State v. Scott

568 A.2d 1048, 20 Conn. App. 513, 1990 Conn. App. LEXIS 14
CourtConnecticut Appellate Court
DecidedJanuary 23, 1990
Docket7735
StatusPublished
Cited by8 cases

This text of 568 A.2d 1048 (State v. Scott) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Scott, 568 A.2d 1048, 20 Conn. App. 513, 1990 Conn. App. LEXIS 14 (Colo. Ct. App. 1990).

Opinion

Foti, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of the crimes of robbery in the third degree in violation of General Statutes § 53a-1361 and larceny in the second degree in violation of General Statutes §§ 53a-119 and 53a-123 (a) (3). The defendant claims that the trial court erred (1) in instructing the jury concerning the elements of the robbery, and (2) in failing to give an adverse inference charge when the state did not call a witness. We. find no error.

[515]*515After hearing the testimony of three witnesses, the jury could reasonably have found the following facts. On August 6,1987, at approximately 9:15 p.m., the victim exited the Stop & Shop supermarket in Fairfield with her ten year old daughter. As she was leaving the store, the victim was pushing a cart of groceries with both hands on the cart’s handle and her pocketbook hanging from her wrist. Suddenly, she felt a sharp pull at her pocketbook. The tugging was strong enough to pull both the victim and her cart of groceries to the ground. The victim resisted the purse snatcher as long as she was able by crooking her wrist to retain possession of the purse. She was dragged along the pavement with sufficient force to cause two fractures in her left wrist, a bruise on her right thigh and abrasions on the front of her knees and on the palm of her right hand. She finally released the bag to the assailant, a black man, who ran away with it. She did not get a good look at him.

Fearing for her mother’s safety, the victim’s ten year old daughter became hysterical during the purse snatch. She remained so distraught after the incident that she was unable to participate in the identification of her mother’s assailant.

On the same date, moments before the purse snatching, another shopper, P, had handed a shopping cart to a black man in front of the Stop & Shop. Just as P was about to enter the store, he heard a scream, turned and saw the man to whom he had just handed the cart struggling with the victim and finally obtaining her purse. P pursued the purse snatcher around the side of the building and watched him get into the passenger side of a small car. The driver and the purse snatcher immediately drove away. One week later, after viewing a photographic array at the Fairfield police station, P identified the defendant as the man he had seen steal the victim’s pocketbook and flee.

[516]*516D, a friend of the defendant’s, drove him to the Fair-field Stop & Shop on the day of the incident between 9 and 10 p.m. in order for the defendant to obtain some money from a relative. D dropped the defendant off in front of the store and drove to the side of the building to wait for him. In a short time, the defendant returned to D’s car with something under his shirt. D later noticed that the object under the defendant’s shirt was a pocketbook.

The defendant first claims that the court erred in its jury instruction on the elements of the offense of robbery by including subdivision (2) of § 53a-1332 of the General Statutes in its definition of robbery.3 He contends that the evidence offered by the state was sufficient only to establish guilt under subdivision (1) of that statute. In the alternative, the defendant argues that if the evidence presented was sufficient to support a finding that force was used to compel the victim to deliver up the purse, then the instruction was erroneous in that subdivisions (1) and (2) of the robbery statute are conceptually distinct and require a unanimity charge. We cannot agree with either claim.

The defendant first asserts that there was insufficient evidence presented at trial to prove the essential elements of robbery, that is, that the actor used or threatened “the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcom[517]*517ing resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner ... to deliver up the property . . . . ” General Statutes § 53a-133.

Our Supreme Court has stated that “ ‘[w]here a person may have been convicted under more than one statutory alternative, the judgment cannot be supported unless the evidence was sufficient to establish guilt under each statutory provision which the trier may have relied upon.’ ” State v. John, 210 Conn. 652, 687-88, 557 A.2d 93, cert. denied, U.S. , 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); quoting State v. Marino, 190 Conn. 639, 650-51, 462 A.2d 1021 (1983). “This rule is based on the principle that jurors are presumed to follow the instructions given by the judge.” State v. Williams, 202 Conn. 349, 363-64, 521 A.2d 150 (1987).

The defendant argues that the facts in the present case are strikingly similar in all relevant respects to those in State v. Williams, supra, and, therefore, that he should be granted a new trial as was the defendant in Williams. In Williams, however, the state conceded that the evidence was not sufficient to sustain a conviction under the second subdivision of § 53a-133. In the present case, the state makes no such concession.

Here, in striking contrast to Williams, the state presented evidence at trial to show that the defendant tugged so hard at the victim’s purse strap that it caused her to fall to the pavement. This evidence was sufficient for a reasonable jury to conclude that physical force was used to overcome her resistance to the taking of her purse. In addition, the state presented ample evidence to show that the defendant dragged the victim along the pavement before she finally released her purse to him. The jury could reasonably have concluded from this that the defendant used physical force to com[518]*518pel the victim to deliver up her property. Since the evidence submitted at trial was clearly sufficient to establish that the defendant overcame the victim’s resistance to the purse snatch, and that the victim was forced to deliver up her pocketbook, as required by subdivisions (1) and (2) of General Statutes § 53a-133, the trial court did not err in instructing on both statutory alternatives. State v. John, supra, 688-89.

The defendant also claims that because the jury may have disagreed on the manner in which the offense was committed, his right to a unanimous verdict was violated by the court’s failure to instruct the jury that it had to agree unanimously as to which of the statutory alternatives was the factual predicate for the offense. The defendant’s conclusion is premised on his claim that subdivisions (1) and (2) of the robbery statute are conceptually distinct. We cannot agree.

Because the defendant neither filed a request to charge nor excepted to the charge as given, we limit our review initially to determining whether the record supports his claim. State v. Golding, 213 Conn. 233, 239, 567 A.2d 823 (1989); State v. Horne, 19 Conn. App. 111, 136, 562 A.2d 43 (1989).

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Bluebook (online)
568 A.2d 1048, 20 Conn. App. 513, 1990 Conn. App. LEXIS 14, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-scott-connappct-1990.