State v. Dunbar

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STATE OF CONNECTICUT v. LONNIE DUNBAR
(AC 37367)
Sheldon, Keller and Mullins, Js.
Argued February 2—officially released April 26, 2016

(Appeal from Superior Court, judicial district of
Tolland, Shah, J.)
Lonnie Dunbar, self-represented, the appellant
(defendant).
Jacob L. McChesney, special deputy assistant state’s
attorney, with whom, on the brief, were John R. Whalen,
supervisory assistant state’s attorney, and David Cor-
done, special deputy assistant state’s attorney, for the
appellee (state).
Opinion

SHELDON, J. The defendant, Lonnie Dunbar, appeals
from his judgment of conviction, rendered after a trial
to the court,1 on the charge of operating a motor vehicle
upon a highway while using a hand-held mobile tele-
phone in alleged violation of General Statutes § 14-
296aa (b).2 On appeal, the defendant claims that the
trial court improperly found him guilty under that stat-
ute. We agree with the defendant, and accordingly we
reverse the judgment of the trial court and remand the
case with direction to render a judgment of acquittal.
At trial, the state presented the testimony of Trooper
Josh McElroy of the Connecticut State Police.3 McElroy
testified that on the morning of April 19, 2014, while
he was on traffic enforcement duty observing passing
traffic on Route 66 in Columbia from an elevated park-
ing lot, he saw the defendant drive by in a gray car
while holding a cell phone in his right hand, ‘‘right
around the steering wheel—or I mean the steering
wheel height in the center of, the center of the car.’’
Upon making that observation, McElroy pulled out from
the parking lot, activated the lights of his cruiser, and
pulled the defendant’s vehicle over. When McElroy
stopped the defendant, the defendant told him that he
was ‘‘just answering’’ his cell phone. McElroy observed
that ‘‘[h]e had some type of microphone. It looked like
from like a Walkman almost on his head. . . . He said
that’s what he used to talk on the phone.’’ McElroy
explained to the defendant that he had been cited for
an infraction because ‘‘[y]ou were using your cell phone
while you were driving.’’
Based upon the foregoing evidence, the trial court
concluded: ‘‘[T]he state has established beyond a rea-
sonable doubt that the defendant, on April 19, 2014,
was using a hand-held device while operating a motor
vehicle. . . . Accordingly, the court finds the defen-
dant guilty of violating . . . § 14-296aa as a second time
offender.’’4 The court imposed a fine of $250 plus fees
and costs. This appeal followed.
On appeal, the defendant claims that the evidence
was insufficient to sustain the court’s finding of guilt
because the state failed to prove beyond a reasonable
doubt that he was engaged in a call, as required to prove
a violation of § 14-296aa, instead of merely answering
his cell phone at the time that the trooper observed
him holding it in his right hand. We agree.
‘‘In [a defendant’s] challenge to the sufficiency of the
evidence . . . [w]hether we review the findings of a
trial court or the verdict of a jury, our underlying task
is the same. . . . We first review the evidence pre-
sented 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 rea-
sonably 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. . . . In assessing the
defendant’s claim that the evidence against him was
insufficient to establish his guilt . . . we must look to
the trial court’s findings of fact. . . . [W]e give great
deference to the findings of the trial court because of
its function to weigh and interpret the evidence before
it and to pass upon the credibility of witnesses. . . .
‘‘In evaluating evidence that could yield contrary
inferences, the trier of fact is not required to accept as
dispositive those inferences that are consistent with
the defendant’s innocence. . . . The trier [of fact] may
draw whatever inferences from the evidence or facts
established by the evidence it deems to be reasonable
and logical. . . . As we have often noted, proof beyond
a reasonable doubt does not mean proof beyond all
possible doubt . . . nor does proof beyond a reason-
able doubt require acceptance of every hypothesis of
innocence posed by the defendant that, had it been
found credible by the trier [of fact], would have resulted
in an acquittal. . . . 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 evi-
dence that supports the [trier of fact’s] verdict of guilty.’’
(Citations omitted; internal quotation marks omitted.)
State v. Drupals, 306 Conn. 149, 157–58, 49 A.3d 962
(2012).
Section 14-296aa (b) (1) provides in relevant part:
‘‘[N]o person shall operate a motor vehicle upon a high-
way, as defined in section 14-1, while using a hand-held
mobile telephone to engage in a call or while using a
mobile electronic device. . . .’’ Here, the trial court did
not set forth the factual findings underlying its determi-
nation that the state had established beyond a reason-
able doubt that the defendant had violated § 14-296aa.
In order to make that determination, however, the court
necessarily had to find that the defendant had been
operating his vehicle while using his hand-held mobile
telephone to engage in a call. The defendant claims on
appeal that the state failed to prove that he was engaged
in a call as he was merely answering his cell phone at
the time that the trooper observed it in his right hand.
In response to the defendant’s claim, the state argues
that the court could have presumed that the defendant
was engaged in a call at that time due to the proximity
of the phone to his ear.5
To ‘‘[e]ngage in a call’’ is defined in § 14-296aa (a)
(6) as ‘‘talking into or listening on a hand-held mobile
telephone, but does not include holding a hand-held
telephone to activate, deactivate or initiate a function
of such telephone.’’ Section 14-296aa (b) (2) provides:
‘‘An operator of a motor vehicle who holds a hand-held
mobile telephone to, or in the immediate proximity
of, his or her ear while operating a motor vehicle is
presumed to be engaging in a call within the meaning
of this section. The presumption established by this
subdivision is rebuttable by evidence tending to show
that the operator was not engaged in a call.’’ Section
14-296aa (a) (7) defines ‘‘[i]mmediate proximity’’ as ‘‘the
distance that permits the operator of a hand-held mobile
telephone to hear telecommunications transmitted over
such hand-held mobile telephone, but does not require
physical contact with such operator’s ear.’’
The state offered no direct evidence to support a
finding that the defendant was engaged in a call when
McElroy saw him holding his cell phone. McElroy testi-
fied that he saw the defendant from approximately
twenty feet away, while the defendant was driving on
the highway, holding his cell phone in his right hand
in the center of the car at the approximate height of the
steering wheel. Although the court could have inferred
from that testimony that the defendant was seen holding
a cell phone in his hand that it was no further from his
ear than the length of his arm, no evidence was pre-
sented as to the length of the defendant’s arm, or
whether he was holding the phone in such a way as to
suggest that he was then using it to engage in a call.
McElroy’s testimony that the defendant was holding
the phone ‘‘in the center of the car’’ does little to eluci-
date its precise location. More importantly, perhaps, no
evidence was presented as to what type of phone the
defendant was holding, what speaker feature it may
have had, whether any such speaker features were then
engaged, and, if so, at what volume they were set. There
was thereby no evidence from which the court reason-
ably could have inferred that the phone was being held
close enough to the defendant’s ear to permit him to
hear telecommunications transmitted over it. Absent
such proof, the statutory presumption was unavailable
to support the necessary finding that the defendant was
then engaged in a call.
Absent any basis for the presumption, the only evi-
dence as to how the defendant was using the phone as
he held it came from the defendant’s statements to
McElroy when he was pulled over, all of which are
inconsistent with the court’s finding of guilt. To begin
with, the defendant’s statement that he was holding the
phone to answer it merely brought his conduct within
the statutory exception for holding a phone to activate
or initiate a function on it, which does not constitute
‘‘engaging in a call’’ as a matter of law. Second, his
statement that the Walkman-like device on his head
was the apparatus he used to speak on the phone tended
to show that the device held in his hand was not what
he used for that purpose.6 Although the court need not
have believed these statements, it could not have drawn
an inference to the contrary of either statement merely
because the defendant made it. See State v. Alfonso,
195 Conn. 624, 633, 490 A.2d 75 (1985).
The judgment is reversed and the case is remanded
to the trial court with direction to render a judgment
of acquittal.
In this opinion the other judges concurred.
1
The trial to the court was preceded by a trial before a magistrate, who
also found that the defendant had violated General Statutes § 14-296aa (b).
2
General Statutes § 14-296aa (a) (3) defines a ‘‘[h]and-held mobile tele-
phone’’ as a ‘‘mobile telephone with which a user engages in a call using
at least one hand.’’
3
McElroy was the only witness presented by the state.
4
We note that § 14-296aa defines a ‘‘[h]and-held mobile telephone’’ sepa-
rately from a ‘‘[m]obile electronic device.’’ Section 14-296aa (a) (8) defines
‘‘[m]obile electronic device’’ as ‘‘any hand-held or other portable electronic
equipment capable of providing data communication between two or more
persons, including a text messaging device, a paging device, a personal
digital assistant, a laptop computer, equipment that is capable of playing a
video game or a digital video disk, or equipment on which digital photographs
are taken or transmitted, or any combination thereof . . . .’’
Although a cell phone could fall within the definition of ‘‘mobile electronic
device’’ under certain circumstances, it was not being used as one in this
case. At trial, McElroy repeatedly testified that the defendant was holding
his cell phone in his right hand and that that was the basis for stopping him
and issuing the citation. At no time did McElroy testify that the defendant
was using any other mobile electronic device. Because the evidence at trial
supported only the defendant’s alleged use of his cell phone, not a different
mobile electronic device, we construe the court’s ruling as a finding that
the defendant violated § 14-296aa (b) by operating a motor vehicle upon a
highway while using a hand-held mobile telephone to engage in a call.
5
The state alternatively argues on appeal that even if the evidence at trial
was insufficient to prove that the defendant was engaged in a call, it was
nevertheless sufficient to prove that he was illegally using a mobile electronic
device. Allowing the state to so argue in the alterative would nullify the
statutory exception allowing motor vehicle operators to activate, deactivate,
or initiate a function of a hand-held mobile telephone. This argument thus
must fail.
6
We note that McElroy did not testify that he saw the defendant talking
while holding his cell phone. Even if he did, however, the defendant could
have been speaking into the microphone of the Walkman-like device that
he was wearing on his head. Thus, any testimony that McElroy had seen the
defendant talking while holding his cell phone would not have conclusively
proven that the defendant was engaged in a call in violation of § 14-296aa.