State v. Tony O.

• Decision Date: 29 March 2022
• Docket Number: AC 43250
• Citation: 211 Conn.App. 496,272 A.3d 659
• Parties: STATE of Connecticut v. TONY O.
• Court: Connecticut Court of Appeals

211 Conn.App. 496

272 A.3d 659

STATE of Connecticut

v.TONY O.^*

AC 43250

Appellate Court of Connecticut.

Argued September 8, 2021

Officially released March 29, 2022

James B. Streeto, senior assistant public defender, with whom, on the brief, was Jane L. Stream, certified legal intern, for the appellant (defendant).

Jonathan M. Sousa, deputy assistant state's attorney, with whom, on the brief, were Anne Mahoney, state's attorney, and Mark Stabile, former supervisory assistant state's attorney, for the appellee (state).

Moll, Suarez and Sheldon, Js.

SHELDON, J.

The defendant, Tony O., appeals from the judgment of conviction, rendered against him after a bifurcated jury trial on charges arising from a physical altercation between himself and his wife (complainant) at her place of work in Willimantic, on April 6, 2017. In the first part of the trial, the jury found the defendant guilty on three counts of a long form information charging him, respectively, with robbery in the third degree in violation of General Statutes § 53a-136, unlawful restraint in the first degree in violation of General Statutes § 53a-95, and assault in the third degree in violation of General Statutes § 53a-61. The jury found the defendant not guilty, however, on two other counts of the information charging him, respectively, with attempt to commit larceny in the second degree in violation of General Statutes §§ 53a-49 and 53a-123 (a) (2), and attempt to commit larceny in the sixth degree in violation of General Statutes §§ 53a-49 and 53a-125b. In the second part of the trial, the same jury found the defendant guilty on both counts of a part B information charging him, respectively, with being a serious persistent felony offender in violation of General Statutes § 53a-40 (c), as a basis for enhancing his impending sentence on the charge of unlawful restraint in the first degree, and being a persistent offender of crimes involving assault, stalking, threatening, harassment, and criminal violation of a protective order in violation of General Statutes § 53a-40d, as a basis for enhancing his impending sentence on the charge of assault in the third degree. The trial court, Chaplin, J ., ultimately sentenced the defendant to a total effective term of six years of imprisonment followed by four years of special parole.¹ This appeal followed.

On appeal, the defendant claims that the trial court erred in (1) failing to enter a judgment of acquittal on the charge of robbery in the third degree because, inter alia, there was insufficient evidence to support the jury's necessary finding beyond a reasonable doubt that he seized the complainant's handbag in the course of their altercation with the intent to deprive her of it permanently, as the state sought to prove in order to establish that he committed robbery by using physical force on her in the course of committing a larceny with respect to the handbag, (2) failing to enter a judgment of acquittal on the charge of unlawful restraint in the first degree because there was insufficient evidence to support the jury's necessary findings beyond a reasonable doubt that he restrained the complainant in the course of the altercation and did so under circumstances that exposed her to a substantial risk of physical injury, (3) admitting as a spontaneous utterance, over his timely hearsay objection, evidence of the nontestifying complainant's initial oral statement to the police accusing him of attacking her, and (4) admitting that same initial oral statement by the complainant to the police through the testimony of the police officer to whom she made the statement, without affording him the opportunity to cross-examine the complainant, in violation of his sixth and fourteenth amendment rights to confront the witnesses against him. We agree with the defendant that the evidence was insufficient to support his conviction of robbery in the third degree, and thus we reverse the judgment of conviction on that charge and remand this case to the trial court with direction to enter a judgment of acquittal thereon. We disagree with the defendant, however, as to his other claims of error, and thus affirm the judgment in all other respects.

The jury was presented with the following evidence on which to base its verdict in the first part of the defendant's trial. On the afternoon of April 6, 2017, Officer Nicholas Sullivan of the Willimantic Police Department was dispatched to the Valero gas station on West Main Street in Willimantic to investigate the report of an armed robbery at that location. Sullivan testified that, upon arriving at the gas station at or about 3:36 p.m., he saw no evidence of an ongoing robbery but found three women waiting for him in the convenience store section of the station. One of the women, the complainant, an employee of the gas station, initially told Sullivan, who testified about her statement over the defendant's hearsay objection, that while she was working at the station that afternoon, "her husband, [the defendant], came into the store and attacked her."² Sullivan testified that, when the complainant made that initial statement to him, she was emotional and appeared to be in distress. He recalled, more particularly, that, when they first spoke, she appeared to be crying, her breathing was heavy, her hair was a mess, and she had red marks on her neck and face. The second woman was identified only as the complainant's daughter, whom other evidence would show was in the store when a physical altercation began between her mother and the defendant and remained in the store for a short time thereafter before walking outside to call the police.³

The third woman was identified as Chrimson Strede, a regular customer of the store, who told Sullivan and later testified that she had witnessed part of the altercation between the complainant and the defendant and ultimately attempted to break it up. Strede was the only person with whom Sullivan spoke at the gas station on the day of the incident who later testified at trial.

Sullivan testified that, in light of the complainant's injuries, she was initially transported to Windham Hospital, where he photographed the injuries, and she received treatment by hospital staff. The state further documented the complainant's injuries by introducing the hospital records of her treatment on the afternoon of the incident, in which the hospital staff described the injuries, much as Sullivan had observed them, as a small bruise and swelling to the left side of her eye and a subtle abrasion on the left side of her neck. The hospital records identified the cause of the injuries, as the complainant had reported it to hospital staff, as an "assault" on her by the defendant, who allegedly "came to her job and got physical [with her]." The complainant told the hospital staff, more specifically, that the defendant had "punched [her] in the face," causing her to "[fall] back into a chair," and then "kick[ed] and knee[d] [her] in the head."

Sullivan next testified about the video surveillance system at the gas station, which continuously recorded video footage of activity at the station from multiple angles both inside and outside of the convenience store. Upon returning to the gas station to conduct further investigation after the complainant had been treated at the hospital, Sullivan reviewed video footage of the incident, as recorded by the video surveillance system, and copied it onto a zip drive, from which he later made a second copy on a hard disk that he attached to his report. The video footage so recorded, which had no audio component but was marked on each frame with the time and date on which it was recorded, was initially played for the jury in its entirety, without interruptions by counsel or commentary by Sullivan.

The video footage, which the prosecutor would later describe in closing argument to the jury as "98 percent of this case," depicted the following sequence of events. At 3:31:24 p.m. on April 6, 2017, a man identified as the defendant walked through the front door of the store, carrying nothing. At 3:31:33 p.m., the defendant approached the front counter of the store, which had a cash register on it, behind which two women, identified as the complainant and her daughter, were working. The defendant reached over to a rear counter behind the complainant's daughter and picked up a pink wallet that was lying there. At 3:31:36 p.m., the defendant turned away from the counter while opening the wallet and looked inside it. Shortly thereafter, however, at 3:31:39 p.m., the defendant quickly closed the wallet, turned back toward the counter, and set the wallet back down where he had picked it up without removing anything from it. He then walked around the front counter toward the complainant and reached behind her toward a brown and white handbag lying farther down the rear counter behind her. When he did so, at 3:31:42 p.m., the complainant stood up and forcefully pushed him away, initiating a physical altercation between them that would last for just over one minute before coming to an end.

Thirteen seconds into the altercation, at 3:31:55 p.m., the defendant finally seized the handbag for which he had been reaching behind the complainant with his right hand. Eight seconds later, however, at 3:32:03 p.m., he dropped the handbag to the floor as he and the complainant, still struggling with each other, moved out from behind the front counter. At that point, the complainant's daughter picked up a cell phone from the rear counter and walked out of the store. Nine seconds later, at 3:32:12 p.m., the complainant placed the defendant in a headlock, from which he broke free by forcing her to sit down in a nearby chair. After the complainant was seated in the chair, the struggle continued, with the defendant leaning over the complainant while she held him with her arms and attempted to restrain him with her legs.

The video footage also depicts that, a third woman,...