dissenting in part and concurring in part.
I
The majority charts a dangerous course by allowing the identification of the accused to be established through evidence that is not trustworthy. I have been unable to find any other Connecticut case in which a conviction was upheld on proof of identification based solely upon circumstantial evidence of mere similarities not bolstered by similarities of a distinctive nature that connected the defendant to the crime.
For example, in the following cases the Supreme Court of Connecticut reversed convictions where the identification of the accused was based solely upon circumstantial evidence that did not link the accused to the crime in some distinctive manner: State v. Cobbs, 203 Conn. 4, 522 A.2d 1229 (1987); State v. Mandrell, 199 Conn. 146, 506 A.2d 100 (1986); State v. Payne, 186 Conn. 179, 440 A.2d 280 (1982); State v. Jackson, 176 Conn. 257, 407 A.2d 948 (1978); State v. Mayell, 163 Conn. 419, 311 A.2d 60 (1972); State v. Kelsey, 160 Conn. 551, 274 A.2d 151 (1970). On the other hand, the following convictions were upheld because in each case there was distinctive circumstantial evidence of iden*315tification that connected the accused to the crime. State v. Cates, 202 Conn. 615, 522 A.2d 788 (1987) (a white mink cape with the victim’s initials sewn inside that was similar to the stolen cape found in the defendant’s apartment); State v. Braxton, 196 Conn. 685, 495 A.2d 273 (1985) (the defendant found perspiring profusely and breathing heavily near the scene of a robbery just minutes after it occurred, his car was connected with the robbery as the getaway car and $10 in loose quarters, which was the precise amount contained in the wrapped roll of quarters stolen during the robbery, was found on him); State v. Wilson, 178 Conn. 427, 423 A.2d 72 (1979) (the defendant found with a distinctive ski mask—triangular nose piece bordered with orange—similar to the one used in the robbery, a gold chain necklace identical to the one taken in the robbery and guns and a gun case stolen in the robbery).
If this case were stripped of all hyperbole,1 the jury could reasonably have found the following facts per-*316taming to the identification of the defendant. The defendant and Scott Ciak, a friend of the defendant and the person who the state theorizes was the second robber, lived across the street from each other, about two miles from the Cumberland Farm store where the robbery occurred. The defendant is shorter than Ciak just as the first robber was shorter than the second robber. The defendant often wears gray sweat pants just as the first robber wore gray sweat pants. The defendant and Ciak tried to borrow money from friends the afternoon of the robbery, which took place about 9:15 p.m. The defendant had possession of a pellet gun (a Crossman bb gun)2 several weeks before and after the robbery3 which he voluntarily turned over to the police during their investigation. The bb gun was identified by Donald Kurapkot, the store clerk’s husband and the only witness who could make the identification, as being *317similar, but not identical, to the gun used by the first robber. The commonness of the bb gun is underscored by the fact that Donald Kurapkot was able to identify it only as being similar to the one held by the first robber because his son owned one. Surely, up to this point, the cumulative effect of the foregoing circumstantial evidence could not reasonably lead to the drawing of an inference, beyond a reasonable doubt, that the first robber was the defendant.
The state seeks to bolster its claim with evidence that the first robber wore a distinctive Halloween clown mask and that the defendant was seen at a party with a similar mask. The descriptions of what purported to be the mask varied to such an extent that it would be speculative to conclude that they were similar let alone to draw an inference that it was the same mask. Hedy Kurapkot, the store clerk, described the mask worn by the first robber as a Halloween “clown mask” with red hair “sticking up.” Her husband described it as a “clown thing” with red hair and a “bald head thing on top.” Beth Lane, the only witness produced by the state to connect the defendant with the mask, testified that approximately one month before the robbery, when she was at a party with the defendant and others, he showed her a costume of “an old man’s hat with red hair on it.” The evidence does not indicate they were describing the same thing. Clearly, the Kurapkots described a face mask, but Lane described a costume consisting of an old man’s hat. Furthermore, the lapse of one month between the connection of the defendant with what purports to be the robber’s mask and the date of the robbery further dilutes this evidence. Even if we assume, however, that they were both face masks, the varied descriptions—that is, “clown” compared to “old man” and “bald” compared to “hat”— make this evidence too tenuous to conclude that they were similar.
*318Relying upon State v. Cates, supra, the majority passes off these wide discrepancies by holding that they were well within the range of human error and that the jury could reasonably overlook them. Cates, however, does not stand for authority that would allow the trier of fact to reconcile substantial differences by attributing them to mere human error. In Cates, the victim described the robber’s car as black with the license plate number 595-AYX. The defendant’s car was charcoal with the license plate number 595-AXY. Our Supreme Court concluded that “the jury could reasonably have thought that these minor inaccuracies were well within the range of human error.” Id., 628 n.4. In the present case, the differences go further than mere inaccuracies in describing the hue and transposing letters on a license plate. The only parts of the descriptions that were the same were that both the costume and mask were described as having red hair. Furthermore, the minor errors in Cates must also be viewed in the context that the police found in the defendant’s apartment the stolen, white mink cape, which had the victim’s initials sewn in it. None of the fruits of the robbery was found in the possession of the defendant. Indeed, the state was unable to produce the mask it claims the defendant wore.
The state’s case becomes even more untenable when the circumstantial evidence is viewed with other evidence that would indicate the defendant was not the first robber. The physical descriptions fail to indicate that the defendant and his friend Ciak were the robbers. The store clerk described the first robber as being 5' 6" to 5' 8" tall (her husband thought he was 5' 6" to 5' 7") and as being a “very small, thin man or boy” who she thought was white because of the sound of his voice. She described him as being very “spry,” having jumped the four-foot counter during the robbery, and as a fast runner. The defendant is black and the trial *319court was requested to take judicial notice that the defendant is approximately 5' 4", 150 lbs. and very stocky. Furthermore, although he was able to walk normally, during the months of April and May, prior to the robbery, the defendant wore a white and blue leg brace. The store clerk and her husband could not identify the race or hair color of the second robber, although his face was covered with only a scarf. Ciak is white, almost 6 feet tall, and has red hair.
The cumulative effect of the circumstantial evidence is insufficient to identify the defendant as being the perpetrator of the robbery beyond a reasonable doubt. The jury must not resort to speculation and conjecture in drawing inferences from circumstantial evidence. State v. Little, 194 Conn. 665, 671, 485 A.2d 913 (1984). “Inferences to be drawn from the facts proved must be reasonable and logical . . . Palmieri v. Macero, 146 Conn. 705, 708, 155 A.2d 750 (1959); State v. Kelsey, 160 Conn. 551, 553-54, 274 A.2d 151 (1970). “Moreover, inferences which do not have a basis in facts established by the evidence cannot be drawn or relied on to sustain a verdict.” State v. Jackson, supra, 264. “A conclusion of guilt requires proof beyond a reasonable doubt, and proof to that extent is proof which precludes every reasonable hypothesis except that which it tends to support, and is consistent with the defendant’s guilt and inconsistent with any other rational conclusion.” State v. Foord, 142 Conn. 285, 295, 113 A.2d 591 (1955); State v. Little, supra, 672. “If the evidence is insufficient to sustain the burden of proof beyond a reasonable doubt, the verdict must be set aside.” State v. Carpenter, 214 Conn. 77, 84, 570 A.2d 203 (1990).
I agree with the majority that the court should not sit as a “thirteenth juror” in determining guilt or innocence. The court, however, has an obligation to set the verdict aside when the evidence does not reach the *320quantum of proof necessary to establish beyond a reasonable doubt that the defendant was the culprit. “The most formidable barrier to irrational jury verdicts may be that which arises from the court’s inherent power to order a judgment of acquittal because the prosecution has failed to present sufficient evidence of guilt.” A. Spinella, Conn. Criminal Procedure, p. 708. The “presumption of innocence” and the requirement that the accused’s guilt be proven “beyond a reasonable doubt,” “symbolize today, as they did in their beginnings, the special place of the accused in our system of criminal procedure. They cast in evocative language the deeply-held feeling that the combination of all-too-fallible witnesses and serious sanctions requires that the sanctions should be imposed only where guilt seems virtually certain.” A. Goldstein, “The State and the Accused: Balance of Advantage in Criminal Procedure,” 69 Yale L.J. 1149, 1153 (1960).
In my opinion, I would find error as to both counts, set aside the judgments and remand the case with direction to render judgment on each count that the defendant is not guilty and order that he be' discharged. Nevertheless, even if there were sufficient evidence to support the identification of the defendant as the first robber, I still would be unable to agree with the majority on the disposition of the first count and the conclusion they reach on the second. Accordingly, I write on these matters, in order to express my views.
II
I concur with the majority that the evidence on the first count in this case was insufficient to prove that the bb gun that the state claims was used in the robbery by the first robber was a dangerous instrument as defined by General Statutes § 53a-3 (7). I disagree, however, that the Appellate Court has jurisdiction to dispose of the case by directing that the defendant be *321adjudged guilty of the lesser included offense. Practice Book § 899, on which the majority relies, provides that “[i]f the judicial authority directs an acquittal for the offense specified in the verdict, but not for a lesser included offense, he [or she] may either: (1) [m]odify the verdict accordingly; or (2) [g]rant the defendant a new trial as to the lesser included offense.” “Judicial authority” is defined as meaning “the superior court and each judge of the superior court.” Practice Book § 1021 (1).
Section 899 was patterned after Rule 551 (b) of the Uniform Rules of Criminal Procedure. The commentary under that uniform rule states: “In the situation specified, the court should grant the defendant a new trial rather than merely modifying the verdict if the error in finding the defendant guilty of the higher offense might have infected the jury’s presumed finding of guilt as to the included offense.” It is clear that the case should be remanded to the trial court so it can make a determination of whether to render a judgment of guilty on the lesser included offense or order a new trial.
I am aware of State v. McGann, 199 Conn. 163, 178-79, 506 A.2d 109 (1986); State v. Aleksiewicz, 20 Conn. App. 643, 569 A.2d 567 (1990); and State v. Home, 19 Conn. App. 111, 142-146, 562 A.2d 43 (1989), wherein the appellate courts merely remanded the cases with direction to render judgment of guilty on the lesser included offenses when there was insufficient evidence to support the crimes charged. The simple answer is that the Supreme Court in McGann and the Appellate Court in Aleksiewicz and Home failed to take into consideration the requirement of § 899. Accordingly, this court is not bound by the precedent of those cases. Cf. State v. DellaCamera, 166 Conn. 557, 560, 353 A.2d 750 (1974). The rule provides, at least in the first instance, that the trial court is to make that deter*322mination and the defendant has a right to have that procedure followed so he can be heard in a meaningful manner before the judge who presided over the trial. See Weil v. Neary, 278 U.S. 160, 169, 49 S. Ct. 144, 73 L. Ed. 243 (1929); Fowler v. Francis, 362 P.2d 107, 108-109 (Okla. 1961).
Ill
For several reasons, I also disagree with the majority’s refusal to set aside the conviction of conspiracy to commit first degree robbery in the second count. First, it is clear that the state, before the case was submitted to the jury, intended to and did reduce the charge from conspiracy to commit robbery in the first degree; General Statutes § 53a-134 (a) (3); to conspiracy to commit robbery in the third degree; General Statutes § 53a-136. At the request of .the assistant state’s attorney and with the permission of the court, the state amended the information by deleting the words “in the first degree” and “armed” so the information submitted to the jury read that the defendant was accused of committing the crime of “conspiracy to commit robbery” instead of “conspiracy to commit robbery in the first degree.”4 Surely, with the permis*323sion of the court, the state may amend the information at any time before a verdict. Practice Book § 624; State v. Jacobowitz, 182 Conn. 585, 590, 438 A.2d 792 (1981). The majority’s conclusion that it was not amended merely because the assistant state’s attorney neglected to request that the statutory reference in the information be changed from § 53a-134 (a) (3) to § 53a-136 is without substance in view of the clear intent of the state, the defendant and the court.
Second, if the conspiracy count was in fact not amended to reduce the charge to conspiracy to commit robbery in the third degree, then the trial court committed error of a constitutional magnitude by failing to instruct the jury on an essential element of the crime.5 In order to find the defendant guilty of conspiracy to commit robbery in the first degree under General Statutes § 53a-134 (a) (3), the jury was required to find proven that he conspired to commit robbery by using or threatening to use a dangerous instrument. State v. Rouleau, 204 Conn. 240, 258, 528 A.2d 343 (1987).
The trial court failed to instruct the jury on the essential element of conspiracy to commit robbery by the use or threatened use of a dangerous instrument and charged only on robbery. The jury was initially instructed on the conspiracy count as follows: “The second count of the information charges the defendant with the crime of conspiracy to commit robbery. . . .
*324The first thing you must decide is did the accused perform an agreement or come to an agreement with one or more persons to commit the crime of robbery.” Robbery was previously defined by the court, which satisfied only the requirement of robbery in the third degree and made no reference to a dangerous instrument.6 Again, in its summary on the conspiracy count, the trial court, in part, charged: “To summarize then, in order to find the defendants guilty of conspiracy, you must conclude that the State has proved the following . . . elements beyond a reasonable doubt: First, the defendant entered into an agreement to engage in or cause the commission of the crime of robbery with Scott Ciak.”
The trial court’s reading of the original information (before its amendment), which merely recited that the crime with which the defendant was charged was “conspiracy to commit robbery in the first degree” and which made reference to the statutory designation of the crime, was insufficient to constitute an instruction on the dangerous instrument element. The jury would know, on the basis of these instructions, only that it was required to find the dangerous weapon element if it extrapolated the requirement from the instructions on the first count. This may be reasonable for persons trained in the law, but not for lay jurors. Failure to instruct the jury on the element of the dangerous instrument for the conspiracy count was a constitu*325tional error, deprived the defendant of a fair trial and requires reversal. State v. Golding, 213 Conn. 233, 238, 567 A.2d 823 (1989).
Third, the majority conceded that the unloaded bb gun, the theory upon which the state prosecuted this case, could not satisfy the dangerous instrument element of the crime of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). Instead, the majority seeks to satisfy this element of the conspiracy count by relying upon the wielding of the tire iron by the second robber. The state, however, did not rely upon this theory in prosecuting its case. Moreover, although the tire iron theory was advanced by the state in a footnote to its appellate brief, it was withdrawn during appellate argument. It is clear that fundamental fairness requires that an appellate court be restricted to the theory on which the case was prosecuted in the trial court. See Dunn v. United States, 284 U.S. 390, 392, 52 S. Ct. 189, 76 L. Ed. 356 (1932); 24 C.J.S. Criminal Law § 1707. A defendant is entitled to be put on notice of the state’s theory of prosecution at the trial level so that he or she can appropriately present a defense which includes effective cross-examination of witnesses.
In sum, I respectfully dissent except for that portion of the majority’s decision that holds that the bb gun as used in this case could not constitute a dangerous instrument under the provisions of General Statutes § 53a-134 (a) (3).
The majority makes certain claims to “link” the defendant with the crime that are not in evidence or even argued by the state on appeal. First it is claimed (p. 302) that the mother of Scott Ciak, the defendant’s friend, testified that “her son told her that the pistol belonged to the defendant . . . .” This hearsay evidence was allowed into evidence, over the objection of the defendant, for a limited purpose and not for the truth of it. The court on admitting the evidence ruled: “I would indicate to the ladies and gentlemen of the jury, the purpose of the question is for—is a limited one and the answer is also limited not as to the truth of the matter stated.”
It is also claimed (p. 304) that the “mother of the defendant’s friend gave testimony that strongly suggested that the [defendant and his friend] were involved in illegal activity.” Ciak’s mother did testify that she noticed that her son, who was not gainfully employed for a period prior to the robbery, had possession of “a lot of money” and expensive items of clothing during that period. There was not, however, a scintilla of evidence that the defendant was sporting such wealth. Indeed, the evidence shows that he often wore sweat pants.
Finally, it is claimed (p. 304) the “defendant and [Ciak] fit the description of the robbers.” The mere fact that the first robber was described as having been shorter than the second robber just as the defendant is shorter than his friend Ciak, is no basis for drawing this conclusion. Cf. State v. Jackson, 176 Conn. 257, 407 A.2d 948 (1978). There were in fact substan*316tial differences between the description given by the store clerk and her husband and the physical characteristics of the defendant as pointed out in this dissent.
David J. Best, an inspector with the division of criminal justice of the state of Connecticut, testified that the gun obtained from the defendant and identified as being similar to the one used in the robbery was a Cross-man model and fired a .177 caliber projectile. It is commonly referred to as a bb gun. Webster, Third New International Dictionary.
The direct evidence fails to establish that the defendant had possession of a bb gun on May 11,1986, the day of the robbery, which the state claims is one of the linchpins of its case. The state, to support its theory, relies on the testimony of Dawn Fava that she discovered a similar gun when she was moving out of her apartment and that, upon confronting the defendant with the gun, he took it. She testified, however, that she moved out of the apartment “about the end of April” and in the statement taken by the police she said she moved in June or July, 1986. Neither does the testimony of Beth Lane place the bb gun in the hands of the defendant on the day of the robbery. She merely testified that the defendant and Ciak were in Fava’s apartment on May 11,1986, while she was “in the midst of moving out” and made no reference to a gun. Indeed, the state during closing arguments conceded that Fava moved in a “piecemeal fashion out of her apartment.” There is no evidence that the defendant had a similar bb gun either immediately preceding the robbery, on the day of the robbery, or immediately following the robbery.
The information was amended when the following occurred:
“The Court: I will ask counsel to examine the information which I have here, as well as exhibit A.
“Mr. Maxwell [the assistant state's attorney]: Conspiracy to commit robbery, perhaps ‘in the first degree’ should be whited-out.
“The Court: Any problem with that, Mr. O’Toole [the assistant public defender]? I had indicated to them that the qualifying word ‘armed’ could be excluded. Why don’t you white-out the word ‘armed.’
“Mr. Maxwell: And first degree.
“The Court: Huh?
“Mr. Maxwell: Robbery in the first degree as well.
“The Court: Oh, you mean at the beginning of it?
“The Clerk: So it would be—
“Mr. Maxwell: Just as robbery, period.” (Whereupon examination of the documents continued. Further comments not audible.)
Whether it was preserved in the trial court, the defendant has a right to pursue this issue on appeal under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The defendant meets the following four requirements of Evans and Golding: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 239-40.
The trial judge instructed the jury on the definition of “robbery” as follows: “Robbery is generally defined under our law as follows: A person commits robbery, When in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of, one, preventing or overcoming resistance to the taking . . . [of] property, or to the retention thereof immediately after the taking, or two, compelling the owner of such property or another person, to deliver up the property or engage in other conduct which aids in the commission of larceny.”