State v. Caballero

O’CONNELL, C. J.,

dissenting. I do not agree with the majority that the state proved the defendant guilty beyond a reasonable doubt. Proof beyond a reasonable *497doubt requires that each element of the offense be proved, whether directly or circumstantially, in a manner that is consistent with guilt and that is inconsistent with any other rational conclusion. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Cobbs, 203 Conn. 4, 11, 522 A.2d 1229 (1987); State v. Jackson, 176 Conn. 257, 263-64, 407 A.2d 948 (1978).

In this case, the state was required to prove that the defendant intended to commit larceny. Because larceny is a specific intent crime, the state must show, beyond a reasonable doubt, that the defendant acted with the subjective desire or knowledge that his actions constituted stealing. A specific “intent to deprive another of property or to appropriate the same to himself ... is an essential element of larceny . . . and as such must be proved beyond a reasonable doubt by the state.” (Internal quotation marks omitted.) State v. Fernandez, 198 Conn. 1, 20, 501 A.2d 1195 (1985).

“As far back as 1902, our Supreme Court recognized that the mere taking of another’s property was not sufficient to prove larceny. The taking must be accompanied by a felonious intent to deprive the owner of its use. If a person takes property in the honest, though mistaken belief, that he has a right to do so, he has not committed larceny. State v. Main, 75 Conn. 55, 57, 52 A. 257 (1902). ... [A] trespass is not theft, except when done with felonious intent. And he who carries away a thing openly, and not clandestinely, to enforce a just claim, not for fraud, not to injure the owner, but to compel him to do what the law requires, is not a thief, whatever the extent of the wrong viewed otherwise. State v. Sawyer, [95 Conn. 34, 39, 110 A. 461 (1920)].” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Varszegi, 33 Conn. App. 368, 373-75, 635 A.2d 816 (1993), cert. denied, 228 Conn. 921, 636 A.2d 851 (1994).

*498“A jury first draws inferences and makes findings of fact. In doing so, it may draw inferences from the facts it found proved, and it is not required to draw only inferences that are consistent with innocence. State v. Tatem, 194 Conn. 594, 598, 483 A.2d 1087 (1984). In drawing these inferences and finding these facts, however, it may not resort to speculation and conjecture. State v. Mierez, [24 Conn. App. 543, 554, 590 A.2d 469, cert. denied, 219 Conn. 910, 911, 593 A.2d 136 (1991)].

“Once the jury has finished drawing inferences and making findings of fact, it must then determine its ultimate conclusion: whether those facts and inferences prove the defendant guilty beyond a reasonable doubt. Proof beyond a reasonable doubt requires that the evidence exclude every reasonable hypothesis of innocence. State v. Ford, 230 Conn. 686, 693, 646 A.2d 147 (1994).” (Emphasis added; internal quotation marks omitted.) State v. Arbelo, 37 Conn. App. 156, 160, 655 A.2d 263 (1995). In the present case, there are reasonable hypotheses that could explain the defendant’s intent and his subsequent conduct, and thus a finding of guilty beyond a reasonable doubt is improper.

In State v. Crafts, 226 Conn. 237, 248, 627 A.2d 877 (1993), our Supreme Court held that “intent cannot be inferred directly from results. The fact that a victim was struck by a bullet would not, in itself, support the inference that the perpetrator intended to kill the victim, because the perpetrator might have acted with a variety of mental states. . . . [S]imilarly the jury could not properly have inferred an intent to commit murder from the mere fact of the death of the victim, even from her death at the hands of the defendant.” By analogy to the present case, the jury could not properly have inferred an intent to steal from the sole fact that the defendant took a chain from the victim’s neck because the defendant could easily have acted with a variety of mental *499states, all of which fall short of what is required to support a larceny conviction.

Although the inclusion of a knife in these facts adds an emotional ingredient, it does not alter my opinion. Just as a gun could not be used to infer an intent to murder when a victim was struck by a bullet; see id.; the presence of a paring knife with a two and one-quarter inch cutting edge,1 does not support an intent to steal.

The fatal weakness in the state’s case here is the absence of any evidence, direct or circumstantial, from the victim. The victim did not testify, he did not furnish an oral or written statement that could be introduced in evidence, he was never interviewed at the police station2 and he gave a false address to the arresting officer at the time of the incident. The chain itself was not introduced in evidence, having been returned to the victim at the scene. Additionally, there is not one scintilla of evidence as to who owned the chain. The jury may not speculate that the chain was the property of the victim.3 It could just as logically have been the defendant’s property that he was retaking or taking as security for a debt owed to him by the victim. Either of these, or countless others, could have been reasonable hypotheses, which it was the duty of the state to exclude. I do not speculate as to these scenarios, just as a jury may not, but point them out merely to indicate that criminal attempt to commit larceny is not the only reasonable explanation for the events observed by the passing officer.

*500The evidence here does not exclude every reasonable hypothesis of innocence; see State v. Ford, supra, 230 Conn. 693; States v. Arbelo, supra, 37 Conn. App. 161-62; and does not rebut the presumption of innocence. Cf. State v. Morant, 242 Conn. 666, 687-88, 701 A.2d 1 (1997). At best, the state’s case raises a suspicion of attempted larceny by the defendant. This is far from satisfying the state’s burden of proving its case beyond a reasonable doubt.

I agree with the majority that corroboration of the complaining witness’ testimony is not required, but neither the majority nor the state cite any cases in which a conviction was sustained without any evidence whatsoever from the victim. We are confronted here with the unique circumstances of no evidence, testimonial or otherwise, e.g., a written statement, from the supposed victim. This conviction rests solely on the testimony of a police officer who, while driving by, observed activity from which he concluded that a crime was taking place. I cannot affirm a conviction in which proof beyond a reasonable doubt is based solely on presumptions founded on observations of a drive-by witness.

The facts of this case are strikingly similar to those in State v. Godfrey, 39 App. 1, 6, 663 A.2d 1117 (1995), appeal dismissed, 236 Conn. 904, 670 A.2d 1305 (1996),4 in which this court reversed the defendant’s conviction of attempted tampering with a motor vehicle and attempted burglary in the third degree. In Godfrey, the owner of the car in question was not identified and did not testify. We held that “without direct evidence that the defendant lacked consent [to enter the car], the state’s case, at best, raises a suspicion of illegal activity on the part of the defendant. ‘This is far from satisfying the state’s burden of proving its case beyond a reasonable doubt.’ ” Id., 7.

*501It is my opinion that in the matter now before us, the state has failed to prove its case beyond a reasonable doubt by either direct evidence or by reasonable inferences to be drawn from the evidence that was introduced. I would reverse the conviction.

For the foregoing reasons, I respectfully dissent.

The defendant was not even committing a crime by possessing a knife with a cutting edge of only two and one-quarter inches. General Statutes § 53-206 (a) prohibits carrying a knife only if its cutting edge is four inches or more.

The victim was allowed to walk away from the scene.

I analyze this element in accordance with the statutory definition of owner as meaning “any person who has a right to possession superior to that of a taker, obtainer or withholder.” General Statutes § 53a-118 (a) (5).

The state’s appeal to the Supreme Court in Godfrey was dismissed because the defendant died while the appeal was pending.