State v. Gemmell

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STATE OF CONNECTICUT v. WILLIAM GEMMELL
(AC 34788)
Gruendel, Lavine and West, Js.
Argued April 10—officially released July 15, 2014
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, geographical area number twenty,
Dennis, J.)
Deborah G. Stevenson, assigned counsel, for the
appellant (defendant).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were David I. Cohen, state’s attor-
ney, and Justina Moore, assistant state’s attorney, for
the appellee (state).
Opinion
LAVINE, J. The defendant, William Gemmell, appeals
from the judgment of conviction, rendered after a jury
trial, of burglary in the first degree in violation of Gen-
eral Statutes § 53a-101 (a) (2), home invasion in viola-
tion of General Statutes § 53a-100aa (a) (1), brandishing
a facsimile firearm in a threatening manner in violation
of General Statutes § 53-206c (c), criminal violation of
a protective order in violation of General Statutes § 53a-
223, unlawful restraint in the second degree in violation
of General Statutes § 53a-96, and interfering with an
emergency call in violation of General Statutes § 53a-
183b. The defendant claims that (1) his arrest, deten-
tion, and punishment were unwarranted and, thus, vio-
lated his rights under the state and federal constitutions,
(2) there was insufficient evidence to support his con-
viction, (3) the court improperly instructed the jury
with respect to home invasion, and (4) the court abused
its discretion by denying his motion for a judgment
of acquittal and his motion to dismiss. We affirm the
judgment of the trial court.
The defendant was tried before a jury in December,
2011. The jury reasonably could have found the follow-
ing facts beyond a reasonable doubt. For approximately
fifteen years prior to 2008, the defendant and Kimberly
Planeta had a romantic relationship and lived together
in an apartment at 45 Maple Street in Norwalk. Their
relationship ended in 2008 when the defendant moved
to Texas. After the defendant moved, he no longer had
a key to the apartment.
On April 26, 2010, in an unrelated matter, the court,
Hudock, J., entered an order of protection against the
defendant and in favor of Planeta. Pursuant to that
protective order, the defendant was not to assault,
threaten, abuse, harass, follow, interfere with, or stalk
Planeta. He also was to stay 100 yards away from her,
her home, and wherever she resided. He was not to
have contact of any kind with Planeta, including written,
electronic or telephone communication. Nor was he to
have contact with Planeta’s home, workplace or others
with whom such contact would likely cause annoyance
or alarm to Planeta. The defendant was present in the
courtroom at the time the court entered the protective
order and stated that he understood the conditions of
the protective order.
On the evening of April 29, 2010, a surveillance cam-
era captured the defendant surreptitiously entering 45
Maple Street (building) when an unknown person
exited the building.1 After the defendant entered the
building, he stayed in a basement room adjacent to the
laundry area.
On April 30, 2010, at approximately 6:30 p.m., Planeta
was in the basement folding her laundry when the defen-
dant approached her from behind and stated, ‘‘you’re
going with me . . . .’’ The defendant walked Planeta
to the elevator and told her that he needed $3500. The
defendant displayed what appeared to be a gun, fright-
ening Planeta. Planeta testified that she entered the
elevator because the defendant ‘‘had the gun on me.’’
The defendant and Planeta rode the elevator to the
fourth floor where her apartment was located.
In an effort to escape from the defendant, Planeta
told him that she did not want her cats to get out of
the apartment. She therefore opened the door a crack
and attempted to squeeze into her apartment. The
defendant, however, struggled with Planeta in the hall-
way and eventually pushed her ahead of him into the
apartment. The struggle continued inside the apartment
where the defendant pushed Planeta to the floor and
held her down. Planeta screamed for help. As a conse-
quence, Planeta suffered bruises to her arm, and injuries
to her lip and little finger. Planeta was terrified and
asked the defendant to let her go. He refused and threat-
ened to kill her.
When the struggle subsided, Planeta attempted to
reach the door, but the defendant barricaded it by wedg-
ing a chair under the doorknob. Planeta was able to
walk to a cordless telephone and dial 911. The defen-
dant took the telephone from her before she could talk
to the police dispatcher. The dispatcher called back.
To prevent the defendant from discovering that she was
talking to the police, Planeta pretended to be speaking
with a telemarketer. Over a period of time, the defen-
dant and Planeta spoke to the police a number of times.
As a consequence of Planeta’s 911 call and 911 calls
from other residents of the building, several Norwalk
police officers and members of the police department’s
special services unit came to the apartment. Officer
Carl Williams served as a hostage negotiator. During
the negotiations, the defendant stated that he would
stop Planeta if she attempted to leave. After a one and
one-half to two hour standoff, the defendant opened
the apartment door and permitted the police to enter.
The police frisked him and found a box cutter. The
police took the defendant into custody and, thereafter,
charged him with numerous crimes. After the jury found
him guilty of burglary in the first degree, home invasion,
brandishing a facsimile firearm in a threatening manner,
criminal violation of a protective order, unlawful
restraint in the second degree, and interfering with an
emergency call,2 the defendant received a total effective
sentence of fifteen years incarceration, ten years of
which are a mandatory minimum, followed by ten years
of special parole.
I
The defendant’s principal claim is that his arrest,
detention, and punishment were unwarranted and vio-
lated his rights under article first, §§ 1, 8, and 9, of the
constitution of Connecticut,3 and the fifth, sixth, eighth,
and fourteenth amendments to the United States consti-
tution. More specifically he claims that, as a matter of
law, (1) he could not violate a protective order that was
issued subsequent to April 30, 2010, (2) one convicted of
criminal violation of a protective order may be con-
victed of criminal trespass, but not home invasion, (3)
one may not be convicted of home invasion when the
home invaded is the person’s home, and (4) one may
not be convicted of home invasion that merely is inci-
dental to a criminal violation of a protective order or
unlawful restraint. We do not agree with any of the
defendant’s claims.4
‘‘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.
Brown, 299 Conn. 640, 646–47, 11 A.3d 663 (2011).
A
The defendant claims that his conviction of violating
a protective order on April 30, 2010, violated his consti-
tutional rights because no protective order was issued
against him prior to April 30, 2010. We disagree.
The defendant claims that the only protective order
against him was issued on May 3, 2010. The record in
this case, however, discloses that, during Planeta’s
direct testimony, the state entered into evidence a certi-
fied copy of the protective order issued and signed by
Judge Hudock on April 26, 2010. Moreover, the state
placed into evidence a copy of the April 26, 2010 tran-
script of the defendant’s arraignment in the unrelated
matter during which Judge Hudock issued that protec-
tive order against the defendant. The April 26, 2010
protective order was the basis of the charge of criminal
violation of a protective order alleged in count four of
the December 1, 2011 amended long form information.
The defendant’s claim that his conviction of violating
a protective order violated his constitutional rights fails
in the face of the uncontradicted evidence presented
at trial.
B
The defendant claims that his constitutional rights
were violated when he was convicted of home invasion
in violation of § 53a-100aa (a) (1) in addition to criminal
violation of a protective order. The defendant has
asserted his claim on the basis of the following statutory
language: ‘‘[I]n accordance with section 53a-107 of the
Connecticut general statutes, entering or remaining in
a building . . . in violation of this [protective] order
constitutes criminal trespass in the first degree . . . .’’
See General Statutes §§ 54-1k (b) and 46b-38c (e).5 The
defendant acknowledges that one who violates a protec-
tive order may be convicted of criminal trespass in the
first degree under General Statutes § 53a-107, but he
contends that one who violates an order of protection
may not be prosecuted for home invasion. We disagree.
The defendant’s claim requires us to construe the
relevant statutes. Statutory construction is a question
of law and our review, therefore, is plenary. State v.
Pommer, 110 Conn. App. 608, 613, 955 A.2d 637, cert.
denied, 289 Conn. 951, 961 A.2d 418 (2008). ‘‘When con-
struing a statute, [o]ur fundamental objective is to
ascertain and give effect to the apparent intent of the
legislature. . . . In other words, we seek to determine,
in a reasoned manner, the meaning of the statutory
language as applied to the facts of [the] case, including
the question of whether the language actually does
apply. . . . In seeking to determine that meaning, Gen-
eral 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 considering such rela-
tionship, the meaning of such text is plain and unambig-
uous and does not yield absurd or unworkable results,
extratextual evidence of the meaning of the statute shall
not be considered.’’ (Internal quotation marks omitted.)
State v. Miranda, 142 Conn. App. 657, 662, 64 A.3d 1268,
cert. granted on other grounds, 310 Conn. 902, 75 A.3d
29 (2013).
Both §§ 54-1k (b) and 46b-38c (e) (protective order
statutes) contain the words, ‘‘in accordance with sec-
tion 53a-107 of the Connecticut general statutes, enter-
ing or remaining in a building or any other premises in
violation of this order constitutes criminal trespass in
the first degree . . . .’’ Section 53a-107 provides in rele-
vant 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; or (2) such person enters or remains
in a building or any other premises in violation of a
. . . protective order issued pursuant to section 46b-
38c, 54-1k . . . by the Superior Court; or (3) such per-
son enters or remains in a building or other premises
in violation of a foreign order of protection . . . that
has been issued against such person . . . or (4) know-
ing that such person is not licensed or privileged to do
so, such person enters or remains on public land after
an order to leave or not to enter personally communi-
cated to such person by an authorized official . . . .’’
The defendant argues that the language of § 53a-107 is
clear and unambiguous; we concur with that character-
ization.
Section 53a-107 requires the state to prove, in part,
that personal notice to leave has been given to a person
who, knowing that he is not licensed or privileged to
do so, enters or remains in a building or other premises.
To prove a violation under § 53a-107 (a) (1) and (4), the
state must prove that an order to leave was personally
communicated to the trespasser by the owner of the
premises or other authorized person. Under § 53a-107
(a) (2) and (3), the state need not prove that an order
to leave was communicated personally to the trespasser
by the owner of the premises or an authorized represen-
tative, as an order of protection satisfies the personally
communicated notice requirement. Under § 53a-107 (a)
(2) and (3), an order of protection constitutes per-
sonal notice.
Section 53a-107 concerns criminal trespass only, not
other conduct prohibited by an order of protection or
our General Statutes. In the present case, the defen-
dant’s conduct in violation of the protective order went
well beyond criminal trespass, e.g., he came within 100
yards of Planeta, he threatened her with what appeared
to be a gun, and made physical contact with her. The
defendant has cited no legal authority that prohibited
the state from charging him with crimes in addition to
criminal trespass on the basis of his criminal conduct
on April 30, 2010, and we are aware of none. He merely
contends that because §§ 46b-38c and 54-1k address
criminal trespass and do not speak to home invasion,
he cannot be charged with home invasion. Although
the protective order statutes satisfy the personal notice
element of § 53a-107, the language of the protective
order statutes is not limiting with respect to other
crimes. In other words, nothing in them prohibits the
state from bringing additional charges, including home
invasion, for criminal acts. ‘‘When language used in a
statute is clear and unambiguous, its meaning is not
subject to modification or construction. . . . Absent
ambiguity, the courts cannot read into statutes, by con-
struction, provisions that are not clearly stated.’’ (Cita-
tion omitted; internal quotation marks omitted.)
Battersby v. Battersby, 218 Conn. 467, 470, 590 A.2d 427(1991). We conclude that the defendant’s constitutional
rights were not violated when he was convicted of home
invasion in addition to criminal violation of the protec-
tive order.
C
The defendant’s next claim is that his conviction of
home invasion was unwarranted because the home he
invaded was his own. The defendant contends that
because he was homeless and some of his possessions
were found in the laundry room of the building, the
building was his home.6 The defendant’s claim lacks
merit.
Count two of the amended long form information
alleges that ‘‘on or about April 30, 2010, at approxi-
mately 7:08 p.m. in the area of Maple Street, the said
[defendant] unlawfully entered a dwelling, with intent
to commit a crime therein, while a person other than
a participant in the crime was actually present in such
dwelling, to wit . . . Planeta, and, in the course of com-
mitting the offense he attempted to commit a felony
against another person who was actually present in
such dwelling . . . .’’
Section 53a-100aa codifies the crime of home inva-
sion and provides in relevant part: ‘‘(a) A person is
guilty of home invasion when such person enters or
remains unlawfully in a dwelling, while a person other
than a participant in the crime is actually present in
such dwelling, with intent to commit a crime therein,
and in the course of committing the offense: (1) Acting
either alone or with one or more persons, such person
or another participant in the crime commits or attempts
to commit a felony against the person of another person
other than a participant in the crime who is actually
present in such dwelling . . . .’’ The statute provides
that the crime of home invasion is committed, in part,
when a ‘‘person enters or remains unlawfully in a dwell-
ing . . . .’’ (Emphasis added.) General Statutes § 53a-
100aa (a). The ‘‘enters’’ element of the crime does not
contain the word home.
Moreover, dwelling is a defined term under our law.
‘‘The following definitions are applicable to this part
. . . ‘dwelling’ means a building which is usually occu-
pied by a person lodging therein at night, whether or
not a person is actually present . . . .’’ General Statutes
§ 53a-100 (a) (2). The defendant’s claim admits that he
was not living in Planeta’s apartment. To the extent
that his claim is predicated on his belief that he was
living in the basement of the building, count two of
the information charged him with unlawfully entering
Planeta’s dwelling.
For the foregoing reasons, we conclude that the
defendant was not wrongly convicted of home invasion
because the home he invaded was his own, as he con-
tends. The jury found beyond a reasonable doubt that
he unlawfully entered Planeta’s apartment or dwelling.
Moreover, contrary to his claims, the defendant’s con-
viction in no way violates the state’s policy toward the
homeless or his right to privacy; it was predicated on
his criminal behavior. See footnote 6 of the opinion.
D
The defendant claims that his conviction of home
invasion violated his constitutional rights because his
criminal conduct in Planeta’s dwelling merely was inci-
dental to the violation of the protective order or unlaw-
ful restraint. He contends that his claim is controlled
by our Supreme Court’s holding in State v. Salamon,
287 Conn. 509, 949 A.2d 1092 (2008). We disagree that
Salamon provides guidance, much less controls our
analysis.
In Salamon, our Supreme Court addressed a more
narrow issue predicated on that court’s prior interpreta-
tions of our kidnapping statutes. Id., 531. The court
found the intent language of the statutes to be ambigu-
ous. Id., 534. It stated that ‘‘in accordance with the
statutory definitions of the terms abduct and restrain,
our decisions have established that a defendant may be
convicted of kidnapping upon proof that he restrained a
victim when that restraint is accompanied by the requi-
site intent. Those previous decisions, however, have
not explored the parameters of that intent, in particular,
how the intent to prevent [a victim’s] liberation . . .
that is, the intent necessary to establish an abduction,
differs from the intent to interfere substantially with [a
victim’s] liberty . . . that is, the intent necessary to
establish a restraint.’’ (Citations omitted; internal quota-
tion marks omitted.) Id.Our Supreme Court provided a judicial gloss to differ-
entiate the intent necessary to commit kidnapping from
the intent necessary to commit unlawful restraint. The
court stated that ‘‘[o]ur legislature, in replacing a single,
broadly worded kidnapping provision with a gradated
scheme that distinguishes kidnappings from unlawful
restraints by the presence of an intent to prevent a
victim’s liberation, intended to exclude from the scope
of the more serious crime of kidnapping and its accom-
panying severe penalties those confinements or move-
ments of a victim that are merely incidental to and
necessary for the commission of another crime against
that victim. Stated otherwise, to commit a kidnapping
in conjunction with another crime, a defendant must
intend to prevent the victim’s liberation for a longer
period of time or to a greater degree than that which
is necessary to commit the other crime.’’ Id., 542. The
court’s holding was grounded on an analysis of the
kidnapping statutes and did not establish a statutory
gloss applicable to other crimes.
In his brief, the defendant has failed to identify any
ambiguity with respect to the crimes of home invasion
and criminal violation of a protective order to warrant
application of the judicial gloss identified by our
Supreme Court in Salamon. Moreover, as the state
points out, an element of the crime of home invasion
requires that the state prove that the defendant commit-
ted or attempted to commit a felony against a nonpartic-
ipant in the crime who is present in the dwelling. In
other words, the home invasion statute contemplates
the commission of another felony against the nonpartic-
ipant in the dwelling during the unlawful entry. Sala-
mon and its judicial gloss do not apply to the crime of
home invasion, and therefore the defendant’s claim
fails.
II
The defendant’s second claim is that there is insuffi-
cient evidence to support his conviction of (1) burglary
in the first degree and (2) home invasion. We do not
agree.
‘‘In reviewing a sufficiency of the evidence claim, we
apply a two-part test. First, we construe the evidence
in the light most favorable to sustaining the verdict.
Second, we determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the jury reasonably could have concluded that the
cumulative force of the evidence established guilt
beyond a reasonable doubt. . . .
‘‘We note that the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, [but] each of the
basic and inferred facts underlying those conclusions
need not be proved beyond a reasonable doubt. . . .
If it is reasonable and logical for the jury to conclude
that a basic fact or an inferred fact is true, the jury is
permitted to consider the fact proven and may consider
it in combination with other proven facts in determining
whether the cumulative effect of all the evidence proves
the defendant guilty of all the elements of the crime
charged beyond a reasonable doubt.’’ (Citation omitted;
internal quotation marks omitted.) State v. Otto, 305
Conn. 51, 65, 43 A.3d 629 (2012).
An appellate court may not second-guess a jury’s
credibility determinations. See State v. Russell, 101
Conn. App. 298, 316, 922 A.2d 191, cert. denied, 284
Conn. 910, 931 A.2d 934 (2007). In reviewing the evi-
dence, ‘‘the reviewing court [is] bound by the jury’s
credibility determinations and all reasonable inferences
the jury could have drawn from the evidence.’’ (Empha-
sis in original.) Saleh v. Ribeiro Trucking, LLC, 303
Conn. 276, 290, 32 A.3d 318 (2011).
A
Burglary in the First Degree
In count one of the amended long form information,
the state accused the defendant of burglary in the first
degree and charged that in ‘‘Norwalk on or about April
30, 2010, at approximately 7:08 p.m. in the area of Maple
Street, [the defendant], unlawfully entered a building
with intent to commit a crime therein and in the course
of committing the offense, recklessly inflicted bodily
injury to [Planeta] in violation of General Statutes § 53-
101 (a) (2).’’ (Emphasis added.)
Section 53a-101 provides in relevant part: ‘‘(a) A per-
son is guilty of burglary in the first degree when . . .
(2) such person enters or remains unlawfully in a build-
ing with intent to commit a crime therein and, in the
course of committing the offense, intentionally, know-
ingly or recklessly inflicts or attempts to inflict bodily
injury on anyone . . . . (c) Burglary in the first degree
is a class B felony . . . .’’
After the reviewing the evidence presented in this
case, we conclude that the jury reasonably could have
found beyond a reasonable doubt that the defendant
entered the building illegally. The building was a
secured building requiring a special key that had to be
obtained from the building superintendent. According
to the superintendent, Alan Raymond, the defendant
was not a resident of the building on April 29, 2010,
when he was observed by a security camera sneaking
into the building when someone exited. The April 26,
2010 protective order required that the defendant stay
away from Planeta’s home and wherever she resided.
Moreover, the jury reasonably could have found that
the defendant intended to violate the protective order
and, during the course of that crime, he struggled with
Planeta and recklessly caused injury to her arm, lip,
and little finger.
The defendant argues that the amended long form
information charges that his unlawful entry took place
on April 30, 2010, and the evidence adduced at trial
indicates that he entered the building on April 29, 2010.
The defendant’s argument is unavailing. ‘‘[I]t is a well-
established rule in this state that it is not essential in
a criminal prosecution that the crime be proved to have
been committed on the precise date alleged, it being
competent ordinarily for the prosecution to prove the
commission of the crime charged at any time prior to
the date of the complaint and within the period fixed
by the statute of limitations.’’ (Internal quotation marks
omitted.) State v. Morrill, 197 Conn. 507, 552, 498 A.2d
76 (1985).
A defendant is ‘‘bound to meet any evidence admissi-
ble under the allegation which might be offered, and
under the allegation it was competent to prove that the
crime was committed on any day prior to the filing of
the information and within the statute of limitations.’’
State v. Ferris, 81 Conn. 97, 99–100, 70 A. 587 (1908).
Moreover, the amended long form information alleged
that the unlawful conduct occurred ‘‘on or about April
30, 2010.’’ The defendant cannot prevail on his claim
that the state presented insufficient evidence to convict
him of burglary in the first degree.
B
Home Invasion
Count two of the amended long form information
accused the defendant of home invasion and charged
that in Norwalk ‘‘on or about April 30, 2010, at approxi-
mately 7:08 p.m. in the area of Maple Street, the [defen-
dant] unlawfully entered a dwelling, with intent to
commit a crime therein, while a person other than a
participant in the crime was actually present in such
dwelling, to wit . . . Planeta, and, in the course of com-
mitting the offense he attempted to commit a felony
against another person who was actually present in
such dwelling in violation of . . . § 53a-100aa (a) (1).’’
Section 53a-100aa provides in relevant part: ‘‘(a) A
person is guilty of home invasion when such person
enters or remains unlawfully in a dwelling, while a per-
son other than a participant in the crime is actually
present in such dwelling, with intent to commit a crime
therein, and in the course of committing the offense;
(1) Acting either alone or with one or more persons,
such person . . . commits or attempts to commit a
felony against the person of another person other than
a participant in the crime who is actually present in
such dwelling . . . . (c) Home invasion is a class A
felony . . . .’’
On the basis of our review of the evidence, we con-
clude that there was sufficient evidence presented at
trial for the jury reasonably to have found beyond a
reasonable doubt that the defendant unlawfully entered
Planeta’s apartment or dwelling after he struggled with
her and pushed her into the apartment. Given the evi-
dence of the defendant’s conduct, the jury reasonably
could have found that in entering the apartment he
intended to violate the protective order and to obtain
money from Planeta by use of force, if necessary. The
defendant brandished a facsimile firearm, which sup-
ports a reasonable inference that he intended to use
force and commit a crime. The jury also reasonably
could have found that the defendant violated the protec-
tive order by entering Planeta’s apartment, a felony.
See General Statutes § 53a-223.
Although the jury found the defendant not guilty of
attempt to commit robbery, it reasonably could have
found that the defendant not only intended, but also
attempted, to commit a robbery in Planeta’s apartment.
He brandished the facsimile of a gun to compel Planeta
to walk down the hall from the laundry room to the
elevator after he stated that he wanted her to give him
$3500. ‘‘A person commits robbery when, in the course
of committing a larceny, he uses or threatens the imme-
diate use of physical force upon another person for the
purpose of . . . (2) compelling the owner of such prop-
erty . . . to deliver up the property or to engage in
other conduct which aids in the commission of the
larceny.’’ General Statutes § 53a-133. Robbery, regard-
less of degree, is a felony. See General Statutes §§ 53a-
134 (b), 53a-135 (b) and 53a-136 (b). We, therefore,
conclude that there was sufficient evidence by which
the jury reasonably could have found the defendant
guilty of home invasion.
III
The defendant also claims that the court improperly
instructed the jury with respect to home invasion and
thereby misled the jury. We disagree.
In count two of the amended long form information,
the state accused the defendant of home invasion and
charged that ‘‘at the city of Norwalk on or about April
30, 2010, at approximately 7:08 p.m. in the area of Maple
Street, [the defendant] unlawfully entered a dwelling,
with intent to commit a crime therein, while a person
other than a participant in the crime was actually pre-
sent in such dwelling, to wit . . . Planeta, and, in the
course of committing the offense he attempted to com-
mit a felony against another person who was actually
present in such dwelling in violation of . . . § 53a-
100aa (a) (1).’’
Section 53a-100aa (a) provides in relevant part: ‘‘A
person is guilty of home invasion when such person
enters or remains unlawfully in a dwelling, while a per-
son other than a participant in the crime is actually
present in such dwelling, with intent to commit a crime
therein, and, in the course of committing the offense:
(1) Acting . . . alone . . . such person . . . commits
or attempts to commit a felony against the person of
another person other than a participant in the crime
who is actually present in such dwelling . . . .’’
(Emphasis added.)
The defendant submitted a request to charge on
December 5, 2011, and an amended request to charge
on December 7, 2011. With respect to the charge of
home invasion, the defendant requested that the court
instruct the jury, in part: ‘‘For you to find the defendant
guilty of this charge, the state must prove the following
elements beyond a reasonable doubt. . . . The first ele-
ment is that the defendant knowingly and unlawfully
entered a dwelling while the dwelling was occupied.’’
(Emphasis in original.)
On December 7, 2011, the court provided the parties
with a copy of its proposed charge and heard argument
on the defendant’s requested charge. The court denied
the defendant’s request and instructed the jury in rele-
vant part: ‘‘The defendant is charged in count two with
home invasion. . . . The first element is that the defen-
dant knowingly and unlawfully entered a dwelling. . . .
The second element is that the defendant specifically
intended to commit a crime in that dwelling. . . . The
third element is that when the defendant entered the
dwelling, a person other than a participant in the crime
was actually present in the dwelling. . . . The fourth
element is that in the course of committing the offense,
the defendant committed or attempted to commit a
felony against the person of another person other than
a participant in the crime who was actually present in
such dwelling. . . . In summary, the state must prove
beyond a reasonable doubt that the defendant know-
ingly and unlawfully entered a dwelling and that he
specifically intended to commit a crime in the dwelling,
and that another person other than a participant of the
crime was actually present in the dwelling.’’7 (Empha-
sis added.)
‘‘Our review of the defendant’s claim requires that
we examine the [trial] court’s entire charge to determine
whether it is reasonably possible that the jury could
have been misled by the omission of the requested
instruction. . . . While a request to charge that is rele-
vant to the issues in a case and that accurately states
the applicable law must be honored, a [trial] court need
not tailor its charge to the precise letter of such a
request. . . . If a requested charge is in substance
given, the [trial] court’s failure to give a charge in exact
conformance with the words of the request will not
constitute a ground for reversal. . . . As long as [the
instructions] are correct in law, adapted to the issues
and sufficient for guidance of the jury . . . we will not
view the instructions as improper. . . . Additionally,
we have noted that [a]n [impropriety] in instructions
in a criminal case is reversible . . . when it is shown
that it is reasonably possible for [improprieties] of con-
stitutional dimension . . . that the jury [was] misled.’’
(Internal quotation marks omitted.) State v. Kitchens,
299 Conn. 447, 454–55, 10 A.3d 942 (2011).
Our review of the court’s charge reveals that the court
accurately stated the applicable law, which was adapted
to the issues in this case. In any event, we discern no
material difference between the court’s charge and the
language contained in the defendant’s request to charge.
We conclude, therefore, that it was not reasonably pos-
sible that the court’s instructions regarding home inva-
sion misled the jury.
IV
The defendant last claims that the court abused its
discretion by denying his oral motion for a judgment
of acquittal offered following the presentation of all
the evidence. He also claims that the court improperly
denied his written motion to dismiss filed prior to trial.8
The substance of the defendant’s claim is that the court
applied the incorrect standard when ruling on the
motions, and that the evidence would not reasonably
permit a finding of guilty as to home invasion and bur-
glary in the first degree. We see no merit in the defen-
dant’s claim.
On December 7, 2011, following the conclusion of
evidence, the court, in ruling on the defendant’s motion
for a judgment of acquittal stated, in part: ‘‘And with
respect to all of the charges—at this point, I’ll leave
out the home invasion charge—the court finds that
there is sufficient evidence for all of those charges to
go to the jury.’’ The court then discussed the legislative
history of the home invasion statute and stated that the
elements of the home invasion statute were clear to
the court, and that the statute is distinguishable from
the burglary statute. The court concluded: ‘‘And based
upon my reading of the statute, the motion for judgment
of acquittal with respect to that count is also denied
considering the evidence that has been presented. I
think there is sufficient evidence for that matter to be
considered by the jury.’’
The defendant claims that the court improperly
applied a sufficiency of the evidence standard when
ruling on his motions to dismiss and for judgment of
acquittal. Practice Book § 42-40, entitled ‘‘Motions for
Judgment of Acquittal; In General,’’ provides in relevant
part: ‘‘After the close of the prosecution’s case in chief
or at the close of all the evidence, upon motion of the
defendant . . . the judicial authority shall order the
entry of a judgment of acquittal as to any principal
offense charged . . . for which the evidence would not
reasonably permit a finding of guilty. . . .’’ On the basis
of our review of the court’s ruling on the defendant’s
motions, we conclude that the court applied the proper
standard of review by concluding that there was suffi-
cient evidence presented by the state to submit the
charges against the defendant to the jury.9
The judgment is affirmed.
In this opinion the other judges concurred.
1
The superintendent for the building described it as a ‘‘secure building,’’
meaning that a nonresident seeking to enter had to page a resident to
gain entry.
2
The jury found the defendant not guilty of attempt to commit robbery
in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-
134 (a) (4), and assault in the third degree in violation of General Statutes
§ 53a-61 (a) (1).
3
The defendant failed to provide a separate analysis of his claims under
the constitution of Connecticut. We therefore decline to review those claims.
See State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d 1225 (1992).
4
The parties disagree as to whether the defendant’s claims, as articulated
in his brief, were preserved for review. We need not determine whether the
claims were preserved. The state points out that, in his motion to dismiss
filed prior to trial, the defendant stated that ‘‘[t]here is insufficient evidence
or cause to justify the bringing or continuing of such information or the
placing of the defendant on trial on count two of the information.’’ The
state concedes that to the extent that the defendant’s claims challenge the
sufficiency of the evidence, they are reviewable. We agree and review the
defendant’s claims only for the sufficiency of evidence. See State v. Rodri-
guez-Roman, 297 Conn. 66, 73, 3 A.3d 783 (2010) (defendant found guilty
on basis of insufficient evidence has been deprived of constitutional right).
5
In his brief, the defendant refers to § 54-1k, which is entitled ‘‘Issuance
of protective orders in cases of stalking, harassment, sexual assault, risk
of injury to or impairing morals of a child.’’ The state has countered that
the subject protective order was issued pursuant to General Statutes § 46b-
38c, entitled ‘‘Family violence response and intervention units. Local units.
Duties and functions. Protective orders. Electronic monitoring pilot pro-
gram. Pretrial family violence education program; fees. Training program.’’
In the present case, the statute under which the protective order was issued
is not determinative, as the quoted language concerning criminal trespass
is contained in both §§ 54-1k (b) and 46b-38c (e).
6
In his brief, the defendant raised a right to privacy claim and also states
that ‘‘the state necessarily considered him to be a ‘homeless’ person, when it
claimed he had ‘no fixed address,’ and was ‘squatting’ there [in the basement].
Even as a ‘homeless’ ‘squatter,’ however, the defendant still retained his
Constitutional rights, including the right not to be punished unless warranted
by law. That’s because it is the policy of the state to protect the Constitutional
rights of homeless people, and that policy necessarily includes the right not
to be convicted for ‘home invasion’ when the ‘home’ invaded was his ‘home,’
however temporary.’’ In order to resolve the defendant’s claim, it is unneces-
sary for us to determine whether the basement of the building was the
defendant’s claimed home. The defendant’s conviction of home invasion
was predicated on his entering Planeta’s apartment or dwelling.
7
The court also instructed the jury, in part, that ‘‘[a]s a matter of law,
violation of a protective order and attempt to commit robbery in the first
degree are both felonies.’’
8
The court heard argument on the defendant’s motions and denied them
at the conclusion of evidence.
9
We feel constrained to express our disapproval of inappropriate and
intemperate language contained in the conclusion of the defendant’s princi-
pal brief, which amounts to a wholesale ad hominem attack on the trial
court. In contending that the court abused its discretion by ruling as it did
in a number of ways, appellate counsel stated in part: ‘‘Basically, the trial
court didn’t do its job. The judge failed to conduct appropriate research
into the law, or legislative history, before deciding on the motions. . . .
This is not justice. This is not what a court is required to do. . . . A judge
is supposed to view the evidence with fairness, know or find out what the
law requires, to apply the facts to the law, to come up with a just decision.
That didn’t happen here. . . . Without judicial diligence, the system fails,
not just for one individual, but also for society as a whole. That diligence
did not happen here. The law was not known or understood, the facts were
not applied appropriately to the law, and the standards of review were not
followed.’’ (Citations omitted.)
Issues properly raised on appeal are to be based on claims of law presented
at trial, not the personal opinion of appellate counsel. Such remarks are
unseemly and do nothing whatever to advance the defendant’s claims and
arguments. In our view, as indicated in this opinion, the trial court properly
ruled on the matters before it.