State v. Davis ( 2015 )

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STATE OF CONNECTICUT v. EDWARD
VICTOR DAVIS
(AC 36476)
Gruendel, Alvord and Dupont, Js.
Argued May 26—officially released October 6, 2015
(Appeal from Superior Court, judicial district of
Hartford, geographical area number twelve, Fuger, J.)
Peter G. Billings, with whom, on the brief, was Sean
P. Barrett, for the appellant (defendant).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Adam B. Scott, supervisory assistant state’s
attorney, for the appellee (state).
Opinion
GRUENDEL, J. The defendant, Edward Victor Davis,
appeals from the judgment of conviction, rendered after
a jury trial, of one count of operating a motor vehicle
with an elevated blood alcohol content in violation of
General Statutes § 14-227a (a) (2), one count of bribery
of a witness in violation of General Statutes § 53a-149
(a), one count of breach of the peace in the second
degree in violation of General Statutes § 53a-181 (a) (3)
and one count of interfering with a police officer in
violation of General Statutes § 53a-167a. He also appeals
from the judgment of conviction, following a trial to
the court, on a part B information, of being a third time
offender in violation of § 14-227a (g) (3). On appeal, the
defendant claims that § 53a-149 is unconstitutionally
vague as applied and that the evidence was insufficient
to support a finding of guilt beyond a reasonable doubt
on the bribery of a witness and the third time offender
counts. We affirm the judgment of the trial court.
The following facts reasonably could have been found
at trial. On November 20, 2010, the defendant and his
stepson, Jonathan Oakes, were boating on the Connecti-
cut River. While on the boat, the defendant consumed
eight or nine beers. In the late afternoon, the two
returned the boat to a boat launch in East Hartford,
loaded it onto a trailer attached to the defendant’s truck,
and drove away. At approximately 4:50 p.m., the defen-
dant and Oakes stopped at a liquor store and purchased
a bottle of Peppermint Schnapps. The defendant later
admitted to a police officer that he had personally con-
sumed almost a liter of Peppermint Schnapps.
At approximately 5:30 p.m., while driving his truck
on Route 83 in Manchester, the defendant collided with
a vehicle that had been stopped at a traffic signal. The
driver of the other vehicle, Paul Jarmoszko, testified
that he initially heard tires screech and then felt ‘‘a jolt
and the car got pushed forward . . . a few feet.’’ After
the accident, Jarmoszko and the defendant exited their
respective vehicles.1 Jarmoszko immediately went to
inspect the damage on the rear of his vehicle, while the
defendant inspected his boat. Shortly after inspecting
his boat, the defendant met Jarmoszko between the
two vehicles.
After observing the damage to Jarmoszko’s vehicle,
the defendant offered to pay him a ‘‘couple of hundred
bucks . . . .’’ Jarmoszko rejected the offer, at which
point the defendant ‘‘got agitated and said something
[to the effect of] this is how it’s going to be? Why
don’t we pull over to the side and settle it like men?’’
Jarmoszko, believing the defendant wanted to fight him,
told the defendant he was going to contact the police
and got back into his vehicle to place the phone call.
While speaking to the police, Jarmoszko observed the
defendant bang on his car’s window several times, yell
and then walk away. Jarmoszko later heard the engine
of the defendant’s truck start.
Shortly afterward, Michael Magrey, a Manchester
police officer, was dispatched to the scene of the acci-
dent. Magrey parked his police cruiser behind the truck
and approached the vehicle’s driver’s side. He observed
a single occupant in the driver’s seat of the truck who
was revving the vehicle’s engine and ‘‘appeared to be
out of it, under the influence of something.’’ This individ-
ual was later identified as Oakes. Magrey asked Oakes
to turn the truck’s engine off, hand over the keys and
step out of the vehicle. Oakes followed the officer’s
instructions and sat on the curb.
Magrey then went to make sure that Jarmoszko was
not injured. During his interaction with Jarmoszko,
Magrey was informed that Oakes was not the person
Jarmoszko had observed exiting the driver’s side door
after the accident. On the basis of this information,
Magrey asked Oakes where his companion was located,
to which Oakes responded that he was ‘‘in the back.’’
The officer eventually located the defendant lying down
inside the boat. His skin appeared blue or purple, was
cold to the touch, and his clothing was wet. Although
initially unresponsive to questioning, the defendant’s
demeanor changed drastically. He became hostile and
belligerent toward Magrey, yelling and cursing at him.
Magrey testified that the defendant kept ‘‘coming at
me’’ and he had to ‘‘put [the defendant] in an arm bar
[to] keep him down.’’ Eventually, another officer got
into the boat and was able to assist Magrey in placing
handcuffs on the defendant. The defendant remained
in this state of belligerence, attempting to spit on
Magrey and ambulance personnel who were attempting
to treat him. He was placed on a hospital gurney, while
in restraints, and taken to Manchester Hospital for treat-
ment. The defendant was treated and later released
from the hospital.
Medical records from the defendant’s treatment at the
hospital revealed that he had a blood alcohol content
of 0.165. The defendant was subsequently arrested by
officers of the Manchester Police Department. While in
police custody, the defendant admitted to Magrey that
he had spoken to Jarmoszko after the accident and had
offered him money in order to avoid police involve-
ment.2 During this discussion, the defendant further
admitted to having consumed almost a liter of Pepper-
mint Schnapps prior to the accident.
The state charged the defendant with the following
counts in the part A information: (1) driving under the
influence, (2) bribery of a witness, (3) threatening in
the second degree, (4) breach of the peace in the second
degree and (5) interfering with an officer. The state
also charged the defendant, under the part B informa-
tion, with being a third time offender. The part A counts
were tried to a jury and, at the conclusion of trial, a
verdict of guilty was returned on all counts with the
exception of the threatening count. Afterward, the state
proceeded on the part B information and the case was
tried to the court. At the conclusion of trial, the court
found the defendant guilty on the count of being a third
time offender. The defendant now appeals.
I
The defendant first claims that the evidence was
insufficient to support a conviction on the charge of
bribery of a witness. Specifically, he argues that the
state failed to prove that Jarmoszko was a witness under
the statute and that the defendant had the specific intent
to influence Jarmoszko in relation to an official pro-
ceeding. We are not persuaded.
The standard of review for claims of evidentiary insuf-
ficiency is well established. ‘‘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 construed and the inferences reason-
ably drawn therefrom the [jury] reasonably could have
concluded that the cumulative force of the evidence
established guilt beyond a reasonable doubt . . . .
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. Allan, 311 Conn. 1, 25, 83 A.3d 326 (2014). ‘‘[W]e
do not ask whether there is a reasonable view of the
evidence that would support a reasonable hypothesis
of innocence. We ask, instead, whether there is a rea-
sonable view of the evidence that supports the jury’s
verdict of guilty.’’ (Internal quotation marks omitted.)
State v. Stephen J. R., 309 Conn. 586, 594, 72 A.3d
379 (2013).
The following additional facts are relevant to our
resolution of this claim. At the conclusion of the state’s
case-in-chief, the defendant moved for a judgment of
acquittal on the bribery count. The defendant argued
that the state had failed to meet its burden of establish-
ing, beyond a reasonable doubt, that he made the offer
of money to Jarmoszko with the intent of influencing
his conduct or testimony in relation to an official pro-
ceeding. He argued that the statute required the exis-
tence of an official proceeding at the time of the offer
and that the state had not established the existence of
an ongoing official proceeding, noting that the defen-
dant was not arrested until months after the accident.
The court then denied the motion for acquittal. On
appeal, the defendant challenges the propriety of this
determination.
We begin our analysis with the language of the statute
at issue. Section 53a-149 (a) provides: ‘‘A person is guilty
of bribery of a witness if he offers, confers or agrees
to confer upon a witness any benefit to influence the
testimony or conduct of such witness in, or in relation
to, an official proceeding.’’ The state, therefore, was
required to establish the following: (1) that the defen-
dant offered, conferred or agreed to confer a benefit,
(2) to a witness, (3) with the intent of influencing the
witness’ testimony or conduct in relation to an offi-
cial proceeding.
General Statutes § 53a-146 provides statutory defini-
tions for the terms ‘‘official proceeding’’ and ‘‘witness.’’
Subdivision (1) of the statute defines an official pro-
ceeding as ‘‘any proceeding held or which may be held
before any legislative, judicial, administrative or other
agency or official authorized to take evidence under
oath,’’ and subdivision (6) defines a witness as ‘‘any
person summoned, or who may be summoned, to give
testimony in an official proceeding.’’ (Emphasis added.)
Thus, the statute defines an official proceeding as
broadly covering presently instituted proceedings, as
well as future proceedings that ‘‘may be held.’’ Accord-
ingly, the definition of a witness includes those who
have already been summoned to testify, as well as those
who may be called to testify in the future. This is consis-
tent with the purpose of the bribery and tampering
statutes, which ‘‘are purposely broad and general. Their
purpose is to prohibit all forms of corruption of the
governmental process . . . . They broaden the field of
corruption of witnesses and tampering with evidence.’’
Commission to Revise the Criminal Statutes, Penal
Code Comments, Conn. Gen. Stat. Ann. (West 2012)
§§ 53a-146 through 53a-167d, p. 288.
At trial, the defendant argued that his offer of a ‘‘cou-
ple of hundred bucks’’ to Jarmoszko was intended as an
offer to settle a civil dispute. Specifically, the defendant
asserted that, after causing the accident, the defendant
offered the money as a settlement for any damage he
caused to Jarmoszko’s vehicle. The state argued, in
contrast, that the defendant’s offer was made with the
purpose of keeping Jarmoszko from reporting the acci-
dent to the police. Thus, in determining the defendant’s
guilt as to the bribery charge, the jury was required to
determine what the defendant intended when he made
the offer. ‘‘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.’’ (Citations omitted; internal quotation
marks omitted.) State v. Delgado, 247 Conn. 616, 623–24,
725 A.2d 306 (1999). ‘‘Intent may be and usually is
inferred from conduct. Of necessity, it must be proved
by the statement or acts of the person whose act is
being scrutinized and ordinarily it can only be proved
by circumstantial evidence.’’ Paul Bailey’s, Inc. v. Com-
missioner of Motor Vehicles, 167 Conn. 493, 498, 356
A.2d 114 (1975).
Our review of the evidence establishes that, under
the facts of this case, the jury reasonably could have
concluded that the defendant’s offer was made with
the purpose of influencing Jarmoszko’s conduct and
avoiding police involvement. The jury heard the testi-
mony of Robert Powers, a doctor and an expert in
the field of forensic toxicology, who testified that the
defendant had an elevated blood alcohol content of
0.165 when he was treated at Manchester Hospital.3 The
jury also heard the testimony of Jarmoszko, who stated
that after the accident, he witnessed the defendant get
out of the driver’s side of his truck. He further testified
that after he declined the defendant’s monetary offer,
he returned to his car to call the police. While he was
on the phone with the police, the defendant banged on
the window of Jarmoszko’s vehicle and appeared visibly
agitated.4 This evidence supports a conclusion that the
defendant was driving under the influence of liquor at
the time of the accident, that he was aware that he had
committed a crime, and that he was concerned that he
would be arrested if the police were contacted. Thus, it
was reasonable for the jury to infer from the defendant’s
conduct, that after causing an accident while under
the influence, his offer of money was made with the
intention of influencing Jarmoszko’s conduct.
Furthermore, Officer Magrey testified that when he
arrived, he found a different person, Oakes, in the driv-
er’s seat of the truck and found the defendant lying
down in the boat. The jury could infer from this evi-
dence that, after the defendant’s monetary offer was
declined and the police were called, the defendant
engaged in a plan to place Oakes in the driver’s seat
and to hide in the boat. This further supports the conclu-
sion that the defendant’s intent was to influence the
conduct of a witness, rather than to offer a civil settle-
ment. Finally, Magrey testified that, while in police cus-
tody, the defendant admitted that the purpose of his
financial offer was to avoid police involvement.
The defendant argues that the statute requires the
existence of an official proceeding at the time the offer
was made. In particular, the defendant states that ‘‘[a]t
that time, the police had not yet been called, the defen-
dant had not yet been arrested, and there was no reason
to believe that Mr. Jarmoszko may be summoned to
any proceeding,’’ and, consequently, the state failed to
establish the existence of an ‘‘official proceeding’’ at
the time the defendant made the offer. We disagree on
the ground that the plain language of § 53a-146 specifi-
cally defines an official proceeding as ‘‘any proceeding
held or which may be held’’ and defines a witness as
‘‘any person summoned, or who may be summoned
. . . .’’ (Emphasis added.) Both of these statutory defi-
nitions encompass future proceedings that may be held
and witnesses who may be summoned. Accordingly,
the state was not required to establish the existence of
an official proceeding at the time of the defendant’s
offer.
We further note that the crime of bribery is committed
as soon as the offer is made, regardless of whether it
is ultimately accepted or whether the recipient ends up
serving as a witness. State v. Carr, 172 Conn. 458, 468–
69, 374 A.2d 1107 (1977). It is the offer, made with the
intent of thwarting an official proceeding, that consti-
tutes the crime. Thus, it is irrelevant whether the offer
was made before or after the institution of an official
proceeding.
Finally, the defendant argues that § 53a-149, when
interpreted in relation to other bribery and tampering
statutes, applies to offers made only after an official
proceeding has been instituted. In support of this posi-
tion, the defendant cites to the language in General
Statutes §§ 53a-151 and 53a-151a, which, respectively,
prohibit tampering and intimidation of a witness when
the perpetrator ‘‘believ[es] that an official proceeding
is pending or about to be instituted . . . .’’ The defen-
dant argues that the absence of similar language in
§ 53a-149 leads to the conclusion that the legislature
intended to criminalize bribes made only while an offi-
cial proceeding is in progress. Upon review of the stat-
utes, we conclude that the applicable language in the
tampering and intimidation statutes, while absent in
§ 53a-149, does not support the defendant’s claim.
The applicable language in §§ 53a-151 and 53a-151a
places an additional burden on the state to establish
that the tampering or intimidation was conducted by
an actor who ‘‘believ[ed] that an official proceeding is
pending or about to be instituted . . . .’’ This language
is not, as the defendant urges, directed at whether an
official proceeding has been instituted, but rather
whether the perpetrator’s actions were conducted with
the belief that a proceeding has been, or is about to be,
instituted. Conversely, § 53a-149 has no such language
regarding the actor’s beliefs. The bribery statute only
requires an offer or agreement with the intent of influ-
encing testimony or conduct. Accordingly, the absence
of such language in § 53a-149 does not limit its applica-
tion to bribes made only after the commencement of
an official proceeding. Viewed in the light most favor-
able to sustaining the verdict, we conclude that the
evidence was sufficient to convict the defendant on the
charge of bribery of a witness.
II
The defendant next claims that § 53a-149 is unconsti-
tutionally vague as applied to these facts. Specifically,
he claims that the terms ‘‘witness’’ and ‘‘official proceed-
ing’’ are broadly defined and did not place him on notice
that his actions could constitute criminal behavior.
We disagree.
‘‘The determination of whether a statutory provision
is unconstitutionally vague is a question of law over
which we exercise de novo review. . . . In undertaking
such review, we are mindful that [a] statute is not void
for vagueness unless it clearly and unequivocally is
unconstitutional, making every presumption in favor
of its validity. . . . To demonstrate that [a statute] is
unconstitutionally vague as applied to him, the [defen-
dant] therefore must . . . demonstrate beyond a rea-
sonable doubt that [he] had inadequate notice of what
was prohibited or that [he was] the victim of arbitrary
and discriminatory enforcement. . . . [T]he void for
vagueness doctrine embodies two central precepts: the
right to fair warning of the effect of a governing statute
. . . and the guarantee against standardless law
enforcement. . . . If the meaning of a statute can be
fairly ascertained a statute will not be void for
vagueness since [m]any statutes will have some inher-
ent vagueness, for [i]n most English words and phrases
there lurk uncertainties. . . . References to judicial
opinions involving the statute, the common law, legal
dictionaries, or treatises may be necessary to ascertain
a statute’s meaning to determine if it gives fair warn-
ing. . . .
‘‘The United States Supreme Court has set forth stan-
dards for evaluating vagueness. First, because we
assume that man is free to steer between lawful and
unlawful conduct, we insist that laws give the person
of ordinary intelligence a reasonable opportunity to
know what is prohibited, so that he may act accordingly.
Vague laws may trap the innocent by not providing fair
warning. . . . [A] law forbidding or requiring conduct
in terms so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its
application violates due process of law. . . . Second,
if arbitrary and discriminatory enforcement is to be
prevented, laws must provide explicit standards for
those who apply them. A vague law impermissibly dele-
gates basic policy matters to policemen, judges, and
juries for resolution on an ad hoc and subjective basis,
with the attendant dangers of arbitrary and discrimina-
tory applications. . . . Therefore, a legislature [must]
establish minimal guidelines to govern law enforce-
ment.’’ (Citations omitted; internal quotation marks
omitted.) State v. Winot, 294 Conn. 753, 758–60, 988
A.2d 188 (2010).
We begin our analysis by first addressing the defen-
dant’s choice in framing the facts underlying his claim.
The defendant argues that he was offering money to
settle a dispute over damages resulting from the acci-
dent and was unaware that these actions constituted
criminal conduct. This view of the facts, however, was
expressly rejected by the jury when it found the defen-
dant guilty of bribery. Inherent in the jury’s determina-
tion of guilt was a finding that the defendant’s offer
was not intended as a settlement offer, but rather, was
intended to encourage Jarmoszko to forgo contacting
the police. ‘‘Our review of factual determinations is
limited to whether those findings are clearly erroneous.
. . . We must defer to the [finder] of fact’s assessment
of the credibility of the witnesses that is made on the
basis of its firsthand observation of their conduct,
demeanor and attitude.’’ (Internal quotation marks
omitted.) State v. Osoria, 86 Conn. App. 507, 515, 861
A.2d 1207 (2004), cert. denied, 273 Conn. 910, 870 A.2d
1082 (2005). In part I of this opinion, we determined
that there was ample evidence to support the jury’s
determination of guilt as to the bribery of a witness
charge. Our role is not to sit as a seventh juror; State
v. Glasper, 81 Conn. App. 367, 372, 840 A.2d 48, cert.
denied, 268 Conn. 913, 845 A.2d 415 (2004); and, accord-
ingly, we defer to the jury’s factual determination as to
the defendant’s intent when he made the offer.
In light of these factual determinations, the statute
is not unconstitutionally vague as applied to the defen-
dant’s conduct. Although the defendant correctly points
out that there has been no prior case law interpreting
§ 53a-149 and that the terms ‘‘official proceeding’’ and
‘‘witness’’ are broadly defined, this, on its own, does
not amount to a deprivation of due process. A person
of ordinary intelligence, in the defendant’s position,
would have been on notice that by driving a motor
vehicle under the influence of a substantial amount of
alcohol, he was violating the law. See Provident Bank
v. Lewitt, 84 Conn. App. 204, 209, 852 A.2d 852 (‘‘every-
one is presumed to know the law, and . . . ignorance
of the law excuses no one’’ [internal quotation marks
omitted]), cert. denied, 271 Conn. 924, 859 A.2d 580
(2004). A person of ordinary intelligence would also
have been aware that Jarmoszko had experienced the
accident, had observed the defendant’s conduct after
the accident, and may have wanted to contact the police
to report the accident. Finally, a person of ordinary
intelligence could presume that any subsequent police
investigation could reveal the defendant’s blood alcohol
content, which would likely result in criminal charges.
Given these facts, the defendant had reasonably ade-
quate notice that, after driving under the influence of
alcohol, his efforts to alter the conduct of a likely
adverse witness would constitute bribery of a witness
under the statute.
This conclusion is further bolstered by the fact that
§ 53a-149 is a specific intent crime. It is well established
that ‘‘when a criminal statute is imprecise in describing
the actions it proscribes, the presence of a specific
intent requirement can temper that imprecision, thus
clarifying the meaning of the statute, narrowing its
application, and purg[ing] a potentially vague [provi-
sion] of constitutional infirmity.’’ (Internal quotation
marks omitted.) State v. Winot, supra, 294 Conn. 766.
The ‘‘requirement of the presence of culpable intent as
a necessary element of the offense does much to destroy
any force in the argument that application of [a statute]
would be so unfair that it must be held invalid.’’ Boyce
Motor Lines, Inc. v. United States, 342 U.S. 337, 342,
72 S. Ct. 329, 96 L. Ed. 367 (1952). Section 53a-149
requires that the act be made with the intent of ‘‘influ-
enc[ing] testimony or conduct,’’ thus clarifying and nar-
rowing the scope of conduct prohibited under the
statute.5
III
The defendant also challenges the evidentiary suffi-
ciency of his conviction on the part B information charg-
ing him as a third time offender pursuant to § 14-227a
(g) (3).6 Specifically, the defendant contends that the
evidence presented was insufficient to identify him as
the same person who was convicted in the two prior
judgments.7
The following procedural history is relevant to our
resolution of the defendant’s claim. After the jury found
the defendant guilty of driving under the influence of
liquor, the state proceeded on the part B information,
charging him as a third time offender. The defendant
waived his right to a jury trial on this count, and the
case was tried to the court. At trial, the state offered
the testimony of Antonio D’Addeo, an attorney in the
clerk’s office of the Manchester Superior Court. The
state also offered documentary evidence in the form of
a certified copy of a 2007 judgment from the Manchester
Superior Court as well as a document identified as a
copy of a 2000 judgment mittimus. D’Addeo testified
that the certified copy of the judgment confirmed that
a person with the defendant’s name and date of birth
was convicted of driving under the influence on October
23, 2007. D’Addeo then testified that the judgment mitti-
mus document reported that a person with the defen-
dant’s name and date of birth was also convicted of
driving under the influence on March 23, 2000. At the
conclusion of trial, the court found the defendant guilty
of being a third time offender. In reaching its guilty
determination, the court made a finding that the identi-
fying information in the documents matched the defen-
dant’s date of birth and home address. The court also
found that the documentary evidence sufficiently identi-
fied the defendant as having been previously convicted
on two separate occasions. We now review the suffi-
ciency of that determination.
We begin by setting forth the state’s burden in prose-
cuting a charge of operation of a motor vehicle as a
third or subsequent offender. This court has previously
held that ‘‘in most cases requiring the state to prove
beyond a reasonable doubt that the defendant pre-
viously has been convicted of a prior offense, that bur-
den will be met by the admission of a certified copy
of a judgment of conviction that contains the critical
information giving rise to the conviction, including iden-
tification of the particular statute pursuant to which
the defendant was convicted.’’ State v. Tenay, 156 Conn.
App. 792, 808–809, 114 A.3d 931 (2015). We have held
that information such as name, address, date of birth,
physical description, and operator’s license number are
all indicators that may be used for identification pur-
poses; State v. Hodkoski, 146 Conn. App. 701, 721, 78
A.3d 255 (2013); and that not all indicators are required
in order to determine that the defendant was the same
person who had been previously convicted. State v.
Windley, 95 Conn. App. 62, 67, 895 A.2d 270, cert.
denied, 278 Conn. 924, 901 A.2d 1222 (2006).
Construing the evidence in the light most favorable
to sustaining the conviction, we conclude that there is
ample evidence in the record to support the defendant’s
conviction. The certified copy of the judgment in the
2007 conviction listed a name, date of birth, and home
address matching the defendant’s information. This
court has previously held that a certified copy of a
judgment listing these indicators is sufficient to support
a conviction. See State v. Gordon, 84 Conn. App. 519,
534, 854 A.2d 74, cert. denied, 271 Conn. 941, 861 A.2d
516 (2004); see also State v. Gallichio, 71 Conn. App.
179, 190, 800 A.2d 1261 (2002) (evidence of identical
names alone was insufficient to prove defendant was
person previously convicted). Moreover, the 2007 judg-
ment document included an attached motor vehicle
summons and complaint, which listed a social security
number and physical description matching that of the
defendant.8
We also note that this court has previously held that
a certified copy of a judgment of conviction showing
that the defendant was sentenced as a second time
offender is sufficient evidence to establish the existence
of the defendant’s first offense. State v. Gordon, supra,
84 Conn. App. 534. In Gordon, this court reasoned: ‘‘For
the defendant to be sentenced as a second time offender
under [the statute], the court necessarily had to find
that he had been convicted of a prior offense. That
finding is embraced in the defendant’s judgment of con-
viction as a second time offender. The defendant’s first
conviction having been actually litigated and necessar-
ily determined for his conviction as a second time
offender, the defendant’s claim that his conviction as
a second time offender cannot establish his first convic-
tion necessarily is barred by collateral estoppel.’’ Id.,
533 n.4. Accordingly, even if we were to assume that
the evidence of the 2000 conviction was deficient, the
2007 judgment confirmed the first conviction by incor-
poration and was thus sufficient to establish proof of
the defendant’s two prior convictions.
The judgment is affirmed.
In this opinion the other judges concurred.
1
At trial, Jarmoszko positively identified the defendant as the operator
of the vehicle. He testified that the operator of the truck was a white male,
approximately six feet, one inch tall, with long curly hair who weighed
about 230 or 240 pounds.
2
The following colloquy occurred at trial:
‘‘[The Prosecutor]: Okay. And did he talk to you about the victim’s vehicle?
‘‘[Magrey]: He had mentioned, not specifically about, like, damage to the
vehicle or anything like that.
‘‘[The Prosecutor]: Yeah.
‘‘[Magrey]: But he had mentioned that he had spoken with the victim.
‘‘[The Prosecutor]: Okay. And what did he say?
‘‘[Magrey]: He said that he had offered to buy his car for him and not
have police involved.
‘‘[The Prosecutor]: All right. And specifically said, keep the police out—
not have the police involved?
‘‘[Magrey]: Something to that effect. Yes.’’
3
A person has an elevated blood alcohol content when he or she has ‘‘a
ratio of alcohol in the blood of such person that is eight-hundreds of one
per cent [(0.08)] or more of alcohol, by weight . . . .’’ General Statutes
§ 14-227a (a) (2).
4
Jarmoszko also testified that the defendant’s automobile insurance cov-
ered the entirety of repairs to Jarmoszko’s vehicle. The insurance company
paid for these repairs without questioning the defendant’s liability.
5
In his brief, the defendant argues that ‘‘any person involved in a car
accident could be classified under this definition and therefore any presuit
settlement offer could arguably fall under [the bribery statute]. . . . It sim-
ply cannot be the case that every civil settlement offer constitutes a violation
of this statute.’’ We agree that a monetary offer, made with the intent of
settling a civil dispute should not, and in fact does not fall within the ambit
of § 53a-149. We note, however, that the jury in this case did not find that
to be the defendant’s underlying intent. Under the bribery statute, it is the
intent of the actor that dictates whether his or her conduct is criminal. In
reaching our decision, we emphasize the distinction between offers to settle
civil disputes on the one hand, and attempts to influence official proceedings
through the use of financial offers. Allstate Ins. Co. v. Mottolese, 261 Conn.
521, 531, 803 A.2d 311 (2002) (‘‘[p]ublic policy favors and encourages the
voluntary settlement of civil suits’’).
6
General Statutes § 14-227a (g) provides in relevant part: ‘‘Any person
who violates any provision of subsection (a) of this section shall . . . (3)
for conviction of a third and subsequent violation within ten years after a
prior conviction for the same offense, (A) be fined not less than two thousand
dollars or more than eight thousand dollars, (B) be imprisoned not more
than three years, one year of which may not be suspended or reduced in
any manner, and sentenced to a period of probation requiring as a condition
of such probation that such person: (i) Perform one hundred hours of
community service, as defined in section 14-227e, (ii) submit to an assess-
ment through the Court Support Services Division of the Judicial Branch
of the degree of such person’s alcohol or drug abuse, and (iii) undergo a
treatment program if so ordered, and (C) have such person’s motor vehicle
operator’s license or nonresident operating privilege permanently revoked
upon such third offense, except that if such person’s revocation is reversed
or reduced pursuant to subsection (i) of section 14-111, such person shall
be prohibited from operating a motor vehicle unless such motor vehicle is
equipped with a functioning, approved ignition interlock device, as defined
in section 14-227j, for the time period prescribed in subdivision (2) of subsec-
tion (i) of section 14-111. . . .’’
We note that although § 14-227a (g) was amended since the date of the
crimes at issue; see Public Acts 2012, No 12-178, § 2; the changes are not
relevant to the merits of this appeal. For convenience, we refer to the current
revision of the statute.
7
The defendant also argues on appeal that the state failed to prove the
allegations contained within the part B information. Specifically, the defen-
dant claims that, although the part B information alleged that he was pre-
viously convicted on January 19, 2000, the evidence at trial only purported
to show a prior conviction on March 23, 2000. We conclude that this claim
is without merit. It is well established that ‘‘it is not essential in a criminal
prosecution that the crime be proved to have been committed on the precise
date alleged, it being competent ordinarily for the prosecution to prove the
commission of the crime charged at any time prior to the date of the
complaint and within the period fixed by the statute of limitations.’’ (Internal
quotation marks omitted.) State v. Morrill, 197 Conn. 507, 552, 498 A.2d
76 (1985).
8
The physical description in the summons and complaint listed the perpe-
trator as a white male, six feet, four inches tall, with blue eyes, blonde hair,
and weighing approximately 300 pounds. In the present case, the defendant’s
uniform arrest report listed the defendant as a white male, six feet, two
inches tall, with blue eyes, blonde hair, and weighing 300 pounds.