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State v. Marcu
STATE OF CONNECTICUT v. NICOLAE MARCU
(AC 46988)
Elgo, Moll and Clark, Js.
Syllabus
Convicted of misconduct with a motor vehicle in violation of statute (§ 53a-
57), the defendant appealed. He claimed, inter alia, that there was insufficient
evidence to prove that he acted with criminal negligence as required by
§ 53a-57. Held:
The trial court reasonably concluded that the evidence demonstrated beyond
a reasonable doubt that the defendant acted with criminal negligence pursuant to § 53a-57 because, on the basis of the evidence before it, it was
reasonable for the court to infer that the defendant was distracted for a
prolonged period of time while driving, that he consequently failed to perceive the substantial and unjustifiable risk that the manner in which he was
operating his vehicle would cause the death of the victim, and that such
failure was a gross deviation from the standard of care that a reasonable
driver would observe in that situation.
Argued November 21, 2024—officially released January 21, 2025
Procedural History
Information charging the defendant with the crimes
of misconduct with a motor vehicle and negligent homicide with a motor vehicle or commercial motor vehicle,
brought to the Superior Court in the judicial district of
New London, geographical area number ten, where the
case was tried to the court, K. Murphy, J.; judgment
of guilty of misconduct with a motor vehicle; thereafter,
the state entered a nolle prosequi as to the remaining
charge, and the defendant appealed to this court.
Affirmed.
Jeremy A. Kemp, with whom, on the brief, was J.
Patten Brown III, for the appellant (defendant).
Jessica DellaRatta, certified legal intern, with whom
were Timothy F. Costello, supervisory assistant state’s
attorney, and, on the brief, Paul Narducci, state’s attorney, and David J. Smith, supervisory assistant state’s
attorney, for the appellee (state).
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State v. Marcu
Opinion
MOLL, J. The defendant, Nicolae Marcu, appeals from
the judgment of conviction, rendered after a trial to the
court, of misconduct with a motor vehicle in violation
of General Statutes § 53a-57.1 On appeal, the defendant
claims that (1) there was insufficient evidence to demonstrate that his conduct was committed with the mens
rea of criminal negligence, and (2) the finding that he
was criminally negligent was not supported by the trial
court’s factual findings.2 We disagree and, accordingly,
affirm the judgment of the trial court.
The following facts, as set forth in the trial court’s
decision rendered from the bench, and procedural history are relevant to our decision. ‘‘[O]n December 1,
2016, the defendant . . . was driving a vehicle, a tractor trailer truck, on [Interstate 95] south in . . . New
London county . . . when he hit a vehicle which had
been driven by Ashley Ferguson . . . [and] Ferguson
was outside her vehicle with the back door open on
the driver’s side. [The defendant] hit . . . Ferguson’s
vehicle and hit . . . Ferguson and killed her . . . .
[T]he defendant’s vehicle, prior to impact with . . .
Ferguson’s vehicle, veered to the right over the fog line,
hitting the rear portion of the driver’s side quarter panel,
scraping the side of . . . Ferguson’s vehicle. . . . Ferguson’s vehicle was off the travel portion of the highway, but just barely.
…
‘‘[The defendant] actually applied the brakes either
as he was hitting . . . Ferguson or maybe shortly
before, but really almost instantaneously.’’
1
General Statutes § 53a-57 provides: ‘‘(a) A person is guilty of misconduct
with a motor vehicle when, with criminal negligence in the operation of a
motor vehicle, he causes the death of another person.
‘‘(b) Misconduct with a motor vehicle is a class D felony.’’
2
Because we consider these claims to be analytically related, we address
them together.
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State v. Marcu
On October 11, 2017, the defendant was arrested and
subsequently charged by way of a long form information, dated May 22, 2023, with misconduct with a motor
vehicle in violation of § 53a-57 (count one). The defendant also was charged with the lesser included offense
of negligent homicide with a motor vehicle or commercial motor vehicle in violation of General Statutes (Rev.
to 2015) § 14-222a (b)3 (count two).
A bench trial took place on May 30 and 31, 2023.
Several witnesses testified and several exhibits were
admitted into evidence. On May 30, 2023, after the close
of the state’s case-in-chief, the defendant made an oral
motion for a judgment of acquittal on the ground that
‘‘[t]he state ha[d] presented insufficient evidence to
establish criminal negligence with respect to [count
one]’’ because the state did not present evidence showing more than a slight or moderate deviation from the
standard of care that would have been exercised by a
reasonable truck driver in the defendant’s situation. The
state opposed the motion, arguing that ‘‘the evidence is
that the defendant left the lane of traffic. Other people—
another person that saw it, moved over. The defendant
chose not to, for whatever reason . . . [and he] went
into a portion of the lane that is specifically not a travel
lane, struck and killed [Ferguson]. I think based on the
totality of the evidence presented at this point in time,
I think we’ve met the state’s burden to move forward
with the rest of the trial, and the state would object
to the defendant’s motion.’’ The court, K. Murphy, J.,
deferred its ruling on the motion for a judgment of
acquittal until after closing arguments and subsequently
denied the motion on the record on May 31, 2023.4
3
General Statutes (Rev. to 2015) § 14-222a (b) provides: ‘‘Any person who,
in consequence of the negligent operation of a commercial motor vehicle,
causes the death of another person shall be fined not more than two thousand
five hundred dollars or imprisoned not more than six months, or both.’’
4
The defendant did not put on a case-in-chief.
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State v. Marcu
On that same day, the court found the defendant
guilty of misconduct with a motor vehicle in violation
of § 53a-57.5 With specific regard to the third element of
§ 53a-57 (a) (i.e., criminal negligence), the court stated:
‘‘The last sentence of the reasonable doubt [criminal
jury] instruction indicates proof [of] reasonable doubt
is proof that precludes every reasonable hypothesis
except guilt and is inconsistent with any other rational
conclusion. It was my judgment, based on reviewing
[all of] the evidence, that there is no other explanation
for what happened here, other than the criminal negligence on the part of the defendant . . . . [T]here was
no other explanation except criminal negligence for the
fact that [the defendant] is driving on [Interstate 95]
. . . [and] the defendant had this long view of [Ferguson] prior to hitting her.6 And the truth is, the fact
that [Ferguson], and I think the evidence indicates that
[Ferguson] was in the roadway, either right before or
as [the defendant] is approaching, and [the defendant]
takes no action to avoid her. That is what I view as the
criminal negligence. . . .
‘‘I want to point out that there’s obviously no indication of any alcohol or illegal drug use; there’s no indication that the cell phone was a distraction; it’s not really
clear what the distraction was, but it is clear that [the
defendant] did not respond to an obvious problem on
5
On May 26, 2023, the defendant filed a motion to dismiss count two.
The defendant argued that charging him with a violation of General Statutes
(Rev. to 2015) § 14-222a (b) was a violation of (1) the ex post facto clause
of the constitution of the United States, article one, § 10, (2) the implied ex
post facto provision in the constitution of Connecticut, article first, §§ 8
and 9, and (3) the statute of limitations set forth in General Statutes § 54-193.
The court incorporated its decision regarding the motion to dismiss into
the judgment rendered from the bench, stating that the court would not
consider count two because it is a lesser included offense. The record
reflects that count two was later nolled.
6
The court stated that there was testimony in the record indicating that
there was a length of ‘‘at least two football fields . . . before you [got] to
the point of impact . . . .’’
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State v. Marcu
the road. There’s no indication he was speeding, there’s
no indication of any other erratic driving. So, the court’s
decision is based on the fact that he has a clear and
unobstructed view of [Ferguson’s] vehicle and . . . [of
Ferguson] and yet takes no action whatsoever to avoid
hitting her . . . . [W]hen you look carefully at the evidence in this case, and especially this fact that [the
defendant] is driving a tractor trailer truck sixty miles
per hour, going down [Interstate 95] and takes no action
to avoid the striking of . . . Ferguson and her vehicle
. . . [t]o me . . . there’s really no other explanation,
other than [the defendant] is guilty of [violating § 53a-
57].’’ (Footnote added.)
On August 31, 2023, the court sentenced the defendant to five years of incarceration, execution fully suspended, with five years of probation. This appeal followed. Additional facts and procedural history will be
set forth as necessary.
We begin by setting forth the applicable standard of
review and legal principles that are relevant to our
resolution of the defendant’s claim. ‘‘Our standard of
review for a sufficiency of the evidence claim is well
established. 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 [finder of fact] reasonably could have
concluded that the cumulative 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 innocence. . . . The trier may
draw whatever inferences from the evidence or facts
established by the evidence it deems to be reasonable
and logical. . . . In conducting this review, the probative force of the evidence is not diminished where the
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State v. Marcu
evidence, in whole or in part, is circumstantial rather
than direct.’’ (Citation omitted; internal quotation marks
omitted.) State v. Carter, 64 Conn. App. 631, 636,
781
A.2d 376, cert. denied,
258 Conn. 914,
782 A.2d 1247
(2001).
‘‘We note that the [fact finder] must find every element proven beyond a reasonable doubt in order to
find the defendant guilty of the charged offense, [but]
each of the basic and inferred facts underlying those
conclusions need not be proved beyond a reasonable
doubt. . . . If it is reasonable and logical for the [fact
finder] to conclude that a basic fact or an inferred fact
is true, the [fact finder] is permitted to consider the
fact proven and may consider it in combination with
other proven facts in determining whether the cumulative effect of all the evidence proves the defendant
guilty of all the elements of the crime charged beyond
a reasonable doubt. . . .
‘‘Moreover, it does not diminish the probative force
of the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving
substantial circumstantial evidence. . . . In evaluating
evidence, the [finder] of fact is not required to accept
as dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [finder of fact]
may draw whatever inferences from the evidence or
facts established by the evidence it deems to be reasonable and logical. . . .
‘‘Finally, [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 [finder of fact], would have resulted in
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State v. Marcu
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 [finder of fact’s] verdict of
guilty.’’ (Citations omitted; internal quotation marks
omitted.) State v. Perkins, 271 Conn. 218, 246–47,
856
A.2d 917 (2004).
Section 53a-57 (a) provides: ‘‘A person is guilty of
misconduct with a motor vehicle when, with criminal
negligence in the operation of a motor vehicle, he
causes the death of another person.’’ Criminal negligence is defined in General Statutes § 53a-3 (14)7 as
follows: ‘‘A person acts with ‘criminal negligence’ with
respect to a result or to a circumstance described by
a statute defining an offense when he fails to perceive
a substantial and unjustifiable risk that such result will
occur or that such circumstance exists. The risk must
be of such nature and degree that the failure to perceive
it constitutes a gross deviation from the standard of
care that a reasonable person would observe in the
situation . . . .’’
‘‘To convict [a] defendant under § 53a-57, the state
[has] the burden of proving the following three elements
beyond a reasonable doubt: (1) the defendant was
operating a motor vehicle; (2) the defendant caused
the death of another person; and (3) the defendant
possessed the mental state for criminal negligence.’’
State v. Carter, supra,64 Conn. App. 637. To meet its
burden of proof as to the third element of § 53a-57,
which is the subject of this appeal, ‘‘the state was
7
Since the events underlying this appeal, § 53a-3 has been the subject of
several amendments. See Public Acts 2019, No. 19-108, § 1; Public Acts 2021,
No. 21-31, § 4; Public Acts 2022, No. 22-117, § 8; Public Acts 2023, No. 23-
53, § 36. Those amendments, however, have no bearing on the merits of
this appeal. In the interest of simplicity, we refer to the current revision of
the statute.
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State v. Marcu
required to prove that the defendant failed to perceive
a substantial and unjustifiable risk that the manner in
which he was operating his vehicle would cause the
death of another. The state also had to prove that the
defendant’s failure to perceive that risk constituted a
gross deviation from the standard of care that a reasonable person would observe in the situation.’’ Id. ‘‘The
defendant, as an operator of a motor vehicle, [is] under
a duty to exercise reasonable care . . . and to keep a
reasonable lookout for persons or traffic that . . . [he
is] likely to encounter.’’ (Internal quotation marks omitted.) State v. Luna, 208 Conn. App. 45, 52,
262 A.3d
942, cert. denied,
340 Conn. 917,
266 A.3d 146 (2021).
With these legal principles in mind, we turn to the
merits of the defendant’s claim on appeal. The defendant does not challenge the court’s findings that (1) he
was operating the motor vehicle that struck Ferguson,
and (2) he caused Ferguson’s death. The defendant’s
sole claim on appeal pertains to the third element of
§ 53a-57, as he argues that the evidence presented at
trial was insufficient to prove beyond a reasonable
doubt that he acted with criminal negligence. In support
of this claim, the defendant argues that the court could
not have found that the requisite criminal negligence
existed because (1) the court did not find that he was
speeding, intoxicated, using a cell phone, or driving
erratically, and (2) although the court found that he
was distracted prior to the collision, he was ‘‘distracted
for a mere moment by an unknown cause,’’ such that
the distraction did not amount to criminal negligence.
We disagree.
As we previously iterated, the court found that the
defendant, while driving on a major highway, veered
across the fog line and ‘‘applied the brakes either as
he was hitting . . . Ferguson or maybe shortly before
. . . .’’ There was also testimony that another driver
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State v. Marcu
on the road at the time of the incident perceived Ferguson and her vehicle from a significant distance away
and safely moved her vehicle to the left lane to avoid
hitting Ferguson. The evidence was sufficient to support the court’s inference that, regardless of what the
actual distraction was, the ‘‘defendant failed to perceive
a substantial and unjustifiable risk that the manner in
which he was operating his vehicle would cause the
death of [Ferguson]’’ and this failure was clearly ‘‘a
gross deviation from the standard of care that a reasonable person would observe in the situation.’’ State v.
Carter, supra,64 Conn. App. 637.
The state argues, and we agree, that proof of the
defendant’s exact distraction or the cause of the defendant’s veering across the fog line is not required under
§ 53a-57. See id., 640 (cause of defendant’s distraction
is ‘‘of little consequence to [the] analysis’’ and ‘‘[t]he
state was not required to prove exactly what caused
the defendant’s impairment’’). Regardless of whatever
distraction actually occurred in the case at hand, the
defendant’s ‘‘failure to appreciate, or his decision to
ignore, such a substantial risk to others demonstrates
more than ordinary negligence. An operator of a motor
vehicle is always under a duty to exercise reasonable
care . . . and to keep a reasonable lookout for persons
or traffic that he or she is likely to encounter. . . . If
an operator of a motor vehicle encounters an impairment or distraction affecting his or her ability to exercise that duty of reasonable care, the disregard or failure
to perceive the risk that he or she thereby creates by
continuing to drive may surpass ordinary negligence.’’
(Citations omitted.) Id., 642. The court’s factual findings
that the defendant had a clear and unobstructed view
of Ferguson and her vehicle, yet nonetheless veered
across the fog line and into the breakdown lane where
Ferguson was standing are sufficient to support the
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State v. Marcu
court’s determination that the defendant’s conduct surpassed ordinary negligence. See State v. Gonsalves, 137
Conn. App. 237, 244–45,
47 A.3d 923, cert. denied,
307
Conn. 912,
53 A.3d 998 (2012).
Moreover, the absence of factors such as cell phone
use, intoxication, speeding, or erratic driving does not
preclude a finding that the defendant was criminally
negligent, as the defendant suggests. See, e.g., State v.
Ortiz, 29 Conn. App. 825, 835,
618 A.2d 547 (1993) (‘‘in
a prosecution for misconduct with a motor vehicle in
violation of . . . § 53a-57, proof that the driver was
under the influence of intoxicating liquor is neither
necessary nor sufficient to warrant conviction because
it is the driver’s mental state that is in issue’’). Although
the defendant argues that the present case is distinguishable from other cases affirming a finding of criminal negligence because he was not intoxicated; id.;
bending over while driving; State v. Carter, supra, 64
Conn. App. 637–38; using a cell phone; State v. Luna,
supra, 208 Conn. App. 52–53; or racing; State v. Jones,
92 Conn. App. 1, 9,
882 A.2d 1277 (2005); nor did he
cross a double yellow line when driving conditions were
poor; State v. Gonsalves, supra, 137 Conn. App. 244–45;
direct evidence of such an impairment, distraction, or
dangerous behavior is not necessary for a finding of
criminal negligence, and, therefore, the defendant’s
argument is unavailing. From the evidence that was
before the court, including that (1) Ferguson was visible
to the defendant from the length of approximately two
football fields away and (2) the defendant did not brake
until he was crossing the fog line, it was reasonable for
the court to infer that the defendant was distracted for
a prolonged period of time and, therefore, failed to
perceive the substantial and unjustifiable risk that veering across the fog line toward Ferguson would cause
her death, and that this failure grossly deviated from
the standard of care that a reasonable driver would
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State v. Marcu
observe in that situation. See State v. Perkins, supra, 271
Conn. 246–47 (‘‘[t]he [finder of fact] may draw whatever
inferences from the evidence or facts established by
the evidence it deems to be reasonable and logical’’
(internal quotation marks omitted)).
The defendant’s argument that he was distracted for
only a ‘‘mere moment by an unknown cause’’ such that
the distraction did not amount to criminal negligence
is likewise unavailing. The defendant cites to no evidence in the record to support this assertion, which is
belied by the evidence that (1) Ferguson was visible
from the length of two football fields away, (2) another
driver on the road at the time of the incident was able
to move across lanes safely to avoid Ferguson, (3) the
defendant’s brakes were not applied until the defendant
made contact with Ferguson or just before he did so,
and (4) the impact occurred in the breakdown lane.
Thus, viewing the evidence in the light most favorable
to sustaining the judgment, we do not accept the defendant’s argument that the court could not have found him
to be criminally negligent on the basis of the purported
brevity of his distraction.
In sum, we conclude that the court reasonably concluded that the evidence demonstrated beyond a reasonable doubt that the defendant acted with criminal
negligence pursuant to § 53a-57.
The judgment is affirmed.
In this opinion the other judges concurred.
