State v. Russell

588 A.2d 1376, 218 Conn. 273, 1991 Conn. LEXIS 94
CourtSupreme Court of Connecticut
DecidedApril 9, 1991
Docket14089
StatusPublished
Cited by19 cases

This text of 588 A.2d 1376 (State v. Russell) 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. Russell, 588 A.2d 1376, 218 Conn. 273, 1991 Conn. LEXIS 94 (Colo. 1991).

Opinion

Hull, J.

The defendant, Eugene Russell, was charged by substitute information with burglary in the [275]*275third degree; General Statutes § 53a-103; larceny in the fourth degree; General Statutes § 53a-125; and being a persistent larceny offender. General Statutes § SSa^O.1 During his trial by a jury, the defendant filed two motions for a judgment of acquittal, both of which were denied. The jury found the defendant guilty of burglary in the third degree and larceny in the fourth degree, and the defendant thereafter pleaded guilty to being a persistent larceny offender. The trial court imposed an effective sentence of ten years imprisonment execution suspended after seven years to be followed by three years of probation.2 The defendant appealed to the Appellate Court, which affirmed the judgment of the trial court. State v. Russell, 22 Conn. App. 440, 577 A.2d 1107 (1990). We subsequently granted the defendant’s petition for certification to [276]*276appeal to this court limited to the following issue: “Did the Appellate Court properly determine that a fenced-off section of a building otherwise open to the public constitutes a ‘building’ for purposes of Connecticut General Statutes § 53a-103?” State v. Russell, 216 Conn. 814, 580 A.2d 65 (1990). We reverse the judgment in part.

The jury could reasonably have found the following facts. On April 11, 1987, at approximately 5 a.m., the night manager of the Pathmark grocery store in East Haven noticed that several cartons of cigarettes appeared to be missing from a cigarette display located in the store’s “service area.” The service area is the portion of the store that, despite the fact that the store provides service 24 hours a day, is closed between the hours of 9 p.m. and 9 a.m., due to the presence of high value merchandise. During these hours, the service area is enclosed by a padlocked, metal folding gate that is eight feet in height.

Following his discovery, the manager, accompanied by the store detective, unlocked the gate and entered the service area. Investigation revealed that numerous cartons of cigarettes were missing. In addition, a brown wallet, containing the defendant’s driver’s license, was retrieved from the floor.

Outside the service area, the manager and the detective discovered that a child’s car seat had been removed from its box and placed on the floor and that the box was missing. A review of a videotape recording made by the store’s surveillance camera revealed that earlier that morning, at approximately 2:20 a.m., a man had removed the car seat from its box and, with the box in hand, had climbed over the gate and into the service area. Within a few minutes, the man had climbed back over the gate and, while still in possession of the box, had exited the store.

[277]*277Following a report of the theft, the East Haven police went to the house located at the address that appeared on the license found in the service area. In a trash can at the rear of the house, the police uncovered an empty box for a child’s car seat. The police thereafter obtained search warrants for the house and for a car parked near the house. Upon executing the warrants, the police discovered numerous cartons of cigarettes in both the house and the car, each of which bore the Pathmark store’s tax number.

The defendant claims that because the enclosed service area of the Pathmark grocery store is not a “building” within the meaning of § 53a-103, the trial court should have granted his motion for a judgment of acquittal with respect to the burglary charge. The state counters that because it was secured sufficiently to restrict public access, the service area is a “building” as that term is defined in General Statutes § 53a-100 (a) (1) and that, therefore, the judgment of conviction must be affirmed. We agree with the defendant.

“A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.” General Statutes § 53a-103. For purposes of this case,3 “building” is defined as follows: “Where a building consists of separate units, such as, but not limited to separate apartments, offices or rented rooms, any unit not occupied by the actor is, in addition to being a part of such building, a separate building . . . .” General Statutes § 53a-100 (a) (1). We must determine, therefore, whether the enclosed service area is a “separate unit” within the meaning of § 53a-100 (a) (1). In so doing, we are mindful that “[cjriminal statutes are not to be read [278]*278more broadly than their language plainly requires . . . .” State v. McGann, 199 Conn. 163, 177, 506 A.2d 109 (1986); see also State v. White, 204 Conn. 410, 424, 528 A.2d 811 (1987); State v. Dolphin, 203 Conn. 506, 523, 525 A.2d 509 (1987). Moreover, “[a] penal statute must be construed strictly against the state and liberally in favor of the accused. State v. Paradise, 189 Conn. 346, 352, 456 A.2d 305 (1983).” State v. Torres, 206 Conn. 346, 355, 538 A.2d 185 (1988); see also State v. Bunkley, 202 Conn. 629, 641, 522 A.2d 795 (1987).

We faced a similar question in State v. Thomas, 210 Conn. 199, 554 A.2d 1048 (1989), where the defendant was alleged to have committed a burglary by unlawfully entering the counter area of a convenience store, which was open to the public, with the intent to commit a crime therein. We concluded “that under no stretch of the statutory language can the counter area of [a] . . . convenience store be deemed a ‘building’ as that term is defined in § 53a-100 (a) (1).” Id., 205-206. The state asserts that our conclusion in State v. Thomas, supra, that the counter area was not a “building,” was due primarily to the fact that, in contrast to the present case, the area in question was not secured in order to prohibit public access. We disagree.

According to the rule of ejusdem generis, unless a contrary intent appears, where general terms are followed by specific terms in a statute, the general terms will be construed to embrace things of the same general kind or character as those specifically enumerated. 2A J. Sutherland, Statutory Construction (4th Ed. Sands) § 47.17; see also Eastern Connecticut Cable Television, Inc. v. Montville, 180 Conn. 409, 413, 429 A.2d 905 (1980); Easterbrook v. Hebrew Ladies Orphan Society, 85 Conn. 289, 296, 82 A. 561 (1912). In § 53a-100 (a) (1), the general term, “separate units,” is followed by three examples: “separate apartments, [279]*279offices or rented rooms.” In State v. Thomas,

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Bluebook (online)
588 A.2d 1376, 218 Conn. 273, 1991 Conn. LEXIS 94, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-russell-conn-1991.