State v. Sienkiewicz

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STATE OF CONNECTICUT v. PAWEL SIENKIEWICZ
(AC 36536)
Beach, Alvord and Pellegrino, Js.
Argued October 7, 2015—officially released January 12, 2016

(Appeal from Superior Court, judicial district of New
Britain, geographical area number fifteen, Baldini, J.
[judgment]; Strackbein, J. [guilty plea].)
Jodi Zills Gagne, assigned counsel, with whom, on
the brief, was Charles F. Willson, assigned counsel, for
the appellant (defendant).
Jacob L. McChesney, special deputy assistant state’s
attorney, with whom, on the brief, were Brian Preleski,
state’s attorney, and Elizabeth M. Moseley, assistant
state’s attorney, for the appellee (state).
Opinion

PER CURIAM. The defendant, Pawel Sienkiewicz,
appeals from the judgment of conviction, rendered after
a jury trial, of operating a motor vehicle while under
the influence of intoxicating liquor or drugs, in violation
of General Statutes § 14-227a (a). On appeal, the defen-
dant claims that the evidence presented at trial was
not sufficient to support a finding of guilty beyond a
reasonable doubt as to the requisite element that he
was operating a motor vehicle. We do not agree, and
we affirm the judgment.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
On the evening of April 3, 2011, Officer Bruce Moro
was on patrol in New Britain and observed a Camaro
automobile stopped partially on a sidewalk, at a diago-
nal angle. Upon getting out of his vehicle, Moro heard
the Camaro’s engine ‘‘cranking over . . . but it wasn’t
starting.’’ Moro approached the Camaro and observed
the defendant seated on the driver’s side, behind the
steering wheel. The defendant had ‘‘glossy eyes . . .
[and] a little bit of [a] confused look on his face.’’ Moro
leaned in as he asked for the defendant’s license, regis-
tration, and insurance and noticed that the defendant’s
speech was ‘‘a little slurred.’’ Moro asked the defendant
to exit the Camaro. The defendant opened the door
and almost fell as he tried to exit. Moro grabbed the
defendant and steadied him; as he did so, he smelled
the ‘‘distinct odor of alcohol.’’ Moro testified that he
then walked to the front of the Camaro and touched
the hood of the vehicle. The hood was warm. A second
officer who had arrived at the scene administered a
horizontal gaze nystagmus test, which indicated to the
officers that the defendant was under the influence of
alcohol. The officers arrested the defendant, and a tow
truck was called for the Camaro.1
The jury found the defendant guilty of operating a
motor vehicle while under the influence of alcohol, and
the court, Baldini, J., sentenced the defendant to a
term of imprisonment for three years, suspended after
twenty-two months, and a three year period of proba-
tion. This appeal followed.
Our standard of review is well settled. ‘‘First, we
construe the evidence in the light most favorable to
sustaining the verdict. Second, we determine whether
upon the facts so construed and the inferences reason-
ably drawn therefrom the [finder of fact] reasonably
could have concluded that the cumulative force of the
evidence established guilt beyond a reasonable doubt.’’
(Internal quotation marks omitted.) State v. Lee, 138
Conn. App. 420, 433, 52 A.3d 736 (2012); see State v.
Jones, 173 Conn. 91, 94, 376 A.2d 1077 (1977).
To prove that the defendant was guilty, the state had
to show beyond a reasonable doubt that the defendant
‘‘operate[d] a motor vehicle while under the influence
of intoxicating liquor or any drug or both.’’ General
Statutes § 14-227a (a). ‘‘It is well settled that ‘operating’
encompasses a broader range of conduct than does
‘driving.’ ’’ State v. Lee, supra, 138 Conn. App. 434.
‘‘[T]here is no requirement that the fact of operation
be established by direct evidence.’’ Murphy v. Commis-
sioner of Motor Vehicles, 254 Conn. 333, 345, 757 A.2d
561 (2000). In fact, our Supreme Court has observed
that ‘‘[t]here is no distinction between direct and cir-
cumstantial evidence [so] far as probative force is con-
cerned . . . . In fact, circumstantial evidence may be
more certain, satisfying and persuasive than direct evi-
dence.’’ (Citations omitted; internal quotation marks
omitted.) Id., 345 n.14. The defendant claims that there
was insufficient evidence to support the operation ele-
ment because there was no evidence that the defendant
had driven the car onto the sidewalk or that the car
was in an operable condition when Moro arrived at the
scene. After reviewing the record and construing the
evidence in the light most favorable to sustaining the
verdict, we do not agree.
The record supports the conclusion that the state
proved the element of operation of the motor vehicle.
When Moro came upon the Camaro, it was parked par-
tially on the sidewalk. The defendant was in the driver’s
seat, attempting to start the vehicle. Moro did not
observe anyone else in the vicinity. Finally, the hood
was warm to the touch, which indicated to Moro that
the vehicle recently had been running. From these facts,
the jury reasonably could infer that the defendant drove
the Camaro onto the sidewalk before Moro arrived. In
that event, it would not matter whether, as the defen-
dant claims, the vehicle was incapable of movement at
the time of his arrest.
Our conclusion is consistent with previous cases in
which the cumulative force of circumstantial evidence
was sufficient to satisfy the element of operation. See
State v. Teti, 50 Conn. App. 34, 40, 716 A.2d 931
(rejecting defendant’s claim that state failed to prove
that defendant operated vehicle for purposes of § 14-
227a when defendant was witnessed standing near vehi-
cle that had crashed into snowbank, only footprints
near vehicle were those of defendant and officer, and,
aside from defendant, no one else was seen in area),
cert. denied, 247 Conn. 921, 722 A.2d 812 (1998); State
v. Ducatt, 22 Conn. App. 88, 93, 575 A.2d 708 (holding
that defendant, who had been found unconscious in
driver’s seat in idling vehicle in parking lot, operated
motor vehicle despite not having moved vehicle
because, ‘‘while under the influence of alcohol or any
drug and while in the vehicle and in a position to control
its movements, he manipulate[d], for any purpose, the
machinery of the motor or any other machinery manipu-
lable from the driver’s position that affect[ed] or could
affect the vehicle’s movement’’), cert. denied, 217 Conn.
804, 584 A.2d 472 (1990). Thus, there was sufficient
evidence to support the operation element in the pre-
sent case because the jury reasonably could have
inferred that the defendant had driven the vehicle onto
the sidewalk.
The judgment is affirmed.
1
Moro testified that the tow truck was called because the Camaro was
not registered or insured. A second officer testified: ‘‘I guess the vehicle
wouldn’t start, so the vehicle I suppose got towed.’’