State v. Marsala

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STATE OF CONNECTICUT v. MICHAEL J. MARSALA
(AC 40071)
Alvord, Moll and Eveleigh, Js.
Syllabus
Convicted of the crime of criminal trespass in the first degree, the defendant
appealed to this court. He claimed that the trial court improperly
declined to instruct the jury on the infraction of simple trespass as a
lesser offense included within the crime of criminal trespass in the
first degree. The defendant’s conviction stemmed from his conduct in
entering certain property on which a mall was located, and approaching
shoppers and asking for money. After he was banned from the mall
property by security officers and was warned of a possible arrest, he
returned to the property again, which resulted in his arrest by a police
officer on private duty. On appeal, the defendant claimed that because
there was sufficient evidence in dispute at trial as to whether he properly
received an order not to enter the property by the mall owner or an
authorized person, which is a required element of criminal trespass in
the first degree, the jury could have found that the order was insufficient
to find him guilty of criminal trespass in the first degree, but sufficient
to satisfy the knowledge element contained in simple trespass. Held
that the defendant was not entitled to a jury instruction on the infraction
of simple trespass, as the evidence presented before the jury excluded
the possibility that he could be found not guilty of criminal trespass in
the first degree but guilty of the infraction of simple trespass; under
the facts of this case, if the jury rejected the evidence presented by the
state that the defendant received an order not to enter the mall property
from an authorized person, there was no other evidence, introduced by
either the state or the defendant, from which the jury could have found
that the defendant knew he was not privileged to enter or remain on
the mall property and it would have had to find the defendant not
guilty of the infraction of simple trespass as well, and, therefore, the
defendant’s claim that the jury could have found that the evidence
presented was sufficient to satisfy the knowledge element of the infrac-
tion of simple trespass but not criminal trespass was unavailing.
Argued September 13—officially released November 6, 2018
Procedural History
Substitute information charging the defendant with
the crime of criminal trespass in the first degree,
brought to the Superior Court in the judicial district
of Ansonia-Milford, geographical area number twenty-
two, and tried to the jury before Markle, J.; verdict and
judgment of guilty, from which the defendant appealed
to this court. Affirmed.
Laila M.G. Haswell, for the appellant (defendant).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Kevin D. Lawlor, state’s attor-
ney, Matthew R. Kalthoff, assistant state’s attorney,
Laurie N. Feldman, special deputy assistant state’s
attorney, and Brett R. Aiello, special deputy assistant
state’s attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Michael J. Marsala,
appeals from the judgment of conviction, rendered after
a jury trial, of one count of criminal trespass in the first
degree in violation of General Statutes § 53a-107 (a)
(1).1 On appeal, the defendant claims that the trial court
improperly declined to instruct the jury on the infrac-
tion of simple trespass, General Statutes § 53a-110a,2
which the defendant claims is a lesser included offense
of criminal trespass in the first degree. We affirm the
judgment of the trial court.
The jury reasonably could have found the following
facts. The Centennial Connecticut Post Mall (mall) is
located at 1201 Boston Post Road in Milford (mall prop-
erty). Currently owned by Centennial Corporation (Cen-
tennial), the mall was previously owned by Westfield
Corporation (Westfield). Westfield, and later Centen-
nial, has employed Dan Kiley as the mall’s general man-
ager. The mall contracts with Professional Security
Consultants for security services. Professional Security
Consultants employs Thomas Arnone as security direc-
tor at the mall, and Arnone reports directly to Kiley.
Wilfred Castillo, also an employee of Professional Secu-
rity Consultants, began working at the mall in Novem-
ber, 2014, and had received calls about the defendant
on approximately ten to fifteen occasions prior to
November 28, 2015. In each call, the defendant was
described as a man carrying a red gas can and was
present in one of the parking lots at the mall. In response
to the calls, Castillo would find the defendant and tell
him that panhandling is not allowed on mall property
and that he would have to leave.
During the holiday season, from November through
January, the mall hires Milford police officers to support
the mall security staff and conduct traffic control at
the mall’s exterior entrances and exits. The mall pays
the city of Milford, which pays the police officers’
wages, to work what is described as a ‘‘private duty
job.’’ On November 27, 2015, Officer Joanna Salati of
the Milford Police Department was working for the mall
on a private duty job when she observed the defendant
walking around on mall property with his gas can.3 She
called for a security officer to come out and confirmed
with security that the defendant was banned from the
mall property. Salati told the defendant that he had
been advised several times before that he was banned
from the mall property, and she informed the defendant
of the property’s boundaries. Salati told the defendant
that he would be arrested the next time he was found
on mall property. Salati saw the defendant leave the
mall property and reported the incident to the Milford
Police Department, where a report of the incident
was generated.
The next day, November 28, Salati was again working
private duty at the mall when her partner, Detective
Steve Noss, also of the Milford Police Department, told
her that he had observed the defendant on mall property
near Sears. Salati, who was working traffic enforcement
at the intersection of Boston Post Road and Cedarhurst
Road at the time, called for additional officers. She also
told mall security to meet her in the Sears parking lot
and began walking in that direction, where she observed
the defendant approaching customers with his red gas
can. The defendant walked away from Salati as she
called his name. The defendant eventually stopped
walking, Salati arrested him, and he was transported
by other officers to the Milford Police Department. The
defendant was charged in a long form information with
one count of criminal trespass in the first degree in
violation of § 53a-107 (a) (1). The defendant elected a
jury trial, and evidence was presented on September
14, 2016.
After the close of evidence on September 14, 2016,
the court held a charge conference on the record. The
court preliminarily discussed the defendant’s request
to charge the jury on the infraction of simple trespass
as a lesser included offense to criminal trespass in the
first degree. Defense counsel agreed to submit a revised
proposed charge,4 and the court also indicated that it
would afford the state an opportunity to brief its opposi-
tion to the defendant’s request. The court stated its
intention to decide the issue the following day.
The next morning, defense counsel submitted to the
trial court a revised written request that the court
charge the jury on the infraction of simple trespass as
a lesser included offense to criminal trespass in the
first degree. In the written request, defense counsel
asked that the court give the following charge: ‘‘If you
have unanimously found the defendant not guilty of the
crime of criminal trespass in the first degree, you shall
then consider the lesser offense of simple trespass. Do
not consider the lesser offense until you have unani-
mously acquitted the defendant of the greater offense.
‘‘A person is guilty of simple trespass when, knowing
that he is not licensed or privileged to do so, he enters
any premises without intent to harm any property. For
you to find the defendant guilty of simple trespass,
the state must prove the following elements beyond a
reasonable doubt: first that he entered the premises.
Premises is not defined in the law so it has the common
meaning. The second element is that he entered know-
ing he was not licensed or privileged to do so. To be
licensed or privileged the defendant must have either
consent from the owner of the premises or other author-
ized person or have some other right to be on the prem-
ises. A person acts knowingly with respect to conduct
when he is aware that his conduct is of such nature or
such circumstances exist.’’
The state filed a memorandum in opposition to the
defendant’s request to charge as to the infraction of
simple trespass, arguing that (1) the claim fails under
the second prong of the Whistnant test5 and (2) an
infraction should not be submitted to a jury as a lesser
included offense of a crime.
The court heard oral argument on the defendant’s
request to charge after counsel gave closing arguments.6
The court then issued an oral decision denying the
request to charge. The court began its discussion by
noting the absence of appellate authority directly on
point. With respect to the issue of whether the jury
should be permitted to decide the facts of a case as it
relates to an infraction, the court read State v.
Steinmann, 20 Conn. App. 599, 607, 569 A.2d 557, cert.
denied, 214 Conn. 806, 573 A.2d 319 (1990), in conjunc-
tion with State v. Mention, 12 Conn. App. 258, 261,
530 A.2d 645, cert. denied, 205 Conn. 809, 532 A.2d 78
(1987),7 as ‘‘leaning against an infraction being a lesser
included offense.’’ The court further found persuasive
the state’s argument that the infraction of simple tres-
pass fails to satisfy the Whistnant test because it con-
tains an added element, specifically that the defendant
enter or remain on the premises ‘‘without intent to harm
any property,’’ which is not required for a conviction
of criminal trespass in the first degree. See footnotes
1 and 2 of this opinion. The court then instructed the
jury, and the jury retired for deliberations. The next
day, the jury reached a verdict, finding the defendant
guilty of criminal trespass in the first degree. On Octo-
ber 28, 2016, the defendant was sentenced to one year
incarceration, execution suspended after four months,
followed by two years conditional discharge. This
appeal followed.
On appeal, the defendant claims that the court
improperly declined to instruct the jury on the infrac-
tion of simple trespass as a lesser included offense of
criminal trespass in the first degree. Specifically, he
argues that the infraction of simple trespass satisfies
all four prongs of the Whistnant test. The state responds
that the trial court ‘‘correctly found that an infraction
could not be treated as a lesser included offense of a
crime.’’ The state argues in the alternative that, even if
certain infractions could be submitted to a jury as lesser
included offenses of crimes, the infraction of ‘‘simple
trespass contains an element that criminal trespass in
the first degree does not—the lack of intent to harm
property.’’ Thus, the state argues that the trial court
correctly found that the infraction of simple trespass
fails to satisfy the second prong of Whistnant. Although
we conclude that the defendant’s claim fails the third
and fourth prongs of Whistnant, we also briefly address
the defendant’s claim as to the second prong.8
We first set forth our standard of review. ‘‘It is well
settled that [t]here is no fundamental constitutional
right to a jury instruction on every lesser included
offense. . . . [State v. Whistnant, 179 Conn. 576, 583,
427 A.2d 414 (1980)]. Rather, the right to such an instruc-
tion is purely a matter of our common law. A defendant
is entitled to an instruction on a lesser [included]
offense if, and only if, the following conditions are met:
(1) an appropriate instruction is requested by either the
state or the defendant; (2) it is not possible to commit
the greater offense, in the manner described in the
information or bill of particulars without having first
committed the lesser; (3) there is some evidence, intro-
duced by either the state or the defendant, or by a
combination of their proofs, which justifies conviction
of the lesser offense; and (4) the proof on the element
or elements which differentiates the lesser offense from
the offense charged is sufficiently in dispute to permit
the jury consistently to find the defendant innocent of
the greater offense but guilty of the lesser.’’ (Internal
quotation marks omitted.) State v. Langley, 128 Conn.
App. 213, 231, 16 A.3d 799, cert. denied, 302 Conn. 911,
27 A.3d 371 (2011). ‘‘The Whistnant test is conjunctive,
requiring satisfaction of all four prongs.’’ State v. Smith,
262 Conn. 453, 461, 815 A.2d 1216 (2003).
We begin our analysis by briefly addressing the defen-
dant’s claim as to the second prong of Whistnant. The
defendant argues that the court wrongly construed the
phrase ‘‘without intent to harm any property’’ in § 53a-
110a (a) as an element of the infraction of simple tres-
pass. The defendant maintains that the phrase is not
an element, but rather ‘‘[i]ts purpose is to alert the
police and prosecution that a defendant who commits a
trespass but does not damage property may be charged
with simple trespass.’’ The defendant further argues
that if lack of intent was an element, ‘‘the state would
be forced to prove beyond a reasonable doubt the defen-
dant’s lack of intent to harm the property. The absurd
effect of this mandate is that once the state proved
the lack of intent, the accused would then be able to
successfully defend against the charge by presenting
evidence that he or she did intend to harm the prop-
erty.’’ The state responds that ‘‘because the lack of
intent to harm property is expressly set forth in [§] 53a-
110a (a), this court must construe it as an element of
simple trespass when contrasting the infraction with
criminal trespass in the first degree as alleged in the
information.’’ The state relies on the principle of statu-
tory interpretation providing that statutes must be con-
strued so that no clause shall be superfluous, citing,
inter alia, State v. Agron, 323 Conn. 629, 638, 148 A.3d
1052 (2016).
We agree with the defendant and reject the state’s
argument that the lack of intent to harm property is an
element of simple trespass. Reading the statute as the
state suggests would lead to the absurd and unworkable
result that a defendant could defend against a charge
of simple trespass by merely introducing evidence of
an intent to harm property.9 See General Statutes § 1-
2z; Tomlinson v. Tomlinson, 305 Conn. 539, 554, 46
A.3d 112 (2012) (‘‘we read each statute in a manner
that will not thwart its intended purpose or lead to
absurd results’’ [internal quotation marks omitted]). We
further reject the state’s suggestion that ‘‘because the
lack of intent to harm property is expressly set forth’’
in the statute, this court ‘‘must construe it as an ele-
ment’’ of the infraction. See generally State v. Ray, 290
Conn. 602, 616, 966 A.2d 148 (2009) (recognizing that
phrase ‘‘not . . . a drug-dependent person’’ contained
in General Statutes § 21a-278 (b) was not intended to
be element of offense); see also State v. Evans, 329
Conn. 770, 808, 189 A.3d 1184 (2018) (declining to dis-
turb holding in State v. Ray, supra).
We next turn to the third and fourth prongs of Whist-
nant. ‘‘In considering whether the defendant has satis-
fied the requirements set forth in State v. Whistnant,
supra, 179 Conn. 588, we view the evidence in the light
most favorable to the defendant’s request for a charge
on the lesser included offense. . . . [For purposes of
Whistnant’s fourth prong,] [e]vidence is sufficiently in
dispute where it is of such a factual quality that would
permit the finder of fact reasonably to find the defen-
dant guilty on the lesser included offense. This require-
ment serves to prevent a jury from capriciously
convicting on the lesser included offense when the evi-
dence requires either conviction on the greater offense
or acquittal.’’ (Citation omitted; internal quotation
marks omitted.) State v. Collins, 45 Conn. App. 6, 9–10,
692 A.2d 865 (1997). ‘‘On appeal, an appellate court
must reverse a trial court’s failure to give the requested
instruction if we cannot as a matter of law exclude
[the] possibility that the defendant is guilty only of the
lesser offense.’’ (Internal quotation marks omitted.)
State v. Langley, supra, 128 Conn. App. 232.
‘‘Despite being conceptually distinct parts of the
Whistnant formulation, the third and fourth prongs are
subject to the same evidentiary analysis. . . . [A
reviewing court] will, therefore, analyze them simulta-
neously. The third prong of Whistnant requires that
there [be] some evidence, introduced by either the state
or the defendant, or by a combination of their proofs,
which justifies conviction of the lesser offense. . . .
The fourth prong requires that the proof on the element
or elements which differentiate the lesser offense from
the offense charged is sufficiently in dispute to permit
the jury consistently to find the defendant innocent of
the greater offense but guilty of the lesser.’’ (Internal
quotation marks omitted.) Id., 232; see also State v.
Hancich, 200 Conn. 615, 619–20, 513 A.2d 638 (1986).
The defendant directs this court’s attention to the
element of criminal trespass in the first degree that the
trespass take place ‘‘after an order to leave or not to
enter personally communicated to such person by the
owner of the premises or other authorized person.’’
General Statutes § 53a-107 (a) (1). The defendant argues
that an examination of the evidence and arguments at
trial show that this element was sufficiently in dispute.
Specifically, he claims that ‘‘there was insufficient evi-
dence that the security department, a separate entity
from the mall, had the requisite authority to ban the
defendant from the property for any length of time
beyond 24 hours.’’ He argues that the evidence estab-
lished reasonable doubt as to ‘‘the authority of security
and, by extension, Officer Salati, for banning the defen-
dant from the property.’’
The defendant contends that although the criminal
trespass statute requires that the defendant obtain his
knowledge from a clear, unequivocal order, personally
conveyed by the property’s owner or his agent, ‘‘knowl-
edge under the simple trespass statute can be gleaned
from circumstances and does not have to be explicitly
communicated.’’ According to the defendant, the jury
could have found that the order was insufficient to
convey the knowledge required for a conviction of crim-
inal trespass in the first degree but was sufficient to
satisfy the knowledge element contained in the simple
trespass statute.10
Our resolution of the defendant’s claim requires a
review of the evidence presented at trial as to the ele-
ment in dispute. The state presented Castillo’s testi-
mony that he previously had told the defendant that
panhandling is not allowed on mall property and that
he would have to leave. The state also presented Salati’s
testimony that she told the defendant, on the day before
he was arrested, that he was banned from the mall
property and that he would be arrested the next time
he was found there.
The defendant’s defense at trial was that the state
had failed to present evidence that the owner of the
property had given either Salati or Castillo authority to
ban the defendant from the mall property. The defen-
dant introduced into evidence a ‘‘Lesson Plan,’’ which
was provided by Professional Security Consultants’ cor-
porate office to Arnone for purposes of training his
staff. That document provides, under the heading of
‘‘Temporary Suspension,’’ as follows: ‘‘Suspend the priv-
ilege of being on the property for an amount of time
that is determined by the severity of the incident and
local and state ordinance. Any suspension for more than
24 hours must [be] approved [by] the Center Manager.’’11
Relying on this evidence, defense counsel argued in
closing argument that the written policies only allowed
security to ban the defendant for the remainder of the
day, and posited that the defendant was possibly aware
of that policy. He further argued that the state had failed
to present evidence that Westfield, the owner of the
mall property, gave authority to ban the defendant.
Arnone testified that, although there was no other
written procedure, the ‘‘Lesson Plan’’ did not guide the
day-to-day practices at the mall. Specifically, he stated
that the ‘‘Lesson Plan’’ was ‘‘not the end all be all of
the policy or what we are expected to do as a security
staff as far as banning goes.’’ Arnone testified that secu-
rity can ban someone from the property for either six
months or one year and that bans are reviewed by
Arnone or his assistant, or Dan Kiley, the general man-
ager of the mall.12 Arnone testified: ‘‘[W]e [issue] any-
where from 360 to 370 [bans] a year.’’ Arnone stated
that a ban notice is created for each ban, which notice
includes ‘‘basic information on the person as well as a
photo, if one is able to be obtained, as well as the time
period that they are banned, the start date, end date,
as well as their offense that they’ve committed, and
whether or not we were able to obtain a signature from
the individual.’’ Arnone testified that the forms ‘‘are
finalized through me or my assistant, and then they go
one step further and are further finalized and reviewed
by the general manager’’ of the mall. When Castillo was
asked whether he had any personal knowledge as to
whether the defendant signed a ban notice in this case,
he responded: ‘‘No, by the time I got there he was
already in the back of the police car so I couldn’t have
him sign it.’’ Castillo testified that the defendant ‘‘was
already banned previously.’’ Specifically, he said that
the defendant was banned from mall property on July
9, 2015, and that the ban was in place for one year.
Arnone further testified that there were two ban
notices on file in the security office for the defendant,
dated July 9, 2015, and November 28, 2015. Arnone,
however, was not present when either form was created
and could not say whether the defendant received either
form. No ban notice was introduced into evidence, and
no further detail of any incident occurring on July 9,
2015, was presented to the jury. Based on the July 9,
2015 ban notice, both Arnone and Castillo testified that
the defendant was not permitted to be on mall property
in November, 2015.
The defendant also challenged Salati’s authority,
introducing into evidence the Milford Police Depart-
ment ‘‘General Orders’’ regarding ‘‘Off Duty Arrest Pow-
ers.’’ That policy provides in part, under the heading
‘‘Permitted Off-Duty Arrests,’’ as follows: ‘‘When off-
duty and within the legal jurisdiction of this law enforce-
ment agency, an officer may make an arrest only when
. . . (ii) There is an immediate need to prevent a crime
or apprehend a suspect; especially those crimes involv-
ing the infliction of physical injury to another . . . .’’
It further provides, under the heading ‘‘Prohibited Off-
Duty Arrests,’’ as follows: ‘‘Officers of this Department
may not make an arrest off-duty: . . . (iii) When the
arrest is made solely as enforcement of a minor traffic
regulation, or the violation is minor in nature and does
not require an in-custody arrest for the violation.’’
Lastly, under the heading ‘‘Off-Duty Responsibilities,’’
it provides: ‘‘Except as allowed by this policy off-duty
officers should not enforce minor violations such as
harassment, disorderly conduct, or other nuisance
offenses. On-duty personnel shall be contacted to
respond to the situation where an off-duty officer
becomes aware of such violations.’’ When asked
whether she violated that policy in arresting the defen-
dant, Salati testified: ‘‘I guess you can say that.’’
Arnone testified that Milford police officers working
on private duty for the mall are permitted to ask individ-
uals to leave mall property. He further testified, how-
ever, that he prefers that his security staff initiate any
interaction with patrons and customers and that the
police officer who is working private duty support the
security staff if necessary. When asked whether mall
security policy is that security takes the lead on interac-
tions with people on mall property, Salati responded:
‘‘I don’t know what their policy is.’’13
Our Supreme Court has held that, in order to satisfy
the third prong of Whistnant, ‘‘there must be sufficient
evidence, introduced by either the state or the defen-
dant, or by a combination of their proofs, to justify a
finding of guilt of the lesser offense,’’ and has ‘‘rejected
the proposition that a defendant is entitled to instruc-
tions on lesser included offenses based on merely theo-
retical or possible scenarios.’’ (Internal quotation marks
omitted.) State v. Arena, 235 Conn. 67, 78, 663 A.2d 972
(1995). In Arena, the defendant sought an instruction
on robbery in the second degree as a lesser included
offense of robbery in the first degree. Id., 70. The differ-
ence between robbery in the first degree in violation
of General Statutes § 53a-134 (a) (4) and robbery in the
second degree in violation of General Statutes § 53a-
135 (a) (2), as codified at the time of the offense, was
that, in order to convict the defendant of the former,
he must have ‘‘display[ed] or threaten[ed] the use of
what he represent[ed] by his words or conduct to be
a . . . firearm,’’ while conviction of the latter required
only that the defendant have ‘‘display[ed] or threat-
en[ed] the use of what he represent[ed] by his words
or conduct to be a deadly weapon or a dangerous instru-
ment.’’ Id., 68 n.1, 72 n.6. The evidence at trial was that
the defendant had entered a convenience store and told
the cashier to put ‘‘all the money in a bag,’’ as he placed
an opaque plastic shopping bag on the counter with his
hand at the top of the bag. Id., 69. The defendant
appeared to be gripping an object inside the bag, which
he pointed at the cashier, who, along with a second
cashier, thought the object looked like a gun. Id., 69–70.
During trial, the second cashier testified that the object
in the bag could have been a club. Id. 78.
Our Supreme Court, explaining that the actual con-
tents of the bag were irrelevant and that the state ‘‘only
had to prove that the defendant represented by his
conduct that he had a firearm,’’ found no evidence in
the record that the defendant ‘‘represented by his words
or conduct that he had something other than a firearm.’’
(Emphasis in original.) Id., 79. Put another way, ‘‘a vic-
tim’s acknowledgment that [the object], in fact, could
have been something other than a firearm, namely, a
bludgeon or other dangerous instrument, is not evi-
dence that the defendant represented that the object
he was carrying was something other than a firearm.’’
Id. Thus, there was insufficient evidence to justify the
defendant’s request for instructions on robbery in the
second degree. Id.; see also State v. Hancich, supra,
200 Conn. 621 (defendant was not entitled to lesser
included offense instruction, where evidence presented
at trial provided no factual basis for jury to conclude
that defendant was not under influence of intoxicating
liquor but operated her vehicle while impaired); State
v. Langley, supra, 128 Conn. App. 233–34 (defendant
was not entitled to lesser included offense instruction
where, from evidence presented, jury reasonably could
have concluded only that defendant intentionally lit
victim on fire or that she had nothing to do with victim’s
injuries, evidence excluded possibility that defendant
could be found guilty only of criminally negligent homi-
cide but not murder or manslaughter in the first degree).
In State v. Hancich, supra, 200 Conn. 621, our
Supreme Court found no error in the trial court’s refusal
to give a lesser included offense instruction, where the
evidence introduced at trial was such as to ‘‘exclude
completely the possibility’’ that the defendant could be
found not guilty of the greater offense, but then be
found guilty of the lesser offense. The defendant in
Hancich was charged with driving while under the influ-
ence of intoxicating liquor in violation of General Stat-
utes § 14-227a and requested that the court provide the
jury with a lesser included offense instruction on the
infraction of driving while impaired in violation of Gen-
eral Statutes § 14-227a (b).14 Id., 616, 619. Our Supreme
Court explained that ‘‘an instruction on the lesser
included offense of operating while impaired would not
have been appropriate unless there were some factual
basis—some evidence introduced at trial—which
would have supported a jury finding that the defendant
was impaired, but not under the influence . . . .’’ Id.,
621. The arresting police officer testified that he fol-
lowed the defendant for approximately one mile with
his lights and siren activated before she pulled her vehi-
cle over. Id., 618. He further testified that she was unable
to recite the alphabet beyond the letter ‘‘F’’ and could
not stand without assistance. Id., 618. The court con-
cluded that this testimony indicated that, irrespective
of her blood alcohol level, the defendant was ‘‘quite
intoxicated.’’ Id., 621. The defendant did not introduce
evidence to rebut the officer’s testimony, and therefore
‘‘the evidence introduced at this trial was such as to
exclude completely the possibility that the defendant
was not under the influence of intoxicating liquor, and
operated her vehicle while merely impaired.’’ Id., 621–
22. Accordingly, the defendant was not entitled to a
lesser included offense instruction under State v. Whist-
nant. Id., 622.
We have thoroughly reviewed the evidence and dis-
agree with the defendant’s argument that the jury could
have found that the evidence presented in this case
was sufficient to satisfy the knowledge element of the
infraction of simple trespass but not criminal trespass
in the first degree.15 As the defendant argues, ‘‘[a] person
acts ‘knowingly’ with respect to conduct or to a circum-
stance described by a statute defining an offense when
he is aware that his conduct is of such nature or that
such circumstance exists.’’ General Statutes § 53a-3
(12). He claims that the state ‘‘did not produce any
evidence that the defendant was told how long he was
banned from the property’’ and points to his argument
at trial that the defendant ‘‘may have thought each order
to leave lasted only . . . until the end of the day.’’ If
the jury was to credit that argument, it then could not
have found that the defendant knew he was not privi-
leged to be on mall property on November 28, 2015,
because the jury was not presented with any other
source of knowledge from which the defendant could
become aware that he was not privileged to enter or
remain on mall property.
Accordingly, we conclude that the evidence intro-
duced during the trial was such that the jury could not
have found that the defendant knew that he was not
privileged to enter or remain on mall property; see Gen-
eral Statutes § 53a-110a; if he had not received ‘‘an order
to leave or not to enter personally communicated to
[him by an] authorized person.’’ See General Statutes
§ 53a-107 (a) (1). Specifically, under the facts of this
case, if the jury was to reject the evidence presented
by the state that the defendant received an order not
to enter from an authorized person, i.e., Castillo or
Salati, there was no other evidence, introduced by either
the state or the defendant, from which the jury could
have found that the defendant knew he was not privi-
leged to enter or remain on mall property.
Indeed, one potential outcome of the trial was that
the jury credited the documentary evidence in the form
of the Lesson Plan and Off Duty Arrest Powers docu-
ments to conclude that the state had not proven that
the owner of the property had authorized Castillo and/
or Salati to personally communicate an order to the
defendant to leave or not to enter.16 The jury accordingly
could have found the defendant not guilty of criminal
trespass in the first degree. However, if the jury credited
that documentary evidence and disbelieved the testi-
mony of Arnone and Castillo that they, and by extension
Salati, possessed authority to issue a one year ban,
there would be no factual basis for the jury to find that
the defendant knew that he was not privileged to be
on mall property. The jury would have had to find the
defendant not guilty of the infraction of simple trespass
as well. Therefore, the defendant was not entitled to a
lesser included offense instruction under Whistnant.
In sum, we conclude, as a matter of law, that the
evidence presented before the jury excludes the possi-
bility that the defendant could be found not guilty of
criminal trespass in the first degree, but then be found
guilty of the infraction of simple trespass. Accordingly,
the defendant was not entitled to a jury instruction on
the infraction of simple trespass.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-107 (a) provides in relevant part: ‘‘A person is
guilty of criminal trespass in the first degree when: (1) Knowing that such
person is not licensed or privileged to do so, such person enters or remains
in a building or any other premises after an order to leave or not to enter
personally communicated to such person by the owner of the premises or
other authorized person . . . .’’
2
General Statutes § 53a-110a provides: ‘‘(a) A person is guilty of simple
trespass when, knowing that such person is not licensed or privileged to
do so, such person enters or remains in or on any premises without intent
to harm any property.
‘‘(b) Simple trespass is an infraction.’’
3
On a prior occasion, while off duty, Salati also had observed the defendant
on mall property. After seeing him approach a woman asking for money
in the mall parking lot near Target, Salati told him he should not be on
the property.
4
Although not entirely clear from the record, it appears that an earlier
request to charge was reviewed by the court on September 14, 2016, but
not filed with the clerk. After the court described it as ‘‘a little confusing
to the jury,’’ the defendant offered to submit a revised request and did so
the next morning.
5
See State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980) (‘‘[a]
defendant is entitled to an instruction on a lesser offense if, and only if, the
following conditions are met: (1) an appropriate instruction is requested by
either the state or the defendant; (2) it is not possible to commit the greater
offense, in the manner described in the information or bill of particulars,
without having first committed the lesser; (3) there is some evidence, intro-
duced by either the state or the defendant, or by a combination of their
proofs, which justifies conviction of the lesser offense; and (4) the proof
on the element or elements which differentiate the lesser offense from the
offense charged is sufficiently in dispute to permit the jury consistently to
find the defendant innocent of the greater offense but guilty of the lesser’’
[footnote omitted]).
6
The court suggested that, rather than leave the jury waiting, it would
proceed with closing arguments before taking a recess to hear oral argument
on the request to charge and render a decision on that request. The court
asked defense counsel whether he was comfortable with that procedure,
and he responded that he was.
7
The defendant in State v. Steinmann, supra, 20 Conn. App. 606, argued
that his prosecution for simple trespass violated his right to equal protection
of the law because ‘‘the various trespass statutes create two different classes
of trespasser, criminal trespassers and simple trespassers, but only the latter
group is denied affirmative defenses and the right to a jury trial.’’ Rejecting
the contention that separate classes of trespassers are statutorily created,
the Steinmann court stated: ‘‘In enacting §§ 53a-107 through 53a-110a, the
legislature has defined four degrees of trespass with distinguishably different
essential elements. For example, simple trespass is not a lesser included
offense of any of the three degrees of criminal trespass. State v. Mention,
supra. The statutes therefore define separate violations rather than separate
classes of trespasser.’’ Id., 607.
The court in State v. Mention, supra, 12 Conn. App. 261, however,
addressed a different element in the previous version of the simple trespass
statute, ‘‘enter[ing] the property as a knowing trespasser.’’
8
We need not reach, and express no opinion on, whether infractions
generally may be submitted to juries as lesser included offenses of crimes.
See State v. Marsha P., 126 Conn. App. 497, 506 n.6, 11 A.3d 1164 (2011)
(noting that ‘‘the question of whether in general an infraction may be consid-
ered a lesser included offense has not been definitively answered in this juris-
diction’’).
9
We also find persuasive the defendant’s argument that ‘‘forcing the state
to prove the lack of intent restricts the state’s ability to charge a suspect
with simple trespass when there is no evidence of what the defendant’s
motive was, even if the suspect had not harmed the property. On the other
hand, if the phrase is not an element it would allow the prosecutor to apply
the charge to very minor trespasses where the accused, without creating
mischief or lasting harm, knows he or she is not allowed to be there. It
would provide the state the option in appropriate cases to hold the trespasser
accountable while avoiding the time and expense of a jury trial.’’
10
We note that the defendant does not claim on appeal that there was
insufficient evidence to support his conviction.
11
The document further provides, under the heading of ‘‘Reason to sus-
pend:’’ ‘‘1. Only those individuals who have committed a crime at Shopping
Center will be considered for banning and as in compliance with local, state
and federal ordinances. 2. The Director of Security, Assistant Director of
Security or Security Supervisor can only temporarily ban suspects for the
remainder of the business day. 3. After a temporary ban by security, on the
next business day, the Director of Security must provide documentation
supporting the banning to the General Manager of the Shopping Center. 4.
The Center’s General Manager will make a decision on the length of time
the ban will stay in [e]ffect; this will be after completing an investigation
of the violation. (Based on the guidelines below) The General Manager will
send a certified letter to the banned subject with the status of his/her banning.
5. The General Manager will provide a copy of the banning documentation
to the Director of Security, the Director of Security will input the information
of the ban into CASE Global. 6. When a Security Officer observes a banned
individual on the Shopping Center’s property, the officer will notify his/her
supervisor; only the supervisor will approach the individual and confirm
his/he[r] identity as being the banned individual. The Security supervisor
will politely ask the banned subject to leave the center’s property. 7. If a
banned subject refuses to leave the center’s property, the Security Supervisor
will retrieve all documentation of the banned subject, Security will contact
the local police department, and have him/her arrested for trespassing.’’
12
Castillo also testified that he was permitted to issue a one year ban.
13
Although there was evidence of mall policies posted at the entrance to
the mall building, none of the witnesses testified that they had ever seen the
defendant inside the mall. He was always observed in one of the parking lots.
14
The court explained the difference between the applicable statutes as
follows: ‘‘While ‘legal’ impairment is conclusively established where a per-
son’s blood alcohol percentage falls between .07 and .1 percent, the version
of General Statutes § 14–227a (d) (4) in effect when this offense was commit-
ted did not create a similar presumption of guilt, based on blood alcohol
percentage, with respect to the crime of operating a motor vehicle while
under the influence of intoxicating liquor as defined in General Statutes
§ 14-227a (a). The former § 14-227a (d) (4) provided that a blood alcohol
level of ‘ten-hundredths of one per cent or more . . . shall be prima facie
evidence that the defendant was under the influence of intoxicating liquor
within the meaning of this section.’ That section thus created only a rebutta-
ble presumption that a person was ‘under the influence of intoxicating liquor’
where his or her blood alcohol level was found to equal or exceed .1 percent.
While evidence of such an alcohol level was sufficient to establish the state’s
prima facie case, the defendant was formerly allowed to introduce evidence
to show that, despite a blood alcohol level equal to or greater than .1 percent,
he or she had not been under the influence of intoxicating liquor at the
time of arrest. Thus, although in the present case the defendant’s blood
alcohol level was measured at .165 percent, the possibility that she was
merely impaired, and not under the influence, cannot be excluded as a matter
of law under the former General Statutes § 14-227a (d) (4).’’ (Emphasis in
original; footnote omitted.) State v. Hancich, supra, 200 Conn. 620–21.
15
As further support for his argument that he challenged the knowledge
element of criminal trespass in the first degree, the defendant references
his argument that ‘‘Salati was not totally credible because she was especially
preoccupied with ejecting the defendant from the property.’’ We fail to see
how any preoccupation on Salati’s part could affect a jury finding as to
whether the defendant knew that he was not privileged to enter or remain
on mall property.
16
See State v. LoSacco, 12 Conn. App. 172, 176, 529 A.2d 1348 (1987). In
LoSacco, this court concluded that there was insufficient evidence to sustain
the defendant’s conviction for criminal trespass in the first degree on the
basis that the state had failed to prove that the defendant had been ‘‘ordered
personally by the owner of the premises, or other authorized person, not
to enter the building.’’ Id. Although a tenant of the building previously had
personally communicated to the defendant an order not to enter the building,
there was no evidence that the building superintendent or any other agent
of the owner had conferred authority on the tenant to order the defendant
not to enter the public lobby of the apartment complex. Id., 177–78. The
court stated that although the jury could have concluded that the building
superintendent had conferred such authority upon a police officer who
responded to a previous incident involving the defendant, that officer did
not testify, and the defendant denied that the officer issued an order to him.
Thus, there was ‘‘no evidence of the words spoken’’ between the officer
and the defendant. Id., 178.
Moreover, although the jury could have found that the police officer who
responded to the incident for which the defendant was charged ordered
the defendant not to enter the building, ‘‘[t]he mere fact that he is a police
officer does not, however, under these circumstances, authorize him to
[issue such an order].’’ Id. The officer testified that he had not spoken
to the building superintendent, and, therefore, could not have obtained
authorization directly from him. ‘‘While [the superintendent] could have
authorized the police department to issue the order, thus transferring his
authority to the officer dispatched, there was no evidence that [he] ever
did so.’’ Id. Thus, the state had failed to prove that the person issuing the
order was authorized. Id., 179.
In State v. Marsala, 116 Conn. App. 580, 586, 976 A.2d 46, cert. denied,
293 Conn. 934, 981 A.2d 1077 (2009), this court held that there was sufficient
evidence from which the jury could conclude that a Trumbull Shopping
Park security guard had authority to ban the defendant from the mall.
The court noted the testimony of the mall’s operations manager that he
considered the security guards to be his agents. The court concluded that
evidence supported the jury’s finding that the banning guidelines, which
provided in part that security could only ban individuals for the remainder
of the business day, were suggestions rather than mandatory procedures
that security guards must follow. Id., 584–86. The court also stated that it
was reasonable for the jury to infer that the guard had implied authority to
act, in that he was acting in the operations manager’s best interest by
ordering the defendant to leave the mall in response to patrons’ complaints.
Id., 587.