State v. Simino

CourtSupreme Court of Connecticut
Writing for the CourtARTHUR H. HEALEY
Citation509 A.2d 1039,200 Conn. 113
PartiesSTATE of Connecticut v. Mark SIMINO
Decision Date03 June 1986

Timothy H. Everett, Bridgeport, with whom, on brief, were Mary Futcher and Matthew Newman, Legal Interns, for appellant (defendant).

James G. Clark, Deputy Asst. State's Atty., with whom, on brief, were John M. Bailey, State's Atty., and Dennis O'Connor and Carl Schuman, Asst. State's Attys., for appellee (State).


ARTHUR H. HEALEY, Associate Justice.

The defendant, Mark Simino, was found guilty after a jury trial of larceny in the second degree by possession in violation of General Statutes § 53a-123(a)(2) 1 and conspiracy to commit larceny in the second degree by possession in violation of General Statutes §§ 53a-48 2 and 53a-123(a)(2). He appeals the judgment of conviction and claims that: (1) the trial court erred in denying his motions for judgment of acquittal; (2) there was insufficient evidence to establish the value of the property involved as required by statute; (3) the trial court should have sustained the defense objections to the state's rebuttal; and (4) the trial court erred in finding that the defendant had waived his federal and state constitutional rights to be present during the jury instructions.

The jury could have reasonably found the following facts: On September 20, 1982, two pieces of wire wicker furniture, a couch and a chair with cushions, were removed from the front porch of the home of Joseph and Marie Mastronardi in Hartford. Joseph Mastronardi saw the furniture on his porch at about 1 a.m. on September 20, 1982. He walked his dog from approximately 7:15 a.m. to 8 a.m. that same day and did not notice anything unusual at that time. As he backed his car out of the driveway at 8:10 a.m., he saw pillows from the furniture on the front lawn, exited his car and tossed the pillows onto the porch and realized that the furniture was missing. He drove to work, called his wife at home to confirm his discovery, and called the police. Marie Mastronardi, after a conversation with a detective from the Hartford police department, called used furniture stores to determine if her furniture had been sold to such a shop. She located the furniture at the first store she called, Able Sam and John's of Hartford. She gave the storeowners a check as a deposit on the furniture and she again contacted the police. A search warrant was obtained and executed on the store, and the furniture was recovered. The store is about two and one-half miles from the Mastronardi residence.

It was stipulated at trial that the defendant was in the store at the time the sale of this furniture by Thomas Mora 3 took place and that the defendant was arrested in connection with the transaction. Mora had telephoned the defendant on the morning of September 20, 1982, and told him that he had bought it from a man, who had the furniture in his car on Farmington Avenue, for $25. Shortly thereafter that same morning, the defendant and Mora attempted to sell the furniture to a gas station attendant and to a man in a pizza shop on their way to Able Sam and John's.

Glen Frazier, a part owner of Able Sam and John's, was doing paperwork in the store when the defendant and Mora arrived at approximately 8:45 a.m. on September 20, 1982, at which time the defendant stated that they had some wicker furniture for sale. Frazier told them to come back later because the store was closed. The pair came back to the store about fifteen minutes later and asked Frazier to look at the furniture which was in the basement of Mora's mother's house. Because Frazier was alone in the store at the time, he told them they would have to wait until his partner returned with his truck. Approximately fifteen to twenty minutes later, the defendant and Mora returned with the furniture and the store partners agreed to buy the two pieces for $125 and paid the money to Mora who signed a false name to a receipt for the property. The defendant was about five feet from Mora when he signed the receipt. Mora paid forty or fifty dollars of this money to the defendant for a prior debt. Other evidence before the jury, which is relevant to the disposition of the issues on appeal, will be discussed below.

The defendant's first claim on appeal is that the trial court erred by denying his motions for judgment of acquittal because the state failed to establish that the defendant actually knew or believed that the two pieces of furniture had probably been stolen, an essential element of General Statutes §§ 53a-123(a)(2) and 53a-119(8). 4 The defendant made oral motions for judgment of acquittal as to both counts of the information after the state had rested and at the close of all the evidence, and after each denial by the trial court he took an exception.

When a claim on appeal challenges the sufficiency of the evidence, we undertake a two-part task. "We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury's verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985); State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984); 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, reh. denied, 466 U.S. 954, 104 S.Ct. 2163, 80 L.Ed.2d 547 (1984)." State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985); see State v. McCarthy, 197 Conn. 166, 178, 496 A.2d 190 (1985).

In reviewing the evidence presented, "it is of no moment that much of the relevant evidence may be circumstantial." State v. Braxton, supra. "We also note, as we have often said, that 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). "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. Gaynor, 182 Conn. 501, 438 A.2d 749 (1980); State v. Brown, 168 Conn. 610, 616, 362 A.2d 910 (1975); State v. Walters, 145 Conn. 60, 69, 138 A.2d 786 (1958)." State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981).

In reviewing the evidence in this case, it should be noted that " '[a]ctual knowledge that the property has been stolen is necessary, but the trier "would not be justified in finding knowledge unless the facts referred to were such that a reasonable man--the accused as a reasonable man--should have inferred and gathered from them knowledge that the goods were stolen." State v. Weiner, 84 Conn. 411, 418, [80 A. 198 (1911) ].' State v. Appletree, [35 Conn.Sup. 531, 534, 394 A.2d 744 (1977) ]." State v. Scielzo, 190 Conn. 191, 198-99, 460 A.2d 951 (1983).

The defendant claims that both motions for judgment of acquittal are reviewable on appeal and that the sufficiency of the evidence should be evaluated after the state rested its case and after all the evidence had been heard. In State v. Rutan, 194 Conn. 438, 440, 479 A.2d 1209 (1984), we stated that "[u]nder the waiver rule, when a motion for acquittal at the close of the state's case is denied, a defendant may not secure appellate review of the trial court's ruling without foregoing the right to put on evidence in his or her own behalf.... If the defendant elects to introduce evidence, the appellate review encompasses the evidence in toto." The defendant in this case elected to present a defense and under the waiver rule, we decline to review the trial court's ruling on the motion after the state has rested its case. 5 We now look at the evidence in toto in order to review the trial court's ruling on the motion for judgment of acquittal after all the evidence had been presented.

There was also the following evidence before the jury: Early in the morning of September 20, 1982, the defendant received a telephone call from Mora in which Mora told him that he had bought some wicker furniture as a gift for his mother. When Mora told the defendant that he had only paid $25 for it, the defendant told him that he "got a bargain" and he inquired of Mora at least twice if he was sure that the furniture did not belong to his mother. When Mora was informed by the defendant that he "could get a couple hundred dollars for it," Mora asked the defendant "where [they] could go" and the defendant suggested Able Sam and John's, a store with whom he had previously done business. On their way to the store, the pair stopped at a gas station and a pizza house in an attempt to sell the furniture. When they arrived at the store, it was not yet open for business and the pair was told to return, and they did so twice within the next thirty minutes. The defendant, on the third visit, actively participated in negotiating the sale price of $125 although Marie and Joseph Mastronardi and Richard Wacht, an auctioneer, testified that the value of the property taken was between $600 and $1000. After the defendant negotiated the price and the store owners paid Mora, Mora paid the defendant "forty or fifty" dollars because Mora owed him fifty-seven dollars that the defendant had recently paid to a bail bondsman on Mora's behalf. In the presence of the defendant, Mora signed a false name to the receipt because he was "under the impression that [the property] was stolen."

The evidence in toto, as reviewed above, was sufficient for a jury reasonably to conclude that the defendant probably knew or believed that the furniture was stolen. As we stated in State v. Fredericks, 149 Conn. 121, 124, 176 A.2d 581 (1961), "[o]rdinarily, guilty knowledge can be established only through...

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