State v. Ziemba

563 A.2d 716, 19 Conn. App. 554, 1989 Conn. App. LEXIS 302
CourtConnecticut Appellate Court
DecidedJuly 19, 1989
Docket6334
StatusPublished
Cited by2 cases

This text of 563 A.2d 716 (State v. Ziemba) 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. Ziemba, 563 A.2d 716, 19 Conn. App. 554, 1989 Conn. App. LEXIS 302 (Colo. Ct. App. 1989).

Opinion

Spallone, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crimes of robbery in the first degree; General Statutes § 53a-134 (a) (4);1 assault in the third degree; General Statutes § 53a-61 (a) (1); and conspiracy to commit robbery in the first degree. General Statutes §§ 53a-48,2 53a-134 (a) (4). The defendant claims that the trial court erred (1) in denying his motions for judgment of acquittal on the robbery and conspiracy to commit robbery charges, (2) in defining the term “owner” during its instructions to the jury in such a way as to enlarge the offense of robbery, (3) in instructing the jury on statutory alternatives for which there was insufficient evidence, thereby denying him the right to a unanimous jury, (4) in incorporating into its charge to the jury on [556]*556conspiracy the same erroneous robbery charge and thus enlarging the offense, and (5) in failing to instruct the jury regarding the dangers of testimony from an accomplice. We agree with the defendant’s first claim of error and therefore it is unnecessary to review his other claims.

From the evidence produced at trial, the jury could reasonably have found the following facts. Between November and December, 1986, Brian Britton was employed as the assistant manager of the Kentucky Fried Chicken restaurant located at 382 East Main Street in Middletown. As part of his duties, Britton would deposit, at the close of each business day, the cash receipts for that day in the night depository at the bank. Britton and the defendant, Duane Ziemba, along with Margaret Bair, the defendant’s girlfriend, agreed to stage a robbery of the restaurant’s cash proceeds. Their plan was that the defendant, using a toy pistol, would “rob” Britton, and later the two would meet and divide the money. Britton, who had been previously involved in criminal activities and was known to the police, feared that the police might suspect a staged robbery. Accordingly, he and the defendant planned to have present an unwitting coworker who would witness the events and whose account of the events they hoped would lend credence to Britton’s report of a robbery.

Pursuant to this plan, Britton closed the restaurant on December 11, 1986, and, carrying a bag of fried chicken and the day’s cash proceeds, approximately $1800, walked with a coworker, Eric Beavers, toward his car, which was parked behind the restaurant near a trash dumpster. As Britton and Beavers were about to enter the car, they were accosted by the defendant, who, wearing a ski mask and a dark shirt and brandishing a toy pistol, leaped from behind the dumpster and directed them to get on the ground or he would [557]*557“blow [their] . . . head[s] off.” Beavers complied and, while Beavers was on the ground, the defendant ordered Britton to throw the money bags over to him. Britton threw the money bags and the bag of fried chicken. While this was occurring, Beavers, still on the ground, looked up at the defendant. The defendant kicked Beavers in the shoulder, saying, “I told you to keep your head down.” The defendant then fled from the scene, taking the money and the bag of chicken with him.

Later that morning, the defendant and Britton met to divide the money. The defendant informed Britton that the money totaled $1100 and offered Britton one half of that amount. Britton, knowing the defendant was shortchanging him, became angry and informed the police of the defendant’s involvement in the crime. The police apprehended the defendant that afternoon and transported him to the Middletown police department. Upon learning that Britton had implicated him in the robbery, the defendant implicated Britton.

Shortly after the defendant’s arrest, the defendant’s girlfriend, Margaret Bair, took the police along the route the defendant had used to escape on the night of the robbery. Bair had accompanied the defendant during his flight from the scene. Along the route shown them by Bair, the officers discovered a plastic pistol, a ski mask, and a bag bearing the Kentucky Fried Chicken logo and containing chicken bones.

In the defendant’s car, the police found a red flannel shirt and a pair of sneakers. The soles of the sneakers were determined to match the footprints left in the snow at the crime scene. Moreover, police talked with a witness who stated that he had observed the defendant’s car departing from the scene.

The defendant’s first claim is dispositive of the appeal. The defendant claims that the trial court erred [558]*558in denying his motions for judgment of acquittal on the first degree robbery and conspiracy to commit robbery charges. During argument to the court on the motions for judgment of acquittal, the defendant consistently pointed out that he had been specifically charged in the information with having “committed a robbery of Brian Britton.” The defendant’s position was that the evidence presented was insufficient to support that charge. The defendant has made a number of arguments, both to the trial court and on appeal, in support of that position. We agree with his argument that there was insufficient evidence to support a finding that the defendant used or threatened the use of force for the purpose of preventing or overcoming resistance to the taking or retention of the property or compelling the owner or another to deliver up the property. Accordingly, we find error.

The following facts are pertinent to our analysis. In count one of the substitute information, the state charged the defendant with robbery in the first degree, as follows: “At the town of Middletown, in the parking lot of Kentucky Fried Chicken, 382 South Main Street, on or about the 11th day of December, 1986 at approximately 10:00 p.m., the said Duane Ziemba did commit a robbery of Brian Britton and in the course of the commission of the crime the said Duane Ziemba did display and threaten the use of what he represented by his words and conduct to be a pistol, in violation of Section 53a-134 (a) (4) of the Connecticut General Statutes.” (Emphasis added.) The theory of the state’s case, as presented through the testimony of the various witnesses, was that Britton and the defendant conspired to take the money and to “stage” a robbery in front of Eric Beavers in an effort to conceal their involvement in the theft. The evidence was that the two men had planned in advance that the defendant would pull out a toy gun in order to make it appear to Beavers [559]*559that the money was being taken from Britton by force and against his will. The question is whether, in light of the charge as set out in the information, and in light of the evidence produced at trial, the state successfully made out a case against the defendant of robbery in the first degree.3 We hold that it did not.

By charging the defendant with “committing] a robbery of Brian Britton,” the state effectively narrowed the charge against the defendant.

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Related

State v. Kyles
607 A.2d 355 (Supreme Court of Connecticut, 1992)
State v. Kari
600 A.2d 1374 (Connecticut Appellate Court, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
563 A.2d 716, 19 Conn. App. 554, 1989 Conn. App. LEXIS 302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ziemba-connappct-1989.