State v. Brown

• Decision Date: 28 March 1995
• Docket Number: No. 14883,14883
• Citation: 656 A.2d 997,232 Conn. 431
• Parties: , 63 USLW 2687 STATE of Connecticut v. Lionel BROWN.
• Court: Connecticut Supreme Court

Page 997

656 A.2d 997

232 Conn. 431, 63 USLW 2687

STATE of Connecticut v. Lionel BROWN.

No. 14883.

Supreme Court of Connecticut.

Argued Dec. 2, 1994.

Decided March 28, 1995. ^*

Carolyn K. Longstreth, Asst. State's Atty., with whom were Philip D'Eramo, Former Asst. State's Atty., and, on the brief, Eugene J. Callahan, State's Atty., for appellant-appellee (state).

Lauren Weisfeld, Asst. Public Defender, for appellee-appellant (defendant).

Before BERDON, NORCOTT, KATZ, EDWARD Y. O'CONNELL and MARY R. HENNESSEY, JJ.

BERDON, Justice.

The defendant, Lionel Brown, was convicted after a jury trial of, inter alia, ¹ attempted larceny in the third degree in violation of General Statutes §§ 53a-49(a) and 53a-124(a)(2), ² and forgery in the third degree in violation of General Statutes § 53a-140(a). ³ The defendant appealed to the Appellate Court, which reversed his convictions on these two counts and remanded the case to the trial court with direction to render the following judgments: As to the forgery count, the Appellate Court ordered the trial court to render a judgment of acquittal. As to the attempted larceny count, the Appellate Court ordered the trial court to render a judgment of guilty on the lesser included offense of attempted larceny in the fourth degree in violation of General Statutes §§ 53a-49(a) and 53a-125(a), ⁴ and to resentence the defendant accordingly. The Appellate Court also held that the trial court did not violate the defendant's constitutional rights when it failed to investigate a report of jury misconduct. State v. Brown, 33 Conn.App. 339, 635 A.2d 86194020132 (1993).

The state and the defendant both petitioned this court for certification to appeal. We granted the state's petition for certification to appeal whether the Appellate Court had incorrectly concluded that (1) there was insufficient evidence to support the defendant's conviction on the forgery count, and (2) the dollar amounts that the defendant and his coconspirators attempted to steal could not be aggregated in order to support a conviction of attempted larceny in the third degree. We also granted the defendant's petition for certification to appeal whether the Appellate Court should have ordered the trial court to conduct a hearing on the report of jury misconduct. ⁵ We disagree with the state on both of its certified issues, but agree with the defendant on his cross appeal.

The jury could reasonably have found the following facts. On May 8, 1991, at approximately 2:45 p.m., the defendant entered the Gateway Bank in Wilton. He identified himself to a bank teller as Clifford Sailor and attempted to make a split deposit ⁶ involving two checks. Both checks were made payable to and endorsed by "Clifford Sailor." The first check, which the defendant sought to deposit, was drawn on the account of Beth Anne Onderko in the amount of $728.90. The second check, which the defendant sought to cash, was drawn on the account of St. Paul's Inn of North Carolina in the amount of $960.

The teller, who was acquainted with the real Clifford Sailor, was suspicious of the defendant. She asked him for identification, but he could not produce any. The teller refused to complete the transactions, and the defendant left the bank, taking the checks with him. The teller then notified the bank manager of the incident.

A few moments later, a man identifying himself as Robert Black entered the bank and attempted to make a split deposit involving three checks, all of which were made payable to and endorsed by "Robert Black." The man sought to deposit the first two checks, which were in the amounts of $776.10 and $78. He wanted to cash the third check in the amount of $880. When he could not produce any identification as requested, the bank manager refused to complete the transactions and the man left the bank. The bank manager then watched him as he joined the defendant and a woman in a waiting car. The bank manager noted the license plate number and called the Wilton police.

Shortly thereafter, a Wilton police officer stopped the car and arrested the three occupants. The woman, who was driving, carried identification in several names, along with $600 in cash. The man who previously had identified himself as Black carried $453. The defendant possessed a valid identification, $32, a deposit slip with Sailor's address written on it, a paper on which another name and address were written, and two checks totaling $1192 payable to Barbara Matison.

The police also seized a manila envelope from the car. Among the items in the envelope were various bank papers, checks, checkbooks, torn signature cards, customer receipts and change of name forms.

I

We first consider the state's claim that the Appellate Court improperly concluded that there was insufficient evidence to support the defendant's conviction on the forgery count.

"[W]e have consistently employed a two-part analysis in appellate review of the sufficiency of the evidence to sustain a criminal conviction. State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993). 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 jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. Id. That the evidence is circumstantial rather than direct does not diminish the probative force of that evidence. State v. Carpenter, 214 Conn. 77, 79, 570 A.2d 203 (1990) on appeal after remand, 220 Conn. 169, 595 A.2d 881 (1991), cert. denied, 502 U.S. 1034, 112 S.Ct. 877, 116 L.Ed.2d 781 (1992)." (Internal quotation marks omitted.) State v. DePastino, 228 Conn. 552, 570, 638 A.2d 578 (1994). We must be mindful, however, that "[a]lthough the jury may draw reasonable, logical inferences from the facts proven, [it] may not resort to speculation and conjecture. State v. Saracino, 178 Conn. 416, 419, 423 A.2d 102 (1979). Each essential element of the crime must be proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, [1072,] 25 L.Ed.2d 368 (1970)." (Internal quotation marks omitted.) State v. King, 216 Conn. 585, 601, 583 A.2d 896 (1990), on appeal after remand, 218 Conn. 747, 591 A.2d 813 (1991).

In order to prove forgery in the third degree, the state was required to establish beyond a reasonable doubt that the defendant, while possessing an intent to defraud, deceive or injure another, had falsely made, completed or altered a written instrument, or had issued or possessed any written instrument which he knew to be forged. General Statutes § 53a-140; see footnote 3. As the Appellate Court noted, however, "the only evidence produced concerning the forgery of the checks was (1) the manila envelope and its contents, (2) the defendant's conduct, and (3) the bank teller's statement that the endorsements on the checks looked like Sailor's signature. There was no evidence that the endorsements were not that of Sailor." State v. Brown, supra, 33 Conn.App. at 349, 635 A.2d 861. The Appellate Court, therefore, reversed the defendant's conviction on the forgery count. Id., at 350, 635 A.2d 861.

The state argues that the Appellate Court improperly focused "exclusively on the authenticity of the endorsement signature" and disregarded the other methods by which the state could have proved that the defendant had committed forgery. In particular, the state argues that the Appellate Court failed to recognize that "[a]s long as the defendant and/or his accomplices added to a blank check, without proper authorization, the name of the payee, the amount and the maker's signature, the checks were forged." The state contends that it presented "strong circumstantial evidence" of such unauthorized additions and that this evidence supported the jury's verdict of guilty. For example, the state argues that the defendant and his accomplices possessed blank checks drawn on the accounts of Onderko and St. Paul's Inn that matched the two checks the defendant had presented to the bank; that the blank Onderko checks included a carbon copy of the check the defendant had presented; and that the manila envelope found in the car with the defendant included blank checks from seven other accounts.

We find the state's argument to be lacking. The state failed to present any evidence whatsoever that the payee's name, the amount or the drawer's signature on either of the checks was not properly authorized. The state did not call Onderko or any representative of St. Paul's Inn, on whose accounts the allegedly improper checks were drawn, to testify that the checks were not genuine. The state did not call Sailor to testify that he had not personally endorsed the checks or that he had not authorized anyone to do so on his behalf. Moreover, although the state asserts in its brief to this court that some of the checks found in the car "appeared to have been completed in the same handwriting," the state failed to call an expert witness to compare the handwriting. Indeed, the only witness to testify about the appearance of the checks--the bank teller who dealt with the defendant--indicated that the signatures of Sailor appeared to be genuine.

It is fundamental to our system of justice that the state must prove each material element of a criminal offense beyond a reasonable doubt. State v. Deleon, 230 Conn. 351, 362, 645 A.2d 518 (1994). The state, having failed to present any evidence whatsoever of lack of authorization, cannot now contend that the defendant was properly convicted of forgery in the third degree. The judgment of the Appellate Court reversing the defendant's conviction of that crime, therefore, is affirmed.

II

The state next claims that the Appellate Court improperly concluded that, as a matter of law, the jury could not aggregate the amounts the defendant and his coconspirators attempted to steal in order to convict ...