STATE v. JOSE MORENO-HERNANDEZ, SC 18919

Judicial District of New Haven

 

      Criminal; Attempt to Commit Murder; Whether the Evidence was Insufficient to Support Defendant’s Conviction of Attempted Murder Under the “Attendant Circumstances” Language of the Attempt Statute, General Statutes § 53a-49.  The defendant and the complainant worked at a restaurant in New Haven.  After they had finished working early one morning, the complainant agreed to give the defendant a ride home in her car.  The defendant was unable to direct the complainant to his residence, and after driving around for approximately forty-five minutes, the complainant pulled over and asked the defendant to exit the vehicle.  When the defendant refused to leave, the complainant exited the car.  The defendant ran after her, punched her in the face, and pushed her back into the car, where he sexually assaulted her.  He later drove her to a park and brought her into the woods where he sexually assaulted her again.  He subsequently began to punch and kick her repeatedly and beat her with a stick.  The defendant finally left the scene after the complainant “played dead.”  He was arrested and charged with, among other things, attempt to commit murder in violation of General Statutes §§ 53a-54a and 53a-49 (a) (1).  Section 53a-49 (a) (1) provides that “[a] person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . [i]ntentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be . . . .”  The defendant was tried before a jury and, after the state rested its case, he moved for a judgment of acquittal, claiming that the evidence was insufficient to support a conviction of attempted murder under § 53a-49 (a) (1).  He maintained that § 53a-49 (a) (1) is applicable only where the perpetrator failed to accomplish all of the elements of a crime solely because the attendant circumstances were not as the perpetrator believed them to be, rendering the commission of the crime impossible.  He claimed that § 53a-49 (a) (1) would apply where a pickpocket fails to steal a wallet because he places his hand in an empty pocket, or where a defendant fails to bribe a juror because he mistakenly offers money to a nonjuror.  The defendant contended that § 53a-49 (a) (1) was inapplicable here because, while he did not murder the complainant, it was possible for him to do so.  The trial court disagreed, emphasizing that the complainant testified that she had feigned death at the end of the defendant’s final assault.  The court also pointed out that the defendant gave a statement to the police in which he acknowledged that he had thought that she was dead.  It then concluded that, based upon the foregoing evidence, there was sufficient evidence to support a conviction of attempted murder beyond a reasonable doubt.  Thereafter, the jury found the defendant guilty as charged.  In this appeal, the Supreme Court will determine whether the trial court properly concluded that there was sufficient evidence to support the defendant’s conviction of attempted murder.