State v. Rodriguez

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STATE OF CONNECTICUT v. KENNETH RODRIGUEZ
(AC 35740)
DiPentima, C. J., and Gruendel and Lavine, Js.
Summarily decided April 30—officially released June 17, 2014

(Appeal from Superior Court, judicial district of
Windham, geographical area number eleven, A.
Santos, J.)
Christopher Duby and Freesia Singngam, assigned
counsel, filed a brief for the appellant (defendant).
Patricia M. Froehlich, state’s attorney, Andrew J.
Slitt, assistant state’s attorney, and Brett R. Aiello, spe-
cial deputy assistant state’s attorney, filed a brief for
the appellee (state).
Opinion

PER CURIAM. The defendant, Kenneth Rodriguez,
appeals from the judgment of conviction, rendered after
a jury trial, of possession of a controlled substance in
violation of General Statutes § 21a-279 (c) and operating
a motor vehicle with a suspended license in violation
of General Statutes § 14-215a. Presently before this
court is the defendant’s ‘‘motion for an immediate
remand and judgment of dismissal’’ of the latter offense.
In their respective appellate briefs, the parties essen-
tially stipulate that the conviction for violating § 14-
215a cannot stand. We agree and, therefore, grant the
defendant’s motion and reverse the judgment of the
trial court only with respect to that offense.
The relevant facts are undisputed. On the morning
of January 13, 2009, the defendant operated a motor
vehicle through a busy intersection in Willimantic. At
that time, his license was under suspension by the
Department of Motor Vehicles (department). When Offi-
cer Matthew Solak of the Willimantic Police Depart-
ment saw the defendant fail to grant the right-of-way
to another vehicle, he stopped the defendant’s vehicle.
The defendant subsequently was arrested and charged,
by substitute information, with one count of operating
a motor vehicle after the expiration of a period of sus-
pension without obtaining reinstatement of his motor
vehicle operator’s license in violation of General Stat-
utes § 14-215b and one count of possession of a con-
trolled substance in violation of § 21a-279 (c).1
A jury trial followed, at which the state introduced,
inter alia, evidence regarding the defendant’s driving
history. Brian Clarke, a department official, testified
that the defendant’s license was suspended indefinitely
at the time of his arrest. When the state rested its case-
in-chief, defense counsel moved for a judgment of
acquittal on the charge of operating a motor vehicle in
violation of § 14-215b. He argued in relevant part that
‘‘§ 14-215b says any person whose motor vehicle opera-
tor’s license has been suspended who operates a motor
vehicle after the expiration of such period of suspension
without obtaining reinstatement. Well, [the defendant’s]
suspension was indefinite, which means there wasn’t
a particular time at which his period of suspension was
technically up and that he could send in the [fee] and
be reinstated.’’ Defense counsel further maintained that
the state could have charged the defendant with vio-
lating § 14-215a, but did not do so, stating: ‘‘The charging
document indicates that [the defendant] is being
charged with [a] violation of [§] 14-215b, when in fact
I believe that he should have been charged under [§]
14-215a.’’ Defense counsel then noted that, whereas
§ 14-215a forbids the operation of a motor vehicle dur-
ing a period of suspension, § 14-215b pertains to the
operation of a motor vehicle after a period of suspen-
sion has concluded.2 Because the defendant’s period of
suspension had not yet concluded at the time of his
January 13, 2009 arrest, defense counsel argued that he
could not be convicted under § 14-215b, opining that
‘‘it’s clear to me . . . that [the defendant] should have
been charged under § 14-215a.’’ The court agreed, not-
ing that it ‘‘is relying upon the . . . evidence which
was brought by the motor vehicle inspector, Mr. Clarke
. . . which indicates that [the defendant’s license] was
suspended indefinitely. And again, it does not appear
that § 14-215b applies to the case that was presented
by the state.’’ Accordingly, the court rendered a judg-
ment of acquittal on the charge of violating § 14-215b.
The next day, the state filed a motion to amend the
information, in which it sought to charge the defendant
with violating § 14-215a. The defendant objected to that
request, emphasizing that the state already had rested
its case-in-chief and arguing that ‘‘it’s improper to allow
the state, after its case is concluded, to all of a sudden
get back in the game as it were by discovering that a
mistake was made, that the state charged him with the
wrong section of the statutes.’’ The court nevertheless
granted the motion to amend and the jury thereafter
convicted the defendant of violating both §§ 14-215a
and 21a-279 (c). The court rendered judgment in accor-
dance with that verdict, and this appeal followed.
On appeal, the defendant contends that the court
abused its discretion in permitting the state to amend its
information to charge him under § 14-215a. He therefore
asks this court to reverse the judgment of conviction
with respect to that offense and to remand the matter
to the trial court with direction to vacate that convic-
tion. In its appellate brief, the state agrees with the
defendant, conceding ‘‘that it was an abuse of discretion
for the court to grant the state’s motion to amend the
information after the defendant was successful in his
motion for a judgment of acquittal.’’ The state thus
‘‘asks this court to reverse the defendant’s judgment of
conviction only with respect to § 14-215a.’’
The propriety of a trial court’s decision permitting
the state to amend an information generally is governed
by the abuse of discretion standard of review. State v.
Petitpas, 299 Conn. 99, 103, 6 A.3d 1159 (2010). In State
v. Allen, 205 Conn. 370, 533 A.2d 559 (1987), our
Supreme Court confronted a case in which the defen-
dant alerted the state to a specific evidential deficiency
in its case-in-chief via a motion for a judgment of acquit-
tal, and the state thereafter moved to reopen its case-
in-chief in order to rectify that deficiency. The trial
court granted that motion over the defendant’s objec-
tion, thereby permitting the state to fill the evidentiary
gap in its case. Id., 373–74.
On appeal, our Supreme Court recognized the ‘‘wide
discretion enjoyed by the trial court to permit the
reopening of a case after either side has rested.’’ Id.,
380. It nevertheless observed that the ‘‘precise facts
and procedural posture of this case are significantly
different.’’ Id., 380–81. Expounding on that distinction,
the court noted that the state in that case ‘‘conceded
that the evidence presented in its case-in-chief was
insufficient’’ and that the state ‘‘offered new evidence
on reopening and did not merely offer cumulative evi-
dence or clarify previous testimony.’’ Id., 383. The court
also distinguished its earlier decision in State v. Watson,
165 Conn. 577, 345 A.2d 532 (1973), cert. denied, 416
U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974), by
explaining that the defendant in Watson ‘‘did not file a
motion for judgment of acquittal and thus the defendant
was not the one responsible for pointing out the poten-
tial evidentiary gap in the state’s case.’’ State v. Allen,
supra, 205 Conn. 382. The court further emphasized that
‘‘the government’s case-in-chief should not be treated as
an experiment that can be cured after the defendant has,
by motion, identified the failures.’’ (Internal quotation
marks omitted.) Id., 380. Accordingly, the court rea-
soned that ‘‘allowing the state to reopen its case-in-
chief after the defendant has identified its shortcomings
was fundamentally unfair to the defendant and an abuse
of the trial court’s discretion.’’ Id., 383–84. Our Supreme
Court thus held that ‘‘when the state has failed to make
out a prima facie case because insufficient evidence
has been introduced concerning an essential element
of a crime and the defendant has specifically identified
this evidentiary gap in a motion for judgment of acquit-
tal, it is an abuse of the trial court’s discretion to permit
a reopening of the case to supply the missing evidence.’’
Id., 385.
We agree with the parties that Allen is controlling in
the present case. As in Allen, the state here concedes
that the evidence presented in its case-in-chief was
insufficient. The state also candidly acknowledges that
‘‘[b]ecause the only reason the state moved to amend
the information was the defendant’s success in pointing
out that the state did not meet its burden of proof, the
defendant essentially aided in his own prosecution.
. . . [P]ermitting an amendment under these circum-
stances was error for the same reasons [as] in Allen.’’
Application of that precedent compels reversal of the
defendant’s conviction under § 14-215a. We therefore
grant the defendant’s motion and reverse the judgment
of the trial court only with respect to his conviction
under § 14-215a.
The judgment of conviction of operating a motor
vehicle with a suspended license in violation of General
Statutes § 14-215a is reversed and the case is remanded
with direction to render judgment of not guilty on
that charge.
1
In this appeal, the defendant does not contest in any manner his convic-
tion for possessing a controlled substance in violation of § 21a-279 (c).
2
General Statutes § 14-215a provides in relevant part that ‘‘[n]o person
whose operator’s license or right to operate a motor vehicle in this state
has been suspended . . . shall operate any motor vehicle during the period
of such suspension. . . .’’
General Statutes § 14-215b provides in relevant part: ‘‘Any person whose
motor vehicle operator’s license has been suspended who operates a motor
vehicle after the expiration of such period of suspension without obtaining
the reinstatement of such license shall (1) during the first sixty days after
such expiration, be deemed to have failed to renew such license and be
subject to the penalty for failure to renew a motor vehicle operator’s license
. . . and (2) after said sixty-day period, be subject to the penalty for
operating a motor vehicle without a license . . . .’’