State v. Marsala

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STATE OF CONNECTICUT v.
MICHAEL J. MARSALA
(SC 20249)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.*
Syllabus
Convicted, after a jury trial, of the crime of criminal trespass in the first
degree, the defendant appealed to the Appellate Court, claiming that
the trial court improperly declined to instruct the jury on the infraction of
simple trespass as a lesser included offense. The defendant’s conviction
stemmed from his conduct in entering and panhandling on shopping
mall property despite having been previously banned from the property
by mall security officers and having been told by a private duty police
officer, S, that he would be arrested for trespassing if he entered the
property again. At trial, the defendant claimed that the first degree
criminal trespass statute (§ 53a-107 (a) (1)) requires that an order not
to enter the property be communicated ‘‘by the owner of the premises
or other authorized person’’ and that the state failed to prove that S
was authorized to communicate such an order to the defendant. Follow-
ing the close of evidence, the defendant requested a jury instruction on
simple trespass as a lesser included offense of first degree criminal
trespass, which the trial court denied. The defendant appealed to the
Appellate Court, which affirmed the judgment of conviction. On the
granting of certification, the defendant appealed to this court, claiming
that the Appellate Court incorrectly determined, for purposes of State
v. Whistnant (179 Conn. 576), that there was no evidence that could
have permitted the jury to find him not guilty of first degree criminal
trespass but also find him guilty of simple trespass. Specifically, the
defendant claimed that the jury could have agreed with him that the
state failed to prove that mall security personnel and S were authorized
to ban him from mall property, and thus have found him not guilty of
first degree criminal trespass, but nonetheless have found that the state
proved that the defendant had been told multiple times that he was not
allowed to enter the property to panhandle and thus have found him
guilty of simple trespass. Held that the Appellate Court correctly con-
cluded that the trial court properly declined the defendant’s request to
instruct the jury on simple trespass as a lesser included offense of first
degree criminal trespass because the prerequisites set forth in Whistnant
for obtaining a jury instruction on a lesser included offense were not
satisfied; the jury could not consistently have found the defendant not
guilty of first degree criminal trespass but guilty of simple trespass, as
required by Whistnant, because the element of criminal and simple
trespass requiring proof that the defendant knew he was not licensed
or privileged to enter the property necessarily requires proof that he
was not in fact licensed or privileged to enter, and, if the jury accepted
the defendant’s claim that the state had failed to prove that the security
officers and S were authorized to ban him from entering the mall, there
would have been no evidence permitting the jury to find that his entry
at the time of his arrest was unlawful, an element of simple trespass.
Argued February 20—officially released September 16, 2020**
Procedural History
Substitute information charging the defendant with
the crime of criminal trespass in the first degree,
brought to the Superior Court in the judicial district
of Ansonia-Milford, geographical area number twenty-
two, and tried to the jury before Markle, J.; verdict and
judgment of guilty, from which the defendant appealed
to the Appellate Court, Alvord, Moll and Eveleigh, Js.,
which affirmed the trial court’s judgment, and the defen-
dant, on the granting of certification, appealed to this
court. Affirmed.
Laila M. G. Haswell, senior assistant public defender,
for the appellant (defendant).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Margaret E. Kelley, state’s
attorney, Matthew R. Kalthoff, assistant state’s attor-
ney, and Laurie N. Feldman and Brett R. Aiello, deputy
assistant state’s attorneys, for the appellee (state).
Opinion
MULLINS, J. In this certified appeal, the defendant,
Michael J. Marsala, appeals from the judgment of the
Appellate Court affirming his judgment of conviction,
rendered after a jury trial, for criminal trespass in the
first degree in violation of General Statutes § 53a-107.1
He challenges the Appellate Court’s conclusion that the
trial court properly declined to instruct the jury on
the infraction of simple trespass; see General Statutes
§ 53a-110a;2 as a lesser included offense of criminal
trespass in the first degree. Because we agree with the
Appellate Court’s conclusion that the prerequisites set
forth in State v. Whistnant, 179 Conn. 576, 427 A.2d
414 (1980), for obtaining a jury instruction on a lesser
included offense were not satisfied in the present case,3
we affirm the judgment of the Appellate Court.4
The record reveals the following relevant facts, which
the jury reasonably could have found, and procedural
history. The Connecticut Post Mall of the Centennial
Collection, formerly known as the Westfield Connecti-
cut Post (mall), is located at 1201 Boston Post Road in
Milford (mall property). At all relevant times, the mall
was owned by the Westfield Corporation (Westfield).
Westfield contracted with an independent entity, Pro-
fessional Security Consultants (PSC), to provide secu-
rity services on mall property. During the holiday shop-
ping season, November through January, the mall hires
Milford police officers to assist PSC with security and
to conduct traffic control. While working these ‘‘private
duty’’ jobs, the officers are essentially part of PSC’s
security staff; they report directly to PSC and assist
PSC employees with enforcing the mall’s security poli-
cies. For their work on these private duty jobs, the
officers are paid by the city of Milford, which is, in turn,
reimbursed by the mall.
By November, 2015, the defendant was well known
to PSC. He was frequently seen in mall parking lots
‘‘panhandling,’’ i.e., asking customers for money. Pan-
handling is prohibited on mall property. Prior to Novem-
ber 28, 2015, PSC security official Wilfred Castillo
received ten to fifteen complaints about the defendant’s
panhandling. On several of these occasions, Castillo
confronted the defendant and told him that ‘‘panhan-
dling isn’t allowed on [mall] property, and that he would
have to leave.’’ In response to Castillo’s directives, the
defendant would leave the mall property without inci-
dent.
PSC also had a ‘‘ban notice,’’ dated July 9, 2015, on
file in its office for the defendant. The ban notice stated
that the defendant had been banned from mall property
for one year. Under PSC policy, ban notices can be
reviewed and approved (or potentially reversed) by
PSC’s director of security, Thomas Arnone, or by
Arnone’s assistant, as well as by the general manager
of the mall, Dan Kiley.5 Based on the existence of this
ban notice, the defendant was not permitted to be on
mall property.
On November 27, 2015, Officer Joanna Salati of the
Milford Police Department was working a private duty
job when she saw the defendant panhandling on mall
property. She contacted PSC on her radio and con-
firmed that the defendant previously had been banned.
Salati approached the defendant and told him that ‘‘he
had to leave . . . because he was banned from being
on mall property’’ and that ‘‘the next time he’s caught on
mall property, he’s going to be arrested’’ for trespassing.
Salati decided not to arrest the defendant for tres-
passing at that time because ‘‘it was too busy.’’ The
defendant left the property in response to Salati’s direc-
tive.
The following day, November 28, 2015, Salati again
saw the defendant on mall property ‘‘approaching cus-
tomers.’’ When the defendant saw Salati walking toward
him, he began walking ‘‘quickly’’ away from her. Salati
eventually caught up with the defendant and arrested
him.
The defendant was charged with criminal trespass in
the first degree in violation of § 53a-107 (a) (1). As the
basis for this charge, the state alleged, in an amended
long form information, that, ‘‘on November 28, 2015
. . . [the defendant], knowing that he was not licensed
or privileged to do so, did enter . . . [mall property]
after having been directed not to return to the property
by authorized mall security personnel and/or authorized
officers of the Milford Police Department . . . .’’ The
defendant elected a trial by jury.
At trial, the parties’ dispute centered around the ele-
ment of criminal trespass in the first degree that
requires the defendant’s unlawful entry to have
occurred ‘‘after an order to leave or not to enter [was]
personally communicated to [the defendant] by the
owner of the premises or other authorized person
. . . .’’ General Statutes § 53a-107 (a) (1). As proof that
such an order had been communicated to the defendant
prior to his entry onto mall property on November 28,
2015, the state relied on Salati’s testimony that, on
November 27, 2015, she told the defendant that ‘‘he had
to leave . . . because he was banned from being on
mall property’’ and that ‘‘the next time he’s caught on
mall property, he’s going to be arrested’’ for trespassing.
The crux of the defense was that § 53a-107 (a) (1)
requires the order not to enter to be communicated ‘‘by
the owner of the premises or other authorized person,’’
and the state failed to prove that Salati had been author-
ized to communicate such an order to the defendant.
(Emphasis added.) The defendant pointed out that the
state called no witnesses from Westfield to testify about
the authority it had granted to PSC or the private duty
officers working for PSC to ban individuals from enter-
ing mall property. The defendant also introduced into
evidence a document titled ‘‘Enforcement—Banning
Procedures: Use of Physical Force’’ and subtitled ‘‘Les-
son Plan 9’’ (lesson plan) that PSC’s corporate office
had prepared for purposes of training PSC’s staff. The
lesson plan provides, under the heading of ‘‘Temporary
Suspension’’: ‘‘Suspend the privilege of being on the
property for an amount of time that is determined by
the severity of the incident and local and state ordi-
nances. Any suspension for more than [twenty-four]
hours must [be] approved [by] the [c]enter [m]anager.’’
The lesson plan further provides, under the heading of
‘‘Reason to [S]uspend’’: ‘‘1. Only those individuals who
have committed a crime at [the] [s]hopping [c]enter
will be considered for banning and as in compliance
with local, state and federal ordinances. 2. The [d]irec-
tor of [s]ecurity, [a]ssistant [d]irector of [s]ecurity or
[s]ecurity [s]upervisor can only temporarily ban sus-
pects for the remainder of the business day.’’
Relying on the lesson plan, defense counsel argued
during closing argument that the state never proved
that Westfield had authorized PSC to ban violators of
the panhandling prohibition from mall property for one
year (as reflected in the July 9, 2015 ban notice), or for
any period of time longer than the remainder of the
business day. Defense counsel further argued that this
policy extended to Salati because Salati was working
in a private capacity, assisting PSC’s staff, and that
her November 27, 2015 order to stay off mall property
indefinitely exceeded her authority as set forth in the
lesson plan.
The state, for its part, introduced evidence that PSC,
and by extension Salati, did indeed have authority to
ban people from mall property. Arnone, PSC’s director
of security, testified that PSC was authorized to ban
people for periods of six months or one year and that
PSC issued between 360 and 370 such bans per year.
Arnone further testified that the lesson plan was not a
‘‘complete statement’’ of PSC’s banning authority and
that he had a verbal understanding with Kiley, the mall’s
general manager, whereby PSC’s banning authority
extended beyond what was set forth in the lesson plan.
Following the close of evidence, the defendant filed
a written request for a jury instruction on the infraction
of simple trespass, which he asserted was a lesser
included offense of criminal trespass in the first degree.6
The state opposed the instruction on the grounds that
(1) the second prong of Whistnant was not satisfied;
see footnote 3 of this opinion; because simple trespass
requires proof of an element that criminal trespass in
the first degree does not, namely, that the defendant
enter or remain on the premises ‘‘without intent to harm
any property’’; General Statutes § 53a-110a (a); and (2)
infractions cannot be submitted to the jury as lesser
included offenses of crimes. The trial court agreed with
both of the state’s arguments and denied the defendant’s
request for the instruction.
The jury subsequently found the defendant guilty of
criminal trespass in the first degree. The court imposed
a sentence of one year incarceration, execution sus-
pended after four months, followed by two years of
conditional discharge.
The defendant appealed to the Appellate Court,
claiming that the trial court should have instructed the
jury on the infraction of simple trespass as a lesser
included offense. See State v. Marsala, 186 Conn. App.
1, 2–3, 7, 198 A.3d 669 (2018). In rejecting this claim,
the Appellate Court concluded that the defendant’s
requested instruction failed the third and fourth ele-
ments of Whistnant; see footnote 3 of this opinion;
because there was no reasonable view of the evidence
that permitted the jury consistently to find the defen-
dant not guilty of criminal trespass in the first degree
but guilty of simple trespass.7 See State v. Marsala,
supra, 21. More specifically, the Appellate Court deter-
mined that, ‘‘if the jury was to reject the evidence pre-
sented by the state that the defendant received an order
not to enter from an authorized person’’; id., 20; the
jury necessarily also would have had to find that the
state failed to prove the ‘‘knowledge’’ element of simple
trespass because ‘‘there was no other evidence, intro-
duced by either the state or the defendant, from which
the jury could have found that the defendant knew he
was not privileged to enter or remain on mall property.’’
Id., 19–20. Accordingly, the Appellate Court concluded
that the defendant was not entitled to an instruction on
simple trespass as a lesser included offense of criminal
trespass in the first degree and affirmed his conviction.8
Id., 21. This certified appeal followed.9
The defendant claims that the Appellate Court incor-
rectly determined, for purposes of the third and fourth
prongs of Whistnant, that there was no evidence that
permitted the jury to consistently find him not guilty
of criminal trespass in the first degree but guilty of
simple trespass. Specifically, the defendant argues that
the jury could have agreed with him that the state failed
to prove that PSC and Salati were authorized to ban
him from mall property, and thus found him not guilty
of criminal trespass in the first degree, but nonetheless
found that the state proved that the defendant had been
told multiple times that he was not allowed to enter
the property to panhandle. The defendant also asserts
that the jury could have credited the testimony from
Salati that the defendant tried to leave the property
when Salati saw him on the day of the incident. The
defendant contends that this evidence provided the jury
with an independent basis to find, for purposes of the
simple trespass statute, that the defendant knew he was
not licensed or privileged to be panhandling on mall
property.
The state responds that, under the facts of this case,
if the jury found that the state had failed to prove that
PSC and Salati were authorized to exclude the defen-
dant from mall property, it could not then have found
that the defendant knew he was not permitted on the
property on November 28, 2015. The state emphasizes
that, in order to establish that the defendant knew his
entry was unlawful for purposes of simple trespass, it
was required to prove not just ‘‘the defendant’s mere
belief’’ that his entry was unlawful, but that it was in
fact unlawful. (Emphasis in original.) The state argues
that, if the jury found that the state never proved that
PSC and Salati were authorized to ban the defendant,
there was no other evidence in the record upon which
the jury could have found that he had in fact been
banned and, therefore, that his entry on November 28,
2015, was unlawful.
We note at the outset that, as the state’s brief
acknowledges, the element of criminal and simple tres-
pass requiring proof that the defendant knew he was not
licensed or privileged to enter the property necessarily
requires proof that he was not in fact licensed or privi-
leged to enter. See State v. Harper, 167 Conn. App. 329,
338, 143 A.3d 1147 (2016) (‘‘to prove that the defendant
knew that he did not have a license or privilege to be
at [the property], the state was necessarily required to
prove that, in fact, he did not have such a right or
privilege’’); see also General Statutes § 53a-3 (12) (‘‘[a]
person acts ‘knowingly’ with respect to . . . a circum-
stance described by a statute defining an offense when
he is aware . . . that such circumstance exists’’
(emphasis added)). We agree with the state that, if the
jury had found that the state never proved that PSC
and Salati were authorized to ban the defendant, there
was no other evidence in the record upon which the
jury could have found that the defendant did not have
license or privilege to enter mall property on November
28, 2015. Accordingly, we conclude that the defendant’s
requested instruction fails the fourth element of Whist-
nant.10
We begin with the general principles governing our
review. The defendant’s claim that he had improperly
been denied an instruction on a lesser included offense
‘‘requires us, on appeal, to review the facts in the light
most favorable to the defendant. . . . Whether one
offense is a lesser included offense of another presents
a question of law. . . . Accordingly, our review is de
novo. . . .
‘‘The applicable legal principles are well established.
A defendant is entitled to an instruction on a lesser
[included] offense if . . . the following conditions are
met: (1) an appropriate instruction is requested by
either the state or the defendant; (2) it is not possible
to commit the greater offense, in the manner described
in the information or bill of particulars, without having
first committed the lesser; (3) there is some evidence,
introduced by either the state or the defendant, or by
a combination of their proofs, which justifies conviction
of the lesser offense; and (4) the proof on the element
or elements which differentiate the lesser offense from
the offense charged is sufficiently in dispute to permit
the jury consistently to find the defendant [not guilty]
of the greater offense but guilty of the lesser. State v.
Whistnant, [supra, 179 Conn. 588].’’ (Citations omitted;
internal quotation marks omitted.) State v. Jones, 289
Conn. 742, 758–59, 961 A.2d 322 (2008). Because we
conclude in the present case that the defendant’s
requested instruction fails the fourth element of Whist-
nant, we limit our analysis to that element.
This court previously elaborated on the fourth ele-
ment of Whistnant and noted that ‘‘[t]he fourth prong
of Whistnant specifically requires that the ‘proof’ be
‘sufficiently in dispute.’ ’’ State v. Manley, 195 Conn. 567,
579, 489 A.2d 1024 (1985). This court further explained:
‘‘Such proof is sufficient when it is marked by [a] quality
[such as] to meet with the demands, wants or needs of
a situation . . . . In the Whistnant context, therefore,
the proof is sufficiently in dispute [when] it is of such
a factual quality that would permit the finder of fact
reasonably to find the defendant guilty [of] the lesser
included offense. This requirement serves to prevent a
jury from capriciously convicting on the lesser included
offense when the evidence requires either conviction
on the greater offense or acquittal. . . . Moreover, the
trial court, in making its determination whether the
proof is sufficiently in dispute, [although] it must care-
fully assess all the evidence whatever its source, is not
required to put the case to the jury on a basis [of a
lesser included offense] that essentially indulges and
even encourages speculations as to [a] bizarre recon-
struction [of the evidence].’’ (Citations omitted; internal
quotation marks omitted.) Id., 579–80.
We therefore begin by identifying the element that
differentiates simple trespass from criminal trespass in
the first degree. We then determine whether, in light
of the evidence introduced at trial, that element was
sufficiently in dispute so as to permit the jury consis-
tently to have found the defendant not guilty of criminal
trespass in the first degree but guilty of simple trespass.
‘‘A person is guilty of simple trespass when, knowing
that such person is not licensed or privileged to do so,
such person enters or remains in or on any premises
. . . .’’ General Statutes § 53a-110a (a). To obtain a con-
viction for criminal trespass in the first degree, the
state must prove these same elements, as well as the
additional element that the defendant’s unlawful entry
occurred ‘‘after an order to leave or not to enter [is]
personally communicated to [the defendant] by the
owner of the premises or other authorized person
. . . .’’ General Statutes § 53a-107 (a) (1); see State v.
Kinchen, 243 Conn. 690, 703, 707 A.2d 1255 (1998)
(criminal trespass in first degree under § 53a-107 (a)
(1) requires proof ‘‘(1) that the defendant, knowing he
was not privileged or licensed to do so, entered or
remained in [or on the premises]; and (2) that the defen-
dant committed that act after an order to leave or not
to enter had been personally communicated to him by
the owner or other authorized person’’ (internal quota-
tion marks omitted)).
As previously noted, the state attempted to prove
this element of criminal trespass in the first degree by
introducing Salati’s testimony that she told the defen-
dant on November 27, 2015, that ‘‘he had to leave . . .
because he was banned from being on mall property’’
and that ‘‘the next time he’s caught on mall property,
he’s going to be arrested’’ for trespassing. The defendant
did not dispute that Salati had said this to him on
November 27, 2015. Instead, he attempted to place this
element in dispute by establishing reasonable doubt as
to whether Salati was an ‘‘authorized person,’’ within
the meaning of § 53a-107 (a) (1), to communicate such
an order to him.
As support for this defense, the defendant introduced
the lesson plan into evidence. That document provided
that ‘‘[a]ny suspension for more than [twenty-four]
hours must [be] approved [by] the [c]enter [m]anager’’;
‘‘[o]nly those individuals who have committed a crime
. . . will be considered for banning’’; and PSC person-
nel ‘‘can only temporarily ban suspects for the remain-
der of the business day.’’ Defense counsel relied on the
lesson plan to argue that PSC and, by extension, Salati
were authorized to ban violators of the panhandling
prohibition only for the remainder of the business day
and, therefore, that Salati’s November 27, 2015 order
never to return exceeded her authority.
Even if this evidence placed in dispute the differenti-
ating element of criminal trespass in the first degree,
it would not have provided the jury with a basis to find
the defendant not guilty of that charge but still find him
guilty of simple trespass. This is because, under the
unique circumstances of the present case, if the jury
credited this defense and found that the state failed to
prove that PSC and Salati were authorized to ban the
defendant from mall property for longer than the
remainder of the business day, there was no other evi-
dence in the record to permit the jury rationally to find
that, when the defendant entered mall property the next
day, on November 28, 2015, he was not ‘‘licensed or
privileged to do so . . . .’’ General Statutes § 53a-110a
(a). Our conclusion in this regard is illuminated by the
state’s theory of guilt at trial.
The only theory advanced by the state for why the
defendant did not have license or privilege to enter mall
property on November 28, 2015, was that he previously
had been banned from the property. The state never
pursued the theory that the defendant’s entry was
unlawful because he intended to engage in the unautho-
rized activity of panhandling.11 It is well settled that the
state cannot obtain a conviction based on a theory that
it never pursued at trial. See State v. Carter, 317 Conn.
845, 853–54, 120 A.3d 1229 (2015); State v. Fourtin, 307
Conn. 186, 208, 211, 52 A.3d 674 (2012). Accordingly, the
state could have proved the ‘‘unlawful entry’’ element
of both criminal trespass in the first degree and simple
trespass only by establishing that a valid ban was in
fact in place against the defendant on November 28,
2015, so as to render his entry onto mall property on
that date unlawful. See, e.g., State v. Fourtin, supra,
211 (determination of whether evidence was sufficient
to sustain conviction must be made ‘‘in light of the
state’s theory of guilt at trial’’).
In light of the evidence introduced at trial, however,
if the jury were to find that the state failed to prove that
PSC and Salati were authorized to ban the defendant
for longer than the rest of the business day, the jury
could not consistently then have found that there was
a valid ban in place against the defendant when he
entered mall property on November 28, 2015. The jury
would have been required to find that the July 9, 2015
ban notice, which purported to ban the defendant for
one year, was invalid. There was no evidence that the
ban had been issued by anyone other than an employee
of PSC. The ban notice was submitted as an exhibit for
identification purposes only, and neither party intro-
duced any evidence as to who had issued the ban or
whether the issuer had authority to do so. Although
Arnone testified that ban notices are generally submit-
ted to Kiley, the mall’s general manager, to be ‘‘final-
ized,’’ there was no evidence that this particular ban
notice was submitted for review, or ever approved,
by Kiley.
Therefore, there was no way that the jury could have
credited the defendant’s defense that bans issued by
PSC personnel were not authorized beyond the business
day on which they were issued, yet also have found
that the July 9, 2015 ban notice was valid more than
four months later, on November 28, 2015, without
resorting to improper speculation as to whether it had
been either issued or approved by someone outside of
PSC with authority to do so. See State v. Manley, supra,
195 Conn. 579–80 (Whistnant does not permit instruc-
tion to be given ‘‘on [an evidentiary] basis . . . that
essentially indulges and even encourages speculations’’
(internal quotation marks omitted)). Likewise, insofar
as Salati’s communication to the defendant on Novem-
ber 27, 2015, could be construed as its own independent
ban from mall property, any such ban (under the defen-
dant’s theory) would no longer have been in effect when
the defendant entered mall property the next day on
November 28, 2015.
Accordingly, if the jury accepted the defendant’s
defense that the state failed to prove that PSC and Salati
were authorized to ban him indefinitely, there was no
evidence permitting the jury to find that his entry on
November 28, 2015, was unlawful. Because unlawful
entry is an element of simple trespass, the jury could
not consistently have found the defendant not guilty of
criminal trespass in the first degree but guilty of simple
trespass, as required by the fourth element of Whist-
nant. Put another way, the dispute at trial was not
about the differentiating element of criminal trespass
in the first degree—whether an order not to enter had
been personally communicated to the defendant by an
authorized person—but the common element of
whether the defendant’s entry was unlawful. Under
such circumstances, the jury cannot rationally convict
only on the greater offense, and no lesser included
instruction is warranted. See State v. Langley, 128 Conn.
App. 213, 233–34, 16 A.3d 799 (defendant was not enti-
tled to instruction on criminally negligent homicide as
lesser included offense of murder or of manslaughter
in first degree, when evidence permitted jury to find
either that defendant intentionally lit victim on fire or
had ‘‘nothing to do whatsoever with [his] injuries,’’
because ‘‘[s]uch competing theories do not revolve
around the [differentiating] element of intent but the
defendant’s culpable conduct more generally’’), cert.
denied, 302 Conn. 911, 27 A.3d 371 (2011); see also
United States v. Whitman, 887 F.3d 1240, 1247 (11th
Cir. 2018) (‘‘[w]hen a defendant relies on an exculpatory
defense that, if believed, would lead to acquittals on
both the greater and lesser charges,’’ that defendant is
not entitled to instruction on lesser offense (internal
quotation marks omitted)), cert. denied, U.S. ,
139 S. Ct. 1276, 203 L. Ed. 2d 289 (2019); United States
v. Nur, 799 F.3d 155, 159 (1st Cir. 2015) (lesser included
offense instruction was inappropriate when ‘‘the scope
of rational dispute [is limited] to elements common to
the two offenses’’).
The defendant’s arguments for why the jury could
have found that the state failed to prove that PSC and
Salati were authorized to ban people for more than the
rest of the business day, but nonetheless found him
guilty of simple trespass, are unavailing. First, the defen-
dant contends that the jury could have credited Salati’s
testimony that the defendant began walking ‘‘quickly’’
away when she started to approach him on November
28, 2015, as if to try to escape, as well as Castillo’s
testimony that he told the defendant on numerous, prior
occasions that ‘‘panhandling isn’t allowed on [mall]
property and that he would have to leave.’’ Although this
evidence may suggest that the defendant subjectively
believed he was not licensed or privileged to be on mall
property, it is insufficient as a matter of law to support
the inference that he in fact was not licensed or privi-
leged to be there. See State v. Harper, supra, 167 Conn.
App. 341–42 (holding that there was insufficient evi-
dence to sustain conviction for criminal trespass in
third degree and observing that, ‘‘even if [the defen-
dant’s evasive conduct upon encountering police] could
have supported the inference that the defendant . . .
did not believe that [he] had a license or privilege to
be at [the premises] that evening, such . . . conduct
did not establish that [he] in fact had no license or
privilege to be there’’). Therefore, if the jury credited
the defendant’s defense at trial, that does not provide an
independent basis for finding his entry to be unlawful.
Moreover, we agree with the state that the jury could
not properly have relied on Castillo’s testimony that he
had many times told the defendant to leave because of
his panhandling as proof that the defendant’s entry on
November 28, 2015, was unlawful because it would have
been inconsistent with the theories advanced by the
parties at trial. As previously explained; see footnote
11 of this opinion and accompanying text; the state’s
theory of guilt was that the defendant was not licensed
or privileged to enter mall property on November 28,
2015, because he previously had been banned, not
because he had entered the property in order to panhan-
dle. It was the defendant’s initial act of entering the
property, as distinct from entering it to engage in an
unauthorized activity, that constituted the trespass.12
See State v. Belton, 190 Conn. 496, 500, 461 A.2d 973(1983) (‘‘[t]o enter unlawfully contemplates an entry
which is accomplished unlawfully, [whereas] to remain
unlawfully contemplates an initial legal entry which
becomes unlawful at the time that the actor’s right,
privilege or license to remain is extinguished’’). In any
event, for the reasons explained previously in this opin-
ion, if the jury accepted the defendant’s theory that PSC
lacked authority to ban people indefinitely, it could not
rationally then have found that these admonishments
from Castillo, a PSC employee, rendered the defen-
dant’s entry unlawful on November 28, 2015.
Finally, the defendant argues that the jury reasonably
could have found that Salati’s communication to the
defendant on November 27, 2015, did not amount to an
‘‘order’’ not to enter mall property within the meaning
of § 53a-107 (a) (1) but was nonetheless sufficient to
provide the defendant with the requisite knowledge that
he was not permitted to enter the property the following
day. We disagree.
Section 53a-107 (a) (1) requires the defendant to have
entered the property in defiance of a prior ‘‘order . . .
not to enter’’ communicated by an authorized person.
Because the term ‘‘order’’ is not defined in the statute,
we look to the dictionary to ascertain its commonly
approved meaning. See, e.g., State v. Drupals, 306 Conn.
149, 161–62, 49 A.3d 962 (2012); see also General Stat-
utes § 1-1 (a). The word ‘‘order’’ is defined as ‘‘[a]n
authoritative indication to be obeyed; a command or
direction.’’ American Heritage College Dictionary (4th
Ed. 2007) p. 979. This definition unquestionably encom-
passes Salati’s November 27, 2015 communication to
the defendant. Salati testified that she approached the
defendant while in full police uniform and told him that
‘‘he had to leave . . . because he was banned from
being on mall property’’ and that ‘‘the next time he’s
caught on mall property, he’s going to be arrested’’ for
trespassing. Salati further testified that she ‘‘could [not]
have been more clear’’ about this. Salati’s November
27, 2015 communication was undoubtedly an ‘‘order’’
not to enter mall property. The jury could not reason-
ably have concluded otherwise.13
Accordingly, in light of the evidence introduced by
the parties at trial, we can exclude as a matter of law
the possibility that the jury rationally could have found
the defendant guilty only of simple trespass, and not
criminal trespass in the first degree. The trial court
properly denied the defendant’s request for an instruc-
tion on the lesser included offense.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** September 16, 2020, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
General Statutes § 53a-107 provides in relevant part: ‘‘(a) A person is
guilty of criminal trespass in the first degree when: (1) Knowing that such
person is not licensed or privileged to do so, such person enters or remains
in a building or any other premises after an order to leave or not to enter
personally communicated to such person by the owner of the premises or
other authorized person . . . .’’
2
General Statutes § 53a-110a provides: ‘‘(a) A person is guilty of simple
trespass when, knowing that such person is not licensed or privileged to
do so, such person enters or remains in or on any premises without intent
to harm any property.
‘‘(b) Simple trespass is an infraction.’’
3
Under State v. Whistnant, supra, 179 Conn. 576, ‘‘[a] defendant is entitled
to an instruction on a lesser [included] offense if . . . the following condi-
tions are met: (1) an appropriate instruction is requested by either the state
or the defendant; (2) it is not possible to commit the greater offense, in the
manner described in the information or bill of particulars, without having
first committed the lesser; (3) there is some evidence, introduced by either
the state or the defendant, or by a combination of their proofs, which justifies
conviction of the lesser offense; and (4) the proof on the element or elements
which differentiate the lesser offense from the offense charged is sufficiently
in dispute to permit the jury consistently to find the defendant [not guilty]
of the greater offense but guilty of the lesser.’’ Id., 588.
4
Because we conclude that the defendant failed to satisfy Whistnant, we
do not reach the state’s alternative ground for affirmance, in which the state
contends that the defendant would not have been entitled to an instruction
on the infraction of simple trespass even if he had satisfied Whistnant
because infractions are categorically prohibited from being submitted to
the jury as lesser included offenses of crimes.
5
There was no evidence presented at the defendant’s trial about the
circumstances that led to this purported July 9, 2015 one year ban. The ban
notice was submitted as an exhibit for identification purposes only, and
neither party introduced any evidence as to who had issued the ban, whether
the duration of the ban was communicated to the defendant, or whether
the decision to issue the ban had been reviewed and approved by Kiley or
anyone else outside of PSC.
6
The defendant requested the following instruction: ‘‘If you have unani-
mously found the defendant not guilty of the crime of criminal trespass in
the first degree, you shall then consider the lesser offense of simple trespass.
Do not consider the lesser offense until you have unanimously acquitted
the defendant of the greater offense.
‘‘A person is guilty of simple trespass when, knowing that he is not licensed
or privileged to do so, he enters any premises without intent to harm any
property. For you to find the defendant guilty of simple trespass, the state
must prove the following elements beyond a reasonable doubt: first that he
entered the premises. Premises is not defined in the law so it has the common
meaning. The second element is that he entered knowing he was not licensed
or privileged to do so. To be licensed or privileged the defendant must have
either consent from the owner of the premises or other authorized person
or have some other right to be on the premises. A person acts knowingly
with respect to conduct when he is aware that his conduct is of such nature
or such circumstances exist.’’ (Internal quotation marks omitted.) State v.
Marsala, 186 Conn. App. 1, 5–6, 198 A.3d 669 (2018).
7
There was no dispute that the defendant had made a proper request for
the instruction and, therefore, that the first element of Whistnant was
satisfied. See State v. Whistnant, supra, 179 Conn. 588. With respect to the
second element, which requires a showing that ‘‘it is not possible to commit
the greater offense, in the manner described in the information or bill of
particulars, without having first committed the lesser’’; id.; the Appellate
Court concluded that this element was satisfied because simple trespass
does not require proof of an element that criminal trespass in the first degree
does not. See State v. Marsala, supra, 186 Conn. App. 9–10. Contrary to the
trial court’s determination, the Appellate Court concluded that the ‘‘without
intent to harm any property’’ language of the simple trespass statute; General
Statutes § 53a-110a (a); is not an element of the offense that the state must
prove beyond a reasonable doubt. State v. Marsala, supra, 9–10. The state
has not challenged this aspect of the Appellate Court’s decision on appeal
to this court.
8
The Appellate Court did not reach the state’s alternative ground for
affirmance that infractions can never be submitted to the jury as lesser
included offenses of crimes. See State v. Marsala, supra, 186 Conn. App. 8 n.8.
9
We granted the defendant’s petition for certification to appeal, limited
to the following issue: ‘‘Did the Appellate Court [correctly] conclude that
the defendant was not entitled to an instruction on the infraction of simple
trespass as a lesser included offense of criminal trespass in the first degree?’’
State v. Marsala, 330 Conn. 964, 199 A.3d 1079 (2019).
10
We therefore need not address the third element of Whistnant in this
case. We note, however, that this court has observed in other cases that,
‘‘[d]espite being conceptually distinct parts of the Whistnant formulation,
the third and fourth prongs are subject to the same evidentiary analysis
. . . [and, therefore, can be analyzed] simultaneously.’’ (Internal quotation
marks omitted.) State v. Jones, 289 Conn. 742, 762, 961 A.2d 322 (2008).
11
The state charged the defendant with trespass based on the fact that
he ‘‘enter[ed]’’ mall property after having been ordered not to do so. Through-
out the trial, the state’s focus in establishing that the entry was unlawful
was on the fact that the defendant previously had been banned. When
defense counsel objected to the prosecutor’s attempt to elicit evidence of
the defendant’s prior instances of panhandling on mall property on the
ground that such evidence was unduly prejudicial, the prosecutor explained
the probative value of that evidence: ‘‘Again, one of the elements of this
particular crime is that the defendant unlawfully entered the property. The
entry was unlawful because he had been banned from the property. That
ban was necessary because of the solicitation.’’
The prosecutor also elicited from Arnone and Castillo the fact that, based
on the July 9, 2015 ban notice stating that the defendant had been banned
for one year, the defendant was not ‘‘permitted to be on mall property’’
when he entered on November 28, 2015. Finally, after eliciting from Castillo
that, on the prior occasions when the defendant was found panhandling,
Castillo would simply tell him ‘‘to leave’’ mall property because panhandling
was not allowed, the prosecutor then elicited the following:
‘‘[The Prosecutor]: If you could just look up when you’re done. Does [the
ban notice] refresh your recollection as to what date the defendant was
banned from mall property?
‘‘[Castillo]: Yeah. Yes, it was July 9, 2015.
‘‘[The Prosecutor]: And for how long was that ban in place?
‘‘[Castillo]: One year.
‘‘[The Prosecutor]: How does it change the status of an individual on
mall property once they have been banned? How does that change your
interaction with him?
‘‘[Castillo]: My interaction is different because he is trespassing, and
our policy is to contact police when there is a trespasser.’’ (Emphasis added.)
Nor did the prosecutor contend during closing argument that the defen-
dant’s entry was unlawful because he intended to panhandle. Indeed, the
prosecutor emphasized: ‘‘[The defendant] may not have liked the fact that
he wasn’t allowed to be on [mall] property, and, in fact, we don’t have to
prove in this case whether the reasons that he wasn’t allowed on mall
property were proper or even what those reasons were.’’ (Emphasis added.)
Finally, consistent with the state’s theory of unlawful entry, the trial court
instructed the jury that it must determine whether the defendant ‘‘unlawfully
entered’’ mall property. (Emphasis added.)
12
The defendant contends that the ‘‘theory of the case doctrine does not
preclude the defendant from making lesser included offense requests that
are not precisely aligned with a prosecution’s theory at trial.’’ We disagree
that the theory of the case doctrine is irrelevant to our application of the
fourth element of Whistnant under the circumstances of the present case.
The fourth Whistnant element, which requires the jury to consistently be
able to find the defendant not guilty of the greater offense but guilty of the
lesser, is in place in order ‘‘to prevent a jury from capriciously convicting
on the lesser included offense when the evidence requires either conviction
on the greater offense or acquittal.’’ (Internal quotation marks omitted.)
State v. Manley, supra, 195 Conn. 579. Because the state cannot sustain a
conviction on the basis of a theory of guilt that it never presented; see State
v. Fourtin, supra, 307 Conn. 211; it cannot be said that the jury could
‘‘consistently’’ find the defendant not guilty of the greater offense but guilty
of the lesser for purposes of the fourth element of Whistnant, if the only
way for the jury to find that the state proved the elements of the lesser
offense would be to adopt a theory of guilt as to those elements that the
state never presented at trial.
13
As the defendant notes in his brief, defense counsel also questioned
Salati’s credibility and urged the jury to disregard her testimony because she
had shown a propensity in the past to target the defendant. The defendant,
however, did not offer any evidence to contravene the substance of Salati’s
testimony that she unequivocally ordered the defendant, on November 27,
2015, not to reenter mall property. Defense counsel merely made an unsub-
stantiated argument regarding her general credibility. We conclude that this
is insufficient to place the differentiating element of criminal trespass in
the first degree in sufficient dispute so as to warrant an instruction on a
lesser included offense. See United States v. Whitman, supra, 887 F.3d
1246–47 (‘‘[in the absence of] any evidence to support the bare assertion
of [a defendant’s] lawyer that the government failed to prove an element
of the greater offense, the trial court [i]s not required to instruct the jury
about lesser included offenses’’ (internal quotation marks omitted)).