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State v. Scott

Court of Appeals of Connecticut

January 23, 1990

STATE of Connecticut
Donald SCOTT.

Argued Oct. 18, 1989.

Page 1049

[20 Conn.App. 514] Leopold P. DeFusco, Sp. Public Defender, for appellant (defendant).

Donald A. Browne, State's Atty., with whom, on the brief, was Stephen J. Sedensky III, for appellee (state).


FOTI, Judge.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of the crimes of robbery in the third degree in violation of General Statutes § 53a-136 [1] and larceny in the second degree in violation of General Statutes §§ 53a-119 and 53a-123(a)(3). The defendant claims that the trial court erred (1) in instructing the jury concerning the elements of the robbery, and (2) in failing to give an adverse inference charge when the state did not call a witness. We find no error.

[20 Conn.App. 515] After hearing the testimony of three witnesses, the jury could reasonably have found the following facts. On August 6, 1987, at approximately 9:15 p.m., the victim exited the Stop & Shop supermarket in Fairfield with her ten year old daughter. As she was leaving the store, the victim was pushing a cart of groceries with both hands on the cart's handle and her pocketbook hanging from her wrist. Suddenly, she felt a sharp pull at her pocketbook. The tugging was strong enough to pull both the victim and her cart of groceries to the ground. The victim resisted the purse snatcher as long as she was able by crooking her wrist to retain possession of the purse. She was dragged along the pavement with sufficient force to cause two fractures in her left wrist, a bruise on her right thigh and abrasions on the front of

Page 1050

her knees and on the palm of her right hand. She finally released the bag to the assailant, a black man, who ran away with it. She did not get a good look at him.

Fearing for her mother's safety, the victim's ten year old daughter became hysterical during the purse snatch. She remained so distraught after the incident that she was unable to participate in the identification of her mother's assailant.

On the same date, moments Before the purse snatching, another shopper, P, had handed a shopping cart to a black man in front of the Stop & Shop. Just as P was about to enter the store, he heard a scream, turned and saw the man to whom he had just handed the cart struggling with the victim and finally obtaining her purse. P pursued the purse snatcher around the side of the building and watched him get into the passenger side of a small car. The driver and the purse snatcher immediately drove away. One week later, after viewing a photographic array at the Fairfield police station, P identified the defendant as the man he had seen steal the victim's pocketbook and flee.

[20 Conn.App. 516] D, a friend of the defendant's, drove him to the Fairfield Stop & Shop on the day of the incident between 9 and 10 p.m. in order for the defendant to obtain some money from a relative. D dropped the defendant off in front of the store and drove to the side of the building to wait for him. In a short time, the defendant returned to D's car with something under his shirt. D later noticed that the object under the defendant's shirt was a pocketbook.

The defendant first claims that the court erred in its jury instruction on the elements of the offense of robbery by including subdivision (2) of § 53a-133 [2] of the General Statutes in its definition of robbery. [3] He contends that the evidence offered by the state was sufficient only to establish guilt under subdivision (1) of that statute. In the alternative, the defendant argues that if the evidence presented was sufficient to support a finding that force was used to compel the victim to deliver up the purse, then the instruction was erroneous in that subdivisions (1) and (2) of the robbery statute are conceptually distinct and require a unanimity charge. We cannot agree with either claim.

The defendant first asserts that there was insufficient evidence presented at trial to prove the essential elements of robbery, that is, that the actor used or threatened "the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming[20 Conn.App. 517] resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner ... to deliver up the property...." General Statutes § 53a-133.

Our Supreme Court has stated that " '[w]here a person may have been convicted under more than one statutory alternative, the judgment cannot be supported unless the evidence was sufficient to establish guilt under each statutory provision which the trier may have relied upon.' " State v. John, 210 Conn. 652, 687-88, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S.Ct. 84, 107 L.Ed.2d 50 (1989); quoting State v. Marino, 190 Conn. 639, 650-51, 462 A.2d 1021 (1983). "This rule is based on the principle that jurors are presumed to follow the instructions given by the judge." State v. Williams, 202 Conn. 349, 363-64, 521 A.2d 150 (1987).

The defendant argues that the facts in the present case are ...

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