State v. Lavigne, No. 29098.

• Decision Date: 18 May 2010
• Docket Number: No. 29098.
• Citation: 995 A.2d 94,121 Conn.App. 190
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Kathleen Pamela LAVIGNE.

995 A.2d 94

121 Conn.App. 190

STATE of Connecticut v. Kathleen Pamela LAVIGNE.

No. 29098.

Appellate Court of Connecticut.

Argued December 7, 2009.

Decided May 18, 2010.

COPYRIGHT MATERIAL OMITTED

Ruth Daniella Weissman, special public defender, for the appellant (defendant).

Melissa L. Streeto, assistant state's attorney, with whom, on the brief, were Kevin T. Kane, chief state's attorney, and Brenda Hans, assistant state's attorney, for the appellee (state).

DiPENTIMA, HARPER and LAVINE, Js.^*

DiPENTIMA, J.

The defendant, Kathleen Pamela Lavigne, appeals from the judgment of conviction, rendered after a jury trial, of larceny in the second degree by embezzlement from a person who is sixty years of age or older in violation of General Statutes § 53a-123(a)(5). On appeal, the defendant claims that (1) the evidence was insufficient for conviction, (2) the court's instructions to the jury were improper and (3) § 53a-123(a)(5) is unconstitutionally vague as applied to the circumstances of this case.¹ We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In February, 2002, the defendant went to Nashua, New Hampshire, to visit the home of the victim, her aunt, Cleopatra Matlis. Matlis, who was then eighty-seven years old, was born in New Hampshire and had lived there until 2002. On or about February 19, 2002, Matlis left New Hampshire and traveled with the defendant to Connecticut. On that same date, before departing from New Hampshire, the defendant and Matlis visited two banks in Nashua. At the first bank, the defendant removed stock certificates from a safe deposit box. At the second bank, Fleet Bank, Matlis withdrew $10,000 in cash. Once in Connecticut, the defendant and Matlis visited other banks and created accounts that named them as joint account holders. These accounts were opened with money obtained from accounts that were previously in the name of Matlis alone, as well as the proceeds from the sale of stocks that had been in Matlis' name. Two months later, on April 15, 2002, using Matlis' money for the down payment, the defendant purchased a house in Ellington. The defendant and Matlis lived together in this new house. The state alleged that over the next several months, Matlis' spending habits changed dramatically. Prior to that, between February 27 and March 4, 2002, Matlis cashed stock certificates that she had inherited from her father, totaling $134,063.49. On August 2, 2002, the defendant executed a listing agreement with a realtor for the sale of Matlis' home in Nashua.

On October 4, 2002, Matlis was diagnosed with primary degenerative dementia. On October 10, 2002, the Ellington Probate Court found that she was incapable of managing her affairs because of her dementia and that irreparable injury to her financial and legal affairs would result if a temporary conservator was not appointed. The Probate Court appointed attorney Steven Allen as the temporary conservator of her estate. On November 7, 2002, Allen accepted his appointment as permanent conservator of the estate and person of Matlis. Between October 10 and 22, 2002, the defendant withdrew approximately $3307 from two checking accounts jointly held by Matlis and the defendant at Savings Bank of Manchester. Matlis died on November 18, 2002.

On January 25, 2007, the state filed an amended information charging the defendant with five counts of larceny in the first degree in violation of General Statutes § 53a-122(a)(2) and five counts of larceny in the second degree in violation of § 53a-123(a)(2) and (5). A jury trial began on February 13, 2007, and on March 27, 2007, the defendant was found guilty of one count of larceny in the second degree in violation of § 53a-123(a)(5).² The court declared a mistrial as to the nine remaining counts. On May 30, 2007, the defendant was sentenced to five years imprisonment, execution suspended after six months, and five years probation. She also was required to pay $3307 restitution to the estate of Matlis as a condition of probation. This appeal followed.

I

First, the defendant claims that the evidence was insufficient to support her conviction under § 53a-123(a)(5).³ More specifically, the defendant argues that the evidence was insufficient to prove that (1) an October 10, 2002 withdrawal took place, (2) the defendant was or should have been aware that the accounts had been put under the control of the Probate Court, or that she did not dispense those funds for Matlis' benefit and (3) the defendant did not remove the money intending to use it for the care of Matlis. We disagree.

"A claim of insufficient evidence implicates the constitutional right not to be convicted on inadequate proof.... We review this claim first as it may be dispositive of the appeal ... because a defendant convicted on insufficient evidence cannot be retried without violating the double jeopardy clause." (Citations omitted; internal quotation marks omitted.) State v. Sitaras, 106 Conn.App. 493, 498-99, 942 A.2d 1071, cert. denied, 287 Conn. 906, 950 A.2d 1283 (2008).

"The standard of review employed in a sufficiency of the evidence claim is well settled. We apply a two part 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." (Internal quotation marks omitted.) State v. Atkins, 118 Conn.App. 520, 526, 984 A.2d 1088 (2009), cert. denied, 295 Conn. 906, 989 A.2d 119 (2010).

Furthermore, our Supreme Court has stated that "it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.... In evaluating evidence, the finder of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence.... The finder of fact may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical....

"As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt ... nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the finder of fact, would have resulted in an acquittal.... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the finder of fact's verdict of guilty." (Internal quotation marks omitted.) State v. Calabrese, 279 Conn. 393, 402-403, 902 A.2d 1044 (2006).

"We are mindful that the trier of fact is the arbiter of credibility." State v. Wilson, 118 Conn.App. 556, 562, 984 A.2d 114 (2009). When presented with a challenge to the sufficiency of the evidence, we note that "in considering the evidence introduced in a case, triers of fact are not required to leave common sense at the courtroom door ... nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct." (Internal quotation marks omitted.) State v. Fauntleroy, 101 Conn.App. 144, 153, 921 A.2d 622(2007).

Section 53a-123(a) provides in relevant part: "A person is guilty of larceny in the second degree when he commits larceny, as defined in section 53a-119, and ... (5) the property, regardless of its nature or value, is obtained by embezzlement, false pretenses or false promise and the victim of such larceny is sixty years of age or older...." General Statutes § 53a-119 provides in relevant part: "A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to: (1) Embezzlement. A person commits embezzlement when he wrongfully appropriates to himself or to another property of another in his care or custody." We will address each of the claims regarding insufficient evidence in turn.

A

The defendant first asserts that "no proof was offered" as to the October 10, 2002 withdrawal. The defendant argues that two of the state's exhibits, specifically eighty-three and eighty-four, were insufficient to prove this fact and that because of this insufficiency, her conviction cannot stand. This claim warrants little discussion.

The defendant's argument on this issue is limited to a single sentence: "Exhibits eighty-three and eighty-four fail to show that count ten's allegation about a $1000 starter check on October 10, 2002 ever took place."⁴ The state asserts that the defendant's argument is misplaced because the state's case did not rest on an October 10, 2002 withdrawal and because its burden of proving count ten was satisfied by exhibit ninety-two. We agree. State's exhibit ninety-two consists of bank records from two accounts held jointly by the defendant and Matlis at Savings Bank of Manchester showing: (1) a mortgage check for $1184.26 dated October 15, 2002, (2) a $600 cash withdrawal on October 17, 2002, (3) a check made out to "cash" for $1122.94 dated October 22, 2002, and (4) a check made out to "cash" for $445.85 dated October 22, 2002. Therefore, exhibit ninety-two is sufficient to show withdrawals in the amount that the defendant was charged with embezzling in count ten, that is, approximately $3307 between the dates October 10 and 22, 2002.

B

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