State v. Godfrey , 39 Conn. App. 1 ( 1995 )

LANDAU, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of attempted burglary in the third degree in violation of General Statutes §§ SSa-lOS¹ and 53a-49 (a) (2)² and attempted tampering with a motor vehicle in violation of General Statutes §§ 53a-119b (c)³ and 53a-49 (a) (2). The disposi-tive issue is whether the trial court properly denied the defendant’s motion for judgment of acquittal. We conclude that the evidence adduced at trial was insufficient as a matter of law to support the guilty verdict.

The jury could reasonably have found the following facts. On October 26, 1993, Officer Daniel Zack of the Hartford police department saw the defendant leaning against and peering into the passenger window and the front windshield of a station wagon that was parked on the street in the area of Allyn and Ann Streets in Hartford. The defendant appeared to attempt to open the passenger side front door of the vehicle, shaking the car door with such force that the car rocked. He then attempted to open the rear door of the station wagon, while looking around to see if anyone was watching him. As Zack approached from behind, the defendant picked up a metal object near the front of the car and then walked to the rear of the station wagon. Believing that the defendant was about to break the window of the vehicle, Zack sprinted toward the defendant and yelled to him. The defendant dropped the metal object and began to run, but had gone only a few steps when Zack caught up with him and arrested him.

After the defendant was transported to the police station for booking, Zack waited for the owner of the station wagon to arrive. Visible inside the car were a number of possessions, including a cellular phone and a pocketbook. The owner did not appear and Zack left a note on the car stating that an arrest had been made and that the owner or operator should call the police if there was any damage to the vehicle. The owner never contacted the police and did not testify at the trial.

During direct examination of Zack, the state asked him if he had determined to whom the car was registered. The trial court sustained the defendant’s objection to this question. Outside the presence of the jury, the state then declared an intention to ask Zack whether the car was owned by the defendant. The defendant objected, claiming that the question called for information outside the personal knowledge of the officer and for a response based on hearsay. The trial court overruled the objection. In the presence of the jury, Zack then testified that the defendant was not the owner of the vehicle.

On appeal, the state claims that the jury could reasonably have found that the defendant unlawfully attempted to enter and unlawfully attempted to tamper with the station wagon. The evidence established that he was not the owner of the car and did not possess the key to operate the car. Although the owner was not identified and did not testify regarding consent, the state asserts that common sense would dictate that, if the defendant had consent to enter the car, he would have had the key to operate it. Even if he had lost the key, the state continues, a person with consent would have contacted a locksmith or requested Zack’s assistance in order to gain entry into the car rather than trying to force the door handle or break the window with a metal object. The defendant asserts that, in the absence of testimony from the owner of the car that the defendant was not licensed or privileged to enter or tamper with it, the jury had to resort to conjecture and speculation to find him guilty of both charges.

“When called upon to review a challenge to the sufficiency of the evidence, we are required to apply a two-pronged analysis. We must first review the evidence presented at trial, construing it in a light most favorable to sustaining the jury’s verdict. We then determine whether, from the facts established and the inferences reasonably drawn therefrom, the jury reasonably could have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Turner, 24 Conn. App. 264, 267, 587 A.2d 1050, cert. denied, 218 Conn. 910, 591 A.2d 812 (1991).” State v. Arbelo, 37 Conn. App. 156, 159, 655 A.2d 263 (1995).

The state first charged the defendant with attempted burglary in the third degree. Section 53a-103 requires proof that the defendant entered or remained unlawfully in a building with the intent to commit a crime therein.⁴ “A person ‘enters or remains unlawfully’ in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so.” General Statutes § 53a-100 (b). Under the circumstauces in this case, the only possible license or privilege of the defendant was that he had consent to enter the station wagon. Thus, in order to establish that the defendant’s attempted entry was unlawful, the state had the burden of proving that no such consent had been given. See State v. Grant, 6 Conn. App. 24, 31, 502 A.2d 945 (1986).

With regard to the second charged offense of attempted tampering with a motor vehicle, § 53a-119b (c) required the state to prove that the defendant, with intent and without right to do so, damaged the station wagon or damaged or removed any of its parts or components. Because the defendant was charged with an attempt in both instances, the state had the burden of showing that the defendant, acting with the kind of mental state required for commission of the crime, intentionally did anything which, under the circumstances as he believed them to be, was an act constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. See General Statutes § 53a-49.

“A jury first draws inferences and makes findings of fact. In doing so, it may draw inferences from the facts it found proved, and it is not required to draw only inferences that are consistent with innocence. State v. Tatum, 194 Conn. 594, 598, 483 A.2d 1087 (1984). In drawing these inferences and finding these facts, however, it may not resort to speculation and conjecture. State v. Mierez, [24 Conn. App. 543, 554, 590 A.2d 469, cert. denied, 219 Conn. 910, 911, 593 A.2d 136 (1991)].

“Once the jury has finished drawing inferences and making findings of fact, it must then determine its ultimate conclusion: whether those facts and inferences prove the defendant guilty beyond a reasonable doubt. ‘Proof beyond a reasonable doubt requires that the evidence exclude every reasonable hypothesis of innocence.’ State v. Ford, 230 Conn. 686, 693, 646 A.2d 147 (1994).” State v. Arbelo, supra, 37 Conn. App. 160. “But the requirement of proof beyond a reasonable doubt does not mean that the proof must be beyond a possible doubt, and a possible hypothesis or supposition of innocence is far different from a reasonable supposition. . . . Emphasis needs to be placed on the distinction between the word reasonable and the word possible. . . . Proof of guilt must exclude every reasonable supposition of innocence . . . [while a] mere possible hypothesis of innocence will not suffice.” (Citations omitted; internal quotation marks omitted.) State v. Ford, supra, 693.

Because the state presented no direct evidence that the defendant did not have consent to enter or tamper with the car, it relied on circumstantial evidence for that proposition. The state asserts that Zack observed the defendant vigorously shake the car door handle in an apparent attempt to open the passenger side front door. The defendant, who appeared to be looking around, then attempted to open the rear door. He picked up a metal object near the front of the car and walked toward the rear of the car. At that moment, Zack began to run toward the defendant and yell. Zack testified that when this occurred, he “was pretty much right on top of [the defendant].” The defendant dropped the object and began to run, but “immediately gave up.” Zack testified that he believed that the defendant was going to break the car window with the metal object, but he did not see the defendant making any substantial step toward that end.

The state theorizes that one who had permission from the owner to enter the car would not have performed the acts observed by the arresting officer. We cannot conclude, however, that those acts are sufficient to support the conclusion that the defendant, beyond a reasonable doubt, lacked consent to enter or tamper with the car. The evidence here does not exclude the reasonable hypothesis that the defendant did have consent to enter the car and initially ran from Zack because he had been startled. It is reasonable to suppose that the defendant lost the keys to the vehicle and was unable or unwilling to call a locksmith. In this case, without direct evidence that the defendant lacked consent, the state’s case, at best, raises a suspicion of illegal activity on the part of the defendant. “This is far from satisfying the state’s burden of proving its case beyond a reasonable doubt.” State v. Arbelo, supra, 37 Conn. App. 161-62.

Applying the two-pronged standard of review, first construing the evidence presented at trial in a light most favorable to sustaining the jury’s verdict, and then reviewing the facts established and the inferences reasonably drawn therefrom, we conclude that the jury could not have reasonably concluded that the cumulative effect of the evidence as to the element of lack of consent established the defendant’s guilt beyond a reasonable doubt.

The judgment is reversed and the case is remanded with direction to render a judgment of not guilty on both charges.

In this opinion O’CONNELL, J., concurred.

1 General Statutes § 53a-103 provides in pertinent part: “A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein. . . .”

2 General Statutes § 53a-49 (a) provides in pertinent part: “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 . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

3 General Statutes § 53a-119b (c)provides: “Aperson is guilty of interfering or tampering with a motor vehicle when: (1) He puts into motion the engine of any motor vehicle while it is standing without the permission of the owner except that a property owner or his agent may remove any motor vehicle left without authorization on such owner’s property in accordance with section 14-145; or (2) with intent and without right to do so, he damages any motor vehicle or damages or removes any of its parts or components.”

4 General Statutes § 53a-100 (a) (1) defines “building” to include any vehicle.