State v. Marsan

• Decision Date: 20 August 2019
• Docket Number: AC 40396
• Citation: 192 Conn.App. 49,216 A.3d 818
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Kris MARSAN

192 Conn.App. 49

216 A.3d 818

STATE of Connecticut

v.Kris MARSAN

AC 40396

Appellate Court of Connecticut.

Argued March 11, 2019

Officially released August 20, 2019

James B. Streeto, senior assistant public defender, with whom was Declan J. Murray, former certified legal intern, for the appellant (defendant).

Melissa Patterson, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Richard L. Palumbo, Jr., senior assistant state's attorney, for the appellee (state).

Prescott, Elgo and Bishop, Js.

ELGO, J.

The defendant, Kris Marsan, appeals from the judgment of conviction, rendered after a jury trial, of one count of burglary in the third degree in violation of General Statutes § 53a-103, and one count of larceny in the sixth degree in violation of General Statutes § 53a-125b. On appeal, the defendant claims that (1) the evidence was insufficient to establish that she "unlawfully remained" on the victim's property with respect to burglary in the third degree, and (2) the trial court improperly denied her motion to suppress statements she had made to police officers during an interview in her home without being provided with Miranda¹ warnings. We agree with the defendant's first claim and, therefore, reverse in part the judgment of the trial court.

On the basis of the evidence adduced at trial, the jury reasonably could have found the following facts. The defendant began working as a home aide for the widowed eighty-six year old victim, Eleanor Beliveau, in May, 2014. The defendant was hired to assist the victim with grocery shopping, cleaning, laundry, and various other daily activities. The victim's long-term insurance plan required that she first pay the defendant directly before seeking reimbursement from her insurer by submitting a form detailing the defendant's work. At all relevant times, the victim's son, Ronald Beliveau,² had power of attorney over his mother's affairs and continued to assist with his mother's finances.

In January, 2015, the victim sustained serious injuries from a fall in her home. After her hospitalization, the victim subsequently began her rehabilitation at a facility for the elderly where she would remain until February 13, 2015. As a result, the defendant's work hours were reduced. Nevertheless, she continued to perform tasks at the victim's home and remained in frequent contact with Beliveau. The defendant, however, soon became concerned about the reduction in her hours. At first, she asked Beliveau to submit reimbursement request forms to the victim's provider to frontload her hours so that she could be paid up front. Beliveau declined the offer, believing that to do so would amount to fraud. Frustrated with his answer, the defendant threatened to quit.

From those conversations, Beliveau became suspicious of the defendant's behavior and grew concerned about the valuables that remained in the victim's vacant home. In late January, 2015, his suspicions intensified after he noticed both a discrepancy in the amount of money that the victim kept in an envelope for emergencies and missing jewelry from her dresser. That discovery prompted Beliveau to set up a hidden camera, known as a nanny cam, in the victim's bedroom to capture a dresser containing an envelope with exactly $100 in twenty dollar bills.

On January 30, 2015, the defendant entered the victim's home and notified Beliveau that she intended to perform various chores. Later that same day, Beliveau and the defendant signed the required insurance form to provide to the victim's insurance provider, which reflected that the defendant had worked from 10:00 a.m. to 1:00 p.m. that day. The following day, Beliveau entered the victim's home to check on the envelope of cash and immediately noticed that $40 was missing. Upon reviewing the nanny cam footage, Beliveau observed the defendant rummaging through the victim's dressers and removing cash from both the envelope in question and a tin in a separate dresser drawer. With this evidence in hand, Beliveau filed a complaint with the Fairfield Police Department and provided the police with a copy of the video recording.

On February 2, 2015, Detectives Jason Tackacs and Kevin McKeon visited the defendant's house to discuss Beliveau's complaint and the footage he had provided to them. When the defendant answered the door, the detectives asked whether she would be willing to speak about the complaint they had received. The defendant agreed and invited Tackacs and McKeon into her home. Upon entering, Tackacs, McKeon, and the defendant eventually made their way into her kitchen, where Tackacs played the recording to the defendant on a laptop computer. As Tackacs played the nanny cam footage, the defendant immediately identified herself as the person depicted in the victim's bedroom removing money from the envelope and the tin, providing various explanations for doing so. Initially, the defendant explained that she was taking the money for the victim to use at the rehabilitation facility. After Tackacs dismissed her account, the defendant next claimed that she took the money because she was upset over not receiving a Christmas bonus. The defendant then offered a third explanation, stating that she was upset over her hours being cut as a result of the victim's temporary stay at the rehabilitation facility.

As the conversation progressed, the defendant admitted to taking jewelry from the victim's home, including a pin, a necklace and a bracelet, but claimed to have returned the necklace and bracelet after feeling remorseful. When Tackacs asked whether the pin could be located, the defendant claimed to have sold it to a consignment shop that was owned by a friend. Upon leaving the defendant's house, Tackacs provided her with his contact information.

Sometime after the encounter at her home, the defendant contacted Tackacs by telephone to arrange for the return of $80 that she claimed was the total amount taken from the victim's home and the pin she had recovered from the consignment shop. On February 8, 2015, the defendant arrived at the Fairfield Police Department and met with Tackacs in his office. The defendant turned over a money order in the amount of $80 and the pin she claimed belonged to the victim. Thereafter, Tackacs met with Beliveau to discuss his encounter with the defendant and to ascertain whether the pin could be identified. Beliveau was provided with the $80 money order but was unable to identify the pin as belonging to the victim.

On October 31, 2016, the state charged the defendant with two counts of burglary in the third degree in violation of § 53a-103 and a third count of larceny in the third degree in violation of General Statutes §§ 53a-119 and 53a-124. A jury trial was held on November 7, 8, 9, 10, and 14, 2016. On November 7, 2016, the defendant filed a motion to suppress all statements, admissions and confessions made by her to the police and any evidence of the $80 and the pin she returned to the Fairfield Police Department. Following an evidentiary hearing, the court denied that motion. The jury thereafter found the defendant guilty of one count of burglary in the third degree and the lesser included offense of larceny in the sixth degree. The court sentenced the defendant to a total effective term of five years of incarceration, execution suspended after eighteen months, followed by three years of probation. This appeal followed.

I

The defendant first claims that there was insufficient evidence adduced at trial to support her conviction of burglary in the third degree. Specifically, she argues that she was licensed and privileged to be in the victim's home at the time she committed the crime of larceny and that at no time was the license either explicitly or implicitly revoked. In response, the state argues that there was sufficient evidence for the jury to conclude that the defendant's license to remain in the victim's home was implicitly revoked the moment she committed larceny. We agree with the defendant.

A

Although the defendant characterizes this issue as a claim of insufficient evidence, the critical question is the viability of the legal theory advanced by the state. Therefore, before we can address whether the evidence was sufficient to sustain the defendant's conviction, we must first resolve the legal issue raised by the state regarding the elements of the offense of burglary. Because that issue presents a question of law, our review is plenary. See State v. Hayward , 116 Conn. App. 511, 515, 976 A.2d 791, cert. denied, 293 Conn. 934, 981 A.2d 1077 (2009).

A person is guilty of burglary in the third degree when he or she "enters or remains unlawfully in a building with intent to commit a crime therein."

General Statutes § 53a-103 (a). "A person ‘enters or remains unlawfully’ in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so." General Statutes § 53a-100 (b). "[T]o remain unlawfully means that the initial entering of the building ... was lawful but the presence therein became unlawful because the right, privilege or license to remain was extinguished." (Internal quotation marks omitted.)

State v. Stagnitta , 74 Conn. App. 607, 612, 813 A.2d 1033, cert. denied, 263 Conn. 902, 819 A.2d 838 (2003).

"A license in real property is defined as a personal, revocable, and unassignable privilege, conferred either by writing or parol, to do one or more acts on land without possessing any interest therein.... Generally, a license to enter premises is revocable at any time by the licensor.... It is exercisable only within the scope of the consent given.... The term, privilege, is more general. It is a right or immunity granted as a peculiar benefit, advantage, or favor; special enjoyment of a good or exemption from an evil or burden; a peculiar or personal advantage or right esp. when enjoyed in derogation of common...