State v. Preston

728 A.2d 1087, 248 Conn. 472, 1999 Conn. LEXIS 123
CourtSupreme Court of Connecticut
DecidedApril 27, 1999
DocketSC 15814
StatusPublished
Cited by12 cases

This text of 728 A.2d 1087 (State v. Preston) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Preston, 728 A.2d 1087, 248 Conn. 472, 1999 Conn. LEXIS 123 (Colo. 1999).

Opinions

Opinion

CALLAHAN, C. J.

The defendant, John Preston, was charged in a substitute information with robbery in the first degree in violation of General Statutes § 53a-134.1 Following a jury trial, the defendant was convicted of the lesser included offense of robbery in the third degree in violation of General Statutes § 53a-136. 2 Thereafter, he was sentenced to a term of imprisonment of five years.

The defendant subsequently appealed to the Appellate Court claiming, inter alia, that the trial court had failed to instruct the jury on the lesser included offense of larceny in the sixth degree as defined by General Statutes § 53a-125b.3 The Appellate Court concluded [474]*474that “the issue of force was sufficiently in dispute to require the trial court to instruct on the lesser included offense of larceny in the sixth degree,” reversed the defendant’s conviction and ordered a new trial. State v. Preston, 46 Conn. App. 778, 785, 700 A.2d 1190 (1997). We granted certification limited to the following issue: “Did the Appellate Court properly conclude that, under the evidence in this case, the third and fourth prongs of State v. Whistnant, 179 Conn. 576, 588 [427 A.2d 414] (1980), were satisfied, in that the trial court was required to give a charge on the lesser included offense of larceny in the sixth degree?” State v. Preston, 243 Conn. 946, 704 A.2d 800 (1997).

The details of the incident that led to the defendant’s conviction are set forth in the opinion of the Appellate Court; State v. Preston, supra, 46 Conn. App. 779-80; and may be summarized as follows. On March 19,1994, the defendant entered Milk Plus, a convenience store located in Fairfield. A customer of the store noticed the defendant conceal several packs of cigarettes under his shirt. The customer alerted the cashier, Karem Sha-ham, to the defendant’s actions, at which point Shaham also observed the defendant’s conduct. When the defendant then attempted to leave the store without paying [475]*475for the cigarettes, Shaham jumped over the counter and attempted to detain the defendant. A struggle ensued, during which Shaham ripped the defendant’s shirt, and several packs of cigarettes fell to the floor. When he tore the defendant’s shirt, Shaham noticed that the defendant also had three bottles of liquor concealed on his person. Suspecting that the liquor had been taken from an affiliated, neighboring store, Grasmere Liquor Store,4 Shaham seized one of the bottles and put it on the counter. Id.

The struggle between Shaham and the defendant continued into the parking lot. In the course of the struggle, Shaham attempted to recover another liquor bottle from the defendant. The defendant, however, wrested the bottle from Shaham and held it over Shaham’s head as if to strike him. The defendant then escaped into a car that was waiting for him in the parking lot. Thereafter, Shaham entered Grasmere Liquor Store and confirmed that three bottles of liquor, identical to those he had observed in the defendant’s possession, were missing from the liquor store.5 Id., 780.

At trial, the defendant’s primary theory of defense was that he had not been at Milk Plus when the crime was committed and, thus, was not the perpetrator of the crime. Nevertheless, he requested that the court instruct the jury on the lesser included crimes of robbery in the third degree and larceny in the sixth degree. [476]*476In support of his contention that he was entitled to an instruction on larceny in the sixth degree, the defendant, in his request to charge, maintained for the first time that the jury reasonably could find that “no force was used and that no robbery took place but that items valued less than $100 were taken.” The trial court granted the defendant’s request with respect to robbery in the third degree but denied the defendant’s request for an instruction on larceny in the sixth degree.

The Appellate Court, however, concluded that the evidence entitled the defendant to an instruction on larceny and, therefore, reversed the trial court’s decision. Id., 785. In this appeal, the state maintains that the Appellate Court improperly reversed the trial court’s decision not to charge on larceny because there was insufficient controverted evidence to support the defendant’s request for that charge. We agree with the state.

We previously have articulated a four-pronged test for determining whether a defendant is entitled to an instruction on a lesser included offense. State v. Whistnant, supra, 179 Conn. 588. “A defendant is entitled to an instruction on a lesser offense if, and only if . . . (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 differentiate 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 quotation marks omitted.) State v. Manley, 195 Conn. 567, 574, 489 A.2d 1024 (1985); State v. Whistnant, supra, 588.

[477]*477“In considering whether the defendant has satisfied the requirements set forth in State v. Whistnant, supra, 179 Conn. 588, we view the evidence in the light most favorable to the defendant’s request for a charge on the lesser included offense.” (Internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 260-61, 681 A.2d 922 (1996). “[T]he jury’s role as fact-finder is so central to our jurisprudence that, in close cases, the trial court should generally opt in favor of giving an instruction on a lesser included offense, if it is requested.” (Internal quotation marks omitted.) State v. Rasmussen, 225 Conn. 55, 68, 621 A.2d 728 (1993). “On appeal, an appellate court must reverse a trial court’s failure to give the requested instruction if we cannot as a matter of law exclude [the] possibility that the defendant is guilty only of the lesser offense.” (Internal quotation marks omitted.) State v. Arena, 235 Conn. 67, 74, 663 A.2d 972 (1995). “Otherwise the defendant would lose the right to have the jury pass upon every factual issue fairly presented by the evidence.” (Internal quotation marks omitted.) State v. Manley, supra, 195 Conn. 575; State v. Smith, 185 Conn. 63, 78, 441 A.2d 84 (1981).

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Bluebook (online)
728 A.2d 1087, 248 Conn. 472, 1999 Conn. LEXIS 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-preston-conn-1999.