State v. Walton

• Decision Date: 16 June 1994
• Docket Number: No. 10492,10492
• Citation: 34 Conn.App. 223,641 A.2d 391
• Parties: STATE of Connecticut v. Lonnie WALTON.
• Court: Connecticut Court of Appeals

Page 391

641 A.2d 391

34 Conn.App. 223

STATE of Connecticut v. Lonnie WALTON.

No. 10492.

Appellate Court of Connecticut.

Argued Nov. 29, 1993.

Decided May 3, 1994.

Certification Denied June 16, 1994.

Estela I. Velez, Certified Legal Intern, with whom were Todd D. Fernow, and, on the brief, Michael Taylor, Certified Legal Intern, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and C. Robert Satti, Jr., Asst. State's Atty., for appellee (state).

Before FOTI, HEIMAN and CRETELLA, JJ.

FOTI, Judge.

The defendant 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)(2), ¹ and attempted assault in the first degree in violation of General Statutes §§ 53a-8, ² 53a-49 ³ and 53a-59(a)(1). ⁴ On appeal, the defendant asserts that (1) the charging document failed to set forth each essential element of the crimes charged, thereby depriving the court of jurisdiction, (2) there was insufficient evidence to sustain the convictions, and (3) the trial court improperly instructed the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the morning of June 2, 1990, the defendant and a second male approached the victim, Angel Perez, as he was getting out of his automobile in Bridgeport. The second male pointed a gun at Perez and demanded his car key. When Perez refused, he was told by the defendant to "give it to him or we will shoot you." Perez relinquished his car key and was told to sign over the title to the car or he would be shot. Perez agreed to do as commanded if they would allow him to remove some cans that he had collected for deposit money and stored in plastic bags in the car. While doing so, Perez pulled out a metal rod and hit the second male in the face several times. Perez then fled and was shot at by the second male. The defendant and the second male fled.

The police arrived and began a search of the area. The two assailants were observed walking together a short distance away and an officer ordered them to stop. The second male pulled a handgun from his waistband, handed it to the defendant, and fled. The defendant was seized. Shortly thereafter, Perez identified the defendant as one of the two men who had robbed him.

I

The defendant first claims that the information under which he was tried and convicted failed to charge him with all the essential elements of the two offenses. On April 10, 1991, the state filed a substitute long form information replacing an earlier long form information and the original short form information. ⁵ At no time had the defendant requested either that a bill of particulars or a long form information be filed. ⁶

The defendant claims that the first count of the information failed to commit the state to proving that a larceny occurred by the use or threatened use of force. As to the second count, the defendant claims the information failed to commit the state to proving that the defendant possessed the mental state required for the commission of aiding in attempted assault. The defendant argues that because the information failed to charge all the essential elements of the crimes, the trial court lacked subject matter jurisdiction and should have sua sponte set aside the convictions and dismissed the offenses. ⁷ We do not agree.

The sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution guarantee that a criminal defendant has the right to be informed of the nature and the cause of the charge or charges brought against him with sufficient precision to enable him to meet them at trial. State v. Kyles, 221 Conn. 643, 652, 607 A.2d 355 (1992). If the information was sufficient to allow the defendant to prepare his defense, to avoid prejudicial surprise, and to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense, then it has fulfilled its constitutional purpose. State v. Spigarolo, 210 Conn. 359, 381, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989).

In Connecticut, " 'it is sufficient for the state to set out in the information the statutory name of the crime with which the defendant is charged, leaving to the defendant the burden of requesting a bill of particulars more precisely defining the manner in which the defendant committed the offense.' ..." (Citations omitted.) State v. Vincent, 194 Conn. 198, 205, 479 A.2d 237 (1984), quoting State v. Ruiz, 171 Conn. 264, 270, 368 A.2d 222 (1976).

"When reviewing a claim, not raised prior to the verdict, that an information fails to charge all the essential elements of an offense, we must construe the information liberally in favor of the state.... [A] conviction based upon a challenged information is valid unless the information is so obviously defective that by no reasonable construction can it be said to charge the offense for which the conviction was had." (Citations omitted; internal quotation marks omitted.) State v. McMurray, 217 Conn. 243, 250, 585 A.2d 677 (1991).

The original short form information set forth the crimes with which the defendant was charged by name and statutory references. The information was sufficient, therefore, to invoke the jurisdiction of the court. State v. Crosswell, 223 Conn. 243, 267, 612 A.2d 1174 (1992); see also State v. Ruiz, supra, 171 Conn. at 270, 368 A.2d 222. The defendant concedes that the short form information originally filed put the defendant "on notice that he was being charged with all statutory alternative theories available for each offense." The defendant argues, however, that by subsequently filing a long form information the court was deprived of jurisdiction. There is nothing in the record that would bring us to conclude that the court lost its jurisdiction by the filing of a substitute long form information. There was no jurisdictional defect.

Further, the substitute long form information did not fail to charge an essential element of the crimes. In both counts of the information not only was the statutory name of the offense provided, but also the place, the date, the time, the general nature of the acts, and the name of the victim. The information was, at most, imprecisely drafted. It did not completely omit to charge an essential element of the offenses charged. State v. McMurray, supra, 217 Conn. at 252-53, 585 A.2d 677. ⁸

II

The defendant next contends that there was insufficient evidence to sustain either conviction. He contends that the state, by filing the substitute long form information, committed itself to proving its case in the manner described in the information. The defendant argues that because he was charged as a principal on the robbery count, the state must prove that he "stole" property from the victim in that he "physically seized, held, grasped, clutched, scratched or otherwise touched the victim's property unlawfully." The defendant claims that the absence of such proof requires a judgment of acquittal on the charge of robbery in the first degree. He also alleges that the state failed to prove that he engaged in any conduct, intentional or otherwise that in fact aided the second male's act of attempted assault. He argues that the state did not prove the actus reus and, therefore, the second count must also be dismissed.

When reviewing sufficiency of the evidence claims, we employ a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993). Second, we " 'determine whether, from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt.' " State v. Hooks, 30 Conn.App. 232, 238, 619 A.2d 1151 cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993); State v. Salz, supra, 226 Conn. at 31, 627 A.2d 862. "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." (Internal quotation marks omitted.) State v. Salz, supra, 226 Conn. at 31, 627 A.2d 862. "The issue is whether the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt." State v. Ruscoe, 212 Conn. 223, 245, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S.Ct. 1144, 107 L.Ed.2d 1049 (1990).

The trial court instructed the jury on accessorial liability. Those instructions were incorporated into the charge on robbery in the first degree. The defendant did not object to the substance of the accessory instruction as given by the court, but only to the application of the instruction to the robbery count because he claimed the state was limited by its information charging him as a principal. There was no exception taken to the accessory instruction as given on the assault charge.

" 'Under Connecticut law, a defendant may be convicted as an accessory even though he was charged only as a principal as long as the evidence presented at trial is sufficient to establish accessorial conduct.' " State v. Williams, 220 Conn. 385, 388, 599 A.2d 1053 (1991), quoting State v. Fleming, 198 Conn. 255, 268 n. 15, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S.Ct. 1797, 90 L.Ed.2d 342 (1986). There is no crime in this state of "being an accessory," but rather the accessory statute, General Statutes § 53a-8, ⁹ merely provides an alternative theory under which liability for the underlying substantive crime may be proved. State v. Gamble, 27 Conn.App. 1, 9, 604 A.2d 366, cert. denied, 222 Conn. 901, 606 A.2d 1329 (1992). "[T]here is no practical significance in being labeled as an 'accessory' or a 'principal' for the purpose of determining criminal...