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State v. Dunbar

Appellate Court of Connecticut

April 26, 2016

STATE OF CONNECTICUT
v.
LONNIE DUNBAR

         Argued February 2, 2016

          Information charging the defendant with the infraction of operating a motor vehicle on a highway while using a hand-held mobile telephone, brought to the Superior Court in the judicial district of Tolland and tried to court, Shah, J.; judgment of guilty, from which the defendant appealed to this court.

          Reversed; judgment directed.

          SYLLABUS

         Convicted, after a trial to the court, of the infraction of operating a motor vehicle on a highway while using a hand-held mobile telephone, the defendant appealed to this court. The trial court found the defendant guilty of violating the subject statute (§ 14-296aa) on the basis of a state police trooper's testimony that the trooper had observed the defendant driving a motor vehicle on a highway while holding his cell phone in his right hand in the center of the vehicle, at approximately the height of the steering wheel. At the time the defendant was stopped, the trooper observed that he was wearing a microphone from a Walkman-like device on his head, and he stated that he was answering his phone.

         Held that the trial court improperly found the defendant guilty under the statute, as the state failed to provide sufficient evidence to prove beyond a reasonable doubt that the defendant was engaged in a call at the time that the trooper had observed him holding his cell phone: although the court could have inferred from the trooper's testimony that the defendant was holding a cell phone in his hand while he was operating a motor vehicle, the state presented no evidence as to the length of the defendant's arm, the type of phone the defendant was holding, the phone's speaker features, what volume the speaker features were set to, or whether the defendant was holding the phone in a way that suggested that he was using it to engage in a call; accordingly, there was no evidence from which the court reasonably could have inferred that the phone was being held close enough to the defendant's ear to permit him to hear telecommunications transmitted over it, and absent such proof, the statutory presumption that the defendant was engaged in a call was rebutted, and without that presumption, the only evidence regarding how the defendant had been using the cell phone was his statements to the trooper, all of which were inconsistent with the court's finding of guilty.

         Lonnie Dunbar, self-represented, the appellant (defendant).

         Jacob L. McChesney, special deputy assistant state's attorney, with whom, on the brief, were John R. Whalen, supervisory assistant state's attorney, and David Cordone, special deputy assistant state's attorney, for the appellee (state).

         Sheldon, Keller and Mullins, Js. SHELDON, J. In this opinion the other judges concurred.

          OPINION

         SHELDON, J.

          [165 Conn.App. 95] The defendant, Lonnie Dunbar, appeals from his judgment of conviction, rendered after a trial to the court,[1] on the charge of operating a motor vehicle upon a highway while using a hand-held mobile telephone in alleged violation of General Statutes § 14-296aa (b).[2] On appeal, the defendant claims that the trial court improperly found him guilty under that statute. We agree with the defendant, and accordingly we reverse the judgment of the trial court and remand the case with direction to render a judgment of acquittal.

         At trial, the state presented the testimony of Trooper Josh McElroy of the Connecticut State Police.[3] McElroy testified that on the morning of April 19, 2014, while he was on traffic enforcement duty observing passing traffic on Route 66 in Columbia from an elevated parking lot, he saw the defendant drive by in a gray car while holding a cell phone in his right hand, " right around the steering wheel--or I mean the steering wheel height in the center of, the center of the car." Upon making that observation, McElroy pulled out from the parking lot, activated the lights of his cruiser, and pulled the defendant's vehicle over. When McElroy stopped the defendant, the defendant told him that he was " just answering" his cell phone. McElroy observed that " [h]e had some type of microphone. It looked like from like a Walkman almost on his head. . . . He said that's what he used to talk on the phone." McElroy [165 Conn.App. 96] explained to the defendant that he had been cited for an infraction because " [y]ou were using your cell phone while you were driving."

         Based upon the foregoing evidence, the trial court concluded: " [T]he state has established beyond a reasonable doubt that the defendant, on April 19, 2014, was using a hand-held device while operating a motor vehicle. . . . Accordingly, the court finds the defendant guilty of violating . . . § 14-296aa as a second time offender." [4] The court imposed a fine of $250 plus fees and costs. This appeal followed.

         On appeal, the defendant claims that the evidence was insufficient to sustain the court's finding of guilt because the state failed to prove beyond a reasonable doubt that he was engaged in a call, as required to prove a violation of § 14-296aa, instead of merely answering his cell ...


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