State v. Stephenson , 187 Conn. App. 20 ( 2019 )

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STATE OF CONNECTICUT v. JOSEPH
A. STEPHENSON
(AC 40250)
Sheldon, Bright and Mihalakos, Js.
Syllabus
Convicted of the crimes of burglary in the third degree, attempt to commit
tampering with physical evidence and attempt to commit arson in the
second degree in connection with a break-in at a courthouse, the defen-
dant appealed to this court. The defendant had two felony charges
pending against him and was scheduled to commence jury selection in
a trial of those pending charges. Two days before the start of jury
selection, a silent alarm was triggered at the courthouse at approximately
11:00 p.m. Upon arrival, the state police discovered, inter alia, a broken
window in an interior state’s attorney’s office, a black duffel bag with
six unopened canisters of industrial strength kerosene on the floor of
a state’s attorney’s office and several case files lying in a disorganized
pile on the floor near a secretary’s desk area. The defendant claimed,
inter alia, that the evidence presented at trial was insufficient to support
his conviction of each offense as charged by the state, which alleged,
as a common essential element of each charge, that the defendant had
entered the courthouse with the intent to commit the crime of tampering
with physical evidence therein so as to impair the availability of his
case files for use against him in the prosecution of the pending felony
charges. Held that the evidence was insufficient to support the defen-
dant’s conviction of the charged offenses; although there was physical
evidence that directly linked the defendant to the bag containing the
kerosene, which supported an inference that the defendant dropped the
bag where the police found it, there was no such evidence that placed
the defendant in the office where the files were located, as the state
presented no evidence at all from which the jury reasonably could have
inferred that the defendant entered the courthouse through the broken
window of the interior office and went to a filing cabinet in another
office and removed the files found on the floor, and although the state
argued that the defendant’s intent to tamper with physical evidence,
necessary to prove him guilty of each charged offense, could be inferred
from his handling of the files, the evidence presented, which did not
include the names of the disorganized case files or where those files
had been stored in the office before the intruder entered, show that the
intruder had touched, altered, destroyed, concealed or removed any of
the case files, or address any reason why the defendant might have
wanted to tamper with his case files, showed only that the defendant
entered the courthouse through the broken window, walked through
the office, and dropped the duffel bag on the floor; accordingly, in the
absence of any evidence that the defendant ever touched case files in
the state’s attorney’s office, or that he did so with the intent to tamper
with such files or their contents, the jury reasonably could not have
inferred that the defendant had that intent, as required to prove him
guilty of each of the three offenses of which he was convicted, and,
thus, his conviction could not stand.
Argued September 11, 2018—officially released January 8, 2019
Procedural History
Substitute information charging the defendant with
the crimes of burglary in the third degree, attempt to
commit tampering with physical evidence, and attempt
to commit arson in the second degree, brought to the
Superior Court in the judicial district of Stamford-Nor-
walk and tried to the jury before White, J.; verdict and
judgment of guilty, from which the defendant appealed
to this court. Reversed; judgment directed.
Vishal K. Garg, for the appellant (defendant).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Richard J. Colangelo, Jr., state’s
attorney, and Michelle Manning, assistant state’s attor-
ney, for the appellee (state).
Opinion
SHELDON, J. The defendant, Joseph A. Stephenson,
appeals from the judgment of conviction rendered
against him after a jury trial in the Stamford Superior
Court on charges of burglary in the third degree in
violation of General Statutes § 53a-103, attempt to com-
mit tampering with physical evidence in violation of
General Statutes §§ 53a-49 (a) (2) and (Rev. to 2013)
53a-155 (a) (1),1 and attempt to commit arson in the
second degree in violation of General Statutes §§ 53a-
49 (a) (2) and 53a-112 (a) (1) (B). The defendant claims
on appeal that (1) the evidence presented at trial was
insufficient to support his conviction on those charges,
and thus that he is entitled to the reversal of his convic-
tion and the entry of a judgment of acquittal on each
such charge, and (2) the court improperly prevented
him from presenting exculpatory testimony from his
trial attorney as to a conversation between them two
days before his alleged commission of the charged
offenses that tended to contradict the state’s claim that
he had a special motive for committing those offenses.
We agree with the defendant that the evidence pre-
sented at trial was insufficient to convict him of any of
the charged offenses, as the state charged and sought
to prove them in this case, and, thus, we conclude that
his conviction on those charges must be reversed and
this case must be remanded with direction to render a
judgment of acquittal thereon. In light of this conclu-
sion, we need not address the defendant’s second claim.
The following procedural history and evidence, as
presented at trial, are relevant to our resolution of the
defendant’s claims. On Sunday, March 3, 2013, at
approximately 11:00 p.m., the silent alarm at the Nor-
walk Superior Courthouse was triggered by the break-
ing of a window in the state’s attorney’s office on the
east side of the courthouse.2 Soon thereafter, Connecti-
cut State Trooper Justin Lund arrived at the courthouse,
followed almost immediately by Troopers Darrell
Tetreault and Alex Pearston. Upon Tetreault’s arrival,
he saw Lund standing ‘‘right against the building, at the
window, with his firearm deployed yelling at somebody
in the building.’’ Because, however, Lund was later
injured and could not testify at the defendant’s trial, no
evidence was presented as to what, if anything, he saw
or heard through the broken courthouse window at
that time.
The troopers promptly established a perimeter
around the outside of the courthouse and radioed for
the assistance of a canine unit. When a canine unit
arrived several minutes later, the troopers followed it
inside the courthouse, which they promptly searched
for intruders, without success.
The searching officers determined that the broken
window was located in an interior office on the east
side of the state’s attorney’s office, which was shared
by two assistant state’s attorneys, each of whom kept
a desk and certain personal effects in the office. Photos
of the interior office taken after the break-in showed
that a set of blinds that had been hanging in the window
through which the intruder entered the building were
bent and broken, but still hanging where they were
when the intruder came in through them.
Inside the larger state’s attorney’s office, the troopers
found a black duffel bag on the floor near the south
end of the corridor running past the doors of the three
interior offices on the east side of the larger office,
including the middle office where the intruder had bro-
ken the window and entered the building. The bag thus
lay to the far left of a person entering the larger office
through the door of the interior office with the broken
window. Inside the duffel bag were six unopened blue
canisters of industrial strength kerosene with their tags
and UPC strips cut off. The officers swabbed the bag
and the six canisters of kerosene for DNA.
Meanwhile, in the ‘‘secretary’s desk area’’ in the
northwest corner of the larger state’s attorney’s office,
across the room from and to the right of a person
entering the larger office from the interior office with
the broken window, the troopers found several case
files lying in a disorganized pile on the floor, where
they appeared to have been dumped, dropped or
knocked over. The secretary’s desk area contained two
adjacent desks on which telephones, computer moni-
tors, other case files, assorted office equipment and
personal memorabilia were arrayed. The desk further
to the north, in front of which the pile of files was
found, had two partially open drawers on its left side,
above which other case files were loosely stacked. To
the left of and behind the chair of a person sitting at
that desk were two large lateral file cabinets with case
files densely packed on open shelves inside them. No
evidence was presented as to which case files were
found either in the disorganized pile on the floor or in
the loose stack on the adjacent desk. Nor, because
those case files were never identified, was there any
evidence as to where such files had been stored in the
office before the intruder entered or whether, if the
intruder had moved such files to where they were found
from another location in the office, the intruder had
touched or disturbed anything in any such location in
such a way as to shed light on the object or purpose
of his search. None of the case files or any other objects
in any locations where they were stored before or found
after the break-in was dusted for fingerprints or
swabbed for DNA.
The troopers also recovered a ball-peen hammer from
the vestibule area just inside an exterior door to the
courthouse, marked ‘‘employee entrance only,’’ through
which it was later determined that the intruder fled
from the courthouse after the troopers arrived, and
began to search inside it. The troopers also swabbed
the hammer for DNA.
During their ensuing investigation, police investiga-
tors obtained and reviewed surveillance videos of the
outside of the courthouse, which had been taken on
the evening of the break-in by cameras installed on the
courthouse itself and in a beauty salon to the east of the
courthouse. Video footage obtained from those cameras
included a sequence in which an ‘‘individual . . .
dressed all in black, [who] appeared to have a black
mask on, [a] black jacket, [and] black pants, and
appeared to be carrying a black or dark colored bag
. . . approached the side of the courthouse, which is
the side that the window was broken on, the side adja-
cent to the beauty salon.’’ It also included, in the hour
before the foregoing sequence was recorded, several
other sequences in which a suspicious vehicle—a light
colored SUV with a defective rear brake light and a
roof rack on the top, a brush bar on the front, and a
tire mounted on the back—could be seen driving slowly
past the front of the courthouse and driving in and out
of the courthouse parking lot. Finally, it included a short
sequence, filmed shortly after the troopers entered the
courthouse, in which a person dressed all in black
emerged from the east side door of the courthouse and
ran away across the parking lot where the suspicious
vehicle had been seen before the break-in.
The troopers later identified the make, model and
vintage of the suspicious vehicle seen in the surveillance
videos as a Land Rover Freelander manufactured
between the years 2002 and 2005. They subsequently
determined that the database of the Connecticut
Department of Motor Vehicles listed 167 registered vehi-
cles that matched the suspicious vehicle’s description.
Later, upon narrowing their search to matching vehicles
registered to persons living in the Norwalk and Stam-
ford areas, investigators learned that one such vehicle,
a 2002 Land Rover Freelander, was registered to Chuck
Morrell, the defendant’s stepfather. When Morrell was
interviewed by the police, he informed them that he
had purchased the vehicle for his wife, the defendant’s
mother, in 2012, and that both the defendant and his
mother used the vehicle and were listed as insureds on
his automobile insurance policy. When police investiga-
tors finally examined Morrell’s vehicle several weeks
after the break-in, they found that it closely matched
the suspicious vehicle seen in the surveillance videos
because it not only had aftermarket equipment of the
sorts installed on the suspicious vehicle, but it had a
defective rear brake light.
In addition to the previously described information,
police investigators developed the following additional
information concerning the defendant’s possible
involvement in the courthouse break-in. On March 4,
2013, the day after the break-in, the defendant called
the Norwalk public defenders’ office to ask if the court-
house would be open that day. The defendant was then
scheduled to commence jury selection in the trial of
two felony charges then pending against him in Norwalk
the following day. The window that had been broken
and used to gain access to the courthouse on March 3,
2013, was located in the office of the assistant state’s
attorney who was responsible for prosecuting the
defendant in his upcoming trial.
The state also presented evidence that the defendant,
while incarcerated in April, 2013, made certain recorded
phone calls to his brother Christopher Stephenson, and
his mother, in which he discussed the March 3, 2013
break-in. In particular, the defendant’s brother told the
defendant in one such phone call that Morrell ‘‘must
have’’ told the police about the defendant’s use of the
Freelander on the evening of the break-in and the defen-
dant stated that the police ‘‘must have’’ seen the vehicle
at the courthouse on that evening. The defendant urged
his brother to say that he had been in New York at
the time of the break-in, and thereafter urged both his
brother and his mother not to discuss anything about
the break-in with the police.
Finally, upon testing the DNA swabs taken from the
physical evidence discarded by the intruder at the court-
house on the evening of March 3, 2013, personnel from
the Connecticut Forensic Science Laboratory deter-
mined that each swab contained a mixture of DNA from
at least two persons, and that the defendant could not
be eliminated as a possible contributor to any such
mixture.
In his own defense, the defendant presented testi-
mony from his brother that they were together in New
York on the evening of the break-in. In addition, he
attempted unsuccessfully to present testimony from his
attorney as to a conversation between them on the
Friday before the break-in, in which he had voiced his
intention to plead guilty to the charges then pending
against him in Norwalk rather than to go to trial the
following Tuesday. The trial court sustained the state’s
objection to such testimony on the ground that it was
inadmissible hearsay.
On the basis of the foregoing evidence, the state urged
the jury to find the defendant guilty of all three offenses
with which he was charged: burglary in the third degree
in violation of § 53a-103; attempt to commit tampering
with physical evidence in violation of §§ 53a-49 (a) (2)
and 53a-155 (a) (1); and attempt to commit arson in
the second degree in violation of §§ 53a-49 (a) (2) and
53a-112 (a) (1) (B).3 The state attempted to prove its
case against the defendant under the following, closely
intertwined theories of factual and legal liability.
As to the charge of burglary in the third degree, the
state claimed that the defendant had entered or
remained unlawfully in the courthouse, when it was
closed to the public and he had no license or privilege
to be there for any lawful purpose, with the intent to
commit the crime of tampering with physical evidence
therein. Although the state conceded that the defendant
had not completed the crime of tampering with physical
evidence while he was inside the courthouse, it none-
theless claimed that he had intended to commit that
offense within the courthouse by engaging in conduct
constituting an attempt to commit that offense therein.
On that score, the state further argued that the defen-
dant had broken into the courthouse through the win-
dow of the assistant state’s attorney who was
prosecuting him on two pending felony charges, entered
the larger state’s attorney’s office and gone directly to
the file cabinets where the state stored its case files,
and in the short time he had there before the state
police arrived in response to the silent alarm, begun to
rummage through the state’s case files in an effort to
find and tamper with the contents of his own case files.
Claiming that the defendant was desperate to avoid his
impending trial, the state argued that the defendant
thereby attempted to tamper with his case file by alter-
ing, destroying, concealing or removing its contents,
and thus to impair the verity or availability of such
materials for use against him in his upcoming trial.
Finally, as to the charge of attempt to commit arson in
the second degree, the state claimed that the defendant
had committed that offense by breaking into the Nor-
walk courthouse as aforesaid, while carrying a duffel
bag containing six canisters of industrial strength kero-
sene, and thereby intentionally taking a substantial step
in a course of conduct planned to culminate in the
commission of arson in the second degree by starting
a fire inside the courthouse, with the intent to destroy
or damage the courthouse building, for the purpose of
concealing his planned crime of tampering with physi-
cal evidence, as described previously.
The state expressly disclaimed any intent to prose-
cute the defendant for tampering with physical evidence
on the theory that he attempted to start a fire inside
the courthouse in order to damage or destroy the build-
ing, and thus to damage or destroy the contents of his
case files or their contents by fire. Instead, it claimed
that the defendant planned to start a fire in the court-
house in order to conceal his earlier crime of tampering
with physical evidence. Similarly, the state did not
allege or seek to prove that the defendant had commit-
ted burglary in the third degree by entering or remaining
unlawfully in the courthouse with the intent to commit
arson in the second degree therein.
Following a jury trial in which the jury was specifi-
cally instructed on the charged offenses under the pre-
viously-described theories of liability, the defendant
was found guilty on all three charges. He later was
sentenced on those charges to a total effective sentence
of twelve years incarceration followed by eight years
of special parole. This appeal followed.
The defendant first claims that the evidence pre-
sented at trial was insufficient to support his conviction
of any of the three offenses of which his jury found
him guilty because such evidence failed to prove a single
common essential element of those offenses, as the
state charged and sought to prove them in this case,
beyond a reasonable doubt. That common essential ele-
ment was that, upon entering the Norwalk Superior
courthouse on March 3, 2013, the defendant’s intent
was to tamper with physical evidence. In making this
claim, the defendant does not challenge the sufficiency
of the state’s evidence to prove that he was the intruder
who broke into the courthouse on the evening of March
3, 2013. Rather, he claims that neither his proven con-
duct on that evening, nor any of his words or actions
thereafter, afforded the jury any nonspeculative basis
for inferring that his intent, upon entering the court-
house on that evening, was to commit the crime of
tampering with physical evidence therein.4
‘‘In reviewing the sufficiency of the evidence to sup-
port a criminal conviction we apply a two-part test.
First, we construe the evidence in the light most favor-
able to sustaining the verdict. Second, we determine
whether upon the facts so construed and the inferences
reasonably drawn therefrom the [finder of fact] reason-
ably could have concluded that the cumulative force
of the evidence established guilt beyond a reasonable
doubt. . . . [I]n viewing evidence which could yield
contrary inferences, the jury is not barred from drawing
those inferences consistent with guilt and is not
required to draw only those inferences consistent with
innocence. The rule is that the jury’s function is to
draw whatever inferences from the evidence or facts
established by the evidence it deems to be reasonable
and logical.’’ (Emphasis added; internal quotation
marks omitted.) State v. Perez, 147 Conn. App. 53, 64–
65, 80 A.3d 103 (2013), aff’d, 322 Conn. 118, 139 A.3d
654 (2016). It is axiomatic, however, that in evaluating
the sufficiency of the evidence to support a criminal
conviction, the only theory of liability upon which the
conviction can be sustained is that upon which the case
was actually tried, in the sense that it was not only
charged in the information, but it was argued by the
state and instructed upon by the court. State v. Carter,
317 Conn. 845, 853–54, 120 A.3d 1229 (2015).
As a threshold matter, we note that the defendant is
correct in asserting that a common essential element
of his conviction of all three charges here challenged
is that, upon entering the Norwalk Superior courthouse
on the evening of March 3, 2013, he had the intent to
commit the crime of tampering with physical evidence
therein. All three counts of the amended long form
information on which he was brought to trial so alleged,5
the state’s attorney so argued in his closing arguments,6
and the court so instructed the jury in its final instruc-
tions on the law.7 Accordingly, the state does not dispute
this aspect of the defendant’s evidentiary sufficiency
claims on appeal. Therefore, our sole focus in resolving
those claims must be on whether the evidence pre-
sented at trial, construed in the light most favorable to
sustaining the challenged conviction, was sufficient to
prove beyond a reasonable doubt that, when the defen-
dant entered the courthouse on the evening of March
3, 2013, he did so with the intent to commit the offense
of tampering with physical evidence therein by some
means other than setting fire to the building.8
General Statutes § 53a-3 (11) provides that ‘‘[a] per-
son acts ‘intentionally’ with respect to a result or to
conduct described by a statute defining an offense when
his conscious objective is to cause such result or to
engage in such conduct . . . .’’ Section 53a-155 (a) (1),
in turn, provides in relevant part: ‘‘A person is guilty of
tampering with . . . physical evidence if, believing that
an official proceeding is pending . . . he . . . [a]lters,
destroys, conceals or removes any record, document
or thing with purpose to impair its verity or availability
in such [official] proceeding . . . .’’9 Under the forego-
ing provisions, a person acts with the intent to commit
tampering with physical evidence when, believing that
an official proceeding is pending, he engages in conduct
with the conscious objective of altering, destroying,
concealing or removing any record, document or thing
in order to impair its verity or availability for use in
that official proceeding. Here, more particularly, the
state claimed and sought to prove that the defendant
acted with that intent by breaking into the Norwalk
Superior courthouse, where he was about to start trial
in two pending felony cases, in order to alter, destroy,
conceal or remove his case files in those cases or their
contents, and thereby impair the verity or availability
of such materials for use against him in those prose-
cutions.
‘‘Intent is a question of fact, the determination of
which should stand unless the conclusion drawn by the
trier is an unreasonable one. . . . Moreover, the [jury
is] not bound to accept as true the defendant’s claim
of lack of intent or his explanation of why he lacked
intent. . . . Intent may be and usually is inferred from
conduct. Of necessity, it must be proved by the state-
ment or acts of the person whose act is being scrutinized
and ordinarily it can only be proved by circumstantial
evidence.’’ (Internal quotation marks omitted.) State v.
O’Donnell, 174 Conn. App. 675, 687–88, 166 A.3d 646,
cert. denied, 327 Conn. 956, 172 A.3d 205 (2017). ‘‘The
use of inferences based on circumstantial evidence is
necessary because direct evidence of the accused’s
state of mind is rarely available. . . . Furthermore, it
is a permissible, albeit not a necessary or mandatory,
inference that a defendant intended the natural conse-
quences of his voluntary conduct.’’ (Internal quotation
marks omitted.) State v. Lamantia, 181 Conn. App. 648,
665, 187 A.3d 513, cert. granted, 330 Conn. 919, A.3d
(2018).
The defendant does not dispute that two felony prose-
cutions, both official proceedings, were pending against
him in the Norwalk Superior Court when he allegedly
broke into the Norwalk Superior courthouse on the
evening of March 3, 2013, or that he lacked knowledge
of the pendency of those official proceedings, in which
trial was scheduled to begin two days later. Nor, to
reiterate, does he argue that the evidence presented at
trial was insufficient to prove that he was the intruder
who broke into the courthouse on that evening. Instead,
he claims that such evidence was insufficient to prove
that he then acted with the intent to tamper with physi-
cal evidence within the courthouse because the state
failed to establish any connection between his proven
conduct within the courthouse and any of the files or
materials with which he is claimed to have had the
intent to tamper. We agree.
Here, the state claims that, on the evening of March
3, 2013, the defendant broke a window in the state’s
attorney’s office at the courthouse, climbed through
that window into the office of the assistant state’s attor-
ney who was then prosecuting him on two felony
charges, walked through that office into the larger
state’s attorney’s office where he dropped a duffel bag
containing kerosene at the end of the corridor running
past it to his left, then ‘‘walked all the way around to
the [state’s attorneys’] case files’’ on the other side of
the larger office, where he ‘‘pull[ed] [the] files down
onto the floor and [went] through them.’’ The state
further argued to the jury such evidence showed that
the defendant’s intent was to tamper with his own case
files or their contents before lighting the building on
fire because he did not ignite one of the bottles of
kerosene and throw it through the broken window,
or start a fire immediately upon entering the building.
Instead, the state argued, ‘‘[the] [f]irst thing he did was
drop that bag of kerosene in the hall outside the office,
walk all the way around the wall past the secretary’s
desk and over to the corner where the criminal files
were kept and he started going through them.’’ On that
basis, the state claims that the defendant intended to
alter, destroy, conceal or remove either his own case
files or something contained within them, then to start
a fire within the office to conceal his act of tampering.
The state concedes that no witness saw the defen-
dant engage in any of these acts. Furthermore, although
there is physical evidence that directly links the defen-
dant to the bag containing the kerosene, supporting a
reasonable inference that the defendant dropped the
bag where the police found it, there is no such evidence
that puts the defendant in the office where the files
were located. Instead, the state argued that the jury
could infer that the defendant entered the office, pro-
ceeded to the secretary area where the files were
located, started to go through them and did so with the
intent of tampering with evidence all from the single
fact that there was a disorganized pile of files on the
floor. We conclude that this single fact was insufficient
for the jury to infer that the defendant ever touched
any case files in the state’s attorney’s office on March
3, 2013, let alone pulled case files out of any file cabinet
or off any desk, shelf or table, or that he went through
such files for any purpose, much less that he took any
steps to alter, remove, conceal or destroy the files or
their contents as or after he went through them. This
is true for four fundamental reasons. To reiterate, no
witness saw or heard the intruder doing anything while
he was inside the state’s attorney’s office or any other
part of the courthouse. The only person who may possi-
bly have seen or heard the intruder in that time frame
was Trooper Lund, who was seen standing by the bro-
ken window, and heard yelling at someone inside the
building when the other troopers arrived. Lund, how-
ever, did not testify because he had been injured in
another incident before trial began, and no other wit-
ness reported seeing or hearing anyone doing anything
inside the building during the break-in. Without such
direct testimony, the state was left to prove its claim
by circumstantial evidence based upon the intruder’s
proven conduct during the break-in and thereafter.
Second, although the state expressly theorized that
the intruder, upon entering the larger state’s attorney’s
office, dropped his duffel bag of kerosene down a hall-
way to his left, then circled all the way around the office
to his right, where he pulled case files out of lateral
file cabinets in that area and rummaged through them,
assertedly for the purpose of finding his own case files
and tampering with them or their contents, before
dumping the pulled out case files in a disorganized pile
on the floor, it failed to establish that the intruder ever
touched those or any other case files in the office during
the break-in. To begin with, no evidence was presented
that the files on the floor were not exactly where police
investigators found them when the state’s attorney’s
office last closed before the break-in. Although the
supervising state’s attorney testified that her colleagues
generally kept their case files in orderly fashion in the
lateral file cabinets in the secretary’s desk area, she did
not state that they always did so. In fact she testified
that they did not always do so, for they sometimes kept
their own files with them, particularly when they were
preparing cases for trial. This testimony was confirmed
by photographic evidence showing piles of case files
lying elsewhere in the office, undermining the state’s
unsupported contention that the files in the pile on
the floor must have been pulled out of the lateral file
cabinets and left there by the intruder. Indeed, such
photos also showed that the lateral file cabinets were
so densely packed with case files, without apparent
gaps or irregularities, as to make it unlikely that the
large number of files on the floor had been indiscrimi-
nately pulled out of there during the break-in.
Third, no list or inventory was ever made of the files
on the floor. Therefore, not only was there no evidence
that the defendant’s case files were among the files
found on the floor, but there was no evidence as to
where in the office any such files had been stored before
the break-in. Armed with such information, the state
might reasonably have claimed that the intruder gained
access to the files during the break-in and moved them
to where the police later found them on the floor. It
might also have been able to argue, from the names or
numbers on the files or the places where the intruder
had searched for and found them, that by selecting files
in that manner, the intruder had given evidence as to
his purpose in so doing. If, for example, the selected
files were in an alphabetical sequence that included
the defendant’s name, or in a numerical sequence that
included the date of the defendant’s upcoming trial,
such a selection might have supported the inference
that the intruder was searching for the defendant’s file.
Similarly, if he had selected files that were stored in
the office of the assistant state’s attorney who was
prosecuting his cases, such a selection might have sup-
ported the inference that he was searching for the defen-
dant’s files. In that event, the state might have further
supported its claim by lifting fingerprints from or taking
DNA swabs of the places where the selected files had
been stored or the files themselves. Without an inven-
tory of the files found on the floor, however, no such
logical inference could be argued and no supporting
forensic evidence was sought or presented.
Fourth and finally, there is no evidence that the defen-
dant’s purpose in going through any case files, if in fact
he did so, was to alter, destroy, conceal or remove them
or their contents from the state’s attorney’s office. No
evidence was presented that any case file was altered,
destroyed, concealed or removed in any way. Nor was
evidence presented as to the contents of the case files
in the defendant’s two pending cases, or of any reason
why the defendant might have found it in his interest
to tamper with them prior to his trial. Indeed, although
the supervising state’s attorney testified as to the types
of materials that case files often contain, including phys-
ical evidence and witness statements, neither she nor
any other witness offered evidence as to the contents
of the defendant’s pending case files, or advanced any
reason why the defendant might have believed that
it was in his interest to compromise their verity or
availability to the state in advance of his impending
trial. Nor could the jury have drawn an inference as to
the defendant’s motive to tamper with his case files
from the nature of his pending charges, for those
charges were never listed for the jury.
In conclusion, the state presented no evidence at all
from which the jury reasonably could have inferred that,
during the short period of time between the intruder’s
breaking of the window and the arrival of the state
police on the scene, the defendant entered the building
through that window and went directly to the filing
cabinet in another office and removed the files that
were later discovered on the floor. Although the state
argued that the defendant’s intent to tamper with physi-
cal evidence could be inferred from his ‘‘handl[ing]’’ of
those files, the evidence presented showed only that
the defendant entered the courthouse through the win-
dow of the office of two assistant state’s attorneys,
walked through that office and dropped the duffel bag
containing the six bottles of kerosene onto the floor in
the corridor running past that office, to the far left of
the door leading into the larger state’s attorney’s office.
In the absence of any evidence that the defendant
ever touched case files in the state’s attorney’s office,
much less that he did so with the intent to tamper with
such files or their contents, the jury reasonably could
not have inferred that the defendant had that intent, as
required to prove him guilty of each of the three offenses
of which he was convicted. Accordingly, his conviction
cannot stand.10
The defendant also claims, as previously noted, that
the court improperly prevented him from presenting
exculpatory testimony from his trial attorney as to a
conversation between them two days before his alleged
commission of the charged offenses that tended to con-
tradict the state’s claim that he had a special motive
for committing those offenses. Because we reverse his
conviction for the reasons stated previously, we need
not address this claim.
The judgment is reversed and the case is remanded
with direction to render judgment of acquittal on all
three charges against the defendant.
In this opinion the other judges concurred.
1
All references in this opinion to § 53a-155 (a) (1) are to the 2013 revision.
2
Although the state’s exhibit 36, which is a diagram of the Norwalk
Superior courthouse, bears a notation indicating that the window that was
broken was on the north side of the building, all of the other evidence at
trial indicates that it was, in fact, located on the east side of the building.
We therefore construe the notation on exhibit 36 as an error.
3
The defendant initially was charged with criminal mischief in the first
degree in violation of General Statues § 53a-115, rather than attempted
tampering with physical evidence.
4
The defendant also argues that, in order to convict him of attempting
to tamper with physical evidence, the state was required to prove beyond
a reasonable doubt that the documents or materials he attempted to tamper
with qualified as ‘‘physical evidence’’ within the meaning of General Statutes
§ 53a-146 (8), in that they constituted ‘‘any article, object, document, record,
or other thing of physical substance which is or is about to be produced
or used as evidence in an official proceeding.’’ General Statutes § 53a-146
(8). Because we reverse the defendant’s conviction on the ground that the
state failed to prove that the defendant intended to tamper with the case
files and/or their contents with which he is claimed to have attempted to
tamper, we need not address his claim that the state failed to prove that
such case files and their contents did not qualify as physical evidence under
§ 53a-146 (8).
5
In its amended long form information dated September 30, 2016, the
state charged the defendant as follows:
‘‘[The] State’s Attorney for the Judicial District of Stamford-Norwalk
accuses Joseph Stephenson of the crime of burglary in the third degree and
charges that in the city of Norwalk, on or about the [third] day of March,
2013, the said defendant . . . did enter and remain unlawfully in a building
with intent to commit the crime of tampering with physical evidence, in
violation of . . . [§§] 53a-103 and 53a-155 (a) (1). . . .
‘‘And said state’s attorney further accuses the defendant . . . of the crime
of attempted tampering with physical evidence, and alleges that, acting with
the belief that an official proceeding is pending and about to be instituted,
did an act, which under the circumstances as he believed them to be, was
an act which constituted a substantial step in a course of conduct planned
to culminate in his commission of the crime of tampering with evidence
in violation of . . . [§§] 53a-155 (a) (1) and 53a-49 (a) (2). . . .
’’And said state’s attorney further accuses the defendant . . . with the
crime of attempt at arson in the second degree and alleges that in the city
of Norwalk on or about the [third] day of March 2013, the said defendant
. . . with intent to destroy and damage a building, did an act, which under
the circumstances as he believed them to be, was an act which constituted
a substantial step in a course of conduct planned to culminate in starting
a fire and such fire was intended to conceal the crime of tampering with
physical evidence in violation of . . . [§§] 53a-112 (a) (1) (B), 53a-49
(a) (2), and 53a-155 (a) (1).’’ (Emphasis added.)
6
In its closing argument to the jury, the state argued specifically, inter
alia, that the evidence ‘‘clearly show[ed] . . . what [the defendant’s] motive,
and what his intentions were, and what that plan really was there to do
and that was to tamper with the files, to get to his case or any case, and
hinder the prosecution, the prosecution that was going to start in two
days.’’ (Emphasis added.)
7
The court instructed the jury, inter alia, that to find the defendant guilty
of burglary in the third degree, ‘‘the state must prove beyond a reasonable
doubt that, one, the defendant unlawfully entered a building and, two, that
he intended to commit a crime therein, to wit, tampering with physical
evidence.’’ (Emphasis added.)
The court also instructed the jury that: ‘‘A person is guilty of arson in the
second degree when, with intent to destroy or damage a building, he starts
a fire . . . and such fire was intended to conceal some other criminal act,
to wit, the crime of tampering with physical evidence.’’ (Emphasis added.)
8
As stated herein, the state expressly disavowed any contention that
the defendant intended to tamper with evidence by setting it on fire, and
consistently argued that the defendant intended to tamper with physical
evidence and then to conceal his act of tampering by setting the building
on fire.
9
Section 53a-155 was amended in 2015 to add that one may be guilty of
tampering during a criminal investigation or when a criminal proceeding is
about to commence.
10
The state has not argued that the defendant should be convicted of any
lesser included offenses in the event that we determine that the evidence
was insufficient to sustain his conviction. Accordingly, we have no occasion
to so order. See State v. Jahsim T., 165 Conn. App. 534, 541, 139 A.3d
816 (2016).