State v. Scielzo

CourtSupreme Court of Connecticut
Citation190 Conn. 191,460 A.2d 951
Decision Date24 May 1983
PartiesSTATE of Connecticut v. Salvatore SCIELZO.

Bruce L. Levin, Sp. Public Defender, for appellant (defendant).

Julia D. Dewey, Asst. State's Atty., with whom, on brief, was Arnold Markle, State's Atty., for appellee (state).


ARTHUR H. HEALEY, Associate Justice.

The defendant was charged in an amended information with the crime of larceny in the second degree by receiving and disposing of stolen goods with a value in excess of $500. See General Statutes (Rev. to 1977) §§ 53a-123(a)(2), 1 53a-119(8). 2 He was found guilty as charged after a trial to the jury. This appeal followed.

On appeal, the defendant claims that (1) the state failed to prove that he knew or believed that the property he received was probably stolen; (2) the state failed to adduce evidence that the value of the property received by him exceeded $500; and (3) he was afforded ineffective assistance of counsel at the time of trial.

In view of the direct and circumstantial evidence before the jury, they could have reasonably concluded that the state had satisfied its burden of proving the defendant's guilt under the amended information of larceny by receiving stolen property as that is defined by General Statutes § 53a-119(8).

Viewing the evidence in the light most favorable to sustaining the verdict, the jury could have found the following facts: On July 6, 1977, the Milford-Orange YMCA purchased a new "Boston Whaler" (Whaler) boat from the Olson Marine Company 3 for $1550. This boat was 14 feet long, fully equipped, and included a 1975 Evinrude outboard motor. It had previously been registered with the Connecticut department of motor vehicles by Olson Marine and assigned the registration number CT369X. The YMCA kept the Whaler at the Milford Harbor Marina in Milford.

On August 1, 1977, the director of the YMCA complained to the Milford police department that the Whaler had been stolen from its slip at the Milford Harbor Marina. It was stolen by the state's witness Larry Brackett, who had pled guilty to larceny in the second degree for that larceny sometime prior to the defendant's trial. 4 When he stole it, Brackett took the boat by water to the backyard of his Milford home. 5 When he got it to his backyard he "started taking it apart" and he took off "everything that wasn't tied down." He took off or removed the motor, gas tanks, engine mounting, controls, wiring, throttle, shift, ignition, electrical wiring, gas cable, throttle cable, motor harness, battery and battery box, steering cables, pullies and lights. In addition, he removed an identification number plate on the outside of the boat which was held on by bolts or rivets. He also observed the numbers "396" on the bow of the stolen Whaler. He put putty in the area where he had removed the number from the outside of the boat. The same number was also embossed inside the hull in the back of the boat; he filled or covered it with putty.

After Brackett had stripped the boat, he tried to sink it 6 in the swamp behind his backyard. The boat, however, did not sink. While most of it was submerged at high tide, at low tide it just sat in the mud. After a time, Brackett dragged it out of the swamp, bottom side down, over rough ground to his backyard.

Sometime thereafter in August, 1977, David Williams 7 visited his friend Brackett at the latter's house. While there, he saw the Whaler on a trailer and had a conversation with Brackett about the boat. As a result of that conversation, Williams showed the boat to the defendant a few days later while it was still in Brackett's yard. At that time Williams told him that the boat "was an insurance fraud," that it was a few months old and that "it was a little bit hot." The defendant was interested in taking it and Williams told the defendant he wanted about $500. Williams believed the defendant told him he would pay $300 for it. 8 About a week or two later after the defendant removed the Whaler and the trailer from Brackett's yard, Williams went to see the defendant and asked him if he had any money for the boat. The defendant told him to come back "about a week later." The second time Williams went back to see the defendant, the latter told him it was the YMCA's boat and also asked Williams why he had not told him it was the YMCA's boat. The defendant told him he had gotten rid of the boat in New York. Williams testified that he had told the defendant the boat was stolen. Williams received $100 from the defendant for the boat.

After the Whaler and the trailer had disappeared from his backyard, Brackett asked Williams where the trailer was and requested that he get it back. Williams told him that someone from the Marine Engine Service had picked up the boat and the trailer. Brackett went to the Marine Engine Service, which was owned and operated by the defendant, and inquired of the defendant about the trailer. The defendant told him "they had to get rid of it."

The state's witness, Alfred L. Fernald, had been employed by the Olson Marine Company for thirty years and was the service manager in July, 1977. He knew the defendant who was a former employee of that company. Fernald testified that the Whaler had a serial number on it, which is the Coast Guard identification number and is fastened to the aluminum plate on the Whaler which is riveted to the fiberglass hull. On the basis of his experience in the boat business, he testified that the significance of that serial number was that "it is similar to the identification number on an automobile. That's the identification number of it." It indicates the serial number, the year it was built and the boat manufacturer. As a boat dealer he would "check to make sure that number was affixed." In addition, there is another identification number on the rear of the boat inside the center of the transom just below where the motor attaches to the back of the boat. That was the Whaler's identification number "which just has meaning to the factory itself." When Ronald Hart, the person to whom the defendant sold the boat, purchased it on September 11, 1977, there was no identification number on the boat. 9

On September 23, 1977, Robert Slattery, the investigating state trooper, examined the boat that Hart had purchased from the defendant. He had previously contacted the Boston Whaler Company in Massachusetts and he was looking for identification numbers on that boat. In this regard, he looked in the area below the engine mount. 10 Slattery removed the Johnson sticker from this location and he found "an area underneath the sticker which had been ground down." He found no serial number in that location. His investigation also disclosed an area on the rear of the boat "with four small holds which appeared to have been filled in with a putty-like or some substance." He never found "any serial numbers on the entire boat."

On the basis of the foregoing evidence we must reject the defendant's claim that he neither knew nor believed that the property he received was probably stolen. " 'We have repeatedly stated the test which this court employs to determine whether the evidence is sufficient to sustain a verdict: "[T]he issue is whether the [trier] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.' " State v. Gaynor, 182 Conn. 501, 503, 438 A.2d 749 (1980), quoting State v. Festo, 181 Conn. 254, 257, 435 A.2d 38 (1980); State v. Nemeth, 182 Conn. 403, 410, 438 A.2d 120 (1980); State v. Saracino, 178 Conn. 416, 419, 423 A.2d 102 (1979); State v. Jackson, 176 Conn. 257, 262, 407 A.2d 948 (1978).... "[T]he evidence presented at the trial must be given a construction most favorable to sustaining the jury's verdict." State v. Jackson, supra, 262, 407 A.2d 948; see State v. Nemeth, supra; State v. Chetcuti, 173 Conn. 165, 172, 377 A.2d 263 (1977). Each essential element of the crime charged must be established by proof beyond a reasonable doubt, " 'and although it is within the province of the [trier] to draw reasonable, logical inferences from the facts proven, [it] may not resort to speculation and conjecture.' " " State v. Gaynor, supra, 182 Conn. at 503, 438 A.2d 749; State v. Festo, supra, 181 Conn. at 259, 435 A.2d 38. State v. Stankowski, 184 Conn. 121, 126 (42 CLJ 46, pp. 5, 7-8) 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S.Ct. 596, 70 L.Ed.2d 588 (1981). Where it cannot be said that a rational trier of fact could find guilt proven beyond a reasonable doubt, then, a conviction cannot 'constitutionally stand,' as it is violative of due process under the fourteenth amendment. Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979); State v. Kish, 186 Conn. 757, 768, 443 A.2d 1274 (1982)." State v. Haddad, 189 Conn. 383, 387-88, 456 A.2d 316 (1983). (Footnote omitted.) The Jackson court took pains to point out that the inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt "does not require a court to 'ask itself whether it believes that the evidence ... established guilt beyond a reasonable doubt.' " (Emphasis in original.) (Citation omitted.) Jackson v. Virginia, supra, 443 U.S. at 318-19, 99 S.Ct. at 2788-89. The court then said: "Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S. [356, 362, 92 S.Ct. 1620, 1624, 32 L.Ed.2d 152 (1972) ]. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and...

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