State v. Jarmon ( 2020 )

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STATE v. JARMON—CONCURRENCE AND DISSENT
FLYNN, J., concurring and dissenting. I write sepa-
rately because I respectfully dissent from part I of the
majority opinion. I disagree that the evidence was suffi-
cient to show that each of the three weapons stolen
was operable at the time of the theft. I therefore would
reverse the defendant’s conviction of the three counts
of stealing a firearm in violation of General Statutes
§ 53a-212 (a). I concur in both the reasoning and result
reached in parts II and III of the majority opinion.
The defendant was charged in three separate counts
of the information with stealing a firearm in violation
of § 53a-212 (a). An element of § 53a-212 (a) requires
that the stolen instrumentality be a firearm, as defined
by General Statutes § 53a-3 (19). State v. Sherman, 127
Conn. App. 377, 395, 13 A.3d 1138 (2011), cert. denied,
330 Conn. 936, 195 A.3d 385 (2018). Pursuant to this
definition of ‘‘[f]irearm,’’ the weapon must be one ‘‘from
which a shot may be discharged . . . .’’ General Stat-
utes § 53a-3 (19). Thus, operability is an essential ele-
ment of stealing a firearm. State v. Carpenter, 19 Conn.
App. 48, 59, 562 A.2d 35, cert. denied, 213 Conn. 804,
567 A.2d 834 (1989). I agree with the majority that the
General Assembly, by defining firearm in such a manner
that it must be operable, burdened the state to prove
beyond a reasonable doubt the operability element of
the crime as to each theft count charged. The state had
to prove beyond a reasonable doubt that each of the
three weapons, when stolen, constituted a ‘‘[f]irearm,’’
meaning that they were operable on the date of the
criminal act of taking them, not simply operable at some
earlier time. See State v. Bradley, 39 Conn. App. 82,
91–92, 663 A.2d 1100 (1995), cert. denied, 236 Conn. 901,
670 A.2d 322 (1996). ‘‘[W]e presume that the legislature
intends sensible results from the statutes it enacts.’’
(Internal quotation marks omitted.) State v. Pommer,
110 Conn. App. 608, 614, 955 A.2d 637, cert. denied,
289 Conn. 951, 961 A.2d 418 (2008). The legislature’s
enactment of a statutory operability requirement for
violations of § 53a-212 (a) would make no sense if a
weapon could be inoperable on the date of the crime
involving its theft.
Where I disagree with the majority, is that in my
opinion, the state has not established by sufficient evi-
dence beyond a reasonable doubt that each of the stolen
weapons was ‘‘operable’’ at the time stolen. Proof
beyond reasonable doubt is the highest form of proof
and requires more than the tipping of the scales by a
preponderance of evidence. Where proof is offered by
circumstantial evidence, this means that although not
each fact of the circumstances needs to be proved,
beyond a reasonable doubt, the cumulative force of all
of the evidence must suffice to convince the jury of
each element of the crime beyond a reasonable doubt.
See State v. Papandrea, 302 Conn. 340, 348–49, 26 A.3d
75 (2011). The defendant at the close of the state’s case
moved for a judgment of acquittal on the three counts
of stealing a firearm in violation of § 53a-212 (a) because
of insufficiency of the evidence.1 The court denied the
motion. The defense counsel premised his motion on
the lack of evidence of any eyewitness seeing the defen-
dant fleeing with firearms. On appeal, he now argues
the evidence was insufficient to show operability of
each of the stolen firearms. In State v. Adams, 225 Conn.
270, 623 A.2d 42 (1993), our Supreme Court followed the
ruling of the United States Supreme Court in Jackson
v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d
560 (1979), in holding that ‘‘any defendant found guilty
on the basis of insufficient evidence has been deprived
of a constitutional right’’ and is entitled to review as
the court does with ‘‘any properly preserved claim.’’
State v. Adams, supra, 276 n.3
None of the weapons stolen was recovered and their
owner, Niko Infanti (Niko), did not testify. Therefore,
the state’s case as to these charges was reliant on infer-
ences to be drawn from circumstantial evidence based
on: testimony of three witnesses; photographs of Niko’s
shotgun and case that were not stolen; a photograph
of Niko’s empty nightstand drawer; various photo-
graphs of Niko’s bedroom depicting his bed, laundry
baskets, television, and other miscellaneous items with-
out the stolen weapons present; and Niko’s firearm reg-
istrations.
One of the difficulties I see with the sufficiency of
the proof in this case is that not only did the long form
information fail to identify any of the three weapons
stolen by manufacturer, serial number or other identi-
fying characteristics, but the testimony elicited from
witnesses referred in general to weapons owned by
Niko rather than relating to individual weapons. The
jury was instructed by the court: ‘‘Just to let you know,
these counts are contained in one paragraph, but they
have to be considered separately by you in your deliber-
ations,’’ which is an accurate statement of our law.
Although the jury was so instructed, and some of the
evidence differed as to each weapon, I do not see how
the jury could weigh each weapons count separately
where none of the stolen weapons counts identified the
weapon charged in that particular count.
Where inferences are asked to be drawn from circum-
stantial evidence, the point at which inferences become
too remote and venture off into the realm of impermissi-
ble speculation is largely a matter of judgment. See
State v. Niemeyer, 258 Conn. 510, 518, 782 A.2d 658
(2001). The evidence as to operability in this case is a
close question. In all cases where evidentiary suffi-
ciency is an issue, however, the requirement that evi-
dence should be given the most favorable construction
in favor of the verdict does not end the analysis. When
inferences become too stretched, remote, and specula-
tive, they cannot constitute proof beyond a reasonable
doubt. See id., 518–19.
The defendant’s involvement in the separate crimes
of home invasion, robbery, and burglary is reprehensi-
ble. However, the United States Supreme Court has
held that: ‘‘The constitutional necessity of proof beyond
a reasonable doubt is not confined to those defendants
who are morally blameless.’’ Jackson v. Virginia, supra,
443 U.S. 323. It is my opinion that the evidence in this
case was insufficient to prove guilt beyond a reasonable
doubt as to the element of operability regarding the
three charged counts of stealing a firearm.
The crime of stealing a firearm requires, because of
the statutory definition of ‘‘[f]irearm,’’ that the weapons
taken be operable at the time of the taking on April 12,
2015, not months earlier. An exhibit in evidence, state’s
exhibit 24, shows that Niko took possession of: a Henry
Repeating Rifle Company .22 caliber rifle, serial number
US089867B, over a year before the theft; a Heckler
and Koch 9 millimeter pistol, serial number 129055936,
eleven months before the theft; and a Savage .7 caliber
bolt action rifle, serial number J135063, over nine
months before the theft.2 None of these purchases was
close in time to April 12, 2015. For that reason, even if
the jury credited the documentary evidence of when
Niko purchased the three weapons at issue, and inferred
that each such weapon probably was an operable
weapon at the time purchased, it would not be sufficient
to show beyond a reasonable doubt that the stolen
weapons were still operable on the day they were taken.
The state elicited testimony as to Niko’s general hab-
its regarding his weapons. The testimony, however, was
vague and failed to establish a temporal proximity from
which the jury reasonably could infer that the general
habits, to the extent that they could indicate operability,
occurred and continued close enough in time to the
incident so that an inference of operability would be rea-
sonable.
First, there was evidence that Niko kept a safety on
his weapons and the state asked the jury to infer that
one would not keep a safety on weapons unless they
were operable. This was evidence of a general habit.
For an inference of operability to be drawn as to each
gun’s operability on the day in question, because they
were left stored with a safety on, there would have to
be evidence that each weapon stolen was so stored
with the safety in the ‘‘on’’ position on the date stolen
or very close in time to it.
Second, the evidence that Niko sometimes went to
‘‘training grounds’’ could not support an inference that
all weapons stolen were operable. No additional evi-
dence was offered, such as whether the ‘‘training
grounds’’ were actually a pistol range or rifle range at
which weapons like those stolen could be fired; no
evidence of how recently Niko went to the training
grounds prior to the weapons being stolen; and no evi-
dence of whether Niko took the stolen pistol and rifles
with him. There was no further evidence as to what a
training ground is or was. The jury could only speculate
as to whether the training grounds had a pistol range
or rifle range at which guns could be shot or whether
Niko went to such a range close in time to the date of
the theft.
Third, there was evidence that Niko kept the handgun
in a night table near his bed in a lockbox, and the state
urges the jury could infer from that fact that he must
have kept it there for protection and would not have
done so unless it could be fired. However, Niko’s sisters,
Kade and Christina, did not often go into that room nor
did they say when they had last seen the handgun stored
there that way in relation to the date of the crime. Kade
testified that Niko ‘‘[v]ery rarely let anybody’’ into his
bedroom and that she had not been in his room for
approximately one month prior to the incident.
Additionally, there was evidence that the long guns
were stored behind some cans of food in a bedroom,
in what are sometimes described as bags and sometimes
described as cases. The state urges that they would not
have been so obscured from view or so kept in the bags
or cases unless they were dangerous and unless they
could be fired and, thus, were operable. In addressing
the obscuration issue, I note that although Christina
testified that the long guns were stored behind food
cans, she testified that prior to the incident, she had
not been in Niko’s room since he had left for Arizona
days earlier. Her sister, Kade, also testified that they
were hidden behind cans of food. The testimony that
had the closest temporal nexus came from Nathaniel
Garris. Garris, who lived in the same room as Niko and
occupied it on the day of the theft, however, testified
as to the long guns that ‘‘[l]ike, they’re not hidden,’’ but
rather ‘‘were just out, but they were in cases.’’ He further
testified that if one walked into Niko’s room ‘‘you would
be able to see at least three. . . . Two rifles and a
shotgun.’’ This state’s evidence could not suffice to per-
mit a finding of operability on the basis of obscuration.3
The testimony at trial variously describes the contain-
ers in which the guns were stored as bags or cases.
That disparity in description is problematic in itself.
However, the state argues that the jury could permissi-
bly draw an inference from testimony that these con-
tainers were locked that they were, in effect, dangerous
and therefore operable. However, there is no evidence
that somehow bags could be locked. In my opinion, the
jury could not permissibly have drawn an inference
from the testimony that these containers were locked.
A photograph of a similar bag, which had housed the
shotgun not stolen, introduced into evidence did not
have a lock on it.
The state maintains that the circumstantial evidence,
the cumulative force of which given the most favorable
construction in support of the verdict as the law
requires, permitted a finding beyond a reasonable doubt
that the guns were operable on the day they were stolen.
However, the cases decided on the basis of circumstan-
tial evidence that stolen weapons were operable at the
time of their theft generally permit a finding by the jury
that that close temporal operability connection exists
because it links the evidence of operability to the time
of the robbery of the weapons. For example, witness
testimony that an explosive bang was heard at the time
of the incident, testimony from ballistic experts who,
shortly after a crime, successfully fire a weapon seized,
or other evidence showing the link between the opera-
bility of the weapon that the statute requires at the time
of the theft. See, e.g., State v. Rogers, 50 Conn. App.
467, 469, 475, 718 A.2d 985, cert. denied, 247 Conn. 942,
723 A.2d 319 (1998) (sufficient evidence of operability
where front passenger displayed gun and witness saw
gunfire from passenger seat area); State v. Bradley,
supra, 39 Conn. App. 91 (firearm operable when tested
three days after defendant possessed it); State v. Hopes,
26 Conn. App. 367, 377, 602 A.2d 23 (jury could infer
operability from evidence that nearby witnesses heard
gunshots and felt something pass by them), cert. denied,
221 Conn. 915, 603 A.2d 405 (1992). In the present case,
the evidence was too vague and remote in time from
the theft to provide the jury with any reasonable basis
on which to infer operability at the time of the theft.
For all of these reasons, I do not believe, that from
the evidence before it, the jury could logically infer
beyond a reasonable doubt that the stolen weapons
were operable at the time they were stolen. Accordingly,
I would reverse the conviction of the three counts of
stealing a firearm in violation of § 53a-212 (a).
1
Practice Book § 42-40 expressly provides that a defendant may do so,
as it states in relevant part: ‘‘After the close of the prosecution’s case-in-
chief or at the close of all the evidence, upon motion of the defendant or
upon its own motion, the judicial authority shall order the entry of a judgment
of acquittal as to any principal offense charged . . . for which the evidence
would not reasonably permit a finding of guilty. . . .’’
2
The exhibit also gave details for the shotgun, which was not stolen.
3
While in Niko’s room, the defendant saw a gun case or bag and asked
if it was a guitar case. The defendant was able to see the long guns well
enough in Niko’s room to locate and remove them.