State v. Crosswell

Borden, J., with whom Callahan, J.,

joins, dissenting in part. I decline to join part of the discussion in part I C of the majority opinion regarding the conviction of the defendant of burglary in the first degree, as an accessory. Furthermore, I disagree with the conclusion in part I D, reversing the conviction of the defendant of conspiracy to commit burglary in the first degree, and with the conclusion in part IE, reversing the conviction of the defendant of assault in the second degree, as an accessory.

I decline to join that part of the discussion in part I C regarding the scope and meaning of State v. Parham, 174 Conn. 500, 391 A.2d 148 (1978). Although I agree with the majority that the defendant’s conviction as an accessory to burglary in the first degree *271should be affirmed, I do not think that it is necessary to consider or to cast doubt on the viability or scope of Parham. As the majority points out, the trial court did not charge on the Parham principle in this case. I see no need, therefore, for the majority’s exegesis calling it into question. Moreover, in contrast to the majority’s cramped reading of that case, I read Parham, on its facts and reasoning, to stand squarely for the principle that “when more than one person participates in a burglary in the course of which one participant commits an act which raises the offense to the more serious crime of burglary in the first degree by ‘intentionally, knowingly or recklessly’ inflicting or attempting to inflict bodily injury on anyone, each participant in the burglary is guilty of the aggravated offense and it is without significance that such other participant was without knowledge of the other’s conduct which caused the physical injury or that he himself had no intention to cause such injury.” Id., 507. Indeed, on the facts of Parham, where the victim could not identify which of the two burglars actually inflicted the bodily injury on her, that principle is the only way in which Parham’s conviction of burglary in the first degree could have been upheld.

In part I D, the majority reverses the defendant’s conviction of conspiracy to commit burglary in the first degree because “the evidence does not show that [bodily] injuries were planned or intended.” I disagree, for two reasons. First, purely as a matter of drawing reasonable inferences, it seems to me quite evident that where, as in this case, the defendant agreed with his coconspirators to steal $15,000 from a house which he knew to be inhabited by a group of people, and thus to be guilty of robbery, and where he knew that one of his cohorts was armed with a revolver, it was reasonable for the jury to infer that he intended that the revolver be used in a manner involving bodily injury *272if necessary to accomplish the robbery. Surely, it was reasonable for the jury to infer that his state of mind went beyond recklessness, and beyond a recognition that the revolver would be used only to intimidate his intended victims, and included an intent that, as actually happened, it be used to cause injury.

Second, the conviction on this count is for conspiracy to commit burglary in the first degree. It was necessary that the state establish only the requisite agreement and overt act. I can see no difference between the validity of this conviction and the conviction of conspiracy to commit robbery in the first degree that the majority sustains in part I B of the opinion. In both, to quote from the majority opinion, “[t]he applicable principle of the law of criminal conspiracy was delineated in State v. Ghere, [201 Conn. 289, 299, 513 A.2d 1226 (1986)], in which, relying on State v. Holmes, 160 Conn. 140, 150, 274 A.2d 153 (1970), we held that the requisite agreement or confederation may be inferred from proof of the separate acts of the individuals accused as coconspirators and from the circumstances surrounding the commission of these acts.” Furthermore, we have long held that “the existence of [a] conspiracy for [an] original felony renders [one] responsible for the natural and probable results of the execution of that original felony.” State v. Cots, 126 Conn. 48, 59, 9 A.2d 138 (1939).

Finally, in part IE, the majority reverses the defendant's conviction of assault in the second degree, as an accessory, because, as the majority sees the evidence, he had no intent to cause injury. The accessory statute does not require, however, that he had the intent that he himself cause the injury, only that he acted “with the mental state required for commission of an offense”; General Statutes § 53a-8; which, in this case, was the intent that injury be caused by the principal. Under all the circumstances, it was reasonable for the *273jury to infer that, when the defendant entered this inhabited home with the intent to rob the inhabitants, and when he knew that one of his cohorts was armed with a revolver, he had the intent that the revolver would be used to cause injury to someone if necessary to carry out the robbery.

I therefore dissent from part I D and E of the majority opinion, and would affirm the judgment of conviction on those counts.