State v. Brantley ( 2016 )

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STATE OF CONNECTICUT v. AARON BRANTLEY
(AC 37123)
Keller, Mullins and Lavery, Js.
Argued November 18, 2015—officially released April 12, 2016
(Appeal from Superior Court, judicial district of New
Haven, B. Fischer, J.)
Daniel P. Scholfield, with whom was Hugh F. Keefe,
for the appellant (defendant).
Nancy L. Walker, deputy assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and Stacey Miranda, senior assistant
state’s attorney, for the appellee (state).
Opinion
MULLINS, J. After a trial to the court, the defendant,
Aaron Brantley, was convicted of one count of bribery
of a witness in violation of General Statutes § 53a-149.
The defendant now appeals, claiming that there was
insufficient evidence to sustain his conviction. We
affirm the judgment of the trial court.
At the conclusion of the defendant’s trial, the court,
B. Fischer, J., made the following findings of fact: ‘‘[The
defendant] is thirty-four years old, he’s been a firefighter
for approximately ten years. He was injured at work in
2011. He injured his shoulder. He was put on restrictions
of light duty for a period of time, off and on . . . . He
did have surgery as I recall in December of . . . 2011
. . . . He did file a workers’ compensation case in con-
junction with his work related injury and he alleged in
the summer of [2012], which is in evidence, that . . .
[Assistant Chief Patrick] Egan interfered inappropri-
ately in his comp[ensation] case by going to the doctor’s
office . . . . [A]nd this court does make a finding that
. . . within [the claim] that his . . . attorney . . .
then filed [with the Commission on Human Rights and
Opportunities (CHRO)]1 . . . [the] request for relief
concerning the actions of . . . Egan, the inappropriate
actions, discriminating against an employee with a
workers’ comp[ensation] case . . . [sought an award
of] damages or potential awarding of damages to the
defendant. The defendant in June of 2012 alleged in
a twelve page affidavit, which was part of his CHRO
complaint, and the complaint consists of forty-three
separate paragraphs in his affidavit which goes into
great detail about his allegations of racial discrimination
and other discrimination imposed upon him by . . .
Egan and others at the . . . New Haven Fire Depart-
ment and the city of New Haven . . . .’’2
The court also made the following findings of fact:
‘‘[Corey] Bellamy has been a New Haven firefighter for
. . . nine or ten years. He is friends with [the defen-
dant]. They had a good relationship. There were some
phone calls . . . between the two in June [2012], I don’t
know the extent of those phone calls but there were
phone calls there. The defendant at a point in time did
tell Mr. Bellamy about a pending lawsuit he has or was
preparing with the assistance of his attorney against
the city of New Haven, and specifically . . . Egan and
some others in the city of New Haven and the fire
department. On August 24, 2012, Mr. Bellamy did go to
the New Haven Police Department and gave a statement
concerning this matter to Detective [Lynn] Meekins of
the New Haven Police Department. . . .
‘‘The statement that he gave was close in time to the
events of June and July [of] 2012. The statement was
given in a reliable setting, it was given in the New Haven
Police Department and it was given to a police officer.
And . . . Bellamy should know, or would have known
that giving a false statement to a police officer is a
crime and he could have been arrested for a felony if
it was proven that he gave a false statement to police.
‘‘Now, what Mr. Bellamy did when he came in front
of this judge to testify in this trial is he got on the
stand and he raised his right hand and he told me that
everything he told the police back [o]n August 24, 2012,
was a lie. . . . [A]s far as [a] bribe or alleged bribe
he indicated to this court that everything he said was
a lie. . . .
‘‘I don’t find that credible. I do find credible what he
gave in his statement to the police department [o]n
August 24, 2012. And what that statement indicates and
I find . . . is that he was present when Assistant Chief
Egan asked the defendant to put gas in his truck or
car, that the defendant didn’t like this order from Egan,
and eventually what happened shortly after that, again
. . . we’re not good on the dates, but shortly after that
the defendant offers to . . . Bellamy 2 or 3 percent of
[any] potential proceeds of a lawsuit to tell courts or
attorneys the situation that happened with Assistant
Chief Egan, and this was done on the phone. Several
days after that firefighter Bellamy then goes to his
supervisor . . . [Faustino] Lopez, and he indicates to
. . . Lopez that the defendant . . . offered him 2 to 3
percent that he would give to Bellamy [because] he
was supposed to get a chunk of money if this lawsuit
works out.
‘‘So [Bellamy] was consistent with his comments to
Lopez, the phone call that he received from the defen-
dant, and he was consistent when he told the police,
in this court’s opinion, his statement on August 24,
2012. . . .
‘‘Lopez . . . is friends with the defendant . . . .
There were numerous calls in June [2012] initiated by
the defendant to him in a two week period of time.
. . . [B]ellamy reported to . . . Lopez that the defen-
dant did give—offered to give him 2 or 3 percent of
proceeds of a claim against Egan and the city of New
Haven.
‘‘[Lopez] was a witness to an incident where . . .
Egan had asked the defendant . . . and . . . Lopez at
some time at work where they were going, so Lopez
was there present for that episode. [The defendant] did
take some offense to that inquiry by [Egan] concerning
the question about where they were going. The defen-
dant then offers Lopez the same 2 to 3 percent payout
of the proceeds or payout of a claim, claimed lawsuit,
or proceeds from litigation. . . . Lopez declines this
offer.3 Subsequent to that the defendant then calls up
Lopez on the phone and he asks him to reconsider the
2 to 3 percent payout. Again, Lopez declines that. In late
June . . . Lopez [has] a brief meeting with . . . Egan.
‘‘And I’m going to read from [the state’s] Exhibit [2]
concerning evidence that I am discussing, and I’m on
page ten . . . which says as follows, and . . . this is
Lopez’ statement: ‘Something coming up real soon, that
was imminent, as far as a lawsuit, and maybe something
was going to take place in the media and that [the
defendant] wanted . . . me to testify in his behalf, even
after I told him that I didn’t have any evidentiary value
for the testimony ’cause I didn’t believe he was harassed
at that time. And he, that’s why he approached me with
the monetary percent and said, ‘‘If you were to kind of
alter your testimony I will pay you to do that.’’ ’ . . .
And on page twelve of the. . . statement it goes as
follows: ‘He wanted to include me in that and he wanted
me to testify. Once I told him I didn’t believe it was
that there—that there was a way that I wouldn’t have
anything to offer. That’s when he said, well, what if I
give you—what if I give you 2 or 3 percent, whatever
you want of any monetary settlement I get from the
case that I’m going to file, coming up pretty soon.’ The
detective then [asked] did he suggest to you [what] he
wanted you to say, and this is Lopez’ response: ‘Yes,
he said that he wanted me to say that he believed that
he was being harassed by Chief Egan, [and] that I felt
that it was a direct harassment, [and] that I [didn’t]
really get asked those questions by Chief Egan, where
I was going and what I was doing. That’s what he wanted
me to basically say.’
‘‘So we have testimony from two of the defendant’s
friends, Lopez and Bellamy, that the defendant offered
a benefit to them to testify on his behalf. There is no
motive or bias that either of these witnesses have
against the defendant . . . there’s no reason that this
court finds that they would fabricate the story. It’s not
like . . . Egan came in here and said that, where
there’s obviously, to say the least, hard feelings between
[him and the defendant] . . . . But what we have in
front of this court is two individuals with, in this court’s
opinion, no axe to grind, who were . . . approached
by the defendant on separate dates and offered the
same benefit to testify in official proceedings by the
defendant, again, with no axe to grind.
***
‘‘I don’t find credible at all that [the defendant] did
not offer a monetary benefit to witnesses Bellamy
and Lopez.’’4
After making these findings, the court concluded that
the state had proved both that Bellamy and Lopez were
witnesses in an official proceeding and that the defen-
dant had offered each a benefit. With regard to the offer
of a benefit, the court found that ‘‘the defendant offered
to both witnesses Bellamy and Lopez . . . a 2 to 3
percentage share of any proceeds the defendant would
receive from the defendant’s legal claims against the
city of New Haven and . . . Egan . . . .’’
As to whether the state had proved that the defendant
intended to influence testimony, the court found that
the state had carried its burden as to Lopez only. ‘‘[T]he
defendant requested that the witness . . . Lopez alter
his testimony and that the defendant would pay him
to do it concerning alleged harassment by . . . Egan.
Therefore, as to this count the court finds that the state
has met its burden of proof beyond a reasonable doubt
that the defendant specifically intended to influence
the testimony of Mr. Lopez. So as to count two this
court makes a finding of guilty.’’
On August 1, 2014, the court denied the defendant’s
motion for a new trial and his motion to vacate his
conviction and for a judgment of acquittal. On the same
date, the court imposed a sentence of one year of impris-
onment, execution suspended after nine months, and
one year of conditional discharge. This appeal followed.
On appeal, the defendant claims that there was insuf-
ficient evidence to sustain his conviction. His claim
is twofold.
First, he argues that the sufficiency of the evidence
standard applied by reviewing courts of this state denies
a defendant due process of law because it permits the
affirmance of a conviction so long as there is ‘‘some
evidence’’ supporting each element of the crime and,
consequently, renders toothless the concept of reason-
able doubt.5
Second, he argues that there was insufficient evi-
dence in the present case to sustain the trial court’s
findings that the state proved beyond a reasonable
doubt (1) that he specifically intended to influence
Lopez’ testimony and (2) that he offered Lopez a benefit.
I
The defendant first claims that the sufficiency of the
evidence standard that reviewing courts of this state
apply is too malleable to guard adequately a defendant’s
due process right not to be convicted except upon proof
beyond a reasonable doubt.6 He argues that under the
existing standard, rather than review the evidence to
ensure that it proves each element of a charged offense
beyond a reasonable doubt, an appellate court invari-
ably will uphold a conviction so long as there is some
evidence to support each element of that offense. He
appears to argue that we should reformulate this stan-
dard to protect more adequately the requirement of
proof beyond a reasonable doubt. We are unpersuaded,
and, in light of Supreme Court precedent binding us to
the current standard, we decline to do so.
We set forth this well-established standard as articu-
lated by our Supreme Court. ‘‘In [a defendant’s] chal-
lenge to the sufficiency of the evidence . . . [w]hether
we review the findings of a trial court or the verdict of
a jury, our underlying task is the same. . . . We first
review the evidence presented at trial, construing it in
the light most favorable to sustaining the facts expressly
found by the trial court or impliedly found by the jury.
We then decide whether, upon the facts thus established
and the inferences reasonably drawn therefrom, the
trial court or the jury could reasonably have concluded
that the cumulative effect of the evidence established
the defendant’s guilt beyond a reasonable doubt. . . .
In assessing the defendant’s claim that the evidence
against him was insufficient to establish his guilt . . .
we must look to the trial court’s findings of fact. . . .
[W]e give great deference to the findings of the trial
court because of its function to weigh and interpret the
evidence before it and to pass upon the credibility of
witnesses. . . .
‘‘In evaluating evidence that could yield contrary
inferences, the trier of fact is not required to accept as
dispositive those inferences that are consistent with
the defendant’s innocence. . . . The trier [of fact] may
draw whatever inferences from the evidence or facts
established by the evidence it deems to be reasonable
and logical. . . . As we have often noted, proof beyond
a reasonable doubt does not mean proof beyond all
possible doubt . . . nor does proof beyond a reason-
able doubt require acceptance of every hypothesis of
innocence posed by the defendant that, had it been
found credible by the trier [of fact], would have resulted
in an acquittal. . . . On appeal, we 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 reasonable view of the evi-
dence that supports the [trier of fact’s] verdict of guilty.’’
(Citations omitted; internal quotation marks omitted.)
State v. Drupals, 306 Conn. 149, 157–58, 49 A.3d 962(2012); see also State v. George A., 308 Conn. 274, 283–
84, 63 A.3d 918 (2013).
The defendant’s argument that this court should reex-
amine this standard of review warrants little discussion,
for, ‘‘[a]s an intermediate court of appeal, we are unable
to overrule, reevaluate, or reexamine controlling prece-
dent of our Supreme Court. . . . As our Supreme Court
has stated: [O]nce this court has finally determined an
issue, for a lower court to reanalyze and revisit that
issue is an improper and fruitless endeavor.’’ (Citation
omitted; internal quotation marks omitted.) State v.
LaFleur, 156 Conn. App. 289, 302–303, 113 A.3d 472,
cert. denied, 317 Conn. 906, 114 A.3d 1221 (2015).
In any event, our existing sufficiency standard is vir-
tually identical to the sufficiency standard formulated
by the United States Supreme Court, which was estab-
lished to protect the constitutional requirement of proof
beyond a reasonable doubt recognized in In re Winship,
397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).
Compare State v. Drupals, supra, 306 Conn. 157–58,
and State v. Harris, 85 Conn. App. 637, 652, 858 A.2d
284, 295 (‘‘[T]he inquiry into whether the record evi-
dence would support a finding of guilt beyond a reason-
able doubt does not require a court to ask itself whether
it believes that the evidence . . . established guilt
beyond a reasonable doubt. . . . Instead, the relevant
question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.’’ [Internal quota-
tion marks omitted.]), cert. denied, 272 Conn. 901, 863
A.2d 695 (2004), with Jackson v. Virginia, 443 U.S. 307,
318–19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (‘‘After Winship
the critical inquiry on review of the sufficiency of the
evidence to support a criminal conviction must be . . .
to determine whether the record evidence could reason-
ably support a finding of guilt beyond a reasonable
doubt. [T]his inquiry does not require a court to ask
itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt. . . .
Instead, the relevant question is whether, after viewing
the evidence in the light most favorable to the prosecu-
tion, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt. . . . This familiar standard gives full play to
the responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate
facts. Once a defendant has been found guilty of the
crime charged, the factfinder’s role as weigher of the
evidence is preserved through a legal conclusion that
upon judicial review all of the evidence is to be consid-
ered in the light most favorable to the prosecution. The
criterion thus impinges upon jury discretion only to the
extent necessary to guarantee the fundamental protec-
tion of due process of law.’’ [Citations omitted; empha-
sis in original; footnotes omitted; internal quotation
marks omitted.]), rehearing denied, 444 U.S. 890, 100
S. Ct. 195, 62 L. Ed. 2d 126 (1979).
Moreover, contrary to the defendant’s argument,
under the existing standard, the reversal of a conviction
for insufficiency of the evidence when there is only
some evidence of guilt, rather than proof beyond a
reasonable doubt, is not uncommon in our appellate
jurisprudence. See, e.g., State v. Stovall, 316 Conn. 514,
521–23, 115 A.3d 1071 (2015) (evidence of defendant’s
storage of drugs packaged for sale in apartment in pub-
lic housing complex known for drug trafficking, even
if sufficient to show intent to sell drugs at unspecified
future time and place, deemed insufficient to prove
intent to sell drugs in or within 1500 feet of public
housing beyond reasonable doubt); State v. Jordan, 314
Conn. 354, 385–88, 102 A.3d 1 (2014) (evidence that
defendant discarded clothing he wore during attempted
bank robbery as police chased him minutes afterward,
even viewed in light most favorable to sustaining ver-
dict, insufficient to support tampering with physical
evidence conviction because jury would have had to
‘‘stack inferences based on surmise’’ to conclude that
defendant believed that official proceeding against him
was probable); State v. Krijger, 313 Conn. 434, 459–60,
97 A.3d 946 (2014) (even accepting jury’s resolution of
conflicting accounts of defendant’s statement, as
reviewing court must, evidence insufficient to sustain
true threat conviction where statement susceptible to
both threatening and nonthreatening interpretations
and state’s evidence did not resolve ambiguity); State
v. Tenay, 156 Conn. App. 792, 811–13, 114 A.3d 931(2015) (en banc) (reversing defendant’s conviction as
third time offender because evidence of case abstract
from Florida court, allegedly evincing prior conviction
in Florida of driving under influence, and related finger-
print card were insufficient to prove beyond reasonable
doubt that he had violated out-of-state statute for driv-
ing under influence). These cases demonstrate that our
sufficiency standard, as applied by our reviewing
courts, requires not just some evidence, but evidence
sufficient to prove each element beyond a reasonable
doubt.
Because we are bound by the existing sufficiency
standard as enunciated by our Supreme Court, we will
apply it to the defendant’s sufficiency claims in the
present case.
II
A
The defendant next claims that the court improperly
concluded that there was sufficient evidence of his
intent to influence Lopez’ testimony. He argues that a
court cannot properly find that the element of intent
to influence has been proved without having before it
‘‘some evidence of what the witness was supposed to
say, and how that testimony would be different from
what would otherwise be offered.’’ On the basis of our
review of the record, we conclude that there was, in
fact, such evidence before the court and that the court
reasonably could have concluded on the basis of that
evidence that the state proved this element beyond
a reasonable doubt. Accordingly, the defendant’s first
sufficiency claim fails.
The defendant couches this claim in terms of statu-
tory construction, arguing that the court misconstrued
§ 53a-149 to allow a finding that the defendant intended
to influence testimony even in the absence of evidence
of how the testimony that he asked Lopez to give was
different from the testimony that Lopez would have
given.7 We disagree.
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 testi-
mony or conduct of such witness in, or in relation to,
an official proceeding.’’ To obtain a conviction under
§ 53a-149 (a), ‘‘[t]he state . . . was required to estab-
lish the following: (1) that the defendant offered, con-
ferred 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 official proceeding.’’ State
v. Davis, 160 Conn. App. 251, 258, 124 A.3d 966, cert.
denied, 320 Conn. 901, 127 A.3d 185 (2015). Our appel-
late courts have not had an occasion to interpret what
constitutes an intent to influence within the meaning
of § 53a-149 (a). We nevertheless have guidance in the
form of our Supreme Court’s construction of the prede-
cessor of § 53a-149,8 General Statutes (1930 Rev.)
§ 6168.9
When interpreting what constituted an intent to influ-
ence testimony within the meaning of that statute, the
court in State v. Ventola, 122 Conn. 635, 640, 191 A. 726(1937), stated that ‘‘[i]t is unnecessary that the thing
offered or given is to induce a witness to testify falsely.
It is sufficient if it were given with intent to influence
his testimony or conduct. In the common acceptation
of the term, the verb influence means to alter, move,
sway, or affect. . . . If the promise or payment [was]
made with the intent to affect the testimony or conduct
of the prospective witness so that he would thereby be
induced to testify more or less favorably to a party than
he otherwise would have done, an intent to influence
within the meaning of the statute exists.’’ (Citation omit-
ted; internal quotation marks omitted.)
In the present case, the trial court interpreted the
intent to influence element of § 53a-149 (a) consistent
with the interpretation condoned by the court in Ven-
tola. The court stated that the defendant possessed the
requisite intent to influence Lopez’ testimony inasmuch
as he ‘‘requested that the witness . . . Lopez alter his
testimony and that the defendant would pay him to do
it concerning alleged harassment by . . . Egan.’’ The
court interpreted the term influence as meaning to alter.
This interpretation comports with our Supreme Court’s
construction of the relevant statutory language.
The defendant also argues that there was insufficient
evidence of an intent to influence because there was
no evidence before the court of what Lopez was sup-
posed to say or how it was different from the testimony
he would have given. Again, we disagree. ‘‘Intent is a
question of fact, the determination of which should
stand unless the conclusion drawn by the trier is an
unreasonable one.’’ (Internal quotation marks omitted.)
State v. Carter, 317 Conn. 845, 857, 120 A.3d 1229 (2015).
‘‘Intent may be, and usually is, inferred from [a] defen-
dant’s verbal or physical conduct. . . . Intent may also
be inferred from the surrounding circumstances. . . .
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.’’ (Emphasis omitted;
internal quotation marks omitted.) State v. Ortiz, 312
Conn. 551, 565, 93 A.3d 1128 (2014).
In the present case, there was ample evidence before
the court, in the form of Lopez’ statement to Meekins,
from which it reasonably could infer the defendant’s
intent to influence Lopez’ testimony. Specifically, Lopez
told Meekins that he told the defendant that he did not
feel that Egan had harassed the defendant by asking
Lopez where he was going when Egan saw Lopez with
the defendant. Lopez stated that the defendant nonethe-
less wanted him to say that he thought Egan had hara-
ssed the defendant. In particular, the defendant wanted
him to say that Egan normally did not ask him questions
about his whereabouts or conduct and only did so
because the defendant was present. The court credited
Lopez’ statements, noting that he had neither a motive
to lie nor an ‘‘axe to grind’’ with the defendant. Indeed,
the court found that after Lopez had told the defendant
that he did not believe the defendant was harassed,
‘‘the defendant requested that . . . Lopez alter his tes-
timony and that the defendant would pay him to do
it . . . .’’
On the basis of the foregoing evidence, considered
along with the record as a whole in the light most
favorable to the prosecution, we conclude that a reason-
able fact finder could infer from Lopez’ statements that
the defendant sought to induce Lopez to testify more
favorably than he otherwise would have testified. As
the judges of our Superior Court often instruct jurors,
‘‘[w]hether the burden of proof resting upon the state
is sustained depends not on the number of witnesses,
nor on the quantity of the testimony, but on the nature
and quality of the testimony. . . . [O]ne witness’s testi-
mony is sufficient to convict if it establishes all the
elements of the crime beyond a reasonable doubt.’’ Con-
necticut Criminal Jury Instructions (4th Ed. 2008) § 2.2-
2, available at http://www.jud.ct.gov/JI/Criminal/part2/
2.2-2.htm (last visited March 31, 2016). Having deter-
mined that Lopez’ statements were credible, a fact
finder reasonably could find that they established the
element of an intent to influence testimony beyond a
reasonable doubt.10
For the foregoing reasons, we reject the defendant’s
first sufficiency claim.11
B
The defendant also claims that there was insufficient
evidence to prove beyond a reasonable doubt that he
offered Lopez a benefit because there was testimony
that he was not present at the Grand Avenue fire mar-
shal’s office with Lopez during the week of June 18,
2012. That testimony, he argues, rebutted the state’s
evidence that an offer took place. We are not persuaded.
The record reveals the following relevant evidence
presented at trial. The defendant presented the testi-
mony of Charles Hewitt, a drill master in the fire depart-
ment’s training division at 230 Ella Grasso Boulevard,
who testified that the defendant reported to him there
for light duty during the week of June 18, 2012.
According to Hewitt, the defendant was at the Ella
Grasso location each day that week.
Hewitt’s testimony did not account completely for
the defendant’s whereabouts during work hours that
week. Regular work hours were 8 a.m. to 4 p.m., but
Hewitt allowed the defendant to keep an earlier sched-
ule and work from 7 a.m. to 3 p.m. Hewitt authorized
the defendant’s release from work on the morning of
Monday, June 18, to attend his daughter’s eighth grade
graduation ceremony, which began at 10 a.m., and testi-
fied that the defendant reported to work at 1 or 1:30
p.m. that day. Hewitt himself was absent from work
on Wednesday, June 20. Hewitt also testified that the
defendant occasionally would go to physical therapy
during the workday.
Also, the defendant testified that he stopped by the
fire marshal’s office where Lopez was stationed at some
point in time and that a discussion took place there in
which Lopez asked him for a percentage of the proceeds
from the defendant’s upcoming lawsuit.
The defendant argues, in essence, that Hewitt’s testi-
mony regarding the defendant’s whereabouts during
the week of June 18, 2012, was alibi evidence that pre-
cluded the court from reasonably concluding that the
defendant made Lopez an offer. As noted, Lopez testi-
fied that ‘‘maybe the week of [June] 18’’ the defendant
had approached him with the offer of 2 to 3 percent of
any future recovery in exchange for certain testimony.
Thus, the defendant contends that Hewitt’s testimony
was alibi evidence insofar as it was ‘‘a rebuttal by the
defendant of the state’s attempt to prove that the defen-
dant was present at the scene of the crime and commit-
ted or participated in the acts charged.’’ State v.
Vasquez, 133 Conn. App. 785, 798, 36 A.3d 739, cert.
denied, 304 Conn. 921, 41 A.3d 661 (2012).
‘‘[A]lthough an alibi is sometimes spoken of as a
defense, it operates, in this state, to entitle an accused
to an acquittal when he has so far proved his alibi that
upon all the evidence a reasonable doubt of his guilt has
been raised. While the state is bound to prove beyond a
reasonable doubt all the essential elements of the crime
charged, including proof of the presence of the accused
at the scene of the crime, where an alibi is asserted
and relied upon as a defense . . . evidence offered by
[the accused] upon that subject is to be considered
by [the fact finder] in connection with all the rest, in
determining whether he was present, and . . . if a rea-
sonable doubt upon that point exists, it is [the fact
finder’s] duty to acquit.’’ (Internal quotation marks omit-
ted.) State v. McKnight, 191 Conn. 564, 584, 469 A.2d
397 (1983); State v. Vasquez, supra, 133 Conn. App. 797.
On the basis of the foregoing authority, our task is
to determine whether, in light of all of the evidence
adduced at trial, Hewitt’s testimony would have pre-
vented any reasonable fact finder from concluding that
the state proved beyond a reasonable doubt that the
defendant made Lopez an offer. In performing this task,
an appellate court may not invade the fact finder’s func-
tion to resolve conflicting evidence. ‘‘In a case in which
the evidence is conflicting, it is the quintessential . . .
function [of the fact finder] to reject or accept certain
evidence . . . . As long as evidence existed from
which the [trier of fact] reasonably could have found
the facts and drawn the inferences leading to its guilty
verdict, it is our obligation to defer to those findings
and inferences in passing on [a] sufficiency challenge.’’
(Citations omitted; internal quotation marks omitted.)
State v. Morelli, 293 Conn. 147, 160–61, 976 A.2d 678(2009).
Initially, it is important to note that the state was not
required to prove that the defendant offered Lopez a
benefit on a particular date because time was not an
element of the charged offense. State v. Cates, 202 Conn.
615, 626, 522 A.2d 788 (1987) (‘‘[i]n our jurisdiction, it
is well settled that the crime charged need not be proven
to have occurred 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 [s]tatute of [l]imitations’’ [internal quotation marks
omitted]); accord, State v. Bergin, 214 Conn. 657, 674,
574 A.2d 164 (1990) (‘‘when the [information] uses the
‘on or about’ designation, proof of a date reasonably
near to the specified date is sufficient’’ [internal quota-
tion marks omitted]).12
Thus, notwithstanding Hewitt’s testimony regarding
the defendant’s whereabouts during the week of June
18, viewing the record as a whole, there was sufficient
evidence before the court from which it reasonably
could have concluded that the defendant made Lopez an
offer. In particular, the court credited Lopez’ testimony
that the defendant had approached him with an offer
of payment in exchange for altering his testimony and
did not credit the defendant’s denial of the same or his
testimony that the purported offer was a joke.
According to Lopez, the defendant approached him
‘‘maybe the week of [June] 18.’’
The defendant also placed himself at the marshal’s
office where Lopez was stationed when he admitted
that he went there at some point in time and that the two
joked about the potential payout from the defendant’s
lawsuit. The defendant’s phone records corroborated
Lopez’ testimony that the defendant had called him
seeking reconsideration after he had rejected the ini-
tial offer.
Finally, although Hewitt testified that the defendant
was generally at the Ella Grasso location that week,
his testimony did not account for the defendant’s where-
abouts during portions of Monday morning, all of
Wednesday, portions of the remaining days of that
week, or the defendant’s admitted stop by the marshal’s
office where the discussion with Lopez took place.
Viewing Hewitt’s testimony against the backdrop of the
other relevant evidence, and mindful that the state was
not required to prove that the defendant made Lopez
an offer at a precise time and date, we conclude that
there was sufficient evidence from which the court
reasonably could find that a benefit had been offered,
as Lopez testified, during the week of June 18. Accord-
ingly, we reject the defendant’s second sufficiency
claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although the trial court referred to this claim as a workers’ compensation
claim, it appears actually to have been referring to the defendant’s CHRO
complaint in which he alleged, inter alia, that Egan had retaliated against
him for filing a workers’ compensation claim.
2
Two allegations in the CHRO complaint are relevant to the present
appeal: (1) when the defendant was in the presence of Corey Bellamy,
another firefighter, Egan ordered the defendant to ‘‘gas up my car!’’; and
(2) when the defendant was on his way to lunch with Faustino Lopez, a
deputy fire marshal, Egan asked Lopez ‘‘where are you going?’’ even though
he had never asked Lopez that question before.
On February 22, 2013, the CHRO released jurisdiction over the defendant’s
complaint, and on May 23, 2013, the defendant commenced a civil action
against the city, Egan, and Marcarelli that currently is pending in the Superior
Court for the judicial district of New Haven.
3
Lopez testified that this offer occurred ‘‘maybe the week of [June] 18.’’
4
Testifying in his own defense, the defendant denied offering Lopez or
Bellamy a percentage of recovery in any lawsuit in exchange for testimony
and testified that the alleged offer was a joke.
5
The defendant briefed a related claim that a reviewing court should
apply a different sufficiency standard according to whether the defendant’s
trial was to the court or to a jury. Because he abandoned this aspect of his
claim at oral argument, we need not consider it. We note, in any event, that
our Supreme Court already has determined that the same standard applies
regardless of whether a judge or jury is the fact finder. State v. Drupals,
306 Conn. 149, 157, 49 A.3d 962 (2012).
6
See In re Winship, 397 U.S. 358, 363, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)
(due process requires proof beyond reasonable doubt of every element
necessary to constitute crime with which defendant is charged).
7
Inasmuch as the defendant challenges the court’s interpretation of § 53a-
149, which requires us to construe the statute in resolving the defendant’s
sufficiency claim, he raises an issue of law over which our review is plenary.
State v. Moreno-Hernandez, 317 Conn. 292, 299, 118 A.3d 26 (2015).
8
‘‘The legislature is presumed to be mindful of judicial construction that
is relevant to any legislation it enacts. . . . It is presumed to know all the
existing statutes and the effect that its action or [inaction] will have upon
any one of them, and it is presumed to have intended that effect.’’ (Citations
omitted; internal quotation marks omitted.) State v. Guckian, 27 Conn. App.
225, 234–35, 605 A.2d 874 (1992), aff’d, 226 Conn. 191, 627 A.2d 407 (1993),
abrogated on other grounds by Cobham v. Commissioner of Correction,
258 Conn. 30, 38 n.13, 779 A.2d 80 (2001).
9
General Statutes (1930 Rev.) § 6168 provides in relevant part: ‘‘[A]ny
person who shall give or offer anything to any such person, with intent thus
to delay, influence or hinder him, or who, by any means, shall wilfully hinder
or prevent, or attempt to hinder or prevent, any such person from appearing
as a witness or from giving his testimony in any such proceeding or from
giving his deposition, shall be fined not more than five hundred dollars or
imprisoned not more than one year or both.’’
10
We reject the defendant’s contention that his conviction was not sup-
ported by sufficient evidence because, viewing the evidence as a whole, it
was ‘‘not implausible’’ that Egan told Lopez to say that what was actually
a joke was a bribe. The fact that the defendant presented evidence that the
offer was a joke did not obligate the trial court to accept that evidence. As
detailed previously, the court heard other testimony from Lopez, who did
not believe that the offer was a joke. Presented with this conflicting evidence,
the court credited Lopez’ account, in which the defendant’s offer was an
attempt to influence Lopez’ testimony, and we, of course, may not revisit
that credibility determination. State v. Morelli, 293 Conn. 147, 160–61, 976
A.2d 678 (2009). As we have discussed, Lopez’ testimony, which was believed
by the court, was sufficient to prove the intent to influence element beyond
a reasonable doubt. Cf. State v. Krijger, supra, 313 Conn. 459–60 (even
accepting fact finder’s resolution of conflicting testimony, evidence insuffi-
cient to prove element beyond reasonable doubt).
11
In light of the evidence that the defendant asked Lopez to testify more
favorably than he otherwise would have, the defendant’s related argument
that the court improperly inferred an intent to influence solely from evidence
that the defendant offered Lopez a benefit also must fail.
12
We note that in the present case the state alleged in the information
that the crime occurred on ‘‘diverse dates in May and June, 2012.’’