State v. Riley

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STATE OF CONNECTICUT v. WINSTON
ANTHONY RILEY
(AC 36576)
Gruendel, Sheldon and Borden, Js.
Argued May 21—officially released September 1, 2015
(Appeal from Superior Court, judicial district of New
London, A. Hadden, J.)
Deren Manasevit, assigned counsel, with whom, on
the brief, was Auden Grogins, for the appellant
(defendant).
Deborah Violet Abrams, certified legal intern, with
whom were Nancy L. Chupak, senior assistant state’s
attorney, and, on the brief, Michael L. Regan, state’s
attorney, and Stephen M. Carney, senior assistant
state’s attorney, for the appellee (state).
Opinion
SHELDON, J. The defendant, Winston Anthony Riley,
appeals from the judgment of conviction, rendered after
a jury trial, of attempt to commit robbery in the first
degree in violation of General Statutes §§ 53a-49 and
53a-134 (a) (3), and attempt to commit larceny in the
second degree in violation of General Statutes §§ 53a-
49 and 53a-123 (a) (3). Following the jury’s guilty verdict
on these and two other related charges,1 the defendant
was sentenced by the court to a total effective term of
six years incarceration.2 The defendant appeals on two
grounds: (1) that there was insufficient evidence to
support the jury’s rejection of his defense of renuncia-
tion3 beyond a reasonable doubt; and (2) that the court’s
jury instruction on the defense of renunciation was
constitutionally inadequate. We affirm the judgment of
the trial court.
The following facts, which the jury reasonably could
have found, are relevant to this appeal. On March 18,
2012, the defendant drove to the Mohegan Sun Casino
in Montville in order to make up an $800 gambling loss
from the prior day. Upon his arrival at the casino, the
defendant attempted to withdraw money from an auto-
mated teller machine, but could not do so because his
wife had transferred money out of their account. After
returning to his car and falling asleep for a period of
time, the defendant woke up and decided to commit a
robbery. The defendant thus slipped a knife up the
sleeve of his sweatshirt and began to walk around the
parking garage.
Louise Carty, an eighty-three year old woman, was
at the casino on March 18, 2012, to play the penny slots.
As she was entering the elevator in the Winter Parking
Garage, Carty noticed that a man, later identified as the
defendant, was following her inside. After the elevator
door closed, the man, whom Carty was never able to
identify, ‘‘all of a sudden pull[ed] a knife out of his
pocket and head[ed] toward me.’’ In response, Carty
screamed, ‘‘No, no, no,’’ and shoved the man, causing
him to jump away from her. Carty then grabbed the
man’s sweatshirt by the sleeve and pursued him off the
elevator. The man never took or demanded money or
property from Carty or verbally threatened her.
At trial, the defendant sought to defend himself by
raising the defense of renunciation under General Stat-
utes § 53a-49 (c).4 In support of that defense, he testified
as follows. First, he admitted that he was the man who
had accosted Carty in the elevator. Having initially
intended to rob her, he admittedly followed her into
the elevator, pulled a knife out of his sleeve to confront
her and took two or three steps toward her after the
elevator doors closed. The defendant described as fol-
lows what happened in the elevator as he began to
approach Carty:
‘‘[Defense Counsel]: What was your intention at
that moment?
‘‘[The Defendant]: My intentions as I approached her,
as I took, like, the second or third step to her, I’m, like,
oh, my God, this could by my grandmother; what am
I doing?
‘‘[Defense Counsel]: So, when you thought that, what
were you going to do about that; were you going to do
anything about your thought?
‘‘[The Defendant]: I immediately said I’m sorry. I basi-
cally curled the knife toward myself, and I was, like,
I’m sorry, I’m sorry. She then grabbed me.’’
Carty, by contrast, testified that, although she heard
the man mumble something after she shoved him, she
could not make out what he said and did not hear him
say that he was sorry. After she and the man exited the
elevator, the man hustled away from Carty while she
told others in the vicinity that the man had tried to
knife her. Additional facts will be set forth as necessary.
I
The defendant first claims that the state failed to
disprove beyond a reasonable doubt that he renounced
his criminal purpose under § 53a-49 (c). According to
the defendant, the state did not successfully rebut his
testimony that he changed his mind as he took his
second or third step toward Carty, then curled his knife
back toward himself and apologized, because both Car-
ty’s testimony and a casino surveillance video of the
incident supported his version of events. Although the
defendant did not preserve this issue at trial, claims of
evidentiary insufficiency are invariably reviewable on
appeal because they are based on the alleged violation
of a fundamental constitutional right. See State v.
Lewis, 303 Conn. 760, 767 n.4, 36 A.3d 670 (2012). We
disagree with the defendant’s claim on the merits, con-
cluding that the evidence in this case was sufficient to
disprove his defense of renunciation beyond a reason-
able doubt.
‘‘The standard of review employed in a sufficiency
of the evidence claim is well settled. [W]e 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 construed and the
inferences reasonably drawn therefrom the [finder of
fact] reasonably could have concluded that the cumula-
tive force of the evidence established guilt beyond a
reasonable doubt. . . . This court cannot substitute its
own judgment for that of the jury if there is sufficient
evidence to support the jury’s verdict. . . . [W]e do not
sit as the seventh juror when we review the sufficiency
of the evidence . . . rather, we must determine, in the
light most favorable to sustaining the verdict, whether
the totality of the evidence, including reasonable infer-
ences therefrom, supports the jury’s verdict of guilt
beyond a reasonable doubt.’’ (Citation omitted; internal
quotation marks omitted.) State v. Miles, 97 Conn. App.
236, 240, 903 A.2d 675 (2006).
‘‘[A]s we have often noted, proof beyond a reasonable
doubt does not mean proof beyond all possible doubt
. . . nor does proof beyond a reasonable doubt require
acceptance of every hypothesis of innocence posed by
the defendant that, had it been found credible by the
trier, would have resulted in an acquittal.’’ (Internal
quotation marks omitted.) State v. Taylor, 306 Conn.
426, 432, 50 A.3d 862 (2012).
In evaluating sufficiency of the evidence claims, ‘‘we
must defer to the jury’s assessment of the credibility
of the witnesses based on its firsthand observation of
their conduct, demeanor and attitude.’’ (Internal quota-
tion marks omitted.) State v. Patterson, 276 Conn. 452,
461, 886 A.2d 777 (2005). ‘‘It is axiomatic that evidentiary
inconsistencies are for the jury to resolve, and it is
within the province of the jury to believe all or only
part of a witness’ testimony.’’ State v. Meehan, 260 Conn.
372, 381, 796 A.2d 1191 (2002).
Before evaluating the defendant’s claim, it is first
necessary to examine the defense of renunciation. At
common law, renunciation was not universally recog-
nized as a defense to the crime of attempt. P. Hoeber,
‘‘The Abandonment Defense to Criminal Attempt and
Other Problems of Temporal Individuation,’’ 74 Cal. L.
Rev. 377, 381–82 (1986); Model Penal Code and Com-
mentaries (1985) § 5.01, comment 8, p. 356 (‘‘[i]t was
uncertain under the law prior to the drafting of the
Model Code whether abandonment of a criminal effort,
after the bounds of preparation had been surpassed,
constituted a defense to a charge of attempt’’). The
Model Penal Code, however, included the defense of
renunciation in its 1962 proposed official draft. P.
Hoeber, supra, p. 382 and n.14.
Two main reasons have been advanced for allowing
the defense of renunciation to the crime of attempt.
First, an actor’s renunciation of his criminal purpose
prior to the completion of a substantive crime suggests
that he did not have a firm purpose to commit the crime,
and thus tends to negate his dangerousness. Model
Penal Code and Commentaries, supra, § 5.01, comment
8, p. 359. Second, the availability of the defense can
provide the actor with the motivation to desist from
his criminal effort, ‘‘thereby diminishing the risk that
the substantive crime will be committed.’’ Id.
Connecticut first codified renunciation as an affirma-
tive defense to the crime of attempt in 1969, basing it
in substance on the Model Penal Code.5 See General
Statutes § 53a-49 (c). Connecticut modeled its Penal
Code on the penal law of New York; see State v. Henry,
253 Conn. 354, 363, 752 A.2d 40 (2000); which had codi-
fied renunciation as an affirmative defense just four
years earlier. Then, as now, New York’s defense of
renunciation provides in relevant part: ‘‘In any prosecu-
tion . . . for an attempt to commit a crime, it is an
affirmative defense that, under circumstances manifest-
ing a voluntary and complete renunciation of his crimi-
nal purpose, the defendant avoided the commission of
the crime attempted by abandoning his criminal effort
and, if mere abandonment was insufficient to accom-
plish such avoidance, by taking further and affirmative
steps which prevented the commission thereof.’’ N.Y.
Penal Law § 40.10 (3) (McKinney 2009).
In 1971, by the passage of Public Act No. 871, our
legislature changed renunciation from an affirmative
defense to an ordinary defense, thereby shifting the
burden to the state to disprove the defense beyond a
reasonable doubt whenever it is raised at trial. See
State v. Clark, 264 Conn. 723, 730, 826 A.2d 128 (2003)
(‘‘Whereas an affirmative defense requires the defen-
dant to establish his claim by a preponderance of the
evidence, a properly raised defense places the burden
on the state to disprove the defendant’s claim beyond
a reasonable doubt. See General Statutes § 53a-12. Con-
sequently, a defendant has no burden of persuasion for
[an ordinary defense]; he has only a burden of produc-
tion. That is, he merely is required to introduce suffi-
cient evidence to warrant presenting his claim . . . to
the jury.’’ [Emphasis omitted; footnote omitted.]).
Section 53a-49 (c), as amended by P.A. 71-871, pro-
vides in relevant part that ‘‘[w]hen the actor’s conduct
would otherwise constitute an attempt . . . it shall be
a defense that he abandoned his effort to commit the
crime or otherwise prevented its commission, under
circumstances manifesting a complete and voluntary
renunciation of his criminal purpose.’’ So defined, the
defense of renunciation has two essential elements: (1)
that the defendant prevented the commission of the
substantive crime that he initially attempted to commit
by abandoning his effort to commit that crime and, if
mere abandonment of his own effort to commit the
crime was insufficient to prevent its commission, by
taking such further steps as were necessary to accom-
plish such prevention; and (2) that he prevented the
commission of the substantive crime under circum-
stances manifesting a complete and voluntary renuncia-
tion of his criminal purpose.
A defendant is deemed to have raised the defense of
renunciation, and thus to have met his burden of going
forward with respect to that defense, whenever the
evidence presented at trial, if construed in the light
most favorable to the defendant, is sufficient to raise
a reasonable doubt in support of each essential element
of the defense. See State v. Bryan, 307 Conn. 823, 834,
60 A.3d 246 (2013). The defendant, however, has no
burden of proof with respect to the defense of renuncia-
tion. Instead, the state has the burden of disproving
that defense beyond a reasonable doubt whenever it is
duly raised at trial. See General Statutes § 53a-12 (a).
In order to meet its burden of proof as to the defense
of renunciation, the state need only disprove one of its
two essential elements beyond a reasonable doubt. It
can therefore meet its burden of proof either (1) by
disproving that the defendant prevented the commis-
sion of the substantive crime attempted; or (2) if the
state cannot disprove that he prevented the commission
of that substantive crime, by disproving that he pre-
vented its commission under circumstances manifest-
ing a complete and voluntary renunciation of his
criminal purpose.
As to the first of these two methods of disproving
the defense of renunciation, by disproving the ‘‘aban-
donment/prevention’’ element thereof, it is important
at the outset to distinguish between the crime of attempt
itself and the substantive crime that is its object. An
attempt to commit a substantive crime is completed
when the defendant intentionally takes a substantial
step toward the completion of that substantive crime,
while acting with the mental state required for the com-
mission of that crime. General Statutes § 53a-49 (a).
‘‘Proof of an attempt to commit a specific offense
requires proof that the actor intended to bring about
the elements of the completed offense. . . . Moreover,
to be guilty of attempt, a defendant’s conscious objec-
tive must be to cause the result which would constitute
the substantive crime.’’ (Citation omitted; internal quo-
tation marks omitted.) State v. Sorabella, 277 Conn.
155, 169–70, 891 A.2d 897, cert. denied, 549 U.S. 821,
127 S. Ct. 131, 166 L. Ed. 2d 36 (2006).
Once the substantive crime is completed, the defense
of renunciation becomes unavailable to the defendant
as a matter of law. Before the substantive crime is
completed, however, the defense of renunciation
remains available to the defendant as long as commis-
sion of the substantive crime can still be prevented.
See State v. Kelly, 23 Conn. App. 160, 165–66, 580 A.2d
520, cert. denied, 216 Conn. 831, 583 A.2d 130 (1990),
cert. denied, 499 U.S. 981, 111 S. Ct. 1635, 113 L. Ed.
2d 731 (1991). Where, then, a defendant’s preparatory
conduct toward the commission of a substantive crime
proceeds so far as to constitute the completed crime
of attempt, the defendant can still avoid liability for
attempt to commit the substantive crime on the basis
of such preparatory conduct by preventing the commis-
sion of that crime under circumstances manifesting a
complete and voluntary renunciation of his criminal
purpose.
A defendant can prevent the commission of a substan-
tive crime by abandoning his own effort to commit that
crime, or if abandoning his own effort to commit that
crime is insufficient to prevent its commission, by pre-
venting its commission in another manner. A defen-
dant’s abandonment of his own effort to commit a
substantive crime is sufficient to prevent its commis-
sion when the defendant, acting alone, has not set in
motion any force that is beyond his control by the time
of his abandonment. When, by contrast, the defendant
is acting with a confederate, or has set in motion some
force that is beyond his control, abandonment of his
own effort to commit the crime may not be sufficient
to prevent the commission of the substantive crime
unless he also takes such further steps as are necessary
to prevent its commission, either by the confederate or
by operation of the force he has previously set in
motion.
As to the second method of disproving the defense
of renunciation, by disproving the ‘‘complete and volun-
tary’’ element thereof, General Statutes § 53a-50 pro-
vides the following further explanation:
‘‘[R]enunciation of criminal purpose is not voluntary if
it is motivated, in whole or in part, by circumstances,
not present or apparent at the inception of the actor’s
course of conduct, which increase the probability of
detection or apprehension or which make more difficult
the accomplishment of the criminal purpose. Renuncia-
tion is not complete if it is motivated by a decision to
postpone the criminal conduct or to transfer the crimi-
nal effort to another but similar objective or victim.’’
See also Model Penal Code and Commentaries, supra,
§ 5.01, comment 8, p. 356 (‘‘An ‘involuntary’ abandon-
ment occurs when the actor ceases his criminal
endeavor because he fears detection or apprehension,
or because he decides he will wait for a better opportu-
nity, or because his powers or instruments are inade-
quate for completing the crime. There has been no
doubt that such an abandonment does not exculpate
the actor from attempt liability otherwise incurred. A
‘voluntary’ abandonment occurs when there is a change
in the actor’s purpose that is not influenced by outside
circumstances. This may be termed repentance or
change of heart. Lack of resolution or timidity may
suffice.’’ [Footnotes omitted.]).
The parties in the present case do not dispute that
the defendant abandoned his effort to commit the sub-
stantive crimes of robbery and larceny against Carty.
Thus, the only contested issue in this case was whether
the defendant’s abandonment of his effort to commit
those crimes against Carty and the resulting prevention
of their commission took place under circumstances
manifesting a complete and voluntary renunciation of
the defendant’s criminal purpose.
The defendant claims that he decided not to rob Carty
when he took his second or third step toward her in
the elevator, but before she screamed and grabbed him.
On cross-examination, the defendant denied that his
change of mind resulted from Carty grappling with him
or the elevator door opening. Although the state played
the video recording of the incident when it cross-exam-
ined the defendant, he denied that it showed him mov-
ing toward Carty without stopping and turning away
before she grabbed him and pushed him away.
The state presented the following evidence to prove
that the defendant’s prevention of the crimes of robbery
and larceny against Carty was not complete and volun-
tary. First, Carty testified that she screamed when she
saw the defendant pull out the knife, and kept on
screaming, ‘‘No, no, no.’’ According to Carty, she ‘‘kind
of’’ shoved the defendant, then heard him mumble
something, although later she said that she never
touched the defendant.
Second, the state presented video evidence that
afforded the jury a substantial basis for rejecting the
defendant’s claim as to the sequence of events here
at issue. A review of the video recording shows the
following. Carty entered the elevator, followed by the
defendant. After the doors closed, as the defendant and
Carty were standing on opposite sides of the elevator
from one another, the defendant pulled a knife from
his sleeve and approached Carty. The defendant then
took three steps toward Carty, who did not appear to
notice him until he was taking his third step, at which
point she immediately raised her hands, grabbed his
right hand (holding the knife) and his left wrist/forearm,
and pushed him away, causing the defendant to take a
step backward. The defendant and Carty briefly strug-
gled before the defendant raised his arms in an apparent
attempt to free himself from her grasp, then briefly
broke free and turned away from her toward the open-
ing elevator doors. At that point, as the defendant was
slightly in front of and to the left of Carty, she grabbed
a piece of his sweatshirt, near the elbow of his right
sleeve, and held onto it as the defendant walked off
the elevator in front of her. The surveillance video does
not have sound and does not clearly show the defen-
dant’s or Carty’s mouth moving. The video also does
not clearly show the defendant curling his knife back
toward himself before Carty raised her hands and
pushed him.
Construing this evidence in the light most favorable
to the state, we conclude that it was sufficient to support
the jury’s conclusion that the defendant’s abandonment
of his criminal purpose was not complete and voluntary.
The jury reasonably could have concluded, based on
Carty’s testimony alone, that she screamed as soon as
she saw him coming at her with the knife, and that the
defendant, upon hearing her scream and feeling her
resist him physically, abandoned his criminal effort to
rob her under circumstances that were neither volun-
tary nor complete. The jury reasonably could have con-
cluded that the defendant decided that the screaming
Carty would ‘‘increase the probability of [his] detection
or apprehension,’’ because her actions could draw
attention to him. General Statutes § 53a-50. Moreover,
the jury reasonably could have concluded that Carty’s
screaming at and wrestling with the defendant—both
circumstances that were not apparent at the inception
of the defendant’s criminal conduct—led the defendant
to ‘‘postpone [his] criminal conduct or to transfer the
criminal effort to another but similar objective or vic-
tim,’’ such as a more cooperative victim. General Stat-
utes § 53a-50. The video evidence corroborates Carty’s
version of events. The video shows the defendant turn-
ing away from Carty only after she sought to defend
herself against him by grabbing him and shoving him
away. The jury thus reasonably could have viewed the
video as supporting the state’s version of events—that
the defendant did not abandon his criminal effort until
it became clear to him that Carty would not be a pas-
sive victim.
Considering the totality of the evidence in the light
most favorable to the state, as we must, we conclude
that there was ample evidence for the jury to find that
the state disproved beyond a reasonable doubt that the
defendant abandoned his criminal effort under circum-
stances manifesting a complete and voluntary renuncia-
tion of his criminal purpose.
II
The defendant next claims that ‘‘[t]he trial court erred
in rejecting a critical portion of [his] requested jury
instruction on [his defense of] renunciation, as the lan-
guage omitted by the trial court was necessary to the
jury’s determination of whether the state disproved [his]
renunciation defense beyond a reasonable doubt.’’ At
trial, the defendant not only requested that the omitted
language be included in the court’s charge, but took
exception to its exclusion therefrom. The defendant
thereby preserved his claim of error for appellate
review.
‘‘A challenge to the validity of jury instructions pre-
sents a question of law over which this court has plenary
review. . . . It is well settled that jury instructions are
to be reviewed in their entirety. . . . [T]he test to be
applied . . . is whether the charge . . . as a whole,
presents the case to the jury so that no injustice will
result.’’ (Citation omitted; internal quotation marks
omitted.) State v. Brown, 118 Conn. App. 418, 428–29,
984 A.2d 86 (2009), cert. denied, 295 Conn. 901, 988
A.2d 877 (2010). A charge need not be perfect to survive
a defendant’s challenge to its correctness on appeal.
‘‘As long as [the court’s instructions] are correct in law,
adapted to the issues and sufficient for the guidance
of the jury . . . we will not view the instructions as
improper.’’ (Internal quotation marks omitted.) State v.
Kitchens, 299 Conn. 447, 455, 10 A.3d 942 (2011). An
improper instruction in a criminal case constitutes
reversible error ‘‘when it is shown that it is reasonably
possible for [improprieties] of constitutional dimension
or reasonably probable for nonconstitutional [impropri-
eties] that the jury [was] misled.’’ (Internal quotation
marks omitted.) Id.
A defendant’s right to present a defense is of constitu-
tional dimension. Thus, ‘‘[w]here the legislature has
created a legally recognized defense . . . [due process
requires] a proper jury instruction on the elements of
the defense . . . so that the jury may ascertain whether
the state has met its burden of disproving it beyond a
reasonable doubt.’’ State v. Fuller, 199 Conn. 273, 278,
506 A.2d 556 (1986). When the evidence presented at
trial, construed in the light most favorable to the defen-
dant, supports such a defense, a charge on the defense
is obligatory. Id.
The language that the defendant requested as to the
state’s burden of disproving his defense of renunciation
was as follows: ‘‘The defendant has no burden of proof
whatsoever with respect to this defense. The state has
the burden of disproving this defense beyond a reason-
able doubt. In other words, the defendant is entitled
to an acquittal if the state fails to disprove beyond a
reasonable doubt that: [1] the defendant’s renunciation
of his criminal purpose was complete and voluntary;
OR [2] that the defendant took affirmative steps and
acts that served to prevent the commission of the crime
attempted.’’ (Emphasis added.) The defendant claims
error in the court’s omission of the italicized language
from its final instruction regarding the defense of renun-
ciation. The court’s jury instruction on the defense read
in its entirety: ‘‘There has been some evidence pre-
sented with regard to the defense of renunciation of a
criminal purpose. The defendant claims that he aban-
doned his effort to commit the crime before his actions
violated the law. The statute defining this defense reads
in pertinent part as follows. When the actor’s conduct
would otherwise constitute an attempt, it shall be a
defense that he abandoned his effort to commit the
crime, or otherwise prevented his commission under
circumstances manifesting a complete and voluntary
renunciation of his criminal purpose. Renunciation is
not voluntary if it is motivated in whole or in part by
circumstances not present or apparent at the inception
of the actor’s course of conduct that increased the prob-
ability of detection or apprehension, or that make it
more difficult to accomplish the criminal purpose.
Renunciation is not complete if it is motivated by a
decision to postpone the criminal conduct, or to trans-
fer the criminal effort to another, but similar, objective
or victim. The defendant has no burden of proof whatso-
ever with respect to this defense. The state has the
burden of disproving this defense beyond a reasonable
doubt. In other words, the defendant is entitled to an
acquittal if the state fails to disprove beyond a reason-
able doubt that the defendant’s renunciation of his crim-
inal purpose was complete and voluntary.’’
The defendant asserts that the omitted language on
the prevention element of renunciation described an
alternative legal and factual basis, supported by the
evidence presented at trial, upon which he was entitled
to prevail on his defense of renunciation if the state
could not disprove it beyond a reasonable doubt. Here,
then, he claims, since the evidence supported his claim
that he prevented the commission of first degree rob-
bery and second degree larceny by taking the ‘‘affirma-
tive steps and acts’’ of curling back his knife and turning
away from Carty without demanding, much less taking,
any of her property, the jury should have been required
to acquit him of attempt to commit those crimes if it
found, under proper instructions, that the state failed
to disprove beyond a reasonable doubt that he took
affirmative steps and acts that served to prevent the
commission of those crimes.
The state disputes the defendant’s claim, noting prin-
cipally that the court’s instruction quoted accurately
from the renunciation statutes, and thus properly identi-
fied both essential elements of renunciation. Further-
more, it argued that, in this case, there was no need to
instruct the jury on how the defendant might ‘‘otherwise
[have] prevent[ed]’’ the commission of the crimes here
attempted, for such an instruction is only necessary
when the defendant has set in motion an external agent
that would have completed those substantive crimes
had he not taken affirmative steps and acts to prevent
that from occurring. For those reasons and others, we
agree with the state that the court’s instruction on the
defense of renunciation was not deficient in the man-
ner alleged.6
As a threshold matter, we note that the defendant’s
argument is premised on a fundamental misunder-
standing of the law of renunciation and, in fact, of his
own request to charge. The request to charge properly
noted that the defense of renunciation has two essential
elements, and that the state could meet its burden of
disproving the defense by disproving either such ele-
ment beyond a reasonable doubt. What that meant, as
a practical matter, is that even if the state could not
disprove one such essential element beyond a reason-
able doubt, it still could meet its burden of disproving
the defense of renunciation by disproving the other
essential element beyond a reasonable doubt.
With those rules clearly stated, the request to charge
did not state that the defendant was entitled to an
acquittal on the charge of attempt if the state could
not disprove one essential element of the defense of
renunciation. Such a statement would have been legally
incorrect because, to reiterate, our law makes disproof
of either such essential element a fully effective means
of defeating the defense whenever it is raised at trial.
Against this background, the defendant’s claim that
his requested instruction to the jury on the prevention
element of renunciation might have resulted in his
acquittal of attempted first degree robbery and
attempted second degree larceny is simply wrong. Even
if the evidence tending to show that he prevented the
commission of first degree robbery and second degree
larceny by taking affirmative steps and acts to prevent
their commission was overwhelming, such evidence
would not have established his defense of renunciation,
or thus have required his acquittal, for the state could
still defeat that defense by disproving beyond a reason-
able doubt that the circumstances in which he pre-
vented the commission of such crimes manifested a
complete and voluntary renunciation of his criminal
purpose. For this reason, the most basic construct in
the defendant’s argument must be rejected. Under no
circumstances—under our law or under the defendant’s
own request to charge—would he have been entitled
to a judgment of acquittal of attempted first degree
robbery or attempted second degree larceny merely
because the state could not disprove the prevention
element of that defense beyond a reasonable doubt.
A second reason why the defendant’s challenge to the
sufficiency of the court’s instruction on the prevention
element of renunciation is unavailing is that there has
never been any issue in this case as to whether the
defendant abandoned his effort to commit the substan-
tive crimes that were the objects of his alleged attempt.
Both the state and the defense treated the defendant’s
abandonment of his effort to commit larceny and rob-
bery against Carty as an established fact in their closing
arguments at trial. As a result, the only way in which
the state could have disproved his defense of renuncia-
tion was to disprove that he abandoned his effort to
commit robbery and larceny under circumstances mani-
festing a complete and voluntary renunciation of his
criminal purpose.
Third, as the state correctly argues, the court was
correct in not having identified in its instruction how
the defendant, apart from abandoning his own effort
to commit the substantive crimes of first degree robbery
and second degree larceny, could otherwise have pre-
vented the commission of those substantive crimes.
This is so because the defendant, having acted alone
throughout his foreshortened effort to commit those
crimes, did not need to do anything more than abandon
his own effort to commit them in order to prevent their
commission. Had the defendant been working with a
confederate, the abandonment of his own effort to com-
mit the crimes of robbery and larceny might have been
insufficient to prevent their commission unless he took
steps to stop his confederate from committing them.
Similarly, if the defendant had set in motion a force
designed to complete such crimes, the abandonment
of his own effort to commit them might not have been
sufficient to prevent their commission without taking
further steps to prevent that force from completing
them. Because, however, the defendant acted without
the aid of confederates and without setting in motion
any force that might, if unchecked, have completed the
crimes despite the abandonment of his own effort to
complete them, there was no need to instruct the jury
as to the defendant’s obligation to take affirmative steps
and acts to prevent the commission of those crimes.
Fourth and finally, as the state also argued, the court’s
instruction correctly listed both statutory elements of
the defense of renunciation, thus properly informing
the jury as to how, and on what basis, it must determine
if the state had disproved that defense beyond a reason-
able doubt. Because those instructions have not been
challenged in any way other than that specified pre-
viously, we reject the defendant’s claim of instruc-
tional error.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant was also convicted of threatening in the second degree
in violation of General Statutes § 53a-62 (a) (1) and carrying a dangerous
weapon in violation of General Statutes § 53-206 (a). The defendant does
not challenge the conviction of those charges here. The defendant was
acquitted of reckless endangerment in the first degree under General Statutes
§ 53a-63 (a).
2
The court sentenced the defendant to six years incarceration for
attempted robbery in the first degree, one year of incarceration for threaten-
ing in the second degree, six years incarceration for attempted larceny in
the second degree, and one year of incarceration for carrying a dangerous
weapon, with all sentences to run concurrently with one another.
3
The defendant does not argue that the state failed to prove beyond a
reasonable doubt the elements of attempted robbery or attempted larceny.
The crime of attempt, as it applies in this case, is satisfied when ‘‘[a] person
. . . acting with the kind of mental state required for commission of the
crime . . . 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 commis-
sion of the crime.’’ General Statutes § 53a-49 (a) (2). Accordingly, a convic-
tion for attempt to commit a substantive crime requires proof beyond a
reasonable doubt that the defendant, (1) while acting with the mental state
required for commission of the substantive crime, (2) intentionally took a
substantial step in a course of conduct planned to culminate in his commis-
sion of that substantive crime.
A person commits the substantive crime of robbery in the first degree,
as charged in this case, when ‘‘in the course of committing a larceny, he
uses or threatens the immediate use of physical force upon another person
for the purpose of . . . (2) compelling the owner of such property . . . to
deliver up the property’’; General Statutes § 53a-133; and, in so doing, ‘‘uses
or threatens the use of a dangerous instrument . . . .’’ General Statutes
§ 53a-134 (a) (3).
A person commits the substantive crime of larceny in the second degree,
as charged in this case, when he commits a larceny and ‘‘the property . . .
is taken from the person of another . . . .’’ General Statutes § 53a-123 (a)
(3). Finally, a person commits the substantive crime of larceny, as required
for proof of both robbery in the first degree and larceny in the second
degree, when, ‘‘with intent to deprive another of property or to appropriate
the same to himself . . . he wrongfully takes, obtains or withholds such
property from an owner. . . .’’ General Statutes § 53a-119.
Thus, a conviction for attempted robbery requires proof beyond a reason-
able doubt that the defendant, (1) while acting with intent to deprive another
of property or to appropriate same to himself, (2) intentionally takes a
substantial step toward the commission of the substantive crime of robbery.
A conviction for attempted larceny requires proof beyond a reasonable
doubt that the defendant, (1) while acting with intent to deprive another of
property or to appropriate same to himself, (2) intentionally takes a substan-
tial step toward the commission of the substantive crime of larceny.
4
‘‘When the actor’s conduct would otherwise constitute an attempt . . .
it shall be a defense that he abandoned his effort to commit the crime or
otherwise prevented its commission, under circumstances manifesting a
complete and voluntary renunciation of his criminal purpose.’’ General Stat-
utes § 53a-49 (c).
5
Section 5.01 (4) of the Model Penal Code provides in relevant part: ‘‘When
the actor’s conduct would otherwise constitute an attempt . . . it is an
affirmative defense that he abandoned his effort to commit the crime or
otherwise prevented its commission, under circumstances manifesting a
complete and voluntary renunciation of his criminal purpose. . . .’’
6
The defendant made a cursory mention in this section of his initial brief
that the court’s jury instruction failed to clarify that the defendant could
renounce after taking a substantial step toward commission of the attempted
crime, as long as he had not yet committed the substantive crime. The
defendant did not provide any analysis for this separate claim. Because this
issue was not adequately briefed, we do not address it. See State v. Book,
155 Conn. App. 560, 572–73, 109 A.3d 1027 (2015) (‘‘[W]e are not required
to review claims that are inadequately briefed. . . . We consistently have
held that [a]nalysis, rather than mere abstract assertion, is required in order
to avoid abandoning an issue by failure to brief the issue properly.’’ [Internal
quotation marks omitted.]).