State v. Paige

• Decision Date: 21 July 2009
• Docket Number: No. 27986.,27986.
• Citation: 974 A.2d 782,115 Conn.App. 717
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Sheri PAIGE.

974 A.2d 782

115 Conn.App. 717

STATE of Connecticut v. Sheri PAIGE.

No. 27986.

Appellate Court of Connecticut.

Argued February 5, 2009.

Decided July 21, 2009.

Alexander H. Schwartz, Southport, for the appellant (defendant).

Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were Kevin T. Kane, state's attorney, and John H. Malone, senior assistant state's attorney, and Maura K. Coyne, assistant state's attorney, for the appellee (state).

DiPENTIMA, BEACH and ROBINSON, Js.

DiPENTIMA, J.

The defendant, Sheri Paige, appeals from the judgment of conviction, rendered after a jury trial,¹ of perjury in violation of General Statutes § 53a-156(a) (count two), tampering with or fabricating physical evidence in violation of General Statutes § 53a-155(a)(2) (count four), forgery in the second degree in violation of General Statutes § 53a-139(a)(1) (count five), larceny in the second degree in violation of General Statutes §§ 53a-119(2) and 53a-123(a)(5) (count six), larceny in the first degree in violation of General Statutes §§ 53a-119(2), 53a-121(b) and 53a-122(a)(2) (count seven), two counts of larceny in the first degree in violation of §§ 53a-119(1), 53a-121(b) and 53a-122(a)(2) (counts eight and nine), and two counts of larceny in the first degree in violation of §§ 53a-119(1) and 53a-122(a)(2) (counts ten and twelve).² On appeal, the defendant claims that (1) the evidence was insufficient to support the jury's verdict on "many of the charges" against her and (2) the trial court improperly directed the jury to find that the state had proven an element of the crime of perjury, as charged in count two. After a thorough review of the record, we affirm in part and reverse in part the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. In the 1990s, Kriemhilde Byxbee lived in Stamford with her husband. They had no children. During that time, Heidi Hemingway and Beverly Cogswell cleaned Byxbee's home. In 1997, Hemingway and Cogswell each made approximately $20 every time they cleaned Byxbee's home. Before his death in November, 1997, Byxbee's husband asked Hemingway and Cogswell to take care of his wife after he died. Byxbee was eighty-two years old at the time of her husband's death. Following the death of Byxbee's husband, Hemingway's and Cogswell's duties changed to include grocery shopping, preparing Byxbee's meals and doing the laundry. Byxbee, who had suffered a stroke, had difficulty walking and did not drive. As Byxbee's health declined, she became unable to cook or clean for herself, had difficulty maintaining personal hygiene and appeared to have increased difficulty in understanding what was going on around her. Cogswell began helping Byxbee pay her bills, which Cogswell had noticed were going unpaid. In general, Byxbee was financially conservative. She was sparing with her money, with the exception of the holiday season, when she would give Cogswell and Hemingway $200 each. She became increasingly protective of her money as she got older.

Following a brief hospitalization of Byxbee in 1999, a social worker advised Byxbee to "get her affairs in order." Byxbee expressed a desire to stay in her home until her death. Although Byxbee initially rejected the idea, Hemingway eventually was able to persuade Byxbee to execute a living will. Hemingway contacted the defendant, an attorney, who previously had represented members of Hemingway's family. In April, 1999, the defendant met with Byxbee at her home for approximately forty-five minutes and subsequently prepared a living will, which Byxbee signed. This was the only time that the defendant met Byxbee.

After meeting with Byxbee, the defendant spoke with Hemingway and inquired of Byxbee's assets. When Hemingway stated that Byxbee owned a number of properties and did not have any children, the defendant advised Hemingway that Byxbee should execute a will so that Hemingway could "get something out of Byxbee for . . . services rendered." The defendant told Hemingway and Cogswell that in the absence of a will, all of Byxbee's property would go to the state when she died. Hemingway and Cogswell eventually persuaded Byxbee to execute a new will. The defendant then arranged for attorney Kevin O'Grady to come to Byxbee's home and to draft a new will, which Byxbee executed.

Hemingway and Cogswell learned that they were the beneficiaries of the new will and were each entitled to half of Byxbee's estate. The defendant advised Hemingway and Cogswell that Byxbee should begin liquidating her assets to avoid high estate taxes. The defendant explained that gifting the money in $10,000 increments annually would lower the applicable taxes. She instructed Cogswell and Hemingway to have Byxbee write checks to people they could trust for $10,000 each and then have these individuals cash the checks and give the money to Hemingway or Cogswell. Specifically, the defendant told Hemingway, who then told Cogswell, to cover the top portion of the check and to have Byxbee sign it. The defendant also told Hemingway to give Byxbee an alcoholic drink before asking her to sign the blank checks. The defendant instructed Hemingway and Cogswell to tell Byxbee that they needed to finish paying her bills or that they needed money to buy groceries. Hemingway and Cogswell would then fill in the top portion of a check with the name of a family member or a specific person at the direction of the defendant.

At the defendant's instruction, Byxbee's money market account was closed without Byxbee's knowledge, and approximately $200,000 was deposited into Byxbee's checking account. The proceeds were then distributed to Hemingway, Cogswell and the defendant by check. Hemingway and Cogswell hid Byxbee's monthly bank statements from her. Hemingway received approximately $300,000 as a result of the gift-giving plan. Cogswell and Hemingway employed the same method to have Byxbee sign legal documents prepared by the defendant. Specifically, Cogswell would cover up a portion of the document, tell Byxbee that the document related to her late husband's estate or encourage Byxbee to have a drink before asking her to sign the document.

The defendant also arranged for Byxbee to purchase a life insurance policy from Mutual of Omaha. Warren Seper, the defendant's husband, procured the policy for Byxbee. Because Byxbee refused to purchase the policy during her meeting with Seper, the defendant instructed Hemingway to impersonate Byxbee when a representative from the insurance company called Byxbee to ask questions about her health. The defendant instructed Hemingway to tell Byxbee that her physician wanted her to have a physical examination to ensure her compliance with the examination required by the insurance company. The defendant established the Kriemhilde Byxbee life insurance trust (Byxbee trust), with herself as trustee, to receive the proceeds of the $400,000 life insurance policy.

In the last year of her life, Byxbee owned three different houses in the Stamford area. The defendant facilitated the sale of the properties as part of the plan to liquidate Byxbee's assets to avoid estate taxes. Byxbee purportedly signed an authorization, witnessed by Hemingway and Cogswell, instructing the defendant to prepare a power of attorney for Hemingway to act on Byxbee's behalf. Hemingway attended the closings, signed various documents related to the sale of the properties and collected the proceeds of the sales.

After the sale of the first house, Hemingway gave the defendant approximately $60,000 to $70,000 of the proceeds and deposited the remainder into Byxbee's bank account. Through checks to their family members, Cogswell and Hemingway each received approximately $80,000 from the sale of the first house. The proceeds from the sale of the second house went into the trust account rather than the bank account because that account had been emptied from the numerous checks written as gifts in the preceding months. On September 19, 2000, without Byxbee's knowledge, Hemingway sold the house on Dann Drive in which Byxbee lived before she was moved into a nursing home. Cogswell and Hemingway held a tag sale to sell Byxbee's furniture and belongings. Byxbee was also unaware that the proceeds from the sale were distributed to the defendant's family members as well as to Hemingway and Cogswell.

David Rabin, a physician, saw Byxbee on April 3, 2000, to perform an evaluation of her memory. He diagnosed Byxbee with chronic progressive dementia with significant cognitive impairment. He testified at trial that "[g]iven the degree of her dementia, it was likely that there was some degree of impairment going on back a minimum of three to five years." He also determined that Byxbee had suffered a small stroke within the previous thirty days.

On July 29, 2000, Byxbee was admitted to Stamford Hospital where she was diagnosed with an infection. She also underwent surgery for the removal of a benign mass the size of a tennis ball in her right breast. Rabin testified that a woman without dementia would have noticed the mass. Byxbee suffered another stroke during her stay at the hospital. Rabin testified that Byxbee was disoriented and would not have been able to comprehend the extent of her assets or to evaluate her future financial needs. Barry Spevak, a geriatric specialist, evaluated Byxbee over several days of her hospitalization and concluded that Byxbee suffered from chronic progressive dementia, could no longer care for herself at home and should be moved to a nursing facility for long-term care.

On August 11, 2000, Byxbee moved into Mediplex, an assisted living facility in Westport. Martin Perlin, who treated Byxbee at Mediplex, testified that Byxbee was disoriented, often fixated on her cats and that her "informed decision making process was severely impaired because of her underlying illness."...