Argued, March 17, 2015
Amended information charging the defendant with five counts of the crime of sexual assault in the first degree and one count each of the crimes of kidnapping in the first degree, attempt to commit murder, and assault in the first degree, brought to the Superior Court in the judicial district of New Haven and tried to the jury before Gold, J.; verdict and judgment of guilty, from which the defendant appealed to this court.
Pursuant to the attendant circumstances subdivision of the criminal attempt statute (§ 53a-49 [a]), a person is guilty of attempt to commit a crime if, acting with the mental state required for the commission of the crime, he intentionally engages in conduct that would constitute the crime if attendant circumstances were as he believes them to be.
Convicted of, inter alia, attempt to commit murder in connection with the sexual and physical assault of the victim, the defendant appealed, claiming that the trial court improperly had denied his motion for a judgment of acquittal. After repeatedly physically and sexually assaulting the victim in her vehicle, the defendant forced the victim to a remote wooded area, threatened to kill her and continued to physically assault her. The victim eventually stopped reacting to the defendant's repeated blows, seeking to convince him that she was dead. The defendant thereupon stopped the assault and abandoned the victim. After being apprehended, the defendant admitted to the police that he had tried to kill the victim and that, when he had left her, he thought she was dead. On appeal, the defendant specifically claimed that the attendant circumstances subdivision of § 53a-49 (a) (1), under which the state charged the defendant with attempt to commit murder, applies only to situations in which it is impossible for the actor to commit the intended crime due to a mistake of fact and that, because the evidence established that it was not impossible for the defendant to have killed the victim and that his actions simply fell short of causing her death, the state failed to establish his guilt under the attendant circumstances subdivision. Held that the attendant circumstances subdivision is not limited to situations in which it is impossible for a defendant to have committed the intended crime, and the state presented sufficient evidence to permit a reasonable jury to find the defendant guilty of attempt to commit murder under that subdivision of the attempt statute, the evidence having established that the defendant acted with the requisite intent to murder the victim and that he intentionally engaged in conduct that would have constituted murder if the attendant circumstances were as he believed them to be, namely, that the victim was actually dead rather than pretending to be dead; the commentary to the analogous criminal attempt provision in the Model Penal Code (§ 5.01 ), on which § 53a-49 (a) was based, indicated that the attendant circumstances provision applies not only to situations in which it is impossible for the defendant to complete the intended crime, but also to situations in which the defendant has done all that he believes is necessary to commit the intended crime but fails to do so because his actions were insufficient to complete the crime or because some intervening circumstance prevented him from completing the crime, that commentary was consistent with the broad purpose of § 53a-49 of penalizing an individual who has demonstrated that he poses a threat to society even though he does not succeed in completing the intended crime, and, thus, interpreting the attendant circumstances subdivision as applying beyond impossibility situations was consistent with that broad purpose.
State v. Gonzalez (222 Conn. 718, 609 A.2d 1003), to the extent that it held that the attendant circumstances subdivision of § 53a-49 (a) (1) is limited to impossibility situations, overruled, and State v. Cox (293 Conn. 234, 977 A.2d 614), to the extent that it relied on Gonzalez for that proposition, overruled.
Richard E. Condon, Jr., senior assistant public defender, for the appellant (defendant).
Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Stacey Haupt-Miranda, assistant state's attorney, for the appellee (state).
Rogers, C. J., and Palmer, Zarella, Eveleigh,
McDonald, Espinosa and Robinson, Js.
[317 Conn. 294] The present appeal requires us to define the scope of liability under our criminal attempt statute, General Statutes § 53a-49. Section 53a-49 (a) makes it a crime for an individual, acting with the intent required for the commission of the predicate crime, to intentionally engage in conduct that would constitute the crime if the attendant circumstances were as he believed them to be; General Statutes § 53a-49 (a) (1) (attendant circumstances subdivision); or to intentionally take a substantial step in a course of conduct planned to culminate in the commission of the crime. General Statutes § 53a-49 (a) (2) (substantial step subdivision). In the present case, the defendant, Jose Moreno-Hernandez, was charged with, inter alia, attempt to commit murder under only the attendant circumstances subdivision, and a jury found him guilty as charged. On appeal, the defendant claims that the trial court incorrectly denied his motion for a judgment of acquittal because the state failed to prove beyond a reasonable doubt that he had attempted to commit murder under the attendant circumstances subdivision. The defendant concedes that the jury would have found him guilty under the substantial step subdivision if he had been charged under that subdivision but claims that the attendant circumstances subdivision is simply inapplicable in the present case. We disagree and, accordingly, affirm the judgment of the trial court.
The jury reasonably could have found the following facts. In the early morning hours of March 27, 2009, the victim finished her shift at the Temple Grill, a restaurant [317 Conn. 295] in the city of New Haven, where she worked as a waitress. As she was leaving, the defendant, who worked at the restaurant as a dishwasher, asked her for a ride home, and the victim agreed. The defendant gave the victim directions to where he lived, but, after forty-five minutes of driving, the victim was lost and they still had not yet arrived at the defendant's home. The victim eventually pulled over, apologized, and asked the defendant to get out of her car. At that point, the
defendant began making sexual advances toward the victim, and, when she resisted, he struck her in the face. The defendant repeatedly sexually assaulted the victim inside the car and physically assaulted her when she resisted. The victim attempted to call 911 and escape multiple times, but the defendant stopped her each time.
After assaulting the victim inside her car, the defendant drove the car to a public park and forced the victim to a remote area in the woods. There, the defendant continued to sexually and physically assault the victim. At a certain point, the defendant told the victim that he was going to kill her, and he struck her with his fist and a tree branch, kicked her with his boots, and twisted her head and neck. The victim stopped reacting to the defendant's blows in an attempt to lead him to believe that she was dead. Finally, after the defendant stopped striking the victim and left, she ran from the park to a nearby house and called the police. The police apprehended the defendant within hours, and he confessed to physically and sexually assaulting the victim. The defendant told police that he had tried to kill the victim because he thought she would report the sexual assault and that, when he left the park, he thought that he had killed her.
The defendant was charged with five counts of first degree sexual assault [317 Conn. 296] in violation of General Statutes § 53a-70 (a) (1), one count of first degree kidnapping in violation of General Statutes § 53a-92 (a) (2) (A), one count of first degree assault in violation of General Statutes § 53a-59 (a) (1), and one count of attempt to commit murder in violation of General Statutes § § 53a-54a (a) and 53a-49 (a) (1). While the state was proceeding with its case against the defendant, the trial court held a charging conference with the parties at which it raised sua sponte the question of whether the state had presented sufficient evidence to permit a reasonable jury to find the defendant guilty of attempt to commit murder in light of the fact that the defendant was charged under the attendant circumstances subdivision and not the substantial step subdivision, as is far more common. That same day, the state moved to amend the long form information pursuant to Practice Book § 36-18 to charge the defendant with attempt to commit murder in violation of the substantial step subdivision instead of the attendant circumstances subdivision. The trial court denied the state's motion, reasoning that the state should not be allowed to amend the long form information when it would not have been aware of the potential deficiency if the court had not raised the issue sua sponte.
When the state rested its case, the defense rested without presenting any evidence and moved for a judgment of acquittal with respect to the attempt to commit murder charge, which the trial court denied. With respect to that charge, the trial court instructed the jury only on the attendant circumstances subdivision. The jury found the defendant guilty on all counts, and the trial court sentenced the defendant to a total effective term of eighty years incarceration. At the sentencing hearing, the trial court also denied the defendant's postconviction motion for a new trial with respect to the sexual assault, assault, and kidnapping charges, and his motion for judgment of acquittal notwithstanding the [317 Conn. 297] verdict with respect to the attempted murder charge. This appeal followed.
On appeal, the defendant claims that the attendant circumstances subdivision applies only to situations in which it is impossible for ...