State v. Hall-George

S
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           STATE OF CONNECTICUT v. CALEB
                  T. HALL-GEORGE
                      (AC 42574)
                     Alvord, Prescott and Suarez, Js.

                                  Syllabus

Convicted, after a jury trial, of the crime of robbery in the second degree,
   the defendant appealed to this court. The defendant, wearing baggy
   clothing, including a sweatshirt, entered a bank and approached a teller
   station. He passed a withdrawal ticket to the teller, and told the teller
   to give him all the money and no one would get hurt. On the back of
   the withdrawal ticket was a handwritten note, which stated: ‘‘Give me
   . . . all the money and no one gets hurt.’’ It also stated: ‘‘It’s in my
   sweatshirt.’’ The teller complied and gave the defendant the money. The
   defendant then left the bank. On appeal, the defendant claimed that the
   evidence was insufficient to prove beyond a reasonable doubt that he
   threatened the use of what he represented by his words or conduct to
   be a deadly weapon or dangerous instrument as required by statute
   (§ 53a-135 (a) (1) (B)). Held that the evidence was sufficient for the
   jury reasonably to have found that the defendant represented that he
   had a deadly weapon or dangerous instrument in his sweatshirt and
   that he threatened to use it if the teller did not give him money; the
   defendant orally and in writing threatened to harm the bank staff if his
   demand for money was not met, and, immediately following the written
   threat of harm on the note, was the statement that ‘‘it’’ was in his
   sweatshirt, a statement that the jury reasonably could have inferred
   made reference to what the defendant would use to carry out the harm
   he threatened, namely, an object that he had concealed under his
   sweatshirt, it was reasonable for the jury to infer that his sweatshirt,
   which surveillance video and photographs showed was baggy, was capa-
   ble of concealing a deadly weapon or dangerous instrument, and, given
   the fact that his threat was made during a bank robbery, it was reasonable
   for the jury to infer that he had threatened to inflict serious physical
   injury or death if his demands were not met.
       Argued December 8, 2020—officially released March 9, 2021

                            Procedural History

  Substitute information charging the defendant with
two counts of the crime of robbery in the second degree,
brought to the Superior Court in the judicial district of
New Britain and tried to the jury before Dewey, J.;
verdict and judgment of guilty; thereafter, the court
dismissed one of the two counts, and the plaintiff
appealed to this court. Affirmed.
  Adele V. Patterson, senior assistant public defender,
for the appellant (defendant).
   Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Brian W. Preleski, state’s
attorney, and Robert Mullins, senior assistant state’s
attorney, for the appellee (state).
                          Opinion

  SUAREZ, J. The defendant, Caleb T. Hall-George,
appeals from the judgment of conviction, rendered fol-
lowing a jury trial, of robbery in the second degree in
violation of General Statutes § 53a-135 (a) (1) (B). The
defendant claims that the evidence was insufficient to
prove beyond a reasonable doubt that he threatened the
use of what he represented by his words and conduct
to be a deadly weapon or dangerous instrument, as
required by § 53a-135 (a) (1) (B). We affirm the judg-
ment of the trial court.
   On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts. At
approximately 4:10 p.m. on April 28, 2017, the defendant
entered a branch of Farmington Bank in New Britain.
The defendant was dressed in dark, baggy clothing,
including a sweatshirt with the hood pulled over his
head. The defendant is approximately five feet, seven
inches tall, and had a skinny build. The defendant
remained in the lobby of the bank for approximately
one hour, during which time he went to a workstation
in the middle of the bank, where he picked up a pen
and a piece of paper. He then sat in a guest chair with
a magazine or brochure in his lap on which he began
writing. While in the bank, during which time his activi-
ties were recorded by bank surveillance cameras, he
occasionally held to his ear what appeared to be a
cell phone.
   Shortly after 5 p.m., the defendant approached the
teller station at which Jessica Martinez, a bank supervi-
sor, was working. The counter at the teller station was
slightly taller than the defendant’s waist, and rising from
either side of the station were dividers about the same
height as the defendant’s shoulders. The dividers sup-
ported a piece of glass that separated Martinez and the
defendant. The defendant positioned his head such that
he was hovering over this glass during his interaction
with Martinez.
   Martinez asked the defendant how she could assist
him. The defendant then passed a withdrawal ticket to
Martinez and mumbled, ‘‘give me all the money and no
one will get hurt.’’ The front side of the withdrawal
ticket had ‘‘4-28-17’’ handwritten on the date line,
‘‘Anthony Springer’’ handwritten on the name line, and
‘‘Anthony’’ handwritten on the signature line. On the
back side of the withdrawal ticket was a handwritten
note, which stated: ‘‘Give me . . . [a]ll the money and
no one gets hurt. . . . It’s in my sweatshirt. Make it
quick . . . 100’s 50’s 20’s 10’s 5’s . . . Make it quick.’’
Martinez, acting under the belief that ‘‘something could
possibly happen’’ if she did not comply with the defen-
dant’s demands, gave the defendant $613 in currency.
The defendant left the bank at 5:05 p.m. The police
were called and arrived at the bank approximately three
minutes later.
   James Wozniak, an officer for the New Britain Police
Department, arrived at the bank, where he found Marti-
nez, who ‘‘appeared in shock and was emotional, cry-
ing.’’ A state forensic laboratory analyzed the defen-
dant’s note and found both latent fingerprints and DNA
on it. Analysis of the evidence supported a finding that
one fingerprint matched the defendant’s right index
finger and two other fingerprints matched his right mid-
dle finger. The DNA found on the note was determined
to be consistent with that of the defendant.
  The fingerprint analysis led the police to the defen-
dant, and they attempted to locate him at an address
in Willimantic. Ivette Santiago, who was dating the
defendant at the time of the robbery, lived at this
address and was there when the police arrived. Two
New Britain police officers spoke with Santiago, who
provided the police with two cell phone numbers that
she had used to communicate with the defendant. Santi-
ago identified the cell phone number that the defendant
used to contact her around the time of the robbery.
The police then obtained cell phone records for this
phone number after executing a search warrant. These
phone records showed that at 4:40 and 5:06 p.m. on the
date of the robbery, the defendant’s phone accessed a
cellular antenna that was mounted on a New Britain
church steeple that ‘‘[pointed] right toward the Broad
Street area where the bank [was]’’ located.
  The defendant was arrested on October 19, 2017. On
August 22, 2018, by way of a two count, long form
information, the state charged the defendant with one
count of robbery in the second degree in violation of
§ 53a-135 (a) (1) (B) and one count of robbery in the
second degree in violation of § 53a-135 (a) (2) (B). The
case was tried to a jury over the course of four days,
starting on September 24, 2018. The state rested on
September 27, 2018, the third day of trial. Immediately
thereafter, the defendant orally moved for a judgment of
acquittal.1 The court denied the motion. The defendant
then rested without presenting evidence. On September
28, 2018, the court held a charging conference on the
record, followed by the closing arguments of counsel.
The court then delivered the charge, and the jurors
began to deliberate. Later that day, the jury returned
guilty verdicts as to both counts.
   On October 2, 2018, the defendant filed a motion for
a judgment of acquittal after the verdict pursuant to
Practice Book § 42-51, asserting that the jury did not
hear sufficient evidence to find beyond a reasonable
doubt that the defendant committed the crimes with
which he was charged. On October 4, 2018, the defen-
dant filed an amended motion for a judgment of acquit-
tal after the verdict, which contained the same argu-
ments. The court denied both motions on December
3, 2018.
   On December 3, 2018, the court sentenced the defen-
dant to a period of seven years of incarceration on each
of the two counts. Immediately after sentencing, the
trial court noted that ‘‘[o]ne of those counts [had] to
be dismissed because you can’t be guilty of the two
counts of that one single act.’’ Accordingly, the court
concluded that ‘‘[t]he second count [was] dismissed
pursuant to case law . . . .’’2 This appeal followed.
Additional facts and procedural history will be set forth
as necessary.
  The defendant claims that the evidence was insuffi-
cient to prove beyond a reasonable doubt that he threat-
ened the use of what he represented by his words and
conduct to be a deadly weapon or dangerous instru-
ment, as was required by § 53a-135 (a) (1) (B). We
disagree.
   ‘‘We begin our analysis by setting forth the well set-
tled standard of review applicable to a sufficiency of
the evidence claim, wherein 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 [jury] reasonably could
have concluded that the cumulative force of the evi-
dence established guilt beyond a reasonable doubt
. . . . This court cannot substitute its own judgment
for that of the jury if there is sufficient evidence to
support the jury’s verdict. . . .
   ‘‘[T]he jury must find every element proven beyond
a reasonable doubt in order to find the defendant guilty
of the charged offense, [but] each of the basic and
inferred facts underlying those conclusions need not
be proved beyond a reasonable doubt. . . . If it is rea-
sonable and logical for the jury to conclude that a basic
fact or an inferred fact is true, the jury is permitted to
consider the fact proven and may consider it in combi-
nation with other proven facts in determining whether
the cumulative effect of all the evidence proves the
defendant guilty of all the elements of the crime charged
beyond a reasonable doubt. . . .
   ‘‘Moreover, it does not diminish the probative force
of the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
It is not one fact . . . but the cumulative impact of
a multitude of facts which establishes guilt in a case
involving substantial circumstantial evidence. . . . In
evaluating evidence, the [jury] is not required to accept
as dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [jury] may draw
whatever inferences from the evidence or facts estab-
lished by the evidence [that] it deems to be reasonable
and logical. . . .
  ‘‘[T]here is a fine line between the making of reason-
able inferences and engaging in speculation—the jury
is allowed only to do the former. . . . However, [t]he
line between permissible inference and impermissible
speculation is not always easy to discern. When we
infer, we derive a conclusion from proven facts because
such considerations as experience, or history, or sci-
ence have demonstrated that there is a likely correlation
between those facts and the conclusion. If that correla-
tion is sufficiently compelling, the inference is reason-
able. 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 conclu-
sion, the inference is less reasonable. At some point,
the link between the facts and the conclusion becomes
so tenuous that we call it speculation. When that point
is reached is, frankly, a matter of judgment. . . .
  ‘‘[P]roof of a material fact by inference from circum-
stantial evidence need not be so conclusive as to
exclude every other hypothesis. It is sufficient if the
evidence produces in the mind of the trier a reasonable
belief in the probability of the existence of the material
fact. . . . Thus, in determining whether the evidence
supports a particular inference, we ask whether that
inference is so unreasonable as to be unjustifiable. . . .
In other words, an inference need not be compelled by
the evidence; rather, the evidence need only be reason-
ably susceptible of such an inference. . . .
   ‘‘Finally, on appeal, we do not ask whether there is
a reasonable view of the evidence that would support
a reasonable hypothesis of innocence. We ask, instead,
whether there is a reasonable view of the evidence that
supports the jury’s verdict of guilty.’’ (Internal quotation
marks omitted.) State v. Hazard, 

201 Conn. App. 46

,
53–55, 

240 A.3d 749

, cert. denied, 

336 Conn. 901

, 

242 A.3d 711

(2020).
   Next, we identify the essential elements of the
offense. Section 53a-135 (a) (1) (B) provides in relevant
part: ‘‘A person is guilty of robbery in the second degree
when such person . . . commits robbery, as defined
in section 53a-133,3 and . . . in the course of the com-
mission of the crime or of immediate flight therefrom,
such person . . . displays or threatens the use of what
such person represents by such person’s words or con-
duct to be a deadly weapon4 or a dangerous instrument5
. . . .’’ (Footnotes added.) ‘‘In order for a jury to find
a defendant guilty of robbery in the second degree, it
would have to find that in the course of committing a
larceny, the defendant used or threatened the immedi-
ate use of physical force on another person for the
purpose of compelling the owner of such property to
deliver up the property and in the course of the commis-
sion of the crime or of the immediate flight therefrom
displayed or threatened the use of what he represented
by his words or conduct to be a deadly weapon or a
dangerous instrument.’’ State v. Laws, 

36 Conn. App. 401

, 409, 

651 A.2d 273

(1994), cert. denied, 

232 Conn. 921

, 

656 A.2d 671

(1995).
  As to count one, the state alleged the following in
the information: ‘‘[The defendant], in the course of the
commission of the crime of robbery, as defined in [§]
53a-133 . . . threatened the use of what he represented
through words and conduct to be a deadly weapon or
dangerous instrument, to wit: passing a note indicating
he had a deadly weapon or dangerous instrument, in
his waistband to the bank teller, said conduct is in
violation of [§] 53a-135 (a) (1) (B) . . . .’’ (Emphasis
in original.)
  The state presented the following evidence to prove
that the defendant had represented that he had a deadly
weapon or a dangerous instrument.6 Martinez testified
that the defendant stated to her, ‘‘give me all the money
and no one will get hurt.’’ The note that the defendant
gave to Martinez, which was in evidence, stated in rele-
vant part: ‘‘Give me . . . [a]ll the money and no one
gets hurt. . . . It’s in my sweatshirt.’’ Surveillance
video and photographs of the defendant in the bank
while wearing the sweatshirt were in evidence. Martinez
also testified that the defendant’s build was ‘‘[s]kinny’’
and that his ‘‘clothes were really kind of baggy on him.’’
Surveillance video showed that the counter at the teller
station was slightly higher than the defendant’s waist.
Martinez testified that when the defendant came to the
counter, ‘‘he was kind of like hovered over the glass’’
that separated them.
   The defendant focuses on the language of the note
and argues that the handwritten note to the teller was
not sufficient to permit a jury to find beyond a reason-
able doubt that he threatened to use what he repre-
sented was a deadly weapon or a dangerous instrument.
He contends that ‘‘the mere claim to possess an unspeci-
fied ‘weapon’ is insufficient to establish this essential
element of the crime as charged.’’ Further, he asserts
that the jury impermissibly resorted to speculation to
infer that the phrase ‘‘[i]t’s in my sweatshirt’’ meant
that he was threatening to use a deadly weapon or
dangerous instrument.
  The state argues that the jury reasonably could have
concluded that the cumulative effect of the evidence
presented at trial established guilt beyond a reasonable
doubt. The state points to the following evidence as
being sufficient to prove beyond a reasonable doubt
that the defendant’s words and actions implied that
he was armed with a deadly weapon or a dangerous
instrument that was capable of causing death or serious
physical injury: ‘‘The defendant (1) appeared at [Marti-
nez’] window wearing a closed-front sweatshirt; (2) was
separated from Martinez by a thick counter structure
and a clear partition that rose to chest/shoulder height;
(3) said to Martinez, ‘give me all the money and no one
will get hurt’; and (4) handed Martinez a note saying,
‘Give me . . . [a]ll the money and no one gets hurt.
. . . It’s in my sweatshirt.’ ’’
   To support this argument, the state cites State v.
Hawthorne, 

175 Conn. 569

, 

402 A.2d 759

(1978), a case
in which a defendant was convicted of robbery in the
first degree under General Statutes § 53a-134 (a) (4),7
which contains language almost identical to the lan-
guage of § 53a-135 (a) (1) (B). The difference between
the two statutes is that § 53a-135 (a) (1) (B) covers
the display or threatened use of deadly weapons and
dangerous instruments, as opposed to only the display
or threatened use of firearms. Because of the similarity
in statutory language, Hawthorne provides us with
some guidance. In Hawthorne, our Supreme Court
stated that ‘‘the essential element of subsection (a) (4)
. . . is the representation by a defendant that he has
a firearm. Under this portion of § 53a-134, a defendant
need not have an operable firearm; in fact, he need not
even have a gun. He need only represent by his words
or conduct that he is so armed.’’ (Emphasis in original.)
State v. 

Hawthorne, supra

, 573; see also State v. Bell, 

93 Conn. App. 650

, 670, 

891 A.2d 9

(quoting same language
from Hawthorne), cert. denied, 

277 Conn. 933

, 

896 A.2d 101

(2006). Applying that rationale to the statutory lan-
guage of § 53a-135 (a) (1) (B), a defendant need only
represent by his words or conduct that he is armed
with a deadly weapon or dangerous instrument.
    The state points to prior cases in which this court has
held that evidence similar in nature to that presented
to the jury in the present case was sufficient to prove
beyond a reasonable doubt that a defendant had repre-
sented that he was armed in violation of § 53a-134 (a)
(4). Although cases of this nature are inherently fact-
specific, given the similarities between § 53a-134 (a) (4)
and § 53a-135 (a) (1) (B), we find these cases to be
instructive. In State v. 

Bell, supra

, 

93 Conn. App. 670

–71,
the defendant told the robbery victim that she ‘‘wouldn’t
get hurt’’ if she did what he told her to do, while holding
something under his jacket that the victim testified
‘‘looked like a gun.’’ In State v. St. Pierre, 

58 Conn. App. 284

, 288–89, 

752 A.2d 86

, cert. denied, 

254 Conn. 916

,

759 A.2d 500

(2000), ‘‘the defendant announced, ‘[t]his
is a holdup,’ and raised his right arm which remained
hidden in his jacket from beneath the counter to counter
level, while stating he was serious about holding up the
store.’’ In State v. Arena, 

33 Conn. App. 468

, 471, 477,

636 A.2d 398

(1994), aff’d, 

235 Conn. 67

, 

663 A.2d 972

(1995), the defendant told the victim to ‘‘hurry up’’ and
‘‘nothing will happen,’’ while pointing an object in an
opaque plastic shopping bag that the victim thought
looked like a gun. In each of these cases, the defendants
did not state that they had firearms on their person.
The defendants’ conduct and words, however, were
sufficient for the juries to reasonably infer that the
defendants wanted the victims to think that they had
firearms. See State v. 

Bell, supra

, 671. When weighing
the sufficiency of the evidence in both Bell and Arena,
this court noted that implicit in the defendants’ state-
ments were threats of harm. See id.; State v. 

Arena, supra

, 477.
   In the present case, the evidence demonstrated that,
during the commission of the bank robbery, the defen-
dant orally and in writing threatened harm to bank staff
if his demand for money was not met. Immediately
following the written threat of harm in the note that
the defendant gave to Martinez was the statement, ‘‘[i]t’s
in my sweatshirt.’’ The jury reasonably could have
inferred that the note made reference to what the defen-
dant would use to carry out the harm he threatened,
namely, an object that he had concealed under his
sweatshirt. It was also reasonable for the jury to infer
that, in light of the fact that the defendant’s threat was
made during a bank robbery, he had threatened to inflict
serious physical injury or death if his demands were
not met. Thus, it was reasonable for the jury to find
that the ‘‘it’’ that was under his sweatshirt was a type
of object capable of inflicting such degree of harm. We
are likewise mindful that Martinez’ testimony and the
surveillance video and photographs showed that the
defendant’s sweatshirt was baggy. Based on this testi-
mony and evidence, the jury could have reasonably
inferred that the defendant’s sweatshirt was capable of
concealing one of the deadly weapons or dangerous
instruments described in General Statutes § 53a-3 (6)
and (7). The jury reasonably could have found that the
height of the counter and the defendant’s posture while
he was standing at the counter could have allowed him
to further conceal whatever was in his sweatshirt.
  When construing the evidence in the light most favor-
able to sustaining the verdict, we conclude that the
jury reasonably could have found beyond a reasonable
doubt that the defendant represented that he had a
deadly weapon or a dangerous instrument in his
sweatshirt and that he threatened to use it if Martinez
did not give him the money he requested. Accordingly,
we conclude that the evidence was sufficient for a jury
to find the defendant guilty of robbery in the second
degree in violation of § 53a-135 (a) (1) (B).
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
    A motion for a judgment of acquittal at the conclusion of the state’s
case-in-chief is permitted under Practice Book § 42-41.
  2
    The defendant has appealed from the judgment of conviction rendered
on December 3, 2018, under § 53a-135 (a) (1) (B). In his appellate brief,
the defendant nevertheless claims that the evidence presented at trial was
insufficient to prove that all of the elements of § 53a-135 (a) (2) (B) were
met. He raises this claim out of ‘‘an abundance of caution,’’ to preserve the
claim in the event that a reversal of his conviction under § 53a-135 (a) (1)
(B) results in a reinstatement of the conviction under § 53a-135 (a) (2) (B).
  The defendant also asserts that because the court dismissed, rather than
vacated, his sentence under § 53a-135 (a) (2) (B), the conviction ‘‘cannot
be revived without violating [his] constitutional protection against double
jeopardy under the fifth and fourteenth amendments.’’ The defendant notes
that, although ‘‘the state did not request the dismissal, it also did not object
and did not request permission to appeal.’’ He contends that the dismissal
‘‘is a final judgment beyond the reach of this court . . . .’’
    The state argues that ‘‘the trial court merely misspoke when it referred
to count two being dismissed.’’ The state asserts that the court’s statement
that ‘‘you can’t be guilty of the two counts of that one single act’’ is ‘‘an
obvious reference to the double jeopardy concerns that were recognized
and remedied via vacatur in State v. Polanco, [

308 Conn. 242

, 

61 A.3d 1084

(2013)], and its progeny.’’ Further, the state contends that, ‘‘had the trial
court intended to enter an outright dismissal of count two, as opposed
to effectuating Polanco, it would have had no reason to first impose a
sentence thereon.’’
    Because we affirm the defendant’s conviction under § 53a-135 (a) (1) (B),
we need not reach the merits of his claim regarding his conviction under
§ 53a-135 (a) (2) (B).
    3
      General Statutes § 53a-133 provides: ‘‘A person commits robbery when,
in the course of committing a larceny, he uses or threatens the immediate
use of physical force upon another person for the purpose of: (1) Preventing
or overcoming resistance to the taking of the property or to the retention
thereof immediately after the taking; or (2) compelling the owner of such
property or another person to deliver up the property or to engage in other
conduct which aids in the commission of the larceny.’’
    General Statutes § 53a-119 provides in relevant part: ‘‘A person commits
larceny when, with intent to deprive another of property or to appropriate
the same to himself or a third person, he wrongfully takes, obtains or
withholds such property from an owner. . . .’’
    4
      General Statutes § 53a-3 (6) defines ‘‘deadly weapon’’ as ‘‘any weapon,
whether loaded or unloaded, from which a shot may be discharged, or a
switchblade knife, gravity knife, billy, blackjack, bludgeon, or metal knuck-
les. . . .’’
    5
      General Statutes § 53a-3 (7) defines ‘‘dangerous instrument’’ in relevant
part as ‘‘any instrument, article or substance which, under the circumstances
in which it is used or attempted or threatened to be used, is capable of
causing death or serious physical injury . . . .’’
    6
      The defendant does not dispute on appeal that the evidence was sufficient
to prove beyond a reasonable doubt that he committed a robbery. He disputes
only that the evidence was sufficient to prove that, in the commission of
the robbery, he represented that he had a deadly weapon or a dangerous
instrument.
    7
      General Statutes § 53a-134 (a) (4) provides in relevant part: ‘‘A person
is guilty of robbery in the first degree when, in the course of the commission
of the crime of robbery as defined in section 53a-133 or of immediate flight
therefrom, he . . . displays or threatens the use of what he represents by
his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun
or other firearm . . . .’’

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