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State v. Osman

Court of Appeals of Connecticut

April 24, 1990

STATE of Connecticut
v.
Antonio OSMAN.

Argued Sept. 21, 1989.

Page 744

Laura P. Gordon and Dana E. Shaw, Certified Legal Interns, with whom were Timothy H. Everett, Hartford, and, on the brief, Michael R. Sheldon, Canton, and Todd D. Fernow, Hartford, for appellant (defendant).

Mitchell S. Brody, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Warren Maxwell, Asst. State's Atty., for appellee (state).

Before SPALLONE, DALY and BERDON, JJ.

[21 Conn.App. 300] DALY, Judge.

On trial to a jury, the defendant was convicted of the crimes of robbery in the first degree in violation of General Statutes § 53a-134(a)(3), and of conspiracy to commit

Page 745

robbery in the first degree in violation [21 Conn.App. 301] of General Statutes §§ 53a-48 and 53a-134(a)(3). He appeals from the trial court's refusal to set aside the jury verdict and render judgment of acquittal on both counts. His appeal is based on two alternative claims: That the evidence was insufficient to identify him as a participant in the robbery; and that the pellet gun used in the robbery was not a dangerous instrument as defined by General Statutes § 53a-3(7).

The jury could reasonably have found the following facts, among others. On the night of May 11, 1986, two masked males robbed a convenience store in Manchester. The first robber, wearing a clown mask and carrying a pellet gun, leaped over the cashier's counter and ordered the store clerk to open the cash register and the safe. The second robber, wearing a red scarf over his face and carrying a tire iron, approached the store clerk's husband and ordered him to lie facedown on the floor. The robbers took approximately $100. The clerk and her husband were not injured.

The store clerk and her husband provided the jury with profiles of the robbers through their testimony at trial. The first robber was between 5'6" and 5'8"' tall and slight of build. The second robber was about two inches taller than the first. The first robber wore a clown mask that was bald on top with red hair sticking out on the sides. He also wore grey sweat pants. The pellet pistol he carried was black with a brown handle and a screw at the bottom of the handle.

A police investigation linked the defendant to the robbery. The defendant and a close friend lived in the same neighborhood, approximately two miles from the convenience store that was robbed. The defendant is approximately two inches shorter than his friend, who is nearly six feet tall. The defendant often wore grey sweat pants. The defendant had a pellet pistol similar [21 Conn.App. 302] to the one used in the robbery, which he turned over to the police Before his arrest.

At trial, the state's witnesses produced testimony that further linked the defendant to the robbery. The mother of the defendant's friend testified that, about one month Before the robbery, she discovered a pellet pistol in her apartment and, after her son told her that the pistol belonged to the defendant, she ordered her son to return it. She also testified that her son brought home an expensive stereo, leather jacket and leather sneakers and seemed to have money although he was unemployed. Other witnesses testified that the defendant possessed a pellet pistol and a Halloween costume prior to the robbery. Also, the defendant and his friend were heard asking for money on the day of the robbery.

I

The defendant first claims that the state's evidence was insufficient to identify him as a participant in the robbery. Among the essential elements of the crimes charged, which the state had the burden of proving beyond a reasonable doubt at trial, is the identification of the defendant as the first robber. State v. Jackson, 176 Conn. 257, 258, 407 A.2d 948 (1978).

Our standard of review is well settled when the sufficiency of the state's evidence is challenged after a conviction. We first construe the evidence in the light most favorable to sustaining the verdict. On the basis of this view of the evidence, we then determine whether the jury could reasonably have found guilt beyond a reasonable doubt. State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985).

Our role is to determine whether the jury could have logically reached its conclusion from the facts shown. The jury must find guilt beyond a reasonable doubt by using the evidence to exclude every reasonable hypothesis [21 Conn.App. 303] of the defendant's innocence, but it need not exclude every possible supposition of innocence no matter how implausible. State v. Foord, 142 Conn. 285, 295, 113 A.2d 591 (1955). The jury may draw reasonable inferences from the proven facts, but must not resort to speculation. State v. Gaynor, 182 Conn. 501, 503, 438 A.2d 749 (1980).

Page 746

If we find that there is sufficient evidence to enable the jury to find guilt beyond a reasonable doubt without resorting to speculation, the conviction must stand. We must not invade the province of the jury by weighing the evidence or by resolving questions of the credibility of witnesses. State v. Cobbs, 203 Conn. 4, 6-7, 522 A.2d 1229 (1987). "We do not sit as a thirteenth juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record." State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S.Ct. 1455, 79 L.Ed.2d 772 (1984).

In the case Before us, it is of no moment that the eyewitnesses were unable to identify the defendant as a participant in the robbery. The state's case was necessarily based on circumstantial evidence because the robbers wore masks. There is no difference in the degree of the probative force of direct evidence versus circumstantial evidence. Id. However, because "the force and effect of circumstantial facts usually, and almost necessarily, depend upon their connection with each other"; Moore v. United States, 150 U.S. 57, 61, 14 S.Ct. 26, 37 L.Ed. 996 (1893); we recognize that "[i]t is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence." State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984).

The cumulative impact of the evidence in this case was sufficient to enable the jury to conclude beyond [21 Conn.App. 304] a reasonable doubt that the defendant participated in the robbery. The defendant and his friend fit the description of the robbers. They lived within two miles of the crime scene. The mother of the defendant's friend gave testimony that strongly suggested that the two were involved in illegal activity. The defendant was in possession of a pellet pistol similar to the one the store clerk and her husband described. He also possessed some sort of Halloween costume with red hair on it, similar to the red hair on the clown mask the first robber wore. Finally, the defendant and his friend tried to borrow money on the day of the robbery.

The fact that witnesses gave inconsistent descriptions of the robber's mask and the defendant's costume does not mean that the evidence in this case was insufficient. The jury may reasonably overlook inaccuracies in testimony that are within the range of human error. State v. Cates, 202 Conn. 615, 628 n. 4, 522 A.2d 788 (1987). "Whether there seems to be contradiction between different witnesses or confusion in the testimony, it is precisely this type of factual conflict that Anglo-American jurisprudence has traditionally entrusted to the jury." State v. Gaynor, supra, 182 Conn. at 504, 438 A.2d 749; State v. Moore, 3 Conn.App. 503, 504, 489 A.2d 1069 (1985); State v. Nelson, 38 Conn.Sup. 374, 376, 448 A.2d 219 (1982). The store clerk and her husband testified that the robber wore a clown mask, bald on top with red hair on the sides. Another witness stated that she saw the defendant at a party one month Before the robbery with a costume, which she described as an old man's hat with red hair sticking out. Given that each description contained the distinct feature of red hair, the jury could reasonably have overlooked other inconsistent aspects of the descriptions.

Viewing the evidence in the light most favorable to sustaining the verdict, we conclude that there was sufficient[21 Conn.App. 305] evidence for the jury to conclude beyond a reasonable doubt that the defendant participated in the robbery.

II

The defendant's second claim is that the court erred in denying his motion for judgment of acquittal because the evidence was insufficient to prove that the pellet gun used in the robbery was a dangerous instrument, as defined in General Statutes § 53a-3(7). [1] This claim relates only to the

Page 747

defendant's conviction on the first count of first degree robbery in violation of General Statutes § 53a-134(a)(3). In denying the defendant's motion for judgment of acquittal on the first count, the trial court reasoned that, although the state did not prove that the pellet pistol was loaded at the time of the robbery, the conviction could be sustained on the ground that the pellet pistol was a dangerous instrument because it could have been used as a bludgeon. This reasoning was erroneous, however, because all of the evidence adduced at trial showed that the defendant did not threaten to bludgeon the victims, although he did threaten to shoot them.

Because there was no evidence that the defendant threatened to use the pistol as a bludgeon, the verdict on the first count can be sustained only on the assumption[21 Conn.App. 306] that an unloaded pellet pistol is a dangerous instrument under ยง 53a-134(a)(3). In this regard, it is important to understand the origin of the distinction made in the penal code between deadly weapons and dangerous instruments. Under prior law, weapons were distinguished based on whether they were designed to do violence. A weapon designed for the sole purpose of doing violence was considered deadly per se (by or through itself). The law recognized that ordinary objects, not designed or manufactured for violence, could also be deadly, depending on the actual manner in ...


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