State v. Mark

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STATE OF CONNECTICUT v. MICHAEL MARK
(AC 38567)
Lavine, Beach and Keller, Js.*
Argued October 27, 2016—officially released January 17, 2017

(Appeal from Superior Court, judicial district of
Waterbury, Cremins, J.)

Michele C. Lukban, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Cynthia S. Serafini and Terence D. Mariani,
senior assistant state’s attorneys, for the appellant
(state).
Alice Osedach, assistant public defender, for the
appellee (defendant).
Opinion

LAVINE J. The state appeals from the judgment of
the trial court1 setting aside the jury’s verdict finding
the defendant, Michael Mark, guilty of one count of
tampering with evidence in violation of General Statutes
(Rev. to 2010) § 53a-155 (a).2 The state claims that the
evidence was sufficient to support the jury’s verdict of
guilty. We agree with the state and reverse the judgment
of the trial court.
A jury reasonably could have found the following
facts. In the early morning of November 2, 2010, the
victim, Arnaldo Gonzalez was walking to a polling sta-
tion in the city of Waterbury, where he was scheduled
to work as a Spanish interpreter. At approximately the
same time and in the same vicinity, the defendant and
his three friends, Manuel Vazquez (Tetan), Johnny Mar-
tinez, and Anthony Garcia, were driving to an ‘‘after
hours’’ house where they could purchase alcohol after
the liquor stores had closed. As they drove, the defen-
dant and his friends saw the victim walking along the
side of the road. The defendant stated to his friends
that he was ‘‘about to rob that nigga.’’ When the men
arrived at their destination, the defendant and Martinez
got out of the car and walked to where they had seen
the victim.
When the defendant and Martinez returned, the
defendant was carrying the victim’s backpack. The
defendant stated that he thought that he had killed the
victim because he kept hitting him with a rock. The
four men then drove to the home of Joan Ruiz, Tetan’s
sister. At the house, Garcia and Martinez went through
the victim’s backpack, finding needles, juice, a toy, and
a Thermos. The defendant told Tetan that they had to
return to the scene of the robbery to retrieve the rock
that he had used to hit the victim because he did not
want to leave any evidence of the murder weapon at
the scene.
When the defendant and Tetan drove back to the
scene, they picked up three of their friends, Vanessa
Vazquez, Vanessa Olivencia, and Sonja Hernandez, who
wanted to buy liquor from the ‘‘after hours’’ house.
During the drive, the defendant and Tetan discussed
how they needed to ‘‘go back to a spot’’ to ‘‘get some-
thing.’’ When the defendant, Tetan, Vanessa Vazquez,
and Hernandez arrived at the murder scene,3 the defen-
dant exited the car and told them that he ‘‘had to find
the brick.’’ No one in the car actually observed the
defendant pick up the rock, but Vanessa Vazquez saw
him bend down and then stand back up.
After the defendant exited the car, Tetan, Vanessa
Vazquez, and Hernandez drove to the ‘‘after hours’’
house to purchase alcohol. There, they met Eliut
Canales, Tetan’s younger brother. Canales was ‘‘acting
crazy’’ because he knew what had happened, and he
left with Vanessa Vazquez and Hernandez, leaving Tetan
in the car. A couple of minutes after Canales, Vanessa
Vazquez, and Hernandez left, Tetan observed the defen-
dant through his rear-view mirror coming toward his
car. When the defendant returned to the car, the defen-
dant told Tetan that he had ‘‘got[ten] rid of the rock.’’
The victim’s body was found on the sidewalk later
that morning. When paramedics arrived at the scene,
the victim was lying on the ground and bleeding from
his head. Despite the fact that the victim suffered head
trauma, the police were unable to locate the murder
weapon at the scene.
The morning of the murder and throughout the next
couple of days, the defendant admitted to a number of
people—including Garcia, Tetan, Olivencia, Ruiz, and
Canales—that he had murdered or thought that he had
murdered the victim when he hit him with a rock. In
addition, the defendant told Ruiz that he was afraid that
‘‘too many people knew about’’ the murder and was
afraid ‘‘that somebody was going to talk.’’
The defendant was charged with murder, felony mur-
der, two counts of robbery in the first degree, and one
count each of conspiracy to commit robbery in the first
degree and tampering with evidence. After the defen-
dant’s case-in-chief, but before the jury returned its
verdict, the defendant made a motion for judgment of
acquittal as to all counts. The court denied the motion
with regard to counts one through five but reserved its
decision as to the sixth count, which alleged tampering
with evidence. On May 5, 2014, the jury found the defen-
dant guilty on all counts. On August 29, 2014, during
sentencing, the court granted the defendant’s motion
for a judgment of acquittal as to the sixth count. The
court imposed a total effective sentence of forty-eight
years in prison, twenty-five years of which were man-
datory.
On September 2, 2014, the state, pursuant to General
Statutes § 54-96, filed a motion for permission to appeal
the court’s granting of the defendant’s motion for judg-
ment of acquittal. On September 5, 2014, the defendant
objected on the ground that granting the appeal would
violate his constitutional right against double jeopardy.
The same day, the court granted the state’s motion for
permission to appeal. Additional facts and procedural
history will be set forth as necessary.
The state claims that the court abused its discretion
when it granted the defendant’s motion for judgment
of acquittal after the jury found the defendant guilty of
tampering with evidence. Specifically, the state argues
that the jury reasonably could have found from the
evidence adduced at trial that ‘‘the defendant success-
fully removed the rock that he had used to hit the victim
in order to render [the] evidence unavailable’’ and that
he did so because he ‘‘believed that it [was] probable
that an official proceeding would arise as a result of
[the] police investigation.’’ The defendant argues that
the state failed to prove beyond a reasonable doubt
that the defendant tampered with evidence because
‘‘none of the state’s witnesses actually saw what the
defendant did when he got out of the car and did not
see [him] with a rock.’’ The defendant also argues that
while he probably believed that police would investigate
the death of the victim, the defendant had no reason
to believe that there would be an official proceeding
brought against him because there was little evidence
linking him to the crime.4 We agree with the state.
The following additional facts are relevant to this
claim. A substitute information, filed by the state, pro-
vided: ‘‘Count Six: And the above said senior assistant
state’s attorney further accuses and charges that the
said Michael Mark did commit the crime of Tampering
with Evidence . . . and charges that, on or about
November 2, 2010, in the early morning hours, at or
near 424 Baldwin Street, in the City of Waterbury, Con-
necticut, the said Michael Mark, believing that an offi-
cial proceeding was about to be instituted, destroyed,
concealed and removed evidence with the purpose to
impair its verity or availability in such proceeding, to
wit: he disposed of a weapon used, to wit: the rock.’’
During the defendant’s argument in support of his
motion for judgment of acquittal as to all counts, which
took place after the defense rested but before the jury
returned its verdict, he focused primarily on the charge
of tampering with evidence. He argued that the state
did not present sufficient evidence that the defendant
believed that an official proceeding was about to be
instituted against him. The defendant also argued that
the state failed to prove that the defendant tampered
with a piece of physical evidence. The state argued that
the defendant’s statements to Tetan, Hernandez, and
Vanessa Vazquez about going back to the scene to
retrieve the murder weapon implied that he understood
that an official proceeding probably would arise from
the murder and that an official proceeding could be
brought against him because the rock linked him to the
crime. The state also argued that it presented sufficient
evidence that the defendant tampered with a physical
piece of evidence when Tetan testified that the defen-
dant told him that he had disposed of the rock. The
court denied the motion with regard to counts one
through five but reserved its decision as to the sixth
count of tampering with evidence.
The jury returned a verdict of guilty on all counts.
At sentencing, immediately before the court imposed
its sentence, the prosecutor and defense counsel argued
the defendant’s pending motion for judgment of acquit-
tal as to the tampering with evidence charge. The defen-
dant argued that because none of the witnesses actually
observed him pick up an object, it was pure speculation
that he tampered with any physical evidence at the
scene. The state argued that there was sufficient evi-
dence for the jury to find that the defendant returned
to the scene and disposed of the rock because he was
afraid of being caught by police. The court stated:
‘‘Based on the testimony that was presented, [the court]
think[s] the testimony . . . would establish the ele-
ments of a conspiracy or an attempt to tamper with
evidence, but [the court] [does not] find that there is
adequate evidence [of] actual tampering.’’ The court
then granted the defendant’s motion for judgment of
acquittal with respect to the tampering with evidence
charge.
On appeal, the state argues that it ‘‘provided ample
evidence from which the jury concluded, beyond a rea-
sonable doubt,’’ that the defendant tampered with evi-
dence. It argues that it presented sufficient evidence
to show that ‘‘the defendant successfully destroyed,
concealed and removed the rock he had used to kill
the victim,’’ including evidence that he expressly stated
to witnesses that he wanted to return to the scene to
dispose of the rock, his statement to Tetan that he
successfully removed the rock, and the fact that police
found no evidence of a murder weapon at the scene
even though the victim suffered head trauma. In
response to the defendant’s argument that the state
failed to prove that the defendant believed that an offi-
cial proceeding would be instituted, the state argues
that because ‘‘direct evidence of a defendant’s state of
mind is rarely available,’’ it was reasonable for the jury
to rely on circumstantial evidence to conclude that ‘‘the
defendant believed that an official proceeding was prob-
able . . . .’’ Such circumstantial evidence included the
numerous witnesses who ‘‘connect[ed] him to the
crime,’’ his confessions to witnesses that he committed
the murder with a rock, and his statement to Ruiz that
he was afraid that too many people knew what hap-
pened and that someone was going to talk to the police.
‘‘[T]he court has an inherent power to set verdicts
aside.’’ State v. Avcollie, 178 Conn. 450, 456, 423 A.2d
118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667,
62 L. Ed. 2d 645 (1980). There are three situations in
which a court can grant a motion for judgment of acquit-
tal. ‘‘First, the verdict may be overturned if the manifest
injustice is so plain and palpable as to justify a suspicion
that the verdict was produced by improper influences
in passing on the credibility of witnesses and weighing
conflicting testimony. . . . [Second], [t]he verdict may
. . . be set aside if it is based on physically impossible
conclusions, when testimony is in conflict with indis-
putable physical facts, the facts demonstrate that the
testimony is either intentionally or unintentionally
untrue, and [the facts] leave no real question of conflict
of evidence for the jury concerning which reasonable
minds could reasonably differ. . . . [Third and]
[f]inally, a verdict may be set aside if the jury could
not reasonably have concluded, from the facts estab-
lished and the inferences reasonably drawn therefrom,
that the cumulative effect of the evidence established
guilt beyond a reasonable doubt.’’ (Citations omitted;
emphasis added; internal quotation marks omitted.)
State v. Sirimanochanh, 26 Conn. App. 625, 639–40,
602 A.2d 1029, rev’d on other grounds, 224 Conn. 656,
620 A.2d 761(1993).
In the present case, the court determined that the
state failed to prove, beyond a reasonable doubt, that
the defendant tampered with evidence. ‘‘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 construed and the
inferences reasonably drawn therefrom the [trier of
fact] reasonably could have concluded that the cumula-
tive force of the evidence established guilt beyond a
reasonable doubt. . . . In evaluating evidence, the trier
of fact is not required to accept as dispositive those
inferences that are consistent with the defendant’s inno-
cence. . . . The trier may draw whatever inferences
from the evidence or facts established by the evidence
it deems to be reasonable and logical. . . . This does
not require that each subordinate conclusion estab-
lished by or inferred from the evidence, or even from
other inferences, be proved beyond a reasonable doubt
. . . because this court has held that a [trier’s] factual
inferences that support a guilty verdict need only be
reasonable. . . .
‘‘[A]s we have often noted, proof beyond a reasonable
doubt does not mean proof beyond all possible doubt
. . . nor does proof beyond a reasonable doubt require
acceptance of every hypothesis of innocence posed by
the defendant that, had it been found credible by the
trier, 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 evidence that supports the
[trier’s] verdict of guilty.’’ (Internal quotation marks
omitted.) State v. Bradley, 124 Conn. App. 197, 201–202,
4 A.3d 347, cert. denied, 295 Conn. 917, 990 A.2d 867
(2010), cert. denied, 565 U.S. 1039, 132 S. Ct. 584, 181
L. Ed. 2d 429 (2011).
‘‘The trial court should not set a verdict aside where
there was some evidence upon which the jury could
reasonably have based its verdict . . . .’’ (Internal quo-
tation marks omitted.) State v. Griffin, 253 Conn. 195,
200, 749 A.2d 1192 (2000). A jury can rely on both cir-
cumstantial and direct evidence when making its ver-
dict. ‘‘There is no legal distinction between direct and
circumstantial evidence so far as probative force is
concerned.’’ State v. Cari, 163 Conn. 174, 179, 303 A.2d
7 (1972). ‘‘Because direct evidence of the accused’s
state of mind is rarely available . . . intent is often
inferred from conduct . . . and from the cumulative
effect of the circumstantial evidence and the rational
inferences drawn therefrom.’’ (Internal quotation marks
omitted.) State v. Otto, 305 Conn. 51, 66, 43 A.3d 629
(2012).
General Statutes (Rev. to 2010) § 53a-155 (a) provides
in relevant part: ‘‘A person is guilty of tampering with
or fabricating physical evidence if, believing that an
official proceeding is pending, or about to be instituted,
he: (1) Alters, destroys, conceals or removes any record,
document or thing with purpose to impair its verity or
availability in such proceeding . . . .’’ In other words,
‘‘[t]he state . . . must establish that the defendant (1)
believed that an official proceeding was pending or
about to be instituted, (2) discarded the evidence at
issue, and (3) acted with the intent to prevent the use
of the evidence at an official proceeding.’’ State v. Jor-
dan, 314 Conn. 354, 377, 102 A.3d 1 (2014). With regard
to the belief element, the statute applies ‘‘no matter
what stage the police have actually reached in their
investigation, as long as the defendant believes that
it is probable that an official proceeding will arise.’’
(Emphasis in original.) Id., 379; see also State v. Fore-
shaw, 214 Conn. 540, 550–51, 572 A.2d 1006 (1990)
(court rejecting defendant’s argument that because
defendant discarded gun prior to contact with law
enforcement officers or judicial system, she could not
have believed that official proceeding was about to
be instituted). With respect to the intent element, if a
defendant ‘‘act[ed] with the intent to keep evidence
from the police, who play a crucial role in official pro-
ceedings, [it] may support an inference that a defendant
intend[ed] to prevent the availability of that evidence
at an official proceeding when the defendant believe[d]
such a proceeding [was] probable.’’ State v. Jordan,
supra, 380.
We conclude that a reasonable view of the evidence
supports the jury’s verdict that the defendant is guilty of
tampering with evidence. The state presented sufficient
direct and circumstantial evidence to support the find-
ing that the defendant went back to the scene of the
murder to hide or destroy the rock he used to murder
the victim because he was afraid that an official pro-
ceeding would be brought and that he did dispose of
the rock.
First, the state provided sufficient circumstantial evi-
dence that the defendant believed that an official pro-
ceeding would probably arise from the murder. Tetan
testified that the defendant told him that he needed to
return to the scene of the murder to retrieve the rock
because he did not want to leave evidence of the murder
weapon at the scene. A number of witnesses testified
at trial that the defendant said that he had murdered
or that he thought that he had murdered the victim with
a rock, which supports the inference that the defendant
knew that there was a strong possibility that witnesses
could testify in an official proceeding. See State v. Guer-
rera, 167 Conn. App. 74, 105, 142 A.3d 447 (jury reason-
ably could have inferred that defendant was aware that
criminal prosecution was probable in part because of
number of witnesses who saw defendant with victim),
cert. granted on other grounds, 323 Conn. 922, A.3d
(2016). Ruiz testified, moreover, that the defendant
told her, after the defendant disposed of the rock, that
he was afraid that too many people were aware that
he committed the murder and that he was afraid that
they would talk, presumably to law enforcement.
Finally, the defendant knew that the victim’s body was
lying on the sidewalk in public view; surely the defen-
dant was aware that an investigation and official pro-
ceeding probably would ensue when someone found
the victim’s body. See id. (defendant’s firsthand knowl-
edge of murder and assault, in part, supported reason-
able inference that defendant was aware that criminal
prosecution was probable). Thus, a jury certainly could
conclude that the defendant believed that an official
proceeding would be instituted.
Second, the state presented sufficient evidence for a
jury reasonably to conclude that the defendant did in
fact conceal or destroy the murder weapon. The defen-
dant told Tetan that he needed to return to the scene
to dispose of the rock. On their way, Vanessa Vazquez
testified that she heard the defendant and Tetan discuss
how they needed to ‘‘go back to the spot’’ to ‘‘get some-
thing.’’ When they arrived at the scene, Hernandez testi-
fied that she heard the defendant say that he ‘‘had to
find the brick.’’ Vanessa Vazquez also testified that
although she did not see him pick up the rock, she saw
him bend over and then stand back up at the murder
scene. Finally, Tetan testified that when the defendant
returned to the car, he told Tetan that he had disposed
of the rock. Thus, a jury reasonably could have con-
cluded that the defendant destroyed or concealed the
rock.
The defendant argues that the state did not prove
this element because no one testified that they observed
the defendant destroy or conceal the rock. Circumstan-
tial evidence, however, can be given the same amount
of probative weight as direct evidence; State v. Cari,
supra, 163 Conn. 179; and in the present case, the state
presented sufficient circumstantial and direct evidence
for a jury rationally to infer that the defendant destroyed
or concealed the rock.
Third, the state presented sufficient evidence that the
defendant destroyed the rock with the intent to impede
law enforcement’s investigation in order to prevent an
official proceeding from arising. Tetan testified that the
defendant was ‘‘nervous’’ because he expressly told
Tetan that he needed to go back to the scene to hide
the rock because he did not want it to be used as
evidence. In fact, the defendant’s efforts to dispose of
the rock did impede law enforcement’s investigation,
as evidenced by the fact that police were unable to
locate the murder weapon at the scene. Because the
defendant believed that he could impede law enforce-
ment’s investigation, it can be inferred that he also
wanted to impede an official investigation. State v. Jor-
dan, supra, 314 Conn. 380. Thus, a jury reasonably could
conclude that the state provided sufficient evidence to
prove that the defendant had disposed of the rock in
order to impede an official proceeding. Accordingly,
the trial court improperly granted the defendant’s
motion for judgment of acquittal.
The judgment of acquittal with respect to count six
of the information is reversed and the case is remanded
with direction to reinstate the jury’s verdict of guilty
and to render judgment in accordance with the verdict
and for resentencing according to law.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The state appealed, upon permission from the trial court, pursuant to
General Statutes § 54-96.
2
General Statutes § 53a-155 was amended by No. 15-211, § 9, of the 2015
Public Acts. Hereinafter, all references to § 53a-155 are to the 2010 revision
of the statute.
3
The group took Olivencia to Ruiz’ house before returning to the mur-
der scene.
4
The defendant also argues that the court erred in granting the state
permission to appeal because ‘‘the state cannot appeal from a judge’s grant-
ing of a motion for judgment of acquittal based on insufficient evidence,
prior to a jury verdict.’’ We disagree. It is undisputed that the defendant
made his motion for judgment of acquittal before the jury returned its
verdict, and it is also undisputed that the court reserved its decision until
after the jury returned its verdict pursuant to Practice Book § 42-42. When
the defendant made his motion is not determinative. Rather, what is relevant
is when the court issued its decision, and because the court ruled after the
jury verdict, no double jeopardy issues are implicated. See State v. Avcollie,
178 Conn. 450, 453, 423 A.2d 118 (1979) (‘‘[W]hen a case has been tried to
a jury, the principle of double jeopardy does not prohibit an appeal by the
prosecution providing that a retrial is not required in the event the prosecu-
tion is successful in its appeal. Thus, where a jury returns a verdict of guilty
but the trial court thereafter renders a judgment of acquittal, an appeal is
permitted and double jeopardy does not attach.’’), cert. denied, 444 U.S.
1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980).