittal because the state failed to introduce sufficient evidence to establish his guilt beyond a reasonable doubt. Specifically the defendant argues that the state failed to prove beyond a reasonable doubt that he had the specific intent to prevent Guerrera from performing his duty. We disagree.

"A claim of insufficient evidence implicates the constitutional right not to be convicted on inadequate proof.... We review this claim first as it may be dispositive of the appeal; see State v. Padua, 273 Conn. 138, 179, 869 A.2d 192 (2005); because a defendant convicted on insufficient evidence cannot be retried without violating the double jeopardy clause. See Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)." (Citation omitted.) State v. Sitaras, 106 Conn.App. 493, 498-99, 942 A.2d 1071, cert. denied, 287 Conn. 906, 950 A.2d 1283 (2008).

"Review of any claim of insufficiency of the evidence introduced to prove a violation of a criminal statute must necessarily begin with the skeletal requirements of what necessary elements the charged statute requires to be proved." State v. Pommer, 110 Conn.App. 608, 613, 955 A.2d 637, cert. denied, 289 Conn. 951, 961 A.2d 418 (2008). "Once analysis is complete as to what the particular statute requires to be proved, we then review the evidence in light of those statutory requirements. Our review standard is well settled. In accordance with well established principles, appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury's verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt...." (Internal quotation marks omitted.) Id.

Our analysis begins with the statute. To prove an assault of an employee of the department of correction in violation of § 53a-167c(a)(5), the state must prove beyond a reasonable doubt that "with intent to prevent [an] employee of the Department of Correction ... from performing his or her duties, and while such ... employee ... [was] acting in the performance of his or her duties ... (5) [the defendant threw] or hurl[ed], or cause[d] to be thrown or hurled, any bodily fluid including, but not limited to, urine, feces, blood or saliva at such ... employee...."

The defendant focuses his argument on the evidence adduced of his intent to prevent Guerrera from performing his duties. The defendant's claim appears to be that although the evidence may have been sufficient to permit the jury to conclude that he intended to spit on Guerrera, it was not sufficient to permit the jury to conclude that he intended to prevent Guerrera from performing his duties. He argues that the mere act of spitting under the circumstances is insufficient evidence of an intent to prevent Guerrera from performing his duties. Finally, the defendant argues that the evidence fails to establish that he had the requisite intent to prevent Guerrera from performing his duties because his duties as a cover down officer were completed at the time of the assault. The defendant's arguments are misplaced.

"It is well established that the question of intent is purely a question of fact.... Intent may be, and usually is, inferred from the defendant's verbal or physical conduct.... Intent may also be inferred from the surrounding circumstances. ... The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused's state of mind is rarely available.... Intent may be gleaned from circumstantial evidence such as ... the events leading up to and immediately following the incident.... Furthermore, it is a permissible, albeit not a necessary or mandatory inference that a defendant intended the natural consequences of his voluntary conduct." (Citation omitted; internal quotation marks omitted.) State v. Porter, 76 Conn.App. 477, 487-88, 819 A.2d 909, cert. denied, 264 Conn. 910, 826 A.2d 181 (2003). This court has stated that "[j]urors are not expected to lay aside matters of common knowledge or their own observations and experiences, but rather, to apply them to the facts as presented to arrive at an intelligent and correct conclusion." (Internal quotation marks omitted.) State v. Williams, 48 Conn.App. 361, 372, 709 A.2d 43, cert. denied, 245 Conn. 907, 718 A.2d 16 (1998).

The cumulative impact of the evidence in this case was sufficient for the jury to find beyond a reasonable doubt that the defendant was guilty of assault on a department employee. There was evidence that Guerrera was in uniform at the time of the incident, that he was carrying out his lawful duty in an orderly manner, that the defendant knew Guerrera was a department employee and that the defendant spat on Guerrera. We note that "[s]pitting itself is a physical act, as it is the application of force to the victim's body.... Spitting on another person is almost universally acknowledged as contemptuous and is calculated to incite others to act in retaliation." (Citations omitted; internal quotation marks omitted.) State v. Hawley, 102 Conn.App. 551, 555, 925 A.2d 1197, cert. denied, 284 Conn. 914, 931 A.2d 933 (2007). Also, it is irrelevant that Guerrera's duties as cover down officer were essentially complete at the time of the assault because under § 53a-167c, "[t]he [defendant's] act ... does not have to be wholly or partially successful ... [nor must it] be such as to defeat or delay the performance of a duty in which the officer is then engaged." (Emphasis added; internal quotation marks omitted.) State v. Williams, 110 Conn.App. 778, 794, 956 A.2d 1176 (2008). The defendant must have only intended to prevent Guerrera from performing his duties when the defendant spat on him.

Here, the jury reasonably could have found that when the defendant spat on Guerrera's face and chest, he intended not only that act, but also to prevent Guerrera from performing his duties. "The fact that the defendant may have been actuated by two separate intents does not diminish either one individually. Given the complexity of human behavior, the existence of the intent required for commission of a crime may be blurred by the presence of multiple intents. An intent is forward looking; it is the end in view, the object to be accomplished by the action taken, which is its criterion.... An action...