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State v. Jahsim T.

Court of Appeals of Connecticut

May 17, 2016

STATE OF CONNECTICUT
v.
JAHSIM T. [*]

          Argued January 5, 2016

         Appeal from Superior Court, judicial district of Fairfield, Cradle, J.

          Pamela S. Nagy, assistant public defender, with whom, on the brief, was Janice Wolf, senior assistant public defender, for the appellant (defendant).

          Linda F. Currie-Zeffiro, assistant state’s attorney, with whom, on the brief, was John C. Smriga, state’s attorney, for the appellee (state).

          Alvord, Mullins and Schaller, Js.

          OPINION

          MULLINS, J.

         Following a trial to the court, the defendant, Jahsim T., appeals from the judgment of the court adjudicating him a youthful offender for committing the crime of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48, 53a-134 (a) (4), and 54-76b. On appeal, the defendant claims that (1) the evidence was insufficient to support his adjudication for having committed conspiracy to commit robbery in the first degree, and (2) the court erred in denying his motion to dismiss based on the state’s failure to obtain and produce a relevant videotape that contained evidence used against him. We agree with the defendant’s first claim. Accordingly, we reverse the judgment of adjudication as a youthful offender and remand the case to the trial court with direction to render a judgment of acquittal.[1]

         The following facts, as found by the trial court, and procedural history are relevant to our analysis. On March 8, 2013, the minor defendant and four of his friends were inside a local market, near the defendant’s home, at approximately 10:30 p.m. The defendant wore a monitoring device on his ankle. The market had a video surveillance system that recorded the defendant’s presence and his interactions with the market employee, but it had no audio component. The defendant asked a market employee if he could use the telephone, but the employee said no. The defendant then used a cell phone to make a call. While on the phone, the defendant asked the employee for the address of the store, but the employee was unsure; the defendant then asked for the zip code, which the employee gave to him. The employee overheard portions of the defendant’s telephone conversation and thought he was ordering something. After completing the telephone call, the defendant and his friends left the market.

         At approximately 10:40 p.m., Pizza Hut in Bridgeport received a telephone call from someone purporting to be ‘‘Sarah.’’ Sarah placed a food order for one large pizza and two orders of chicken wings to be delivered to 319 East Avenue, which was just a few doors down from the market. At approximately 10:55 p.m., the deliveryman was dispatched to deliver the order.

         When the deliveryman arrived at 319 East Avenue, he saw a young man on the porch, who was wearing sweatpants. He asked the young man if he had ordered a pizza, and the young man responded affirmatively. The deliveryman then got out of his vehicle, with the items that had been ordered, and approached the porch. When he got to the porch, he was approached on the right by a masked man holding a shotgun, who told him to ‘‘hold it right there.’’ Then, another person approached the deliveryman from the left, and all three then attacked, punching, kicking, and hitting the deliveryman in the head with the shotgun. The attackers took money from the deliveryman’s pockets and then went through his vehicle, stealing his cell phone, global positioning system (GPS) holder and other things. After beating and robbing the deliveryman, the attackers ran down the street. There was no evidence that the defendant was present at the scene of the robbery.

         When investigating the robbery, members of the Bridgeport Police Department stopped at the market to ask questions. While there, they viewed the surveillance video, and the market employee pointed out the defendant and his friends on the video. Jose Morel, the owner of the market, recognized the defendant on the video as well.

         The officers then received a tip that people involved in the robbery were located in a multiunit garage near the market. The police went to this multiunit garage, and, when they opened the garage door, they heard people running. Police then discovered the delivery-man’s GPS holder, a chicken wing box, and the pizza warmer bag. The police apprehended an individual as he was running from the garage, and arrested him. They recovered a cell phone from him, which matched the phone number of the cell phone used to call Pizza Hut for the delivery to 319 East Avenue. The police recognized this person as one of the people on the surveillance video standing near the defendant at the market. There was no evidence that the defendant was present in this multiunit garage when the police arrived there.

         The defendant was arrested on March 9, 2013, and charged as a youthful offender with robbery in the first degree in violation of §§ 53a-134 (a) (4) and 54-76b, assault in the first degree in violation of General Statutes §§ 53a-59 (a) (4) and 54-76b, and conspiracy to commit robbery in the first degree in violation of §§ 53a-48, 53a-134 (a) (4), and 54-76b. Following the state’s case, the defendant filed a motion for a judgment of acquittal on all charges. The court, Cradle, J., granted the motion as to the robbery and assault charges, finding that there was no evidence that the defendant was present at the scene of the robbery, but denied it as to the charge of conspiracy to commit robbery in the first degree. The court later adjudicated the defendant a youthful offender for having committed conspiracy to commit robbery in the first degree, and it sentenced him to four years incarceration, suspended after two years, followed by three years probation. This appeal followed.

         On appeal, the state concedes, and we agree, that the evidence was insufficient to support the defendant’s adjudication as a youthful offender for committing conspiracy to commit robbery in the first degree because there was no evidence, direct or circumstantial, that the defendant had agreed or intended that his coconspirators would use a firearm during the robbery. Cf. State v.Pond, 138 Conn.App. 228, 234, 50 A.3d 950 (2012) (for conviction of conspiracy to commit robbery in second degree, state must prove that defendant specifically agreed and intended that what was represented to be deadly weapon or dangerous instrument would be used or displayed during robbery), aff’d, 315 Conn. 451, 108 A.3d 1083 (2015); see also State v.Pond, 315 Conn. 451, 489, ...


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