October 6, 2016
from Superior Court, judicial district of Hartford,
Ost Seifert, assigned counsel, for the appellant (defendant).
M. Smith-Rosario, senior assistant state's attorney, with
whom, on the brief, were Gail P. Hardy, state's attorney,
Vicki Melchiorri, supervisory assistant state's attorney,
David L. Zagaja, senior assistant state's attorney, and
Thomas R. Garcia, former senior assistant state's
attorney, for the appellee (state).
DiPentima, C. J., and Keller and Flynn, Js.
defendant, Toby Arthur Berthiaume, appeals from the judgment
of conviction, rendered after a jury trial, of burglary in
the first degree in violation of General Statutes §
53a-101 (a) (2). On appeal, the defendant claims (1) there
was insufficient evidence to convict him of burglary in the
first degree, and (2) even if there were sufficient evidence
to sustain his conviction, the trial court committed plain
error by failing to exclude evidence of an eyewitness
identification of the defendant. Unpersuaded by either claim,
we affirm the judgment of the trial court.
jury reasonably could have found the following facts. In
mid-2013, the victim, Simone LaPointe, was ninety-three years
old and resided at 126 Windsor Street in Enfield, her home
for over four decades. She suffered from dementia and short
term memory loss, and although she lived alone, was
accompanied by either a friend or one of her surviving eleven
children ‘‘most of the time.'' Typically,
the victim's friend stayed with her overnight, and her
children took turns visiting her throughout the day. Despite
this visitation schedule, there were gaps of time throughout
the day in which the victim was home alone. Because the
victim neither drove nor owned a car, her driveway would be
empty during these gap periods, thus indicating that she was
6, 2013, Marita Cunningham, one of the victim's
daughters, arrived at 126 Windsor Street around noon, and
departed, leaving the victim home alone, at approximately
12:50 p.m. When Cunningham left 126 Windsor Street, nothing
inside the residence looked out of order and the victim was
uninjured. About one hour later, Jessica Navarro-Gilmore,
while passing by in a motor vehicle, saw the defendant and
another white man ‘‘walking
suspiciously'' on a road near the victim's home
while carrying what appeared to be ‘‘a twenty
inch flat screen . . . TV or monitor . . . .'' The
two men were ‘‘walking quickly and looking over
their shoul-der[s] suspiciously.'' Drawing on her own
experience committing theft offenses, Navarro-Gilmore
immediately suspected that the two men had stolen something
from a home in the neighborhood. After doubling back to
get a better look at the men, Navarro-Gilmore called the
police at 1:53 p.m. and reported what she had seen.
approximately 3 p.m., the victim called Norma Shannon,
another of her daughters, and told Shannon that her knee was
bleeding. Shannon went to 126 Windsor Street in response to
the call, and upon entering, noticed that ‘‘the
house had been ransacked . . . .'' Various drawers
and cabinets inside the house had been left open, jewelry and
other items were lying on the victim's bed and dresser
‘‘as if they had been dumped there, ''
and the dining room chandelier was broken.
was blood on the floor of the dining room, and the phone line
in the living room, which was adjacent to the dining room,
had been cut. The victim's knee was bandaged, and she had
sustained a ‘‘mark on her nose, '' a
bruise on her face, and a chipped tooth. A search of the home
revealed that the victim's ring, which contained fourteen
birthstones, and her nineteen inch flat screen television,
had been stolen.
p.m., the defendant sold what was later determined to be the
victim's ring and television at the Money Shop, a pawn
shop and jewelry store located in Springfield, Massachusetts.
In order to make the sales, the defendant provided Jeffrey
Fiske, the owner of the pawn shop, with his identification
and had his photograph taken. The defendant also provided his
address, 116 Windsor Street, and telephone number. Fiske
identified the defendant as the person who received the sales
police showed Navarro-Gilmore a sequential photographic array
that did not include a photograph of the defendant, and she
did not identify anyone as one of the men she saw carrying
the television on May 6, 2013. After developing the defendant
as a suspect, Detective Brian Callaghan of the Enfield Police
Department searched the New England State Police Information
Network, a database wherein local pawn shops record their
daily transactions, which returned information on the Money
Shop. On June 11, 2013, Fiske provided Detective Callaghan
with sales slips, the defendant's photograph, and the
victim's television and ring.
defendant was arrested on July 3, 2013, and charged with
burglary in the first degree and several other
offenses. Two days later, the defendant's
booking photograph, along with an article referencing the
burglary, was published in the Enfield Patch, a local online
newspaper. While browsing online, Navarro-Gilmore saw the
defendant's photograph and immediately recognized him as
one of the men she saw carrying the television on May 6,
2013. Thereafter, Detective Callaghan contacted
Navarro-Gilmore to request that she view another photographic
array. Navarro-Gilmore indicated that she already had seen
the defendant's photograph in the Enfield Patch and
therefore could not fairly participate in an identification
April 7, 2014, following a trial, the jury found the
defendant guilty of burglary in the first degree. The court
imposed a total effective sentence of twenty years
incarceration. This appeal followed. Additional facts and
procedural history will beset forth where necessary to the
resolution of the defendant's claims.
defendant first claims that there was insufficient evidence
to convict him of burglary in the first degree. Specifically,
he argues that the state failed to adduce evidence from which
the jury reasonably could have concluded beyond a reasonable
doubt that he remained unlawfully inside the victim's
home with the intent to commit a crime therein, or that he
had knowingly or recklessly inflicted bodily injury on the
victim. Additionally, the defendant contends there was
insufficient evidence that he was the person who injured the
victim while remaining unlawfully inside her residence
because Navarro-Gilmore's testimony revealed the presence
of a second, unidentified white man who was seen on a nearby
street and could have injured the victim. We disagree with
following principles guide our resolution of the
defendant's sufficiency of the evidence claim.
‘‘Unlike Aristotelian and Thomistic logic, law
does not demand metaphysical certainty in its proofs. In law,
we recognize three principal proofs: beyond a reasonable
doubt, which is the very high burden in a criminal case;
clear and convincing evidence, required to prove fraud and
certain other claims, which equates to a very high
probability; and preponderance of the evidence, applied to
civil claims generally, which means it is more probable than
not. None of these varying proofs require absolute
certainty.'' (Footnote omitted.) Curran v.
Kroll, 118 Conn.App. 401, 408, 984 A.2d 763 (2009),
aff'd, 303 Conn. 845, 37 A.3d 700 (2012).
meet one's burden of proof, evidence is necessary. This
evidence comes in two forms, direct and circumstantial.
‘The basic distinction between direct and
circumstantial evidence is that in the former instance the
witnesses testify directly of their own knowledge as to the
main facts to be proved, while in the latter case proof is
given of facts and circumstances from which the jury may
infer other connected facts which reasonably follow,
according to common experience.' 29 Am. Jur. 2d 329,
Evidence § 313 (1994). ‘Proof of a fact by the use
of circumstantial evidence usually involves a two-step
process. A fact is first established by direct evidence,
which is ordinarily eyewitness or other direct testimony.
That direct evidence can serve as a basis from which the jury
infers another fact. Thus, the direct evidence may operate as
circumstantial evidence from which a fact is inferred by the
jury.' State v. Sullivan, 11 Conn.App. 80, 97,
525 A.2d 1353 (1987), citing State v. Rome, 64 Conn.
329, 334, 30 A. 57 (1894). ‘When the necessity to
resort to circumstantial evidence arises either from the
nature of the inquiry or the failure of direct proof,
considerable latitude is allowed in its reception.' 29
Am. Jur. 2d 331, Evidence § 315 (2008).
‘An inference is a factual conclusion that can
rationally be drawn from other facts. If fact A rationally
supports the conclusion that fact B is also true, then B may
be inferred from A. The process of drawing
inferences based on a rough assessment of probabilities is
what makes indirect or circumstantial evidence relevant at
trial. If the inference (fact B from fact A) is strong
enough, then fact A is relevant to prove fact B. Inferences
are by their nature permissive, not mandatory: although the
fact proved rationally supports the conclusion the offering
party hopes will be inferred, the fact finder is free to
accept or reject the inference.' . . . 1 C. Fish man,
Jones on Evidence (1992) § 4:1, pp. 299-300; see also D.
Faulkner & S. Graves, Connecticut Trial Evidence Notebook
(2d Ed. 2008 Rev.) I-14.'' (Emphasis in original.)
Curran v. Kroll, supra, 118 Conn.App. 409-10.
reviewing a sufficiency of the evidence claim, we apply a
two-part test. First, we construe the evidence in the light
most favorable to sustaining the verdict. Second, we
determine whether upon the facts so construed and the
inferences reasonably drawn therefrom the [trier of fact]
reasonably could have concluded that the cumulative force of
the evidence established guilt beyond a reasonable doubt. . .
. In evaluating evidence, the trier of fact is not required
to accept as dispositive those inferences that are consistent
with the defendant's innocence. . . . The trier may draw
whatever inferences from the evidence or facts established by
the evidence it deems to be reasonable and logical. . . .
This does not require that each subordinate conclusion
established by or inferred from the evidence, or even from
other inferences, be proved beyond a reasonable doubt . . .
because this court has held that a [trier's] factual
inferences that support a guilty verdict need only be
reasonable. . . .
we have often noted, proof beyond a reasonable doubt does not
mean proof beyond all possible doubt . . . nor does proof
beyond a reasonable doubt require acceptance of every
hypothesis of innocence posed by the defendant that, had it
been found credible by the trier, would have resulted in an
acquittal. . . . On appeal, we do not ask whether there is a
reasonable view of the evidence that would support a
reasonable hypothesis of innocence. We ask, instead, whether
there is a reasonable view of the evidence that supports the
[trier's] verdict of guilty. . . . Furthermore, [i]n
[our] process of review, it does not diminish the probative
force of the evidence that it consists, in whole or in part,
of evidence that is circumstantial rather than direct. . . .
It is not one fact, but the cumulative impact of a multitude
of facts which establishes guilt in a case involving
substantial circumstantial evidence.'' (Internal
quotation marks omitted.) State v. Butler, 296 Conn.
62, 76-77, 993 A.2d 970 (2010).
of a material fact by inference from circumstantial evidence
need not be so conclusive as to exclude every other
hypothesis. It is sufficient if the evidence produces in the
mind of the trier a reasonable belief in the probability of
the existence of the material fact. . . . Thus, in
determining whether the evidence supports a particular
inference, we ask whether that inference is so unreasonable
as to be unjustifiable. . . . In other words, an inference
need not be compelled by the evidence; rather, the evidence
need only be reasonably susceptible of such an inference.
Equally well established is our holding that a jury may draw
factual inferences on the basis of already inferred facts. .
. . Moreover, [i]n viewing evidence which could yield
contrary inferences, the jury is not barred from drawing
those inferences consistent with guilt and is not required to
draw only those inferences consistent with
innocence.'' (Citations omitted; internal quotation
marks omitted.) State v. Copas, 252 Conn. 318,
339-40, 746 A.2d 761 (2000).
of any claim of insufficiency of the evidence introduced to
prove a violation of a criminal statute must necessarily
begin with the skeletal requirements of what necessary
elements the charged statute requires to be proved.''
State v. Pommer, 110 Conn.App. 608, 613, 955 A.2d
637, cert. denied, 289 Conn. 951, 961 A.2d 418 (2008).
‘‘Once analysis is complete as to what the
particular statute requires to be proved, we then review the
evidence in light of those statutory requirements. Our review
standard is well settled.'' Id.
person is guilty of the crime of burglary in the first degree
when he ‘‘enters or remains unlawfully in a
building with intent to commit a crime therein and, in the
course of committing the offense, intentionally, knowingly or
recklessly inflicts or attempts to inflict bodily injury on
anyone . . . .'' General Statutes § 53a-101 (a)
present case, the defendant correctly points out the lack of
direct evidence-in the form of fingerprints, DNA or
eyewitness testimony-establishing his presence inside the
victim's home. Nevertheless, we conclude that the state
introduced sufficient circumstantial evidence upon which the
jury reasonably could have found not only that the defendant
was present in the victim's home, but also that each
element of the crime of burglary in the first degree had been
proven beyond a reasonable doubt. As an initial matter, we
note that the defendant was photographed selling the
victim's stolen ring and television at a pawn shop
shortly after the items were discovered to be stolen. From
that evidence, the jury reasonably could have inferred not
just that the defendant had received or was in possession of
the stolen items, as the defendant argues, but that he was
the person who stole them. See State v. Higgins, 201
Conn. 462, 473, 518 A.2d 631 (1986) (‘‘[t]he
possession of property recently stolen, if unexplained and
standing alone or without other facts pointing to a contrary
conclusion, [supports the] inference that the possessor stole