State v. Wiedl

• Decision Date: 14 September 1994
• Docket Number: No. 11360,11360
• Citation: 644 A.2d 1313,35 Conn.App. 262
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Robert WIEDL.

Page 1313

644 A.2d 1313

35 Conn.App. 262

STATE of Connecticut v. Robert WIEDL.

No. 11360.

Appellate Court of Connecticut.

Argued May 3, 1994.

Decided June 22, 1994.

Certification Denied Sept. 14, 1994.

Robert G. Golger, with whom, on the brief, was Howard T. Owens, Jr., Trumbull, for appellant defendant.

Pamela S. Meotti, Deputy Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Cornelius Kelly, Asst. State's Atty., for appellee State.

Before DUPONT, C.J., and FOTI and FREEDMAN, JJ. FOTI, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of threatening in violation of General Statutes § 53a-62(a)(1), burglary in the second degree in violation of General Statutes § 53a-102(a), and criminal trespass in the first degree in violation of General Statutes § 53a-107(a). He was sentenced to a total effective sentence of eight years imprisonment, suspended after four years, with five years of probation. ¹ On appeal, the defendant claims that the trial court improperly (1) admitted evidence of his prior misconduct, and (2) submitted the charge of criminal trespass in the first degree to the jury because insufficient evidence was presented to sustain that conviction. He also claims that prosecutorial misconduct during closing argument deprived him of his right to a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim lived in an apartment attached to a thirty-four room house in Fairfield, and worked for the owners in exchange for free lodging. Only one road led to the main house and the entrance to that road had a gate house that was attended at all times. The names of all invited guests were supplied to the guards for purposes of admission.

The victim also worked as a waitress at a different location. On September 10, 1991, she arrived at her apartment at approximately 1 a.m. after waitressing. As she was leaving her apartment to take out the garbage, she heard a noise in the garage attached to her apartment. She entered the garage and discovered the defendant, with whom she had previously had a relationship, dressed in black clothing with black grease or paint on his face. He was crouched in a hiding position beside a car, and when she asked what he was doing there, he grabbed her wrists. She broke away from him and ran up the stairs and into her apartment. She tried to close the door on the defendant, but he forced his way through the door and inside. The victim pushed a security alarm button but it failed to operate. The defendant came at her and she struck him with a wood carving, which splintered from the impact. He picked up a jagged piece of wood and threatened to kill her. She feared for her safety and told the defendant to leave. She called 911 and told the dispatcher that there was a man in her house threatening to kill her. The defendant left before the police arrived.

I

The defendant first claims that the trial court improperly admitted evidence of his prior misconduct.

During the state's case-in-chief, the prosecuting attorney sought to introduce evidence, through the testimony of the victim, that in May, 1990, she awakened during the night to find the defendant in her bedroom, dressed entirely in black. At that time, the defendant ran immediately upon being observed. The state argued that this evidence was being offered to show a common scheme or to establish a continuing system of criminal activity. The defendant pointed out that identity was not an issue; he admitted that he was on the victim's premises on September 10, 1991, but claimed that he was there with her permission. He objected to the admission of this prior act evidence because it was highly prejudicial and did not tend to establish a type of signature offense. The trial court permitted the victim to testify as to that prior misconduct because it tended to demonstrate a common scheme of criminal activity.

"Evidence of a defendant's uncharged misconduct is inadmissible to prove that the defendant committed the charged crime or to show the predisposition of the defendant to commit the charged crime. State v. Mooney, 218 Conn. 85, 126, 588 A.2d 145, cert. denied, --- U.S. ----, 112 S.Ct. 330, 116 L.Ed.2d 270 (1991); State v. Sierra, 213 Conn. 422, 428, 568 A.2d 448 (1990). Exceptions to this rule have been recognized, however to render misconduct evidence admissible if, for example, the evidence is offered to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime." State v. Graham, 33 Conn.App. 432, 438, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994).

Uncharged misconduct evidence must satisfy a two part test in order to be admitted as an exception. The evidence must be relevant and material to at least one of the claimed exceptions, and its probative value must outweigh its prejudicial effect. State v. Cooper, 227 Conn. 417, 425, 630 A.2d 1043 (1993). The admission of such evidence is a decision within the discretion of the trial court; id., at 426, 630 A.2d 1043; we will reverse such a decision only when it is manifest that the trial court has abused its discretion or an injustice has occurred. State v. Santiago, 224 Conn. 325, 338-39, 618 A.2d 32 (1992). We will draw every reasonable presumption in favor of the trial court's ruling. State v. Cooper, supra, at 427, 630 A.2d 1043.

As the defendant points out, identity was not an issue in this case. It was unnecessary, therefore, to demonstrate that the defendant's acts were distinctive or similar to a signature. See State v. Mooney, supra, 218 Conn. at 131-32, 588 A.2d 145. Evidence of prior misconduct, however, may also be used to show a common scheme. "Generally, the determination of whether the uncharged misconduct evidence is relevant as proof of a common scheme or system of criminal activity depends on a number of factors. Those factors include: (1) the degree of general similarity between the uncharged and charged misconduct; (2) the frequency of the uncharged misconduct; and (3) the remoteness or closeness in time between the uncharged and charged misconduct." (Emphasis in original.) State v. Murrell, 7 Conn.App. 75, 87-88, 507 A.2d 1033 (1986).

The similarities between the two incidents were rather remarkable. In both instances, the defendant appeared at an unusual hour, in a secured area, dressed entirely in black, and attempted concealment or attempted to evade detection. These distinctive combinations of facts constitute more than the required "general" similarities. The trial court did not improperly admit such evidence as relevant to show a common scheme or system of criminal activity. The trial court could have reasonably found that the evidence had significant probative value on this issue, "especially where the similarities of the crimes are so striking, a circumstance that makes the evidence that much more probative." State v. Reddick, 33 Conn.App. 311, 328, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994).

We conclude that the trial court acted properly and did not abuse its discretion in determining that the evidence was relevant and material and that the probative value of the testimony outweighed any potential prejudicial effect on the jury.

II

The defendant next claims that the state presented insufficient evidence to establish the crime of criminal trespass in the first degree, General Statutes § 53a-107(a). ²

"The two part test for evaluating the sufficiency of the evidence in a jury trial is well established. First, the reviewing court construes the evidence presented at trial in a light most favorable to sustaining the verdict. State v. Baldwin, 224 Conn. 347, 368, 618 A.2d 513 (1993); State v. Gray, 221 Conn. 713, 719-20, 607 A.2d 391, cert. denied, --- U.S. ----, 113 S.Ct. 207, 121 L.Ed.2d 148 (1992); State v. Allen, 216 Conn. 367, 380, 579 A.2d 1066 (1990). The reviewing court then determines whether the jury could have reasonably found, on the basis of the facts established and the inferences reasonably drawn from them, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Baldwin, supra; State v. Gray, supra, [at] 720, ; State v. Allen, supra. In conducting this review, the probative force of the evidence is not diminished where the evidence, in whole or in part, is circumstantial rather than direct. State v. Baldwin, supra; State v. Gray, supra; State v. Allen, supra, [at] 380-381, ." State v. Wager, 32 Conn.App. 417, 429-30, 629 A.2d 1146, cert. denied, 228 Conn. 912, 635 A.2d 1231 (1993).

The evidence was sufficient under either subdivision (1) or (2) of § 53a-107(a) to have allowed the...