State v. Lavigne

Citation57 A.3d 332,307 Conn. 592
Decision Date25 December 2012
Docket NumberNo. 18675.,18675.
CourtSupreme Court of Connecticut
PartiesSTATE of Connecticut v. Kathleen Pamela LAVIGNE.

OPINION TEXT STARTS HERE

Martin Zeldis, public defender, for the appellant (defendant).

Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Brenda Hans, assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH and VERTEFEUILLE, Js.

ROGERS, C.J.

This appeal raises the question of whether a party who is named as a joint holder of a bank account necessarily is a joint owner of the funds deposited in that account and, therefore, may not be criminally prosecuted for the wrongful withdrawal of those funds. The defendant, Kathleen Pamela Lavigne, appeals 1 from the judgment of the Appellate Court upholding her conviction, 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).2State v. Lavigne, 121 Conn.App. 190, 192, 995 A.2d 94 (2010). The defendant claims that the Appellate Court improperly concluded that the trial court correctly instructed the jury that the ownership of funds in a jointly held account is a factual issue for the jury to resolve. According to the defendant, the trial court's instruction was improper because a joint holder of an account, as a matter of law, jointly owns the funds in the account and, consequently, cannot be charged with stealing those funds. We disagree and affirm the judgment of the Appellate Court.

The Appellate Court opinion recites the following relevant facts, which the jury reasonably could have found, and procedural history. “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 [from her previous style, which had been very frugal]. 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 [the] 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). 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.” Id. at 193–94, 995 A.2d 94. The defendant's appeal to the Appellate Court followed.

In the Appellate Court, the defendant claimed, inter alia, that she could not be held criminally liable under § 53a–123 (a)(5) because she was a joint holder, along with Matlis, of the bank account from which she was accused of making illegal withdrawals. Id. at 200, 995 A.2d 94. She argued specifically that the trial court improperly had instructed the jurors to the contrary, namely, that it was their duty to determine who owned the funds that were held jointly by the defendant and Matlis. Id. The Appellate Court rejected the defendant's claim, reasoning that General Statutes § 36a–290, 3 a provision of Connecticut'sbanking statutes that governs joint deposit and share accounts, was not dispositive of the question of ownership. Id. at 203–204, 995 A.2d 94. Because the Appellate Court was unaware of any Connecticut case law governing legal rights to funds as between joint holders, it concluded that the trial court properly had instructed the jurors that the issue of ownership rights was a factual one for the jurors to resolve. Id. at 204, 995 A.2d 94. This appeal followed.

The defendant claims that the Appellate Court improperly upheld the trial court's jury instructions because, as a joint holder of the accounts in question, she cannot, as a matter of law, be found criminally liable for withdrawing funds from those accounts. She contends that the trial court misinterpreted § 36a–290 when it concluded that the statute was not dispositive as to the ownership of funds in a jointly held account. According to the defendant, the “clear effect of [§ 36a–290] is to establish equal ownership rights in all the joint account holders during their lifetime and beyond.” Consequently, the defendant claims, she wrongfully “has been convicted of a felony for taking her own money.” The state contends, to the contrary,that the trial court properly instructed the jury that the ownership rights in the jointly held accounts presented issues of fact for the jury's determination. We agree with the state.4

Because the defendant did not preserve this issue in the trial court by raising an objection to the relevant jury instructions, she seeks to prevail pursuant to the doctrine of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).5 A defendant can prevail on an unpreserved constitutional claim under Golding “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (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.” (Emphasis in original.) Id. at 239–40, 567 A.2d 823. “The first two [prongs of Golding ] involve a determination of whether the claim is reviewable; the second two ... involve a determination of whether the defendant may prevail.” State v. George B., 258 Conn. 779, 784, 785 A.2d 573 (2001). We agree with the Appellate Court that the record is adequate to review the defendant'sclaim and that the claim, which alleges an improper instruction on an element of an offense, is of constitutional magnitude. See State v. DeJesus, 260 Conn. 466, 472–73, 797 A.2d 1101 (2002). We conclude, however, that the Appellate Court properly determined that the alleged constitutional violation did not clearly exist or deprive the defendant of a fair trial.

We review the defendant's claim of instructional impropriety pursuant to the following standard of review. “The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.... Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict ... and not critically dissected in a microscopic search for possible error.... Accordingly, [i]n reviewing a constitutional challenge to the trial court's instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury.... In other words, we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury.” (Internal quotation marks omitted.) State v. Apodaca, 303 Conn. 378, 390–91, 33 A.3d 224 (2012).

The defendant was convicted of one count of larceny in the second degree. Pursuant to statute, [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. (Emphasis added.) General Statutes § 53a–119; see also State v. Calonico, 256 Conn. 135, 153, 770 A.2d 454 (2001) ([t]he elements of larceny include: [1] the wrongful taking or carrying away of the personal property of another; [2] the existence of a felonious intent in the...

To continue reading

Request your trial
47 cases
  • State v. Vandeusen
    • United States
    • Connecticut Court of Appeals
    • 3 Noviembre 2015
    ...("[triers of fact] are not required to leave common sense at the courtroom door" [internal quotation marks omitted]), aff'd, 307 Conn. 592, 57 A.3d 332 (2012); see also State v. Booth, 250 Conn. 611, 656-57, 737 A.2d 404 (1999) (unarmed defendant's knowledge that codefendants were armed est......
  • State v. East, AC 34715
    • United States
    • Connecticut Court of Appeals
    • 20 Enero 2015
    ...correct in law, adapted to the issues and ample for the guidance of the jury." (Internal quotation marks omitted.) State v. Lavigne, 307 Conn. 592, 599-600, 57 A.3d 332 (2012); see State v. Kaddah, 250 Conn. 563, 579, 736 A.2d 902 (1999). In the present case, the court properly instructed t......
  • State v. Silva
    • United States
    • Connecticut Supreme Court
    • 15 Julio 2021
    ..., supra, 328 Conn. at 444, 180 A.3d 882, on which the court had based its change to that instruction. See State v. Lavigne , 307 Conn. 592, 597 n.4, 57 A.3d 332 (2012) (concluding that defendant did not implicitly waive instructional error claim in lengthy and complex trial when defense cou......
  • In re Yasiel R.
    • United States
    • Connecticut Supreme Court
    • 18 Agosto 2015
    ...whether the claim is reviewable; the second two ... involve a determination of whether the defendant may prevail.... State v. Lavigne, 307 Conn. 592, 599, 57 A.3d 332 (2012).” (Internal quotation marks omitted.) In re Yasiel R., supra, 151 Conn.App. at 721 n. 7, 94 A.3d 1278.7 Section 1 of ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT