September 16, 2019.
[Copyrighted Material Omitted]
from the Superior Court in the judicial district of Waterbury
Osedach, assistant public defender, for the appellant
Timothy J. Sugrue, assistant state's attorney, with whom,
on the brief, were Maureen Platt, state's attorney, and
Don E. Therkildsen, Jr., senior assistant state's
attorney, for the appellee (state).
Alvord, Prescott and Flynn, Js. ALVORD, J. In this opinion
PRESCOTT, J., concurred. FLYNN, J., concurring and
Conn.App. 264] ALVORD, J.
defendant, James Jarmon, appeals from the judgment of
conviction of home invasion in violation of General Statutes
§ 53a-100aa (a) (1), burglary in the first degree in
violation of General Statutes § 53a-101 (a) (3), robbery in
the first degree in violation of General Statutes § 53a-134
(a) (4), and three counts of stealing a firearm in violation
of General Statutes § 53a-212 (a). On appeal, the defendant
claims that (1) the state presented insufficient evidence to
prove beyond a reasonable doubt the operability of each
firearm the defendant stole, (2) the trial court erroneously
admitted into evidence a letter written by the then
incarcerated defendant that was intercepted by a correction
officer, and (3) the defendant's conviction of home
invasion and burglary in the first degree violated his
constitutional protection against double jeopardy. We affirm
the judgment of the trial court.
jury reasonably could have found the following facts. On
April 12, 2015, Nathaniel Garris attended a birthday party
for his nephew. At the party, Garris spoke on the phone with
the defendant, whom Garris knew all his life and whom, though
they were unrelated, Garris referred to as his "
cousin." It had been about four or five months since
Garris and the defendant had seen each other last, and the
defendant wanted to " chill" with Garris to "
catch up." The two met up that same day and went to Niko
Conn.App. 265] At Niko's home, the defendant and Garris
began playing video games in Niko's bedroom. At one
point, the defendant observed a case in Niko's bedroom
and asked if it contained a guitar, to which Garris responded
" no, that's a gun."  At another point, Garris
retrieved a knife out of Niko's bedside nightstand, which
also contained Niko's handgun. Thereafter, the defendant
participated in a few phone calls; the defendant left
Niko's bedroom to pick up each phone call.
the defendant and Garris were in Niko's bedroom, Kade was
in the kitchen using her laptop. An individual unknown to
Kade, later identified by the police as Brett Vaughn, "
peeked his head in the back door" and asked for the
defendant. Kade went to Niko's bedroom, told the
defendant that there was someone waiting for him at the back
door and returned to the kitchen. Once Kade arrived back in
the kitchen, Vaughn, who had entered the house, grabbed her
and put a gun to the back of her head. Meanwhile, back in
Niko's bedroom, Garris became upset with the defendant
after hearing Kade's message because he perceived that
the defendant had invited someone over without asking him.
Garris walked out to the kitchen to see who was there waiting
for the defendant and found Vaughn standing behind a seated
Kade with a gun pressed to her head. Garris, who only knew
Vaughn " from passing," pleaded with him to point
the gun at him rather than Kade, to which Vaughn responded
" [you're] beat, don't [195 Conn.App. 266] die
over something stupid." Vaughn then yelled " hurry
up." Christina heard the disturbance from her own
bedroom, came out to see its cause and, after observing the
scene, repeatedly told Vaughn to leave. The defendant had
remained in Niko's bedroom after Garris walked to the
kitchen and while this tumultuous scene unfolded. He then
emerged from Niko's bedroom with all four of Niko's
firearms in bags. The defendant and Vaughn proceeded to leave
out the back door, with Vaughn being the first one out. As
the defendant was exiting the back door, Garris jumped on his
back and was able to retrieve one of the bags, which
contained Niko's shotgun.
defendant was arrested on May 20, 2015, and charged in a
substitute information on September 29, 2016. On September
30, 2016, a jury returned guilty verdicts against the
defendant for home invasion, burglary in the first degree,
robbery in the first degree, and three counts of stealing a
firearm. On March 2, 2017, the court imposed on the defendant
a total effective sentence of ten years of incarceration,
followed by six years of special parole. This appeal
defendant first claims there was insufficient evidence to
support his conviction of the three counts of stealing a
firearm because no evidence was admitted that demonstrated
the operability of the stolen firearms. The defendant argues
that " [o]perability, especially when the guns were
never recovered and there is no evidence the gun was fired
during the incident, has never been proven with such scant
evidence." The [195 Conn.App. 267] state responds that
" it was reasonable to infer that [the guns] were
operable at the time that they were purchased" and that
" [t]he jury could reasonably have inferred that the
firearms remained operable approximately one year later when
they were stolen by the defendant." We agree with the
first set forth our standard of review. " In reviewing a
jury verdict that is challenged on the ground of insufficient
evidence, we employ a two part analysis. We first review the
evidence presented at trial, construing it in the light most
favorable to sustaining the facts expressly found by the
trial court or impliedly found by the jury. We then decide
whether, upon the facts thus established and the inferences
reasonably drawn therefrom, the trial court or the jury could
reasonably have concluded that the cumulative effect of the
evidence established the defendant's guilt beyond a
reasonable doubt. . . . The evidence must be construed in a
favorable to sustaining the jury's verdict. . . . In
reaching its verdict, the jury can draw reasonable and
logical inferences from the facts proven and from other
inferences drawn from the evidence presented. Our review is a
fact based inquiry limited to a determination of whether the
jury's inferences drawn were so unreasonable as to be
unjustifiable." (Citations omitted; internal quotation
marks omitted.) State v. Bradley, 39 Conn.App. 82,
90-91, 663 A.2d 1100 (1995), cert. denied, 236 Conn. 901, 670
A.2d 322 (1996).
Section 53a-212 (a) states that " [a] person is guilty
of stealing a firearm when, with intent to deprive another
person of such other person's firearm or to appropriate
the firearm to such person or a third party, such person
wrongfully takes, obtains or withholds a firearm, as defined
in subdivision (19) of section 53a-3." A "
[f]irearm" is defined as " any sawed-off shotgun,
machine gun, rifle, shotgun, pistol, revolver or other
weapon, whether loaded or unloaded from which a shot
may [195 Conn.App. 268] be discharged . . . ."
(Emphasis added.) General Statutes § 53a-3 (19). "
Operability of the [firearm is] an essential element of the
[crime] charged under General Statutes [§ 53a-212 (a)] . . .
." State v. Carpenter, 19 Conn.App. 48, 59, 562
A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989).
" The operability of a firearm can be proven either by
circumstantial or direct evidence." State v.
Bradley, supra, 39 Conn.App. 91.
Bradley, the issue before us is " whether the
jury could have drawn reasonable inferences from the evidence
to enable it to conclude, beyond a reasonable doubt, that the
gun that the defendant possessed was operable."
Id. The state points to the following evidence in
the record that would support a conclusion that the firearms
were operable. Niko lawfully bought his three stolen firearms
from sportsmen retailers between March 27, 2014, and June 27,
2014. Niko kept his guns confined to his
bedroom. The three long guns were in the open space of his
bedroom, but kept inside cases or bags and fastened with some
form of safety lock. The handgun was kept in Niko's
nightstand " in a locked case." With the exception
of Garris, who slept in Niko's bedroom, Niko "
[v]ery rarely let anybody in that room." If Niko was not
so diligent about keeping his firearms in his bedroom, his
mother would have put him " out of the house in like
point six seconds." As such, the firearms left
Niko's bedroom only when he took them to the "
defendant argues that this evidence is inadequate to prove
the operability of the firearms beyond a reasonable doubt. He
contends that his case is distinguishable from a number of
this court's past decisions in which operability was at
issue. See State v. Edwards, 100 Conn.App. 565,
575-76, 918 A.2d 1008[195 Conn.App. 269] (testimony of
witnesses describing gun used in robberies, which matched gun
found in defendant's flight path and ballistics testing
of which showed it was same gun fired in separate shooting
deemed sufficient for operability inference), cert. denied,
282 Conn. 928, 929, 926 A.2d 666, 667 (2007); State v.
Miles, 97 Conn.App. 236, 241, 903 A.2d 675 (2006)
(operability proven where victim saw defendant with small
silver handgun that matched gun introduced into evidence,
defendant was only person victim saw with gun, and victim
identified defendant as shooter in photographic lineup and at
trial on cross-examination); State v. Rogers, 50
Conn.App. 467, 469, 475, 718 A.2d 985
(front seat passenger displaying gun and fire coming from
passenger seat area sufficient evidence of operability),
cert. denied, 247 Conn. 942, 723 A.2d 319 (1998); State
v. Hopes, 26 Conn.App. 367, 376-77, 602 A.2d 23
(testimony that defendant pointed gun at witnesses inside
restaurant, within one minute followed witnesses outside
restaurant, then witnesses heard gunfire and " felt
something pass close by their heads" sufficient to prove
operability of defendant's gun), cert. denied, 221 Conn.
915, 603 A.2d 405 (1992); see also State v. Beavers,
99 Conn.App. 183, 190, 912 A.2d 1105 (police test of gun
sufficient evidence of operability), cert. denied, 281 Conn.
925, 918 A.2d 276 (2007); State v. Bradley, supra,
39 Conn.App. 91 (same); State v. Zayas, 3 Conn.App.
289, 299, 489 A.2d 380 (same), cert. denied, 195 Conn. 803,
491 A.2d 1104 (1985). The defendant's reliance on these
cases to demonstrate what evidence is minimally necessary to
prove operability is unpersuasive. Each of these cases
presents evidence sufficient to prove operability, but a
compilation of these cases do not define a minimum standard
of necessary evidence to establish operability.
[T]he line between permissible inference and impermissible
speculation is not always easy to discern. When [195
Conn.App. 270] we infer, we derive a conclusion from proven
facts because such considerations as experience, or history,
or science have demonstrated that there is a likely
correlation between those facts and the conclusion. If that
correlation is sufficiently compelling, the inference is
reasonable. But if the correlation between the facts and the
conclusion is slight, or if a different conclusion is more
closely correlated with the facts than the chosen conclusion,
the inference is less reasonable. At some point, the link
between the facts and the conclusion becomes so tenuous that
we call it speculation." (Internal quotation marks
omitted.) State v. Niemeyer, 258 Conn. 510, 518, 782
A.2d 658 (2001).
evidence presented in this case supports an inference of
operability because, from that evidence, the jury reasonably
could have concluded that the guns were operable. Niko stored
all of his firearms in his bedroom in cases or bags and with
safety locks on. He restricted access to his bedroom.
Niko's precautions evince an awareness that his firearms
were dangerous. It is reasonable to infer that operable
firearms would trigger such concern. Although a person might
take similar steps to secure inoperable firearms,
that possibility does little to negate the likelihood of
reasonable jurors relying on their common sense understanding
of firearms to infer that Niko's security measures
reflected that his firearms were operable. ...