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State v. Jarmon

Appellate Court of Connecticut

January 14, 2020


         Argued September 16, 2019.

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[Copyrighted Material Omitted]

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          Appeal from the Superior Court in the judicial district of Waterbury Cremins, J.


          Alice Osedach, assistant public defender, for the appellant (defendant).

          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 dissenting.


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         [195 Conn.App. 264] ALVORD, J.

         The 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.

          The 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 Infanti's house.[1]

         [195 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." [2] 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.

          While 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

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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.

          The 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.[3] This appeal followed.


          The 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 state.

          We 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 light most

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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.

          As in 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.[4] 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 " training grounds."

          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

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(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).

          The 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. ...

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