State v. Moreno-Hernandez

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STATE OF CONNECTICUT v. JOSE
MORENO-HERNANDEZ
(SC 18919)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.
Argued March 17—officially released June 30, 2015
Richard E. Condon, Jr., senior assistant public
defender, for the appellant (defendant).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and Stacey Haupt Miranda, senior
assistant state’s attorney, for the appellee (state).
Opinion
ZARELLA, J. The present appeal requires us to define
the scope of liability under our criminal attempt statute,
General Statutes § 53a-49. Section 53a-49 (a) makes it
a crime for an individual, acting with the intent required
for the commission of the predicate crime, to intention-
ally engage in conduct that would constitute the crime
if the attendant circumstances were as he believed them
to be; General Statutes § 53a-49 (a) (1) (attendant cir-
cumstances subdivision); or to intentionally take a sub-
stantial step in a course of conduct planned to culminate
in the commission of the crime. General Statutes § 53a-
49 (a) (2) (substantial step subdivision). In the present
case, the defendant, Jose Moreno-Hernandez, was
charged with, inter alia, attempt to commit murder
under only the attendant circumstances subdivision,
and a jury found him guilty as charged. On appeal, the
defendant claims that the trial court incorrectly denied
his motion for a judgment of acquittal because the state
failed to prove beyond a reasonable doubt that he had
attempted to commit murder under the attendant cir-
cumstances subdivision. The defendant concedes that
the jury would have found him guilty under the substan-
tial step subdivision if he had been charged under that
subdivision but claims that the attendant circumstances
subdivision is simply inapplicable in the present case.
We disagree and, accordingly, affirm the judgment of
the trial court.
The jury reasonably could have found the following
facts. In the early morning hours of March 27, 2009, the
victim1 finished her shift at the Temple Grill, a restau-
rant in the city of New Haven, where she worked as a
waitress. As she was leaving, the defendant, who
worked at the restaurant as a dishwasher, asked her
for a ride home, and the victim agreed. The defendant
gave the victim directions to where he lived, but, after
forty-five minutes of driving, the victim was lost and
they still had not yet arrived at the defendant’s home.
The victim eventually pulled over, apologized, and
asked the defendant to get out of her car. At that point,
the defendant began making sexual advances toward
the victim, and, when she resisted, he struck her in the
face. The defendant repeatedly sexually assaulted the
victim inside the car and physically assaulted her when
she resisted. The victim attempted to call 911 and
escape multiple times, but the defendant stopped her
each time.
After assaulting the victim inside her car, the defen-
dant drove the car to a public park and forced the victim
to a remote area in the woods. There, the defendant
continued to sexually and physically assault the victim.
At a certain point, the defendant told the victim that
he was going to kill her, and he struck her with his fist
and a tree branch, kicked her with his boots, and twisted
her head and neck. The victim stopped reacting to the
defendant’s blows in an attempt to lead him to believe
that she was dead. Finally, after the defendant stopped
striking the victim and left, she ran from the park to a
nearby house and called the police. The police appre-
hended the defendant within hours, and he confessed
to physically and sexually assaulting the victim. The
defendant told police that he had tried to kill the victim
because he thought she would report the sexual assault
and that, when he left the park, he thought that he had
killed her.
The defendant was charged with five counts of first
degree sexual assault in violation of General Statutes
§ 53a-70 (a) (1), one count of first degree kidnapping
in violation of General Statutes § 53a-92 (a) (2) (A), one
count of first degree assault in violation of General
Statutes § 53a-59 (a) (1), and one count of attempt to
commit murder in violation of General Statutes §§ 53a-
54a (a) and 53a-49 (a) (1). While the state was proceed-
ing with its case against the defendant, the trial court
held a charging conference with the parties at which
it raised sua sponte the question of whether the state
had presented sufficient evidence to permit a reason-
able jury to find the defendant guilty of attempt to
commit murder in light of the fact that the defendant
was charged under the attendant circumstances subdi-
vision and not the substantial step subdivision, as is far
more common. That same day, the state moved to
amend the long form information pursuant to Practice
Book § 36-18 to charge the defendant with attempt to
commit murder in violation of the substantial step sub-
division instead of the attendant circumstances subdivi-
sion. The trial court denied the state’s motion, reasoning
that the state should not be allowed to amend the long
form information when it would not have been aware
of the potential deficiency if the court had not raised
the issue sua sponte.
When the state rested its case, the defense rested
without presenting any evidence and moved for a judg-
ment of acquittal with respect to the attempt to commit
murder charge, which the trial court denied. With
respect to that charge, the trial court instructed the jury
only on the attendant circumstances subdivision. The
jury found the defendant guilty on all counts, and the
trial court sentenced the defendant to a total effective
term of eighty years incarceration. At the sentencing
hearing, the trial court also denied the defendant’s post-
conviction motion for a new trial with respect to the
sexual assault, assault, and kidnapping charges, and his
motion for judgment of acquittal notwithstanding the
verdict with respect to the attempted murder charge.
This appeal followed.
On appeal, the defendant claims that the attendant
circumstances subdivision applies only to situations in
which it is impossible for an individual to commit the
intended crime due to a mistake of fact.2 That was
not the situation in the present case, according to the
defendant, because he could have killed the victim; his
actions simply fell short of causing her death. In making
this argument, the defendant relies primarily on our
decisions in State v. Gonzalez, 222 Conn. 718, 609 A.2d
1003 (1992), and State v. Cox, 293 Conn. 234, 977 A.2d
614 (2009), in which we interpreted the differences
between the attendant circumstances and substantial
step subdivisions as ‘‘significant.’’ Id., 241.
The state concedes that, were we to interpret the
attendant circumstances subdivision as requiring evi-
dence of impossibility, then a reasonable jury could not
have found the defendant guilty under that subdivision.
The state claims, however, that the attendant circum-
stances subdivision is not limited only to impossibility
situations, but also is satisfied when an individual would
have completed the intended crime but for certain
intervening circumstances. Applying this interpretation
to the present case, the state argues that it presented
sufficient evidence to prove the defendant’s guilt
beyond a reasonable doubt because the defendant
believed that he had done all that was necessary to kill
the victim but did not actually do so because of an
intervening circumstance, namely, that the victim pre-
tended to be dead.3 In making this argument, the state
relies on the concurring opinion in Gonzalez, as well
as our decision in State v. Green, 194 Conn. 258, 480
A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct.
964, 83 L. Ed. 2d 969 (1985), both of which indicated
that certain conduct can satisfy both the attendant cir-
cumstances and substantial step subdivisions. See State
v. Gonzalez, supra, 222 Conn. 729–30 (Peters, C. J.,
concurring in the judgment); State v. Green, supra, 275.
We conclude that the attendant circumstances subdi-
vision is not limited only to impossibility situations and
that, in the present case, the state presented sufficient
evidence to permit a reasonable jury to find the defen-
dant guilty of attempt to commit murder under the
attendant circumstances subdivision.4 Accordingly, we
affirm the judgment of the trial court.
‘‘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. . . . On appeal, we do not
ask whether there is a reasonable view of the evidence
that would support a reasonable hypothesis of inno-
cence. We ask, instead, whether there is a reasonable
view of the evidence that supports the jury’s verdict of
guilty.’’ (Internal quotation marks omitted.) State v. Cox,
supra, 293 Conn. 245.
To resolve the defendant’s sufficiency of evidence
claim, we must interpret § 53a-49 (a). ‘‘Issues of statu-
tory construction raise questions of law, over which
we exercise plenary review.’’ (Internal quotation marks
omitted.) State v. Brown, 310 Conn. 693, 702, 80 A.3d 878
(2013). ‘‘When construing a statute, [o]ur fundamental
objective is to ascertain and give effect to the apparent
intent of the legislature. . . . In seeking to determine
that meaning, General Statutes § 1-2z directs us first to
consider the text of the statute itself and its relationship
to other statutes. If, after examining such text and con-
sidering such relationship, the meaning of such text is
plain and unambiguous and does not yield absurd or
unworkable results, extratextual evidence of the mean-
ing of the statute shall not be considered. . . . The test
to determine ambiguity is whether the statute, when
read in context, is susceptible to more than one reason-
able interpretation. . . . When a statute is not plain and
unambiguous, we also look for interpretive guidance to
the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and common law principles governing the same general
subject matter . . . .’’ (Internal quotation marks omit-
ted.) State v. Buckland, 313 Conn. 205, 224, 96 A.3d
1163 (2014), cert. denied, U.S. , 135 S. Ct. 992,
190 L. Ed. 2d 837 (2015).
‘‘In interpreting the [statutory] language . . . how-
ever, we do not write on a clean slate, but are bound
by our previous judicial interpretations of the language
and the purpose of the statute.’’ Kasica v. Columbia,
309 Conn. 85, 93–94, 70 A.3d 1 (2013); see also Hummel
v. Marten Transport, Ltd., 282 Conn. 477, 501, 923 A.2d
657 (2007) (holding that § 1-2z does not require this
court to overrule prior judicial interpretations of statu-
tory schemes, even if not based on plain meaning rule).
Accordingly, we begin our analysis by examining the
text of § 53a-49 (a) and our prior decisions interpre-
ting it.
Section 53a-49 (a) provides: ‘‘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 con-
stitute 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 constituting
a substantial step in a course of conduct planned to
culminate in his commission of the crime.’’ In order to
determine whether the attendant circumstances subdi-
vision applies only in impossibility situations, as the
defendant claims, we turn next to our prior decisions
interpreting this statute.
A review of our case law reveals that we have deci-
sions that implicitly contradict one another with respect
to whether the attendant circumstances subdivision is
limited to impossibility situations. In Green, a case in
which the defendant could have completed the intended
crime, we determined that the jury could have found
the defendant guilty under the attendant circumstances
subdivision. See State v. Green, supra, 194 Conn. 275.
In Gonzalez, another case in which the defendant could
have completed the intended crime, we reached the
opposite conclusion, holding that the trial court should
not have instructed the jury on the attendant circum-
stances subdivision. See State v. Gonzalez, supra, 222
Conn. 724–25. The court was divided in Gonzalez, and
Chief Justice Peters wrote a concurring opinion, in
which she relied on Green in stating that the attendant
circumstances subdivision applied to the defendant’s
conduct, even though it was not an impossibility situa-
tion, because the defendant was mistaken about the
attendant circumstances. Id., 729–30 (Peters, C. J., con-
curring in the judgment). The majority in Gonzalez did
not respond to Chief Justice Peters’ critique or address
Green. Since Green and Gonzalez were decided, we
have relied on Gonzalez at least once, in Cox. See State
v. Cox, supra, 293 Conn. 241–42.
The Appellate Court likewise also has issued deci-
sions that implicitly conflict with one another regarding
whether the attendant circumstances subdivision
applies only to impossibility situations. Compare State
v. Rodriguez, 139 Conn. App. 594, 616–17, 56 A.3d 980
(2012) (upholding conviction for attempt to commit
first degree assault under attendant circumstances sub-
division when police prevented defendant from stab-
bing victim by shooting defendant), cert. denied, 308
Conn. 902, 60 A.3d 286 (2013), State v. Williams, 44
Conn. App. 231, 238, 689 A.2d 484 (there was sufficient
evidence for finding of guilt under attendant circum-
stances subdivision because jurors ‘‘could have reason-
ably found that the defendant struck the victim in the
head with a baseball bat a sufficient number of times
to believe that she would die’’), cert. denied, 240 Conn.
918, 692 A.2d 815 (1997), and State v. Gilchrist, 25 Conn.
App. 104, 110–11, 593 A.2d 507 (there was sufficient
evidence for finding of guilt under attendant circum-
stances subdivision when defendant shot victim in
mouth but victim survived), cert. denied, 220 Conn. 905,
593 A.2d 970 (1991), with State v. Carter, 141 Conn.
App. 377, 385, 61 A.3d 1103 (attendant circumstances
subdivision requires proof that defendant’s conduct
‘‘progressed so far as to constitute the final step in a
course of conduct planned to culminate in the commis-
sion of the crime’’), cert. granted, 308 Conn. 943, 66
A.3d 886 (2013), and State v. Rodriguez, supra, 617–18
(Lavine, J., concurring) (interpreting attendant circum-
stances subdivision as applying only to impossibility
situations and urging this court to reconsider Green).
Not only do we have conflicting decisions, but those
decisions, namely Green and Gonzalez, include little
substantive analysis to support their conclusions. For
instance, in Green, the court did not expressly decide
that the attendant circumstances subdivision applies
beyond impossibility situations but, rather, implicitly
reached that conclusion by determining that there was
sufficient evidence to sustain the defendant’s convic-
tion under the attendant circumstances subdivision
when the defendant clearly could have completed the
intended crime. See State v. Green, supra, 194 Conn.
271, 274–77. In Gonzalez, the court expressly addressed
the scope of the attendant circumstances subdivision;
State v. Gonzalez, supra, 222 Conn. 724; but, as the
concurrence in Gonzalez noted, did not cite to any
authority to support its conclusion that the attendant
circumstances subdivision applies only when a perpe-
trator fails to accomplish the intended crime due to a
mistake of fact that ‘‘render[ed] the commission of the
crime impossible.’’ Id.; see id., 729 (Peters, C. J., concur-
ring in the judgment). Moreover, the majority in Gonza-
lez failed to acknowledge the fact that it was implicitly
contradicting Green, let alone explain why it was choos-
ing to do so. Thus, neither of these cases provides us
with a sufficient analytical framework to resolve the
present case but, rather, offers only conclusions with-
out explanations. We decline to blindly adopt either of
those conclusions and instead undertake a full review
of the attendant circumstances subdivision to deter-
mine its scope.
We begin our review by examining the text of the
attendant circumstances subdivision and conclude that
it is susceptible to more than one reasonable interpreta-
tion. On the one hand, the text suggests that the subdivi-
sion is limited to impossibility situations insofar as it
refers to the attendant circumstances, or the lack
thereof, as the reason why the intended crime was not
completed, instead of the actor’s conduct. If the atten-
dant circumstances necessary to commit the crime
were not present, as the language of the attendant cir-
cumstances subdivision requires, then it is reasonable
to conclude that it was impossible to commit the
intended crime. On the other hand, the attendant cir-
cumstances subdivision does not include the term
‘‘impossible’’ and does not expressly limit its application
to impossibility situations. Thus, the statute also can
reasonably be read as applying to any situation in which
an individual engages in conduct that ‘‘would constitute
the crime if attendant circumstances were as he
believes them to be’’; General Statutes § 53a-49 (a) (1);
regardless of whether it was possible for the individual
to have completed the intended crime. The text of the
attendant circumstances subdivision alone therefore is
insufficient to resolve the issue presented. Accordingly,
we turn to extratextual sources relating to the statute.
The extratextual sources that resolve the issue pre-
sented are the commentary to § 53a-49 and the commen-
tary to the criminal attempt provision of the Model
Penal Code on which § 53a-49 was based. In 1969, the
legislature enacted § 53a-49 as part of a revision to this
state’s substantive criminal law, as recommended by
the Commission to Revise the Criminal Statutes (com-
mission). See Public Acts 1969, No. 828, § 50; see also
State v. Desimone, 241 Conn. 439, 456, 696 A.2d 1235
(1997). In the commission’s comments to the Penal
Code, the commission stated that § 53a-49 ‘‘is based, in
part, [on] the Model Penal Code.’’ Commission to Revise
the Criminal Statutes, Penal Code Comments, Conn.
Gen. Stat. Ann. § 53a-49 (West 2012) comment, p. 76.
The Model Penal Code provision on which § 53a-49 is
based is § 5.01 (1), as the language of the attendant
circumstances and substantial step subdivisions of
§ 53a-49 (a) is almost identical to that of the attendant
circumstances and substantial step provisions in § 5.01
(1).5 Compare General Statutes § 53a-49 (a) (1) and (2),
with Model Penal Code § 5.01 (1) (a) and (c).
Although neither the commission nor the legislature
directly addressed the issue of whether the attendant
circumstances subdivision is limited to impossibility
situations, the drafters of the Model Penal Code did. In
their comments to § 5.01, the drafters first made clear
that § 5.01 (1) (a), the analogue to the attendant circum-
stances subdivision of § 53a-49 (a) (1), applies in impos-
sibility situations. See generally 1 A.L.I., Model Penal
Code and Commentaries (1985) § 5.01, comment (3),
pp. 307–20 (Model Penal Code and Commentaries). The
drafters also noted, however, that, ‘‘when [an] actor has
done all that he believes to be necessary to commit
the offense in question, he has committed an attempt’’
under § 5.01 (1) (a). Id., comment (4), p. 321. In provid-
ing examples of such scenarios, the drafters stated that
§ 5.01 (1) (a) covers ‘‘cases where the contemplated
victim is fired upon but the shots miss or the victim
is saved by a miraculous operation.’’ (Emphasis
added.) Id. In both of these examples, the perpetrator
failed to complete the intended crime not because it
was impossible to do so, but because his actions were
insufficient to do so or because some intervening cir-
cumstance prevented him from doing so. Thus, there
is no question that the drafters of the Model Penal Code
intended § 5.01 (1) (a) to apply not only to impossibility
situations, but also to situations in which a perpetrator
fails to complete the intended crime for some reason
other than impossibility.
The comments to § 5.01 (1) of the Model Penal Code
are consistent with the broad purpose of § 53a-49 of
penalizing individuals who have demonstrated that they
pose a threat to society, albeit without completing the
intended crime. We previously have stated that the
drafters of the Model Penal Code ‘‘belie[ved] that the
proper concern of the law of attempts is the dangerous-
ness of the actor, as a person manifesting a firm disposi-
tion to commit a crime, not the dangerousness of his
conduct.’’ (Internal quotation marks omitted.) State v.
Sorabella, 277 Conn. 155, 181 n.29, 891 A.2d 897, cert.
denied, 549 U.S. 821, 127 S. Ct. 131, 166 L. Ed. 2d 36
(2006); accord United States v. Ivic, 700 F.2d 51, 66 (2d
Cir. 1983); see also Model Penal Code and Commentar-
ies, supra, § 5.01, comment (3) (b), pp. 315–16 (‘‘[t]he
law of attempts . . . should be concerned with mani-
festations of dangerous character as well as with pre-
ventative arrests’’). Surely, a person who, with the intent
to commit a crime, goes so far as to ‘‘[i]ntentionally
[engage] in conduct which would constitute the crime
if attendant circumstances were as he believes them to
be’’; (emphasis added) General Statutes § 53a-49 (a)
(1); has demonstrated his dangerousness to society
because he has taken every step necessary to complete
the crime but simply has been thwarted for one reason
or another. If anything, an individual generally will have
demonstrated his dangerousness to a greater extent by
engaging in such conduct in situations in which it was
possible to have completed the intended crime than in
situations in which it was not. Cf. 2 W. LaFave, Substan-
tive Criminal Law (2d Ed. 2003) § 11.5 (a), pp. 240–41
(discussing inherent impossibility situations in which
perpetrator employs means so ineffective to attempt
intended crime, his conduct is harmless). Thus, inter-
preting the attendant circumstances subdivision as
applying only to impossibility situations would contra-
vene the purpose of § 53a-49 because it would allow
individuals who have demonstrated their dangerous-
ness to society by attempting to commit a crime that
was possible to complete to nevertheless escape crimi-
nal liability.
In sum, the legislature based the attendant circum-
stances subdivision of § 53a-49 (a) (1) on § 5.01 (1) (a)
of the Model Penal Code, and the drafters of the Model
Penal Code made clear that § 5.01 (1) (a) is not limited
to impossibility situations. Moreover, interpreting that
subdivision as applying beyond impossibility situations
is consistent with the overarching purpose of § 53a-49.
Accordingly, we conclude that the attendant circum-
stances subdivision is not limited to impossibility situ-
ations.
Applying this interpretation to the present case, and
construing the evidence in the light most favorable to
sustaining the guilty verdict, we conclude that the state
presented sufficient evidence for a reasonable jury to
find beyond a reasonable doubt that the defendant was
guilty of attempt to commit murder in violation of § 53a-
54a (a) and the attendant circumstances subdivision of
§ 53a-49 (a) (1). The state presented evidence that the
defendant admitted to the police that he brutally
assaulted the victim with the intent to kill her and that
he believed that he had killed her. It is reasonable to
view this evidence as supporting the conclusion that
the defendant acted with the requisite intent to commit
murder under § 53a-54a (a) and that he intentionally
engaged in conduct that would have constituted murder
if the attendant circumstances had been as he believed
them to be, namely, that the victim was actually dead,
rather than pretending to be dead. Thus, we conclude
that the state presented sufficient evidence and, accord-
ingly, uphold the defendant’s conviction of attempt to
commit murder.
The defendant argues, contrary to our conclusion,
that the attendant circumstances subdivision applies
only to impossibility situations for a number of reasons,
none of which we find persuasive. First, the defendant
argues that, in Gonzalez and Cox, we unequivocally
established that the attendant circumstances subdivi-
sion is limited to impossibility situations and that those
decisions control in the present case.
With respect to Gonzalez, we agree that this court
decided that the attendant circumstances subdivision
applies only to impossibility situations. See State v.
Gonzalez, supra, 222 Conn. 724–25. We conclude that
this issue warrants reconsideration, however, because,
as we previously discussed, Gonzalez provided little
authority to support its conclusion and failed to
acknowledge that we previously had drawn the oppo-
site conclusion, albeit implicitly, in Green. Indeed, the
court in Gonzalez did not cite to any authority to sup-
port its conclusion that the attendant circumstances
subdivision applies only when a perpetrator fails to
complete a crime ‘‘solely because the ‘attendant circum-
stances’ were not as the perpetrator believed them to
be, rendering the commission of the crime impossible.’’
Id. The court in Gonzalez cited to a 1971 reference
manual to the Penal Code that provides that the atten-
dant circumstances subdivision is ‘‘directed at’’ impossi-
bility situations and the substantial step subdivision is
‘‘directed at’’ situations in which the intended crime is
not completed for some reason other than impossibility.
D. Borden, ‘‘Inchoate Offenses,’’ in Judicial Department,
Reference Manual: Connecticut Penal Code Title 53a
(1971) § 5, pp. 5-5, 5-6; see State v. Gonzalez, supra,
724–25. This reference manual, however, provides no
authority for its interpretation of § 53a-49, and it contra-
dicts the comments to § 5.01 (1) of the Model Penal
Code, the provision on which § 53a-49 (a) was based.
Thus, we are convinced that Gonzalez was incorrect
insofar as it determined that the attendant circum-
stances subdivision is limited to impossibility situa-
tions. We therefore overrule Gonzalez with respect to
that determination.
With respect to Cox, the defendant incorrectly relies
on that decision because the court’s holding in that
case did not turn on whether it was possible for the
defendant to have committed the intended crime. In
Cox, the defendant, Willie Cox, was seated in the back-
seat of a car fleeing a bank robbery when he raised his
arms ‘‘aggressive[ly]’’ toward a police officer. (Internal
quotation marks omitted.) State v. Cox, supra, 293 Conn.
237. Cox was convicted of attempt to commit assault
of a peace officer after the trial court instructed the
jury only on the attendant circumstances subdivision.
Id., 239–40. On appeal, this court reversed the judgment
of conviction on the basis that the state had failed to
introduce sufficient evidence to prove that Cox had
made a mistake of fact. Id., 246–47. Although the state
had introduced evidence that Cox had been in posses-
sion of a gun, it failed to establish that the gun had
been loaded or in working condition, or that Cox even
had attempted to use it. Id., 246.
Cox therefore is not inconsistent with our holding
in the present case. In Cox, the court interpreted the
attendant circumstances subdivision as requiring evi-
dence that the defendant was mistaken about certain
attendant circumstances surrounding the alleged
attempt. See id. We agree with that interpretation, and,
in the present case, the defendant satisfies that standard
because he mistakenly believed that his actions were
sufficient to kill the victim. In Cox, the court quoted
Gonzalez for the proposition that the attendant circum-
stances subdivision is limited to situations of impossi-
bility but did not rely on that principle in reaching its
holding. Id., 241–42. Likewise, the court’s characteriza-
tion of the differences between the attendant circum-
stances and substantial step subdivisions as ‘‘signifi-
cant’’ was immaterial to its holding and was unsup-
ported, beyond a citation to Gonzalez. Id., 241. Thus,
Cox provides no additional support for the defendant’s
position, and we overrule Cox only to the extent that
it relied on Gonzalez in reaching its conclusion.
In addition to relying on Gonzalez and Cox, the defen-
dant also relies on two decisions of New Jersey’s inter-
mediate appellate court, namely, State v. Condon, 391
N.J. Super. 609, 615, 919 A.2d 178 (App. Div.), cert.
denied, 192 N.J. 74, 926 A.2d 857 (2007), and State v.
Kornberger, 419 N.J. Super. 295, 302, 16 A.3d 1107 (App.
Div.), cert. denied, 208 N.J. 368, 29 A.3d 741 (2011).
New Jersey’s criminal attempt statute also is based on
§ 5.01 of the Model Penal Code, and, in Condon and
Kornberger, the Appellate Division of the New Jersey
Superior Court interpreted a provision that is identical
in all material respects to the attendant circumstances
subdivision of § 53a-49 (a) (1) as requiring an individual
to have ‘‘complete[d] an ‘impossible’ crime’’ rather than
merely to have taken a substantial step toward complet-
ing the intended crime. State v. Kornberger, supra, 302,
citing State v. Condon, supra, 617. These cases do not
support the defendant’s position in the present case
because they distinguished the attendant circumstances
subdivision from the substantial step subdivision on the
basis of the degree to which each requires the intended
crime to have been completed, not on the basis of
whether it was possible to complete the intended crime.
Finally, the defendant claims that we must interpret
the attendant circumstances subdivision as applying
only to impossibility situations because to interpret that
subdivision otherwise would render it superfluous. See,
e.g., Lopa v. Brinker International, Inc., 296 Conn.
426, 433, 994 A.2d 1265 (2010) (‘‘[a statute] must be
construed, if possible, such that no clause, sentence or
word shall be superfluous, void or insignificant’’ [inter-
nal quotation marks omitted]). The attendant circum-
stances subdivision would be superfluous, according
to the defendant, insofar as anyone who ‘‘engages in
conduct which would constitute the crime if attendant
circumstances were as he believes them to be’’; General
Statutes § 53a-49 (a) (1); would necessarily have taken
a ‘‘substantial step in a course of conduct planned to
culminate in his commission of the crime.’’ General
Statutes § 53a-49 (a) (2). The state concedes that, under
its interpretation of the statute, the attendant circum-
stances subdivision always would be subsumed by the
substantial step subdivision. The implication of the
defendant’s argument is that we should read the atten-
dant circumstances subdivision as applying only to
impossibility situations, and the substantial step subdi-
vision as applying only when an individual fails to com-
plete the intended crime for some reason other than
impossibility, as the court did in Gonzalez; see State v.
Gonzalez, supra, 222 Conn. 724–25; so that the two
subdivisions serve distinct purposes.
Although the substantial step subdivision may sub-
sume the attendant circumstances subdivision, the two
subdivisions are not coextensive. The substantial step
subdivision criminalizes certain conduct that would fall
short of violating the attendant circumstances subdivi-
sion. That is, the substantial step subdivision covers
situations in which an individual has not engaged in
conduct that would constitute the crime if attendant
circumstances were as he believed them to be, but,
rather, only has taken a substantial step toward commit-
ting the crime that is strongly corroborative of his crimi-
nal intent. See Model Penal Code and Commentaries,
supra, § 5.01, comment (1), p. 299. For instance, a pick-
pocket who reaches into an empty pocket would be
guilty of attempt to commit larceny under both subdivi-
sions; see id., comment (3) (c), pp. 317–18; but a pick-
pocket who is apprehended immediately before reach-
ing into the empty pocket could be found guilty under
only the substantial step subdivision and not the atten-
dant circumstances subdivision. Thus, the distinction
between the two subdivisions is the degree of complete-
ness each requires in the course of an actor’s conduct.
The fact that the substantial step subdivision subsumes
the attendant circumstances subdivision most likely
was an intentional effort by the drafters of the Model
Penal Code to ensure the elimination of the impossibil-
ity defense by covering every possible scenario in which
it could arise.
Nevertheless, the defendant’s proposed solution of
distinguishing the two subdivisions from one another
by interpreting the attendant circumstances subdivision
as applying only to impossibility situations and the sub-
stantial step subdivision as not applying to impossibility
situations belies the language of § 53a-49 (a) and the
commentary thereto. See General Statutes § 53a-49 (a);
Commission to Revise the Criminal Statutes, supra,
comment, p. 76. The legislature intended both subdivi-
sions to eliminate the defense of impossibility. Indeed,
both subdivisions include language that makes an
actor’s guilt dependent on his subjective beliefs, which
prevents a defendant from escaping liability by claiming
that it was objectively impossible to commit the
intended crime. Compare General Statutes § 53a-49 (a)
(1) (‘‘if attendant circumstances were as he believes
them to be’’), with General Statutes § 53a-49 (a) (2)
(‘‘under the circumstances as he believes them to be’’).
The commission’s comment to § 53a-49 makes clear
that the legislature intended both subdivisions to have
this effect: ‘‘[Section 53a-49] sweeps aside any consider-
ation of the defense of impossibility . . . . Under sub-
divisions . . . (1) and (2), the liability of the actor turns
on his purpose, considered in light of his beliefs, and
not on what is actually possible under existing circum-
stances.’’ (Emphasis added.) Commission to Revise the
Criminal Statutes, supra, comment, p. 76; see also Model
Penal Code and Commentaries, supra, § 5.01, comment
(3) (c), pp. 317–18 (Model Penal Code provisions on
which attendant circumstances and substantial step
subdivisions were based both apply to impossibility sit-
uations).
Thus, the language of § 53a-49 (a) and the relevant
commentary disprove the defendant’s claim that one
subdivision applies to impossibility situations and the
other does not. Both subdivisions apply to impossibility
situations, as well as to situations in which it was possi-
ble for the perpetrator to have committed the intended
crime. We therefore reject the defendant’s claim that
the attendant circumstances subdivision must be inter-
preted as being limited to impossibility situations.
The judgment is affirmed.
In this opinion the other justices concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
2
For ease of reference, we refer to these scenarios as impossibility situa-
tions. For a complete discussion of what constitutes a situation in which
it is impossible to commit a certain crime, see 2 W. LaFave, Substantive
Criminal Law (2d Ed. 2003) § 11.5 (a), pp. 230–41, which distinguishes
between factual, legal and inherent impossibility.
3
Alternatively, the state argues that, if we were to interpret the attendant
circumstances subdivision as requiring evidence of impossibility, then the
defendant’s conviction nevertheless should be upheld under the substantial
step subdivision because the jury necessarily had to find that the require-
ments of that subdivision were satisfied in order to find the defendant guilty
under the attendant circumstances subdivision. The state further argues
that, even if this court disagrees with the foregoing argument, it should
remand the case for a new trial on the attempt to commit murder charge
because the trial court improperly denied the state’s motion to amend the
long form information to charge the defendant with attempt to commit
murder under the substantial step subdivision.
4
Thus, we need not consider the state’s alternative arguments for uphold-
ing the defendant’s conviction or for remanding the case for a new trial on
the attempted murder charge.
5
Comparing the full text of the provisions reveals their similarity. General
Statutes § 53a-49 (a) provides: ‘‘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 constituting a substantial
step in a course of conduct planned to culminate in his commission of
the crime.’’
In comparison, § 5.01 of the Model Penal Code provides in relevant part:
‘‘(1) Definition of Attempt. A person is guilty of an attempt to commit a crime
if, acting with the kind of culpability otherwise required for commission of
the crime, he:
‘‘(a) purposely engages in conduct that would constitute the crime if the
attendant circumstances were as he believes them to be; or
‘‘(b) when causing a particular result is an element of the crime, does or
omits to do anything with the purpose of causing or with the belief that it
will cause such result without further conduct on his part; or
‘‘(c) purposely does or omits to do anything that, 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. . . .’’ (Emphasis added.) 1 A.L.I., Model Penal Code and Commen-
taries (1985) § 5.01 (1), pp. 295–96.
Thus, it is apparent that the legislature, in enacting § 53a-49 (a), essentially
adopted § 5.01 (1) (a) and (c), but not § 5.01 (1) (b). Section 53a-49 (a) (1)
parallels § 5.01 (1) (a), and § 53a-49 (a) (2) parallels § 5.01 (1) (c).