State v. Vandeusen

• Decision Date: 03 November 2015
• Docket Number: AC 35504
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. SARA E. VANDEUSEN

STATE OF CONNECTICUT v. SARA E. VANDEUSEN

AC 35504

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued April 7, 2015

November 3, 2015

DiPentima, C. J., and Prescott, and Bear, Js.

(Appeal from Superior Court, judicial district of Litchfield, Ginocchio, J.)

Pamela S. Nagy, assigned counsel, for the appellant (defendant).

Timothy F. Costello, assistant state's attorney, with whom, on the brief, were David S. Shepack, state's attorney, and Dawn Gallo, senior assistant state's attorney, for the appellee (state).

Opinion

PRESCOTT, J. The defendant, Sara E. VanDeusen, appeals from the judgment of conviction, rendered after a jury trial, of one count of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-48; one count of being an accessory to an attempt to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1), 53a-49 (a) (2), and 53a-8; and one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (1). In addition, the jury also found, pursuant to an interrogatory on each count, that "the defendant or another participant used or was armed with and threatened the use of or displayed a firearm," and the court accordingly enhanced her sentence pursuant to General Statutes § 53-202k.

On appeal, the defendant claims that (1) the evidence was insufficient to support her conviction of conspiracy and attempt to commit assault in the first degree, and of risk of injury to a child, (2) the trial court improperly instructed the jury on the elements of conspiracy and attempt to commit assault in the first degree, and (3) the court improperly enhanced her sentence on the counts of conspiracy to commit assault in the first degree and risk of injury to a child pursuant to § 53-202k. We affirm the judgment of the court with respect to the first and the second claims. With respect to the third claim, we agree with the defendant that the court improperly enhanced her sentence on the counts of conspiracy to commit assault in the first degree and risk of injury to a child. We, thus, affirm the trial court's judgment in part and reverse it in part.

The following facts, which the jury reasonably could have found, and procedural history are relevant to this appeal. The charges against the defendant stem from a shooting that occurred on the evening of January 10, 2009, in Torrington at the residence of J.L., her then three year old son, A.S., and her boyfriend, Gregorio Rodriguez.¹

Prior to the shooting, the defendant and J.L. were good friends and had several mutual acquaintances, including the defendant's roommate, Carlos Casiano, as well as Alyssa Ayala and her boyfriend, Charles Knowles. At some point, however, the relationship between J.L. and Ayala became antagonistic because J.L. had a sexual encounter with Knowles in October or November, 2008. Once Ayala had learned of the encounter, she became angry with J.L. and threatened to "fuck that bitch up for messing with [her] man . . . ."

At the same time, the relationship between Rodriguez and Knowles also became antagonistic. Both were drug dealers, but belonged to two rival gangs. On January 9, 2009, Knowles and Rodriguez engaged in a fistfightat a local pub. As a result of the fight, Knowles suffered a broken facial bone, for which he sought treatment at a hospital the following day.

At the hospital, Knowles was accompanied by Ayala and Casiano. While waiting at the hospital, the trio discussed going to J.L.'s and Rodriguez' residence to "get back at them." Ayala, however, was concerned that neither Knowles nor she herself could participate in a physical altercation.² Ayala then called the defendant and explained to her the nature and extent of Knowles' injury.

The defendant later arrived at the hospital to pick up Ayala and Knowles. Once she had seen the extent of the injury, the defendant offered to fight J.L. instead of having Ayala fight J.L. because, according to the defendant, J.L.'s sexual relationships with both Rodriguez and Knowles had instigated the fight at the pub the previous night.

Ayala thereafter placed several telephone calls from a private number to J.L.'s residence, trying to ascertain whether she and Rodriguez were there by pretending to be someone else looking for Rodriguez. Having nevertheless recognized Ayala as the caller, J.L. told her that Rodriguez was home and further remarked that her minor child was also at home.³

Alarmed by Ayala's calls, J.L. called the defendant and told her that Ayala was "trying to start problems . . . ." During that conversation, J.L. threatened to "kick [Ayala's] ass" and stated that she had sexual intercourse with Knowles throughout the entire time that Ayala had been dating him. In addition, J.L. gave the defendant her new address, adding that Ayala could come over if she wanted to have an altercation.⁴

The defendant then called Ayala and relayed to her the essence of her conversation with J.L. and, once again, volunteered to fight in Ayala's stead. Knowles overheard J.L.'s challenge and became "mad" because J.L. had threatened to beat up his pregnant girlfriend. Knowles then called Casiano and asked Casiano to fight Rodriguez. Knowles also told Casiano to come get him at Ayala's residence and to bring the defendant because "she was the only one [who] knew where [J.L.] lived . . . ." Knowles then mentioned to Casiano that he had a gun. After the call to Casiano, Knowles also called his mother in New York and told her that he would be coming back there.⁵

Thereafter, Casiano and the defendant picked up Knowles in a green van. Before leaving Ayala's residence, Knowles retrieved a handgun from a shoe box in a bedroom closet. The trio then headed to J.L.'s residence. On the way to J.L.'s residence, the defendant saw that Knowles was armed. Despite her knowledge of the handgun, after pulling up in front of J.L.'s residence, the defendant called J.L. from her cellular phoneand asked her and Rodriguez to come out of the house. Sensing trouble, J.L. refused to come out, hung up the telephone, and turned off the lights in the living room, which was facing the street.

Once the defendant, Casiano, and Knowles realized that J.L. and Rodriguez were not going to come out, Knowles opened the van's door and fired his handgun at the residence. Inside of the residence, Rodriguez and J.L.'s friend, Casey Delmonte, who were watching television in a back bedroom, heard "a very loud noise . . . ." When Delmonte went to the living room window to investigate, she saw the taillights of a "bigger vehicle" as it drove away. At that time, none of them realized that they had heard the sound of gunshots.

Later that evening, however, J.L., Rodriguez, and Delmonte discovered that a bullet had pierced the front door window and lodged in a wall separating the entryway and the bedroom where Rodriguez, Delmonte, and A.S. had been watching television at the time of the shooting. The bullet had struck the wall at four feet, two inches above the floor. In addition, it was later discovered that a second bullet had struck a supporting pillar on the front porch of the residence.

Following the shooting, Knowles directed Casiano and the defendant to dispose of the gun by delivering it to someone in Waterbury. Thereafter, Knowles and Casiano went into hiding, ultimately ending up in New York. Ayala later also joined Knowles in New York. The defendant did not leave Torrington following the shooting. When the defendant was later interviewed by the police in connection with the shooting investigation, she denied any knowledge of the shooting and stated that she could not recall her whereabouts on the night in question. The defendant further stated that she did not know Knowles and that she had not called J.L. on the day of the shooting.

As a result of the investigation, the defendant was arrested on August 5, 2009, and charged with one count of conspiracy to commit assault in the first degree in violation of §§ 53a-48 and 53a-59 (a) (1); one count of being an accessory to an attempt to commit assault in the first degree in violation of §§ 53a-59 (a) (1), 53a-49 (a) (2) and 53a-8; and one count of risk of injury to a child in violation of § 53-21 (a) (1). In addition, the state sought to enhance the defendant's sentence on all counts pursuant to § 53-202k.

Following a trial, the jury found the defendant guilty as charged on all counts. Thereafter, the court sentenced the defendant to ten years incarceration, execution suspended after five years, followed by five years enhancement, pursuant to § 53-202k, on each count, to run concurrently, for a total effective sentence of fifteen years incarceration, suspended after ten years, followed by five years probation.⁶ This appeal followed. Addi-tional facts and procedural history will be set forth as needed.

ISUFFICIENCY OF EVIDENCE

We begin with the defendant's challenge to the sufficiency of the evidence to support her conviction of conspiracy to commit assault in the first degree, attempt to commit assault in the first degree as an accessory, and risk of injury to a child.

It is well settled that a defendant who "asserts an insufficiency of the evidence claim bears an arduous burden." (Internal quotation marks omitted.) State v. Rodriguez, 146 Conn. App. 99, 110, 75 A.3d 798, cert. denied, 310 Conn. 948, 80 A.3d 906 (2013). "[F]or the purposes of sufficiency review . . . we review the sufficiency of the evidence as the case was tried . . . . [A] claim of insufficiency of the evidence must be tested by reviewing no less than, and no more than, the evidence introduced at trial." (Internal quotation marks omitted.) State v. Nasheed, 121 Conn. App. 672, 682, 997 A.2d 623, cert. denied, 298 Conn. 902, 3 A.3d 73 (2010). "In reviewing a sufficiency of the 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...