Connecticut Cases January 14, 2020: State v. Jarmon

Case Description

[224 A.3d 166]

Alice Osedach, assistant public defender, for the appellant (defendant).

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Don E. Therkildsen, Jr., senior assistant state's attorney, for the appellee (state).

Alvord, Prescott and Flynn, Js.

ALVORD, J.

[195 Conn.App. 264]

The defendant, James Jarmon, appeals from the judgment of conviction of home invasion in violation of General Statutes § 53a-100aa (a) (1), burglary in the first degree in violation of General Statutes § 53a-101 (a) (3), robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), and three counts of stealing a firearm in violation of General Statutes § 53a-212 (a). On appeal, the defendant claims that (1) the state presented insufficient evidence to prove beyond a reasonable doubt the operability of each firearm the defendant stole, (2) the trial court erroneously admitted into evidence a letter written by the then incarcerated defendant that was intercepted by a correction officer, and (3) the defendant's conviction of home invasion and burglary in the first degree violated his constitutional protection against double jeopardy. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 12, 2015, Nathaniel Garris attended a birthday party for his nephew. At the party, Garris spoke on the phone with the defendant, whom Garris knew all his life and whom, though they were unrelated, Garris referred to as his "cousin." It had been about four or five months since Garris and the defendant had seen each other last, and the defendant wanted to "chill" with Garris to "catch up." The two met up that same day and went to Niko Infanti's house.

[195 Conn.App. 265]

At Niko's home, the defendant and Garris began playing video games in Niko's bedroom. At one point, the defendant observed a case in Niko's bedroom and asked if it contained a guitar, to which Garris responded "no, that's a gun." At another point, Garris retrieved a knife out of Niko's bedside nightstand, which also contained Niko's handgun. Thereafter, the defendant participated in a few phone calls; the defendant left Niko's bedroom to pick up each phone call.

While the defendant and Garris were in Niko's bedroom, Kade was in the kitchen using her laptop. An individual unknown to Kade, later identified by the police as Brett Vaughn, "peeked his head in the back door" and asked for the defendant. Kade went to Niko's bedroom, told the

[224 A.3d 167]

defendant that there was someone waiting for him at the back door and returned to the kitchen. Once Kade arrived back in the kitchen, Vaughn, who had entered the house, grabbed her and put a gun to the back of her head. Meanwhile, back in Niko's bedroom, Garris became upset with the defendant after hearing Kade's message because he perceived that the defendant had invited someone over without asking him. Garris walked out to the kitchen to see who was there waiting for the defendant and found Vaughn standing behind a seated Kade with a gun pressed to her head. Garris, who only knew Vaughn "from passing," pleaded with him to point the gun at him rather than Kade, to which Vaughn responded "[you're] beat, don't

[195 Conn.App. 266]

die over something stupid." Vaughn then yelled "hurry up." Christina heard the disturbance from her own bedroom, came out to see its cause and, after observing the scene, repeatedly told Vaughn to leave. The defendant had remained in Niko's bedroom after Garris walked to the kitchen and while this tumultuous scene unfolded. He then emerged from Niko's bedroom with all four of Niko's firearms in bags. The defendant and Vaughn proceeded to leave out the back door, with Vaughn being the first one out. As the defendant was exiting the back door, Garris jumped on his back and was able to retrieve one of the bags, which contained Niko's shotgun.

The defendant was arrested on May 20, 2015, and charged in a substitute information on September 29, 2016. On September 30, 2016, a jury returned guilty verdicts against the defendant for home invasion, burglary in the first degree, robbery in the first degree, and three counts of stealing a firearm. On March 2, 2017, the court imposed on the defendant a total effective sentence of ten years of incarceration, followed by six years of special parole. This appeal followed.

I

The defendant first claims there was insufficient evidence to support his conviction of the three counts of stealing a firearm because no evidence was admitted that demonstrated the operability of the stolen firearms. The defendant argues that "[o]perability, especially when the guns were never recovered and there is no evidence the gun was fired during the incident, has never been proven with such scant evidence." Thestate

[195 Conn.App. 267]

responds that "it was reasonable to infer that [the guns] were operable at the time that they were purchased" and that "[t]he jury could reasonably have inferred that the firearms remained operable approximately one year later when they were stolen by the defendant." We agree with the state.

We first set forth our standard of review. "In reviewing a jury verdict that is challenged on the ground of insufficient evidence, we employ a two part analysis. We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant's guilt beyond a reasonable doubt.... The evidence must be construed in a light most

[224 A.3d 168]

favorable to sustaining the jury's verdict.... In reaching its verdict, the jury can draw reasonable and logical inferences from the facts proven and from other inferences drawn from the evidence presented. Our review is a fact based inquiry limited to a determination of whether the jury's inferences drawn were so unreasonable as to be unjustifiable." (Citations omitted; internal quotation marks omitted.) State v. Bradley , 39 Conn. App. 82, 90–91, 663 A.2d 1100 (1995), cert. denied, 236 Conn. 901, 670 A.2d 322 (1996).

Section 53a-212 (a) states that "[a] person is guilty of stealing a firearm when, with intent to deprive another person of such other person's firearm or to appropriate the firearm to such person or a third party, such person wrongfully takes, obtains or withholds a firearm, as defined in subdivision (19) of section 53a-3." A "[f]ire-arm" is defined as "any sawed-off shotgun, machine gun, rifle, shotgun, pistol, revolver or other weapon, whether loaded or unloaded from which a shot may

[195 Conn.App. 268]

be discharged ...." (Emphasis added.) General Statutes § 53a-3 (19). "Operability of the [firearm is] an essential element of the [crime] charged under General Statutes [§ 53a-212 (a) ] ...." State v. Carpenter , 19 Conn. App. 48, 59, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989). "The operability of a firearm can be proven either by circumstantial or direct evidence." State v. Bradley , supra, 39 Conn. App. at 91, 663 A.2d 1100.

As in Bradley , the issue before us is "whether the jury could have drawn reasonable inferences from the evidence to enable it to conclude, beyond a reasonable doubt, that the gun that the defendant possessed was operable." Id. The state points to the following evidence in the record that would support a conclusion that the firearms were operable. Niko lawfully bought his three stolen firearms from sportsmen retailers between March 27, 2014, and June 27, 2014. Niko kept his guns confined to his bedroom. The three long guns were in the open space of his bedroom, but kept inside cases or bags and fastened with some form of safety lock. The handgun was kept in Niko's nightstand "in a locked case." With the exception of Garris, who slept in Niko's bedroom, Niko "[v]ery rarely let anybody in that room." If Niko was not so diligent about keeping his firearms in his bedroom, his mother would have put him "out of the house in like point six seconds." As such, the firearms left Niko's bedroom only when he took them to the "training grounds."

The defendant argues that this evidence is inadequate to prove the operability of the firearms beyond a reasonable doubt. He contends that his case is distinguishable from a number of this court's past decisions in which operability was at issue. See

[195 Conn.App. 269]

State v. Edwards , 100 Conn. App. 565, 575–76, 918 A.2d 1008 (testimony of witnesses describing gun used in robberies, which matched gun found in defendant's flight path and ballistics testing of which showed it was same gun fired in separate shooting deemed sufficient for operability inference), cert. denied, 282 Conn. 928, 929, 926 A.2d 666, 667 (2007) ; State v. Miles , 97 Conn. App. 236, 241, 903 A.2d 675 (2006) (operability proven where victim saw defendant with small silver handgun that matched gun introduced into evidence, defendant was only person victim saw with gun, and victim identified defendant as shooter in photographic lineup and at trial on cross-examination);

[224 A.3d 169]

State v. Rogers , 50 Conn. App. 467, 469, 475, 718 A.2d 985 (front seat passenger displaying gun and fire coming from passenger seat area sufficient evidence of operability), cert. denied, 247 Conn. 942, 723 A.2d 319 (1998) ; State v. Hopes , 26 Conn. App. 367, 376–77, 602 A.2d 23 (testimony that defendant pointed gun at witnesses inside restaurant, within one minute followed witnesses outside restaurant, then witnesses heard gunfire and "felt something pass close by their heads" sufficient to prove operability of defendant's gun), cert. denied, 221 Conn. 915, 603 A.2d 405 (1992) ; see also State v. Beavers , 99 Conn. App. 183, 190, 912 A.2d 1105 (police test of gun sufficient evidence of operability), cert. denied, 281 Conn. 925, 918 A.2d 276 (2007) ; State v. Bradley , supra, 39 Conn. App. at 91, 663 A.2d 1100 (same); State v. Zayas , 3 Conn. App. 289, 299, 489 A.2d 380 (same), cert. denied, 195 Conn. 803, 491 A.2d 1104 (1985). The defendant's reliance on these cases to demonstrate what evidence is minimally necessary to prove operability is unpersuasive. Each of these cases presents evidence sufficient to prove operability, but a compilation of these cases do not define a minimum standard of necessary evidence to establish operability.

"[T]he line between permissible inference and impermissible speculation is not always easy to discern. When

[195 Conn.App. 270]

we infer, we derive a conclusion from proven facts because such considerations as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is reasonable. But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation." (Internal quotation marks omitted.) State v. Niemeyer , 258 Conn. 510, 518, 782 A.2d 658 (2001).

The evidence presented in this case supports an inference of operability because, from that evidence, the jury reasonably could have concluded that the guns were operable. Niko stored all of his firearms in his bedroom in cases or bags and with safety locks on. He restricted access to his bedroom. Niko's precautions evince an awareness that his firearms were dangerous. It is reasonable to infer that operable firearms would trigger such concern. Although a person might take similar steps to secure inoperable firearms, that possibility does little to negate the likelihood of reasonable jurors relying on their common sense understanding of firearms to infer that Niko's security measures reflected that his firearms were operable. See id., at 519, 782 A.2d 658 ("an inference need not be compelled by the evidence; rather, the evidence need only be reasonably susceptible of such an inference" [internal quotation marks omitted] ).

The defendant argues that regardless of the guns' operability, "it is reasonable to infer that a mother would not want a very young child or teenagers to have access to two rifles and a handgun." The defendant again ignores the most obvious explanation for the position of Niko's mother: a gun is most dangerous if operable. The defendant also implies, incorrectly, that the

[195 Conn.App. 271]

jury's refusal to draw an inference more favorable to the defendant makes the inference they did draw an unreasonable one. That is not so. See id., at 518–19, 782 A.2d 658 ("[p]roof of a material fact by inference from circumstantial evidence need not be so conclusive as to exclude every other hypothesis" [internal quotation marks omitted] ). The fact that Niko's mother would not permit his firearms being stored

[224 A.3d 170]

anywhere other than securely in his bedroom, and that Niko assiduously followed his mother's ultimatum, further supports an inference that these guns were operable.

Additionally, Niko kept his handgun in a nightstand beside his bed. From this, the jury reasonably could have inferred that Niko's storing of his handgun in close proximity to his bed where, while asleep, he might be most vulnerable, permits an inference that he possessed the handgun for security purposes. The jury then could have further inferred that such a handgun was operable, or else it would be of little security value. Niko also kept this handgun in a locked case. As with the long guns, this permits an inference that Niko took this safety measure because the handgun was an operable firearm.

Lastly, Niko bought the three stolen firearms from retailers, with the earliest purchase made on March 27, 2014. The defendant stole the guns on April 12, 2015. Accordingly, when stolen, Niko's firearms were in his possession for no longer than one year and sixteen days. Kade testified that the only time Niko's firearms left his bedroom was to go to the "training grounds." Thus, the guns were taken to the "training grounds," which the jury reasonably could have inferred was a place to fire the guns, and that the guns were therefore fired at least once during the year and sixteen days that Niko possessed them. Therefore, the jury reasonably could have inferred that the firearms were operable

[195 Conn.App. 272]

upon purchase and, because Niko did take the guns to a firing range during the limited duration of his ownership, remained operable when they were stolen.

The defendant cites to State v. Perez , 146 Conn. App. 844, 79 A.3d 149 (2013), cert. denied, 311 Conn. 909, 83 A.3d 1163 (2014), for the proposition that "a firearm left in storage without the proper care and cleaning can become inoperable." In Perez , a firearm became inoperable in the sixteen months between a successful dry fire of the firearm by law enforcement and subsequent testing because the gun became "gummed up by a residue in the ... cylinder pin." (Internal quotation marks omitted.) Id., at 847, 79 A.3d 149. The gun still was found to be operable because "the responding officer dry fired the gun and observed that its firing mechanism was functional shortly after the defendant possessed it ...." Id., at 850, 79 A.3d 149. We fail to see how Perez informs our analysis in this case. Perez is a factually distinguishable case, and the evidence used to prove operability in that case is not required to prove operability in this case.

Our review of the record does not persuade us that the jury made unreasonable inferences regarding operability. To the contrary, the cumulative effect of the evidence in this case, when construed in a light most favorable to sustaining the jury's verdict, supports the jury's ultimate conclusion that the state has demonstrated operability beyond a reasonable doubt. See State v. Bradley , supra, 39 Conn. App. at 90, 663 A.2d 1100.

[224 A.3d 171]

[195 Conn.App. 273]

II

The defendant next claims that the trial court erroneously admitted into evidence a letter the defendant wrote to his mother while incarcerated, which was intercepted by a correction officer and forwarded to law enforcement. The defendant argues that (1) the "court erred in determining that the correction officer followed the [department of correction (department) regulation ] when he turned over the correspondence" (footnote added); (2) "[t]he defendant maintained a reasonable expectation of privacy in his letter written to [his] mother," making its seizure a violation of the fourth amendment to the United States constitution; and (3) the department regulation "regarding inmate correspondence is void for vagueness as applied to this case."

The following additional facts are relevant to this issue. At trial, on September 29, 2016, the state offered into evidence a letter written by the then incarcerated defendant to his mother, which was intercepted by a correction officer and forwarded to law enforcement. After reviewing the contents of the letter, the court was prepared to admit the letter as an admission by the defendant. Conn. Code. Evid. § 8-3 (1) (A). Defense counsel objected to the letter's admission, stating that "when someone is incarcerated in a Connecticut facility, they are stripped of most of their expectation of privacy, but not all" and that "I think [the department] has put a limit on themselves that not just anybody can open a letter at their own discretion." Defense counsel

[195 Conn.App. 274]

requested the opportunity to voir dire a department representative "to see whether or not this opening of a letter came at the direction of a unit manager by a person in writing." The court permitted the voir dire of Correction Officer Evan Charter. After the voir dire concluded, defense counsel argued that the department "did not follow the directive. Just because someone is in a category of high bond or pretrial doesn't necessarily ... further substantial interest[s] of security, order or rehabilitation." The court asked defense counsel, "[w]ould you agree [that the regulation] was followed in this situation?" Defense counsel responded, "I would agree [Officer Charter] followed [the regulation]." The court "allow[ed] the letter to come in," and defense counsel stated, "I still stand by my objection ...." Additional facts will be set forth as necessary.

A

We begin with the defendant's claim that "[t]he trial court erred in determining that [Officer Charter] followed the [regulation] when he turned over the correspondence" to law enforcement. We conclude that the defendant never distinctly raised this claim at trial. It is therefore unpreserved and unreviewable on appeal.

The regulation governs the review of an inmate's outgoing general correspondence. The regulation

[195 Conn.App. 275]

authorizes the

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"Unit Administrator" to select "specific inmate(s)" or inmates "on a random basis" to have their outgoing general mail reviewed if there is "reason to believe that such reading is generally necessary to further the substantial interests of security, order or rehabilitation." The regulation further directs the "Unit Administrator" to designate in writing the "person(s)" who will review inmate mail. Under the regulation, those designated "person(s)" are given the authority to restrict, confiscate, return to the inmate, retain for further investigation, refer for disciplinary proceedings or forward to law enforcement officials any outgoing general correspondence that "contain[s] or concern[s]" a list of nine prohibited inmate actions. See Regs., Conn. State Agencies § 18-81-31 (a).

The focus of the defendant's voir dire of Officer Charter was on the decision to review the defendant's mail in the first instance, not on whether the mail could be provided to law enforcement. Defense counsel's initial objection to the court was that the department "put a limit on themselves that not just anybody can open a letter at their own discretion." Defense counsel requested the voir dire "to see whether or not this opening of a letter came at the direction of a unit manager by a person in writing." During voir dire, Officer Charter testified that he did not make the initial decision to review the defendant's general outgoing mail. After

[195 Conn.App. 276]

[224 A.3d 173]

voir dire, defense counsel argued that the regulation was not followed because reviewing the mail of a high bond or pretrial inmate "doesn't necessarily ... further substantial interest[s] of security, order or rehabilitation." The voir dire did not explore Officer Charter's decision to forward the defendant's letter to law enforcement after a review of the letter.

Now, on appeal, the defendant claims that "[t]he trial court erred in determining that [Officer Charter] followed the [regulation] when he turned over the correspondence." This claim, challenging Officer Charter's authority and decision to turn the defendant's letter over to law enforcement pursuant to the regulation, is a claim that was not distinctly raised at trial. As such, it is unpreserved and not reviewable. See Practice Book § 60-5 ; State v. Morquecho , 138 Conn. App. 841, 851, 54 A.3d 609, cert. denied, 307 Conn. 941, 56 A.3d 948 (2012).

In his reply brief, the defendant claimed for the first time that "[t]here is no doubt that [the] trial counsel was objecting on the basis that the correction officer was not authorized to read the defendant's outgoing

[195 Conn.App. 277]

letter solely on the basis that he was being held on a high bond." We decline to review this claim because "arguments cannot be raised for the first time in a reply brief." (Internal quotation marks omitted.) State v. Myers , 178 Conn. App. 102, 106, 174 A.3d 197 (2017).

B

The defendant's second claim with respect to the letter is that his fourth amendment rights were violated. The defendant did not distinctly raise this claim at trial but seeks review under State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R. , 317 Conn. 773, 120 A.3d 1188 (2015). For the purposes of this decision we assume that the record is adequate, and we agree that the claim is of a constitutional magnitude. There is, however, no constitutional

[195 Conn.App. 278]

violation. See State v. Martin , 77 Conn. App. 778, 800, 825 A.2d 835 ("[t]he defendant

[224 A.3d 174]

has failed to cite any authority, nor have we found any, for the proposition that a pretrial detainee has a reasonable expectation of privacy in his telephone calls and mail after being informed that his calls and mail would be monitored" [emphasis in original] ), cert. denied, 266 Conn. 906, 832 A.2d 73 (2003). During the voir dire, Officer Charter testified that all inmates are notified that their calls and mail may be monitored upon entry into a facility. The defendant presented no evidence that he lacked such notice. Accordingly, the defendant did not prove that he had an objectively reasonable expectation of privacy. See State v. Houghtaling , 326 Conn. 330, 341, 163 A.3d 563 (2017) ("[t]he burden of proving the existence of a reasonable expectation of privacy rests [with] the defendant" [internal quotation marks omitted] ), cert. denied, ––– U.S. ––––, 138 S. Ct. 1593, 200 L. Ed. 2d 776 (2018). The defendant's claim fails under Golding's third prong.

C

The defendant's third claim with respect to the letter is that the regulation is void for vagueness as applied

[195 Conn.App. 279]

to this case. This claim also was unpreserved but because the record is adequate and vagueness claims implicate the due process clause of the federal constitution, we review it under Golding . State v. Thomas W. , 115 Conn. App. 467, 471–72, 974 A.2d 19 (2009), aff'd, 301 Conn. 724, 22 A.3d 1242 (2011). The defendant, however, cannot establish a constitutional violation.

The defendant argues that "[he] had inadequate notice that his letter would be used against him and he was the victim of arbitrary and discriminatory enforcement." The state argues that the regulation "carries no penal consequences" and, even if the regulation does implicate due process, the defendant had "fair notice that his outgoing general correspondence may be subject to review, and that such correspondence may be forwarded to law enforcement officials ... if ... it contained a plan for criminal activity ...." In his reply brief, the defendant responds that "[t]he state, without citing to authority, simply dismisses this claim by contending that since [the regulation is nonpenal] ... there is no implication of the due process clause." (Internal quotation marks omitted.)

[224 A.3d 175]

"[T]he United States Supreme Court has stated that [t]he degree of vagueness that the Constitution tolerates ... depends in part on the nature of the enactment.... [P]erhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights." (Internal quotation marks omitted.)

[195 Conn.App. 280]

Thalheim v. Greenwich , 256 Conn. 628, 641, 775 A.2d 947 (2001). "The constitutional requirement of definiteness applies more strictly to penal laws than to statutes that exact civil penalties." State v. Rivera , 30 Conn. App. 224, 229, 619 A.2d 1146, cert. denied, 225 Conn. 913, 623 A.2d 1024 (1993). "The words ‘penal’ and ‘penalty,’ in their strict and primary sense, denote a punishment, whether corporal or pecuniary, imposed and enforced by the State for a crime or offense against its laws." Plumb v. Griffin , 74 Conn. 132, 134, 50 A. 1 (1901) ; see also 82 C.J.S., Statutes § 529 (2019) ("[i]n common use, however, the term ‘penal statutes’ has been enlarged to include all statutes which define an offense and prescribe a punishment"). "[C]ivil statutes ... may survive a vagueness challenge by a lesser degree of specificity than in criminal statutes ...." (Internal quotation marks omitted.) Sweetman v. State Elections Enforcement Commission , 249 Conn. 296, 323, 732 A.2d 144 (1999).

The defendant fails to demonstrate that this regulation is penal and should receive closer scrutiny. See State v. Rivera , supra, 30 Conn. App. at 229, 619 A.2d 1146. Regardless, the defendant's claim fails even under the more exacting standard of review that applies to penal laws. "To demonstrate that [a statute] is unconstitutionally vague as applied to him, the [defendant] ... must ... demonstrate beyond a reasonable doubt that [he] had inadequate notice of what was prohibited or that [he was] the victim of arbitrary and discriminatory enforcement." (Internal quotation marks omitted.) State v. Winot , 294 Conn. 753, 759, 988 A.2d 188 (2010). The defendant cannot carry his burden.

The regulation states in relevant part that "[a]ll outgoing general correspondence shall be subject to being read at the direction of the Unit Administrator ... in writing ... for either a specific inmate(s) or on a random basis if the Commissioner or Unit Administrator has reason to believe that such reading is generally

[195 Conn.App. 281]

necessary to further the substantial interests of security, order or rehabilitation." Regs., Conn. State Agencies § 18-81-31 (a). This language gave notice to the defendant that he could have his mail reviewed if doing so was deemed in the interest of security, order or rehabilitation by prison officials. The regulation was followed when the defendant, as a high bond and pretrial detainee, was identified in writing as an inmate to have his mail reviewed. See Washington v. Meachum , 238 Conn. 692, 726, 680 A.2d 262 (1996) ("the United States Supreme Court [has] recognized the expertise of prison officials and that the judiciary is ‘ill equipped to deal with the increasingly urgent problems of prison administration,’ and [has] emphasized that courts should afford ‘deference to the appropriate prison authorities’ "). The regulation further provides that outgoing mail could be "forwarded to law enforcement officials, if such review discloses correspondence or materials which contain or concern ... Plans for criminal activity." Regs., Conn. State Agencies § 18-81-31 (a) (4). This language provided sufficient notice to the defendant that his letters could be forwarded to law enforcement if they contained plans for criminal activity. In the defendant's letter to his mother, he wrote "mom find out how the [victims] feel about the [whole] situation. [S]ee if they [are] still in CT or [if] they moved to AZ

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try to talk to them tell them how sorry I am tell them if [anything] Britt's [girl] is willing to give them [$5000] after we come home. See if they want to take the stand. I need you to do this now." A prison official reasonably could have determined that the letter contained plans for criminal activity, such as witness tampering. See General Statutes § 53a-151. The regulation is not void for vagueness as applied to the defendant.

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III

The defendant's final claim is that the charges of home invasion and burglary are the same offense, making his conviction of both offenses a violation of his constitutional protection against double jeopardy. Thus, the defendant argues that his conviction of burglary in the first degree must be vacated. We disagree.

"Double Jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met." (Internal quotation marks omitted.) State v. Bernacki , 307 Conn. 1, 9, 52 A.3d 605 (2012), cert. denied, 569 U.S. 918, 133 S. Ct. 1804, 185 L. Ed. 2d. 811 (2013). "At step one, it is not uncommon that we look to the evidence at trial and to the state's

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theory of the case ... in addition to the information against the defendant, as amplified by the bill of particulars.... If it is determined that the charges arise out of the same act or transaction, then the court proceeds to step two, where it must be determined whether the charged crimes are the same offense.... At this second step, we [t]raditionally ... have applied the Blockburger test to determine whether two statutes criminalize the same offense, thus placing a defendant prosecuted under both states in double jeopardy: [W]here the same act or transaction

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constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.... In applying the Blockburger test, we look only to the information and bill of particulars—as opposed to the evidence presented at trial—to determine what constitutes a lesser included offense of the offense charged.... Because double jeopardy attaches only if both steps are satisfied ... a determination that the offenses did not stem from the same act or transaction renders analysis under the second step unnecessary." (Citations omitted; footnote added; internal quotation marks omitted) State v. Porter , 328 Conn. 648, 662, 182 A.3d 625 (2018).

The defendant was charged in a substitute information with home invasion in violation of § 53a-100aa (a) (1) and burglary in the first degree in violation of

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§ 53a-101 (a) (3) as both the principal and as an accessory under General Statutes § 53a-8 (a). The state's theory of the case was that the home invasion occurred based on "[Vaughn] go[ing] over there and bring[ing] a gun with him. Then he enters in that house to commit a crime to help the larceny. He puts a gun to Kade's head," and the burglary occurred when the defendant remained in the house at night with the intent to steal Niko's firearms.

Under step one, "[t]he same transaction ... may constitute separate and distinct crimes where it is susceptible of separation into parts, each of which constitutes a completed offense.... [T]he test is not whether the criminal intent is one and the same and inspiring the whole transaction, but whether separate acts have been committed with the requisite criminal intent and are such as are made punishable by the [statute].... When determining whether two charges arose from the same act or transaction, our Supreme Court has asked whether a jury reasonably could have found a separate factual basis for each offense charged." (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Bennett , 187 Conn. App. 847, 853, 204 A.3d 49, cert. denied, 331 Conn. 924, 206 A.3d 765 (2019). In Bennett , the defendant was charged under the same subsections of the statutes criminalizing home invasion and burglary in the first degree as the defendant in the present case. Id., at 848, 204 A.3d 49. This court concluded in Bennett that the two crimes could be separated into parts. "[T]he burglary charge arose from the distinct and separate act of entering the dwelling at night with the intent to commit a larceny,

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while the home invasion charge arose from the separate act of threatening the use of physical force against [the victim] after the defendant and [the codefendant] entered the home and were committing the larceny." (Emphasis in original.)

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Id., at 855, 204 A.3d 49 ; see also State v. Schovanec , 326 Conn. 310, 328–29, 163 A.3d 581 (2017).

In the present case, the evidence allows the defendant's crimes to be separated into parts. While the defendant and Garris were playing video games in Niko's bedroom, the defendant inquired as to what Niko's cases contained, and Garris responded that Niko's guns were stored in the cases. Later, the defendant took multiple phone calls, leaving Niko's bedroom for each one. After these phone calls, Vaughn, who was unknown to Kade and not well known to Garris, showed up at the back door of the house. Kade went to Niko's bedroom and told the defendant that someone was there to see him. This upset Garris because the defendant had not first asked Garris about Vaughn's coming over.

After both Kade and Garris left Niko's bedroom for the kitchen, the defendant remained alone in Niko's bedroom. Lastly, when Vaughn had a gun pressed to Kade's head and Garris was pleading with Vaughn to point the gun at him, Vaughn yelled "hurry up," which the jury reasonably could infer was directed at the defendant. On the basis of the foregoing, the jury reasonably could have concluded that the defendant formulated the intent to take Niko's firearms before Vaughn's arrival when he was in Niko's bedroom, learned of the guns' existence and participated in numerous phone calls that he took outside of Garris' presence. In other words, the defendant had remained in Niko's house unlawfully with the intent to commit a larceny prior to Vaughn's arrival. The jury also reasonably could have determined that the home invasion occurred when Kade returned back to the kitchen and

[195 Conn.App. 286]

Vaughn grabbed her and pressed a handgun to the back of her head. That act, to which the jury reasonably could have convicted the defendant as being an accessory, constituted the separate act of threatening the immediate use of physical force element for robbery, which is an element of the offense of home invasion. See General Statutes § 53a-133.

Because the defendant failed to show that the two charges arose out of the same act or transaction, there is no need to proceed to step two and perform a Blockburger analysis. See State v. Porter , supra, 328 Conn. at 663 n.11, 182 A.3d 625. The defendant's double jeopardy argument fails.

The judgment is affirmed.

In this opinion PRESCOTT, J., concurred.

FLYNN, J., concurring and dissenting.

I write separately because I respectfully dissent from part I of the majority opinion.

[224 A.3d 179]

I disagree that the evidence was sufficient 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

[195 Conn.App. 287]

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 Statutes § 53a-3 (19). Thus, operability is an essential element 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 evidence beyond a reasonable doubt that each of the stolen

[195 Conn.App. 288]

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. The court denied the motion. The defense counsel premised his motion on the lack of evidence of any eyewitness seeing the defendant 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

[224 A.3d 180]

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, at 276 n.3, 623 A.2d 42

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 inferences to be drawn from circumstantial evidence based on: testimony of three witnesses; photographs of Niko's

[195 Conn.App. 289]

shotgun and case that were not stolen; a photograph of Niko's empty nightstand drawer; various photographs of Niko's bedroom depicting his bed, laundry baskets, television, and other miscellaneous items without the stolen weapons present; and Niko's firearm registrations.

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 identifying 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 deliberations," 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 circumstantial evidence, the point at which inferences become too remote and venture off into the realm of impermissible 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 sufficiency is an issue, however, the requirement that evidence should be given the most favorable construction in favor of the verdict does not end the analysis. When inferences become too stretched, remote, and speculative, they cannot constitute proof beyond a reasonable doubt. See id., at 518–19, 782 A.2d 658.

[195 Conn.App. 290]

The defendant's involvement in the separate crimes of home invasion, robbery, and burglary is reprehensible. 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. at 323, 99 S.Ct. 2781. 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

[224 A.3d 181]

theft. 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 habits 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 reasonable.

[195 Conn.App. 291]

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 evidence 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 evidence 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.

[195 Conn.App. 292]

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

[224 A.3d 182]

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 permit a finding of operability on the basis of obscuration.

The testimony at trial variously describes the containers 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 permissibly draw an inference from testimony that these containers 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.

[195 Conn.App. 293]

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 circumstantial 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 operability 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. at 91, 663 A.2d 1100 (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).