State v. Owens

¶1dissenting. I concur with parts I and III of the majority opinion, but I respectfully disagree with part II, where the majority concludes that it is reasonably possible that the jury was misled. While I agree that the portion of the charge, in isolation, injected an incorrect element into the offense of burglary in the first degree, I must also conclude that when viewed as a whole, the charge could not reasonably have misled the jury.

¶2*56“ ‘The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.’ . . .” (Citations omitted.) State v. Ash, 231 Conn. 484, 494, 651 A.2d 247 (1994). My review of the entire charge leads me to conclude that the improper instruction was harmless beyond a reasonable doubt. The question of “harmlessness of a jury instruction is properly gauged by reference to both the language of the entire charge and the evidence in the case . . . .’’Id., 496. The evidence of the knife, as presented by the state, is more than adequately set forth in the majority opinion. Given the factual circumstances of this case, I do not believe that the jury could have found the defendant guilty without first making the proper factual finding that the defendant remained unlawfully in the victim’s apartment with the knife, a dangerous instrument. See State v. Woods, 23 Conn. App. 615, 623, 583 A.2d 639 (1990). The single, isolated misstatement, in the context of an otherwise appropriate charge, did not reasonably mislead the jury. The trial court, on a number of occasions while instructing on the law of burglary in the first degree, correctly charged the jury that an element of that offense is that a person enters or remains unlawfully in a building, while armed with a dangerous instrument.1 The single inconsistent phrase in this otherwise proper charge, to which the defendant failed to note an exception, did not deprive him of a fair trial, and did not reasonably mislead the jury. For this reason I would affirm the judgment of conviction as to the charge of burglary in the first degree.

¶3Accordingly, I respectfully dissent.