State of Connecticut v. William Hesbach (2013)

MEMORANDUM OF DECISION

I. STATEMENT OF THE CASE

Defendant filed a Motion to Dismiss and a memorandum in support thereof pursuant to the Fourteenth Amendment to the Constitution of the United States and Connecticut Practice Book Section 41–8.   The State filed a motion in opposition and a memorandum in support thereof.   In a Second Motion to Dismiss, the defendant asserts that the prosecution of the instant case constitutes double jeopardy because in a civil proceeding to which defendant was a party, the court, Schumann, J., determined that improvements to a barn do not constitute a home improvement.

This court signed the arrest warrant in the instant matter having found probable cause.   However, counsel for the State and defense counsel had no objection to having this court rule on the instant motion.

II. ISSUES

Does the information alleging unlawful improvements made to a barn pursuant to C.G.S. Section 20–427(b)(5) require dismissal of the information on the ground of insufficient evidence to cause or continue the prosecution?   Does the instant prosecution constitute double jeopardy?   Do the doctrines of collateral estoppel, issue preclusion, or res judicata require dismissal of the information where an civil court judge determined that improvements to a barn did not constitute a home improvement?

III. STATEMENT OF FACTS

The defendant was arrested by warrant and charged in a one-count information with offering to make home improvements without a current certificate of registration in violation of Connecticut General Statues Section 20–427(b)(5).   The defendant asserts that improvements made to a barn do not constitute a home improvement within the meaning of the statute and that the information should be dismissed.

IV. PRINCIPLES OF LAW

“The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information ․ (5)[i]nsufflciency of evidence or cause to justify the bringing or continuing of such information or the placing of the defendant on trial.”  Connecticut Practice Book Section 41–8.

“The common law doctrine of collateral estoppel, or issue preclusion embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality ․ Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when the issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim ․ For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action.   It must have been actually decided and the decision must have been necessary to the judgment.   Moreover, if an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action ․ For collateral estoppel to apply, the issue concerning which relitigation is sought to be estopped must be identical to the issue decided in the prior proceeding.”  State v. Thomas, 137 Conn.App. 782, 790, 49 A.3d 1038, 1044 (2012) (internal citations and quotation marks omitted).

“The constitutional prohibition of double jeopardy has been held to consist of three separate guarantees:  [1] It protects against a second prosecution for the same offense after acquittal.  [2] It protects against a second prosecution for the same offense after conviction.  [A]nd it protects against multiple punishments for the same offense.”  State v. Drakes, 143 Conn.App. 510, 518 (2013) (internal citations omitted).

“No person shall (5) offer to make or make any home improvement without having a current certificate of registration ․” C.G.S. Section 20–427(b)(5).   “[A]ny person who violates any provision of subsection (b) of this section, except subsection (8) shall be guilty of a class B misdemeanor.”  C.G.S. Section 20–427(c)(1).  “Home improvement” includes, but is not limited to, “the repair, replacement, remodeling, alteration, conversion, modernization, improvement, rehabilitation, or sandblasting of, or addition to any land or building or that portion thereof which is used or designed to be used as a private residence, dwelling place or residential rental property, or the construction, replacement, installation or improvement of driveways, swimming pools, porches, garages, roofs, siding, insulation, sunrooms, flooring, patios, landscaping, fences, doors and windows and waterproofing in connection with such land or building or that portion thereof, which is used or designed to be used as a private residence, dwelling place or residential rental property or the removal or replacement of a residential heating oil tank storage system, in which the total cash price for all work agreed upon between the contractor and the owner exceeds two hundred dollars ․” C.G.S. Section 20–419(4).

V. ANALYSIS

The bulk of the defendant's motion rests on the definition of “home improvement.”   Whether improvements to a barn constitute a home improvement is a question of law.   Therefore, the claim that the State has alleged insufficient evidence to commence or continue the prosecution is misplaced.   The defendant does not claim that the same parties litigated the issue in a prior proceeding.   Therefore his collateral estoppel and issue preclusion claims fail.   The defendant was not previously prosecuted on the charge of making home improvements without a certificate of registration so his double jeopardy claim fails.

VI. CONCLUSIONS OF LAW

The information, based on a warrant arrest, does not require dismissal.   The defendant has not been subjected to double jeopardy.   The defendant concedes that the same parties did not litigate the issue of the definition of “home improvement” in a prior proceeding.   Therefore, the information should not be dismissed on a theory of collateral estoppel or issue preclusion.

VII. JUDGMENT

The motion is denied.

Kevin A. Randolph

Superior Court Judge

Randolph, Kevin A., J.