State v. Lizzi
| Decision Date | 22 April 1986 |
| Docket Number | No. 11700,11700 |
| Citation | 199 Conn. 462,508 A.2d 16 |
| Parties | STATE of Connecticut v. Damon D. LIZZI. |
| Court | Connecticut Supreme Court |
Robert E. Silver, Newton Center, Mass., pro hac vice, with whom was Joshua R. Kricker, Waterbury, for appellant (defendant).
Arthur G. Aaron, Sp. Asst. State's Atty., with whom were Carl Schuman, Asst. State's Atty., and, on the brief, Warren A. Gower and David Sullivan, Asst. State's Attys., for appellee (State).
Before PETERS, C.J., and ARTHUR H. HEALEY, DANNEHY, MENT and SAMUEL S. FREEDMAN, JJ.
The defendant, Damon D. Lizzi, was charged with embezzlement, in violation of General Statutes §§ 53a-119(1), 53a-121(b) and 53a-123. After trial by jury, the defendant was found guilty and sentenced to a term of one year with execution suspended after ninety days. On appeal the defendant contends that the trial court erred: (1) in denying his motion for judgment of acquittal at the close of the state's case; (2) in admitting evidence tending to show the defendant's commission of other crimes; (3) in failing to recharge the jury in accordance with the defendant's request; and (4) in overruling the defendant's objection to allegedly improper remarks by the prosecutor during closing argument. The defendant also claims that he was denied effective assistance of counsel at trial. The record discloses no error.
We first address the defendant's claim that the trial court erred in denying his motion for judgment of acquittal filed at the close of the state's case-in-chief. After the motion was denied, the defendant proceeded to present evidence in his defense, and, at the close of all the evidence again moved for judgment of acquittal. He moved for acquittal a third time after the jury had returned a verdict of guilty. On appeal, the defendant claims error only in the denial of the motion for judgment of acquittal after the close of the state's case-in-chief.
Under our waiver rule, a defendant may not appeal the denial of a motion for judgment of acquittal brought at the close of the state's case-in-chief when he elects thereafter to introduce evidence in his own behalf. The reason for this rule is that the defendant, by presenting his own witnesses, may fill gaps, if any, in the evidence left by the state at the conclusion of its case-in-chief. We have recently questioned the constitutional validity of the waiver rule. State v. Rutan, 194 Conn. 438, 440-44, 479 A.2d 1209 (1984); State v. Duhan, 194 Conn. 347, 351-52, 481 A.2d 48 (1984). In the present case, however, we need not decide whether the denial of a motion for judgment of acquittal at the close of the state's case-in-chief is assignable as error, because we find that the evidence was sufficient at that juncture. Our review of the evidence at the close of the state's case-in-chief is limited to a determination of whether the jury State v. Rutan, supra, 444, 479 A.2d 1209.
The jury could reasonably have found the following facts. The defendant was the administrator of a nursing home in Old Saybrook. In that capacity he received monthly benefit checks under the federal social security program on behalf of the elderly patients under his care. Although the defendant was legally entitled to charge the proceeds of each check directly against the operating expenses of the nursing home, he was required to reserve a twenty-five dollar monthly allowance from each check for the personal use of the elderly recipients. Accordingly, the defendant opened a separate account, known as the patients' personal funds account, with the Essex branch of the Connecticut National Bank, against which the defendant was the only authorized drawer.
Robert Brousseau, an accountant for the state, audited the books of the nursing home. Brousseau testified that, according to the defendant's records, there was a deficit in the patients' personal funds account for the entire period between September 30, 1975, and September 30, 1978. It was undisputed at trial that between August 24, 1976, and July 19, 1978, the defendant drew four checks against the personal funds account in the total amount of $1546.55, which he used to pay for shoes purchased by him and his family on a credit account with a local shoe store. Since the personal funds account was in deficit at all times during the period of these purchases, due to undertransfers of monies as reflected on the defendant's own books, the jury could reasonably have concluded that the four checks were drawn from funds belonging exclusively to the patients of the nursing home.
The state also offered several witnesses who testified to a fraudulent intent on the part of the defendant. The defendant, in order to balance the individual equities in the patients' personal funds account, maintained a system of patient ledger cards which served as passbooks against the account. With each monthly transfer on behalf of a patient to the personal funds account, the defendant would enter a twenty-five dollar debit on the patient's ledger card, representing an increase in that amount of the patient's share of the account. Conversely, whenever the defendant made a personal expenditure on behalf of a patient, he would enter a corresponding credit for that amount on the patient's ledger card. Deborah Mackenzie, the defendant's former wife, testified that the defendant importuned her to falsify patient ledger cards by entering fictitious expenditures on behalf of patients. The defendant admitted to Mackenzie that he knew that this was wrong, but complained that the state was not paying enough money to cover the operating costs of the nursing home. By state regulation, a patient was allowed to accumulate no more than $250 in personal funds. Any money in excess of $250 reverted automatically to the state of Connecticut. The defendant told Mackenzie that if the patients did not spend their money, he would keep it for the nursing home. Three former bookkeepers employed at the nursing home also testified to false and irregular charges posted to patient ledger cards. The defendant concedes in his brief that the testimony of these witnesses, "if believed," was sufficient to sustain a jury finding that he engaged in a scheme to defraud nursing home patients.
General Statutes § 53a-119(1) provides that "[a] person commits embezzlement when he wrongfully appropriates to himself ... property of another in his care or custody." The defendant contends that the state failed to sustain its burden that the defendant appropriated property "of another" because it was unable to show that the funds contained in the patients' personal funds account, together with petty cash on hand at the nursing home, were insufficient to satisfy the obligations to the patients as reflected on their individual ledger cards. We disagree. The crime of embezzlement is consummated where, as here, the defendant, by virtue of his agency or other confidential relationship, has been entrusted with the property of another and wrongfully converts it to his own use. State v. Moreno, 156 Conn. 233, 243, 240 A.2d 871 (1968); State v. Harris, 147 Conn. 589, 592, 164 A.2d 399 (1960); State v. Serkau, 128 Conn. 153, 158, 20 A.2d 725 (1941); State v. MacCullough, 115 Conn. 306, 311-12, 161 A. 512 (1932); State v. Henderson, 102 Conn. 658, 660, 129 A. 724 (1925); State v. Griswold, 73 Conn. 95, 98, 46 A. 829 (1900); see also State v. Vars, 154 Conn. 255, 266, 224 A.2d 744 (1966); LaFave & Scott, Criminal Law (1972) § 89; 26 Am.Jur.2d, Embezzlement § 4, p. 552. The state presented sufficient evidence during its case-in-chief to allow the jury reasonably to conclude that the defendant wrongfully appropriated to himself the money under his care which belonged to the patients of the nursing home in order to satisfy his personal obligations. In light of the testimony of the defendant's former wife and his former bookkeepers, a jury might reasonably have concluded that the aggregate charges as reflected on the patients' ledger cards did not accurately state the account balance. Moreover, the testimony of Brousseau was sufficient to establish that there was always a deficit in the patients' personal funds account, due to undertransfers by the defendant, and thus, that any appropriations by the defendant of monies from this account were wrongful as against the patients. The trial court did not err in denying the defendant's motion for judgment of acquittal at the close of the state's case.
The defendant next claims that the trial court erred in allowing the state to introduce evidence tending to show his commission of other crimes. The defendant first refers to the testimony of his former wife. As already stated, Mackenzie testified that the defendant importuned her to falsify patient ledger cards. Over the defendant's objection, the trial court admitted Mackenzie's testimony in order to prove a common scheme and design to defraud. The trial court gave an appropriate limiting instruction to the jury both during trial and in its charge.
Evidence of a defendant's bad character, as shown through his commission of other crimes, is inadmissible to show that the defendant on a particular occasion acted in conformity therewith. Such evidence is admissible, however, to prove knowledge, intent, motive, and common scheme or design, if the trial court determines, in the exercise of judicial discretion, that the probative value of the evidence outweighs its prejudicial tendency. State v. Vessichio, 197...
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State v. Doehrer
... ... That evidence of plan, or common scheme, is relevant to the issue of intent has long been recognized in our cases. State v. Lizzi, 199 Conn. 462, 468-69, 508 A.2d 16 (1986); State v. Hauck, 172 Conn. 140, 144, 374 A.2d 150 (1976); State v. Harris, 147 Conn. 589, 599-600, 164 A.2d 399 (1960); State v. Barnes, 132 Conn. 370, 372-73, 44 A.2d 708 (1945); see 2 Wigmore, Evidence (3d Ed.) § 304. We have recently noted ... ...
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... ... The waiver rule, set out in State v. Rutan, 194 Conn. 438, 440-45, 479 A.2d 1209 (1984), has often been criticized by our Supreme Court. See, e.g., State v. Simino, 200 Conn. 113, 118 n.5, 509 A.2d 1039 (1986) ; State v. Lizzi, 199 Conn. 462, 464-65, 508 A.2d 16 (1986) ; State v. Duhan, 194 Conn. 347, 352, 481 A.2d 48 (1984) ... State v. Roy, 233 Conn. 211, 212-13, 658 A.2d 566 (1995), requires that we review the evidence in toto when there is a claim that the evidence is insufficient to sustain the conviction; ... ...
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State v. Spillane, (AC 17194)
... ... Although Rutan has been criticized, it nevertheless remains the law. See, e.g., State v. Simino, 200 Conn. 113, 118 n.5, 509 A.2d 1039 (1986) ; State v. Lizzi, 199 Conn. 462, 464-65, 508 A.2d 16 (1986) ; State v. Duhan, 194 Conn. 347, 382, 481 A.2d 48 (1984) ; State v. Garrett, 42 Conn. App. 507, 514 n.6, 681 A.2d 362, cert. denied, 239 Conn. 928, 929, 683 A.2d 397 (1996) ... 54 Conn. App. 207 The defendant, however, asks ... ...
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State v. Simino
... ... Duhan, 194 Conn. 347, 352, 481 A.2d 48 (1984); this is not an appropriate case in which to change the waiver rule "because, even if the defendant's claim were properly here, he could not prevail." State v. Rutan, 194 Conn. 438, 444, 479 A.2d 1209 (1984). See State v. Lizzi, 199 Conn. 462, 464-65, 508 A.2d 16 (1986) ... 6 The defendant did not raise this issue below and ordinarily it would not be reviewable on appeal. His claim, however, falls within the second exceptional circumstance of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), because proof beyond a ... ...
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Uncharged - Misconduct Evidence and the Issue of Intent: Limiting the Need for Admissibility
...instance, such evidence may be highly probative of the defendant's state of mind and his intent to defraud. See, e.g., State v. Lizzi, 199 Conn. 462, 469, 508 A.2d 16, 20 (1986) (defendant, as the administrator of a nursing home, bad importuned his former wife to falsify patient ledger card......