State v. Williams , 187 Conn. App. 333 ( 2019 )

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STATE OF CONNECTICUT v. DAQUAN D. WILLIAMS
(AC 39597)
Alvord, Bright and Bear, Js.
Syllabus
Convicted of the crimes of manslaughter in the first degree and attempt to
commit home invasion, the defendant appealed to this court, claiming
that the evidence was insufficient to support his conviction of attempt
to commit home invasion. The defendant’s conviction stemmed from
an incident in which he and two others, P and J, went to an apartment
complex where C resided because J was having a dispute with C over
a girl. At least two of the men, dressed in black and wearing ski masks,
attempted to enter an apartment where C was located with a baseball
bat. Thereafter, a fight ensued outside, during which the defendant
repeatedly stabbed C’s stepfather, causing his death. The defendant
claimed that the evidence was insufficient to show that he attempted
to enter the apartment in which C was located and that he had the specific
intent to seriously injure C. Held that the evidence was insufficient to
support the defendant’s conviction of attempt to commit home invasion,
there having been insufficient evidence to prove beyond a reasonable
doubt that the defendant had the specific intent to commit a felony
assault upon another individual, C, if the defendant and his cohorts
successfully entered the apartment in which C was located: although
there was sufficient evidence from which the jury could have concluded
that the defendant took a substantial step toward unlawfully entering
the apartment, the record was devoid of any evidence that the defendant
knew or had any issues with C, that he took any action toward C from
which an intent to inflict serious injury could have been inferred, that
the defendant removed his knife from his pocket during any attempt to
enter the dwelling, or to support an inference that the defendant took
any action to indicate that he intended to use a metal bat against C, as
the prosecutor at trial argued to the jury that defendant was being used
as backup because J wanted to fight C, and did not argue, and the
evidence did not establish, that the defendant possessed the specific
intent to commit the crime of home invasion as charged by the state;
moreover, because the state charged the defendant as a principal and not
an accessory, proof that either the defendant or one of his codefendants
intended to commit a felony against C would have been legally insuffi-
cient to support a judgment of conviction against the defendant, and
any suggestion that the jury could have inferred that the defendant had
the requisite intent because one of his codefendants was about to assault
C was incorrect.
Argued November 14, 2018—officially released January 22, 2019
Procedural History
Information charging the defendant with one count
of the crime of murder and two counts of the crime
of attempt to commit home invasion, brought to the
Superior Court in the judicial district of Hartford and
tried to the jury before Bentivegna, J.; verdict and judg-
ment of guilty of the lesser included offense of man-
slaughter in the first degree and of one count of attempt
to commit home invasion, from which the defendant
appealed to this court. Reversed in part; judgment
directed in part; further proceedings.
Mary A. Beattie, for the appellant (defendant).
Linda F. Currie-Zeffiro, assistant state’s attorney,
with whom, on the brief, was Anne F. Mahoney, state’s
attorney, for the appellee (state).
Opinion
BRIGHT, J. The defendant, DaQuan D. Williams,
appeals from the judgment of conviction, rendered after
a jury trial, of attempt to commit home invasion in
violation of General Statutes §§ 53a-49 and 53a-100aa
(a) (1).1 On appeal, the defendant claims that there was
insufficient evidence to support this conviction because
the state failed to prove that he attempted to enter the
apartment in which Jouleigh Clemente was located, and
the state failed to present evidence that he had the
specific intent to seriously injure Clemente. We reverse
the judgment of conviction on this count.
On the basis of the evidence presented, the jury rea-
sonably could have found the following facts. On the
evening of February 26, 2013, the defendant was wear-
ing gloves, a black sweatshirt, a blue hoodie, two pairs
of gray sweatpants, a blue ski mask and black sneakers.
He also was in possession of a black pocket knife. On
that cold and rainy winter evening, Kristopher Pryce
drove the defendant and Isiah Jones to the Summerfield
apartment complex in East Hartford,2 where Clemente
lived in unit 109 with his younger brother, Westley, his
mother, Jasmin Fuentes, and his stepfather, Jonathan
Lopez.
Jones and Clemente were having a dispute about a
girl. On that evening, Clemente was not in unit 109, but,
rather, he and his brother were visiting their friend Juan
Carlos Zavala in unit 69. Zavala lived in unit 69 with
his younger brother, Jack, his mother, Vilma Rodriguez,
and his mother’s boyfriend, Angel Luis Nieves.
While Rodriguez and Nieves were upstairs in unit 69,
they heard Zavala, Jack, Westley, and Clemente down-
stairs making a commotion and yelling that someone
was trying to get into the apartment. When Rodriguez
and Nieves looked downstairs, they saw the young
males trying to force a metal bat back out of the door-
way, while simultaneously trying to close the door.
Nieves jumped from the top of the staircase and suc-
cessfully assisted the young males in pushing the bat
out of the doorway, and then locked the door. Rodriguez
looked outside from her bedroom window, and she saw
two teenaged males, dressed in black, wearing winter
masks, and carrying bats. The young males in the apart-
ment told Rodriguez that Clemente and Zavala were
having problems with Jones and Pryce. Rodriguez then
telephoned 911, telling the dispatcher that two teenaged
males from her apartment complex,3 dressed in black
and wearing masks, were hitting her door, trying to
break into her apartment, and one of them had a bat.
Rodriguez recognized Pryce outside. Nieves, who also
looked out the upstairs window, saw people wearing
masks on the side of the building.
Clemente then ran out the door, heading toward his
apartment, unit 109, with Westley and Zavala chasing
after him. Rodriguez and Nieves chased after them.
Rodriguez soon realized that there were three other
teenaged males, not two, involved in the incident. One
of those males was standing near the side of her apart-
ment, while another, Jones, was fighting with Clemente.
No one interfered in the fight between Jones and
Clemente because the fight was a ‘‘fair one,’’ with no
weapons. As the two fought, the defendant stood next
to a red car, near the street, somewhere between unit 69
and unit 109. At some point, however, Lopez, Clemente’s
stepfather, came outside. Lopez and the defendant
exchanged words, and Lopez knocked a bat out of the
defendant’s hands and pushed him onto the red car.
Jasmin Fuentes, Clemente’s mother, who also had come
outside, picked up the metal bats that were lying on
the ground and put them in her apartment.4 The defen-
dant and Lopez began fighting, and the defendant took
out his knife and repeatedly stabbed Lopez, who, there-
after, was able to retreat into his apartment.5
The defendant, Jones, and Pryce attempted to flee
the scene, but were pulled over by the police before
they exited the apartment complex. Pryce was driving,
and Jones was in the passenger seat, with the defendant,
who was shirtless and covered in blood, in the back
seat. The defendant’s blue hoodie was on the seat next
to him. The three were arrested. The defendant was
charged with murder and two counts of attempt to
commit home invasion, one under each subdivision of
§ 53a-100aa (a).6 The jury found the defendant guilty of
the lesser offense of manslaughter in the first degree,
as well as attempt to commit home invasion under
§ 53a-100aa (a) (1). It found him not guilty of attempt
to commit home invasion under §53a-100aa (a) (2). The
court sentenced the defendant to twenty years to serve
on the manslaughter conviction, and to a concurrent
mandatory minimum ten-year term on the attempt to
commit home invasion conviction, for a total effective
sentence of twenty years incarceration. This appeal
followed.
On appeal, the defendant claims that there was insuf-
ficient evidence to support his conviction of attempt
to commit home invasion.7 He argues that the state
failed to prove two elements of this crime: ‘‘First, there
is insufficient evidence that [the] defendant personally
took a substantial step toward unlawfully entering the
dwelling at issue. Second, there is insufficient evidence
that, at the time of the claimed home invasion attempt,
[the] defendant intended to seriously injure Jouleigh
Clemente.’’
‘‘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 con-
strued and the inferences reasonably drawn therefrom
the jury reasonably could have concluded that the
cumulative force of the evidence established guilt
beyond a reasonable doubt. . . .
‘‘We note that the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, [but] each of the
basic and inferred facts underlying those conclusions
need not be proved beyond a reasonable doubt. . . .
If it is reasonable and logical for the jury to conclude
that a basic fact or an inferred fact is true, the jury is
permitted to consider the fact proven and may consider
it in combination with other proven facts in determining
whether the cumulative effect of all the evidence proves
the defendant guilty of all the elements of the crime
charged beyond a reasonable doubt. . . .
‘‘An appellate court may not second-guess a jury’s
credibility determinations. . . . In reviewing the evi-
dence, the reviewing court [is] bound by the jury’s credi-
bility determinations and all reasonable inferences the
jury could have drawn from the evidence.’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) State v. Gemmell, 151 Conn. App. 590, 604–
605, 94 A.3d 1253, cert. denied, 314 Conn. 915, 100 A.3d
405 (2014).
When determining whether the state introduced evi-
dence sufficient to support the trial court’s judgment
of conviction, we look not just at the charging docu-
ment, but also at the state’s theory of the case. ‘‘When
the state advances a specific theory of the case at trial
. . . sufficiency of the evidence principles cannot be
applied in a vacuum. Rather, they must be considered
in conjunction with an equally important doctrine,
namely, that the state cannot change the theory of the
case on appeal.’’ (Internal quotation marks omitted.)
State v. Carter, 317 Conn. 845, 853–54, 120 A.3d 1229
(2015). Of particular relevance to this case, where the
state’s theory rests on an intent to injure a specific
person, the question for us is whether there is sufficient
evidence that the defendant specifically intended to
injure that particular person. Id., 855.
Count two of the long form information accused the
defendant ‘‘of the crime of criminal attempt to commit
home invasion in violation of . . . §§ 53a-49 and 53a-
100aa (a) (1) and allege[d] that on or about February
26, 2013, in East Hartford . . . [the defendant] inten-
tionally did an act which, under the circumstances he
believed them to be, was an act constituting a substan-
tial step in a course of conduct planned to culminate
in his commission of the crime of home invasion.’’ The
state’s theory of the case, as argued before the jury,
was that Pryce picked up the defendant and Jones and
‘‘drove them to the Summerfield apartments. . . .
Jones had been having a beef with . . . Clemente, who
lived over at those apartments, over a girl . . . . [Cle-
mente] was trash-talking [Jones] because [Clemente]
had basically won [the girl] away from him.
‘‘So, the brains of the operation, Pryce, decided that
he would drive them over there. [Jones] decided to
bring the heavy, who is this defendant, to come along
as a backup. And [Jones] left the house with a metal
bat that night. The defendant had his knife on him, and
they were all dressed in dark clothing. They went over
to the Summerfield apartments because they were going
to get [Clemente].
‘‘When they got there . . . all three of them got out
[of the car] . . . . The defendant had on his black ski
mask, dark clothing, dark gloves, and [Jones] said to
him, they ain’t coming out. . . . So, they started bang-
ing on the door trying to break in, and they didn’t stop
banging until [Clemente] came out. While the banging
was going on inside the home at [unit] 69 . . . the
defendant and his friends decided to break into the
house. The boys in the house told the mother upstairs,
hey, somebody’s trying to break in. She came down,
saw the bat, all sorts of craziness going on. She went
back upstairs to call 911. . . . [T]hey tried to go into
the house, and they [were] breaking in with the bats.’’
‘‘So, they drove over there. They brought baseball
bats. They banged on the door. They damaged the door.
They managed to get a bat in. And they were going . . .
[to enter] the dwelling . . . . I don’t have to actually
prove it to you that they did enter it, but that this was
their intent. They were intending to go in the dwelling.
They wanted to commit a crime inside. There were
people inside the dwelling who were not participants
in the crime. And that once they got inside there, either
he or his codefendants were about to attempt to commit
a felony against a person in the home. In other words
. . . Clemente.
‘‘[Jones] wanted to beat [Clemente] up. He wanted
to make sure he was the winner of that fight so he
brought the bigger and the heavier defendant with him,
an armed defendant with him, and they were trying to
break in the house to get to [Clemente].’’ (Emphasis
added.)
In this case, the defendant was charged in relevant
part with attempt to commit home invasion. Section
53a-100aa (a) provides in relevant part: ‘‘A person is
guilty of home invasion when such person enters . . .
unlawfully in a dwelling, while a person other than
a participant in the crime is actually present in such
dwelling, with intent to commit a crime therein, and,
in the course of committing the offense: (1) Acting
either alone or with one or more persons, such person
or another participant in the crime commits or attempts
to commit a felony against the person of another person
other than a participant in the crime who is actually
present in such dwelling . . . .’’
Section 53a-49 provides in relevant part: ‘‘(a) A person
is guilty of an attempt to commit a crime if, acting with
the kind of mental state required for commission of the
crime, he: (1) Intentionally engages in conduct which
would constitute the crime if attendant circumstances
were as he believes them to be; or (2) intentionally does
or omits to do anything which, under the circumstances
as he believes them to be, is an act or omission constitut-
ing a substantial step in a course of conduct planned
to culminate in his commission of the crime.
‘‘(b) Conduct shall not be held to constitute a substan-
tial step under subdivision (2) of subsection (a) of this
section unless it is strongly corroborative of the actor’s
criminal purpose. Without negating the sufficiency of
other conduct, the following, if strongly corroborative
of the actor’s criminal purpose, shall not be held insuffi-
cient as a matter of law . . . (4) unlawful entry of a
structure, vehicle or enclosure in which it is contem-
plated that the crime will be committed . . . .’’
‘‘To constitute a substantial step, the conduct must
be strongly corroborative of the actor’s criminal pur-
pose. . . . This standard focuses on what the actor has
already done and not what remains to be done. . . .
The substantial step must be at least the start of a line
of conduct which will lead naturally to the commission
of a crime.’’ (Internal quotation marks omitted.) State
v. Washington, 186 Conn. App. 176, 187–88, A.3d
(2018).
Reading the attempt and home invasion statutes
together, the essential elements of attempt to commit
home invasion under §§ 53a-49 and 53a-100aa (a) (1)
in this case are: (1) the defendant intentionally took a
substantial step toward entering unit 69 without license
or privilege to do so; (2) the defendant had the specific
intent to commit a crime in unit 69; (3) at least one
other person not participating in the attempt to enter
unit 69 without license or privilege to do so was present
in unit 69; and (4) the defendant or another participant
in the defendant’s attempt to enter unit 69 was going
to commit a felony against another person in unit 69,
who was not a fellow participant in the crime. See
id., 187–89.
The state’s theory of the case, in satisfaction of prongs
one and three, was that the defendant intentionally took
a substantial step toward entering unit 69 without
license or privilege to do so, while Rodriguez and her
family, along with Clemente and his brother, were pre-
sent in unit 69; in satisfaction of prong two, the state’s
theory was that the defendant had the specific intent
to commit a crime while in unit 69, to wit, a felony
assault against Clemente.8 The state also argued to the
jury, however, in satisfaction of prong four, that the
defendant or another participant in the defendant’s
endeavor was going to commit a felony assault against
Clemente. Although the state could have sought to
prove, in satisfaction of prong two, that the defendant,
himself, had intended to commit some other crime in
unit 69, either a felony or a misdemeanor, the state
instead sought to prove that the crime the defendant,
himself, intended to commit, if successful in his entry
into unit 69, was a felony assault against Clemente.
The defendant argues that the evidence presented by
the state in this case was insufficient to prove that (1)
he, personally, attempted to enter a dwelling, namely
unit 69 in the Summerfield apartment complex, in an
unlawful manner, and (2) he had the specific intent to
commit felony assault against Clemente if successful
in his attempt to enter unit 69.
The defendant argues that he ‘‘was not charged with
conspiracy to enter the dwelling, or as an accessory.
He was charged as a principal, and that is how the jury
was instructed. Thus, the state needed to prove that
[the] defendant, personally, attempted to enter the
dwelling.’’ Further, he argues, the state also failed to
present any evidence that he had the specific intent
to commit felony assault against Clemente if he were
successful in entering the apartment. He argues that
there was no evidence, direct or circumstantial, that he
personally intended to commit felony assault against
Clemente and that the state, in fact, even argued during
his trial that it was Jones who wanted to fight Clemente
and that the defendant merely was there as ‘‘backup.’’
(Internal quotation marks omitted.) He contends that
the state is relying on nothing more than conjecture.
The state responds that, on the basis of the evidence
presented, the jury reasonably could have inferred that
Jones, Pryce, and the defendant all had metal bats with
them, and that they intended to use them for ‘‘unlawful
purposes.’’ The state argues that the ‘‘jury further could
have inferred . . . that the effort to insert a bat into
the dwelling was not limited to only one of the three
potential intruders. . . . Thus, under a theory of princi-
pal liability . . . the jury reasonably could have found
that the defendant acted with the intent to unlawfully
enter the dwelling and took a substantial step toward
doing so.’’ Furthermore, the state argues, ‘‘it was undis-
puted that the defendant was armed with a knife and
was dressed in two sets of clothing, a ski mask, and
gloves. Three bats were found at the scene. The defen-
dant was still carrying a bat while [Jones] and [Cle-
mente] were fighting. Moreover, the defendant came
armed with a knife and, undisputedly, used his knife
to stab . . . Lopez . . . Based on the fact that the
defendant inflicted a fatal stab wound to the unarmed
victim—a man he did not know—during a fistfight, it
is a reasonable inference that he brought the knife with
him to Summerfield intending to use it on Clemente—
an antagonist of his friend [Jones].’’9
We agree with the state that there was sufficient
evidence from which the jury could conclude that the
defendant took a substantial step toward unlawfully
entering unit 69. Rodriguez testified that it was approxi-
mately 11 p.m., on a cold and rainy night, when Zavala,
Jack, Westley, and Clemente, who were in unit 69,
started running upstairs, indicating something was
going on, so she looked out of her upstairs window
and saw ‘‘three guys with masks and bats,’’ and she
telephoned the police. She thought that one of them
may have had a gun.10 She testified that she told the
police that there were three males trying to get into
her apartment ‘‘because one of them hit [her] door with
a bat and then the bat kind of stayed stuck in between
the door and that’s when [Nieves] came down, pushed
the bat out and got the door locked.’’11 Rodriguez admit-
ted, however, that when she spoke with the police, via
911, she had told them that there were only two black
males trying to get into her apartment. She explained
to the jury that she had not realized there was a third
male until she went outside and saw him ‘‘standing
on the side of . . . the building.’’ Rodriguez further
acknowledged that she told the police, via her 911 call,
that there were two teenaged males, dressed in black,
and that she had no doubt in her mind, when she relayed
that information to the 911 operator, that was what she
was seeing. She also acknowledged at trial that that
was what she saw that night when she looked out of
her bedroom window. Rodriguez then acknowledged
that the young males in her apartment said that they,
especially Clemente, were having a problem with Jones
and Pryce.
Rodriguez further testified that after Nieves had
closed and locked the door, Clemente opened the door
and ran toward his apartment; two or three guys, wear-
ing all black, then chased after him. Rodriguez and
others followed. Rodriguez stated that Clemente and
Jones then began engaging in a fair fight, one with no
weapons, and she saw Fuentes gather up the bats and
bring them inside her apartment. She also saw the
defendant standing next to a car at that time, which
was parked approximately halfway between unit 69 and
unit 109. Rodriguez stated that Pryce was standing some
distance away, closer to her apartment. The defendant
was seen by another witness holding a bat at that time,
but neither he nor Pryce attempted to interfere in the
fight. It also was undisputed that the defendant was in
possession of a pocket knife. This, essentially, was the
evidence presented by the state in support of the charge
of attempt to commit home invasion under § 53a-100aa
(a) (1).
Viewing this evidence in a light most favorable to
sustaining the verdict, we conclude that the jury reason-
ably could have inferred that the defendant took a sub-
stantial step toward unlawfully entering unit 69.
Rodriguez saw at least two teenaged males attempting
to enter the unit, and at least one of them had a bat.
The defendant, shortly thereafter, standing near a red
car, was seen holding a bat while Jones and Clemente
were fighting. It is a reasonable conclusion that the
defendant had attempted to gain entry into unit 69 in
an unlawful manner.
We further conclude, however, that there simply was
no evidence that could have led the jury reasonably to
conclude, without resort to conjecture and speculation,
that the defendant had the specific intent to commit a
felony assault upon Clemente if he and his cohorts
successfully entered unit 69. See State v. Josephs, 328
Conn. 21, 35, 176 A.3d 542 (2018) (‘‘A trier of fact is
permitted to make reasonable conclusions by draw[ing]
whatever inferences from the evidence or facts estab-
lished by the evidence it deems to be reasonable and
logical. . . . [These inferences, however] cannot be
based on possibilities, surmise or conjecture.’’ [Internal
quotation marks omitted.]).
In the present case, there was no evidence that the
defendant knew or had any issues with Clemente. By
contrast, the evidence did demonstrate that Jones and
Clemente were having a dispute over a girl. There also
was no evidence that the defendant ever took any
actions toward Clemente from which an intent to inflict
serious injury could have been inferred. To the contrary,
when Clemente fled from unit 69 the defendant did not
approach him. The uncontroverted evidence at trial was
that the defendant was not involved in any way in the
altercation between Clemente and Jones.
Furthermore, the state’s argument that the jury rea-
sonably could have inferred, from the facts that the
defendant had a knife on his person and used it on
Lopez, that the defendant intended to use the knife on
Clemente if he was successful in breaking into unit 69
is inconsistent with the evidence the jury heard. There
is no evidence that the defendant removed the knife
from his pocket during any attempt to enter unit 69.
There also is no evidence that the defendant removed
the knife from his pocket when Clemente fled from unit
69 or when he was near the car while Clemente and
Jones fought. The only evidence regarding the defen-
dant’s use of the knife is that he removed it from his
pocket and stabbed Lopez with it after he and Lopez
already were engaged in a physical fight. Contrary to
the state’s argument, this evidence does not support a
reasonable inference that the defendant intended to use
the knife to inflict serious injury on Clemente if he
successfully had broken into unit 69.12
Similarly, there was no basis for the jury reasonably
to infer that the defendant intended to use a metal bat
to inflict serious physical injury, a felony assault, on
Clemente. The state’s reliance on the fact that the defen-
dant later was seen holding a bat while Clemente and
Jones fought is misplaced because the record is devoid
of evidence that would support an inference that the
defendant ever took any action to suggest that he
intended to use the bat to assault Clemente. Rather,
the evidence demonstrates that the defendant did not
attempt to interfere in the fight between Clemente
and Jones.
Furthermore, the prosecutor during her closing argu-
ment at trial, summarizing the state’s theory of the case,
did not argue that the evidence proved that the defen-
dant intended to assault Clemente and inflict serious
injury on him during the alleged home invasion. Rather,
the state argued to the jury that the defendant was
brought as backup because Jones wanted to fight Cle-
mente. The prosecutor then went on to argue that ‘‘once
they got inside [unit 69], either [the defendant] or his
codefendants were about to commit a felony against
a person in the home. In other words . . . Clemente.’’
(Emphasis added.)
Because the state charged the defendant as a princi-
pal and not an accessory, however, proof that either
the defendant or one of his codefendants intended to
commit a felony against Clemente would be legally
insufficient to support a judgment of conviction against
the defendant, who was charged only as a principal.
Similarly, any suggestion that the jury could infer that
the defendant had the requisite intent because one of
his codefendants was about to assault Clemente simply
is incorrect. The state had not charged the defendant
as an accessory, and the court had not been asked to
instruct the jury on accessorial liability. See State v.
Davis, 163 Conn. App. 458, 470, 136 A.2d 257 (2016)
(‘‘[A] reviewing court may not uphold a conviction
premised on accessorial liability if the court foreclosed
the jury from basing its guilty verdict on that theory.
See State v. Faulkner, 48 Conn. App. 275, 277, 709 A.2d
36 [1998] [noting in review of sufficiency of evidence
to support conviction as accessory that trial court
instructed jury as to both principal and accessorial lia-
bility]; State v. Channer, 28 Conn. App. 161, 166, 612
A.2d 95 [noting in review of sufficiency of evidence
that reviewing court limited to considering whether
evidence supported finding that defendant acted as
principal because trial court did not instruct jury as to
accessorial liability], cert. denied, 223 Conn. 921, 614
A.2d 826 [1992].’’ [Internal quotation marks omitted.]).
Consequently, without proof beyond a reasonable
doubt that it was specifically the defendant who
intended to commit felony assault against Clemente,
the defendant could not be convicted of attempt to
commit home invasion. Finally, contrary to the state’s
suggestion before this court that the defendant’s posses-
sion of the knife permitted an inference that he intended
to use it to assault Clemente if he gained unlawful entry
to unit 69, the state argued to the jury that the defen-
dant’s intent to use the knife was formed quickly on
the scene when he was fighting with Lopez. Thus, the
state did not argue at trial, and the evidence did not
establish, that the defendant possessed the required
specific intent to commit the crime of attempt to com-
mit home invasion as charged and pursued by the state.
Accordingly, we conclude that the evidence is insuffi-
cient to sustain the defendant’s conviction of attempt
to commit home invasion.
The judgment is reversed only with respect to the
defendant’s conviction of attempt to commit home inva-
sion in violation of § 53a-100aa (a) (1), and the case
is remanded with direction to render a judgment of
acquittal on that count and for resentencing in accor-
dance with law; the judgment is affirmed in all other
respects.
In this opinion the other judges concurred.
1
The defendant also was convicted of manslaughter in the first degree
in violation of General Statutes § 53a-55 (a) (1), as a lesser included offense
of murder in violation of General Statutes § 53a-54a (a). He does not appeal
from the judgment of conviction on that count. We also note that the jury
found the defendant not guilty of attempt to commit home invasion in
violation of §§ 53a-49 and 53a-100aa (a) (2).
2
The defendant was described as being larger and heavier than Jones or
Pryce, weighing approximately 250 pounds.
3
The evidence showed that Pryce regularly stayed or lived in unit 31 of
the Summerfield apartment complex with his girlfriend, but that the defen-
dant and Jones lived in another area of East Hartford, although Rodriguez
had seen Jones around the complex previously. Jones was godfather to the
child of Pryce and his girlfriend. Rodriguez testified that she had never seen
the defendant before.
4
Fuentes refused to testify during the trial.
5
Lopez later died from his injuries.
6
General Statutes § 53a-100aa (a) provides: ‘‘A person is guilty of home
invasion when such person enters or remains unlawfully in a dwelling, while
a person other than a participant in the crime is actually present in such
dwelling, with intent to commit a crime therein, and, in the course of commit-
ting the offense: (1) Acting either alone or with one or more persons, such
person or another participant in the crime commits or attempts to commit
a felony against the person of another person other than a participant in
the crime who is actually present in such dwelling, or (2) such person is
armed with explosives or a deadly weapon or dangerous instrument.’’
7
The defendant preserved this issue by moving for a judgment of acquittal
at the close of the state’s evidence. Furthermore, even if unpreserved, a
sufficiency of the evidence claim merits review. See State v. Lewis, 303
Conn. 760, 767 n.4, 36 A.3d 670 (2012).
8
Consistent with the state’s theory of the case, the court charged the
jury, in relevant part, that ‘‘[i]n this case, the state claims that the defendant
intended to commit the crime of assault in the second degree. To prove
assault in the second degree, the state must prove beyond a reasonable
doubt that (1) the defendant had the specific intent to cause serious physical
injury to another person, Jouleigh Clemente . . . .’’
9
Although the state argues that the jury could have concluded that the
defendant brought a knife to use on Clemente inside unit 69, the jury found
the defendant not guilty of violating § 53a-100 (a) (2). See footnote 6 of
this opinion.
10
Nieves testified that he told Rodriguez to call the police because he
saw the ‘‘heavy dude’’ with his hand in his waistband and thought he might
have a gun. We note, however, that there was no evidence that the defendant
or anyone else had a gun that night.
11
Rodriguez testified that the assailants damaged her screen door and the
wooden door to her apartment.
12
In its closing argument, the state argued that the defendant was guilty
of a violation of § 53a-100aa (a) (2), as charged, because he was armed with
a knife when he attempted to enter unit 69 in an illegal manner, with the
intent to commit a felony assault upon Clemente. The state did not argue
to the jury, however, that the defendant had intended to use that knife on
Clemente. The state also argued to the jury that the defendant first formed
the intent to use the knife ‘‘quickly on the scene’’ when he was fighting
with Lopez.