State v. Miller

• Decision Date: 16 June 1994
• Docket Number: No. 11094,11094
• Citation: State v. Miller, 641 A.2d 400, 34 Conn.App. 250 (Conn. App. 1994)
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Paul F. MILLER.

Page 400

641 A.2d 400

34 Conn.App. 250

STATE of Connecticut v.Paul F. MILLER.

No. 11094.

Appellate Court of Connecticut.

Argued Dec. 8, 1993.

Decided May 3, 1994.

Certification Denied June 16, 1994.

Richard T. Meehan, Jr., with whom, on the brief, was Richard T. Meehan, Sr., Bridgeport, for appellant(defendant).

John A. East, III, DeputyAsst. State's Atty., with whom, on the brief, were John M. Bailey, Chief State's Atty., and Robert M. Brennan, Asst. State's Atty., for appellee(state).

Before DUPONT, C.J., and EDWARD Y. O'CONNELL and LANDAU, JJ.

EDWARD Y. O'CONNELL, Judge.

The defendant appeals from his conviction, after a jury trial, of larceny in the second degree in violation of General Statutes §§ 53a-119¹and53a-123(a)(2), ² and engaging in the real estate business without a license in violation of General Statutes § 20-325(a).³On appeal, the defendant claims that the trial court improperly (1) concluded that there was sufficient evidence to sustain both convictions, (2) instructed the jury on his failure to testify, (3) failed to instruct the jury on the elements of obtaining property by false promise, and (4) instructed the jury on fraud.We reverse the judgment of the trial court.

The jury reasonably could have found the following facts.The defendant represented to potential home buyers that he was a licensed real estate broker.He also represented that he owned several properties he could rent or sell to them at low cost.In fact, he was neither licensed to engage in the real estate business nor the owner of the several properties in question.As a result of these misrepresentations, the defendant wrongfully received moneys from three separate potential buyers for one or more of the following: rent, mortgage application fees or down payments.At trial, the defendant exercised his constitutional right not to testify on his own behalf.⁴

The defendant first claims that the evidence was insufficient to support his second degree larceny conviction because the state failed to prove (1) that he acted with the requisite felonious intent and (2) that the aggregate value of the property fraudulently obtained exceeded the $5000 statutory minimum for second degree larceny.We do not agree.

"Our standard of review for challenges to the sufficiency of evidence is well settled.We first construe the evidence presented at trial in a light most favorable to sustaining the verdict, and then determine whether the jury could reasonably have found upon the facts established and the inferences reasonably drawn therefrom, that a cumulative effect of the evidence established guilt beyond a reasonable doubt...."(Citations omitted; internal quotation marks omitted.)State v. Conley, 31 Conn.App. 548, 559, 627 A.2d 436(1993).

The jury heard evidence that the defendant placed in the Bridgeport Post an advertisement that read, "House for Sale, No Money Down."Subsequently, the defendant met individually with three potential buyers and made offers to each of them to rent, rent with an option to buy, or sell properties in the Bridgeport area.During those meetings, the defendant falsely represented that he was either a real estate broker, real estate agent ⁵ or mortgage broker.The evidence also demonstrated that the defendant did not possess any legal interest in the properties he attempted to rent or sell and never obtained permission from the rightful owners to negotiate their transfers.⁶Despite this, the defendant entered the premises, showed the properties to the potential buyers and, in one case, made renovations to the property.He then negotiated various contracts with the three buyers, including a rental agreement and purchase contracts.On the basis of these negotiations, the defendant received checks representing rent, mortgage application fees or down payments.

"The jury was entitled to apply its own knowledge and experience of human nature to this evidence";State v. Sinclair, 197 Conn. 574, 578, 500 A.2d 539(1985); and to infer therefrom that the defendant intended wrongfully to retain the victims' money.Thus, our review discloses sufficient evidence from which the jury reasonably could have found that the defendant intended to commit larceny."[I]t 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."Id., at 576, 500 A.2d 539."The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused's state of mind is rarely available."(Internal quotation marks omitted.)State v. Baldwin, 224 Conn. 347, 368, 618 A.2d 513(1993).

The defendant also claims that the value of the money he received did not meet the $5000 statutory minimum necessary to convict him of larceny in the second degree.The state's information charged the defendant with wrongfully taking $5100 in three separate incidents.Under General Statutes § 53a-121(b), "[a]mounts included in thefts committed pursuant to one scheme or course of conduct, whether from the same person or several persons, may be aggregated in determining the grade of the offense."In recognition of this, the trial court properly instructed the jury that its guilty verdict must be based on a finding that the defendant wrongfully deprived each of the victims of the money he obtained from them and that the total of all the money wrongfully obtained exceeded $5000.

The record discloses that the state presented evidence showing that the defendant wrongfully deprived each victim of money, and that the total of all the money taken exceeded $5000.Although the defendant attempted to prove an offset of certain money, the jury was free to disbelieve this evidence.Accordingly, we hold, on the basis of the evidence and the reasonable and logical inferences drawn therefrom, that the cumulative effect of the evidence was more than sufficient to support the jury's conclusion that the defendant was guilty beyond a reasonable doubt of larceny in the second degree.

The defendant also claims that the evidence introduced at trial was insufficient to support his conviction of engaging in the real estate business without a license.Specifically, he claims that the state did not prove he was acting for another person as required by General Statutes § 20-311(3).We do not agree.

This claim requires little discussion.General Statutes § 20-311(3) defines engaging in the business of real estate as "acting for another and for a fee, commission or other valuable consideration in the listing for sale, selling, exchanging, buying or renting, or offering or attempting to negotiate a sale, exchange, purchase or rental of, an estate or interest in real estate...."(Emphasis added.)The evidence demonstrated that the defendant represented to at least one of the victims that he was a licensed real estate broker.That the defendant was not a licensed real estate broker is not disputed.The evidence further demonstrated that all the victims made out checks to either "Paul Miller Co., Inc." or "Future Investment Bankers."The jury reasonably could have concluded from this evidence that the defendant was representing himself as working for a corporate entity, which in the eyes of the law, is a person.Burns v. Gould, 172 Conn. 210, 216, 374 A.2d 193(1977).Accordingly, we hold that the evidence presented at trial was sufficient for the jury to find beyond a reasonable doubt that the defendant was guilty of engaging in the business of real estate without a license.

In his third claim, the defendant contends that the trial court improperly instructed the jury that no adverse inferences could be drawn from his failure to testify.We agree and remand the case for a new trial.

General Statutes § 54-84(b) requires a trial court to instruct the jury, in the absence of a request to the contrary, "that they may draw no unfavorable inferences from the accused's failure to testify."⁷In this case, the trial court instructed ⁸ the jury as follows: "Now, as you know, in this casethe defendant did not testify.The law does not compel a defendant to take the witness stand and testify and no presumption of innocence may be raised, and no unfavorable inference may be drawn from that fact that a defendant decides not to testify.A defendant is not required to establish his innocence.He need not produce any evidence, whatsoever, if he does not choose to do so."(Emphasis added.)

"In our analysis of the defendant's claim, we must determine whether the instruction was erroneous and, if so, whether the error was harmless."State v. Mebane, 19 Conn.App. 618, 623, 563 A.2d 1026, cert. denied, 212 Conn. 817, 565 A.2d 538(1989).We begin our analysis with a look at the purpose underlying § 54-84(b).Under our state and federal constitutions, a defendant is not entitled to an instruction that no adverse inferences may be drawn from his or her failure to testify unless such an instruction is requested.SeeCarter v. Kentucky, 450 U.S. 288, 305, 101 S.Ct. 1112, 67 L.Ed.2d 241(1981);State v. Branham, 171 Conn. 12, 16, 368 A.2d 63(1976).In 1977, however, our legislature enacted General Statutes § 54-84(b), which "implement[ed] constitutional rights in a manner that is more stringent than the constitution itself provides."State v. Sinclair, supra, 197 Conn. at 585, 500 A.2d 539.This is so because "[w]hile the constitutional right to a 'no adverse inference' charge depends upon the defendant's request of such a charge, the statutory right is conferred upon the defendant unconditionally, in the absence of his request that the charge not be given."Id.

The legislature's enactment of § 54-84(b) represents a powerful mechanism a trial court must utilize as a way of protecting a defendant's constitutional privilege to remain silent in the face of criminal prosecution.State v. Tatem, 194 Conn. 594, 599, 483 A.2d 1087(1984);State v. Suplicki, 33 Conn.App 126, 130...