State v. Pearl

Decision Date11 August 1992
Docket NumberNo. 10034,10034
Citation28 Conn.App. 521,613 A.2d 304
CourtConnecticut Court of Appeals
PartiesSTATE of Connecticut v. Edith PEARL.

Richard R. Brown, Hartford, for appellant (defendant).

James M. Ralls, Asst. State's Atty., with whom, on the brief, was Patricia A. Swords, State's Atty., for appellee (state).

Before FOTI, LAVERY and CRETELLA, JJ.

FOTI, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of larceny in the first degree in violation of General Statutes § 53a-122(a)(2) 1 and General Statutes § 53a-122(a)(4), 2 and second degree forgery in violation of General Statutes § 53a-139. 3 The defendant claims that the trial court incorrectly (1) found sufficient evidence to sustain a guilty verdict on the two counts of first degree larceny, (2) found sufficient evidence to sustain a guilty verdict on the charge of forgery, and (3) admitted into evidence certain secondary documents in violation of the best evidence rule. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The defendant was employed as a scheduler at the Mansfield Training School, a state agency. As a scheduler, she was responsible for maintaining records of employees' work history and attendance, including overtime, compensation time, sick leave, holidays, vacations, and personal leave, as well as keeping track of her own attendance. To keep track of employees' attendance, the defendant listed their hours on time and attendance records which were then signed by her supervisor and thereafter kept on file in her office. The defendant then transcribed the information contained in these records onto biweekly time sheets (biweeklies) which she submitted to the payroll department. Payroll personnel then transferred the information contained in the biweeklies onto official payroll time cards and initialed the upper corner of each biweekly. Payroll personnel used the information copied from the biweeklies to calculate the amount of pay due to each employee according to the category of hours worked and the employee's wage rate. Payroll personnel kept the payroll cards in their office and returned the biweeklies to the defendant after making photocopies of them. After she received the biweeklies from the payroll department, the defendant kept them on file in her office.

During the period of time from October 25, 1985, to July 13, 1989, the defendant submitted biweeklies to the payroll department on which she inflated the actual number of hours she worked. After transcribing the numbers onto the payroll cards, the payroll department returned the biweeklies to the defendant. The defendant then either deleted the inflated hours from the biweeklies or substituted forged biweeklies so that the biweeklies on file in her office reflected only the hours actually worked. She then forged the initials of payroll personnel on the altered biweeklies.

During an investigation into the defendant's conduct, the defendant's biweeklies were recovered from her office. These documents revealed only a few hours of overtime in comparison to the payroll cards, which indicated that the defendant had been paid for many hours of overtime. Additionally, the defendant's biweeklies contained numerous erasures and white-out markings. There were no similar erasures evident on the biweeklies of other employees, which were also on file in the defendant's office. Additionally, the defendant had blank copies of biweeklies in her office.

Overall, the payroll cards and other documents indicated that the defendant had been paid for between 2800 and 2950 hours of overtime, totaling approximately $59,000, in four years. During some weeks, the defendant was paid for between forty and fifty hours of overtime. At trial, there was testimony that the defendant's job did not require this amount of overtime. Furthermore, it was the policy of Mansfield Training School that all overtime hours be approved by the assistant director of the school. There was testimony that the defendant had received permission from her supervisor for only a few hours of overtime work during the four year period in question.

Several witnesses testified at trial that they had rarely seen the defendant work before or after her regular shift, which was from 7 a.m. until 3:30 p.m. Many of these witnesses also testified that during the times in question, they did not see the defendant's car parked at the school. Furthermore, there was testimony that the defendant had stated to her supervisor that she always was able to complete her work within the normal work week and could not understand why other schedulers had difficulty doing so.

I

The defendant first claims that the evidence was insufficient to sustain a verdict of guilty of first degree larceny in violation of General Statutes § 53a-122(a)(2) and (4). The defendant argues that the jury could not have reasonably concluded that she was guilty beyond a reasonable doubt, and that the state failed to prove beyond a reasonable doubt that she did not work the overtime hours she submitted to the payroll department on the biweeklies. The defendant emphasizes that none of the state's witnesses could say definitively that she was not working during the times she claimed to have worked.

Our review of the record, however, leads us to reject the defendant's arguments. Although the state's case rested largely on circumstantial evidence, "there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned." State v. Haddad, 189 Conn. 383, 390, 456 A.2d 316 (1983); State v. King, 216 Conn. 585, 602, 583 A.2d 896 (1990). "It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence." State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981). "When an appeal challenges the sufficiency of the evidence to justify a verdict of guilty, we have a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the verdict.... We then determine whether ' "the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt." ' " (Citations omitted.) State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985); State v. Kennedy, 20 Conn.App. 354, 368, 567 A.2d 841 (1989), cert. denied, 214 Conn. 805, 573 A.2d 317 (1990). It is a well established principle that we, as a reviewing court, do not " 'sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury's opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.' " State v. Rodriquez, 200 Conn. 685, 693, 513 A.2d 71 (1986), quoting State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S.Ct. 1455, 79 L.Ed.2d 772 (1984). We will not disturb the determination of the trier of fact if, viewing the evidence in the light most favorable to sustaining the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Edwards, 201 Conn. 125, 151, 513 A.2d 669 (1986); State v. Waterman, 7 Conn.App. 326, 338-39, 509 A.2d 518, cert. denied, 200 Conn. 807, 512 A.2d 231 (1986). "The state need not offer proof of guilt 'beyond a possible doubt.' " State v. Hicks, 169 Conn. 581, 585, 363 A.2d 1081 (1975).

The defendant was charged with two counts of larceny in violation of General Statutes § 53a-122(a)(2) and (4). Larceny occurs when, "with intent to deprive another of property or to appropriate the same to himself or a third person, [a person] wrongfully takes, obtains or withholds such property from an owner." General Statutes § 53a-119; State v. Marra, 174 Conn. 338, 342, 387 A.2d 550 (1978); State v. Rochette, 25 Conn.App. 298, 304, 594 A.2d 1006, cert. denied, 220 Conn. 912, 597 A.2d 337 (1991). To convict a person under § 53a-122(a)(2), the state must prove that the value of the property exceeded $10,000, and to convict a person under § 53a-122(a)(4), the state must prove that the property was obtained by defrauding a public community, with the value of the property in excess of $2000.

At trial, the state presented alternative theories of guilt. The state's primary theory was that the defendant did not actually work the overtime hours that she claimed on her biweeklies and for which she was paid. In the alternative, the state asserted that even if the defendant had worked the overtime hours in question, she did so wrongfully because she had not received approval from her supervisor to work the extra hours, and she did so to obtain moneys to which she was not entitled. She committed a larceny by obtaining that overtime pay by false pretenses in violation of § 53a-119(2). We conclude that there was sufficient evidence for the jury to have found the defendant guilty under either theory.

The state offered the testimony of Charles Devaux, the personnel manager at Mansfield Training School during the time in question, who investigated the irregularities in the defendant's attendance sheets. During his investigation, Devaux compared the biweeklies that were turned into the payroll department with the time and attendance records and found many inconsistencies. On the biweeklies submitted to payroll, the defendant claimed many hours that were not listed on the time and attendance sheets. Devaux testified that there were also many erasures of overtime hours on the biweeklies made after they were returned to the defendant from the payroll department. Devaux found 352 instances in which a total of 2950 hours of unauthorized...

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    ...where "the value of the property ... exceeds ten thousand dollars...." General Statutes § 53a-122 (a)(2); see State v. Pearl, 28 Conn.App. 521, 527, 613 A.2d 304 (1992). "The crime of embezzlement is consummated where ... the defendant, by virtue of his agency or confidential relationship, ......
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