State v. Stephenson , 187 Conn. App. 20 ( 2019 )


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    STATE OF CONNECTICUT v. JOSEPH
    A. STEPHENSON
    (AC 40250)
    Sheldon, Bright and Mihalakos, Js.
    Syllabus
    Convicted of the crimes of burglary in the third degree, attempt to commit
    tampering with physical evidence and attempt to commit arson in the
    second degree in connection with a break-in at a courthouse, the defen-
    dant appealed to this court. The defendant had two felony charges
    pending against him and was scheduled to commence jury selection in
    a trial of those pending charges. Two days before the start of jury
    selection, a silent alarm was triggered at the courthouse at approximately
    11:00 p.m. Upon arrival, the state police discovered, inter alia, a broken
    window in an interior state’s attorney’s office, a black duffel bag with
    six unopened canisters of industrial strength kerosene on the floor of
    a state’s attorney’s office and several case files lying in a disorganized
    pile on the floor near a secretary’s desk area. The defendant claimed,
    inter alia, that the evidence presented at trial was insufficient to support
    his conviction of each offense as charged by the state, which alleged,
    as a common essential element of each charge, that the defendant had
    entered the courthouse with the intent to commit the crime of tampering
    with physical evidence therein so as to impair the availability of his
    case files for use against him in the prosecution of the pending felony
    charges. Held that the evidence was insufficient to support the defen-
    dant’s conviction of the charged offenses; although there was physical
    evidence that directly linked the defendant to the bag containing the
    kerosene, which supported an inference that the defendant dropped the
    bag where the police found it, there was no such evidence that placed
    the defendant in the office where the files were located, as the state
    presented no evidence at all from which the jury reasonably could have
    inferred that the defendant entered the courthouse through the broken
    window of the interior office and went to a filing cabinet in another
    office and removed the files found on the floor, and although the state
    argued that the defendant’s intent to tamper with physical evidence,
    necessary to prove him guilty of each charged offense, could be inferred
    from his handling of the files, the evidence presented, which did not
    include the names of the disorganized case files or where those files
    had been stored in the office before the intruder entered, show that the
    intruder had touched, altered, destroyed, concealed or removed any of
    the case files, or address any reason why the defendant might have
    wanted to tamper with his case files, showed only that the defendant
    entered the courthouse through the broken window, walked through
    the office, and dropped the duffel bag on the floor; accordingly, in the
    absence of any evidence that the defendant ever touched case files in
    the state’s attorney’s office, or that he did so with the intent to tamper
    with such files or their contents, the jury reasonably could not have
    inferred that the defendant had that intent, as required to prove him
    guilty of each of the three offenses of which he was convicted, and,
    thus, his conviction could not stand.
    Argued September 11, 2018—officially released January 8, 2019
    Procedural History
    Substitute information charging the defendant with
    the crimes of burglary in the third degree, attempt to
    commit tampering with physical evidence, and attempt
    to commit arson in the second degree, brought to the
    Superior Court in the judicial district of Stamford-Nor-
    walk and tried to the jury before White, J.; verdict and
    judgment of guilty, from which the defendant appealed
    to this court. Reversed; judgment directed.
    Vishal K. Garg, for the appellant (defendant).
    Sarah Hanna, assistant state’s attorney, with whom,
    on the brief, were Richard J. Colangelo, Jr., state’s
    attorney, and Michelle Manning, assistant state’s attor-
    ney, for the appellee (state).
    Opinion
    SHELDON, J. The defendant, Joseph A. Stephenson,
    appeals from the judgment of conviction rendered
    against him after a jury trial in the Stamford Superior
    Court on charges of burglary in the third degree in
    violation of General Statutes § 53a-103, attempt to com-
    mit tampering with physical evidence in violation of
    General Statutes §§ 53a-49 (a) (2) and (Rev. to 2013)
    53a-155 (a) (1),1 and attempt to commit arson in the
    second degree in violation of General Statutes §§ 53a-
    49 (a) (2) and 53a-112 (a) (1) (B). The defendant claims
    on appeal that (1) the evidence presented at trial was
    insufficient to support his conviction on those charges,
    and thus that he is entitled to the reversal of his convic-
    tion and the entry of a judgment of acquittal on each
    such charge, and (2) the court improperly prevented
    him from presenting exculpatory testimony from his
    trial attorney as to a conversation between them two
    days before his alleged commission of the charged
    offenses that tended to contradict the state’s claim that
    he had a special motive for committing those offenses.
    We agree with the defendant that the evidence pre-
    sented at trial was insufficient to convict him of any of
    the charged offenses, as the state charged and sought
    to prove them in this case, and, thus, we conclude that
    his conviction on those charges must be reversed and
    this case must be remanded with direction to render a
    judgment of acquittal thereon. In light of this conclu-
    sion, we need not address the defendant’s second claim.
    The following procedural history and evidence, as
    presented at trial, are relevant to our resolution of the
    defendant’s claims. On Sunday, March 3, 2013, at
    approximately 11:00 p.m., the silent alarm at the Nor-
    walk Superior Courthouse was triggered by the break-
    ing of a window in the state’s attorney’s office on the
    east side of the courthouse.2 Soon thereafter, Connecti-
    cut State Trooper Justin Lund arrived at the courthouse,
    followed almost immediately by Troopers Darrell
    Tetreault and Alex Pearston. Upon Tetreault’s arrival,
    he saw Lund standing ‘‘right against the building, at the
    window, with his firearm deployed yelling at somebody
    in the building.’’ Because, however, Lund was later
    injured and could not testify at the defendant’s trial, no
    evidence was presented as to what, if anything, he saw
    or heard through the broken courthouse window at
    that time.
    The troopers promptly established a perimeter
    around the outside of the courthouse and radioed for
    the assistance of a canine unit. When a canine unit
    arrived several minutes later, the troopers followed it
    inside the courthouse, which they promptly searched
    for intruders, without success.
    The searching officers determined that the broken
    window was located in an interior office on the east
    side of the state’s attorney’s office, which was shared
    by two assistant state’s attorneys, each of whom kept
    a desk and certain personal effects in the office. Photos
    of the interior office taken after the break-in showed
    that a set of blinds that had been hanging in the window
    through which the intruder entered the building were
    bent and broken, but still hanging where they were
    when the intruder came in through them.
    Inside the larger state’s attorney’s office, the troopers
    found a black duffel bag on the floor near the south
    end of the corridor running past the doors of the three
    interior offices on the east side of the larger office,
    including the middle office where the intruder had bro-
    ken the window and entered the building. The bag thus
    lay to the far left of a person entering the larger office
    through the door of the interior office with the broken
    window. Inside the duffel bag were six unopened blue
    canisters of industrial strength kerosene with their tags
    and UPC strips cut off. The officers swabbed the bag
    and the six canisters of kerosene for DNA.
    Meanwhile, in the ‘‘secretary’s desk area’’ in the
    northwest corner of the larger state’s attorney’s office,
    across the room from and to the right of a person
    entering the larger office from the interior office with
    the broken window, the troopers found several case
    files lying in a disorganized pile on the floor, where
    they appeared to have been dumped, dropped or
    knocked over. The secretary’s desk area contained two
    adjacent desks on which telephones, computer moni-
    tors, other case files, assorted office equipment and
    personal memorabilia were arrayed. The desk further
    to the north, in front of which the pile of files was
    found, had two partially open drawers on its left side,
    above which other case files were loosely stacked. To
    the left of and behind the chair of a person sitting at
    that desk were two large lateral file cabinets with case
    files densely packed on open shelves inside them. No
    evidence was presented as to which case files were
    found either in the disorganized pile on the floor or in
    the loose stack on the adjacent desk. Nor, because
    those case files were never identified, was there any
    evidence as to where such files had been stored in the
    office before the intruder entered or whether, if the
    intruder had moved such files to where they were found
    from another location in the office, the intruder had
    touched or disturbed anything in any such location in
    such a way as to shed light on the object or purpose
    of his search. None of the case files or any other objects
    in any locations where they were stored before or found
    after the break-in was dusted for fingerprints or
    swabbed for DNA.
    The troopers also recovered a ball-peen hammer from
    the vestibule area just inside an exterior door to the
    courthouse, marked ‘‘employee entrance only,’’ through
    which it was later determined that the intruder fled
    from the courthouse after the troopers arrived, and
    began to search inside it. The troopers also swabbed
    the hammer for DNA.
    During their ensuing investigation, police investiga-
    tors obtained and reviewed surveillance videos of the
    outside of the courthouse, which had been taken on
    the evening of the break-in by cameras installed on the
    courthouse itself and in a beauty salon to the east of the
    courthouse. Video footage obtained from those cameras
    included a sequence in which an ‘‘individual . . .
    dressed all in black, [who] appeared to have a black
    mask on, [a] black jacket, [and] black pants, and
    appeared to be carrying a black or dark colored bag
    . . . approached the side of the courthouse, which is
    the side that the window was broken on, the side adja-
    cent to the beauty salon.’’ It also included, in the hour
    before the foregoing sequence was recorded, several
    other sequences in which a suspicious vehicle—a light
    colored SUV with a defective rear brake light and a
    roof rack on the top, a brush bar on the front, and a
    tire mounted on the back—could be seen driving slowly
    past the front of the courthouse and driving in and out
    of the courthouse parking lot. Finally, it included a short
    sequence, filmed shortly after the troopers entered the
    courthouse, in which a person dressed all in black
    emerged from the east side door of the courthouse and
    ran away across the parking lot where the suspicious
    vehicle had been seen before the break-in.
    The troopers later identified the make, model and
    vintage of the suspicious vehicle seen in the surveillance
    videos as a Land Rover Freelander manufactured
    between the years 2002 and 2005. They subsequently
    determined that the database of the Connecticut
    Department of Motor Vehicles listed 167 registered vehi-
    cles that matched the suspicious vehicle’s description.
    Later, upon narrowing their search to matching vehicles
    registered to persons living in the Norwalk and Stam-
    ford areas, investigators learned that one such vehicle,
    a 2002 Land Rover Freelander, was registered to Chuck
    Morrell, the defendant’s stepfather. When Morrell was
    interviewed by the police, he informed them that he
    had purchased the vehicle for his wife, the defendant’s
    mother, in 2012, and that both the defendant and his
    mother used the vehicle and were listed as insureds on
    his automobile insurance policy. When police investiga-
    tors finally examined Morrell’s vehicle several weeks
    after the break-in, they found that it closely matched
    the suspicious vehicle seen in the surveillance videos
    because it not only had aftermarket equipment of the
    sorts installed on the suspicious vehicle, but it had a
    defective rear brake light.
    In addition to the previously described information,
    police investigators developed the following additional
    information concerning the defendant’s possible
    involvement in the courthouse break-in. On March 4,
    2013, the day after the break-in, the defendant called
    the Norwalk public defenders’ office to ask if the court-
    house would be open that day. The defendant was then
    scheduled to commence jury selection in the trial of
    two felony charges then pending against him in Norwalk
    the following day. The window that had been broken
    and used to gain access to the courthouse on March 3,
    2013, was located in the office of the assistant state’s
    attorney who was responsible for prosecuting the
    defendant in his upcoming trial.
    The state also presented evidence that the defendant,
    while incarcerated in April, 2013, made certain recorded
    phone calls to his brother Christopher Stephenson, and
    his mother, in which he discussed the March 3, 2013
    break-in. In particular, the defendant’s brother told the
    defendant in one such phone call that Morrell ‘‘must
    have’’ told the police about the defendant’s use of the
    Freelander on the evening of the break-in and the defen-
    dant stated that the police ‘‘must have’’ seen the vehicle
    at the courthouse on that evening. The defendant urged
    his brother to say that he had been in New York at
    the time of the break-in, and thereafter urged both his
    brother and his mother not to discuss anything about
    the break-in with the police.
    Finally, upon testing the DNA swabs taken from the
    physical evidence discarded by the intruder at the court-
    house on the evening of March 3, 2013, personnel from
    the Connecticut Forensic Science Laboratory deter-
    mined that each swab contained a mixture of DNA from
    at least two persons, and that the defendant could not
    be eliminated as a possible contributor to any such
    mixture.
    In his own defense, the defendant presented testi-
    mony from his brother that they were together in New
    York on the evening of the break-in. In addition, he
    attempted unsuccessfully to present testimony from his
    attorney as to a conversation between them on the
    Friday before the break-in, in which he had voiced his
    intention to plead guilty to the charges then pending
    against him in Norwalk rather than to go to trial the
    following Tuesday. The trial court sustained the state’s
    objection to such testimony on the ground that it was
    inadmissible hearsay.
    On the basis of the foregoing evidence, the state urged
    the jury to find the defendant guilty of all three offenses
    with which he was charged: burglary in the third degree
    in violation of § 53a-103; attempt to commit tampering
    with physical evidence in violation of §§ 53a-49 (a) (2)
    and 53a-155 (a) (1); and attempt to commit arson in
    the second degree in violation of §§ 53a-49 (a) (2) and
    53a-112 (a) (1) (B).3 The state attempted to prove its
    case against the defendant under the following, closely
    intertwined theories of factual and legal liability.
    As to the charge of burglary in the third degree, the
    state claimed that the defendant had entered or
    remained unlawfully in the courthouse, when it was
    closed to the public and he had no license or privilege
    to be there for any lawful purpose, with the intent to
    commit the crime of tampering with physical evidence
    therein. Although the state conceded that the defendant
    had not completed the crime of tampering with physical
    evidence while he was inside the courthouse, it none-
    theless claimed that he had intended to commit that
    offense within the courthouse by engaging in conduct
    constituting an attempt to commit that offense therein.
    On that score, the state further argued that the defen-
    dant had broken into the courthouse through the win-
    dow of the assistant state’s attorney who was
    prosecuting him on two pending felony charges, entered
    the larger state’s attorney’s office and gone directly to
    the file cabinets where the state stored its case files,
    and in the short time he had there before the state
    police arrived in response to the silent alarm, begun to
    rummage through the state’s case files in an effort to
    find and tamper with the contents of his own case files.
    Claiming that the defendant was desperate to avoid his
    impending trial, the state argued that the defendant
    thereby attempted to tamper with his case file by alter-
    ing, destroying, concealing or removing its contents,
    and thus to impair the verity or availability of such
    materials for use against him in his upcoming trial.
    Finally, as to the charge of attempt to commit arson in
    the second degree, the state claimed that the defendant
    had committed that offense by breaking into the Nor-
    walk courthouse as aforesaid, while carrying a duffel
    bag containing six canisters of industrial strength kero-
    sene, and thereby intentionally taking a substantial step
    in a course of conduct planned to culminate in the
    commission of arson in the second degree by starting
    a fire inside the courthouse, with the intent to destroy
    or damage the courthouse building, for the purpose of
    concealing his planned crime of tampering with physi-
    cal evidence, as described previously.
    The state expressly disclaimed any intent to prose-
    cute the defendant for tampering with physical evidence
    on the theory that he attempted to start a fire inside
    the courthouse in order to damage or destroy the build-
    ing, and thus to damage or destroy the contents of his
    case files or their contents by fire. Instead, it claimed
    that the defendant planned to start a fire in the court-
    house in order to conceal his earlier crime of tampering
    with physical evidence. Similarly, the state did not
    allege or seek to prove that the defendant had commit-
    ted burglary in the third degree by entering or remaining
    unlawfully in the courthouse with the intent to commit
    arson in the second degree therein.
    Following a jury trial in which the jury was specifi-
    cally instructed on the charged offenses under the pre-
    viously-described theories of liability, the defendant
    was found guilty on all three charges. He later was
    sentenced on those charges to a total effective sentence
    of twelve years incarceration followed by eight years
    of special parole. This appeal followed.
    The defendant first claims that the evidence pre-
    sented at trial was insufficient to support his conviction
    of any of the three offenses of which his jury found
    him guilty because such evidence failed to prove a single
    common essential element of those offenses, as the
    state charged and sought to prove them in this case,
    beyond a reasonable doubt. That common essential ele-
    ment was that, upon entering the Norwalk Superior
    courthouse on March 3, 2013, the defendant’s intent
    was to tamper with physical evidence. In making this
    claim, the defendant does not challenge the sufficiency
    of the state’s evidence to prove that he was the intruder
    who broke into the courthouse on the evening of March
    3, 2013. Rather, he claims that neither his proven con-
    duct on that evening, nor any of his words or actions
    thereafter, afforded the jury any nonspeculative basis
    for inferring that his intent, upon entering the court-
    house on that evening, was to commit the crime of
    tampering with physical evidence therein.4
    ‘‘In reviewing the sufficiency of the evidence to sup-
    port a criminal conviction we apply a two-part test.
    First, we construe the evidence in the light most favor-
    able to sustaining the verdict. Second, we determine
    whether upon the facts so construed and the inferences
    reasonably drawn therefrom the [finder of fact] reason-
    ably could have concluded that the cumulative force
    of the evidence established guilt beyond a reasonable
    doubt. . . . [I]n viewing evidence which could yield
    contrary inferences, the jury is not barred from drawing
    those inferences consistent with guilt and is not
    required to draw only those inferences consistent with
    innocence. The rule is that the jury’s function is to
    draw whatever inferences from the evidence or facts
    established by the evidence it deems to be reasonable
    and logical.’’ (Emphasis added; internal quotation
    marks omitted.) State v. Perez, 
    147 Conn. App. 53
    , 64–
    65, 
    80 A.3d 103
     (2013), aff’d, 
    322 Conn. 118
    , 
    139 A.3d 654
     (2016). It is axiomatic, however, that in evaluating
    the sufficiency of the evidence to support a criminal
    conviction, the only theory of liability upon which the
    conviction can be sustained is that upon which the case
    was actually tried, in the sense that it was not only
    charged in the information, but it was argued by the
    state and instructed upon by the court. State v. Carter,
    
    317 Conn. 845
    , 853–54, 
    120 A.3d 1229
     (2015).
    As a threshold matter, we note that the defendant is
    correct in asserting that a common essential element
    of his conviction of all three charges here challenged
    is that, upon entering the Norwalk Superior courthouse
    on the evening of March 3, 2013, he had the intent to
    commit the crime of tampering with physical evidence
    therein. All three counts of the amended long form
    information on which he was brought to trial so alleged,5
    the state’s attorney so argued in his closing arguments,6
    and the court so instructed the jury in its final instruc-
    tions on the law.7 Accordingly, the state does not dispute
    this aspect of the defendant’s evidentiary sufficiency
    claims on appeal. Therefore, our sole focus in resolving
    those claims must be on whether the evidence pre-
    sented at trial, construed in the light most favorable to
    sustaining the challenged conviction, was sufficient to
    prove beyond a reasonable doubt that, when the defen-
    dant entered the courthouse on the evening of March
    3, 2013, he did so with the intent to commit the offense
    of tampering with physical evidence therein by some
    means other than setting fire to the building.8
    General Statutes § 53a-3 (11) provides that ‘‘[a] per-
    son acts ‘intentionally’ with respect to a result or to
    conduct described by a statute defining an offense when
    his conscious objective is to cause such result or to
    engage in such conduct . . . .’’ Section 53a-155 (a) (1),
    in turn, provides in relevant part: ‘‘A person is guilty of
    tampering with . . . physical evidence if, believing that
    an official proceeding is pending . . . he . . . [a]lters,
    destroys, conceals or removes any record, document
    or thing with purpose to impair its verity or availability
    in such [official] proceeding . . . .’’9 Under the forego-
    ing provisions, a person acts with the intent to commit
    tampering with physical evidence when, believing that
    an official proceeding is pending, he engages in conduct
    with the conscious objective of altering, destroying,
    concealing or removing any record, document or thing
    in order to impair its verity or availability for use in
    that official proceeding. Here, more particularly, the
    state claimed and sought to prove that the defendant
    acted with that intent by breaking into the Norwalk
    Superior courthouse, where he was about to start trial
    in two pending felony cases, in order to alter, destroy,
    conceal or remove his case files in those cases or their
    contents, and thereby impair the verity or availability
    of such materials for use against him in those prose-
    cutions.
    ‘‘Intent is a question of fact, the determination of
    which should stand unless the conclusion drawn by the
    trier is an unreasonable one. . . . Moreover, the [jury
    is] not bound to accept as true the defendant’s claim
    of lack of intent or his explanation of why he lacked
    intent. . . . Intent may be and usually is inferred from
    conduct. Of necessity, it must be proved by the state-
    ment or acts of the person whose act is being scrutinized
    and ordinarily it can only be proved by circumstantial
    evidence.’’ (Internal quotation marks omitted.) State v.
    O’Donnell, 
    174 Conn. App. 675
    , 687–88, 
    166 A.3d 646
    ,
    cert. denied, 
    327 Conn. 956
    , 
    172 A.3d 205
     (2017). ‘‘The
    use of inferences based on circumstantial evidence is
    necessary because direct evidence of the accused’s
    state of mind is rarely available. . . . Furthermore, it
    is a permissible, albeit not a necessary or mandatory,
    inference that a defendant intended the natural conse-
    quences of his voluntary conduct.’’ (Internal quotation
    marks omitted.) State v. Lamantia, 
    181 Conn. App. 648
    ,
    665, 
    187 A.3d 513
    , cert. granted, 
    330 Conn. 919
    ,   A.3d
    (2018).
    The defendant does not dispute that two felony prose-
    cutions, both official proceedings, were pending against
    him in the Norwalk Superior Court when he allegedly
    broke into the Norwalk Superior courthouse on the
    evening of March 3, 2013, or that he lacked knowledge
    of the pendency of those official proceedings, in which
    trial was scheduled to begin two days later. Nor, to
    reiterate, does he argue that the evidence presented at
    trial was insufficient to prove that he was the intruder
    who broke into the courthouse on that evening. Instead,
    he claims that such evidence was insufficient to prove
    that he then acted with the intent to tamper with physi-
    cal evidence within the courthouse because the state
    failed to establish any connection between his proven
    conduct within the courthouse and any of the files or
    materials with which he is claimed to have had the
    intent to tamper. We agree.
    Here, the state claims that, on the evening of March
    3, 2013, the defendant broke a window in the state’s
    attorney’s office at the courthouse, climbed through
    that window into the office of the assistant state’s attor-
    ney who was then prosecuting him on two felony
    charges, walked through that office into the larger
    state’s attorney’s office where he dropped a duffel bag
    containing kerosene at the end of the corridor running
    past it to his left, then ‘‘walked all the way around to
    the [state’s attorneys’] case files’’ on the other side of
    the larger office, where he ‘‘pull[ed] [the] files down
    onto the floor and [went] through them.’’ The state
    further argued to the jury such evidence showed that
    the defendant’s intent was to tamper with his own case
    files or their contents before lighting the building on
    fire because he did not ignite one of the bottles of
    kerosene and throw it through the broken window,
    or start a fire immediately upon entering the building.
    Instead, the state argued, ‘‘[the] [f]irst thing he did was
    drop that bag of kerosene in the hall outside the office,
    walk all the way around the wall past the secretary’s
    desk and over to the corner where the criminal files
    were kept and he started going through them.’’ On that
    basis, the state claims that the defendant intended to
    alter, destroy, conceal or remove either his own case
    files or something contained within them, then to start
    a fire within the office to conceal his act of tampering.
    The state concedes that no witness saw the defen-
    dant engage in any of these acts. Furthermore, although
    there is physical evidence that directly links the defen-
    dant to the bag containing the kerosene, supporting a
    reasonable inference that the defendant dropped the
    bag where the police found it, there is no such evidence
    that puts the defendant in the office where the files
    were located. Instead, the state argued that the jury
    could infer that the defendant entered the office, pro-
    ceeded to the secretary area where the files were
    located, started to go through them and did so with the
    intent of tampering with evidence all from the single
    fact that there was a disorganized pile of files on the
    floor. We conclude that this single fact was insufficient
    for the jury to infer that the defendant ever touched
    any case files in the state’s attorney’s office on March
    3, 2013, let alone pulled case files out of any file cabinet
    or off any desk, shelf or table, or that he went through
    such files for any purpose, much less that he took any
    steps to alter, remove, conceal or destroy the files or
    their contents as or after he went through them. This
    is true for four fundamental reasons. To reiterate, no
    witness saw or heard the intruder doing anything while
    he was inside the state’s attorney’s office or any other
    part of the courthouse. The only person who may possi-
    bly have seen or heard the intruder in that time frame
    was Trooper Lund, who was seen standing by the bro-
    ken window, and heard yelling at someone inside the
    building when the other troopers arrived. Lund, how-
    ever, did not testify because he had been injured in
    another incident before trial began, and no other wit-
    ness reported seeing or hearing anyone doing anything
    inside the building during the break-in. Without such
    direct testimony, the state was left to prove its claim
    by circumstantial evidence based upon the intruder’s
    proven conduct during the break-in and thereafter.
    Second, although the state expressly theorized that
    the intruder, upon entering the larger state’s attorney’s
    office, dropped his duffel bag of kerosene down a hall-
    way to his left, then circled all the way around the office
    to his right, where he pulled case files out of lateral
    file cabinets in that area and rummaged through them,
    assertedly for the purpose of finding his own case files
    and tampering with them or their contents, before
    dumping the pulled out case files in a disorganized pile
    on the floor, it failed to establish that the intruder ever
    touched those or any other case files in the office during
    the break-in. To begin with, no evidence was presented
    that the files on the floor were not exactly where police
    investigators found them when the state’s attorney’s
    office last closed before the break-in. Although the
    supervising state’s attorney testified that her colleagues
    generally kept their case files in orderly fashion in the
    lateral file cabinets in the secretary’s desk area, she did
    not state that they always did so. In fact she testified
    that they did not always do so, for they sometimes kept
    their own files with them, particularly when they were
    preparing cases for trial. This testimony was confirmed
    by photographic evidence showing piles of case files
    lying elsewhere in the office, undermining the state’s
    unsupported contention that the files in the pile on
    the floor must have been pulled out of the lateral file
    cabinets and left there by the intruder. Indeed, such
    photos also showed that the lateral file cabinets were
    so densely packed with case files, without apparent
    gaps or irregularities, as to make it unlikely that the
    large number of files on the floor had been indiscrimi-
    nately pulled out of there during the break-in.
    Third, no list or inventory was ever made of the files
    on the floor. Therefore, not only was there no evidence
    that the defendant’s case files were among the files
    found on the floor, but there was no evidence as to
    where in the office any such files had been stored before
    the break-in. Armed with such information, the state
    might reasonably have claimed that the intruder gained
    access to the files during the break-in and moved them
    to where the police later found them on the floor. It
    might also have been able to argue, from the names or
    numbers on the files or the places where the intruder
    had searched for and found them, that by selecting files
    in that manner, the intruder had given evidence as to
    his purpose in so doing. If, for example, the selected
    files were in an alphabetical sequence that included
    the defendant’s name, or in a numerical sequence that
    included the date of the defendant’s upcoming trial,
    such a selection might have supported the inference
    that the intruder was searching for the defendant’s file.
    Similarly, if he had selected files that were stored in
    the office of the assistant state’s attorney who was
    prosecuting his cases, such a selection might have sup-
    ported the inference that he was searching for the defen-
    dant’s files. In that event, the state might have further
    supported its claim by lifting fingerprints from or taking
    DNA swabs of the places where the selected files had
    been stored or the files themselves. Without an inven-
    tory of the files found on the floor, however, no such
    logical inference could be argued and no supporting
    forensic evidence was sought or presented.
    Fourth and finally, there is no evidence that the defen-
    dant’s purpose in going through any case files, if in fact
    he did so, was to alter, destroy, conceal or remove them
    or their contents from the state’s attorney’s office. No
    evidence was presented that any case file was altered,
    destroyed, concealed or removed in any way. Nor was
    evidence presented as to the contents of the case files
    in the defendant’s two pending cases, or of any reason
    why the defendant might have found it in his interest
    to tamper with them prior to his trial. Indeed, although
    the supervising state’s attorney testified as to the types
    of materials that case files often contain, including phys-
    ical evidence and witness statements, neither she nor
    any other witness offered evidence as to the contents
    of the defendant’s pending case files, or advanced any
    reason why the defendant might have believed that
    it was in his interest to compromise their verity or
    availability to the state in advance of his impending
    trial. Nor could the jury have drawn an inference as to
    the defendant’s motive to tamper with his case files
    from the nature of his pending charges, for those
    charges were never listed for the jury.
    In conclusion, the state presented no evidence at all
    from which the jury reasonably could have inferred that,
    during the short period of time between the intruder’s
    breaking of the window and the arrival of the state
    police on the scene, the defendant entered the building
    through that window and went directly to the filing
    cabinet in another office and removed the files that
    were later discovered on the floor. Although the state
    argued that the defendant’s intent to tamper with physi-
    cal evidence could be inferred from his ‘‘handl[ing]’’ of
    those files, the evidence presented showed only that
    the defendant entered the courthouse through the win-
    dow of the office of two assistant state’s attorneys,
    walked through that office and dropped the duffel bag
    containing the six bottles of kerosene onto the floor in
    the corridor running past that office, to the far left of
    the door leading into the larger state’s attorney’s office.
    In the absence of any evidence that the defendant
    ever touched case files in the state’s attorney’s office,
    much less that he did so with the intent to tamper with
    such files or their contents, the jury reasonably could
    not have inferred that the defendant had that intent, as
    required to prove him guilty of each of the three offenses
    of which he was convicted. Accordingly, his conviction
    cannot stand.10
    The defendant also claims, as previously noted, that
    the court improperly prevented him from presenting
    exculpatory testimony from his trial attorney as to a
    conversation between them two days before his alleged
    commission of the charged offenses that tended to con-
    tradict the state’s claim that he had a special motive
    for committing those offenses. Because we reverse his
    conviction for the reasons stated previously, we need
    not address this claim.
    The judgment is reversed and the case is remanded
    with direction to render judgment of acquittal on all
    three charges against the defendant.
    In this opinion the other judges concurred.
    1
    All references in this opinion to § 53a-155 (a) (1) are to the 2013 revision.
    2
    Although the state’s exhibit 36, which is a diagram of the Norwalk
    Superior courthouse, bears a notation indicating that the window that was
    broken was on the north side of the building, all of the other evidence at
    trial indicates that it was, in fact, located on the east side of the building.
    We therefore construe the notation on exhibit 36 as an error.
    3
    The defendant initially was charged with criminal mischief in the first
    degree in violation of General Statues § 53a-115, rather than attempted
    tampering with physical evidence.
    4
    The defendant also argues that, in order to convict him of attempting
    to tamper with physical evidence, the state was required to prove beyond
    a reasonable doubt that the documents or materials he attempted to tamper
    with qualified as ‘‘physical evidence’’ within the meaning of General Statutes
    § 53a-146 (8), in that they constituted ‘‘any article, object, document, record,
    or other thing of physical substance which is or is about to be produced
    or used as evidence in an official proceeding.’’ General Statutes § 53a-146
    (8). Because we reverse the defendant’s conviction on the ground that the
    state failed to prove that the defendant intended to tamper with the case
    files and/or their contents with which he is claimed to have attempted to
    tamper, we need not address his claim that the state failed to prove that
    such case files and their contents did not qualify as physical evidence under
    § 53a-146 (8).
    5
    In its amended long form information dated September 30, 2016, the
    state charged the defendant as follows:
    ‘‘[The] State’s Attorney for the Judicial District of Stamford-Norwalk
    accuses Joseph Stephenson of the crime of burglary in the third degree and
    charges that in the city of Norwalk, on or about the [third] day of March,
    2013, the said defendant . . . did enter and remain unlawfully in a building
    with intent to commit the crime of tampering with physical evidence, in
    violation of . . . [§§] 53a-103 and 53a-155 (a) (1). . . .
    ‘‘And said state’s attorney further accuses the defendant . . . of the crime
    of attempted tampering with physical evidence, and alleges that, acting with
    the belief that an official proceeding is pending and about to be instituted,
    did an act, which under the circumstances as he believed them to be, was
    an act which constituted a substantial step in a course of conduct planned
    to culminate in his commission of the crime of tampering with evidence
    in violation of . . . [§§] 53a-155 (a) (1) and 53a-49 (a) (2). . . .
    ’’And said state’s attorney further accuses the defendant . . . with the
    crime of attempt at arson in the second degree and alleges that in the city
    of Norwalk on or about the [third] day of March 2013, the said defendant
    . . . with intent to destroy and damage a building, did an act, which under
    the circumstances as he believed them to be, was an act which constituted
    a substantial step in a course of conduct planned to culminate in starting
    a fire and such fire was intended to conceal the crime of tampering with
    physical evidence in violation of . . . [§§] 53a-112 (a) (1) (B), 53a-49
    (a) (2), and 53a-155 (a) (1).’’ (Emphasis added.)
    6
    In its closing argument to the jury, the state argued specifically, inter
    alia, that the evidence ‘‘clearly show[ed] . . . what [the defendant’s] motive,
    and what his intentions were, and what that plan really was there to do
    and that was to tamper with the files, to get to his case or any case, and
    hinder the prosecution, the prosecution that was going to start in two
    days.’’ (Emphasis added.)
    7
    The court instructed the jury, inter alia, that to find the defendant guilty
    of burglary in the third degree, ‘‘the state must prove beyond a reasonable
    doubt that, one, the defendant unlawfully entered a building and, two, that
    he intended to commit a crime therein, to wit, tampering with physical
    evidence.’’ (Emphasis added.)
    The court also instructed the jury that: ‘‘A person is guilty of arson in the
    second degree when, with intent to destroy or damage a building, he starts
    a fire . . . and such fire was intended to conceal some other criminal act,
    to wit, the crime of tampering with physical evidence.’’ (Emphasis added.)
    8
    As stated herein, the state expressly disavowed any contention that
    the defendant intended to tamper with evidence by setting it on fire, and
    consistently argued that the defendant intended to tamper with physical
    evidence and then to conceal his act of tampering by setting the building
    on fire.
    9
    Section 53a-155 was amended in 2015 to add that one may be guilty of
    tampering during a criminal investigation or when a criminal proceeding is
    about to commence.
    10
    The state has not argued that the defendant should be convicted of any
    lesser included offenses in the event that we determine that the evidence
    was insufficient to sustain his conviction. Accordingly, we have no occasion
    to so order. See State v. Jahsim T., 
    165 Conn. App. 534
    , 541, 
    139 A.3d 816
     (2016).
    

Document Info

Docket Number: AC40250

Citation Numbers: 201 A.3d 427, 187 Conn. App. 20

Filed Date: 1/8/2019

Precedential Status: Precedential

Modified Date: 1/12/2023