State v. Calonico

• Citation: 256 Conn. 135,770 A.2d 454
• Decision Date: 08 May 2001
• Docket Number: (SC 16295)
• Court: Supreme Court of Connecticut
• Parties: STATE OF CONNECTICUT v. LINDA CALONICO

256 Conn. 135

770 A.2d 454

STATE OF CONNECTICUT v. LINDA CALONICO

(SC 16295)

Supreme Court of Connecticut.

Argued October 31, 2000.

Officially released May 8, 2001.

McDonald, C. J., and Borden, Katz, Palmer and Sullivan, Js.¹ Penn Rhodeen, special public defender, for the appellant (defendant).

Lisa A. Riggione, senior assistant state's attorney, with whom was Michael J. Sullivan, senior assistant state's attorney, for the appellee (state).

Opinion

SULLIVAN, J.

The defendant, Linda Calonico, was convicted after a court trial of one count of larceny in the first degree in violation of General Statutes (Rev. to 1995) § 53a-122 (a) (2).² She was sentenced to five years imprisonment, suspended after one year, and five years probation. The trial court concluded that, based on the "totality of the evidence and the reasonable inferences to be drawn therefrom," the state had proven beyond a reasonable doubt that: (1) the victim, Mary Crook, had lacked the mental capacity to make reasonable decisions with respect to her assets and estate, or to make any gifts therefrom; (2) the defendant had had regular contact with the victim and knew or should have known of her mental incapacity; and (3) the "defendant with intent to deprive [the victim] of her property and to appropriate the same to herself or a third person, wrongfully [had taken] and obtained [the victim's] property," which was valued at approximately $800,000. The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the defendant's appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

On appeal, the defendant challenges the sufficiency of the evidence produced by the state. First, the defendant argues that we should abandon the waiver rule of State v. Rutan, 194 Conn. 438, 440-41, 479 A.2d 1209 (1984) (if defendant chooses to present evidence after motion for acquittal is denied immediately following state's evidence, defendant waives right to appellate review of trial court's ruling on motion). Second, the defendant argues that the state failed to prove that the victim had lacked the mental capacity to make gifts. The defendant also claims that the state failed to prove that she had the requisite, unlawful intent permanently to deprive the victim of the appropriated funds. Consequently, she argues that the state failed to prove the elements necessary to convict her of the crime of larceny in the first degree. We disagree with the defendant and conclude that, even without the defendant's evidence, the trial court reasonably could have concluded that the evidence offered by the state was sufficient to prove beyond a reasonable doubt that the defendant had committed larceny in the first degree by wrongfully taking the victim's assets without consent and with the intent permanently to deprive her of them in violation of § 53a-122 (a) (2). We, therefore, affirm the judgment of the trial court.

I

As a preliminary matter, we address the defendant's claim that the trial court improperly denied her motion for judgment of acquittal at the end of the state's casein-chief. The defendant argues that appellate review of a claim of evidentiary sufficiency should be limited to the evidence in the record at the close of the state's case. Therefore, she advocates that we abandon the waiver rule; e.g., id., 440-41; which provides that, if a defendant elects to introduce evidence after the trial court denies his or her motion for judgment of acquittal at the end of the state's case, appellate review encompasses the evidence in toto, including evidence introduced by the defendant. Accordingly, in applying the waiver rule, "we ... look at the evidence in toto in order to review the trial court's ruling on the motion for judgment of acquittal after all of the evidence had been presented." State v. Simino, 200 Conn. 113, 118, 509 A.2d 1039 (1986).

We need not consider abandoning the waiver rule, however. Based on a review of the state's evidence only, the state had proven beyond a reasonable doubt that the defendant was guilty of larceny in the first degree. "On its merits, the defendant's claim is a challenge to the sufficiency of the evidence at the end of the state's case. Our review of the state's evidence is limited to an inquiry whether the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Rutan, supra, 194 Conn. 444, quoting State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed.2d 772 (1984); see also State v. Haddad, 189 Conn. 383, 387, 456 A.2d 316 (1983). We conclude that the evidence at the close of the state's case was sufficient to sustain the state's burden of proving the defendant guilty of larceny in the first degree beyond a reasonable doubt. Therefore, we do not reach the issue of whether we should abandon the waiver rule.

II

The trial court reasonably could have found the following facts. The victim is an elderly, childless widow, whose only surviving family is a sister, Anne Shea,³ who, at the time in question, was a resident of a nursing home. The victim had a close friend, Minnie Calonico, the mother of the defendant. The victim spent most of her time with Minnie Calonico after her sister had become incapacitated, and Minnie Calonico and the victim were best friends and had a very close, familylike relationship.⁴ During the early period of their friendship, the victim and Minnie Calonico went to casinos and out for meals together.

Suspicion of larceny arose after legal and financial professionals assisting the victim discovered evidence that the defendant was mishandling the victim's funds. An initial review of the victim's accounts showed that several bank accounts had been consolidated into one large account over the course of several months in 1995. Further investigation revealed that the defendant appropriated approximately $800,000 of the victim's money from that consolidated account over a period of less than three weeks through cash withdrawals and transfers into bank accounts of the defendant and her friends and family.

In early 1995, at age eighty-nine, the victim sought the assistance of her attorney, Daniel H. Dennis, Jr., to create a new will.⁵ Dennis referred the victim to Richard K. Snyder, an attorney specializing in estate planning and administration for geriatric clients. Dennis expressed some concern to Snyder about the victim's ability to handle everyday financial matters. As a result, Snyder recommended to the victim that she "get some reputable professional assistance with her financial affairs" because of her age and substantial assets.⁶ Upon her request, Snyder contacted the victim's accountant at the firm of Luppi, Mahon, Schulz and Company (accounting firm). Snyder suggested to Robert Boudreau, the accountant in charge of the victim's account, that the victim needed regular assistance paying bills, balancing her checkbook and making deposits. In response, Boudreau assigned one of the accounting firm's assistants, Susan Frame,⁷ to help the victim with her finances on a regular basis. Beginning in January, 1995, Frame would go to the victim's residence either weekly or every other week and sort through bills, write out checks for bills that needed to be paid immediately, show them to the victim, explain what they were for and have the victim sign them. Frame also discovered a suitcase full of stock certificates. Upon Snyder's request,⁸ Charles Noble, a stockbroker, visited the victim's home, went through the securities and opened a brokerage account for her. The victim's securities were worth approximately $400,000 when Noble opened the account.

Early in their professional relationship, Frame saw evidence that the victim was suffering from some mental deterioration. Specifically, Frame noticed that the victim often misread check amounts and had difficulty signing her name. The problem intensified in the summer of 1995, when the victim became ill after suffering injuries from a fall.⁹ A subsequent computerized axial tomography (CAT) scan revealed that the victim likely had suffered a stroke.¹⁰ Just prior to this incident, in June, 1995, the victim sold her house on Jackson Road in Hamden and moved into her sister's condominium.¹¹ Dennis was the closing attorney for the sale of the home, and Snyder continued to play a role in administering the victim's assets. Frame also continued to assist the victim with financial matters after her move. Sometime in the summer of 1995, Minnie Calonico moved into the victim's home to assist the victim while she was recuperating from her fall and injuries resulting therefrom. In December, 1995, Frame went to the victim's home for one of her regular visits. Upon her arrival, she noticed what appeared to be a new automobile in the driveway.¹² When she went inside, Frame was greeted by the defendant who explained that she was Minnie Calonico's daughter and that she was there just to clean for the victim. While going through the bills that day, Frame noticed that there was an entry in the victim's checkbook that indicated that a check had been made out to the defendant. Because the writing was somewhat illegible, Frame could not tell whether the amount was $500 or $5000. Among the victim's papers, Frame also noticed a cashier's receipt in the amount of $24,039.20, dated October 4, 1995, that had been issued to a local car dealership. Knowing that the victim did not have a license to operate a motor vehicle,¹³ and making the connection between the new car in the driveway and the receipt, Frame found the situation unusual. Aware of the victim's usually conservative spending habits,¹⁴ Frame became concerned enough to speak to Boudreau when she returned to...