State v. Quintiliano

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STATE OF CONNECTICUT v.
PAUL A. QUINTILIANO
(AC 43137)
Bright, C. J., and Moll and DiPentima, Js.

Syllabus

Convicted of the crime of criminal mischief in the first degree in connection
with a property dispute with his neighbor, C, the defendant appealed
to this court, claiming, inter alia, that there was insufficient evidence
to demonstrate that he had no reasonable ground to believe that he had
a right to remove certain trees C had planted on C’s land. The defendant
claimed to enjoy deeded easement rights to the land in question. C
planted a number of trees, some of which were located along the border
of the land subject to the easement, and the defendant, following advice
from attorneys, subsequently dug up the trees along the border. The
state charged the defendant with criminal mischief in the first degree
for intentionally causing damage in excess of $1500 to C’s tangible
property without a reasonable ground to believe he had the right to do
so. Held:
1. The trial court’s finding that the trees were beyond the easement area
was clearly erroneous; there was insufficient evidence in the record to
establish the precise location of the easement area or the location of
the trees in relation thereto, as none of the maps admitted into evidence
established where the deeded easement actually ended or depicted the
location of the trees, the witness testimony was imprecise and inade-
quate to support the court’s finding, and there was no expert testimony
presented on the topic of the location of the easement area or the trees.
2. The evidence adduced at trial was insufficient to support the defendant’s
conviction of criminal mischief in the first degree: the trial court failed
to recognized the defendant’s right under Connecticut easement law to
remove the obstructing trees from his right-of-way without first seeking
judicial intervention; moreover, because the court failed to recognize
the defendant’s right, it erred in finding that it was not credible that an
attorney would advise his client that the client was entitled to remove
property that was blocking access to a right-of-way granted in an ease-
ment, and, as a result, improperly concluded that, as a matter of law,
the defendant could not have had a reasonable ground to believe that
he had the right to remove the trees from the easement area; accordingly,
a judgment of acquittal was directed.
Argued February 18—officially released August 17, 2021

Procedural History

Substitute information charging the defendant with
the crime of criminal mischief in the first degree,
brought to the Superior Court in the judicial district of
Waterbury, geographical area number four, and tried
to the court, Crawford, J.; thereafter, the court denied
the defendant’s motion for a judgment of acquittal; judg-
ment of guilty, from which the defendant appealed to
this court. Reversed; judgment directed.
Alexander Copp, with whom were Neil R. Marcus,
and, on the brief, Barbara M. Schellenberg, for the
appellant (defendant).
Linda F. Currie, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Joseph Danielowski, senior assistant
state’s attorney, for the appellee (state).
Opinion

MOLL, J. In this criminal appeal, which arises out of
a property dispute between neighbors, the defendant,
Paul A. Quintiliano, appeals from the judgment of con-
viction, rendered after a trial to the court, of criminal
mischief in the first degree in violation of General Stat-
utes § 53a-115 (a) (1).1 On appeal, the defendant claims,
inter alia, that there was insufficient evidence to demon-
strate that he had no reasonable ground to believe that
he had a right to remove certain trees planted by his
former neighbor, Brian Collins, on a portion of land then
owned by Collins with respect to which the defendant
claimed to enjoy deeded or prescriptive easement
rights.2 We agree and, accordingly, reverse the judgment
of the trial court.
The following facts, as set forth in the court’s memo-
randum of decision, are relevant to our decision. ‘‘On
June 25, 2017 . . . Collins, and the defendant . . .
owned lots in a subdivision in Southbury. [Collins]
owned lot number [23.04], and the defendant owned
lot number [23.03] . . . . There are two warranty
deeds . . . and a quitclaim deed . . . . Each [deed]
references a common driveway agreement, hereinafter
referred to as a CDA. . . . The CDA includes an ease-
ment granted by the owner of lot number [23.04] to the
owner of lot number [23.03]. The easement granted a
perpetual right-of-way for ingress and egress, by foot
or vehicle, including the right to construct, pave and
maintain a driveway and use the same in common with
the owner, present and future. The easement area is
within the northerly most 1000 feet of the 30 foot wide
portion of lot number [23.04] adjoining the westerly
boundary of lot number [23.03] and lot number [23.02].
. . . The CDA was signed on June 2, 1993, and the
easement runs with the land.
‘‘Prior to 2013, the defendant had a box truck and
small white tent parked in the corner of his lot. He used
this for storage. His wife said [that] the small tent had
been destroyed. [Collins] gave the defendant permis-
sion to access the storage area from the common drive-
way. [The defendant’s wife] also stated [that] the per-
mission was granted approximately one year before
[Collins] started planting, and [Collins] had promised
to leave access to the storage area on the property. And
that was granted about one year before [Collins] started
planting the trees.
‘‘In 2013, the defendant erected a very large green
tent and attached it to the box truck located on his
property. The defendant expanded his excavating busi-
ness in 2013. [Collins] stated that the defendant never
came down to the area prior to erecting the large green
tent. He was always in the back area on his property—
on his own property. [The defendant’s wife] said the
defendant went down twice a week, and she drove
down once every other week as she used the storage
area to store items connected with her eBay business.
However, it is unclear when she started her eBay busi-
ness. The defendant did not live on the premises
between 2002 and 2010. Furthermore, the defendant
could access the storage area on his own lot without
having to use the common driveway. With the expan-
sion of his excavating business, the large green tent
was needed to store additional equipment connected
with that business. After the erection of the large green
tent, the defendant started coming down to the area.
. . .
‘‘In 2013 or 2014, [Collins] informed the defendant
he would be planting trees. On June 3, 2016, [Collins]
paid Green Giant Arborvitaes Rapid Grow [$5423.21]
for forty-three or forty-four trees to include the planting
of the trees . . . . The trees were planted on June 11,
2016, eighteen of which were along the border beyond
the thirty foot wide portion of lot number [23.04] adjoin-
ing the westerly boundary of lot number [23.03] and lot
number [23.02]. After [Collins] planted the trees, the
defendant informed him that he would tear out the
trees. [Collins] also noticed one tree had been
knocked over.
‘‘[Collins] called the police and Officer [Brian] McKir-
ryher responded. The defendant told the officer he had
used the area for fifteen years. Officer McKirryher
informed the defendant that any right he believed he
had should be determined in a civil proceeding, but if
he ran over the trees, there would be consequences.
[Collins] said the officer told the defendant that it would
be a crime.
‘‘Thereafter, the defendant sent a letter to [Collins]
informing him that he had four days to remove the trees
and that his attorney had advised him he could take
out ten of the trees. . . .
‘‘[O]n June 25, 2017, eighteen of the trees had been
dug up and thrown on the side of the road . . . . [Col-
lins] called the police. When the officer arrived, he saw
the trees uprooted and on the side of the road in dirt.
He also saw the defendant’s excavator. Later he saw
the defendant on the excavator, and he also saw the
area where the defendant had ripped up the trees. The
defendant informed the officer that the trees wouldn’t
die if they were watered and replanted and that his
attorney had advised him he had a right to access the
large green tent he had put up. And the trees blocked
the access to his shed, and his attorney told him he
had a right to tear them up. The officer informed the
defendant that he had a right to access his property.’’
The defendant subsequently was charged by way of
a substitute information with criminal mischief in the
first degree in violation of § 53a-115 (a) (1), which pro-
vides that ‘‘[a] person is guilty of criminal mischief in the
first degree when . . . [w]ith intent to cause damage to
tangible property of another and having no reasonable
ground to believe that such person has a right to do
so, such person damages tangible property of another
in an amount exceeding one thousand five hundred
dollars.’’
A bench trial took place on March 18, 19, 20 and 25,
2019. On March 19, 2019, after the close of the state’s
case-in-chief, the defendant orally moved for a judg-
ment of acquittal on the ground that the state had failed
to present sufficient evidence of each element to con-
vict him of criminal mischief in the first degree beyond
a reasonable doubt. The court denied the motion. On
March 20, 2019, after the close of evidence, the defen-
dant again moved for a judgment of acquittal. The court
deferred ruling until after closing arguments and subse-
quently denied the motion. The defendant additionally
submitted to the court written proposed legal findings
as to each element of § 53a-115 (a) (1). The court
rejected all of the defendant’s proposed legal findings.
On March 25, 2019, the court found the defendant
guilty of criminal mischief in the first degree in violation
of § 53a-115 (a) (1). With specific regard to the third
element of § 53a-115 (a) (1) (i.e., no reasonable ground
to believe that one has the right to cause damage to
tangible property of another), the court found: ‘‘The
defendant had no reasonable ground to believe he had
a right to tear out the trees and dump them on the
side of the road. No reasonable person in his situation
considering his point of view would believe he had a
right to damage the trees. He had been given permission
to access the storage area and he hardly—he never
used or seldom used that until 2013, after he erected
the large green tent and attached it to his box truck.
His wife stated that they had been given permission
approximately one year before the planting and that
[Collins] in the planting had promised access. The
defendant could access the storage area on his property
without having to cross [Collins’] property. So if there
is a right, then there was no need to be given permission
or a promise to have access to the storage area. And
the access to the storage area on his own property . . .
over [Collins’] property is different than having access
to a storage area on his property.
‘‘It is not credible that an attorney would advise the
defendant that the remedy for blocking a right-of-way
granted in an easement is to destroy the property that
is blocking access.3 But, again, this is access to the shed
and the tent, which is a storage area as opposed to
blocking access in terms of ingress and egress onto
his own property. The proper course of conduct as
suggested by the officer was to go to civil court and
have the question about the boundaries or the extent
of the easement with the right for ingress and egress
resolved in that forum. That advice, if given, the defen-
dant and his wife did not follow it in terms of the advice
from counsel, according to [the defendant’s wife],
because they were not that kind of people, but they
clearly did not, in 2016, after saying if it wasn’t removed
in four days, they had a right to tear the trees out or,
at a minimum, ten of the eighteen that were ripped out.
‘‘In Connecticut, a [prescriptive] easement is acquired
with continued and uninterrupted use for fifteen years.
The state presented evidence that showed that there
was no continued and uninterrupted use for fifteen
years, that use being access to [the defendant’s] storage
shed that was located on his property. There was no
evidence that the defendant could not enter or leave
his property. To the contrary, he built a driveway off
of the common driveway down to his own property.
So there was definitely ingress and egress to his lot.
So under the circumstances as laid out, no reasonable
person would believe that, being in the defendant’s posi-
tion, that he had a right to access the storage shed on
his own property via [Collins’] property.’’4 (Footnote
added.)
On June 14, 2019, the court sentenced the defendant
to eighteen months of incarceration, execution sus-
pended, followed by three years of probation. The court
also ordered the defendant to pay $2218.58 in restitu-
tion. This appeal followed. Additional facts and proce-
dural history will be set forth as necessary.
The defendant claims on appeal that the evidence
presented at trial was insufficient to prove beyond a
reasonable doubt that he had no reasonable ground to
believe that he had a right to remove the trees. In sup-
port of this claim, the defendant makes, inter alia, three
contentions that we find dispositive: (1) the state failed
to establish the location of the deeded easement area
and the location of the trees in relation thereto; (2) the
trial court failed to recognize the right of a dominant
estate holder of a right-of-way easement, appurtenant
to his or her adjoining land, to remove obstructions
placed in the right-of-way that materially interfere with
his or her reasonable enjoyment of the easement; and
(3) as a result of the foregoing failure, the court further
erred by not finding it credible that an attorney would
so advise his client.5 We agree with each of these conten-
tions.6
Before we address the merits of the defendant’s
claim, we set forth the applicable standard of review.
‘‘In reviewing a sufficiency of the evidence claim, we
apply a [two part] test. First, we construe the evidence
in the light most favorable to sustaining the verdict.
Second, we determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the [finder of fact] reasonably could have concluded
that the cumulative force of the evidence established
guilt beyond a reasonable doubt. . . . 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 rea-
sonable view of the evidence that supports the [fact
finder’s] verdict of guilty.’’ (Internal quotation marks
omitted.) State v. Bradbury, 196 Conn. App. 510, 515,
230 A.3d 877, cert. denied, 335 Conn. 925, 234 A.3d
980 (2020).
‘‘A challenge to the sufficiency of the evidence is
based on the court’s factual findings. The proper stan-
dard of review is whether the court’s findings were
clearly erroneous based on the evidence. . . . A court’s
finding of fact is clearly erroneous and its conclusions
drawn from that finding lack sufficient evidence when
there is no evidence in the record to support it . . .
or when although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.’’ (Emphasis omitted; internal quotation
marks omitted.) State v. Edwards, 148 Conn. App. 760,
765, 87 A.3d 1144 (2014). ‘‘[A] defendant is entitled to a
judgment of acquittal and retrial is barred if an appellate
court determines that the evidence is insufficient to
support the conviction.’’ (Internal quotation marks
omitted.) State v. Tenay, 156 Conn. App. 792, 801–802,
114 A.3d 931 (2015).
I
As a threshold matter, we first turn to the defendant’s
argument that the state failed to establish the location
of the deeded easement area and the location of the
trees in relation thereto. We agree with the defendant.7
By way of review, in its memorandum of decision, the
trial court stated that ‘‘[t]he CDA includes an easement
granted by the owner of lot number [23.04] to the owner
of lot number [23.03]. The easement granted a perpetual
right-of-way for ingress and egress, by foot or vehicle,
including the right to construct, pave and maintain a
driveway and use the same in common with the owner,
present and future. The easement area is within the
northerly most 1000 feet of the 30 foot wide portion of
lot number [23.04] adjoining the westerly boundary of
lot number [23.03] and lot number [23.02]. . . . The
CDA was signed on June 2, 1993, and the easement
runs with the land.’’ The court additionally found that
‘‘[t]he trees were planted on June 11, 2016, eighteen of
which were along the border beyond the thirty foot wide
portion of lot number [23.04] adjoining the westerly
boundary of lot number [23.03] and lot number [23.02].’’
(Emphasis added.) Stated differently, the court found
that the trees were planted ‘‘beyond’’ the easement area
and concluded that, ‘‘under the circumstances as laid
out, no reasonable person would believe that, being in
the defendant’s position . . . he had a right to access
the storage shed on his own property via [Collins’] prop-
erty.’’
Mindful of the standard of review principles recited
previously, we conclude that, to the extent the court
found that the trees were planted outside the easement
area, such finding was clearly erroneous because there
was insufficient evidence to establish the precise loca-
tion of the easement area or the location of the trees
in relation thereto. As an initial matter, none of the
maps admitted into evidence (1) establishes where the
1000 foot deeded easement actually ends, or (2) depicts
the location of the trees. In addition, the testimony of
the witnesses who testified as to these issues—Collins
and the defendant’s wife—was imprecise and simply
inadequate to support the court’s finding that the trees
were planted outside the easement area. Finally, there
was no expert testimony on which the trial court could
rely to make such finding. See Thurlow v. Hulten, 173
Conn. App. 694, 725, 164 A.3d 858 (2017) (‘‘[w]here the
testimony of witnesses as to the location of the land
described in deeds is in conflict, it becomes a question
of fact for the determination of the court which may
rely upon the opinions of experts to resolve the problem
and it is the court’s duty to accept that testimony or
evidence which appears more credible’’ (internal quota-
tion marks omitted)).
In light of the foregoing, the court’s finding that the
trees were beyond the easement area is clearly errone-
ous.
II
We next address the defendant’s contention that the
trial court erred in failing to recognize the legal principle
that ‘‘any easement that grants a right of ingress and
egress includes the right to remove any structure which
constitutes a material obstruction to the rightful enjoy-
ment of the easement, or which renders that enjoyment
less beneficial or convenient than before its erection.’’
The defendant also makes the related contention that,
as a result of the foregoing failure, the court further
erred by not finding it credible, effectively as a matter
of law, that an attorney would so advise his client. We
agree with both contentions.
We first briefly address the applicable standard of
review. ‘‘When . . . the trial court draws conclusions
of law, our review is plenary and we must decide
whether its conclusions are legally and logically correct
and find support in the facts that appear in the record.’’
(Internal quotation marks omitted.) Northeast Ct. Eco-
nomic Alliance, Inc. v. ATC Partnership, 256 Conn.
813, 827, 776 A.2d 1068 (2001). Although we generally
defer to ‘‘the determinations of the trial court regarding
factual findings on issues of credibility, unless they are
clearly erroneous,’’ the scope of our review remains
plenary when the ultimate issue before the trial court
was not truly a credibility question, but rather a question
of law. Lisiewski v. Seidel, 72 Conn. App. 861, 870, 806
A.2d 1121; see id., 870–71 (in case involving property
dispute, when deed at issue contained clear and unam-
biguous language, trial court’s determination that plain-
tiff’s expert witness testified credibly regarding latent
ambiguity in deed did not restrict this court’s plenary
review of legal questions regarding proper construction
of deeds), cert. denied, 262 Conn. 921, 812 A.2d 865
(2002), and cert. denied, 262 Conn. 922, 812 A.2d 865
(2002).
Our analysis of this claim requires a discussion of
certain principles of Connecticut easement law. ‘‘It is
well settled that [a]n easement creates a nonpossessory
right to enter and use land in the possession of another
and obligates the possessor not to interfere with the
uses authorized by the easement.’’ (Internal quotation
marks omitted.) Celentano v. Rocque, 282 Conn. 645,
660, 923 A.2d 709 (2007). ‘‘An easement has six primary
characteristics: (1) it is an interest in land in the posses-
sion of another, (2) it is an interest of a limited use or
enjoyment, (3) it can be protected from interference
by third parties, (4) it cannot be terminated at will by
the possessor of the servient land, (5) it is not a normal
incident of a possessory land interest, and (6) it is capa-
ble of creation by conveyance . . . . An easement may
be affirmative or negative; appurtenant or in gross
. . . .
‘‘An affirmative easement authorizes uses of land that
would be viewed as actionable trespasses if no ease-
ment existed. A right of way across a neighbor’s prop-
erty is a common example of an affirmative ease-
ment. . . .
‘‘Although an easement does not create an ownership
interest in the servient estate but creates a mere privi-
lege to use the servient estate in a particular manner, an
easement involves limited rights to enjoy or to restrict
another’s use of property. . . . If an easement is cre-
ated to benefit and does benefit the possessor of the
land in his use of the land, the benefit of that easement
is appurtenant to the land. The land is being benefited
by the easement in the neighboring property. . . . An
important characteristic of appurtenant easements is
that they continue in the respective properties, rather
than being merely personal rights of the parties
involved. The easement’s benefit or its burden passes
with every conveyance affecting either the servient or
dominant property.’’ (Citations omitted; internal quota-
tion marks omitted.) Kepple v. Dohrmann, 141 Conn.
App. 238, 246, 249–50, 60 A.3d 1031 (2013).
Our Supreme Court previously has recognized the
right of a dominant estate holder of a right-of-way ease-
ment, appurtenant to his or her adjoining land, to
remove obstructions placed in the right-of-way that
materially interfere with his or her reasonable enjoy-
ment of the easement. In Blanchard v. Maxson, 84
Conn. 429, 80 A. 206 (1911), the plaintiff had erected a
fence within a laneway to prevent the defendant and
his tenants from having access thereto from a certain
point on the defendant’s land. The defendant later
removed the fence, ‘‘doing no other damage than was
necessary to accomplish that result.’’ Id., 432 (prelimi-
nary statement of facts and procedural history). The
plaintiff brought an action sounding in trespass, and
judgment was rendered for the defendant. Id., 430
(same). On appeal, our Supreme Court found no error,
concluding that the laneway was subject to a right-of-
way easement appurtenant to the defendant’s adjoining
land. Id., 433. The court reasoned: ‘‘The fact that the
defendant has never owned the fee to any part of the
land covered by the lane does not militate against his
right to keep it free from obstructions. Any structure
which could not properly be placed thereon, and which
constituted an obstruction to his free and full use of the
lane in his rightful enjoyment of the easement, would
be removable by him as a nuisance. Greist v. Amrhyn,
80 Conn. 280, 290, [68 A. 521 (1907)]. The fact that
the fence which he took down did not wholly prevent
passage up and down the lane did not save it from being
an unlawful obstruction. Erected as it was, without
reasonable justification or purpose, it was a nuisance
abatable by him, if it materially interfered with his rea-
sonable enjoyment of the easement, or rendered that
enjoyment less beneficial or convenient than before its
erection.’’ Blanchard v. Maxson, supra, 435–36; see also
Smith v. Muellner, 283 Conn. 510, 518, 932 A.2d 382
(2007) (‘‘The owner of the soil [over which a right-of-
way exists] retains full dominion over his land subject
merely to the right-of-way. . . . The owner may make
any use of his land which does not interfere with a
reasonable use of the way.’’ (Internal quotation marks
omitted.)); Greist v. Amrhyn, supra, 290–91 (‘‘[O]ne in
possession of premises to which an easement is appur-
tenant may have an action for a disturbance or obstruc-
tion of such easement. A tenant or a cestui que trust
in possession of the dominant estate may have such an
action for the injury to his possession. . . . It follows
that he may remove the obstruction as a nuisance.’’
(Citations omitted.)).
The state has not cited any authority—and we are
not aware of any—that stands for the proposition that
a dominant estate holder, with respect to a right-of-way
easement appurtenant to his or her adjoining land, must
seek judicial intervention prior to exercising the right
to remove obstructions placed in the right-of-way that
materially interfere with his or her reasonable enjoy-
ment of the easement. The lack of such a requirement
necessarily was implied in the aforementioned cases
and was expressly acknowledged in the ancient case
of Quintard v. Bishop, 29 Conn. 366, 373 (1860). In
Quintard, our Supreme Court rejected the argument
that, rather than clearing an obstruction (i.e., a fence)
from the subject right-of-way, the defendant covenantee
should have brought a civil action against the covenan-
tor who placed the obstruction thereon. Id. The court
stated: ‘‘[I]f the defendant had a clear right of way, he
might insist that it should be in a condition to be used;
and as the fence was removed avowedly for this pur-
pose, he did no more than the law justified him in
doing.’’ Id.; see also 28A C.J.S. 640–41, Easements § 236
(2019) (‘‘An obstruction placed in a private way is a
nuisance, and may be removed by any person having
a right to use the right-of-way, provided the person can
do so without a breach of the peace. . . . In removing
obstructions the owner of the dominant tenement must
do no unnecessary damage. If the owner of the land
has covenanted to keep the way open, the grantee need
not in case of an obstruction resort to an action for a
breach of the covenant, but may herself remove the
obstruction.’’ (Emphasis added; footnotes omitted.)).
In the present case, the trial court failed to recognize
the foregoing right under Connecticut easement law,
stating, in the form of a credibility determination relat-
ing to testimony by the defendant’s wife, that ‘‘[i]t is
not credible that an attorney would advise the defen-
dant that the remedy for blocking a right-of-way granted
in an easement is to destroy the property that is blocking
access. . . . The proper course of conduct as sug-
gested by the officer was to go to civil court and have
the question about the boundaries or the extent of the
easement with the right for ingress and egress resolved
in that forum.’’ Thus, the court improperly concluded
that, as a matter of law, the defendant could not have
had a reasonable ground to believe that he had the right
to remove the obstructions from the easement area
without first seeking judicial intervention.
In considering the foregoing errors, we find State v.
Hoskins, 35 Conn. Supp. 587, 401 A.2d 619 (App. Sess.
1978), on which the defendant relies, to be particularly
instructive. In Hoskins, the Appellate Session, inter alia,
set aside the judgment of conviction of criminal mis-
chief in the third degree pursuant to General Statutes
(Rev. to 1975) § 53a-117, which also required the state
to prove that the defendant had ‘‘no reasonable ground
to believe that he had a right to [damage tangible prop-
erty of another].’’ Id., 595. In that case, the defendant
was a minister of a church who painted a religious
message on plywood boards attached to the exterior
of the church by the city of Hartford. Id., 589. Because
the ownership of the plywood boards was unclear, the
Appellate Session reasoned that, if the boards were
church property, then the city’s consent was not needed
and the facts supported ‘‘the reasonable hypothesis that
the defendant . . . painted the message with the
church’s acquiescence, if not its blessing.’’ Id., 595–96.
On the basis of the record before it, the Appellate Ses-
sion concluded that the trial court ‘‘could not find
beyond a reasonable doubt that when he painted the
message the defendant had no reasonable ground to
believe that he had a right to do so.’’ Id., 596.
Similarly here, based on the record before it, the
court could not find beyond a reasonable doubt that
when the defendant removed the trees, he had no rea-
sonable ground to believe that he had a right to do
so. Because the evidence is insufficient to support the
conviction, the defendant is entitled to a judgment of
acquittal.
The judgment is reversed and the case is remanded
with direction to render a judgment of acquittal.
In this opinion the other judges concurred.
1
General Statutes § 53a-115 provides in relevant part: ‘‘(a) A person is
guilty of criminal mischief in the first degree when: (1) With intent to cause
damage to tangible property of another and having no reasonable ground
to believe that such person has a right to do so, such person damages
tangible property of another in an amount exceeding one thousand five
hundred dollars . . . .
‘‘(b) Criminal mischief in the first degree is a class D felony.’’
2
The defendant also claims that the state presented insufficient evidence
of (1) intent to cause damage to tangible property of another and (2) damage
to tangible property of another in an amount exceeding $1500. In light
of our resolution of the defendant’s first claim, we need not address his
other claims.
3
During trial, the defendant’s wife testified that two attorneys, Attorney
Walter Flynn and Attorney Neil Marcus, separately advised the couple that
they could uproot the trees. More specifically, she testified that Attorney
Flynn advised them that ‘‘[b]ased on the deed, [they] had the right to drive
over the trees . . . .’’ In addition, she testified that her belief that she was
able to use the driveway to get to the shed was ‘‘based on the deed and
that [they] used it for over twenty years and . . . were informed [they]
could just drive over them.’’
4
The court further found that ‘‘there [was] no evidence that the defendant
was told he could uproot the trees. The advice [of counsel] appears, from
the testimony of [Collins] and [the defendant’s wife], that they were told
that they had an easement and they had a right-of-way. The easement gives
them the right for ingress and egress onto their lot.’’ (Emphasis added.)
5
Because the defendant’s second and third contentions are closely interre-
lated, we address them together in part II of this opinion.
6
For ease of discussion, we address the defendant’s contentions in a
different order than they are set forth in his principal appellate brief.
7
In light of our determination that the court erred with respect to the
deeded easement and the rights related thereto, it is unnecessary for us to
reach the defendant’s arguments challenging the trial court’s finding that
a prescriptive easement did not exist. Thus, unless the context dictates
otherwise, our references in this opinion to the ‘‘easement’’ are to the
deeded easement.