State v. Golding

Citation213 Conn. 233,567 A.2d 823
Decision Date19 December 1989
Docket NumberNo. 13508,13508
PartiesSTATE of Connecticut v. Monica GOLDING.
CourtSupreme Court of Connecticut

Joseph G. Bruckmann, Asst. Public Defender, with whom, on the brief, was Michael Lefebvre, Law Student Intern, for appellant (defendant).

Steven M. Sellers, Asst. State's Atty., and Mary H. Lesser, Deputy Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Alan Reisner, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and ARTHUR H. HEALEY, CALLAHAN, GLASS,

COVELLO, HULL and SANTANIELLO, JJ.

CALLAHAN, Associate Justice.

The defendant was charged in a four count information with larceny in the second degree in violation of General Statutes § 53a-123(a)(4), 1 conspiracy to commit larceny in the second degree in violation of General Statutes §§ 53a-123 and 53a-48, general assistance fraud in violation of General Statutes § 17-282, 2 and conspiracy to commit general assistance fraud in violation of General Statutes §§ 17-282 and 53a-48. At the close of the state's case the trial court dismissed both counts of conspiracy. The defendant was thereafter convicted by a jury of larceny in the second degree and of general assistance fraud. The trial court sentenced the defendant to concurrent suspended sentences on both counts, placed her on probation on both counts and ordered as conditions of probation that the defendant make restitution of the sum of $877.90 and perform two hundred hours of community service.

The defendant, thereafter, appealed on several grounds to the Appellate Court; that court upheld the trial court's judgment. State v. Golding, 14 Conn.App. 272, 541 A.2d 509 (1988). The defendant then requested certification to this court. We granted certification 3 limited to the questions of whether the Appellate Court had erred in refusing to reverse the defendant's conviction of general assistance fraud because of the lack of an instruction by the trial court concerning the amount involved in the fraud and whether the Appellate Court had erred by refusing to review the defendant's claim that under the federal and state constitutions the amount involved in the fraud was an essential element of the offense and was therefore required to be charged by the trial court. 4 The claim of the lack of a jury instruction regarding the amount of the fraud was not raised at trial. The defendant therefore sought review in the Appellate Court and seeks review in this court under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). 5

We initially heard arguments in this case in May, 1989. Thereafter, sua sponte, we requested further briefing and argument as to whether we should revise the standards set out in State v. Evans, supra, for appellate review of constitutional claims not distinctly raised at trial. We now reverse the Appellate Court on the merits and in this opinion adhere to Evans.

I

Prior to July 1, 1984, the maximum penalty for general assistance fraud was a fine of $1000, imprisonment for one year, or both. General Statutes (Rev. to 1983) § 17-282. The penalty in the statute bore no relation to the amount fraudulently obtained. Effective July 1, 1984, however, the statute was amended by No. 84-471 of the 1984 Public Acts, to subject a person convicted of general assistance fraud to the penalties for larceny under General Statutes §§ 53a-122 through 53a-125b. Those statutes grade the degree of the crime and the consequent severity of the penalties according to the amount obtained as a result of the defendant's illegal conduct. Those grades range from larceny in the first degree, a class B felony carrying a maximum possible penalty of twenty years imprisonment and a $10,000 fine, to larceny in the sixth degree, a class C misdemeanor carrying a maximum possible penalty of three months imprisonment and a fine of $250. 6

The trial court in its charge, however, failed to inform the jury that it must find proven, beyond a reasonable doubt, the amount the defendant obtained by fraud. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). The trial court further did not request the jury to make a specific finding as to that amount. Under the circumstances revealed by the evidence, however, the jury could have determined that the defendant obtained varied amounts depending upon the conduct of the defendant the jury found proven to have been fraudulent. The first question to be addressed, therefore, is whether the amount obtained by the defendant is an essential element of the crime of general assistance fraud. 7

The overwhelming weight of authority is that the value of property stolen or obtained by fraud is an essential element of the crime when the value is used to differentiate between a felony and a misdemeanor or to determine the severity of the offense and the consequent punishment for a convicted offender. State v. Scielzo, 190 Conn. 191, 199-200, 460 A.2d 951 (1983); State v. Baker, 182 Conn. 52, 62, 437 A.2d 843 (1980); Negron v. State, 306 So.2d 104, 108 (Fla.1974); People v. Stark, 59 Ill.App.3d 676, 681-82, 16 Ill.Dec. 719, 375 N.E.2d 826 (1978); State v. Dilworth, 358 So.2d 1254, 1256 (La.1978); State in Interest of Batiste, 359 So.2d 1077, 1078 (La.App.1978); People v. Johnson, 133 Mich.App. 150, 153, 348 N.W.2d 716 (1984); People v. Fuzi, 46 Mich.App. 204, 209, 208 N.W.2d 47 (1973); Sanders v. State, 664 S.W.2d 705, 709 (Tex.Crim.App.1982); Standley v. State, 517 S.W.2d 538, 541 (Tex.Crim.App.1975); 50 Am.Jur.2d, Larceny § 159. We conclude therefore that under the present statutory scheme embodied in § 17-282 for determining the degree of the offense and the severity of the permissible punishment the amount obtained by general assistance fraud is an essential element of that crime. Because the amount the defendant obtained by fraud is an essential element of the crime under the applicable statutory scheme, the trial court was obligated to instruct the jury concerning it. State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988); State v. Harman, 198 Conn. 124, 133-34, 502 A.2d 381 (1985); State v. Mason, 186 Conn. 574, 585, 442 A.2d 1335 (1982); State v. Sumner, 178 Conn. 163, 170, 422 A.2d 299 (1979). Failure to do so was constitutional error; State v. Williamson, supra; and requires reversal because the jury reached its decision without any instruction on, or consideration of, an essential element of the crime charged. Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 1038, 89 L.Ed. 1495 (1945); State v. Harman, supra, 198 Conn. at 134, 502 A.2d 381; State v. Kurvin, 186 Conn. 555, 561, 442 A.2d 1327 (1982); State v. Sunday, 187 Mont. 292, 299-300, 609 P.2d 1188 (1980).

II

Further, the Appellate Court erred by refusing to review the defendant's claim since she proffered a constitutional claim and the record was clearly adequate to review that claim. State v. Hill, 201 Conn. 505, 512-13, 523 A.2d 1252 (1986); State v. Kurvin, supra, 186 Conn. at 558, 442 A.2d 1327. We have for many years held that claims not raised in the trial court "can and will be considered" on appeal in two "exceptional circumstances." State v. Evans, supra, 165 Conn. at 70, 327 A.2d 576. One of those circumstances "may arise where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial." 8 (Emphasis added.) Id.

The state urges us to revise the Evans standard of review for errors not preserved at trial because the words used by the standard though easily said lend themselves to inconsistent application. We have reviewed our own cases and those of the Appellate Court, and we agree with the state that they demonstrate disparate approaches to the Evans criteria. Upon reflection, we have decided neither to adopt a pure plain error standard for alleged constitutional violations, nor to attempt to reconcile past Evans decisions. Instead, we articulate guidelines designed to facilitate a less burdensome, more uniform application of the present Evans standard in future cases involving alleged constitutional violations that are raised for the first time on appeal.

Relying on the methodology of State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980), we hold that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; 9 (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail. The appellate tribunal is free, therefore, to respond to the defendant's claim by focusing on whichever condition is most relevant in the particular circumstances.

The defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant's claim. State v. Anderson, 209 Conn. 622, 632-33, 553 A.2d 589 (1989); State v. Wilson, 199 Conn. 417, 438, 513 A.2d 620 (1986); State v. Thompson, 197 Conn. 67, 76 n. 7, 495 A.2d 1054 (1985); State v. Tyler-Barcomb, 197 Conn. 666, 675-76, 500 A.2d 1324 (1985), cert. denied, 475 U.S. 1109, 106 S.Ct. 1518, 89 L.Ed.2d 916 (1986); State v. Conroy, 194 Conn. 623, 627 n. 5, 484 A.2d 448 (1984); State v. Baker, supra, 182 Conn. at 56-57, 437 A.2d 843; State v....

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