State v. Torres

• Decision Date: 11 May 2004
• Docket Number: (AC 23744)
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. ANDRES TORRES

82 Conn. App. 823

847 A.2d 1022

STATE OF CONNECTICUT v. ANDRES TORRES

(AC 23744)

Court of Appeals of Connecticut.

Argued February 26, 2004.

Officially released May 11, 2004.

Dranginis, DiPentima and Stoughton, Js.

William B. Westcott, special public defender, for the appellant (defendant).

Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Eva B. Lenczewski, senior assistant state's attorney, for the appellee (state).

Opinion

STOUGHTON, J.

The defendant, Andres Torres, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction and (2) the court improperly instructed the jury. We disagree and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the morning of November 6, 2001, the victim, Vijaykumar Patel, the sole owner and operator of S and J Liquors in Waterbury, was selling lottery tickets to one of his regular patrons. The customer often purchased a large quantity of tickets, and it took the victim approximately fifteen to twenty minutes to process the order. During that time, the defendant, whom the victim recognized as being from the neighborhood, had entered the store and asked to purchase one lottery ticket. The victim sold the defendant the fifty cent ticket and then returned to completing his regular customer's order. About fifteen minutes later, the victim's regular customer left the store, and the victim started to stock the shelves.

The defendant reentered the store wearing a mask and brandishing a knife. The victim described the knife as having a blade that was approximately six inches long. The defendant told the victim to "give him the money." The victim immediately fled from behind the counter and headed toward the exit. As he was exiting his store, the defendant asked the victim how to open the cash register. The victim instructed him to press the N/S (no sale) button and told the defendant that there was no money in the lottery drawer. After taking the money from the cash register, the defendant left the store. Additional facts will be set forth as necessary.

I

The defendant first claims that the evidence was insufficient to support his conviction of robbery in the first degree. Specifically, he argues that the evidence did not establish that (1) the knife was a dangerous instrument and (2) that he had used or threatened the use of a dangerous instrument. We are not persuaded.

The defendant concedes that those arguments were not preserved at trial and requests review pursuant to State v. Golding, 213 Conn. 233, 239, 567 A.2d 823 (1989).¹ "Any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of Golding. Accordingly, we conclude that no practical reason exists to engage in a Golding analysis of a sufficiency of the evidence claim and, thus, review the challenge as we do any other properly preserved claim." (Internal quotation marks omitted.) State v. Jeffreys, 78 Conn. App. 659, 677, 828 A.2d 659, cert. denied, 266 Conn. 913, 833 A.2d 465 (2003).

"In reviewing a sufficiency of evidence claim, 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 jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . In this process of review, 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. . . .

"While ... every element must be proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, 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.... We ask ... whether there is a reasonable view of the evidence that supports the jury's verdict of guilty." (Internal quotation marks omitted.) State v. Leon-Zazueta, 80 Conn. App. 678, 681, 836 A.2d 1273 (2003), cert. denied, 268 Conn. 901, 845 A.2d 405 (2004).

Furthermore, we are mindful that "we do not sit as a seventh juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury's opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.... The scope of our factual inquiry on appeal is limited. This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict." (Internal quotation marks omitted.) State v. Nicholson, 71 Conn. App. 585, 590, 803 A.2d 391, cert. denied, 261 Conn. 941, 808 A.2d 1134 (2002).

It will be helpful to identify the parameters of the defendant's appeal. General Statutes § 53a-134 (a) provides in relevant part that "a person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he ... (3) uses or threatens the use of a dangerous instrument...." The defendant has challenged only the element of the use or threatened use of a dangerous instrument. With the foregoing principles in mind, we now address each of the defendant's claims.

A

The defendant's first argument is that there was insufficient evidence that the knife he possessed was a dangerous instrument. Specifically, he claims that the evidence regarding the knife was sparse, and, as a result, the jury could not find that the knife used in the robbery was a dangerous instrument.

During the trial, the victim testified that he observed the defendant enter the store wearing a mask and carrying a knife in his right hand. The defendant held the knife away from his body and instructed the victim to "give him the money." The victim stated that the blade of the knife was the length of his hand, approximately six inches. The victim also admitted that the defendant did not wave or point the knife at him, but the victim then demonstrated to the jury, both during his direct examination and cross-examination, the manner in which the defendant displayed the knife during the robbery.

This court, in State v. McColl, 74 Conn. App. 545, 813 A.2d 107, cert. denied, 262 Conn. 953, 818 A.2d 782 (2003), recently stated that "an ordinary object may be a dangerous instrument. Therefore, each case must be individually examined to determine whether, under the circumstances in which the object is used or threatened to be used, it has the potential for causing serious physical injury.... The question of whether in the given circumstances a particular object was used as a dangerous instrument is a question of fact for the jury." (Citation omitted; internal quotation marks omitted.) Id., 554.

General Statutes § 53a-3 (7) defines a "dangerous instrument" as "any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury...." Section 53a-3 (4) provides in relevant part that "serious physical injury' means physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ...."

The victim testified that the blade of the knife was approximately six inches long. A knife is defined as "a cutting instrument consisting of a sharp blade with a handle...." (Emphasis added.) American Heritage Dictionary (2d College Ed. 1985) p. 704. "The jury is entitled to draw reasonable inferences from the evidence before it and, in performing its function, the jury brings to bear its common sense and experience of the affairs of life." State v. Koslik, 80 Conn. App. 746, 756, 837 A.2d 813, cert. denied, 268 Conn. 908, 845 A.2d 413 (2004).

In State v. Dumas, 54 Conn. App. 780, 785, 739 A.2d 1251, cert. denied, 252 Conn. 903, 743 A.2d 616 (1999), we concluded that in a trial to the court, sufficient evidence existed to support a conviction for robbery in the first degree when the victim stated that the blade of the knife was five or six inches in length. Id., 785-87. Similarly, we conclude that in the present case, it was reasonable for the jury, relying on its common sense and the evidence adduced at trial, to find that a knife with a six inch blade was capable of causing death or serious physical injury.

The defendant relies on State v. Osman, 21 Conn. App. 299, 573 A.2d 743 (1990), rev'd on other grounds, 218 Conn. 432, 589 A.2d 1227 (1991). In Osman, two robbers entered a store, with one carrying a tire iron while the defendant possessed an unloaded pellet pistol. Id., 301. The defendant appealed from his conviction of robbery in the first degree, claiming that there was insufficient evidence. Id. The defendant had threatened to shoot the clerk, but had not threatened to use the pellet pistol as a bludgeon. Id., 307. The trial court denied his motion for a judgment of...