State v. Smith ( 2015 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. TREMAINE SMITH
(SC 19314)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued April 20—officially released June 30, 2015
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Terence D. Mariani, senior assistant
state’s attorney, for the appellant (state).
Elizabeth M. Inkster, assigned counsel, with whom
was Samuel A. Greenberg, deputy assistant public
defender, for the appellee (defendant).
Opinion
ROGERS, C. J. The issue that we are required to
address in this certified appeal is whether the state is
required to prove as an element of the crime of robbery
in the first degree, as set forth in General Statutes § 53a-
134 (a), that the defendant was not the owner of the
property that he was accused of taking from another.
The defendant, Tremaine Smith, was charged with
attempt to commit robbery in the first degree in viola-
tion of General Statutes §§ 53a-49 (a) (2) and 53a-134
(a) (3), and attempt to commit kidnapping in the first
degree in violation of General Statutes §§ 53a-49 (a) (2)
and 53a-92 (a) (2) (B). The jury found the defendant
guilty of attempt to commit robbery in the first degree
and acquitted him of the attempted kidnapping charge,
and the trial court rendered judgment in accordance
with the verdict. Thereafter, the defendant appealed
from the judgment of conviction to the Appellate Court
claiming, among other things, that the state had failed
to prove that he did not own the property that he had
been convicted of attempting to take from the complain-
ant, Shakela Cooper, and that this was an element of
the crime of robbery in the first degree. State v. Smith,
148 Conn. App. 684, 694, 86 A.3d 498 (2014). The Appel-
late Court agreed with the defendant that the state had
the burden of disproving that he owned the property;
id., 706; and that it had failed to meet this burden. Id.,
711. Accordingly, the court reversed the judgment of
conviction of attempt to commit robbery in the first
degree and remanded the case to the trial court with
direction to render a judgment of acquittal on that
charge. Id., 721. Thereafter, we granted the state’s peti-
tion for certification to appeal on the following issue:
‘‘Did the Appellate Court properly determine that the
defendant’s conviction of attempt to commit robbery
in the first degree in violation of . . . §§ 53a-49 (a) (2)
and 53a-134 (a) (3) must be reversed and judgment [of
acquittal be] directed because there was insufficient
evidence to convict him of attempt to commit robbery
in the first degree?’’ State v. Smith, 311 Conn. 947, 91
A.3d 462 (2014). We answer the certified question in
the affirmative.
The jury reasonably could have found the following
facts. While the defendant was in prison in August,
2009, he mailed $294 in cash to Cooper, who was his
girlfriend, and told her to use the money to hire an
attorney or to obtain a bond for him. Cooper told the
defendant that she would do so, but she never did.
Instead, she kept the money. On November 30, 2009, the
defendant was released from prison. At approximately
7:30 p.m. that day, the defendant was driving around
the city of Waterbury with Shanika Crews. When the
defendant saw Cooper, Cooper’s brother and a friend
of Cooper’s walking toward the Waterbury Plaza, he
got out of Crews’ vehicle, confronted Cooper and
attempted to force her to go with him to get his money
by grabbing her and threatening her with a knife. The
defendant ultimately told Cooper’s friend that Cooper
‘‘better have my money,’’ told Cooper that he would
stop by her house later and walked away. Later that
evening, Cooper went to the Waterbury police station
and gave a statement about the incident. The state ulti-
mately charged the defendant with attempt to commit
robbery in the first degree and attempt to commit kid-
napping in the first degree.
The jury trial commenced on February 16, 2011. After
the state presented its evidence, the defendant filed a
motion for a directed verdict on both charges. With
respect to the attempt to commit robbery charge,
defense counsel argued that ‘‘there was not enough
evidence from which an intent to commit . . . a lar-
ceny can be found’’ because ‘‘all the facts show [is]
that [the defendant] attempted to regain property that
belonged to him, that he had a legal right to, not [that
he was] taking the property of another person.’’ The
defendant also requested, in the alternative, that the
trial court instruct the jury pursuant to General Statutes
§ 53a-211 that it could consider whether the defendant
was justified in using reasonable physical force against
Cooper in order to regain his own property. The trial
court concluded that the defendant was not entitled to
an instruction pursuant to § 53a-21 because the statute
only allows reasonable physical force in defense of
property and, therefore, does not apply to § 53a-134 (a)
(3), which requires proof that the defendant used a
dangerous instrument during the robbery. Cf. State v.
Woolfolk, 8 Conn. App. 667, 672A, 517 A.2d 252 (1986)
(§ 53a-21 ‘‘is inapplicable to the charge of robbery while
armed with a deadly weapon’’), cert. denied, 202 Conn.
802, 519 A.2d 1207 (1987); see also General Statutes
§ 53a-21 (person ‘‘may use deadly physical force under
such circumstances only in defense of person as pre-
scribed in section 53a-19’’). The court held for the same
reason that the defendant was not entitled to a judgment
of acquittal on the ground that he owned the money
that he had attempted to take from Cooper. Thus, the
court implicitly held that, because the defendant had
been charged with using a dangerous instrument to
attempt to take the money from Cooper, the fact that
he owned the money was not a defense to the robbery
charge. Accordingly, the court denied the defendant’s
motion for a judgment of acquittal on the charge of
attempt to commit robbery in the first degree.2
Thereafter, the trial court instructed the jury that ‘‘[a]
person commits larceny when, with intent to deprive
another of property, he wrongfully takes, obtains, or
withholds such property from an owner.’’ It further
instructed the jury that ‘‘[w]rongfully means that the
defendant had no . . . legal justification or excuse for
taking the property. Under the circumstances of this
case, the defendant had no legal justification or excuse
to seek, through the use of force or the threat of the
use of force, repayment of any money that . . . Cooper
may have owed him.’’ After the jury began its delibera-
tions, the jurors sent a note to the trial court requesting
further explanation regarding ‘‘the issue of possession
of the money.’’ The note stated that ‘‘[o]ur specific con-
cern regards the issue of recovering what you perceive
as your own property/larceny-robbery. In our delibera-
tions should we be discussing who the money rightfully
belongs [to].’’ In response to this request, the trial court
repeated its instruction that the defendant had no justi-
fication or excuse to use force or the threat of force
to recover the money and further stated that ‘‘the fact
that the defendant perceived that the $294 was rightfully
his, does not permit him, lawfully, to use force or the
threat of the use of force, to get the money back.’’ The
defendant objected to the additional instruction on the
ground that the original instruction had been sufficient.
The jury found the defendant guilty of attempt to
commit robbery in the first degree and acquitted him
of the charge of attempt to commit kidnapping in the
first degree. The defendant subsequently filed a motion
for a new trial, in which he contended that the trial
court improperly had failed to instruct the jury that the
intent to take property that belonged to another is an
element of the crime of first degree robbery and that
the defendant could not be convicted of attempt to
commit that crime if the jury found that he ‘‘had an
innocent intent under a good faith claim or color of
right to get his $294 back.’’ The defendant also filed a
motion for acquittal raising the same claim. The trial
court denied both motions and rendered judgment in
accordance with the jury verdict.
The defendant appealed from the judgment of convic-
tion to the Appellate Court claiming, inter alia, that
‘‘the evidence was insufficient to establish beyond a
reasonable doubt that he, with the intent to deprive
another of property, wrongfully attempted to take,
obtain, or withhold such property from an owner, pursu-
ant to the larceny statute, General Statutes § 53a-119,
and that the state was required to prove all of the ele-
ments of larceny in order to prove all of the elements
of attempt to commit robbery in the first degree.’’3 State
v. Smith, supra, 148 Conn. App. 694. The Appellate
Court agreed with the defendant’s claim and, accord-
ingly, reversed the judgment of conviction and
remanded the case to the trial court with direction to
render a judgment of acquittal on the charge of attempt
to commit robbery in the first degree.4 Id., 721. This
appeal followed.
The state claims that the Appellate Court incorrectly
held that it was required to prove that the defendant
did not own the money that he attempted to take from
Cooper as an element of the crime of attempt to commit
robbery in the first degree.5 We disagree.
Whether the state must prove that a defendant was
not the owner of money that he took from another as
an element of the crime of robbery in the first degree
is a question of statutory interpretation over which we
exercise plenary review. State v. Fernando A., 294
Conn. 1, 13, 981 A.2d 427 (2009). ‘‘The process of statu-
tory interpretation involves the determination of the
meaning of the statutory language as applied to the
facts of the case, including the question of whether
the language does so apply.’’ (Internal quotation marks
omitted.) Id. ‘‘When construing a statute, [o]ur funda-
mental objective is to ascertain and give effect to the
apparent intent of the legislature. . . . In other words,
we seek to determine, in a reasoned manner, the mean-
ing of the statutory language as applied to the facts
of [the] case, including the question of whether the
language actually does apply. . . . In seeking to deter-
mine that meaning, General Statutes § 1-2z directs us
first to consider the text of the statute itself and its
relationship to other statutes. If, after examining such
text and considering such relationship, the meaning of
such text is plain and unambiguous and does not yield
absurd or unworkable results, extratextual evidence of
the meaning of the statute shall not be considered. . . .
The test to determine ambiguity is whether the statute,
when read in context, is susceptible to more than one
reasonable interpretation.’’ (Internal quotation marks
omitted.) Id., 13–14.
We begin with the language of the relevant statutes.
Section 53a-134 (a) provides in relevant part: ‘‘A person
is guilty of robbery in the first degree when, in the
course of the commission of the crime of robbery as
defined in section 53a-133 or of immediate flight there-
from, he or another participant in the crime . . . (3)
uses or threatens the use of a dangerous instrument
. . . .’’ General Statutes § 53a-133 provides: ‘‘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:
(1) Preventing or overcoming resistance to the taking
of the property or to the retention thereof immediately
after the taking; or (2) compelling the owner of such
property or another person to deliver up the property
or to engage in other conduct which aids in the commis-
sion of the larceny.’’ General Statutes § 53a-119 provides
in relevant part: ‘‘A person commits larceny when, with
intent to deprive another of property or to appropriate
the same to himself or a third person, he wrongfully
takes, obtains or withholds such property from an
owner. . . .’’ Finally, General Statutes § 53a-118 (a) (5)
defines ‘‘ ‘owner’ ’’ as ‘‘any person who has a right to
possession superior to that of a taker, obtainer or with-
holder.’’
Thus, the plain and unambiguous language of the
statutes provides that, if a defendant has a right to
possession that is superior to the right of the person
from whom he took property; see General Statutes
§ 53a-118 (a) (5); the defendant has not committed a
larceny because the person from whom he took the
property was not the owner, as required by § 53a-119.
Section 53a-133 also clearly provides that a defendant
can be convicted of robbery only if he has committed
a larceny. Accordingly, the plain and unambiguous lan-
guage of the statutes supports the Appellate Court’s
interpretation that a defendant cannot be convicted of
any form of robbery if the defendant was the owner of
the property that he took from another. Indeed, the
state concedes that this court previously has held that
the state is required to prove that a defendant commit-
ted a larceny as an element of first degree robbery.
State v. Lewis, 245 Conn. 779, 787, 717 A.2d 1140 (1998)
(‘‘[i]n order to prove the commission of a robbery, the
state must prove that the defendant committed lar-
ceny’’); see also State v. Jordan, 135 Conn. App. 635,
655, 42 A.3d 457 (2012) (‘‘[t]o prove that a defendant
is guilty of robbery, the state must prove that the defen-
dant had the specific intent to commit a larceny’’), rev’d
on other grounds, 314 Conn. 354, 390, 102 A.3d 1 (2014).
The state also concedes that ‘‘[o]ne who takes property
in good faith, under fair color of claim or title, honestly
believing that . . . he has a right to take it, is not guilty
of larceny even though he is mistaken in such belief,
since in such case the felonious intent is lacking.’’ (Inter-
nal quotation marks omitted.) State v. Varszegi, 33
Conn. App. 368, 373, 635 A.2d 816 (1993), cert. denied,
228 Conn. 921, 636 A.2d 851 (1994); see also id., 374
‘‘([i]f a person takes property in the honest, though
mistaken belief, that he has a right to do so, he has not
committed larceny’’), citing State v. Main, 75 Conn. 55,
57, 52 A. 257 (1902). Thus, the state concedes that both
the common law and the unambiguous language of the
relevant statutes supports the Appellate Court’s conclu-
sion that the defendant could not be convicted of
attempt to commit robbery because the state conceded
that he owned the property that he was accused of
attempting to take from Cooper.
The state contends, however, that the application of
the literal language of the governing statutes to cases
involving the use of force leads to ‘‘unconscionable,
anomalous or bizarre results.’’ State v. Salamon, 287
Conn. 509, 524, 949 A.2d 1092 (2008). Specifically, the
state contends that requiring the state to prove that a
defendant did not own property that the defendant took
from another by force would violate the public policy
against violent self-help. Accordingly, the state con-
tends, this court should now hold that the fact that a
defendant had no intent to commit larceny because he
intended only to take his own money is not a defense
to a charge of robbery. See id., 525 (court not bound
by literal language of statute when it leads to bizarre
results); see also United States v. Rutherford, 442 U.S.
544, 552, 99 S. Ct. 2470, 61 L. Ed. 2d 68 (1979) (‘‘[e]xcep-
tions to clearly delineated statutes will be implied only
where essential to prevent ‘absurd results’ or conse-
quences obviously at variance with the policy of the
enactment as a whole’’).
We are not persuaded. The robbery statutes prohibit
the use or threat of physical force to commit a larceny.
If a defendant had no intent to commit a larceny, we
can perceive no reason why the legislature would have
intended that the defendant still could be charged with
robbery instead of being charged with other offenses,
such as assault, unlawful restraint, threatening or reck-
less endangerment, that criminalize the use or threat-
ened use of restraint or physical force, standing alone.6
Indeed, the defendant in the present case was originally
charged with assault in the third degree in violation of
General Statutes § 53a-61, unlawful restraint in the first
degree in violation of General Statutes § 53a-95, reck-
less endangerment in the second degree in violation of
General Statutes § 53a-64, threatening in the second
degree in violation of General Statutes § 53a-62, and
breach of the peace in the second degree in violation
of General Statutes § 53a-181. Although the state has
cited several cases from other jurisdictions in which
courts have concluded that the fact that the defendant
owned the property that he was charged with taking
from another is not a defense to a robbery charge, those
cases do not explain why charging the defendant with
a crime for which he lacked the requisite intent is the
only way to discourage ‘‘lawless reprisal as an appro-
priate means of redressing grievances, real or fancied.’’7
(Internal quotation marks omitted.) State v. Hobbs, 64
P.3d 1218, 1223 (Utah App.), cert. denied, 72 P.3d 685
(Utah 2003). Accordingly, we do not find those cases
persuasive. Moreover, even if we were to agree with
the state that public policy supports its position, a literal
interpretation of the statutes certainly does not give
rise to a bizarre result, and mere disagreement with
legislative policy would not authorize us to ignore the
legislature’s plain intent.
We also are not persuaded by the state’s argument
that the legislature intended that § 53a-21 would provide
the exclusive defense to a charge that a defendant used
physical force to take property from another.8 Section
53a-21 provides in relevant part that ‘‘[a] person is justi-
fied in using reasonable physical force upon another
person when and to the extent that he reasonably
believes such to be necessary to prevent an attempt by
such other person to commit larceny . . . or when
and to the extent he reasonably believes such to be
necessary to regain property which he reasonably
believes to have been acquired by larceny within a rea-
sonable time prior to the use of such force . . . .’’ The
state contends that, because this statute provides the
exclusive defense to a charge that a defendant has used
physical force to take property from another, and,
because the statute does not apply when a defendant
has used unreasonable force, a defendant who has used
unreasonable force to take his own property from
another may be charged with robbery. In support of
this claim, the state relies on the Appellate Court’s deci-
sion in State v. Messier, 16 Conn. App. 455, 549 A.2d
270, cert. denied, 209 Conn. 829, 552 A.2d 1216 (1988).
In that case, the defendant was convicted of one count
of burglary in the first degree and two counts of robbery
in the second degree after he broke into the victim’s
apartment on two occasions, assaulted the victim and
took from him money and other valuables. Id., 456–57.
On appeal to the Appellate Court, the defendant con-
tended that he could not be convicted of burglary or
robbery because he owned the property that he had
taken. Id., 461. The Appellate Court treated the defen-
dant’s claim as raising a justification defense pursuant
to § 53a-21 and concluded that, even if the defendant
owned the property, his actions were not justified
because they were not ‘‘ ‘reasonable’ ’’ as required by
that statute.9 Id., 461–62.
As we have explained, however, under the plain lan-
guage of the governing statutes and the common law,
a person who takes his own property from another
simply has not committed a larceny. Accordingly, as
we have also explained, a defendant who used unrea-
sonable force to take his own property (or, indeed, a
third person’s property) from another person in order
to prevent an attempted larceny could not be charged
with robbery in the first instance, but could be charged
only with an offense involving the use or threatened use
of physical force, such as assault or unlawful restraint.
Thus, it is apparent that § 53a-21 was intended to pro-
vide a justification defense to a charge involving the
unlawful use of physical force and has no effect on the
lawfulness of a person’s conduct in taking his own
property from another. See State v. Smith, supra, 148
Conn. App. 727 (Sheldon, J., concurring) (‘‘[t]he careful
articulation of the defense of justification, as set forth
in § 53a-21, was obviously designed to establish . . .
limitations on the use of force to accomplish the lawful
purpose of retaking stolen property from a thief, not
to determine the lawfulness, as a threshold matter, of
the underlying retaking, which was unquestioned in
light of the owner’s lack of felonious intent’’ [emphasis
added]). Accordingly, we reject the state’s claim that
§ 53a-21 somehow bars a defendant from raising the
claim that he did not commit a larceny as a defense to
a robbery charge. To the extent that State v. Messier,
supra, 16 Conn. App. 455, can be interpreted as indi-
rectly supporting the proposition that a defendant may
be convicted of an offense requiring proof of an intent
to commit larceny if the defendant was the owner of the
property that he was accused of taking from another, it
is hereby overruled.10
Finally, the state claims that this court’s decision
in State v. Morant, 242 Conn. 666, 701 A.2d 1 (1997),
supports its claim that a defendant’s ownership of prop-
erty that he took from another is not a defense to a
charge of robbery. We disagree. In Morant, the defen-
dant was convicted of two counts of felony murder.
Id., 667. The jury reasonably could have found that the
defendant and an accomplice had shot the two victims
and taken money and contraband drugs from them. Id.,
668–69. The defendant appealed from the judgment of
conviction to this court, claiming that he could not be
convicted of robbery, which was the predicate offense
for the felony murder charges, because he owned the
money and drugs that he took from the victims. Id., 670.
This court concluded that the defendant was precluded
from claiming ownership of contraband, the possession
of which is illegal, or money obtained from its sale. Id.,
671–72. The court further concluded that, for purposes
of § 53a-118 (a) (5), which defines ‘‘ ‘owner,’ ’’ the vic-
tims’ custody and control of the contraband was suffi-
cient to support a charge of larceny. Id., 673; see also
State v. Crosswell, 223 Conn. 243, 252–54, 612 A.2d
1174 (1992) (victims’ custody and control of money
was sufficient to establish that they were owners under
§ 53a-118 [a] [5] when evidence established that defen-
dant was not owner and was not acting on behalf of
rightful owner when he took property from victims).
Thus, this court in Morant merely held that a defendant
cannot claim ownership in contraband for purposes of
raising a defense to a robbery charge, and that a victim’s
possession and control of contraband is sufficient to
establish ownership under § 53a-118 (a) (5). The court
did not hold that a defendant’s ownership of the prop-
erty that he was accused of taking from another is never
a defense to a robbery charge or that a robbery victim’s
mere possession of property is always sufficient to
establish ownership.11
Accordingly, we conclude that the Appellate Court
properly reversed the judgment of conviction on the
charge of attempt to commit robbery in the first degree
and remanded the case to the trial court with direction
to render a judgment of acquittal on that charge.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
General Statutes § 53a-21 provides: ‘‘A person is justified in using reason-
able physical force upon another person when and to the extent that he
reasonably believes such to be necessary to prevent an attempt by such
other person to commit larceny or criminal mischief involving property, or
when and to the extent he reasonably believes such to be necessary to
regain property which he reasonably believes to have been acquired by
larceny within a reasonable time prior to the use of such force; but he may
use deadly physical force under such circumstances only in defense of
person as prescribed in section 53a-19.’’
2
The trial court also denied the defendant’s motion for a judgment of
acquittal on the charge of attempt to commit kidnapping in the first degree.
3
The defendant’s insufficiency of the evidence claim was premised on
his argument that the state was required to prove that he did not own the
money that he attempted to take from Cooper in order for the jury to convict
him of attempt to commit robbery in the first degree. As we have explained,
however, the trial court instructed the jury that the defendant’s ownership
of the money would not justify or excuse the robbery, and it gave no
instruction that proof that the defendant did not own the money was an
element of the offense. The defendant did not expressly raise a claim on
appeal to the Appellate Court that the trial court had improperly instructed
the jury on the elements of § 53a-134 (a) (3), which is the predicate for his
insufficiency of the evidence claim. Because the state has made no claim
that the defendant failed to raise this issue in the trial court or that he did
not distinctly raise the issue in the Appellate Court, we conclude that the
issue of the proper interpretation of § 53a-134 (a) (3) was properly before
that court.
4
The Appellate Court also stated that there was ‘‘a lack of evidentiary
support for the conclusion that the defendant intended to take any currency
or property worth $294 . . . .’’ (Emphasis in original.) State v. Smith, supra,
148 Conn. App. 712. It is unclear whether the Appellate Court concluded
that, even if the defendant did not own the money at issue, he still could
not be convicted of attempt to commit robbery in the first degree because
he did not attempt to take it from Cooper, an issue that the defendant did
not raise on appeal to the Appellate Court. We need not resolve this issue,
however, because we conclude that, even if the defendant attempted to
take the money from Cooper, he could not be convicted of attempt to
commit robbery in the first degree because the state has conceded that he
owned the money.
The Appellate Court also raised, sua sponte, the question of whether the
defendant had attempted to take the specific currency that he had sent to
Cooper or, instead, he was attempting to force Cooper to pay a debt. Id.,
712–16. The Appellate Court ultimately concluded, however, that the issue
was not properly before the court because the state had presented no
evidence that would support a finding that the defendant was attempting
to enforce payment of a debt. Id., 714–15. Because the state failed to raise
this issue at trial, but conceded that the defendant owned the specific money
that he attempted to take from Cooper, we reject the state’s claim that it
is entitled to a new trial at which it can present evidence that the defendant
was attempting to enforce a debt.
5
The defendant claims, as an alternative ground for affirmance, that he
was denied his due process right to a fair trial because the prosecutor
engaged in prosecutorial impropriety. Because we agree with the Appellate
Court’s conclusion that the state did not prove all of the elements of attempt
to commit robbery in the first degree, we need not address this claim.
6
Courts in several other jurisdictions also have reached the same conclu-
sion. See People v. Tufunga, 21 Cal. 4th 935, 948, 987 P.2d 168, 90 Cal. Rptr.
2d 143 (1999) (‘‘[a] conclusion . . . that a claim of right, for policy reasons,
should no longer be recognized as a defense to robbery—even where the
defendant can establish that he is taking back specific property to which
he has lawful title or a bona fide claim of ownership—would mean such a
defendant could be convicted of robbery based on theft of his own property,
a proposition that would stand in patent conflict with both the commonsense
notion that someone cannot steal his own property, and the corollary rule
that ‘theft,’ the taking of ‘the personal property of another’ . . . is a lesser
included offense at the core of every robbery’’ [citation omitted; emphasis
omitted]); id., 949 (‘‘[i]t is difficult to hypothesize facts whereby a defendant
who has used sufficient force or threats of violence to regain what he in
good faith believes is his own property, thereby exposing himself to a charge
of robbery but also possibly qualifying him to interpose a claim-of-right
defense, has not also acted in a sufficiently forceful, violent or threatening
manner as would separately expose him to prosecution and punishment for
assaultive conduct against the robbery victim’’); Edwards v. State, 49 Wis.
2d 105, 112–13, 181 N.W.2d 383 (1970) (‘‘If a person seeks to repossess
himself of specific property which he owns and to which he has the present
right of possession and the means he uses involves a gun or force, he might
not have the intention to steal. While the reclamation of specific removable
property at gun point by the owner may not be armed robbery, such self-
help may and generally does constitute a lesser crime than robbery. Thus
the deterrence of and punishment for such conduct required by public policy
are satisfied.’’); see also Commonwealth v. Larmey, 14 Mass. App. 281, 285,
438 N.E.2d 382 (1982) (jury instruction that defendant should be acquitted
of robbery charge if he believed that money he took from victims had been
stolen by them and he intended to return it to owners), overruled on other
grounds by Commonwealth v. Liebenow, 470 Mass. 151, 152 n.1, 20 N.E.3d
242 (2014); People v. Holcomb, 395 Mich. 326, 333, 235 N.W.2d 343 (1975)
(‘‘[i]f the defendant in good faith believed that the money which he demanded
was his money, and that he was entitled to its possession, he could not be
guilty of either robbery or larceny in taking it, because there would be no
felonious intent’’ [internal quotation marks omitted]); State v. Mejia, 141
N.J. 475, 496, 662 A.2d 308 (1995) (‘‘a defendant charged with theft or robbery
may present evidence proving that the property taken was the defendant’s
and not the ‘property of another’ ’’ to negate elements of crime), overruled
on other grounds by State v. Cooper, 151 N.J. 326, 377, 700 A.2d 306 (1997);
People v. Green, 5 N.Y.3d 538, 544, 841 N.E.2d 289, 807 N.Y.S.2d 321 (2005)
(claim that property belonged to defendant would negate element of larce-
nous intent for purposes of defending against robbery charge); State v.
Snowden, 7 Ohio App. 3d 358, 363, 455 N.E.2d 1058 (1982) (defendant’s
honest belief that he had right to property he was accused of stealing would
negate intent element of robbery charge); 3 W. LaFave, Substantive Criminal
Law (2d Ed. 2003) § 20.3 (b), pp. 175–76 (‘‘The intent to steal [the animus
furandi, to use the Latin term] required for larceny is the same intent to
steal [or, as it is sometimes called, intent to rob] needed for robbery. Thus
the same factors which negative the intent to steal in larceny will negative
the intent to rob in robbery—as where the taking is under an honest, though
mistaken, claim of ownership of, or claim of a lawful right to possess, the
property . . . .’’ [Footnotes omitted.]); 3 W. LaFave, supra, pp. 177–78 (‘‘[o]f
course, one who collects debts . . . by use of violence or intimidation,
though he is not guilty of robbery, need not go free; he is guilty of at least
simple battery if he uses force, and of simple assault if he uses intimidation,
and of aggravated assault or battery [e.g., assault with a deadly weapon]
under appropriate circumstances’’ [footnote omitted]); cf. State v. Mejia,
supra, 497–500 (under New Jersey law, proof that defendant honestly
believed that he was recovering his own property is affirmative defense to
theft charge, but not to robbery charge).
7
See Drake v. State, 929 A.2d 768, 773 (Del. 2007) (claim of right is not
defense to robbery charge), overruled on other grounds by Wright v. State,
953 A.2d 144, 148 and n.12 (Del. 2008); State v. McMillen, 83 Haw. 264, 267,
925 P.2d 1088 (1996) (claim-of-right defense does not apply to robbery
charge); State v. Miller, 622 N.W.2d 782, 785 (Iowa App. 2000) (‘‘[t]he modern
trend among other states has been to decline to recognize the claim-of-right
defense to offenses involving force, such as robbery or burglary’’); State v.
Miller, supra, 786 (‘‘basic public policy dictates that even rightful owners
should not be permitted to perpetrate break-ins or use force to regain their
property, once it has been taken’’); State v. Ortiz, 124 N.J. Super. 189, 192,
305 A.2d 800 (1973) (rejecting claim-of-right defense to robbery as ‘‘not only
lacking in sound reason and logic, but . . . utterly incompatible with and
[having] no place in an ordered and orderly society such as ours, which
eschews self-help through violence’’); Commonwealth v. Sleighter, 495 Pa.
262, 266–67, 433 A.2d 469 (1981) (‘‘[w]hile there exists case law which
provides that under certain isolated circumstances a good faith claim of
right will negate the requisite mental element for theft, certainly where there
is violence or threat of violence in the assertion of that claim of right, the
law does not excuse the actor who so asserts his claim’’); Elliott v. State,
2 Tenn. Crim. App. 418, 420, 454 S.W.2d 187 (1970) (claim of right is not
defense to robbery charge), superseded by statute as stated in State v.
Leonard, Docket No. M2006-00136-CCA-R3-CD, 2007 Tenn. Crim. App. LEXIS
279 (2007) (unpublished opinion); State v. Hobbs, 64 P.3d 1218, 1222 (Utah
App.) (‘‘[w]here the legislature was obviously aware of the availability of
the claim of right defense, having included it within the definition of theft,
we assume the legislature would have included it within the robbery statute
had the legislature intended to do so’’), cert. denied, 72 P.3d 685 (Utah 2003);
see also People v. Scearce, 87 P.3d 228, 231 (Colo. App. 2003) (because state
robbery statute did not require proof of theft as element of crime, claim-
of-right defense to theft charge was not defense to robbery charge).
A number of courts have held that there is no claim-of-right defense to
a robbery charge when the defendant took the property in payment of a
debt and did not own the specific property that he took. See People v.
Tufunga, 21 Cal. 4th 935, 956, 987 P.2d 168, 90 Cal. Rptr. 2d 143 (1999);
People v. English, 32 Ill. App. 3d 691, 693, 336 N.E.2d 199 (1975) (‘‘it is the
law and policy of this [s]tate that a creditor may not employ violence, threats,
or weapons to collect the debt but should pursue his remedies in the normal
channels of peaceful and legal redress’’); State v. Russell, 217 Kan. 481, 483,
536 P.2d 1392 (1975) (‘‘the violent taking of property from the person of
another by force or intimidation for the purpose of applying it to payment
of an alleged debt constitutes the offense of robbery where the taker has
no bona fide claim of title or right to the possession of the particular
property’’ [emphasis omitted; internal quotation marks omitted]); State v.
Jackson, 55 So. 3d 767, 772 (La. 2011) (claim of right was not defense to
robbery charge when defendant was collecting debt and not recovering
specific property that belonged to him); Commonwealth v. Dombrauskas,
274 Pa. Super. 452, 459, 418 A.2d 493 (1980) (‘‘the modern and better reasoned
rule is that a claim of right defense is not available to one who employs
force or stealth to recoup money lost in a gambling game or to collect an
unliquidated debt’’); Crawford v. State, 509 S.W.2d 582, 585 (Tex. Crim. App.
1974) (overruling prior case in which court had concluded that creditor’s
assault on debtor for purpose of collecting debt does not constitute robbery).
It would appear that this court previously has held to the contrary. See
State v. Sawyer, 95 Conn. 34, 39, 110 A. 461 (1920) (‘‘one who takes another’s
goods to compel him, though in an irregular way, to do what the law requires
him to do with them—namely pay his debt—is on no legal principle a felon,
though doubtless he is a trespasser’’ [internal quotation marks omitted]).
As we have indicated herein, however, the question of whether the defendant
in the present case was attempting to recover his own specific property or,
instead, was attempting to collect on a debt, is not before us in the present
case. See footnote 4 of this opinion.
8
Specifically, the state contends that the public policy against violent self-
help ‘‘is reflected in the related justification defense of defense of property,
pursuant to . . . § 53a-21. This court may infer that the legislature intended
to carve out an exception to the standard operation of the robbery statute,
and the ordinary meaning of its elements, in order to accommodate and
implement this public policy.’’
9
It is unclear whether the defendant in Messier expressly invoked § 53a-
21 or, instead, the Appellate Court invoked the statute sua sponte. As we
discuss more fully later in this opinion, the justification defense provided
by the statute simply has no bearing on a claim that the state has failed to
establish the intent to steal element of larceny.
10
Similarly, in State v. Woolfolk, supra, 8 Conn. App. 669, the defendant
expressly invoked § 53a-21 to support his claim that he could not be con-
victed of robbery in the first degree if the jury concluded that the victims
had obtained the property at issue from the defendant by larceny. The
Appellate Court concluded that § 53a-21 was not a defense to a robbery
charge because the statute is limited to the use of reasonable physical force
in the defense of property. Id., 672A. The court did not directly address the
question of whether a person who has been accused of taking property that
he owned from another could have the requisite intent to commit a robbery.
To the extent that Woolfolk can be interpreted as answering that question
in the affirmative, it is also overruled.
11
We recognize that, in Morant, this court cited several cases for the
general proposition that public policy frowns on the use of violence to
enforce a legal claim. State v. Morant, supra, 242 Conn. 672–73; see People
v. English, 32 Ill. App. 3d 691, 693, 336 N.E.2d 199 (1975) (‘‘a creditor may
not employ violence, threats, or weapons to collect the debt but should
pursue his remedies in the normal channels of peaceful and legal redress’’);
State v. Mejia, 141 N.J. 475, 499, 662 A.2d 308 (1995) (‘‘emerging trend in
other jurisdictions rejects the claim-of-right defense to robbery’’), overruled
on other grounds by State v. Cooper, 151 N.J. 326, 377, 700 A.2d 306 (1997).
Because the court had already concluded in Morant, however, that the
defendant did not own the contraband that he had been accused of taking
from another, and the question of whether a person can be charged with
robbery for taking his own property from another was not before the court,
this language in Morant was dictum. Although we obviously continue to
believe that a person should not use unreasonable force to take property
that the person owns from another, and that such conduct is punishable as
an assault type offense, for the reasons set forth in this opinion, we now
disavow this dictum to the extent that it suggests that the use of unreasonable
force to take one’s own property can constitute robbery.