Argued
September 13, 2018
Procedural
History
Substitute
information charging the defendant with the crime of criminal
trespass in the first degree, brought to the Superior Court
in the judicial district of Ansonia-Milford, geographical
area number twenty-two, and tried to the jury before
Markle, J.; verdict and judgment of guilty, from
which the defendant appealed to this court.
Affirmed.
Laila
M.G. Haswell, for the appellant (defendant).
Timothy F. Costello, assistant state's attorney, with
whom, on the brief, were Kevin D. Lawlor, state's
attorney, Matthew R. Kalthoff, assistant state's
attorney, Laurie N. Feldman, special deputy assistant
state's attorney, and Brett R. Aiello, special deputy
assistant state's attorney, for the appellee (state).
Alvord, Moll and Eveleigh, Js.
OPINION
ALVORD, J.
The
defendant, Michael J. Marsala, appeals from the judgment of
conviction, rendered after a jury trial, of one count of
criminal trespass in the first degree in violation of General
Statutes § 53a-107 (a) (1).[1] On appeal, the defendant
claims that the trial court improperly declined to instruct
the jury on the infraction of simple trespass, General
Statutes § 53a-110a, [2]which the defendant claims is a lesser
included offense of criminal trespass in the first degree. We
affirm the judgment of the trial court.
The
jury reasonably could have found the following facts. The
Centennial Connecticut Post Mall (mall) is located at 1201
Boston Post Road in Milford (mall property). Currently owned
by Centennial Corporation (Centennial), the mall was
previously owned by Westfield Corporation (Westfield).
Westfield, and later Centennial, has employed Dan Kiley as
the mall's general manager. The mall contracts with
Professional Security Consultants for security services.
Professional Security Consultants employs Thomas Arnone as
security director at the mall, and Arnone reports directly to
Kiley. Wilfred Castillo, also an employee of Professional
Security Consultants, began working at the mall in November,
2014, and had received calls about the defendant on
approximately ten to fifteen occasions prior to November 28,
2015. In each call, the defendant was described as a man
carrying a red gas can and was present in one of the parking
lots at the mall. In response to the calls, Castillo would
find the defendant and tell him that panhandling is not
allowed on mall property and that he would have to leave.
During
the holiday season, from November through January, the mall
hires Milford police officers to support the mall security
staff and conduct traffic control at the mall's exterior
entrances and exits. The mall pays the city of Milford, which
pays the police officers' wages, to work what is
described as a ‘‘private duty job.'' On
November 27, 2015, Officer Joanna Salati of the Milford
Police Department was working for the mall on a private duty
job when she observed the defendant walking around on mall
property with his gas can.[3] She called for a security officer to
come out and confirmed with security that the defendant was
banned from the mall property. Salati told the defendant that
he had been advised several times before that he was banned
from the mall property, and she informed the defendant of the
property's boundaries. Salati told the defendant that he
would be arrested the next time he was found on mall
property. Salati saw the defendant leave the mall property
and reported the incident to the Milford Police Department,
where a report of the incident was generated.
The
next day, November 28, Salati was again working private duty
at the mall when her partner, Detective Steve Noss, also of
the Milford Police Department, told her that he had observed
the defendant on mall property near Sears. Salati, who was
working traffic enforcement at the intersection of Boston
Post Road and Cedarhurst Road at the time, called for
additional officers. She also told mall security to meet her
in the Sears parking lot and began walking in that direction,
where she observed the defendant approaching customers with
his red gas can. The defendant walked away from Salati as she
called his name. The defendant eventually stopped walking,
Salati arrested him, and he was transported by other officers
to the Milford Police Department. The defendant was charged
in a long form information with one count of criminal
trespass in the first degree in violation of § 53a-107
(a) (1). The defendant elected a jury trial, and evidence was
presented on September 14, 2016.
After
the close of evidence on September 14, 2016, the court held a
charge conference on the record. The court preliminarily
discussed the defendant's request to charge the jury on
the infraction of simple trespass as a lesser included
offense to criminal trespass in the first degree. Defense
counsel agreed to submit a revised proposed charge,
[4] and
the court also indicated that it would afford the state an
opportunity to brief its opposition to the defendant's
request. The court stated its intention to decide the issue
the following day.
The
next morning, defense counsel submitted to the trial court a
revised written request that the court charge the jury on the
infraction of simple trespass as a lesser included offense to
criminal trespass in the first degree. In the written
request, defense counsel asked that the court give the
following charge: ‘‘If you have unanimously found
the defendant not guilty of the crime of criminal trespass in
the first degree, you shall then consider the lesser offense
of simple trespass. Do not consider the lesser offense until
you have unanimously acquitted the defendant of the greater
offense.
‘‘A
person is guilty of simple trespass when, knowing that he is
not licensed or privileged to do so, he enters any premises
without intent to harm any property. For you to find the
defendant guilty of simple trespass, the state must prove the
following elements beyond a reasonable doubt: first that he
entered the premises. Premises is not defined in the law so
it has the common meaning. The second element is that he
entered knowing he was not licensed or privileged to do so.
To be licensed or privileged the defendant must have either
consent from the owner of the premises or other authorized
person or have some other right to be on the premises. A
person acts knowingly with respect to conduct when he is
aware that his conduct is of such nature or such
circumstances exist.''
The
state filed a memorandum in opposition to the defendant's
request to charge as to the infraction of simple trespass,
arguing that (1) the claim fails under the second prong of
the Whistnant test[5] and (2) an infraction should not
be submitted to a jury as a lesser included offense of a
crime.
The
court heard oral argument on the defendant's request to
charge after counsel gave closing arguments.[6]The court then
issued an oral decision denying the request to charge. The
court began its discussion by noting the absence of appellate
authority directly on point. With respect to the issue of
whether the jury should be permitted to decide the facts of a
case as it relates to an infraction, the court read State
v. Steinmann, 20 Conn.App. 599, 607, 569 A.2d 557, cert.
denied, 214 Conn. 806, 573 A.2d 319 (1990), in conjunction
with State v. Mention, 12 Conn.App. 258, 261, 530
A.2d 645, cert. denied, 205 Conn. 809, 532 A.2d 78 (1987),
[7] as
‘‘leaning against an infraction being a lesser
included offense.'' The court further found
persuasive the state's argument that the infraction of
simple trespass fails to satisfy the Whistnant test
because it contains an added element, specifically that the
defendant enter or remain on the premises
‘‘without intent to harm any property, ''
which is not required for a conviction of criminal trespass
in the first degree. See footnotes 1 and 2 of this opinion.
The court then instructed the jury, and the jury retired for
deliberations. The next day, the jury reached a verdict,
finding the defendant guilty of criminal trespass in the
first degree. On October 28, 2016, the defendant was
sentenced to one year incarceration, execution suspended
after four months, followed by two years conditional
discharge. This appeal followed.
On
appeal, the defendant claims that the court improperly
declined to instruct the jury on the infraction of simple
trespass as a lesser included offense of criminal trespass in
the first degree. Specifically, he argues that the infraction
of simple trespass satisfies all four prongs of the
Whistnant test. The state responds that the trial
court ‘‘correctly found that an infraction could
not be treated as a lesser included offense of a
crime.'' The state argues in the alternative that,
even if certain infractions could be submitted to a jury as
lesser included offenses of crimes, the infraction of
‘‘simple trespass contains an element that
criminal trespass in the first degree does not-the lack of
intent to harm property.'' Thus, the state argues
that the trial court correctly found that the infraction of
simple trespass fails to satisfy the second prong of
Whistnant. Although we conclude that the
defendant's claim fails the third and fourth prongs of
Whistnant, we also briefly address the
defendant's claim as to the second prong.[8]
We
first set forth our standard of review. ‘‘It is
well settled that [t]here is no fundamental constitutional
right to a jury instruction on every lesser included offense.
. . . [State v. Whistnant, 179 Conn. 576, 583, 427
A.2d 414 (1980)]. Rather, the right to such an instruction is
purely a matter of our common law. A defendant is entitled to
an instruction on a lesser [included] offense if, and only
if, the following conditions are met: (1) an appropriate
instruction is requested by either the state or the
defendant; (2) it is not possible to commit the greater
offense, in the manner described in the information or bill
of particulars without having first committed the lesser; (3)
there is some evidence, introduced by either the state or the
defendant, or by a combination of their proofs, which
justifies conviction of the lesser offense; and (4) the proof
on the element or elements which differentiates the lesser
offense from the offense charged is sufficiently in dispute
to permit the jury consistently to find the defendant
innocent of the greater offense but guilty of the
lesser.'' (Internal ...