State v. Foster

• Decision Date: 18 September 1997
• Docket Number: No. AC,AC
• Citation: 696 A.2d 1003,45 Conn.App. 369
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Duane FOSTER. 15530.

Page 1003

696 A.2d 1003

45 Conn.App. 369

STATE of Connecticut v. Duane FOSTER.

No. AC 15530.

Appellate Court of Connecticut.

Argued Feb. 26, 1997.

Decided June 10, 1997.

Certification Denied Sept. 18, 1997.

Pamela S. Nagy, Special Assistant Public Defender, for appellant (defendant).

Margaret Gaffney Radionovas, Assistant State's Attorney, with whom, on the brief, were James E. Thomas, State's Attorney, and Dennis J. O'Connor, Assistant State's Attorney, for appellee (State).

Before DUPONT, C.J., and SPEAR and FRANCIS X. HENNESSY, JJ.

SPEAR, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of larceny in the third degree in violation of General Statutes § 53a-119(8), ¹ three counts of reckless endangerment in the first degree in violation of § 53a-63(a), ² interfering with a peace officer in violation of § 53a-167a, ³ using a motor vehicle without the owner's permission in violation of § 53a-119b(a)(1), ⁴ and with being a persistent serious felony offender pursuant to General Statutes § 53a-40(b) and (g). ⁵ The defendant claims that (1) the evidence was insufficient to support his conviction of larceny and using a motor vehicle without the owner's permission, (2) the trial court improperly instructed the jury on larceny in the third degree, (3) his convictions of both larceny in the third degree and using a motor vehicle without the owner's permission constituted double jeopardy, and (4) the trial court improperly sentenced him as a second offender pursuant to § 53a-119b(a)(1) and (d). We affirm the judgment of conviction.

The jury reasonably could have found the following facts. On September 7, 1993, John Vaicaulis owned a 1985 two-tone gold Dodge 600 bearing vehicle registration plate number JX77 and an Avon products front plate. On that evening, Vaicaulis used the vehicle to drive his wife to an Avon products sales meeting in East Hartford. At approximately 7:30 p.m., as Vaicaulis was seated in the Dodge waiting for his wife, an unidentified man approached the vehicle. Vaicaulis and the man engaged in a conversation, during which time Vaicaulis explained that he was waiting for his wife. Vaicaulis then agreed to drive the man to his destination because it was raining. After they arrived at the destination, the man took the vehicle without Vaicaulis' permission. Vaicaulis reported the vehicle as stolen to both the police and his insurer, the Metropolitan Insurance Company (Metropolitan). Neither Vaicaulis nor Metropolitan gave permission to anyone to operate the vehicle.

Michele Harrison, the defendant's girlfriend, first saw the defendant driving a two-tone gold Dodge 600 with license plate number JX77 and an Avon front plate in September, 1993. The defendant explained that he had borrowed the car from an unidentified friend. He further explained that his friend's wife sold Avon products and he would have the car for two weeks. The defendant remained in possession of the car, however, until November 16, 1993. Between September and mid-November, the defendant and Harrison used the car every day.

On November 16, 1993, at approximately 6 p.m., Officer Harold Pu'Sey of the Hartford police department noticed a two tone Dodge 600 that matched the description of a stolen vehicle. As Pu'Sey was turning east onto Nelson Street, the vehicle was stopped at a stop sign facing west on Nelson Street. The defendant was operating the vehicle and Harrison was a passenger. Upon noticing Pu'Sey, the defendant continually looked in his direction and watched him. Pu'Sey followed the defendant as he traveled down Garden Street and onto Edgewood Street. As he turned onto Edgewood, the defendant pulled up to the curb and turned off the lights. Pu'Sey approached the vehicle and ordered Harrison and the defendant, at gunpoint, to put their hands on the dashboard. The defendant did not comply, and asked Harrison what he had done. Harrison replied that, while he had not done anything wrong, he should comply with Pu'Sey's order. At that point, the defendant drove off at a high rate of speed. Pu'Sey returned to his cruiser, activated his lights and siren, and pursued the defendant down four streets. During the chase, the defendant drove in excess of fifty-five miles per hour, made evasive maneuvers, crossed the center line, and almost lost control of the vehicle. As the defendant proceeded down a one-way street in the wrong direction, he came within one foot of three children. The defendant proceeded at a high rate of speed until he came to a dead end in Keeney Park. At that point, the defendant told Harrison not to identify him or to converse with the police and fled on foot. Pu'Sey initiated a foot chase and eventually found the defendant hiding behind a porch. Pu'Sey and the defendant engaged in a brief scuffle, and the defendant was arrested.

Later that same day, the defendant initiated a conversation with Detective Peter Getz of the Hartford police department and Detective Gary Ouellette of the East Hartford police department. The defendant claimed that he had leased the Dodge from Mike C. in exchange for a quantity of marijuana. He did not reveal when the lease occurred, Mike C.'s last name, or the street address where the transaction took place.

The relevant procedural history is as follows. The defendant was charged in a two part information. Part B of the information accused the defendant of being a persistent felony offender in violation of § 53a-40(b) and (g). ⁶ In addition, prior to trial the state filed a notice of sentence enhancement, ⁷ which notified the defendant that, if he was convicted of violating § 53a-119b, the state would seek the enhanced penalty provided therein. After the jury rendered a guilty verdict, the defendant pleaded guilty to being a persistent serious felony offender and to having a prior conviction under § 53a-119b. He received a total effective sentence of twenty-three years. This appeal followed.

I

The defendant first claims that the evidence adduced at trial was insufficient to sustain his convictions of larceny in the third degree by receiving a stolen motor vehicle and using a motor vehicle without the owner's permission. We are unpersuaded.

When reviewing a sufficiency of the evidence claim, our courts apply a two-prong 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 jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.' " State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994).

A

The defendant's first claim is that the state failed to prove what he asserts are the three essential elements of § 53a-119(8):(1) that the defendant knew or believed the vehicle was probably stolen, (2) that he intended to deprive the owner of the car, and (3) that he did not receive, retain or dispose of the property with the purpose to restore it to its owner. We disagree.

Section 53a-119(8) provides in relevant part: "A person is guilty of larceny by receiving stolen property if he receives, retains or disposes of stolen property knowing that it has probably been stolen or believing that it has probably been stolen, unless the property is received, retained or disposed of with purpose to restore it to the owner...." The state must prove, beyond a reasonable doubt, the following elements: "(1) that the defendant received, retained or disposed of the [vehicle], (2) that the [vehicle] was stolen and (3) that the defendant knew or believed that the [vehicle] was probably stolen, when he received, retained or disposed of it." State v. Rivera, 39 Conn.App. 96, 103, 664 A.2d 306, cert. denied, 235 Conn. 921, 665 A.2d 908 (1995). It is the third element that is in dispute here.

"Ordinarily, guilty knowledge can be established only through an inference from other proved facts and circumstances. The inference may be drawn if the circumstances are such that a reasonable man of honest intentions, in the situation of the defendant, would have concluded that the property was stolen.... State v. Hobson, 8 Conn.App. 13, 25, 511 A.2d 348, cert. denied, 201 Conn. 808, 515 A.2d 379 (1986), cert. denied, 480 U.S. 917, 107 S.Ct. 1370, 94 L.Ed.2d 686 (1987)." (Internal quotation marks omitted.) State v. Rivera, supra, 39 Conn App. at 104, 664 A.2d 306. "Additionally, we note that possession of recently stolen property 'raises a permissible inference of criminal connection with the property, and if no explanation is forthcoming, the inference of criminal connection may be as a principal in the theft, or as a receiver under the receiving statute, depending upon the other facts and circumstances which may be proven.' " State v. Hobson, supra, 8 Conn.App. at 25-26, 511 A.2d 348, quoting State v. Palkimas, 153 Conn. 555, 559, 219 A.2d 220 (1966).

The defendant asserts that there was insufficient evidence that the defendant knew or believed that the vehicle was stolen because the windows, steering column and ignition were intact and because the original license plate was on the car. Our review of the evidence, however, undertaken in a light most favorable to sustaining the verdict, reveals sufficient evidence that the defendant knew or reasonably believed that the vehicle had probably been stolen. The theft occurred on September 7, 1993, and Harrison testified that the defendant first came into possession of the car a short time thereafter. He drove the car every day until he was arrested. In addition, the jury could have inferred consciousness of guilt from the defendant's inconsistent explanations. He first told Harrison that he borrowed the car from a friend whose wife sold Avon products and that he was to keep the car for a period of only two weeks. He then told the police that he had leased the vehicle from Mike C. in exchange for a quantity...